Lyndon and Levine BLM Trade Secrets Comment
8 Pages Posted: 8 Dec 2013
Date Written: August 23, 2013
We, the undersigned law professors who teach and write about intellectual property and trade secrets, write in opposition to the proposed Bureau of Land Management (“BLM”) regulations of hydraulic fracturing (also known as “fracking”) contained in the Federal Register dated May 24, 2013, particularly proposed regulations 3 CFR 3162.3-3(j)(1) through (4) (the “Regulations”). As we understand them, in sum, the Regulations would allow entities engaged in hydraulic fracturing to withhold purported chemical information trade secrets from the BLM, and by extension, the public. Specifically, the BLM takes the position that to require submission of such information “would increase paperwork burdens on operators, and custodial requirements for the BLM.” Instead, the Regulations favor requiring trade secret holders to submit “an affidavit…to affirm that the undisclosed information is entitled to protection from public disclosure.” The BLM thus proposes to cede to regulated firms a substantial part of its own regulatory responsibility.
While businesses engaged in hydraulic fracturing may have legitimate trade secrets, the public‟s interest in assuring that hydraulic fracturing is managed in a manner that addresses all significant potential risks may legitimately outweigh commercial concerns. Indeed, hydraulic fracturing must be managed and regulated in a manner that truly merits the name “best practices.” As the BLM states on its website homepage, “The [BLM] may best be described as a small agency with a big mission: To sustain the health, diversity, and productivity of America‟s public lands for the use and enjoyment of present and future generations."
Keywords: hydraulic fracturing, fracking, trade secrets, transparency, environment, health, safety
JEL Classification: K32, K23, Q38, Q40
Suggested Citation: Suggested Citation