The Design and Implementation of Chemical Disclosure Requirements and Trade Secret Protections in State Fracking Regulation

The four-fold increase in shale gas production in less than a decade has brought with it a host of policy conflicts, including competing demands for transparency and secrecy with respect to the proprietary chemical formulas used in the hydraulic fracturing process. State legislatures and regulatory agencies have been at the forefront of the response to these conflicting demands. We report on the results of a pilot study, part of a larger project investigating the design and development of transparency-based environmental regulation focused on the effects of different policy designs on the actions of implementing agents and policy targets. Our focus is the design and implementation of trade secret protections in the chemical disclosure requirements of fracking laws and regulations in five jurisdictions, four states in the U.S. and one in Australia. Using data generated from documentary sources, public records, and institutional coding of statues and regulations, we test several hypotheses based on a typology (Ingram & Schneider 1990) that links the scope of discretion granted to implementing agents vis-à-vis policy targets to subsequent implementation behaviors. The results provide the first inkling of the design choices and implementation consequences evident in policymaker efforts to balance the values of economic competitiveness and environmental protection