Settlement Confidentiality: A 'Fracking' Disaster for Public Health and Safety

Date01 May 2015
5-2015 NEWS & ANALYSIS 45 ELR 10459
A “Fracking”
Disaster for
Public Health and
by R. Kyle Alagood
R. Kyle Alagood is a 2015 J.D./D.C.L. Candidate
at Louisiana State University Law Center.
Condentiality clauses in settlement agreements have
become so commonplace that they seem like benign
contractual terms. In reality, however, condentiality
clauses have formidable power to silence even the most
outspoken plaintis, and to shield repeat environ-
mental defendants from public scrutiny. is Article
examines the eects of settlement condentiality in
the context of claims related to hydraulic fracturing,
and recommends that courts align settlement bargain-
ing withU.S. law and policy trends toward openness.
It proposes a ruleto uniformly regulate condentiality
clauses in the public interest, by creating a rebuttable
presumption against secrecy where a court anticipates
“strongly correlated culpability” between a given case
and other existing or future cases.
I. Introduction
An abandoned well in Pennsylvania became a 30-foot
geyser, blew methane and water into the a ir, and ooded
nearby property.1 People in natural gas-abundant states
were lmed lighting their tap water on re and claim-
ing that the dangerous pa rty trick was made possible by
nearby hydraulic fracturing (fracking) processes.2 Earth-
quakes became more frequent and intense near fracking
wastewater injection wells in Arkansas, Colorado, Ohio,
Oklahoma, and Texas.3 As gas exploration and production
processes involving fracking have become ubiquitous in the
United States, so have stories like these. Why, then, does
the public not know more about the science underlying
potential risks from fracking?4
Since 2005, there have been more than 80,000 fracking
wells drilled or permitted in the United States.5 With those
wells have come hundreds of claims against gas explora-
tion and drilling companies. Only one case has gone to
trial, but even there the only claim tried was for intentional
1. Scott Detrow, Perilous Pathways: How Drilling Near an Abandoned Well
Produced a Methane Geyser, NPR, Oct. 9, 2012,
09/perilous-path ways-how-drilling-n ear-an-abandoned-we ll-produced-a-
2. E.g., Flaming Faucets: When Fracking Goes Wrong, T (video), http://con-,32068,902909981001_2065158,00.
html (last accessed Jan. 23, 2014).  Abrahm Lustgarten, 
Links Flammable Drinking Water to Fracking, PP, May 9, 2011,
https:// web.archive .org/web/ 201408022 25412/htt p://www.propu blica.
3. Michael Behar,     , M
J, Mar. 2013, at 35.
4. To many people outside the oil and gas industr y, fracking is an umbrella
term encompassing both drilling and completion phases of shale gas pro-
duction. In the industry, fracking refers only to the completion phase, dur-
ing which chemicals, water, and sand are injected into an already drilled well
to break apart rock and release gas. e uid used to break apart rock is then
extracted and disposed of, often by injecting it back into the earth through
a separate “injection well.” Interview with Hilton M. Boothe, Drilling Con-
sultant, in Baton Rouge, La. (Mar. 25, 2015).  Mike Soraghan, Baed
, N.Y. T (May 13, 2011), available at 52/
gwire/2011/0 5/13/13greenwire-b aed-about-frack ing-youre-not-alon e-
5. E R  J R, F   N:
K I  D D   S  N L 4
   
London. is Article stems from research conducted for Frederick
  
and former Chairman of the Board at the Natural Resources Defense
Council. e author thanks Fritz and the Brennan Center for their
invaluable advice. Information and opinions contained herein are
     
    
Council, if any.
Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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