It may indeed be easier to beg forgiveness than it is to get permission. For oil and gas companies conducting fracking operations in Colorado, using loopholes to avoid following state laws is an even better option.
Concerned about the chemicals being pumped into the wells during the fracking process, Colorado passed a bill in 2022 requiring companies to fully disclose the type and amounts being used. According to environmental groups, the frackers are hiding behind a trade secret shield instead of complying.
Given that the use of so-called "forever chemicals" in fracking can have a decidedly detrimental effect on the environment and those living near wells, the level of alarm from those trying to monitor the companies is continuing to rise. Can a court battle be far away?
Getting to the Bottom of the Issue
Hydraulic fracturing, more commonly referred to as fracking, is a drilling method designed to free up and provide access to oil and natural gas deposits. After a well has stopped producing and the drill and rig have been removed from the site, fracking uses a combination of water, sand, and other materials under extreme pressure to cause fractures in tight shale formations. This can provide access to pockets of nearby fossil fuels.
Aside from seismological issues that can arise, the chemicals involved cause a great deal of concern. Energy companies are known to have used perfluoroalkyls and polyfluoroalkyls as part of the fracking mixtures. Also known as PFAs, the two are considered "forever chemicals" that don't break down after being introduced into the environment. Once they've entered a water supply, they will contaminate the groundwater and are both difficult and costly to remove.
PFAs are also linked to birth defects, cancer, pre-eclampsia, and other serious health issues. Although tiny, they're extremely toxic and accumulate within human bodies. Given the proximity of fracking sites to Colorado schools and towns, state officials were concerned and took steps to protect the state's citizens.
Determining What's Behind Door #3
Passed in 2022, Colorado's HB22-1348 - Oversight of Chemicals Used in Oil and Gas set an array of rules regarding chemicals used in fracking to go into effect on July 31, 2023. Seeking transparency, the bill demanded that the following information be given to the Department of Natural Resources by all operators, service providers, and direct vendors involved with downhole fracking procedures:
- The trade name of any chemical used in the process
- The names of each chemical used in the chemical product
- A declaration that the chemical product contains no intentionally added PFAs
To avoid energy companies such as Chevron and ExxonMobil from saying that the manufacturers didn't tell them what chemicals are added, the bill used additional provisions:
- The chemical product's manufacturer
- The weight/amount of the chemical product
- The chemical product's trade name
- A safety data sheet for the chemical product, if available
It also required the following from all companies using downhole operations involving fracking:
- When downhole operations began
- The unique numerical identifier from the American Petroleum Institute and the U.S. well number
- The county the well site is in
- The trade names and amounts of any chemical products used downhole
While the demands of the bill seem comprehensive, companies claim they have a reason not to comply.
A coalition of physicians and environmentalists released a report on May 20, 2025, alleging that there has been less than 40% compliance with HB22-1348 by the energy companies despite estimates of almost 30 million pounds of chemicals being injected into the soil of Colorado. How are these frackers avoiding the requirement to disclose what chemicals they're using?
The Halliburton Loophole
The Safe Drinking Water Act of 2005 addressed the use of diesel for fracking, but didn't identify any other chemicals as banned or provide a way for the issue to be handled on the federal level. Called the Halliburton Loophole after the energy company once run by former Vice President Dick Cheney, this provided an exemption for energy companies that has yet to be successfully challenged.
By claiming that the chemicals being used are trade secrets and proprietary, fracking operations have been able to sidestep many of the reporting demands required by the Department of Natural Resources. Unless the state can figure out a workaround for the Halliburton Loophole, the tactic is likely to remain effective.
A blown Chevron well on April 6, 2025, leaked an undetermined quantity of chemicals near a town called Galeton. It was so bad that one of the schools was forced to close for almost a month. Colorado residents concerned about PFAs may now try to find a way to put a crack in the energy companies' legal defenses.
Related Resources
- What Is Product Liability? (FindLaw's Accidents and Injuries Legal Guide)
- What Is Fracking? EPA Report Fuels Concerns (FindLaw's Law and Daily Life)
- Toxic Chemicals and Materials Law (FindLaw's Product Liability Law)
