by Betsey Piette
March 26, 2013
Philadelphia — Since 2005, a provision of the federal Energy Policy Act popularly labeled the “Halliburton Loophole,” allowed the giant corporations profiting from drilling in major shale formations across the U.S. to withhold information on the hundreds of potentially toxic and carcinogenic chemicals that make up fracking compounds. The law provided them protection for “trade secrets.”
This industry tactic to restrict oversight and limit potential litigation was supplemented by state laws like Pennsylvania’s Act 13 that prohibited disclosure of the impact of harmful chemicals whenever lawsuits were settled with major fracking corporations.
Under the terms of Act 13, doctors treating patients suffering from injuries or illnesses suspected to be caused by fracking were prohibited from disclosing exactly what chemicals were involved or the nature of their patient’s illness. While some provisions of Act 13 have been overturned by state courts, this one has not.
On top of these legislative covers, all too frequently lawsuits regarding water or air contamination stemming from fracking were settled with a ubiquitous “nondisclosure” clause prohibiting plaintiffs from revealing just what damage they suffered.
If a rancher’s cattle dropped dead after drinking fracking wastewater, scientists were prohibited from testing the dead animals to find out just what chemicals they had ingested. If children became ill after exposure to air or water contaminated by fracking chemicals, no doctor could sound a general alarm.
Crack in fracking industry’s armor
A judge’s ruling in a western Pennsylvania court is being seen by many as the first crack in the fracking industry’s armor.
On March 20, Judge Debbie O’Dell-Seneca reversed an order by a Washington County court that sealed records from a lawsuit against several Marcellus Shale gas companies involving property damage and health impacts from air and water pollution caused by natural gas operations.
The Pittsburgh Post-Gazette and the Observer-Reporter filed the case to unseal records stemming from a case initiated by Stephanie and Chris Hallowich against Range Resources, Mark West Energy Partners, and Williams Gas/Laurel Mountain Midstream Partners, which was originally settled in July 2011. The drilling companies sought to keep the records out of public scrutiny. Areas around Pittsburgh have been particularly hard hit by unfettered drilling for natural gas.
As is the case with most complaints involving fracking, the parties reached a settlement outside the courtroom. It is known that Range Resources agreed to pay the Hallowich family $750,000.
Amicus briefs supporting the newspapers’ lawsuit were filed on behalf of Philadelphia Physicians for Social Responsibility and several doctors and scientists who argued in support of greater transparency concerning fracking’s health impacts.
Earthjustice attorney Matthew Gerhart, who filed a brief, called the court’s ruling “a victory for everyone who believes that we need more information about the environmental and health consequences of fracking.”
A key part of Judge O’Dell-Seneca’s ruling challenged the corporations’ claim that they had the same right to privacy as individuals to keep records from being unsealed. She determined that Pennsylvania’s constitution does not protect the right of privacy for businesses.
Records expose role of DEP
The fallout from this historic ruling remains to be seen. Many cases across Pennsylvania concerning contamination from drilling in the Marcellus Shale either were resolved through out-of-court settlements with nondisclosure clauses or were never contested for lack of verifiable evidence.
The anti-fracking group StateImpact Pennsylvania quickly posted all 971 pages it obtained from the unsealed Hallowich settlement. The family had sued after their children were sickened from nearby drilling activities, but were forced to agree to a strict gag order in order to reach settlement.
The unsealed court records reveal several references to the plaintiff’s concern about the lack of adequate inspections or oversight by the Pennsylvania Department of Environmental Protection. The DEP failed to keep complete records of their investigation, including having no record of testing a Hallowich neighbor’s water that revealed high levels of the cancer-causing chemical acrylonitrile.
The DEP inspector who did the investigation subsequently left the state agency to work for Range Resources.
The DEP’s failure to adequately test well water impacted by fracking chemicals or to report their findings to homeowners has long been a key concern for communities impacted by fracking across Pennsylvania.
As part of their settlement the Hallowich family had to sign an affidavit that “no medical evidence” definitively linked their children’s illnesses to drilling activity.
Potentially far-reaching impact
Already families who reached similar out-of-court nondisclosure settlements with drilling companies are asking if the latest court ruling applies to them as well. Some, who had agreed earlier to a confidential settlement, are asking if this decision lifts their gag order.
The drilling industry is currently pushing a campaign designed to convince people that the industry has “made peace” with environmental activists by agreeing to voluntary “tough new fracking standards” and that now fracking should be safe and therefore “more acceptable.”
While activists say the drilling industry’s practices are as unsafe as ever, the industry’s goal is to push the expansion of fracking by going around any potential state or local restrictions.
One court ruling won’t turn around the lack of government control, but it can give the anti-fracking community a new weapon to fight with.
Piette’s essay, “Drilling into the abyss: Why hydraulic fracturing is not a solution for global energy needs or global warming,” won a first prize at the Havana Book Fair this February, in a contest called “Thinking Against the Mainstream,” run by the Cuban Ministry of Culture.
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