The Sierra Club has opposed two fracking bills in the legislature because each carries language that would put into statute trade-secret protections for fracking fluids; that is, that would allow oil and gas companies to withhold information about what chemicals they are injecting into the ground. Each also carries within that trade-secrets language a section that would create a gag on physicians that could delay or prevent dissemination of information about health hazards associated with fracking fluids.
Our friends at the Center for Biological Diversity and at Physicians for Social Responsibility-Los Angeles have also been overt opponents of the trade-secret and physician-gag pieces of the bills. Sierra Club national staff, including the legal team, have helped us develop our arguments, and Sierra Club California staff, interns, volunteers, and general activist members have all played a role in making sure the legislature knows where we stand on the trade-secrets issue.
One of the bills we have opposed, AB 7 (Wieckowscki), came up in Assembly Natural Resources Committee on June 12 and failed to get the votes it needed to get out. That means Sierra Club and our allies carried the day, thanks to all the help from so many parts of the Club.
If you have a chance, please send a hand-written thank-you note or quick call to Assemblymember Wesley Chesbro, who chairs that committee, and Assemblymember Nancy Skinner, who sits on the committee. Their “not voting” positions were important to kill the bill, and they care about what Sierra Club members think. You can find contact information for these legislators at http://assembly.ca.gov.
The other bill with same trades-secret problem is Sen. Fran Pavley’s SB 4, which has passed through the Senate and is now positioned to go through the Assembly committee and floor processes.
Below is our most recent oppose letter on AB 7. It explains our reasons for our trade-secret position.
June 10, 2013
The Honorable Bob Wieckowski
State Capitol Building
Sacramento, CA 95814
Re: AB 7 (Wieckowski)—Fracking—Opposed
Dear Assemblymember Wieckowski:
Thank you for the discussion you held last week regarding AB 7. Sierra Club California will continue to oppose the bill and I am sending this letter to highlight my organization’s opposition to the bill’s trade secrets provisions, the reasons for that opposition, and proposed bill language for an alternative approach to the trade secrets issue.
To be clear, Sierra Club California’s opposition to the trade secrets provisions in your AB 7 reflects the experience with fracking policy that Sierra Club members and staff members have had around the country. We have not come to this position quickly or lightly. It is borne of experience trying to ensure that fracking does not endanger public health or the environment, including water and air quality.
We oppose trade secrets protections for fracking fluids because such protections
a.) hinder the public’s ability to provide informed oversight of regulatory agency performance;
b.) prevent an accurate assessment of pre-fracking baseline conditions of soil and water and post-fracking results; and
c.) run contrary to other laws related to emissions into the environment.
On this last point, it’s worth noting that some have argued that fracking fluids should not be treated any differently from any other trade secret protected product. This assumes that products that emit toxics into the environment are the same as any other product. In fact, they are not. Numerous federal statutes explicitly disclaim trade secret exemptions for chemicals introduced into the environment, such as effluent discharges under the Clean Water Act and air emissions under the Clean Air Act. Because of the significant risk of chemicals used in fracking escaping to ground or surface water, and because soil contamination is inherent in their use, comprehensive disclosure is similarly necessary here.
Sierra Club urges that you eliminate the trade secrets provisions in AB 7, including the physicians’ gag, and instead amend into the bill language that will proactively protect the public’s right to know. Here is proposed language to replace Sec. 3203 (c):
An operator or supplier must disclose the chemical composition of additives as required by subsection (b), and the division shall make this information public, notwithstanding any provision of law relating to trade secrets or confidential business information, including but not limited to the Uniform Trade Secrets Act, Civil Code § 3426 et seq., the Public Records Act, Government Code § 6254.7 (d), and Section 1060 of the Evidence Code.
We ask you to provide this direction to ensure the public has needed access to the information to protect public health and the environment
[Sierra Club California]
Cc: Assembly Natural Resources Committee Members and Staff