Fracking trade secrets arguments heard by Casper judge; ruling expected in 60 days

2013-01-22T23:45:00Z 2013-01-23T05:38:03Z Fracking trade secrets arguments heard by Casper judge; ruling expected in 60 daysBy ADAM VOGE Casper Star-Tribune The Billings Gazette
January 22, 2013 11:45 pm  • 

CASPER, Wyo. — A Casper district judge will soon decide whether Wyoming’s top oil and gas regulator was too quick to keep information about hydraulic fracturing a secret.

Judge Catherine Wilking said Tuesday that she’ll rule on a controversial case pitting several landowner and environmental groups against the Wyoming Oil and Gas Conservation Commission within the next two months.

The case centers on whether the commission was justified in granting several trade secret exemptions to companies that employ hydraulic fracturing, or "fracking," in Wyoming. Fracking is an oil and gas production technique in which companies pump water, chemicals and sand into a well in order to create breaks and free oil and gas.

Attorneys representing landowners and environmental groups argued Tuesday trade secret exemptions granted by the commission were “arbitrary and capricious” and should require more justification. Attorneys for the commission and Halliburton — an active fracking company in the state which joined the suit — argued the opposite, saying that there’s a process for the commission to decide when ingredients should be confidential, and that process is being followed.

Wyoming in 2010 became the first state to mandate disclosure of components used in fracking fluid. Several groups, including the Powder River Basin Resource Council and the Wyoming Outdoor Council, requested access to lists of ingredients used by various companies in the state, but the commission denied access to some on the basis that they were trade secrets protected by law — an exemption allowed under the WOGCC regulations.

Timothy Preso, an attorney for Earthjustice, an environmental law firm based in Bozeman, Mont., argued Tuesday that components of hydraulic fracturing should not be subject to the trade secrets exemptions. Preso said revealing single ingredients wouldn’t harm fracking companies’ competitive edges, because a list of ingredients does not constitute a formula.

Preso said listing fracking fluid components publicly would help landowners establish baseline data on their groundwater quality, which would be critical should a water contamination occur.

Eric Easton, assistant attorney general and counsel for the commission, said that the purpose of the rule is to provide commission staff with a list of which chemicals are being used in fracking. He added that the oil and gas supervisor has the expertise to know which chemicals should be available to the public and which, if disclosed, would harm a company’s competitive edge.

An attorney for Halliburton also offered arguments Tuesday, saying among other things that his company has come up with several fracking substances which they consider to be proprietary and confidential.

“We are in a competitive business,” Steve Leifer said. “Halliburton prides itself on having the most effective and efficient frack fluids.”

Leifer compared Halliburton’s fracking fluid formula to a recipe for food, saying that although a list of ingredients doesn’t easily lead to a formula, giving away some key ingredients could damage the company’s edge on the competition. Leifer added he would be supportive of disclosing vague descriptions or generic names of components, as long as it doesn’t give away proprietary rights.

Wilking said Tuesday that she will issue a judgment on the case within 60 days.

The landowner and environmental groups said in a joint release Tuesday that their case is important.

"We appreciate Wyoming’s leadership in making more of this information available," they said. "But without a complete list of fracking chemicals, it’s much more difficult for residents to determine whether their drinking water has been contaminated by oil and gas development."

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