Right to Know vs. Intellectual Property in the Gulf

If BP’s latest effort to cap the oil well in the Gulf of Mexico is as successful as it appears so far, the conversation will shift to cleanup efforts, emphasizing an important subplot that has emerged in BP’s ongoing attempts to mitigate the environmental impact of all that oil: chemical dispersants used to break up escaping oil vs.the public’s right to know. Ultimately these dispersants should reduce the amount of oil pooling on the surface of the water, and BP has utilized the dispersant Corexit in unprecedented amounts. But are the dispersants more toxic than the oil?

Under intense public pressure, BP had little time to clear the use with all impacted parties. Subsequently Corexit has been the focus of scrutiny by environmental groups who are putting pressure on the EPA. Louisiana residents have even filed a class action lawsuit against BP and Corexit's producer Nalco for using the dispersant while knowing of its toxic risks. Nalco maintains Corexit is a blend of safe ingredients that are commonly found in household products, which will biodegrade and don’t bioaccumulate. However, Corexit has been banned in Britain due to high toxicity.

The concerns over Corexit boils down to a conflict between society’s right to know and a company’s desire to protect the proprietary nature of its intellectual property. Companies often chose not to patent because patents expire and the patents often can be subverted by making small changes. They instead claim “trade secrets” and keep information confidential. Yet the “trade secret” route seems inappropriate in areas related to public health.With the increased focus on everyday chemical exposure and related health issues, right to know must trump intellectual property protection. 

Transparency is the only answer. The public certainly doesn’t trust industry and wouldn’t even trust the EPA to make a decision behind closed doors. (The EPA is lobbying Congress for greater control over the use of dispersants like Corexit.) And there is a strong belief by the public that regulators are too close to those being regulated. Companies should rethink patenting or stress other aspects of producing a specialty product like overall service or tailoring it for each specific application. Failure to do so will continue to deepen the gulf between chemical companies and the public.

Posted In: Policy

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