August 4, 2011 The Pump Handle 13Comment

By Anthony Robbins

Natural gas producers are battling public concerns over the public-health effects of their extraction techniques. Does injection of water and toxic chemicals deep into the ground to release natural gas contaminate ground water, potentially drinking water? Now it appears that a strategy we have discussed before, settled lawsuits and confidentiality agreements, has prevented almost everyone from learning about the instances where serious contamination has been caused by fracking.

Today’s New York Times reports that an EPA report by Carla Greathouse that described contamination of drinking water has been kept secret by a strategy of settling lawsuits with agreement that the plaintiff will not reveal the problem in return for a payoff.

My colleague Daniel Givelber and I wrote about this legal tactic a few years ago in a piece called “Public Health Versus Court-sponsored Secrecy”:

Civil litigation uncovers a great deal of otherwise unavailable information about practices and products which may cause disease and injury. However, common practices in and related to lawsuits, trials, and courts, such as protective orders, sealing orders, and confidential settlements, can deprive public health authorities and the public itself of information that might be helpful to prevent disease, injury, disability, and death. In the United States, this conflict between public health and legal practice over the availability of information is nowhere more evident than in tort litigation…

The assumption that public health authorities need and should have information in order to protect the population seems at odds with the actions of parties in many lawsuits, particularly civil suits that seek compensation for alleged torts. When the information about the cause of disease or injury is sufficiently convincing to cause the parties to settle, it also might be sufficient to convince public health authorities to take actions to protect others similarly exposed or at least to undertake research to learn about the consequences of similar exposures…

Lawyers acting for their clients often seek help from courts to enforce secrecy. They can ask for protective orders to conceal information uncovered in pretrial discovery. The defendant frequently asks the judge to order the plaintiff not to divulge this information to the public or even to government agencies authorized to protect the public. Lawyers can also ask judges for sealing orders during or at the conclusion of litigation to protect records from public scrutiny. Similarly, after the parties have agreed to settle, and occasionally after a verdict, attorneys can ask the judge to enter an order for a confidential settlement, prohibiting, on pain of contempt, the parties or their lawyers from revealing information contained in the settlement. This prohibition might include talking with the press, cooperating with regulatory authorities–the Food and Drug Administration, the Environmental Protection Agency, or the National Highway Traffic Safety Administration, for example–and sometimes prohibiting even an admission that there was a dispute in the first place.

It appears that wherever there has been litigation, those charged with protecting the public health should consider whether there is helpful information that is being hidden. We suggest a few approaches to preventing such problematic secrecy in the future; for instance, judges could refuse to enter protective orders that seal records relevant to public health, or refuse to enforce confidentiality agreements regarding such information.

Anthony Robbins, MD, MPA is a Professor of Public Health at Tufts University School of Medicine and co-editor of the Journal of Public Health Policy. He directed the Vermont, then the Colorado, state health departments and the National Institute for Occupational Safety and Health before serving as professional staff to the House Energy and Commerce Committee.

13 thoughts on “Fracking’s Consequences Obscured by Legal Tactic

  1. When a company is made aware of dangerous and harmful practices though a lawsuit, it has a positive duty to not continue to engage in those harmful practices and to mitigate any harm that prior harmful practices have generated.

    If they do continue to engage in those harmful practices knowing that they are harmful, the resulting cases (should) rise to the level of criminal negligence, and if people die, to criminally negligent homicide.

    That should be one of the first things that plaintiffs attorneys should find out, have there been prior cases. If there have been, and the dangers uncovered in those prior cases not remedied, then it becomes a case that the defendants have to settle because they will lose if they go to trial.

    It is my understanding that most public health jurisdictions mandate disclosure of known health risks to the public. If there is a settlement, the company doesn’t get a free pass to not disclose it just because there is a confidentiality agreement with the injured party. If they adopted a rule that contamination of wells that supply drinking water has to be reported to health authorities, then a confidentiality agreement doesn’t let them not disclose it. Corporations don’t have a fifth Amendment right of non-self incrimination.

    In the case of child abuse, there are mandated reporters that are mandated by law to report an suspicions of child abuse. If drinking water supply contamination suspicion reports were made mandatory for certain individuals with the knowledge to appreciate what that means, analytical laboratories, lawyers working in environmental areas, then confidentiality agreements would not prevent disclosure.

    That could be done via laws, but agencies that license professionals could do the same thing. The agency that accredits analytical laboratories could make it a condition of accreditation that contaminated drinking water sources will be disclosed to public health authorities. What that means is that the analytical laboratory can’t be a party to confidentiality agreements that prohibit disclosure and remain accredited. Other professional licensing organizations could do the same thing.

  2. Amen, Prof. Robbins!

    You hit the nail right on the head – the gas industry buys the silence of their victims.

    Impacted landowners across America’s gaslands have water delivered to them by gas companies, and they are forbidden to discuss why they can no longer use their wells and why there is a 500 gallon white plastic “water buffalo” sitting out in their yard.

    The “methane mafia” coerces their victims to remain silent by threatening to withhold water deliveries if they talk. It is time for the Dept. of Justice to investigate the tactics used by the gas industry to keep the shroud of secrecy on their operations, their victims silent, and to determine just how much damage they have already done to communities across America.

  3. I read the article, and it was difficult to tell exactly what was going on. But it seemed to exonerate hydraulic fracturing as the cause, instead pointing to some nearby abandoned wells that may not be properly plugged.

    Any thought that hydraulic fracturing had somehow propagated fractures through several thousand feet of rock seemed to be dismissed by this article.

    So, to me, its just another in a line of deceptive hit pieces on hydraulic fracturing coming from nytimes.

  4. Chris,

    Don’t bash the messenger. The NY Times is only doing their job.

    The gas industry has a history of lying and distorting the facts – like the “myth that fracking doesn’t cause problems with nearby wells.

    The Quebec Govt. checked 31 wells back in January and found 19 were leaking – that’s 2/3 – NOT GOOD! In every community the gas industry operates, pubic health and the environment suffer. If you doubt me, do a GOOGLE search on the Pavillion Health Survey, or the Garfield Co. Water Contamination study by Thyne (2008).

    The gas industry knows that any well they drill might end up contaminating the ground water/aquifer, and they play “Russian roulette” with every landowner who invites them to drill.

    These links will show you why:
    The purpose of this “slide show” is to illustrate how a gas (or oil) well is drilled down into the ground. Emphasis will be on the measures the driller is required by the State to take to prevent pollution of groundwater or damage to other underground resources, and, despite these precautionary measures, the ways in which pollution of groundwater etc. can occur from this “down hole” gas well drilling activity. How fracked gas wells become a conduit of pollution OR why hydraulic fracturing of gas wells will lead to gas and other materials migrating to the surface via natural and induced faults and the well bore itself.

  5. Richard,

    There is no question that the nytimes is engaged as a propaganda arm of the anti-frackng industry, with purposeful deception and slanted reporting. Otherwise I would agree with you on the “don’t blame the messenger” thing.

    I know Geoffry Thyne and I’ve corresponded with him regarding the goings on in Garfield County. I am quite sure he would find your overblown assertions as laughable as I do, because from what YOU say, no well should ever be drilled. That’s ridiculous and I know for a fact that’s not what Geoff thinks, based on his written statements to me.

    I think you’re just an activist with an axe to grind and not really interested in solving problems. Also you could make better use of the internet in figuring out who you’re talking to and what information they’d fin useful.

  6. Chris,

    I think the evidence clearly shows that NO gas wells should be drilled in populated or agricultural areas given this industry’s track record – period! The gas industry has demonstrated that public health & safety, and the environment are tertiary concerns, at best.

    It matters little if you know the man in the moon – your inability to understand the ramifications of this process based on the available data suggests you are willing to sacrifice whatever communities are lying above shale gas reserves to drive gas industry profits.

    I have personally spoken with Anthony Ingraffea from Cornell, and he is one of the world’s leading experts on rock fracturing mechanics. Before you accept the non-sense the gas industry as been dishing out to the public and state and federal regulators, do some due diligence on your own and stop acting like a cheerleader for the gas industry.

  7. …How the heck can anyone claim there’s an ANTI-fracking INDUSTRY? What would such a thing possibly make money from, all the filtered water it didn’t sell to all the rural communities that didn’t get sick?

  8. “[The] data clearly provide evidence for solutes elevated above natural background in the study area.
    Currently, the trend of this sub-regulatory impact is best delineated by the increasing methane
    and chloride found in groundwater samples. The methane stable isotopic data show that almost
    all the samples are thermogenic in origin. While it is likely that some small amount of vertical
    migration of gas from the Wasatch Formation is naturally occurring, the low pre-drilling
    concentrations (<1ppm) and trend of increasing dissolved methane that is positively correlated to
    well numbers indicate that drilling and production activities are the cause. The locations of the
    most affected are near structural features where the faults and fractures maximize the vertical
    mobility of the gas, however it is not possible at this time to identify if leaking production
    tubing, leaking top-of-gas casing or un-cased Wasatch interval is the primary source of methane."

    (Review of Phase II Hydrogeologic Study Prepared for Garfield County, Geoffrey Thyne, 2008, pg. 21)

  9. Richard,

    I can’t really talk to someone who can’t apparently read their own posts.

    Pteryxx- how can anyone claim that a movement bringing in millions and putting out oscar-nominated films is not an industry?

  10. Chris,

    And I can’t be bothered trying to discuss “science” with a gas industry shill – been there, done that!

    Since the gas industry can’t produce one real piece of science that they can draw on to support their claims of “safe and responsible” gas drilling, (instead of mythology and junk-science – like the infamous 2004 EPA Study on Coal Bed Methane that “proves” fracking is safe…), they instead reflexively attack the messenger in each and every case – like you did with the NY Times and myself. The fact is your naïveté and gullibility merely serve to support your overly optimistic assessment of this industry and hinder your ability for critical evaluation.

  11. 1) learn to read
    2) learn to use the internet

    That’s my advice to you, mentally challenged brother. Then *maybe* you won’t look like a loudmouth ignoramous who doesn’t realize what his own posts say.

  12. Chris,

    How typical of the gas industry shills and stooges…they will not or cannot address the salient issues, so instead they attack the source(s), whether it is the Cornell Study by Howarth that looked at methane green house contributions, or the Duke Study that showed a 17 fold increase in the likelihood having methane in your water if living near a gas well.

    I could go on but I have better things to do with my time than waste it trying to butt heads with someone with NO ability to critically evaluate the multitude of reports that highlight the perils of gas drilling in populated and agricultural areas.

    Lastly, your continual personal attacks against those that say something disparaging – but true – about your beloved gas industry (like the NY Times) highlights an obvious and a serious personality defect on your part.

  13. Ah, the fracking industry, pure as the driven snow (unless you live downwind of a compressor battery), has launched a television campaign to paint a rosy, and false, picture of their industry. Why is any criticism of this industry, even when backed by hard evidence, branded as propaganda, but the industry’s efforts get a free pass, when their billion-dollar advertising campaign is precisely that? I have personally met people whose health has been damaged by this industry, actual real people in southwestern Pennsylvania. I suppose all of them automatically become “tree-huggers,” “enviro-fanatics” and their real physical ailments all conveniently manufactured through some overarching lefty conspiracy. This is NOT political. This is real life.

Leave a Reply

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.