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Pa. Court Unseals Fracking Case, Rejects Corporate Privacy Claim

Steven M. Sellers

A state judge unsealed more than 900 pages of court records in a confidential $750,000 settlement between a Pennsylvania family and a gas drilling company accused of creating toxic conditions on their property. The decision by Pennsylvania Common Pleas Judge Debbie O'Dell-Seneca came after a local newspaper's motion seeking access to a court hearing on the settlement and the risks posed by fracking, a drilling process in which fluid is injected into shale rock to release natural gas. O'Dell-Seneca rejected the drilling company's claim of a right to privacy under the Pennsylvania Constitution, finding that the company did not have the same right to privacy afforded to people. (Hallowich v. Range Resources Corp., No. 2010-3954 (Pa., Washington Co. Com. Pleas Mar. 20, 2013).)

In 2010, Chris and Stephanie Hallowich of Mount Pleasant, Pa., filed a writ against Range Resources Corp. and other defendants, alleging that drilling operations near their home created "noxious and unsafe fumes" and contaminated their well water. According to the unsealed documents, a test of the plaintiffs' well revealed styrene and acrylonitrile, a toxic and potentially carcinogenic chemical used to reduce friction in fracking pipes. No complaint was filed in the case; the parties conducted pre-complaint discovery and entered into a confidential settlement in 2011. They sought court approval of the settlement because it affected the rights of the Hallowiches' two minor children. After an in camera hearing, a judge sealed the court file and denied a motion by the Pittsburgh Post-Gazette to attend the hearing. The newspaper moved to unseal the file in an appeal to the Pennsylvania Superior Court, which found procedural errors in the sealing order and remanded the case.

On remand, O'Dell-Seneca ruled that the defendants had failed to rebut the courts' common law "presumption of openness." She discounted the defendants' constitutional privacy arguments, which asserted that "various zones of privacy including such matters as avoiding disclosures of personal matters" warranted the sealing order. When O'Dell-Seneca pressed the defendants on the scope of their argument, defense counsel argued that "we're protecting our right to negotiate a confidentiality agreement, which was mutually agreed upon by the parties . . . to save our taxpayers and this court time and effort."

Exploring the state constitutional and common law underpinnings of the claimed right to corporate privacy, O'Dell-Seneca rejected its premise, noting that businesses are creatures of the state: "There are no men or women defendants in the instant case; they are various business entities," she wrote. O'Dell-Seneca observed that the issue is "clearly an emerging question of national jurisprudence" but cautioned that "claims of a business-entity right of privacy have been discredited by the two courts that have directly considered it."

As for the defendants' claim that the unsealing would inhibit future settlements and sacrifice judicial economy, O'Dell-Seneca was unconvinced. "Perhaps, today's ruling will encourage future litigants to seek alternative means of dispute resolution before resorting to the very public forum of our courts," she wrote. "If anything, this court's refusal to read a business-entity right of privacy into our constitution may well promote judicial economy in the long run."

Earthjustice, a San Francisco-based public interest law firm dedicated to preserving the environment, filed an amicus curiae brief in the case. Matthew Gerhart, an Earthjustice staff attorney, said the case "highlights the lengths to which natural gas companies will go to keep information secret. Access to information on the natural gas industry has been a long-standing problem, given that the industry has won exemptions from various federal laws, refused to disclose the identity of certain chemicals used in fracking fluids, and even restricted the information some health professionals can provide regarding chemicals used in fracking," he said. "Against that backdrop, the court's ruling in favor of greater disclosure is a step in the right direction."

Gerhart emphasized the potential importance of the unsealed data in studying the effects of fracking. "Lawsuits are no substitute for rigorous, peer-reviewed scientific research on the health and environmental effects of natural gas drilling," he said. "Nonetheless, cases can provide vital information for both researchers and the general public. Some of the information in the unsealed court records-such as results of water samples taken near the Hallowich residence-may be helpful to research on the effects of fracking."

Sellers, Steven M. (April 18, 2013) Pa. Court Unseals Fracking Case, Rejects Privacy Claim. Retrieved April 18, 2013 from The American Association for Justice webiste: http://www.justice.org/cps/rde/xchg/justice/hs.xsl/20630.htm

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