R. Kyle Alagood

Gadfly. Writer. Activist. Transparency Advocate. Proud Former Food Stamp & Medicaid Kid. Believer in Barbara Jordan's America. TBD.

Rule 76a: Could Texas Courts Solve the Secrecy-Science Dilemma in Fracking Disputes?

When a Texas family won their lawsuit against Aruba Petroleum in April [2014], anti-fracking activists hailed the victory as “landmark.” True, virtually every lawsuit alleging harms caused by fracking has settled, generally out-of-court and subjects to a confidentiality agreement that hushes all discussion of underlying claims, so any decision by a jury would have been the first of its kind. However, the issue ultimately reaching the jury in the “landmark” case was an intentional nuisance claim, not the claims involving fracking.

One reason the fracking claims did not reach the jury was the difficulty in producing enough scientific evidence to link fracking with the alleged harms. That difficultly, however, is one symptom of a widespread illness—settlement secrecy. According to current and former Environmental Protection Agency officials, the practice of settling fracking lawsuits and conditioning settlement on plaintiffs’ agreeing to remain forever silent about their claims prevents full scientific assessment of the risks of fracking and related processes. In fact, the Texas family’s neighbors had already settled with the same gas company over allegations stemming from the same timeline of events but were barred by a confidentiality clause from discussing their allegations. Only by penetrating the veil of secrecy that shrouds fracking lawsuits in the United States will science advance in determining the actual effects of fracking. Only through expert testimony based on full knowledge of previous allegations and outcomes will there be a true “landmark” fracking lawsuit.

A legislative mandate and state rule of civil procedure regulating court-sanctioned secrecy in Texas makes that state the ideal battleground for penetrating the veil of settlement secrecy in fracking lawsuits. In 1991, after the Texas legislature mandated that state courts promulgate guidelines for judges to follow when determining whether to seal civil records, the Texas Supreme Court approved what became Texas Rule of Civil Procedure 76a. The rule comprehensively regulates judges’ ability to seal court records, but it broadly defines “court records” to include virtually all documents filed in court, some unfiled settlement agreements, and some unfiled discovery material.

By prohibiting courts from sealing orders and opinions, Rule 76a creates a presumption of openness to the general public of all civil court records. Other “court records,” including all filed settlement agreements, may only be sealed if the documents meet a two-part test. The rule requires a showing of (1) “a specific, serious and substantial interest which clearly outweighs . . . this presumption of openness [and] any probable adverse effect that sealing will have upon the general public health or safety,” and (2) that “no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted.” Even unfiled settlement agreements, except the settlement amount, are “court records” under Rule 76a if the settlement “seek[s] to restrict disclosure of information concerning matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government.” Because fracking suits often allege widespread environmental damages that affect people across geographic and time expanses beyond individual plaintiffs, fracking suits are likely to have at least some effect upon public health or safety.

When applied, Rule 76a meets its goal of “improv[ing] access and ensur[ing] greater openness in the judicial process.” In two sexual abuse cases involving minors, for example, Rule 76a allowed journalists to access settlement information, including the names of corporations where the abuse allegedly took place and whose employees allegedly committed the abuse. Unfortunately, there has been no study examining whether parties have attempted to use Rule 76a motions to access fracking settlement terms at all. Nevertheless, Rule 76a and its interpretations establish a strong policy in Texas favoring transparency in litigation.

Given the repeated cries from regulators and scientists that settlement secrecy in fracking cases inhibits their ability to effectively research the practice’s effects on public health and safety, Texas attorneys should begin to vigorously pursue Rule 76a motions to penetrate the veil of secrecy that hides fracking settlements from public scrutiny. After all, information contained in fracking settlements will not surprise the defendant gas companies that agreed to settle. The settlement terms will, however, aid scientific and public understanding of the risks—or lack thereof—the gas extraction process poses to public health and safety. In the end, exposing the terms of settlement agreements could very well lead to a true “landmark” fracking lawsuit that favors the gas company defendants. But as long as secrecy prevails, science and the public will remain in the dark.

Cross-posted from LSU Journal of Energy Law & Resources Currents, where citations are available.

 

Image courtesy of Brandi Korte, via Flickr.

76acivil proceduredrillingenergyenergy lawenvironmentenvironmental lawfrackinggaslawlitigationnatural gasTexastransparency

R. Kyle • September 10, 2014


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