Some implications of trade secrets on the right of access to information regarding hydraulic fracturing in South Africa

• Citation: (2019) IPLJ 143
• Published date: 12 February 2020
• Author: Omidire, K.
• Date: 12 February 2020
• Pages: 143-162

SOME IMPLICATIONS OF TRADE

SECRETS ON THE RIGHT OF

ACCESS TO INFORMATION

REGARDING HYDRAULIC

FRACTURING IN SOUTH AFRICA

 

North-West University, Potchefstroom

ABST RACT

South Afric a is considering plans t o develop shale gas by hydraulic f racturing as a s ource

of energy. In countr ies where hydraulic f racturi ng is presently under taken a claim of

trade secr ets by operators is a com mon phenomenon. However, while th e underlying

rationale of safegu arding commercial tra nsactions by means of p rotecting tra de secrets

may be reasonable, t here is a need for caution as, u nfortunately, othe r interests may be

prejudiced. In t he case of hydraulic fr acturing, t he conceptualisa tion of the right of access

to informat ion as a leverage right which makes other r ights possible, means it could be

applied by people whose r ights may be infringed by a clai m of trade secrets. Therefore ,

any restric tion of the exercise of that rig ht by a claim of trade secret s has the potential

to violate the rig ht of access to inform ation. A claim of trade se crets which ultima tely

violates the exercis e of the right of access to i nformation in rel ation to hydraulic f racturi ng

also contextu alises the problem in r elation to similar clai ms in other development al

processes. Give n the need to guara ntee the right of access t o information as an e nabler for

the enforcement of ot her rights that may be adversely i mpacted by hydraulic fra cturing,

this art icle examines potent ial lessons that can be d istilled for South Af rica in relation

to the regulat ion of trade secrets unde r the law of the state of Pennsylvani a in the United

States of Amer ica.

KEYWORDS: hydrau lic fractur ing; trade secrets; acces s to information; Sou th Africa;

US (Pennsylvan ia).

  

South Africa is concluding pla ns to develop shale gas by hydraulic fract uring

as a source of energy.1 In addition to the concer ns relating to the adverse

               

Plessis and Prof. An él du Plessis for the supervision of t he LLD thesis (North-West Universi ty,

Potchefstroom) fr om which this article or iginates.

1 As of July 2018, the Ministe r of Mineral Resource s has issued notices of pe nding admini strative

decision in ter ms of ss 3(2)(b) and 4(3) of the Promotion of Adm inistrative Justic e Act 2000 to

all persons a nd members of the public whose rights m ay be materially and adversely a ffected

regarding ap plications for exploratio n rights to explore for nat ural (shale) gas in the Western,

Eastern a nd Northern Cape P rovinces. See PN 87 in PG 2195 of 11 July 2018, and PN 121 in PG

4080 of 11 July 2018.

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(2019) IPLJ 143

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impact of hydraulic frac turing on human s and the environment,2 pract ice

in other jurisd ictions where the process curr ently takes place heightens

the apprehension that it may result in t he violation of the right of access to

information. Exper ience appears to suggest that op erators may attempt

to forestall the disclosure of in formation regarding the chemical s used in

hydraulic fract uring operations, on t he ground that they are tr ade secrets

necessary to pre serve their competitive advantage.3

Refusal to disclose infor mation on chemicals used in hydraulic f racturing

   

which may arise subsequently. For example, a claim of trade secrets relat ing

to chemicals used in hydrau lic fracturi ng may cause delay in responding to

medical emergencies trac eable to contamination or pollution, which requi re

urgent diagnosis or tre atment.4 Aggrieved medical practit ioners have argued

that such clauses could compel them to violate t he ethical obligations of

their med ical licence.5 Impliedly, there is apprehe nsion that contractual

obligations which restrict the d isclosure of information on chemicals used i n

hydraulic fract uring operations may pote ntially restrict the exercise of rights

of communities and ind ividuals, and impose unconscionable obligations on

them. In this regar d, experience in the state of Penn sylvania in the United

States (US) appears to sug gest that claims of trade secrets by op erators are

common in hydraulic f racturing,6 and t hat the right of access to informat ion

may be violated by such claims.7

A claim of trade secrets, wh ich ultimately violates the exercise of the right

of access to informat ion in relation to chemicals used i n hydraulic fract uring,

also contextualise s the problem in relation to the regulation of the disclosure

of information in other developmental pr ocesses.8 Applied to hydraulic

fractu ring, the right of access to infor mation can serve as a leverage right

2 Possible impacts would include a tmospheric pollut ion from methane emissions a nd from dust

and noise, as well as ch allenges relating t o agricultur al land use as the Ka roo basin, where

hydraulic fr acturing is planne d to take place, represents ab out 37% of South Afric a’s farming

and grazi ng land. See R Wait and R Rossouw ‘A comparat ive assessment of the eco nomic

benefits of shale g as extraction in the Kar oo, South Africa’ (2014) Southern African Bu siness

Review 11. Glazewski and Es terhuyse however pointed out t hat the adverse impact of hyd raulic

fractu ring would be felt directly in t he whole Karoo region, and per haps in the whole country.

See J Glazewski a nd S Esterhuyse (eds) Hydraulic Fract uring in the Karoo Crit ical Legal and

Environmental Perspectives (2016 ) 4.

3 KB Hall ‘Hydrauli c fracturing: Trad e secrets and the mand atory disclosure of fr acturing water

composition’ (2013) Idaho L Rev 406.

4 See J Craven ‘Frack ing secrets: The l imitations of t rade secret prot ection in hydraul ic fractur ing’

(2014) V and J Ent and Tech L 398.

5 Concerne d Health Professionals of N Y Compendium of Scientific, Medical, and Media Findings

Demonstra ting Risks and Har ms of Fracking (20 14) 51.

6 Norton Rose Fulb right Trade Secrets and th e Regulation of Hydra ulic Fracturing (2 013) 6.

7 DS Steele and JM Haye s Duke Environment al Law & Policy Forum (201 2) 251.

8 C Johnson ‘Closi ng the Hallibur ton loophole in New Mexico: Let ting developers c hoose between

R & D dollars and t rade secrets’ (2015) 15 Sustainable D evelopment Law and Poli cy 40.

144 South African Intellectual Property Law Journal (2019) 7

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