October 14, 2013 VIA EMAIL Commissioner Cathy P. Foerster Alaska Oil & Gas Conservation Commission 333 West 7th Avenue Anchorage, Alaska 99501 Re: NOTICE OF PROPOSED CHANGES IN THE REGULATIONS OF THE ALASKA OIL AND GAS CONSERVATION COMMISSION DATED AUGUST 7, 2013 Dear Commissioner Foerster: We, the undersigned law professors who teach and write about intellectual property and trade secrets, write in support of the Alaska Oil and Gas Conservation Commission ("AOGCC") proposed hydraulic fracturing ("fracking") regulations that would provide for the disclosure of information that might in other contexts be deemed trade secrets that cannot be disclosed to the public, under proposed regulations 20 ACC 25.283(a)(14) and (h). As in the attached April 1, 2013 letter, we take no position on whether fracking should be conducted in the State of Alaska or whether there are any environmental, health or safety risks ("EHS") associated with such behavior. Rather, we write for one purpose: to endorse the AOGCC's efforts to access the alleged trade secret information that it needs to make an intelligent assessment of the existence of such risks. Since the letter that several law professors submitted to the AOGCC on April 1, 2013, incorporated herein, we remain concerned that the fracking industry has opposed the reasonable efforts of regulators throughout the country to have access to information about the exact chemical composition of fracking fluids. Such access should not only be uncontroversial, as trade secret information is shared with regulators at all levels of government and in a range of industries, but should be standard operating procedure for any regulatory entity charged with stewarding our nation's natural resources. To deny regulators and the public access to such information is to prevent an evidencedbased analysis of the EHS impacts, if any, of fracking. It is, in sum, an effort to render the regulation of fracking as a game based upon guesswork and supposition rather than hard data. Moreover, we believe that the alleged competitive harm associated with the possible disclosure of these trade secrets (if they qualify, in fact, as trade secrets) to the public is at best overstated, and at worst reflects a skewed placement of commercial interests over the broad interests of the public in transparency, accountability and safe environmental management. The AOGCC is to be commended for resisting these efforts. The proposed regulations continue to allow the AOGCC access to the specific chemical composition of Law Professors' Second AOGCC Trade Secrets Letter Page 1 fracking fluid. Indeed, by requiring that such information be shared in advance of the commencement of operations, the AOGCC's proposed regulations hew closely to what should be the goal of modern environmental regulation: evidence-based assessment of EHS risks and expert decision-making. As such, we write in enthusiastic support of the proposed regulations. For further information, questions or correspondence, please contact David S. Levine at dlevine3@elon.edu or Mary Lyndon at lyndonm@stjohns.edu. Respectfully submitted,1 Zoe Argento, Roger Williams University School of Law Brook K. Baker, Northeastern University School of Law Jane Bambauer, Rogers College of Law, University of Arizona Eric Fink, Elon University School of Law Shubha Ghosh, University of Wisconsin School of Law Robert Heverly, Albany Law School Lawrence Lessig, Harvard Law School David S. Levine, Elon University School of Law Lydia Pallas Loren, Lewis & Clark Law School Mary L. Lyndon, St. John's University School of Law Frank Pasquale, Seton Hall Law School David G. Post, Beasley School of Law, Temple University Christopher Jon Sprigman, New York University School of Law Attachment: April 1, 2013 Law Professors' AOGCC Trade Secrets Letter 1 Affiliations are listed for identification purposes only. Law Professors' Second AOGCC Trade Secrets Letter Page 2