Hydraulic fracturing, or as otherwise known, fracking, has become a loaded term over the past decade.  It is viewed by some as a game-changing tool of immense, value while viewed by others as a dangerous process that poses significant health risks.  Fracking has been known to the oil industry as a way to increase production of certain types of reservoirs for over a century.¹  However in the last 30 years, the public profile has increased exponentially due to technological innovations that have made the fracking process more cost effective.  Fracking is now very valuable to drilling operators who are profiting off of reservoirs previously deemed economically unfeasible.  Increased availability has shifted the United States to a potential net exporter of hydrocarbons within a few years.²  With the increased public profile has come greater public scrutiny of the process.  Specifically, concerns grew about the impact of fracking on the environment and the health of residents near well sites.  Advocates identified possible contamination of drinking water, with fracking fluid chemicals as a source of harm.  One response to drinking water contamination concerns was to call for increased disclosure of the chemicals used in fracking fluids.  At this time, regulation of fracking, along with most other oil and gas operations, is primarily the responsibility of the states.  Beginning in 2012, states have passed various regulations to compel the disclosure of fracking fluids.³  Frequently, at least some of the chemicals used in fracking fluids are considered trade secrets.  State laws requiring fracking fluid disclosure typically provide an exception for trade secret chemicals.  Some activists argue that trade secret chemicals also need to be disclosed to adequately protect human health.  However, regulations forcing the disclosure of trade secret fracking fluid chemicals could result in a regulatory taking.  Underlying the factors considered in a regulatory takings analysis is the additional benefit to public health from disclosure of the trade secrets.  That benefit is better understood by looking at scientific research of groundwater contamination from fracking, and what impact public disclosure of trade secrets would have on future research.  Other factors are influencing fracking regulation too.  Energy in general has become highly politicized and fracking is no different.  Political attitudes have had, and still have, the potential to impact disclosure regulations.

The following material reviews current law, policy, and politics that are part of the discussion around disclosing fracking fluid trade secrets.  Part I of this paper provides a background of fracking, why it is valuable, and intellectual property regimes used by owners of fracking relating to intellectual property.  Part II reviews the regulatory takings doctrine, trade secret law and the interaction between them.  Current disclosure laws, the policy considerations of disclosure law, and political attitudes towards fracking are discussed in Part III.  This review concludes with general comments on current disclosure and the potential changes to regulations.