Fracking trade secrets case headed to Wyoming Supreme Court

Star Tribune | Adam Voge

April 17, 2013
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A coalition of environmental and landowner groups on Wednesday appealed a Casper judge’s decision that individual ingredients used in hydraulic fracturing can be protected under Wyoming’s trade secrets law.

The group, which includes the Powder River Basin Resource Council and the Wyoming Outdoor Council, appealed the decision by Natrona County District Judge Catherine Wilking to the Wyoming Supreme Court.

“Groundwater belongs to the people of Wyoming,” Outdoor Council attorney Bruce Pendery said in a prepared statement. “While water rights can be granted for its use, we all have an interest — and a responsibility — to ensure that groundwater is protected and kept clean not only for those of us living here today but for the people who might need it after we’re gone.”

Bob King, the interim supervisor of the Wyoming Oil and Gas Conservation Commission, which determined the ingredients are not subject to public disclosure, didn’t return a call seeking comment Wednesday. A similar request to Halliburton, an oil field services company that intervened in the case, also went unreturned.

The case centers on whether individual ingredients used in hydraulic fracturing can be considered trade secrets. Hydraulic fracturing, or fracking, is a process wherein water, chemicals and sand are pumped below ground to break rock and free trapped oil and natural gas.

Wyoming in 2010 became the first state to mandate disclosure of the chemicals used in fracking, and organizations took advantage of the new law by submitting records requests pertaining to projects using fracking.

But the law contained a provision allowing the oil and gas commission to shield certain ingredients from the public if they were deemed trade secrets.

The groups sued after the commission declined to release information about several fracking operations.

Arguments in the suit were heard in January in Casper.

Attorneys for Earthjustice, a nonprofit environmental law firm working for the coalition, argued that publicly disclosing individual ingredients does not constitute revealing trade secrets. They also argued that lists of ingredients would help nearby landowners establish baseline water-quality data.

Intervening industry attorneys argued that reverse engineering and industry competition make proprietary information worth protecting.

Wilking in March ruled in favor of the commission and the industry.

Members of the appealing group held firm Wednesday on their stance that fracking ingredients should be public information.

“We appreciate Wyoming’s leadership in making more of this information available,” said Bruce Baizel, a representative of Earthworks. “But by then allowing the identity of these chemicals to be withheld as trade secrets, this forward-looking law is defeated.”

A date for arguments before the Supreme Court has not been set.

Tagged with: wyoming, trade secret, fracking

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