Lyndon and Levine BLM Trade Secrets Comment

8 Pages Posted: 8 Dec 2013

See all articles by Mary L. Lyndon

Mary L. Lyndon

St. John's University - School of Law

David S. Levine

Elon University School of Law; Stanford University - Center for Internet and Society

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

Lyndon, Mary L. and Levine, David S., Lyndon and Levine BLM Trade Secrets Comment (August 23, 2013). Available at SSRN: or

Mary L. Lyndon

St. John's University - School of Law ( email )

8000 Utopia Parkway
Jamaica, NY 11439
United States

David S. Levine (Contact Author)

Elon University School of Law ( email )

201 N. Greene Street
Greensboro, NC 27401
United States


Stanford University - Center for Internet and Society

Palo Alto, CA 94305-8610
United States


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