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

• Date: 01 May 2015

5-2015 NEWS & ANALYSIS 45 ELR 10459

Settlement

Conf‌identiality:

A “Fracking”

Disaster for

Public Health and

Safety

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, https://web.archive.org/

web/20140706151140/http://stateimpact.npr.org/pennsylvania/2012/10/

09/perilous-path ways-how-drilling-n ear-an-abandoned-we ll-produced-a-

methane-geyser/.

2. E.g., Flaming Faucets: When Fracking Goes Wrong, T (video), http://con-

tent.time.com/time/video/player/0,32068,902909981001_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.

org/article/scientic-study-links-ammable-drinking-water-to-fracking.

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

https://web.archive.org/web/201310051524 52/http://www.nytimes.com/

gwire/2011/0 5/13/13greenwire-b aed-about-frack ing-youre-not-alon e-

44383.html?pagewanted=all.

5. E R  J R, F   N:

K I  D D   S  N L 4

(2013).

   

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.

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