Well, it’s about fracking time transparency wins
Wyoming’s Supreme Court surprised us last week with a ruling that stands up for public disclosure of dangerous chemicals used by energy companies in the state.
We are so used to Wyoming state officials and regulators letting industry do what it wants regardless of the consequences to our land, air, water, people and wildlife that we expected the high court to rubber stamp a decision by Natrona County District Court Judge Catherine Wilking. She agreed with the state that chemicals used by oil and gas companies in the hydraulic fracking process are to be protected by the state as trade secrets.
The Supreme Court unanimously said that ain’t necessarily so, and sent the case back to the District Court along with guidelines about how it should more narrowly define trade secrets, and the legal requirements the state has to respond to requests for information made under the Public Records Act.
The state obviously expected the justices to buy its argument that it’s enough for companies to tell state regulators what’s in their fracking fluids, which are mixed with water and sand and injected at high pressure into a wellbore to crack open fissures in the ground. Wyoming was the first state in the country to come up with the trade secret dodge, a rule it proudly touts as giving the public enough assurance that the state is looking after their health and safety. It’s not enough, by a long shot.
These are the guys who are constantly preaching to us that we can’t trust the federal government, but demand that we blindly trust the state government to protect us and the environment. Why should we? Prove to us that the state isn’t just trying to limit the liability for companies if something goes wrong with fracking and people are harmed. Don’t expect us to take your word for it that everything is safe just because we’re all from Wyoming and we’re in this together.
The Supreme Court blew a big hole in the state’s contention that the Wyoming Oil and Gas Commission properly responded when it denied requests from the Wyoming Outdoor Council and the Powder River Basin Resource Council (PRBRC) to publicly disclose what’s in the fracking fluids. The court said the commission is required under state law to explain why a public records request was denied. Because it didn’t do so, Wilking didn’t have enough information to rule whether the commission was right or wrong.
It should be obvious to anyone who has followed the long-running fiasco in Pavillion – where landowners have had their wells severely contaminated after fracking began in the area – that the public has a right to know exactly what’s being used to frack oil and gas wells. Slapping a “trade secret” label on the formulas shouldn’t be allowed at all, but if it is, it should be used sparingly. Determinations should be made on a case-by-case basis, and the state should err on the side of disclosure.
That’s what Wyoming’s five justices decided when they determined the state should use the federal definition of a trade secret, which applies a much narrower meaning and allows fewer exemptions to public records laws than the state wants. It’s a significant declaration by the court that the “trust us” method the state and energy industry have used isn’t going to be tolerated, and will be scrutinized.
Even some in the industry have called for voluntary disclosure of fracking chemicals. In response to a 2011 Department of Energy report on oil shale production, Ken Cohen of ExxonMobil had this to say:
“While the composition of fracking fluid may be different from one well to another – depending on the depth and characteristics of the rock – the basic components of fracking fluids are fairly standard.”
So why has the state hidden them from the public? As Shannon Anderson of the PRBRC explained to the Casper Star-Tribune, “We don’t want the formulas, the concentrations and amounts, but we do think the public has the right to know the chemicals used.”
Of course the public does, and it’s good to see the Wyoming Supreme Court make a ruling that substantiates that right.