By Roy L Hales
There was a legal loop-hole, when Wyoming became the first state to require the disclosure of chemicals used while fracking, in 2010. Corporations did not have to reveal chemicals that were “trade secrets.” This qualification was too loose and some chemicals have been linked to respiratory distress, rashes, convulsions, organ damage, and cancer. So Earthjustice, acting on the behalf of represented the Powder River Basin Resource Council, Wyoming Outdoor Council, Earthworks, and the Center for Effective Government, sued the state’s Oil and Gas Commission to demand more transparency. A settlement was reached on January 26, 2015. Though it is still possible to claim chemicals are “trade secrets, companies will have to prove this because Wyoming requires further disclosure of fracking chemicals.
Use Of A Trade Secrets Exemption
According to Earthjustice’s press release, Wyoming’s Supreme Court ruled that:
- the Oil and Gas Commission has the burden of justifying the use of a trade secrets exemption and
- the definition of trade secrets under the Freedom of Information Act applies in Public Records Act cases, such as this one. In contrast, the Oil and Gas Commission wanted to use a broader definition of trade secrets, which would allow more withholding of chemical information from public disclosure and review.
“The settlement agreement is calculated to do is ensure that the commission has the information in front of it the information it needs to separate legitimate trade secret claims from illegitimate ones. The Wyoming Supreme Court affirmed that the public’s right to know is paramount under state law. If fracking operators don’t want to reveal what chemicals they use, they will have to explain why they qualify as a trade secret, which means they shouldn’t be able to capriciously keep secrets from the public about dangerous chemicals,” said Katherine O’Brien, an attorney with Earthjustice.
A spokesperson for Halliburton, an industry intervenor in this case, told NGI‘s Shale Daily that, “the company supports disclosure of the ingredients used in hydraulic fracturing.”
“Halliburton has made ingredient information available on its website and helped to establish FracFocus, the registry providing public access to the substances used on a well-by-well basis,” the spokesperson said.
The usefulness of tools such as the website FracFocus depends on the transparency of the companies involved, the strength of state regulations and the ability of state agencies to enforce those regulations. While some operators have been forthcoming, others are more recalcitrant. Homeowners and concerned citizens can use FracFocus to look up the chemicals used for specific wells, but ceases to be effective if companies can withhold many of their chemical names by calling them “trade secrets.”
“Its’ usefulness really depends on how vigorous the public disclosure requirements are for the particular state or province that is using it,” said O’Brien.
Posts Of All These Trade Secrets
She added, “Fortunately in Wyoming the Oil and Gas Commission posts all of these trade secrets requests and the supporting documentation. So what the public has done, our clients and others, is to review those requests, and the decisions, in order to make sure the commission is not granting confidentiality protection based on trades secrets status.”
As a result of the settlement, companies will have to produce much more documentation when claiming trade secrets and it will easier to ascertain if the commission is acting properly when this is granted.
“This is a great step forward, in terms of public disclosure in Wyoming, but the proof will be how the Oil and Gas Commission implements these new policies and we’ll certainly be watching to make sure they do so properly,” said O’Brien.
Photo Credit: Sections of drilling pipe and a drilling rig on a six-well pad by Tim Hurst via Flickr (CC By SA, 2.0 License)