Fracking chemicals to stay 'trade secrets'
A district judge in Wyoming has shot down a group of environmentalists who tried to gather information about the long-term effects of fracking, ruling that they do not have the right to know what ingredients are used in hydraulic fracturing fluids.
The coalition of environmental groups expressed deep concern over the damage that could be inflicted upon the environment if unidentified chemicals are used underground. In order to more properly assess the risks of hydraulic fracturing fluids used by the Wyoming Oil and Gas Conservation Commission, these groups argued that the public has the right to know what is going on in their backyards.
Fracking procedures use specially formulated chemicals that act as lubricants to keep the machinery running. Fracking involves pumping water, sand and underground fluids to split open rocks that contain oil and gas. The chemical lubricants maintain the orderly flow of sand. Environmentalists are concerned that these chemicals could pollute the land and water, which would be especially detrimental to landowners located near fracking sites.
After four environmental groups jointly filed a lawsuit demanding to know the ingredients used at these sites, Natrona County District Judge Catherine Wilking ruled that withholding the information is a ‘reasonable’ thing to do. She said the ingredients are ‘trade secrets’ that Wyoming’s open records law does not apply to.
"This decision recognizes the importance of a state-based approach to regulating hydraulic fracturing — one that balances this important method for producing energy with environmental protection," said Wyoming Oil and Gas Conservation Commission spokesman Renny MacKay in a statement published by the Associated Press.
MacKay spoke on behalf of Wisconsin Gov. Matt Mead, who chairs the commission while also governing the state – putting him in a controversial position when the people he represents oppose the actions of the business he is involved with.
The governor praised the judge for ruling against the environmentalists, who sued the commission that he heads. Now, the groups, including the Powder River Basin Resource Council, Wyoming Outdoor Council, Earthworks and OMB Watch, are contemplating filing an appeal to the decision.
"We continue to believe we have strong claims, and we're still concerned the Wyoming oil and gas commission is withholding this information from the public," Shannon Anderson, an attorney for the resource council, told AP.
"However the court feels these competing concerns are best addressed through legislative action, or further rule promulgation and are not properly within the court's purview," Wilking wrote.
Attorneys representing the oilfield services company claim that public disclosure would also allow compositing companies to reverse-engineer fracking fluids. But legal documents from a similar case that took place in Arkansas in 2011 describe the difficulty in doing so, claiming that “those who might use reverse-engineering would not be able to re-create and ascertain the exact composition and ratio of all compounds in this complex polymer structure without significant assistance and disclosure from the [commission].”
Judge Wilking wrote in court documents that she understands the concerns from both sides, but that the environmentalists were unable to prove that the commission violated state law, which allows for trade secrets to be kept private.
The dilemma is one that has been going on for years as oil and gas conservation commissions throughout the US continue to argue that their ingredients are considered ‘trade secrets.’
“It’s a major loophole,” Mike Freeman, attorney for the environmental group Earthjustice, told the Denver Post after the state of Colorado was debating whether or not to require full disclosure of fracking fluids in 2011.
“You’d want to know if they’re putting an herb or a poison down an oil well near your house,” he said. But because of state laws that allow commissions to declare the fluids a ‘trade secret’, they can too often evade telling environmentalists anything about what they do.
