Several public interest and government watchdog groups have appealed to Wyoming’s highest court, asking it to compel the state’s oil and gas permitting agency to disclose the chemicals that are injected underground during the oil and gas production process of hydraulic fracturing, or fracking.
Represented by the public interest environmental law firm Earthjustice, the Powder River Basin Resource Council, Wyoming Outdoor Council, Earthworks and the Center for Effective Government filed the appeal to the Wyoming Supreme Court today.
The groups argue 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, stored on, and disposed of on and below their properties. Public disclosure is required by the Wyoming Public Records Act and the Commission’s fracking chemical disclosure rule, the groups say, and it would help protect the people of Wyoming by allowing them to know what chemicals to test for in baseline water tests prior to fracking. However, since disclosure of chemical identities was first required in 2010, the Commission has granted trade secret protection to hundreds of chemicals used in fracking.
In Wyoming, nearly all new and ongoing oil and gas production involves fracking. Transport, use and disposal of fracking chemicals could potentially affect ground and surface water, which is—or could be—used for drinking water, livestock, irrigation or other important uses.
“As a landowner living near hydraulically fracked oil wells, I have the right to know what’s going down the well,” said Marilyn Ham, a Cheyenne area landowner and member of the Powder River Basin Resource Council. “We don’t want to know the fracking formula recipe, but landowners like me have a right to know the ingredients—in this case the specific chemicals that are being transported, stored, and injected underground during fracking.”
Under regulations approved in 2010, 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 for more than 190 different chemicals that are being used by Halliburton and other oil and gas service companies in fracking. A centerpiece of the groups’ appeal is the lax level of review the Commission exercises when granting trade secrets exemptions to the oil and gas industry.
“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. “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.”
The groups argue that when it comes to fracking chemicals and the potential harm to landowners and residents, 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, staff attorney 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.”
The result of this appeal could help establish broad legal precedent—as the states of Texas, Arkansas, Pennsylvania, Colorado, Montana, and Michigan all have fracking chemical disclosure regulations similar to Wyoming’s on the books.
With this appeal, the groups are asking the Wyoming Supreme Court to reverse a lower court decision, which allowed the commission to withhold from disclosure many of the chemicals despite the fact that companies often provided scant or no explanation of why the chemical ingredients should be held confidential. The groups are arguing that only in rare, extensively justified circumstances can individual chemicals themselves be withheld from public disclosure.
“The recipe for Coca-Cola is a trade secret, but the ingredients are not, and they’re all listed on the back of the can,” said Sofia Plagakis with the Center for Effective Government.
“Some of these fracking chemicals can cause cancer, nerve damage, and other public health concerns,” said Bruce Baizel with Earthworks.“We appreciate Wyoming’s leadership in making more of this information available. But by then allowing the identity of these chemicals to be withheld as trade secrets, this forward looking law is defeated. Without a complete list of fracking chemicals—a simple list of ingredients—it’s much more difficult for residents to determine whether their drinking water has been contaminated by oil and gas development.”
“We are arguing that protecting public health by requiring broad disclosure of fracking chemicals should be the state’s priority,” said Beaton. “And we will make the case that a policy of fracking chemical secrecy is decidedly not in the public’s best interest.”