Who “Owns” Information when Environmental and Corporate Interests Clash?

In this post, Daniel Bourgault, professor and researcher of physical oceanography at Institut des sciences de la mer de Rimouski in Quebec, Canada, talks about the difficulties environmental researchers can run into when commercial interests withhold environmental data.

Professor Bourgault, you recently published the article “Commercially Sensitive” Environmental Data: A Case Study of Oil Seep Claims for the Old Harry Prospect in the Gulf of St. Lawrence, Canada in UC Press’s new journal Case Studies in the Environment. So tell us, is there a big, natural oil seep in Canada’s Gulf of St. Lawrence?

DB: We don’t really know, but it would be surprising that there would be significant amounts of oil naturally seeping out of the seafloor of the Gulf of St. Lawrence.

Example of oil slicks (these, in the Gulf of Mexico), as seen by satellite. Image credit: NASA Earth Observatory

The Gulf of St. Lawrence has been studied and monitored for many decades by oceanographers, including chemists, geologists, biologists and physicists. If oceanographers had ever found any indications or had serious suspicions of the presence of natural oil in the seawater of the Gulf of St. Lawrence it would certainly have been reported. Yet, there is nothing in the scientific literature that points at any such evidence. But absence of evidence is not evidence of absence, so the possibility cannot be completely ruled out either. The only indications we have are provided by the oil company Corridor Resources who have been stating for about the last 15 years in their publicly available annual reports that they have indications from satellite images that there are six sites around the Old Harry prospect that would naturally and permanently seep oil. Under some circumstances, satellite images may indeed reveal the presence of oil at the sea surface. Think for example of large incidents such as the Deep Horizon in the Gulf of Mexico where surface oil slicks could easily be detected from space. In some cases, the oil detected from satellite images could also come from natural seafloor seeps if the oil is light enough to float all the way to the sea surface and if the amount released is large enough to be detected by satellite images. However, while this information might be credible, it cannot be independently verified since the satellite data and analyses that Corridor Resources hold are kept secret in the name of “commercial sensitivity”. Unambiguously identifying oil seeps from satellite images is not a trivial task by itself. Plus, determining the source of the seeps and whether the source is natural or not is really difficult and can rarely be done with satellite images only. So we are puzzled as to how Corridor Resources could have concluded that there were six oil seeps around the Old Harry prospect based only on an analysis of satellite images.

What does it mean when data is “commercially sensitive?”

DB: The specific meaning of this expression varies from state to state, and it depends on how it is defined in laws and case law. But in general, it means that the industry, or government, considers that publicly disclosing the information may result in a material loss to, or a prejudice to its competitive position. Basically, it implies that the potential harm resulting from the disclosure outweighs the public interest in making the disclosure. In our case study, it’s not clear to us why the information is judged to be commercially sensitive by Corridor Resources or Airbus Defence and Space (i.e. the consultant who actually carried out the analyses and provided the data). What appears to us to be paradoxical is that Corridor Resources publicly discloses the main conclusion of their private study, i.e. that they have apparently found evidence that there are six persistent oil seep sites around the Old Harry prospect (they’ve even presented a map of the location of those six seeps), but can decline to – and indeed cannot be forced to – present the data and analyses that support this conclusion. We wonder what material loss or prejudice could result from presenting the data and the method that the conclusions wouldn’t already? One possibility could be that Corridor may lose potential investments and take a hit on their share value if the conclusion is demonstrated as false or weak.

From an environmental point of view, the information about whether or not the Gulf of St. Lawrence naturally seeps oil is fundamental to know. Such information is needed in order to construct a reliable baseline initial state against which any new man-made oil contribution resulting from eventual oil and gas development could be compared with, and impacts on the marine environment, ecosystem, and people be then truly assessed.

In this context, we propose that it might appear sensible to label some information as “socially sensitive” or “environmentally sensitive” to balance the existing “commercially sensitive” information.

What is the most surprising thing you found when communicating with Corridor Resources or with Airbus Defence and Space in order to gain access to the data behind their claims about Old Harry prospect?

DB: How long it took to obtain answers! The questions we initially asked were simple and straightforward and could really have been answered in a week or so. Yet, the process took 9 months, from 20 July 2015 until 26 April 2016.

For example, here’s an excerpt of the first email I sent to Corridor Resources:

20 July 2015

I recently came across a document published by Corridor in 2011 that tells that evidence were found from satellite images of oil seeps emanating from the flanks of Old Harry.

Corridor’s annual reports also tells that six such seeps had been detected. For example, we can read in the 2000 annual report that: “Six natural oil seeps have been detected on the ocean surface by satellite, emanating from the flanks of this prospect.” I find this information very interesting and very relevant and I’d like to learn more. Could you please send me more information? Could you please send me the satellites images that were analyzed as well as a report that tells how these images were analyzed and interpreted? That would be greatly appreciated.

Sincerely,

Daniel Bourgault

I then had to send two reminders to finally receive a first response on September 2, 43 days later. I received a short response telling me that the data were proprietary information and that Corridor Resources was not at liberty to distribute them.

I immediately acknowledge the receipt and asked a few more questions on September 2. Again, I had to wait another 40 days to get a response (on October 12). It has been like this for 9 months.

But again, as I mentioned above, what I find most surprising is that Corridor Resources is at the liberty to publicly share the conclusion of the analyses but not the data or the method.

Does the public have a right to access environmental data?

DB: In general, at least in Canada and in the US, a lot of environmental data are publicly available. For example, the St. Lawrence Global Observatory (https://ogsl.ca/en) portal offers to anyone a lot of basic environmental data for the Gulf of St. Lawrence such as air temperature, wind conditions, sea temperature, salinity, currents, dissolved oxygen, sea level and much more. Some satellite images are also publicly and freely available from the US or Europe. However, some very specialized data sets and analyses are not always publicly available, especially when those data are owned by the private sector. For example, the oil seeps detection analyses carried out by Airbus Defence and Space for Corridor Resources on specialized satellite images are not publicly available.

In our paper, we introduce the idea that under some special circumstances of public interest, the public should have the right to access specialized environmental data in the name of an alternative concept we could call “socially sensitive” or “environmentally sensitive information or data.” This could balance the rights of the public to know and the right of the industry to secrecy. At the moment, the laws and regulations usually give precedence to the right to secrecy, but the balance sheet of the industry is not the only thing we should protect.

 

Case Studies in the Environment is a journal of peer-reviewed case study articles, case study pedagogy articles, and a repository for editor-reviewed case study slides. The journal aims to inform faculty, students, educators, professionals, and policymakers on case studies and best practices in the environmental sciences and studies.

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