WY Supreme Court Issues Decision: Reverses lower court ruling; Decides in favor of Public Disclosure in fracking chemical trade secret case

Enviros applaud Wyo. win against Halliburton on fracking disclosure by Mike Lee, March 13, 2014, E & E News
Landowners and other people affected by oil and gas development in Wyoming will find out more about chemicals used in hydraulic fracturing under a state Supreme Court ruling that pitted environmental groups against state regulators and the oil field service giant Halliburton Co. Three environmental groups and a government watchdog won a partial victory when the court said the state should apply a narrow definition of trade secrets to the chemicals used in hydraulic fracturing, or fracking. The state Oil and Gas Conservation Commission and Halliburton had argued for broader exemption from disclosure, saying revealing the ingredients would allow competitors to copy the formulas (EnergyWire, Nov. 21, 2013). “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,” said Marilyn Ham, a board member of the Powder River Basin Resources Council, one of the groups involved in the lawsuit.

Halliburton believes its chemicals’ identities qualify as trade secrets even under the court’s narrower definition, Susie McMichael, a spokeswoman, wrote in an email. The company could be forced to stop using some ingredients in Wyoming, rather than risk giving up the information, its attorney said during arguments in November. “Halliburton will make a decision on its course of action following the conclusion of the case,” McMichael wrote.

Earthworks, the Powder River Basin Resource Council, the Wyoming Outdoor Council and the Center for Effective Government filed a request under the state Public Records Act in 2011, then went to court to get the Oil and Gas Conservation Commission to release the information. The five-member state Supreme Court opted to apply the same definition of “trade secret” used in the federal Freedom of Information Act. It said a state district court “will have to review the information on a case-by-case, record-by-record or perhaps even on an operator-by-operator basis.” [Emphasis added]

WY Supreme Court Issues Decision in Favor of Public Disclosure in Fracking Chemical trade secret case Press Release by Power River Basin, March 12, 2014
(Cheyenne, WY) 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.” …

“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. … “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. [Emphasis added]

The decision

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