Abogado Aly: Pennsylvania fracking trade secret rule in jeopardy

Monday, December 15, 2014

Pennsylvania fracking trade secret rule in jeopardy

Originally published by Norton Rose Fulbright .

The fluids used during hydraulic fracturing are an integral component of the fracking process. Although the fracking fluids are primarily composed of water and sand, manufacturers add varying amounts of chemicals to the fluids. The composition of the chemicals used in fracking fluids are protected by companies as trade secrets. The ability of companies to protect this proprietary information is currently pending before the United States Court of Appeals for the Third Circuit in Rodriguez v. Secretary of the Department of Environmental Protection.

Under Section 3222.1(b)(10) and (11) of Title 58 of the Pennsylvania Consolidated Statutes, companies are required to provide doctors with the identity of or amount of chemicals used in their fracking fluid if the information is required in an emergency situation and the doctor agrees to keep the information confidential. Section 3222.1(b)(10) and (11) also prohibits doctors from disclosing any confidential information concerning the composition of hydraulic fracturing fluids.

These rules were challenged by Alfonso Rodriguez, a physician in Dallas, Pennsylvania. In the suit, Rodriguez argues that this law violates his rights under the First Amendment to disclose information regarding the fracking fluids to his patients and the remainder of the medical community. The United States District Court for the Middle District of Pennsylvania dismissed Rodriguez’s claims twice, reasoning that he lacked standing to challenge the law. On appeal, Rodriguez again argues that Section 3222.1(b)(10) and (11) violates his rights under the First Amendment.

The Pennsylvania Department of Environmental Protection (PDEP) has filed a brief in response, requesting that the Third Circuit dismiss Rodriguez’s claims. The PDEP argued that Rodriguez’s claims are hypothetical because he has never requested the protected information or been denied the information. The PDEP also claimed that Rodriguez is not entitled to a declaratory judgment on the constitutionality of Sections 3222.1(b)(10) and (11).

Read the PDEP’s brief.

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright’s Energy Practice Group.