The Wyoming Supreme Court on Wednesday sent a fracking fluids disclosure case back to a lower court, giving environmental and consumer rights groups hope that the cocktails of chemicals used to frack for natural gas will become public knowledge.
In 2010, Wyoming was the first state to require disclosure of fracking fluid ingredients to state regulators. But the Wyoming Oil and Gas Commission never made those lists of chemicals public, claiming they were trade secrets that varied from company to company constituting competitive advantage. In Wyoming, the Public Records Act (WPRA) allows state officials to protect trade secrets from public release.
In 2011, the Powder River Basin Resource Council, Wyoming Outdoor Council, Earthworks and Center for Effective Government filed the first of what in the end would be three records requests against the state to obtain fracking fluid chemical lists for 14 operators. The state oil and gas supervisor denied all three requests and the groups responded by filing a lawsuit.
Environmental groups argue that knowing what is being injected in fracking wells would help people know what to test for in their groundwater. They point out that no one is demanding the exact recipe just an idea of the chemicals being pumped underground.
“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 in a release following the higher court’s decision.
Last year, Natrona County District Judge Catherine Wilking ruled that the oil and gas supervisor was correct to withhold the lists. But the Wyoming Supreme Court decision has sent the case back to Wilking on a technicality.
The justices ruled that the appellants should have asked Wilking to have the oil and gas supervisor justify withholding the lists under the state public records act, instead of asking her to review the supervisor’s decision under the state administrative procedure act.
“The WPRA requires the district court to independently determine whether information must be disclosed or not, rather than to review a decision of the supervisor as an administrative decision,” Justice Michael Davis wrote in the opinion. “The district court is required to determine as a matter of fact on evidence presented to it whether the information sought is a trade secret, and not whether the supervisor acted arbitrarily or capriciously under the deferential administrative standards applied in the original proceedings,” he continued. “The district court will 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.”
This means that the burden of proof is on the state oil and gas supervisor to show that the chemical lists are trade secrets.
While the groups suing for disclosure have only won more time to make their case on this technicality, the ruling is seen as positive.
“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,” said Katherine O’Brien, an attorney for the groups in a a joint statement.
“ 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,” Powder River Basin Resource Council Board Member Marilyn Ham said a in the statement.