Sunlight as the best disinfectant?

Sunrise over Yellowstone Lake, US Geological Survey. Photo credit: Philip Sandstorm, Montana State University.

Supreme Court Justice Louis Brandeis famously stated that “sunlight was the best disinfectant,” enshrining a principle of transparency as a cornerstone for open democracy and good governance. The United States passed the Freedom of Information Act following Watergate in 1974, and many states subsequently adopted their own freedom of information (FOI) laws (often times referred to as sunshine, open records, or right to know laws). Freedom of information laws give the public broad rights to access records, however the burden to obtain the information still falls on the individual.

Since the passage of FOI laws, there has also been a movement towards what is known as proactive disclosure. This is when public entities proactively share information, data, and records with the public. The internet has made proactive disclosure cheaper and easier, and has given rise to many efforts towards what is known as “open government,” in which data sets from the government are made available to the public.

Transparency of information is an idea that most people agree on in principle, but in practice, the implementation is very uneven. Furthermore, there isn’t conclusive evidence that transparency leads to improvement for the public. In “Transparency With(out) Accountability,” Shkabatur (2012) notes that voluminous amounts of government information are now available, however a lack of context around that data, agency discretion over what to release, and a lack of enforcement has not led to government accountability.

An example of this paradox of transparency can be seen with environmental information. State and federal environmental laws require the disclosure of massive amounts of environmental information. On the other hand, that information is often not contextualized and agencies are not necessarily required to make information easy to find and understand, as long as it is available somewhere. In other words, Ohio may release information related to where gas wells are located, but it does not have to share other information that would make this information meaningful to the general public, such as how many complaints have been filed in proximity to a given well.

In this example, the Ohio Department of Natural Resources can technically say they are being “transparent” – after all, they are providing information about wells on a website accessible to the public. But unless you are a subject specialist, many of the available well records are incomprehensible to the general public. The records show evidence of actions that an agency took (approving construction and ongoing production of a well), but few of the records shed any light on the broader policy decisions and directions of the agency.

 

Evidence of absence

A foundational principle of archival theory and practice is that records have evidential value. Many users (and archivists themselves!) typically approach records for what informational value they have: What slogans are depicted in a photo of Vietnam-era student protesters waving signs? Can this birth certificate prove my great-grandmother’s birth date? Will this set of meeting minutes recall what decisions were made?

So what do we mean by evidential value? Evidential records are those that document the processes, organization, and functional activities of an organization. This is a bit of a loopy statement, so let’s return to birth certificates, which have great evidential and informational value. To a genealogist trying to ascertain the date their great-grandmother was born, the birth certificate contains important information– the date of the birth. But the records are also evidence of the government’s responsibility for maintaining vital records of citizens’ major life events (i.e., birth, marriage, divorce, death).

One of the lines of inquiry I’ve been pursuing recently is that effective regulation depends on good recordkeeping. Recordkeeping has become extremely fraught in the area of environmental regulation.  Recordkeeping not only provides information about what activities with environmental impacts are taking place in a given location, records also serve as evidence that a given agency is fulfilling its mission of environmental regulation by maintaining appropriate records.

Evidentiary value is important, because who creates records and how has great meaning and consequence. A governmental agency may be responsible for monitoring a body of water for pollution. A citizen activist group may do the same thing because they want to maintain their own records to compare with an agency’s monitoring records. Even if both of these groups produced records with potentially identical informational value (e.g., measurements of pollution levels in water), the evidential value attached to each is radically different. The government creates the records as part of its statutory obligation to monitor water pollution. The citizen activist group does the same in order to corroborate or contest the government’s findings. Thus, evidential value associated with records is as important as what information is recorded within records.

An interesting case study of the evidential value of records can be found in the Ohio Attorney General’s lawsuit filed against the Rover Pipeline. The pipeline is a 713-mile natural gas pipeline being built through northern and eastern Ohio, with links to Pennsylvania, Michigan, and West Virginia. Energy Transfer Partners is building the pipeline, and it is the same company that built the controversial Dakota Access Pipeline. The lawsuit alleged that the Rover Pipeline illegally discharged drilling fluid, failed to secure discharge permits, and violated another permit it did hold.

In this lawsuit, recordkeeping — both the lack of permits on the one hand, and the violation of existing permits on the other hand – is the foundation for the legal action. Permits provide information on allowable pollution levels, but as records, they are also evidence by which corporations interact with regulators. The only legal way to emit pollution is to obtain an official record (a permit from Ohio EPA) allowing a certain threshold of pollution. The evidentiary value of records provides a form of legal authorization, regardless of whether the pollution allowed by the permits is advisable to begin with. When a corporation fails to seek permits as required by law, or when it violates existing permits, the state must decide whether to pursue an enforcement action. If the corporation had sought permits and abided within their limits – even if environmentalists questioned the threshholds of the permits to begin with – the state would not have grounds to pursue legal enforcement against a corporation. Therefore, the informational and evidential value of records are a key component of regulatory enforcement.

The recordkeeping of energy infrastructure

Natural gas pipeline capacity out of Ohio

When people think of the energy industry, they often picture heavy industrial equipment – pipelines criss-crossing prairies, oil rigs along coastlines, or earthmovers pushing mountaintop overburden into valleys below. But what about the invisible equipment? How do we visualize the caverns that store nuclear energy production waste? How do we know where the underground  piping is that connects us to the grid? How can we tell when there are wells nearby?

We cannot see invisible infrastructure, and even visible infrastructure blends into the background of our daily lives. But we can see the outlines of all infrastructure by inspecting the records associated with it. Some recordkeeping associated with the energy industry’s infrastructure is available to the public – permits that must be filed with state and federal agencies, for example. Other recordkeeping conducted for internal corporate administration is considered private business information. Some business information may be shared with the public if an energy company is a public company, but other forms of information may be proprietary.

One of the fastest growing sectors of domestic energy production is hydraulic fracturing of shale formations, better known as fracking. Ohio is located in a major shale formation and is the 7th largest producer of natural gas. According to the Energy Information Agency, “[t]he Utica Shale has contributed to the rapid increase in natural gas production in Ohio, which was almost 19 times greater in 2016 than 2011.” Ohio’s neighbors of West Virginia and Pennsylvania are part of the Utica and Marcellus Shale formations, and also rank highly for natural gas production (Pennsylvania is the #2 domestic producer, West Virginia is #8).

Most oil and gas activities are regulated at the state-level, and therefore different states have varying regulations around fracking. As a result, the impacts from fracking are experienced differently depending on where you live. Since there is a different regulatory landscape from state to state, this means that the information and records concerning fracking vary across state lines. To put it another way, this means that the public has different levels of information about fracking depending on where it’s carried out.

An illuminating example can be found with disclosure of chemicals used for hydraulic fracturing. Many states use the registry FracFocus for chemical disclosure. However, a recent study of FracFocus showed that 92% of submitted chemical disclosures for wells “withheld at least one ingredient record” by classifying it as a trade secret, confidential or proprietary business information (Konschnik and Dayalu, 2016, p. 508).

This issue will almost certainly continue to be of regional importance for both industry and concerned citizens. Ohio and Pennsylvania increased their production of natural gas more than any other states between 2015-2016, and the Energy Information Agency “projects that natural gas production will increase in both 2017 and 2018 as natural gas prices rise.” As the federal government and many states continue to embrace domestic fossil-fuel production over renewable energy, this is a topic that deserves our attention.

What’s in the water?

Ohio River headwaters in Pittsburgh
Formation of the Ohio River in Pittsburgh by the Allegheny and Monongahela rivers. Photograph taken by Eira Tansey, October 2017.

What’s in the water?

Ohio’s status as a “water-rich state” has meant that it has long been a flashpoint for concerns over how to ensure protection of our water resources, particularly as Ohio’s waterways have played a significant part in regional industry. One of the most famous images of the environmental movement was Cleveland’s Cuyahoga River catching on fire in 1969 – it was not the first time, as it had caught on fire several times before, going back to the mid-1800s. If you want to learn more about the political atmosphere of Cleveland during this event, UC history professor (and friend of the Archives and Rare Books Library) David Stradling has written a book about it.

One of the landmark federal laws that was placed under authority of the newly established EPA was the 1972 Clean Water Act. The Clean Water Act actually traced its origins to the Federal Water Pollution Control Act of 1948, and was the result of many amendments to the 1948 law. The Clean Water Act requires significant recordkeeping and information systems in order to support implementation of the law. Much of the Clean Water Act’s powers are delegated to state environmental protection agencies (for example, Ohio’s Environmental Protection Agency, or Pennsylvania’s Department of Environmental Protection). One of the major parts of the Clean Water Act is a permitting system known as the National Pollutant Discharge Elimination System (NPDES). The NPDES system “regulates discharges of pollutants from municipal and industrial wastewater treatment plants, sewer collection systems, and stormwater discharges from industrial facilities and municipalities.”

As a system of bureaucratic recordkeeping, the NPDES system reveals much about how we have attempted to take hard-to-quantify aspects of our environment, and pack it down into standardized documentation about human impact.

For example, reviewing a recent draft permit for a wastewater facility in the greater Cincinnati area, this permit will last for five years. It requires the wastewater facility to self-report sampling levels of their discharges to one of the tributaries of the Ohio River. Sampling must take place Monday through Friday but the time of day doesn’t have to be reported, and the permit holder must retain records for three years. One can imagine arguing for modifying any of these recordkeeping requirements upwards or downwards, based on your orientation towards deregulation or to environmental protection.

Recordkeeping is not a neutral act. What is reported and recorded reflects information necessary for regulatory fulfillment. Choices about recordkeeping – what to record, when to record it, who should record it, how often to record it, where to store it, and public vs proprietary access, reflect competing values attached to environmental information.