Harvard Law study finds legal fractures in chemical disclosure laws

A registry intended to provide information to the public about the chemicals used in hydraulic fracturing is not an acceptable regulatory measure, according to a recently released report by Harvard Law School’s Environmental Law Program Policy Initiative.

The report, “Legal Fractures in chemical disclosure laws: Why the voluntary chemical disclosure registry fails as a regulatory compliance tool,” was written by Kate Konschnik, policy director of HLS’s Environmental Law and Policy Program, with Margaret Holden ’14 and Alexa Shasteen ’14.

FracFocus, a voluntary online registry designed to keep track of chemicals used in fracking, drew favorable responses when it was first established in 2011, due to its proposed transparency and centralized nature. Of the 18 states that require companies to disclose chemicals used in fracking, the process of extracting fossil fuels from the ground, 11 require or allow the reporting to be on FracFocus.

However, the authors’ evaluation suggests that the praise for FracFocus as a regulatory tool may have been “misplaced or premature.” According to the authors, FracFocus, in its current form, is not an acceptable regulatory compliance method for chemical disclosures. The report highlights three areas where the major shortcomings and opportunities for improvement exist: timing of disclosures, substance of disclosures and nondisclosures.

“Disclosure serves many purposes in a healthy civil society. It helps people make informed decisions about risk – for instance, a landowner determining whether to agree to have a well on her property, a worker considering employment, an investor researching oil and gas companies, or an insurance company determining whether to extend a policy,” write the authors.

According to the study, the U.S. Bureau of Land Management should establish basic requirements for disclosure and penalties should apply for failure to report.

Read the full report here.

The report has generated considerable media attention since its release on April 23. Read more about the report at The Denver Post, United Press International, The Dallas Morning News and BusinessWeek.

Konschnik was appointed policy director of Harvard Law’s Environmental Law and Policy Program in May 2012. She launched the new HLS Environmental Law Policy Initiative, which conducts research and analysis on emerging environmental law and energy law issues for consumption by policymakers at the state and federal levels. The initiative serves as a companion component to HLS’s Emmett Environmental Law & Policy Clinic. Previously, Konschnik served as staff director for Sen. Whitehouse’s Oversight Subcommittee on the Senate Environment and Public Works Committee. Prior to that, she worked in the U.S. Department of Justice’s Environment and Natural Resources Division.