Are Fracking Fluid Recipes Trade Secrets? Wyoming Supreme Court Sends Issue Back to District Court
In a unanimous opinion issued March 12, 2014, the Wyoming Supreme Court reversed and remanded a case concerning the confidentiality of the ingredients in fracking fluids. The decision keeps alive a challenge to the confidentiality of fracking fluid recipes in Wyoming.
Four environmental organizations brought the suit in a Casper, Wyoming, district court to challenge the decision of the Supervisor of the Wyoming Oil & Gas Commission that granted trade secret status to fracking fluid ingredients. In 2010, the Commission required companies to submit a complete list of the chemicals used in fracking fluid, but the companies may ask for and receive trade secret protection for the chemicals upon a sufficient showing to the Supervisor.
The Court ruled that the environmental organizations used the incorrect procedure to attack the Supervisor’s decision, thereby precluding the Court’s ability to review the trade secret determination. Rather than challenging the determination under the Wyoming Administrative Procedure Act, the environmental organizations should have used the specific procedure set forth under the Wyoming Public Records Act. The Court returned the case to the Casper district court for an evidentiary hearing on each individual trade secret claim being challenged.
Despite its decision on the procedural issue, the Court specifically adopted the definition of “trade secret” found in the federal Freedom of Information Act, a ruling that will aid the district court in this and other such challenges.
Of note, the Court made no rulings on whether fracking ingredients can be “trade secrets” and did not find Wyoming’s rules for protecting trade secrets to be inappropriate or improper. Further, the Court did not order that any chemical lists be made public – leaving that decision to the district court.