Mountain States

*UPDATE* Reporter, Disclose Thyself

UPDATE (1:58pm ET, 7/5/2013): The Denver Post published an editorial today about Colorado’s hydraulic fracturing fluid disclosure regulations, which provided exactly the kind of context that was missing from environmental writer Bruce Finley’s original news story.

The editorial notes that a “routine clarification” from state regulators has ended speculation that the regulations could hinder doctors from doing their jobs. But the Post’s editorial board also says these intellectual property protections simply mirror what’s already been in place for decades under federal law:

“There is nothing sinister or unusual about secrecy for intellectual property. Federal law provides similar protections for various industries, while allowing exceptions for health professionals who need the information to do their job.”

The Post’s editorial also provided its readers with some other vital information that Finley failed to disclose – the anti-industry activism of a key source and the fact that no doctor has ever requested “trade secret” information about hydraulic fracturing fluids since the disclosure regulation went into effect:

“Back in March when this issue first arose, one Western Slope doctor who has been an activist in the campaign against fracking claimed that Form 35 amounted to a “gag order” that would compromise public health because “there are spills happening all over the state, all the time.”

In fact, so far as state regulators are aware, Form 35 has not been used even a single time. But if the confidentiality pledge ever is used, the medical profession can rest assured that it won’t have any effect whatever on treatment.”

When the Post’s editorial board is aware of these facts, decides they are essential to the story, and conveys them in just four sentences, we’re left wondering why Finley left them out of a much longer news story.

And we aren’t the only ones. After taking issue with Finley’s reporting on the disclosure regulation, the conservative political website Colorado Peak Politics followed up with an examination of some other stories. You can find those critiques here, here and here. They make for an interesting read.

—Original post, April 23, 2013—

Recently, the Denver Post’s environmental writer Bruce Finley took aim at two government agencies – the Colorado Department of Public Health and Environment and the Colorado Oil and Gas Conservation Commission – over the state’s hydraulic fracturing fluid disclosure regulation. According to Finley’s story, the disclosure regulation’s intellectual property protections could deny doctors “information they need to treat patients and protect public health.”

But in a news report about disclosure, it turns out the only person with a disclosure problem is Finley himself. That’s because in at least five cases, he failed to disclose key facts to the Denver Post’s readers, and as a result, produced a story that’s both misleading and alarmist.

Failure to disclose doctor’s anti-industry activism

In Finley’s story, Dr. Mitchell Gershten of Cedaredge accuses state regulators of imposing a “gag order” on medical professionals, and then says the following:

“There are spills happening all over the state, all the time … This is just about transparency so that nobody is harmed and the environment is not harmed. Why does it have to be so secretive?”

Gershten is only identified in the story as a doctor. But Finley doesn’t disclose that Gershten is also an activist who opposes the oil and gas industry. In addition to serving on the board of Citizens for a Healthy Community, a group that’s campaigning against oil and gas development in the Delta County region, Gershten has organized anti-industry petitions and letter-writing campaigns.

Gershten has also mounted a statewide letter and op-ed writing campaign against the oil and gas industry. Some examples:

Delta County Independent: “The people of the North Fork have been very clear. We were against natural gas development here last year and we remain against it now.”

Grand Junction Daily Sentinel: “The rush to drill is not about America, but is rather about large future profits for a few companies and a few already wealthy individuals. Those of us here at ground zero suffer the consequences and long legacy of unbridled gas development while a tiny few are enriched.”

Boulder Daily Camera: “Once these companies take their profits, the rest of us are often left with a toxic legacy that goes on for decades, hardly a model of longevity. … Human life and healthy ecosystems are simply incompatible with the industrialization brought by drilling.”

Gershten is entitled to his opinion, of course. But the Denver Post’s readers are also entitled to know where Gershten is coming from so they can decide for themselves whether he’s an objective and credible source. By failing to disclose the fact that Gershten is an anti-industry activist, Finley misrepresented Gershten’s political agenda as a professional medical opinion free of any such bias.

Failure to disclose more than 25 years of federal law

Finley’s story presents intellectual property protection for industrial chemicals as something novel and potentially alarming, but the facts tell a very different story. To understand why, we first need to review some background information on hydraulic fracturing and Colorado’s disclosure regulations.

Hydraulic fracturing fluids are typically more than 99.5 percent water and sand, with the rest a combination of chemical additives that ensure the safe and effective completion of the hydraulic fracturing process. Many of those additives have the same ingredients as commonplace household and industrial products, such as laundry detergent, toothpaste and window cleaner. However, a small number of additives have been specially engineered over many years and at a cost of many millions of dollars. Without protections for this intellectual property, the companies that developed the additives would lose business and shed jobs as competing firms simply copied their products for free.

For this reason, Colorado’s disclosure law does not require “trade secret” additives to be posted on a publicly accessible Internet database. However, any doctor can demand the specific identity of those additives if that information is needed for the diagnosis or treatment of a patient. In return, the doctor must agree to only use the “trade secret” information for treating their patient.

Some environmental activists have recently started claiming these confidentiality agreements constitute a new kind of “gag rule” that’s unique to the oil and gas industry. But in reality, if the activists had sincere and legitimate objection, they’d have started protesting 25 years before Colorado’s hydraulic fracturing disclosure regulation was finalized in December 2011.

That’s because confidentiality agreements for medical professionals have been enshrined in federal law since the passage of the Emergency Planning and Community Right-to-Know Act in 1986. EPCRA requires companies to disclose “trade secret” information to health professionals who need that information for the diagnosis or treatment of a patient. EPCRA also states that health professionals who are provided this information:

“…be required to agree in a written confidentiality agreement that he will not use the information for any purpose other than the health needs asserted in the statement of need, except as may otherwise be authorized by the terms of the agreement or by the person providing such information.”

So, it turns out that under one of the nation’s best-known environmental laws, medical professionals have been signing confidentiality agreements for decades in order to access the information they need to treat patients, while at the same time honoring intellectual property rights.

In fact, this practice is so well understood and non-controversial that it’s even been endorsed by U.S. Rep. Diana DeGette (D-Colo.), who has spent years advocating for an unnecessary federal takeover of the nation’s state-led regulatory framework for oil and gas development. While DeGette’s proposed legislation is opposed by the oil and gas industry as well as state regulators, it does include the very same intellectual property protections that exist under federal law. The DeGette bill says:

“…the person conducting the hydraulic fracturing operations shall, upon request, immediately disclose the proprietary chemical formulas or the specific chemical identity of a trade secret chemical to the State, the Administrator, or the treating physician or nurse, regardless of whether a written statement of need or a confidentiality agreement has been provided. The person conducting the hydraulic fracturing operations may require a written statement of need and a confidentiality agreement as soon thereafter as circumstances permit.”

It’s hard to imagine that Finley, who has covered the environment beat for years, wouldn’t know all of this. And yet, he still failed to disclose to the Denver Post’s readers that confidentiality agreements of this kind have been commonplace and widely accepted within the realm of environmental regulation for decades.

Failure to disclose why no Colorado doctors have signed Form 35

Finley’s story says some doctors have complained about the paperwork, known as Form 35, which allows for the full details of a “trade secret” additive to be disclosed. Then the story declares: “No doctor has signed the form.”

If Gershten – the doctor-turned-activist – is correct, and people are potentially being exposed to hydraulic fracturing fluids “all over the state, all the time,” then a decision by doctors to boycott the Form 35 would be a big story indeed.

So Energy In Depth e-mailed the COGCC to find out why no doctor has signed the Form 35. Here’s what COGCC director Matt Lepore said in an e-mailed statement:

“The answer to your questions are: 1) Yes, it is true no doctor has signed a Form 35; and 2) because no doctor has requested trade secret information since Colorado’s frac fluid disclosure rule … went into effect.”

So, no doctor has signed the Form 35 because no doctor has requested any “trade secret” information in the first place. In a story that deals with the safety of an industrial process like hydraulic fracturing, the fact that not a single doctor in Colorado has found it necessary to ask for such information is highly relevant.

If Finley’s intent was to inform his readers, rather than needlessly alarm them, he should have disclosed the reason why “no doctor has signed the form.”

Failure to disclose environmental endorsement of intellectual property protections

Finley’s story paraphrases a COGCC spokesman as saying “representatives of the industry and environmental community helped develop the confidentiality pledge” for medical professionals as part of the state’s hydraulic fracturing disclosure regulation. But there’s much more to the story than that.

When Colorado’s disclosure regulation was finalized in December 2011, it was hailed by state and national environmental organizations, and some green groups even clamored to take credit for their role in the rulemaking process.

Here’s what the New York-based Environmental Defense Fund (EDF) said in a press release when the regulations were completed:

“Environmental Defense Fund (EDF) today praised the State of Colorado for adopting a fracturing fluid chemical disclosure policy that, in many ways, can serve as a model for the nation …

“The Colorado rule … makes important strides in requiring companies to disclose chemical information in ways that are useful and user-friendly. The Colorado rule requires companies to disclose chemical information on a database that allows the public to search and sort information by company, chemical, geographic area and other criteria. … Finally, the Colorado rule takes a reasonable approach to trade secrets.”

At a press conference with Governor John Hickenlooper, Colorado Conservation Voters Executive Director Pete Maysmith said:

“The clear winners of the rulemaking today are the citizens of Colorado. Now all Coloradans will know what chemicals are being used in natural gas drilling in our state. … It’s no secret that we don’t always see eye-to-eye with the natural gas industry, but this was a great example of putting aside our differences where we have them and getting something done.”

San Francisco-based Earthjustice, which represented a number of environmental groups in the negotiations over the disclosure regulation, issued a press release saying it was “instrumental” in securing a “positive outcome” for its clients:

“The rule is one of the strongest in the country and Earthjustice’s Denver office was actively involved in shaping the decision. …  In the negotiations, Earthjustice represented the Colorado Environmental Coalition, Earthworks Oil and Gas Accountability Project, National Wildlife Federation, San Juan Citizens Alliance and High Country Citizens Alliance, and also worked closely with the Environmental Defense Fund.”

Later, Earthjustice attorney Michael Freeman told the Huffington Post:

“That’s the big advancer here. We’re getting a full picture of what’s in that fracking fluid.”

So, environmental groups didn’t just “help develop” the state’s hydraulic fracturing disclosure regulation. They called it a model for the nation, took credit for its adoption, and said it provides a “full picture” of the components of hydraulic fracturing fluids. In a story that gives critics of the COGCC and CDPHE plenty of opportunities to attack the environmental integrity of this regulation, these endorsements from environmental groups should have been mentioned to the Denver Post’s readers. Yet, once again, Finley failed to disclose information that would have made his story more informative and less frightening to the public.

Failure to disclose citizen group’s anti-industry activism

Finley’s story concludes with a section that’s supposed to represent the views of the general public. Here’s an excerpt:

“Western Colorado residents say they favor giving doctors better access to information about chemicals.

‘To gag the doctors, to not be able to relate what those chemicals are, that’s awful. I would think (state health regulators) would want to protect people’s health,’ said Grand Valley Citizens Alliance president Leslie Robinson. ‘And one way to protect health is information.’”

To start with, one citizens group can’t possibly speak for all “Western Colorado residents.” But even so, what kind of group is the Grand Valley Citizens Alliance? For example, is it an alliance of citizens who are engaged across a wide range of issues, such as economic development, schools and transportation, which concern the public?

The answer is no. The GVCA is a single-issue activist group devoted solely to restricting energy production, and especially oil and gas development, in Garfield County. For example, Robinson has accused the oil and gas industry of “economic blackmail” and lobbied local officials to call for a federal takeover of oil and gas permitting. And on GVCA’s website, Robinson says:

[F]or nearly 100 years, locals in Western Colorado have been pricked, prodded, drilled, fracked, mined and even bombed in the attempts to extract these minerals.”

So, after Finley already failed to disclose that one of the doctors he interviewed is an anti-industry activist, he also neglected to mention that the citizens group he quoted also opposes the oil and gas industry. For a news reporter who regularly writes about environmental issues and activism in Colorado, and is familiar with the players in the environmental debate, that’s an astonishing failure.

Finley’s sources certainly have a right to express their opinions, but concealing their bias against the oil and gas industry isn’t fair to the Denver Post’s readers. Taken together, all of Finley’s failures to disclose resulted in a news story that’s heavy on fear and light on facts.


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