By: Gracie Sandlin
In Pavillion, Wyoming, citizens “complained of a bad taste and smell in their drinking water.”[1] Testing by the EPA suggested the contamination of groundwater was due to toxic chemicals.[2] The EPA never finished its report before turning the investigation over to state regulators.[3] After nearly ten years of complaints, testing completed by Dominic DiGiulo suggested the “water wells in Pavillion were contaminated with fracking wastes.”[4] Found within the water was methanol, a chemical that can cause severe “nerve damage and blindness.”[5] So, why are fracking companies not required to disclose the chemicals injected into the ground?[6]
Hydraulic fracturing, ‘fracking,’ is the process of injecting water, sand, and chemicals “into shale deposits,” or any other compacted sediment, “to release trapped oil and gas.”[7] And while fracking is a finite energy sourcing method first created in the 40s, it was not until the 2000s the process became more mainstream.[8] As of 2015, fracking, combined with horizontal drilling, consisted of sixty-seven percent of natural gas production and fifty-one percent of crude oil production in the US.[9] This drilling allows for wells to be created from the surface of the shale deposit down to the oil or gas reservoir.[10]
Fracking provided the platform for the U.S. to increase oil and gas production, but at what price?[11] The process of fracking includes “injecting water, sand, and chemicals” into shale deposits to release oil and gas—there is no process for removing the excess mixture from the well.[12] The remaining mixture is free to percolate into groundwater systems of which many communities rely on.[13] According to a 2016 EPA fracking report, only 193 chemicals were identifiable out of 1,606 found in millions of gallons of fracking wastewater.[14] Communities do not know the exact chemicals deposited into their groundwater due to one thing: trade secrets.[15]
A trade secret is “‘information, including a formula, pattern, compilation, program, device, method, technique, or process that: (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.’”[16] Industry would argue that the amount of money put into creating the perfect mixture warrants protection from other companies, who would steal the mixture components to make their own mixture.[17] Currently, states with fracking regulations require fracking companies to disclose the chemicals being used to get a permit for drilling and using a well.[18] However, fracking companies have the option to label this chemical disclosure as a “‘trade secret’” when the company believes protection is warranted.[19] With this label, companies no longer have to provide the name of the chemical or the identification number the chemical is given; only the “concentration of the chemical” in the fracking fluid or the chemical family is reported.[20] This disclosure procedure varies from state to state, some with procedures that tend to favor industry, and other states with laws that start to put the health of their citizens first.[21]
In 2017, Montana buttressed its current fracking chemical disclosure law “by reasonably limiting companies’ ability to claim that the chemicals are trade secrets.”[22] The new, and improved, statute “requires oil and gas companies to report the contents of their fracturing fluids to the state Board of Oil and Gas Conservation,” who will then publish those reports.[23] These reports must include: “(1) the chemical compound and identifier for each constituent ingredient, (2) any hazardous components, product names, and types of additives used, and (3) the proposed concentrations of these chemicals.”[24] Under this new statute, fracking companies still retain the ability to petition the Board of Oil and Gas Conservation to not disclose any of the reported information, however the criteria for protection are steep.[25] The request for protection has to “explain why the chemical or concentration at issue: (1) is not already public information, (2) is actually maintained as confidential within the company seeking to shield its disclosure, (3) whether any other regulatory entity has determined that it is not entitled to be hidden from exposure to the public, (4) has an independent commercial value and to explain what that value is, and (5) why a ‘systems approach format’ would not adequately protect proprietary interests.”[26] This statute also protects groundwater from pollution by denying protection from disclosure any chemical dumped into “’state waters’”—a broad definition.[27]
While Montana’s fracking statute does not guarantee public safety when it comes to wayward fracking fluid, it does help to educate the public.[28] The statute also now creates incentives within the industry to treat their fracking sites and communities with care.[29] The statute is a step in the right direction to holding fracking accountable for harms they cause, and other fracking states should look towards Montana’s example.[30] With time, hopefully, the Pavillion, Wyoming, community will help get legislation passed as Montana has been doing and will no longer fear their water.[31]
[1] Gayathri Vaidyanathan, Fracking Can Contaminate Drinking Water, SCI. AM. (Apr. 4, 2016), https://www.scientificamerican.com/article/fracking-can-contaminate-drinking-water/ [https://perma.cc/J57L-7ACS].
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Alexis L. Maule, Colleen M. Markey, Eugene B. Benson, Isaac J. Burrows, Madeleine K. Scammell, Disclosure of Hydraulic Fracturing Fluid Chemical Additives: Analysis of Regulations, 23 New Solutions, 167, 171 (2013).
[7] Christina Nunez, How Has Fracking Changed Our Future, NAT’L GEOGRAPHIC, https://www.nationalgeographic.com/environment/article/how-has-fracking-changed-our-future (last visited Feb. 16, 2022) [https://perma.cc/HWT5-RLLM].
[8] Id.; Fracking in the United States, Ballotpedia, https://ballotpedia.org/Fracking_in_the_United_States (last viewed Feb. 18, 2022) [https://perma.cc/KR9T-GDNF].
[9] Fracking in the United States, supra note 8.
[10] Id.
[11] Sean Ross, How Does Fracking Affect Oil Prices?, Investopedia, https://www.investopedia.com/ask/answers/013015/how-does-fracking-affect-oil-prices.asp (last updated May 07, 2021) [https://perma.cc/M3A7-HJYK].
[12] What is Hydraulic Fracturing?, U.S. Geographic Servs., https://www.usgs.gov/faqs/what-hydraulic-fracturing (last viewed Feb. 19, 2022) [https://perma.cc/VEF2-MFY3].; How and Where do Drillers Dispose of Waste Hydraulic Fracturing Fluid, U. S. Geographic Servs., https://www.usgs.gov/faqs/how-and-where-do-drillers-dispose-waste-hydraulic-fracturing-fluid (last viewed Feb. 18, 2022) [https://perma.cc/7PLK-XXJX].
[13] Elliot Fink, Opinion: Fix Trade Secret Law to Protect Precious Water from Fracking, ENVTL HEALTH NEWS, https://www.ehn.org/opinion-fix-trade-secret-law-to-protect-precious-water-from-fracking-2637627248.html (last viewed Feb. 18, 2022) [https://perma.cc/QZ7W-WUSH].
[14] Id.
[15] Id.
[16] Trade Secret, CORNELL L. SCH. Legal Info. Inst., https://www.law.cornell.edu/wex/trade_secret (last viewed Feb. 18, 2022) [https://perma.cc/FDU9-GFKU].
[17] John Craven, Fracking Secrets: The Limitations of Trade Secret Protection in Hydraulic Fracturing, 16 VAND. J. ENT. & TECH. L. 395, 413 (2014).
[18] Elliot Fink, Dirty Little Secrets: Fracking Fluids, Dubious Trade Secrets, Confidential Contamination, and The Public Health Information Vacuum, 29 FORDHAM INTELL. PROP., MEDIA and ENT. L. J., 971, 989 (2013).
[19] Id.
[20] Id.
[21] Id. at 990.
[22] Id. at 1013.
[23] Id.
[24] Id.
[25] Id.
[26] Id. at 1013-1014.
[27] Id. at 1015.
[28] Id.
[29] Id.
[30] Id.
[31] WFAA Staff, Wyoming Town Fears Fracking Poisoned Their Water, WFAA (Feb. 9, 2012, 10:19 PM), https://www.wfaa.com/article/news/local/project-green/wyoming-town-fears-fracking-poisoned-their-water/287-336717746 [https://perma.cc/5AP5-TZJ8].; Fink, supra note 18 at 1013.