Law and Policy for Sustainability
New Horizons in Environmental and Energy Law series
Edited by John C. Dernbach and James R. May
Chapter 8: Relevance of transparency to sustainability and to Pennsylvania’s shale gas legislation
Transparency is a core attribute of sustainability. Openness and the sharing of pertinent information with the public are central to environmental protection and sustainability in formulations as longstanding and diverse as the 1972 Stockholm Agreement; the 1992 Rio Declaration; the mission statement of the US Environmental Protection Agency; and policy statements by industrial organizations including the World Business Council for Sustainable Development and the international petrochemical industry. Unfortunately, much of the shale gas industry in the United States has proceeded as if transparency and public trust were not important. Secrecy and misinformation about hydraulic fracturing chemicals and the even more toxic flowback fluid contaminants, coupled with a concerted effort to avoid obtaining the health and environmental studies that could provide information about potential health and environmental effects has led to major opposition and to decisions by the Pennsylvania Supreme Court and the Governor of New York State that have substantially impeded the ability of the industry to proceed. The Chief Justice of the Pennsylvania Supreme Court, in a decision narrowly overturning parts of Pennsylvania’s pro-industry Marcellus Shale Act 13, found that the state “failed to discharge its trustee duty of gathering and making available … complete and accurate information” The lack of transparency and trust coupled with the public’s lack of familiarity with drilling for oil and gas in the Northeastern United States is a textbook example of the social amplification of risk. Without transparency, there is no trust. Without trust, public participation in sustainability is a meaningless exercise that is doomed to failure. The shale gas industry now needs to work hard to regain public trust.
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