Drilling companies nationwide have been keeping the identities of many fracking chemicals a secret by simply stamping them "confidential business information," also known as "trade secrets." In Wyoming, regulators had long accepted these claims with little validation, and residents were left in the dark about the toxic chemicals being injected into the ground near their homes, schools, and water supplies. A recent settlement agreement in a lawsuit filed by public interest groups, including the Center for Effective Government, will change this practice.

Under the terms of the settlement, drilling companies in Wyoming will be required to substantiate their trade secrets claims with more facts and evidence. This is a win for state residents and sets a standard for other states to follow.

The Dangers of Fracking Chemicals

Fracking injects a mixture of water, sand, and various chemical additives into the ground. Drilling holes often pass through aquifers, risking drinking water contamination. Additionally, fracking releases toxins into the air, sometimes at levels exceeding federal safety standards. Communities have a right to know what chemicals are being used in fracking so they can protect themselves from possible chemical exposure and hold companies responsible for their practices.

Wyoming was the first state to require drilling companies to identify the chemicals used in fracking. But the trade secrets exemption – along with Wyoming regulators’ failure to scrutinize these claims – created a massive loophole. Companies could simply claim their fracking fluids were confidential business information in order to avoid public scrutiny.

The Lawsuit and Settlement

Advocates in Wyoming and beyond demanded that the Wyoming Oil & Gas Conservation Commission close this loophole. They were joined by five environmental and public interest organizations. In March 2012, the groups filed a lawsuit, arguing that under the state’s public records law and the 2010 fracking chemical disclosure rule, the commission should be required to reveal the identities of chemicals used in fracking.

In March 2013, the district court upheld the commission's decision to withhold the identity of chemicals, as requested by Halliburton and other energy companies under Wyoming's open records law. The district court concluded that the commission's supervisor, who withheld the information, "acted reasonably."

The groups appealed to the Wyoming Supreme Court, which ruled on March 12, 2014 that the district court had to reconsider the public disclosure requests and that the commission would have to explain exactly why the requests were denied. The court's decision also held that the commission has the burden of proof for justifying its use of trade secrets exemptions. The court further ruled that any information withholding must fall within a narrow definition of trade secrets that generally favors disclosure over secrecy.

Rather than engage in a protracted legal battle over each claim of trade secrets, the commission agreed to pursue a settlement with the public interest groups. Halliburton intervened in the settlement to promote industry interests.

On Jan. 23, the court approved a settlement agreement that requires the commission to adopt policies that better scrutinize trade secrets claims. This includes requiring substantially more information from companies to back up their claims.

A Victory for Public Health

The settlement is a victory for the people of Wyoming and for public health. If properly administered, landowners will be able to access information on the chemicals being injected on their land. Families will know what chemicals are being used near their homes and schools, and medical providers will have quicker access to crucial chemical safety data in the event of a chemical spill or other exposure.

Most other states that allow fracking have trade secrets exemptions that often favor industry over the public’s health and safety, so there is more work to be done on fracking chemical disclosure. Other states can and should use the Wyoming settlement as a model, close disclosure loopholes, and uphold citizens’ right to know what chemicals are being used during fracking. After all, if we can require Coca-Cola to list its soda's ingredients without revealing its well-guarded, confidential recipe, we can surely do the same for fracking fluids.