New Senate bill would prevent the oil and gas industry from imposing gag orders on victims

Last month, I blogged about the problem of oil and gas companies requiring landowners who complain of water contamination, air pollution and/or health effects from nearby drilling operations to sign so-called "non-disclosure agreements," or "NDAs," when they enter into settlement agreements. These gag orders prevent the victims of fracking from talking about the problems that led them to sue, as well as what the companies agree to do to address those problems.  In some particularly outrageous cases, settling plaintiffs are precluded from even talking about fracking generically.

Not only do NDAs chill free speech but - perhaps more importantly - they significantly stymie efforts to better understand the environmental and health risks that oil and gas development present.  There is an increasingly well-publicized dearth of solid data and scientific analysis concerning those risks, especially regarding health impacts.  As the Council of Canadian Academies (Canada's equivalent to our National Academy of Sciences) recently reported: "Many of the pertinent questions are hard to answer objectively and scientifically, either for lack of data, for lack of publicly available data, or due to divergent interpretations of existing data."  As a result of this information gap, the Council concluded that too little is presently known about the impacts of fracking to justify moving forward aggressively as we have in the U.S.

As have others, the Canadian Council specifically called out NDAs as a particular source of the information gap problem.  In my last post, I concluded that:

If the industry really wants to try to make the case that the fracking process is green, it will have to abandon its tactic of trying to make public discourse fade to black. Otherwise, in the public interest, our lawmakers should make sure that they don't.

Happily, one federal lawmaker has done just that.  Last week, Senator Sheldon Whitehouse introduced a bill - the "Safety Over Secrecy Act of 2014" - that (with narrow exceptions) would prohibit courts from approving settlement agreements that contain NDAs in cases in which the plaintiff "alleges facts that are relevant to protecting the public from a hazard to public safety or health." 

This excellent measure would address a serious issue hampering the development of sound science concerning fracking's risks, and Senate leadership should allow it to move.  In the meantime, given Congress' notorious inertia, state lawmakers should adopt Senator Whitehouse's approach and introduce - and enact - similar measures.

To do otherwise would perpetuate the unacceptable current situation in which a fracking victim's final indignity may be being gagged.

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