Wyoming Supreme Court Rejects Fracking Industry Argument to Withhold Chemicals As Trade Secrets

Litigation continues to better identify the chemicals used in hydraulic fracturing


Katherine O’Brien, Earthjustice, (406) 586-9699


Shannon Anderson, Powder River Basin Resource Council, (307) 672-5809


Kristi Mogen, Resource Council Board Member, (307) 359-2928

Today, the Wyoming Supreme Court issued its decision in a case where Powder River Basin Resource Council and other groups challenged the Wyoming Oil and Gas Commission’s withholding of hydraulic fracturing (fracking) chemical information from public disclosure and review. The Court reversed and remanded the case back to the District Court in Casper, Wyoming to fix certain deficiencies. In its opinion, the Court ruled in favor of the Resource Council in two main ways: 1) It held the Oil and Gas Commission has the burden of justifying the use of a trade secrets exemption and 2) It found that 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.

“We’re pleased the Court recognized that the Oil and Gas Commission has to fully and rationally justify its use of trade secrets exemptions before it can hide fracking chemical information from public review,” stated Marilyn Ham, Resource Council Board Member from Laramie County, Wyoming. “We’re looking forward to the next stage of the case and hopefully to getting better information out to the public on what chemicals are used in fracking operations.

“It is important for public health and safety that citizens have timely access to what chemicals are used in fracking operations on and near our land,” stated Kristi Mogen, Resource Council Board Member who lives near fracking operations in Converse County, Wyoming. “We applaud Powder River Basin Resource Council for their hard work in bringing this case and for their dedication to empowering the residents of Wyoming.”

“If chemical information is being improperly labeled a trade secret that means it is not available as public information as Wyoming’s hydraulic fracturing regulations intended,” stated Shannon Anderson of the Resource Council.

“We appreciate that the court took seriously the need for the public to know what chemicals are being injected during oil and gas production. We hope that now the state agency will do likewise,” stated Bruce Baizel of EARTHWORKS.

“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 prove that the chemicals are trade secrets, 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, which represents the plaintiffs. “We will continue the fight in the trial court to ensure that the identity of fracking chemicals—which threaten the water supplies that communities depend upon—cannot be kept secret from the public.”

“As we’ve noted in the past, the recipe for Coca-Cola is a trade secret, but the ingredients are not, and they’re all listed on the can,” said Sean Moulton with the Center for Effective Government. “We’re glad that the Wyoming Supreme Court agrees that this critical chemical information should be disclosed to the state’s residents and public interest organizations,” stated Sean Moulton, Director, Open Government Policy, Center for Effective Government.

The decision is available at: http://www.courts.state.wy.us/Opinions/2014WY37.pdf

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