The Pennsylvania Supreme Court last week struck down as unconstitutional several provisions in Act 13, the 2012 state law that revamped regulations in the oil and gas sector. Two of these provisions had severely restricted the disclosure of information necessary to protect those exposed to contamination and to enable the public to learn about the full impacts of the industry.
Act 13 mandated that the Department of Environmental Protection notify public-water suppliers about nearby spills and leaks from oil and gas operations, but it remained silent about the DEP’s duty to notify private water-well owners. A large number of households in Pennsylvania living near shale operations rely on private drinking-water wells, and the DEP has confirmed that a number of them have been contaminated by oil and gas operations. The court, correctly, ordered the Legislature to rectify the law by requiring DEP to notify private well owners about nearby spills and leaks.
Act 13 also required medical professionals who wished to obtain information about chemicals claimed as trade secrets by oil and gas companies to execute confidentiality agreements and agree not to share the information. Medical professionals opposed this law, arguing that it would inhibit physicians and public health officials from seeking the information they need to protect public health.
Medical professionals often share information with other professionals to better treat individual cases. Furthermore, physicians are ethically obliged to warn patients’ family members and neighbors who may have been exposed to chemicals and to alert other physicians so they can keep an eye out for similar exposure in their patients.
The sharing of this information also is critical for epidemiological surveillance, so that public health specialists can identify associations, should any exist, between specific chemicals and adverse health impacts, and to watch for patterns of symptoms that ought to be investigated.
The court struck down this “medical gag rule,” thereby requiring the oil and gas companies to operate under state laws that require a balance to be struck between two competing interests: limiting disclosure when protection of proprietary information can incentivize innovation while requiring disclosure to protect public health.
An industry advocate has been quoted by National Public Radio as saying, “[The court’s] ruling will make investing and growing jobs in the commonwealth more — not less — difficult without realizing any environmental or public safety benefits.”
Clearly, the ruling will yield environmental and public safety benefits, and it’s doubtful that it will make Pennsylvania less attractive to investors. Greater transparency will help protect the human and natural capital that attract investments into our state’s diverse economy and contribute toward Pennsylvania’s economic progress.
Shanti Gamper-Rabindran is an associate professor of economics in the University of Pittsburgh Graduate School of Public and International Affairs.
First Published: October 4, 2016, 4:00 a.m.