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Enviros Laud Fracking Trade Secret Ruling by Wyoming Supreme Court

An environmentalist/landowner challenge to Wyoming's application of trade secret exemptions from hydraulic fracturing chemical disclosure requirements gained a positive ruling from the Wyoming Supreme Court Wednesday that sends the matter back to a state district court for ultimate resolution.

The case involves challenges for public disclosure by a collection of environmental and land groups, including the Powder River Basin Resource Council and others, aimed at the Wyoming Oil and Gas Conservation Commission (WOGCC) supervisor's decision in 2011 to withhold the information involving operations by Halliburton Energy Services Inc.

Wyoming's highest court ruled that the state District Court of Natrona County in Wyoming erred in basing its upholding of the WOGCC supervisor's decision on the state Administrative Procedure Act (APA) instead of the Wyoming Public Records Act (WPRA). The state Supreme Court declined to determine whether the fracking chemicals could be kept confidential as trade secrets.

"We reverse and remand for further proceedings consistent with this opinion," the state high court said. "The district court is directed to determine whether it will permit [the environmental groups] to amend their existing pleadings to request and issue an order to the [WOGCC] supervisor to show cause as to why the documents requested should not be produced, or dismiss the case."

Gov. Matt Mead said his state's first-in-the-nation fracking disclosure requirements are "well done" and that several states followed Wyoming’s lead in this area. "We will see how the case comes out of the District Court," Mead said. "A value of having state rules is that we can be nimble to make changes to the rules or to their implementation if such action is deemed necessary."

In a July 2012 communication to all of the state's well owner/operators, then WOGCC acting oil/gas supervisor Robert King said the broad application of 'confidential' status conflicts with the WPRA "whose purpose is disclosure, not secrecy, of public records and filings. The Wyoming Supreme Court has interpreted the WPRA liberally in favor of disclosure."

King's WOGCC pronouncement at that time listed categories of well information that could be held confidential, but no specific mention of fracking is cited. "Information deemed confidential will be held [that way] for six months after electric logs are received by the WOGCC or six months after the completion report [on a given well]," King said.

Environmental groups and stakeholders wanting more information on oil/gas development in the state told local news media the court ruling was a partial victory. "We're looking forward to the next stage of the case [back in district court] and hopefully to getting better information out to the public on what chemicals are used in fracking operations," said Marilyn Ham, a board member with the Powder River Basin Resource Council.

Halliburton, which has said it might give up using some ingredients in Wyoming rather than disclose the chemicals, apparently thinks the high court's narrower definition of trade secrets still would cover its fracking ingredients, a spokesperson told local news media.

After establishing fracking disclosure rules in 2010, a year later Wyoming determined that trade secret compounds involving 146 separate chemicals, but not the chemicals themselves, were granted confidentiality by WOGCC (see Shale Daily, Aug. 29, 2011).

Last November, Wyoming's Supreme Court heard oral arguments in the three-year-old case in which both landowners and environmental groups have challenged the trade secrecy protection applied to the chemical disclosure part of the state's fracking rules (see Shale Daily, Nov. 22, 2013).

In statements issued Thursday after the court ruling, various environmental group leaders emphasized the same theme: the state Supreme Court has upheld the "public's right and need to know."

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