Appalachian Basin

A ‘Fracking’ Gag Order in Pennsylvania? Not So Much

Since it was passed, Pennsylvania’s Act 13 has been targeted by those who are opposed shale to development across the Commonwealth.  One of Act 13’s points we’ve heard about far too many times deals with a supposed “gag-order” placed on doctors.  Activists somehow drummed up and fully believe that doctors and other medical professionals were not able to disclose critical diagnostic information when dealing with the gas industry’s proprietary information.

But in a ruling by the Commonwealth court a couple days ago, that claim is flat out not true.

According to the ruling:

“Moreover, while 58 Pa. C.S. §3222.1(b)(10) and (11) refer to a written or oral ‘confidentiality agreement,’ there is no indication in the statute that such agreement precludes a physician from sharing the disclosed confidential and proprietary information with another physician for purposes of diagnosis or treatment or from including such information in a patient’s medical records. 58 Pa. C.S. §3222.1(b) (11) merely provides ‘that the information may not be used for purposes other than the health needs asserted and that the health professional shall maintain the information as confidential.’ Nothing precludes a physician from including the information in patient records, medical treatment or evaluations, including evaluations based on trade secrets that physicians are required to keep.” (emphasis added)

So Act 13 never placed a ‘gag-order’ on any medical professional, and more importantly never prevented them from properly treating a patient.  Unfortunately, that didn’t prevent media outlets from running the ‘gag-order’ claim in their headlines over the years; see here, here and here.

The Commonwealth Court ruling went on to state:

The Act 13 disclosure requirements do require that operators give to the DEP “completion reports” which are filed with the DEP within 30 days after a well is properly equipped for production of oil and gas. See 58 Pa. C.S. §§3222(b), (b.1), and 3203 (containing, among other things, a descriptive list of chemical additives intentionally added to fracturing fluid, and their maximum concentration as a percent of mass to the total volume of base fluid, which is typically water but can be unavailable due to trade secret protection for portions of the information provided to DEP. The operators, service companies, or vendors must disclose chemical additives used to fracture unconventional wells to the public within 60 days of completion of the well via a public searchable database). See 58 Pa. C.S. §3222.1(d); Where a trade secret is claimed, operators must nevertheless disclose the chemical family or similar description of the chemical. See 58 Pa. C.S. §§3222(b)(3) and (4). That the provisions create a set of disclosure rules different from the norm for other industrial chemical users under OSHA does not mean that Act 13 constitutes a special law. (emphasis added)

So, not only is this information available for medical professionals – should they unfortunately ever have to treat someone for exposure – but it’s also available for the general public at FracFocus.

The courts clearing up the confusion regarding so-called “gag orders” is also a teachable moment for those who cover and report on shale development. Activists love talking points, and newspapers – still staring at declining readership, unfortunately – love strong keywords to boost SEO. Thus, when opponents scream about doctors being “gagged” with respect to the additives used during “fracking,” it’s certainly an enticing story. But accurate information for the public remains more important than activist influence or web traffic, and the court’s decision exposes just how disingenuous the “ban fracking” agenda truly is.

Hopefully, we can now focus more intently on some of the positive benefits shale development is providing residents across the Commonwealth — like jobs and cutting emissions — instead of dancing around misleading claims and baseless accusations.

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