Groups appeal fracking chemical case to Wyoming Supreme Court

— April 17, 2013

After losing their initial legal challenge to force Wyoming’s top oil and gas regulatory agency to disclose all fracking chemicals (including those considered under the state’s trade secret law) a consortium of public interest and watchdog groups have appealed to the Wyoming Supreme Court to take up the matter.

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, according to a press release.

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.