March 12, 2014

Media contact: Lisa McGee, Wyoming Outdoor Council, 307.733.3845, lisa@wyomingoutdoorcouncil.org

Wyoming State Supreme Court’s ruling in the fracking chemical disclosure case is a good decision

“We are pleased with the Supreme Court’s decision,” said Lisa McGee, an attorney with the Wyoming Outdoor Council. “We believe the public has the right to know which chemicals are being injected underground during fracking, and we look forward to having the opportunity to further make this case in the district court.”

According to Wednesday’s decision, a company that wishes to keep fracking chemicals a secret has the burden of proof of showing that it meets the definition of a trade secret.

“This decision errs on the side of public disclosure, which we believe is the right decision.” McGee said.

The Wyoming State Supreme Court decision (S-13-0120) is available at: http://www.courts.state.wy.us/Opinions/2014WY37.pdf

Some background on the case

The Wyoming Outdoor Council, along with the Powder River Basin Resource Council, Earthworks, and the watchdog group OMB Watch, originally filed suit in March of 2012. We asked the court to require the state of Wyoming to disclose information about the chemicals used during the oil and gas development process known as hydraulic fracturing, or fracking.

The nonprofit environmental law firm Earthjustice filed the petition on behalf of our coalition.

We received an adverse—and we felt incorrect—ruling on this case from a district court in 2013 and we appealed to the Wyoming State Supreme Court in April of that year.

We argued that the Wyoming Oil and Gas Conservation Commission should be required to reveal the identities of the chemicals that are pumped underground during fracking because Wyoming citizens and landowners have a right to know what chemicals are transported across the landscape, stored on or near their homes, and injected underground.

We argued that public disclosure is required by the Wyoming Public Records Act and the Commission’s 2010 disclosure rule pertaining to hydraulic fracturing chemicals.

It is our position that disclosure would help protect the people of Wyoming by allowing them to know what chemicals to test for in baseline water tests prior to fracking.

Under the 2010 regulations, Wyoming became the first state in the nation to require well operators to disclose the identities of chemicals that are mixed with water and sand and injected into the ground to break up rock during fracking.

But since the regulations were adopted, the Commission has approved more than 50 secrecy requests, shielding identifying information of more than 190 different chemicals that are being used by Halliburton and other oil and gas service companies in fracking.

“Wyoming’s groundbreaking fracking chemical disclosure rule amounts to very little if companies can shield information as ‘trade secrets’ nearly at will,” said Earthjustice attorney Laura Beaton, at the time of the appeal. “We are asking the Wyoming Supreme Court to enforce the broad public disclosure mandate of the Public Records Act and the fracking chemical disclosure rule.”

We argued that when it comes to fracking chemicals and the potential harm to people and groundwater sources, the interests of public health and the public good far outweigh the interests of protecting companies’ so-called trade secrets.

“Groundwater belongs to the people of Wyoming,” said Bruce Pendery, chief legal counsel with the Wyoming Outdoor Council. “While water rights can be granted for its use, we all have an interest — and a responsibility — to ensure that groundwater is protected and kept clean not only for those of us living here today but for the people who might need it after we’re gone.”

Thankfully, today’s ruling errs on the side of public disclosure and gives the district court good guidance for rehearing the case. We’re looking forward to the opportunity to achieve better transparency and advocate the public’s right to know under this new guidance.

Other posts of interest:

Orphaned Wells: Dealing With Unseen Threats to Wyoming’s Groundwater

Flashpoint: It’s Time to Reduce Waste and Pollution from Flaring

MEDIA RELEASE: New Wyoming Groundwater Rule Approved

West Edge