A coalition of Montana property owners, public health advocates, and conservation groups today filed a legal challenge to the Montana Board of Oil and Gas Conservation’s refusal to grant the public greater access to information about the chemicals used for hydraulic fracturing, or “fracking.”

Rules promulgated by the Montana Board of Oil and Gas Conservation allow oil and gas operators to withhold the identities of specific chemicals they use for fracking from the Board and the public until after fracking occurs.

Fracking involves pumping millions of gallons of chemical-laced water underground at high pressure to release oil and gas deposits.  Numerous fracking chemicals are toxic or carcinogenic to humans, who may be exposed to the chemicals through surface spills of fracking fluids, groundwater contamination, and chemical releases into the air.  Studies have documented adverse health effects in people who live or use water wells near fracking operations.

Rules promulgated by the Board in 2011 allow oil and gas operators to withhold the identities of specific chemicals they use for fracking from the Board and the public until after fracking occurs.  Even then, operators may continue to withhold any fracking chemical information they claim is a trade secret.  Further, the rules do not require operators to provide any evidence demonstrating that withheld chemical information actually qualifies as a trade secret under state law. The rules let operators withhold any chemical information with no oversight by the Board. 

The result is that landowners are denied the information they need in order to test for the presence of fracking chemicals in their water before fracking occurs, which is essential to determine the source of any subsequent contamination.

“Montanans have the right to know what chemicals oil and gas operators plan to pump into the ground on their farms and ranches and near their homes so they can take steps to protect their property and health,” said Earthjustice attorney Katherine O’Brien, who is representing the coalition in the lawsuit.  “Operators just down the road in Wyoming already are required to disclose this information, so we know that broader disclosure is workable for industry.”

The coalition petitioned the Board in July 2016 to close these gaps in the existing disclosure rules and ensure that Montanans who live and farm near fracking operations have access to chemical information they need to safeguard their property rights, health, and environment.  The petition specifically requested that the rules be changed to (1) require operators to disclose specific chemical information before fracking occurs and (2) require operators to justify their trade secret claims.  But on September 23, 2016, the Board denied the petition in a one-page decision. 

“My family home is less than a mile away from numerous fracked oil wells on the edge of the Bakken oil field,” said plaintiff Dr. Mary Anne Mercer, a public health expert who has witnessed fracking operations on her family ranch.  “I worry about what the potentially toxic solutions used for fracking are doing to the soil and water of the land that I’ll always call home.”

Plaintiff Bonnie Martinell, who operates a chemical-free farm near Belfry, Montana, stated: “As a chemical-free produce farmer, my livelihood and lifestyle are totally dependent on knowing what my water and soil is exposed to.  And as a Montana citizen I have a right to a clean and healthy environment.” 

“It’s time for Montana to stand up for people’s health and property rights by updating its fracking chemical disclosure rules,” said Matt Skoglund, director of NRDC’s Northern Rockies office in Bozeman. “As it stands today, the Board of Oil and Gas is approving fracking chemicals for use in Montana without even knowing what the chemicals are. That is completely unacceptable, and it needs to change.”

Plaintiff Dr. David Lehnherr commented: “As a physician, I believe Montanans have a right to know about the chemicals being transported and used in their communities and adjacent lands.  Our health and, indeed, our lives, could be at stake.”

The coalition’s lawsuit asks a state district court judge to overturn the Board’s September 2016 decision rejecting a request to strengthen the state’s fracking chemical disclosure rules. The lawsuit was filed by the nonprofit environmental law firm Earthjustice on behalf of Montana Environmental Information Center, Natural Resources Defense Council, Dr. Mary Anne Mercer, David Katz, Anne Moses, Jack and Bonnie Martinell, Dr. Willis Weight, and Dr. David Lehnherr.

Read the legal document.