By Anthony Robbins
Natural gas producers are battling public concerns over the public-health effects of their extraction techniques. Does injection of water and toxic chemicals deep into the ground to release natural gas contaminate ground water, potentially drinking water? Now it appears that a strategy we have discussed before, settled lawsuits and confidentiality agreements, has prevented almost everyone from learning about the instances where serious contamination has been caused by fracking.
Today’s New York Times reports that an EPA report by Carla Greathouse that described contamination of drinking water has been kept secret by a strategy of settling lawsuits with agreement that the plaintiff will not reveal the problem in return for a payoff.
My colleague Daniel Givelber and I wrote about this legal tactic a few years ago in a piece called “Public Health Versus Court-sponsored Secrecy”:
Civil litigation uncovers a great deal of otherwise unavailable information about practices and products which may cause disease and injury. However, common practices in and related to lawsuits, trials, and courts, such as protective orders, sealing orders, and confidential settlements, can deprive public health authorities and the public itself of information that might be helpful to prevent disease, injury, disability, and death. In the United States, this conflict between public health and legal practice over the availability of information is nowhere more evident than in tort litigation…
The assumption that public health authorities need and should have information in order to protect the population seems at odds with the actions of parties in many lawsuits, particularly civil suits that seek compensation for alleged torts. When the information about the cause of disease or injury is sufficiently convincing to cause the parties to settle, it also might be sufficient to convince public health authorities to take actions to protect others similarly exposed or at least to undertake research to learn about the consequences of similar exposures…
Lawyers acting for their clients often seek help from courts to enforce secrecy. They can ask for protective orders to conceal information uncovered in pretrial discovery. The defendant frequently asks the judge to order the plaintiff not to divulge this information to the public or even to government agencies authorized to protect the public. Lawyers can also ask judges for sealing orders during or at the conclusion of litigation to protect records from public scrutiny. Similarly, after the parties have agreed to settle, and occasionally after a verdict, attorneys can ask the judge to enter an order for a confidential settlement, prohibiting, on pain of contempt, the parties or their lawyers from revealing information contained in the settlement. This prohibition might include talking with the press, cooperating with regulatory authorities–the Food and Drug Administration, the Environmental Protection Agency, or the National Highway Traffic Safety Administration, for example–and sometimes prohibiting even an admission that there was a dispute in the first place.
It appears that wherever there has been litigation, those charged with protecting the public health should consider whether there is helpful information that is being hidden. We suggest a few approaches to preventing such problematic secrecy in the future; for instance, judges could refuse to enter protective orders that seal records relevant to public health, or refuse to enforce confidentiality agreements regarding such information.
Anthony Robbins, MD, MPA is a Professor of Public Health at Tufts University School of Medicine and co-editor of the Journal of Public Health Policy. He directed the Vermont, then the Colorado, state health departments and the National Institute for Occupational Safety and Health before serving as professional staff to the House Energy and Commerce Committee.