As I last reported here, regulation of hydraulic fracturing is poised to be a hot topic in California this legislative session. Last session’s AB 591 stalled in the Senate due to outstanding issues over the mandatory reporting of hydraulic fracturing fluid components and confidentiality issues based on trade secret concerns.
The application of a Wyoming law, similar to what may be the ultimate legislative compromise here in California, is the subject of a lawsuit filed last week by Earthjustice in Wyoming state court. In that case, the plaintiffs, environmental organizations and groups, seek a court order requiring the Wyoming Oil & Gas Conservation Commission to release information it has received from oil and gas companies identifying the constituents of hydraulic fracturing fluids. The oil and gas companies had submitted the information pursuant to Wyoming regulations that mandated the reporting of constituents in hydraulic fracturing fluids. Wyoming’s reporting requirements were the first in the nation and had been promoted as a model for AB 591. Wyoming’s regulatory scheme provides that the reported information will become public, but a reporting company can request that the information so reported be kept confidential, if the composition of certain substances in the hydraulic fracturing fluid constitutes a trade secret. If the state accepts the trade secrets application, the constituents are shielded from public disclosure. Similarly, California’s Public Records Act currently recognizes a trade secrets exemption from the general presumption of public disclosure. Including a similar trade secrets exemption in AB 591 had been the subject of much debate in the Legislature last session.
The plaintiffs in the Wyoming case argue that the trade secret applications made to the state were insufficient to justify the confidentiality of the reported information. The outcome of this case could portend significant effects on proposed legislation requiring the disclosure of hydraulic fracturing fluid constituents in California. The case is Powder River Basin Resource Council, et al. v. Wyoming Oil and Gas Conservation Commission, March 23, 2012, Seventh Judicial District Court, State of Wyoming, County of Natrona.