Some Montanans are suing to protect their water by requiring transparency from the oil and gas industry, specifically related to fracking.
On Tuesday, a handful of landowners from eastern Montana and two nonprofit organizations sued the Montana Board of Oil and Gas Conservation after it refused to consider their July petition to require oil and gas companies to disclose the chemicals used in their fracking fluids. The petition also asked that if a company claimed it didn’t have to disclose the chemicals because they were trade secrets, the company should be required to prove that the mixture qualified as a trade secret.
Fracking is a drilling process where a chemical mixture and sand are pumped deep underground to apply enough pressure to fracture shale formations to create sufficient cracks to reach locked-up fossil fuels. The fuel and chemical solution is then pumped to the surface.
The process isn’t much of a problem unless the wastewater spills from its storage pond or tank, a well casing cracks or underground pressure causes the chemical solution to make its way into an aquifer that people rely on for their water. Companies often use the same chemicals – hydrochloric acid, formic acid and ethylene, among many – but vary the proportions. Many, such as benzene or toluene, are toxic or carcinogenic and can render groundwater unusable. According to some Material Safety Data Sheets listed on the website FracFocus, certain fracking fluids contain 6 to 90 times the maximum concentration of benzene found in diesel fuel.
Scientific studies have documented adverse health effects in people who live or use water supplies near fracking operations, including elevated incidence of miscarriage, stillbirth, preterm birth, low birth weight, male and female infertility, birth defects, skin and respiratory problems, and hospitalization, according to the lawsuit.
Yet, because of the “Halliburton loophole” inserted in the 2005 Energy Policy Act by then-Vice Pres. Dick Cheney, the fracking industry cannot be sanctioned under the Safe Drinking Water Act. So people in states such as Texas or Pennsylvania who live near oil and gas wells have been unable to hold fracking companies accountable because they can’t prove that the chemicals that showed up in their drinking water come from fracking. Disclosure must be mandated state-by-state.
Montanans asked that the oil and gas board collect that information so they could know if their water is polluted by fracking in the future. It would be like food companies publishing nutritional information so people know what they’re eating.
The plaintiffs were disappointed when the board turned them down in September.
“My family home is less than a mile away from numerous fracked oil wells on the edge of the Bakken oil field,” said plaintiff Mary Anne Mercer, a public health expert who has witnessed fracking operations on her family ranch near Roberts. “I worry about what the potentially toxic solutions used for fracking are doing to the soil and water of the land that I’ll always call home.”
The board said it couldn’t require disclosure of chemicals because it didn’t want to be liable for disclosing trade secrets and that the Legislature should have the responsibility of making such a rule. The Montana Supreme Court was also considering a separate fracking lawsuit so the board wanted to wait until the court had ruled on that. However, the case revolved around a 48-hour-notice requirement that companies must meet prior to starting to frack, and had nothing to do with any chemicals used.
Earthjustice attorney Katherine O’Brien said waiting for the Supreme Court ruling was useless since it had no bearing. She pointed out that Wyoming already requires oil and gas companies to provide chemical information, so the “trade secret” excuse rings hollow.
“Montanans have the right to know what chemicals oil and gas operators plan to pump into the ground on their farms and ranches and near their homes so they can take steps to protect their property and health,” O’Brien said.
Fourteen states require companies to submit such information to FracFocus as part of their permit application.
Montanans have tried to get the Legislature to pass laws requiring disclosure but failed. In 2011 and again in 2015, bills addressing disclosure were tabled at the request of the oil and gas industry. So far, it’s not clear if any of the oil and gas bills will attempt yet again to require chemical disclosure from oil and gas companies.
After the 2011 Legislature, the Montana Board of Oil and Gas responded to the threat of disclosure bills by adopting a rule that allows companies to avoid listing concentrations under the claim of trade secrets. If the board could make a rule like that, it didn’t have to wait for the Legislature to make a rule about chemical disclosure, O’Brien said.
Earthjustice filed the lawsuit on behalf of the Montana Environmental Information Center, Natural Resources Defense Council, Mary Anne Mercer, David Katz, Anne Moses, Jack and Bonnie Martinell, Willis Weight and David Lehnherr.