Today, a summary of our SSHRC-funded research on “The Effectiveness of Fracking Disclosure Regimes in Canada” appeared in The Hill Times. Founded in 1989, The Hill Times is an Ottawa-based weekly newspaper that covers Canadian government and politics. The article is available below and online: Sharing a Wealth of Information: How Regulators Can Improve Fracking Disclosure Practices. Continue reading
Today, a summary of our SSHRC-funded research on “The Effectiveness of Fracking Disclosure Regimes in Canada” appeared in The Huffington Post. The original story is available here: What Makes Public Disclosure Effective?
Today, at the Imagining Canada’s Future Forum, we presented a summary of our research project: From availability to accessibility: effectively using information disclosure to govern energy production. The invitation-only event was held at the University of Calgary and featured presentations from 21 researchers funded in November 2015 through Knowledge Synthesis Grants from the Social Sciences and Humanities Research Council of Canada as part of its Imaging Canada’s Future initiative.
Over the past decade, it has become clear that unconventional shale development poses major challenges to the state agencies tasked with regulating it. In many cases, the concerns are related to issues of information containment and information disclosure. For instance, Pennsylvania and its state agencies have been criticized repeatedly, most recently in a scathing report by the Commonwealth’s Auditor General.
Although the Department of Environmental Protection has born the bulk of this criticism, the Department of Health has come under fire too. According to StateImpact Pennsylvania, two retirees from the Department say “its employees were silenced on the issue of Marcellus Shale drilling.” The issue of “organizational silence,” or the collective-level phenomenon of saying or doing little in the face of significant problems, is an area of considerable research. Although in many cases organizational silence comes about tacitly, in this case, the retired employees claim the silence was deliberate.
Michael Wolf is Pennsylvania’s current Health Secretary. In a recent newspaper editorial, he responded to these criticisms of the Health Department. Below are some excerpts from his editorial, as well as some observations that occurred to me in the course of reading his comments:
The Pennsylvania Department of Health has specific protocols for all public health inquiries and concerns that employees must follow.
This sounds very promising. Inquiring minds want to know:
- What are these protocols?
- Are they adequate for handling inquiries and concerns related to unconventional shale developing and hydraulic fracturing?
- How often are the Department’s protocols followed and ignored?
- How do these protocols compare, such as with other state protocols and with peer-reviewed literature regarding the potential health impacts of unconventional shale development and hydraulic fracturing?
All inquiries are immediately reported to the department’s Bureau of Epidemiology, the experts who have training in controlling and preventing the spread of disease or illness, for review and follow-up. This is a strict and standard protocol for any health report the department receives, whether it’s related to Marcellus Shale or other environmental health issues. The process includes a review, investigation, data collection and a formal response to the complainant. The Bureau of Epidemiology works directly with the caller or patient’s physician in charge for follow-up, and any immediate threats to the public’s health found would be given a priority…. A log is kept of each complaint that comes in, responses are tracked, and outcomes noted.
Based on this statement, it seems that the Department of Health (unlike the Department of Environmental Protection) should be able to quickly provide answers to questions such as:
- How many inquiries related to Marcellus Shale have been received?
- What is the status of the review process and what responses have been issued in relation to these inquiries?
- What are the outcomes of the investigations?
- What “immediate threats to the public’s health” have been found and how are these being prioritized?
- Are there any examples of situations where these procedures “controlled” or “prevented” the spread of potential health impacts related to unconventional shale development and hydraulic fracturing?
Our goal is, and will continue to be, to provide information and a forum for discourse on public health issues.
This is an admirable goal. As one check on how the Department has done with regard to its goal of providing information and a forum for discourse on public health issues related to unconventional shale development and hydraulic fracturing, I used the “search Agency” box on the Department website to search for terms such as “Marcellus,” “shale,” “hydraulic fracturing” and “fracking.” The results below suggest that the Department is not providing any such information on its website:
- For “Marcellus” there were 23 results. Of these, 22 reported on the number of newborn children who were named “Marcellus.” The other document was entitled “Final Progress Report for Research Projects Funded by Health Research Grants.” The document refers to a $66,000 grant from the William Penn Foundation for “Use of information in Marcellus Shale environmental and health quality public discourse debates.”
- For “shale” there were 8 results. Of these, 6 reported on the number of newborn children who were named “Shale.” Another result was to the same Final Progress Report referenced above. The final result was entitled “Boron Fact Sheet,” according to which, “Boron is a naturally occurring element found in many types of rocks including shale.”
- There were no results for the terms “hydraulic fracturing” or “fracking.”
We may not have a multi-million dollar health registry right now at the department as some have called for, but the records are kept, the proactive follow-up and coordination is happening and we are leveraging the talents and resources we have to get the job done.
The expression “show, don’t tell” is well known among writers of all kinds. By comparison, the Secretary’s editorial is long on telling and short on showing. Perhaps in the future, the Department of Health will provide evidence of its claims? After all, the strongest rebuttal to the allegations that have been made would be evidence to the contrary. But on that point the Department of Health remains … silent.
A bit belated, but I am pleased to report that last month my paper with Dan Cahoy and Zhen Lei on Fracking Patents: The Emergence of Patents as Information Containment Tools in Shale Drilling was accepted for publication in the Michigan Telecommunications and Technology Law Review (MTTLR). According to the MTTLR website, its primary purpose is “to examine the tensions created by advances in computing, telecommunications, biotechnology, multimedia, networking, information and other technologies,” making it an especially good outlet for the paper.
In particular, the paper argues that patents can be used to control the creation of new information by limiting the evaluation of an invention by third parties. We argue that such control is more likely in situations where third-party use and assessment may produce information damaging to the patent owner, and show this is potentially the case in the context of natural gas extraction. Already, the paper has received a bit of attention — both as a top download at SSRN, and as the subject of an article in EnergyWire.
My working paper – Fracking Patents: The Emergence of Patents as Information Containment Tools in Shale Drilling – with Dan Cahoy and Zhen Lei was the subject of a recent story by Gayathri Vaidyanathan in Energywire, a publication of E&E Publishing.
HYDRAULIC FRACTURING: Flurry of patents could hinder chemical research, legal experts warn (Monday, July 23, 2012)
Gayathri Vaidyanathan, E&E reporter
Companies that invent novel hydraulic fracturing chemicals or methods could use patents filed with the Patent and Trademark Office to stop scientists from studying the environmental and health impacts of the chemicals, some legal experts warn.
The situation has not yet occurred but needs to be on the government’s radar as a possibility, said Daniel Cahoy, associate professor of business law at Pennsylvania State University.
Since 2005, the patent office has issued an increasing number of patents related to fracking, a process in which pressurized water, sand and chemicals are injected into the earth to extract oil and gas. Most of these patents have been for chemical additives used in the fracturing process, such as gelling agents used to keep proppants suspended in water or nanochemicals that increase production.
Patents are meant to promote knowledge sharing by granting the patentee sole rights to an invention for some time, in exchange for revealing the details of the invention to the world.
But due to court decisions in the United States, patents also allow companies to stop unauthorized use of the invention by scientists for noncommercial purposes. This role of patents could be used to limit independent research into environmental and health effects, according to draft legal study, Cahoy said.
“Given that experimentation with some of the chemicals and methods used in hydraulic fracturing are necessary to understand the dangers, it is possible patents could be used as a means of controlling that information,” he said.
The issue highlights the controversy surrounding the secrecy in fracking. Companies often designate certain components in fracking fluids as “trade secrets,” which are different from patents because they hinge on complete secrecy. Industry says the secrets give companies a competitive edge in particular shales that are challenging to drill.
But the secret can be broken and details about the invention can become well-known. This is especially true as state governments such as Pennsylvania’s and Wyoming’s have exerted pressure on companies to reveal, confidentially to the government, their secrets. This increases the likelihood that secrecy could be challenged in court or that other ingredients in a recipe could be figured out. Once a secret is out, there can be no further safeguard against competition or unauthorized use; a company cannot have a trade secret and a patent for the same chemical.
“If you are the only one in your field that is doing something, and nobody is going to figure it out independently, you might as well keep it as a trade secret,” said Rochelle Dreyfuss, a professor at New York University School of Law. “But as the number of participants in the field starts to increase, the chances that somebody else is going to figure out what you figured out will increase, too, so at that point it might be worth getting patents.”
With the proliferation of drilling companies and greater governmental pressure to reveal fracking fluid recipes, even more patents could be filed in the future to protect against competition, said Cahoy. And those intellectual property rights can be enforced uniformly, against competitors and even scientists.
“As trade secrets become less viable as information disclosure is compelled [by government], patents become the only alternative or the better alternative,” he said.
… article continues at Energywire (login required)
The full paper is available for download from SSRN.
A few weeks ago, I posted my latest working paper – Fracking Patents: The Emergence of Patents as Information Containment Tools in Shale Drilling – on SSRN. Over the past few weeks, the paper has been a top ten download in the following categories.
- CGN: The Environment (Topic) Top Ten
- Energy Law & Policy eJournal Top Ten
- Environmental Law & Policy eJournal Top Ten
- ERPN: Patents (Sub-Topic) Top Ten
- Innovation & Organizational Behavior eJournal Top Ten
- Intellectual Property: Patent Law eJournal Top Ten
- IRPN: Innovation & Intellectual Property Law & Policy (Topic) Top Ten
- IRPN: Innovation & Patent Law & Policy (Sub-Topic) Top Ten
- Natural Resources Law & Policy eJournal Top Ten
- ORG: Cultural & Structural Influences on Innovation (Topic) Top Ten
- POL: Environmental Responsibility Practices (Topic) Top Ten
- SRPN: Gas (Topic) Top Ten
- SRPN: Patents (Topic) Top Ten
- SRPN: Sustainable Business (Topic) Top Ten
- Strategy & Social Policies eJournal Top Ten
- Sustainable Technology eJournal Top Ten
Co-authored with Dan Cahoy, Associate Professor of Business Law at Penn State’s Smeal College of Business and Zhen Lei, Assistant Professor of Energy and Environmental Economics at Penn State’s College of Earth and Mineral Sciences, the paper argues that patents can be used to control the creation of new information by limiting the evaluation of an invention by third parties. We argue that such control is more likely in situations where third-party use and assessment may produce information damaging to the patent owner, and show this is potentially the case in the context of natural gas extraction.
My latest working paper — Fracking Patents: The Emergence of Patents as Information Containment Tools in Shale Drilling — is now available on SSRN.
The paper is a collaboration with Dan Cahoy, Associate Professor of Business Law at Penn State’s Smeal College of Business and Zhen Lei, Assistant Professor of Energy and Environmental Economics at Penn State’s College of Earth and Mineral Sciences.
In general, patents are viewed as a positive force, providing a vehicle for disseminating information in exchange for a limited property right over an invention. However, we make an alternative claim: patents can also be used to control the creation of new information by limiting the evaluation of an invention by third parties.
We argue that such control is more likely in situations where third-party use and assessment may produce information damaging to the patent owner. In particular, we explore the relationship between patents and information control in the context of natural gas extraction.
We show that substantial growth of patents in hydraulic fracturing, the technology used to extract gas from the widely discussed Marcellus Shale in the eastern United States, occurs simultaneous with the emergence of related concerns. In light of this insight, we explain how patents on hydraulic fracturing fluids could potentially be used to prevent testing by third parties. Analogies in agricultural biotech and genetic treatments are used to support these claims.
An understanding of the role of patents as information control mechanisms is critical to the safe employment of new technology. If patents substantially limit information creation or disclosure, government intervention to permit experimental use and environmental, health and safety testing may be necessary. However, options do exist under current law that should be considered before patent rights are encumbered.