Wyoming Supreme Court Moves Forward on Public Disclosure of Fracking Chemicals

Friday, March 28, 2014
Wyoming farmer John Fenton stands in front of a fracking tank (photo: Bob Moen, AP)

Opponents of hydraulic fracturing (or fracking) have won a partial victory before Wyoming’s highest court in the fight over disclosing what chemicals are used by drillers. The ruling may establish an important precedent in future cases involving efforts to force companies to disclose the chemicals they use in fracking operations.

 

Critics have tried for four years to reveal fracking ingredients, ever since the state became the first in the nation to adopt a rule requiring such disclosure.

 

However, that rule—which came about as a result of water contamination found near well sites—included a loophole that allowed companies to withhold the names of chemicals to protect trade secrets. More than 10 states have a similar rule on their books.

 

The industry used this trade-secrets exemption to successfully block local organizations from learning nearly all of the ingredients (146 out of 148 chemicals) used by 11 companies. That decision came before the Wyoming Oil and Gas Conservation Commission (WOGCC) in 2011, leading fracking critics to challenge it in state court.

 

Led by Earthjustice, a public interest law firm, the plaintiffs argued before a district court judge that the WOGCC was in violation of the Wyoming Public Records Act and the state’s fracking chemical disclosure rule.

 

The plaintiffs, consisting of the Center for Effective Government, Powder River Basin Resource Council, and the Wyoming Outdoor Council, lost their case when the judge upheld the commission’s decision, saying it had “acted reasonably.”

 

But the Wyoming Supreme Court came to a different conclusion after accepting the plaintiffs' appeal.

 

Justices said state law mandates agencies explain why a request for information is denied, which the WOGCC did not provide. This meant the district court lacked sufficient information to make its ruling.

 

The Supreme Court ordered that the case return to the district judge. Furthermore, the high court determined that the commission has the burden of proof for justifying its use of trade secrets exemptions.

 

The district court will now have to review “the disputed information on a case-by-case, record-by-record or perhaps even on an operator-by-operator basis, applying the definition of trade secrets set forth in this opinion and making particularized findings which independently explain the basis of its ruling for each,” Justice Michael Davis wrote in the opinion (pdf).

-Noel Brinkerhoff

 

To Learn More:

Wyoming Supreme Court Advances Disclosure of Fracking Chemicals (by Sofia Plagakis, Center for Effective Government)

Wyoming Supreme Court Vacates on Procedural Grounds a Lower Court Decision Holding Ingredients in Fracking Fluid Formulas Qualify as “Trade Secrets” (by Wilson Elser and Carl J. Pernicone, Lexology)

Powder River Basin Resource Council v. Wyoming Oil and Gas Conservation Commission (Wyoming Supreme Court) (pdf)

As Natural Gas Boom Fades, Wyoming is Stuck with the Mess Left Behind (by Noel Brinkerhoff, AllGov)

EPA Halts Study Linking Fracking with Water Pollution (by Noel Brinkerhoff and David Wallechinsky, AllGov)

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