Denton leaders submit fracking ban to the voters

Posted Wednesday, Jul. 16, 2014  comments  Print Reprints
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The Denton City Council, after a marathon meeting that included about seven hours of testimony where impassioned citizens talked about the dangers of fracking, voted early Wednesday morning to allow residents to decide if they want to ban the controversial drilling method.

If passed by the voters on the Nov. 4 ballot, Denton would become the first city in Texas to outright ban hydraulic fracturing, which involves pumping water, sand and chemicals at high pressure underground to break up rocks and release oil and gas.

The council’s vote came shortly before 3 a.m., after about 100 speakers, a few tearful, stated their views. City officials estimate that about 500 people attended the meeting, some watching the proceedings on close-circuit TV in other parts of the building.

“The whole community is frustrated,” Mayor Chris Watts said after hearing about half of the speakers, some of them saying they had gone to state regulators and others for help. “People tried the channels they thought would be the proper channels to get relief, only to find out, in the end, there was little relief.”

Councilman Kevin Roden said the decision to put the ban on the ballot doesn’t mean the fight against fracking is over, even though the ban was backed by 59 of the 110 speakers who signed up to address the council. Another 161 people who attended the meeting signed cards supporting it.

“I do fully anticipate, if we pass the ban, or the citizens do, that we will see the wrath of the industry and it will be costly,” Roden said during a break.

The hearing was the result of a successful petition drive by the Denton Drilling Awareness Group, which gathered almost 1,900 signatures calling for an ordinance to ban fracking.

The council was required to hold a public hearing and vote on the proposal. In the end, on two procedural votes, the council decided to put the referendum on the ballot.

After an agonizing discussion in which the council opted not to impose the ban, and initially rejected the ban in a 5-2 vote, they then immediately voted unanimously to put the matter before voters.

Roden, along with other council members, worried that the campaign over the next few months will bring in big money from an oil and gas industry spoiling for a fight.

“This isn’t going to be a city vote. This is going to be national politics,” Roden said. “It is going to be David versus Goliath.”

State officials and industry officials warned that a ban is likely to lead to a long and expensive legal fight.

Texas Land Commissioner Jerry Patterson said the state is a mineral owner in the Barnett Shale and within the city of Denton and that he has a fiduciary duty to protect those interests. His agency manages state resources and pumps the money into the Permanent School Fund.

Patterson sent a letter to Mayor Watts before Tueday’s council meeting saying his agency opposes the fracking ban.

“I’m not sure the city has the authority to do this under the laws in Texas,” Patterson said in an interview with the Star-Telegram. “We want to lease and produce our mineral interests and we will not be held up by a city ordinance no matter how it comes about.”

Former Texas Supreme Court Chief Justice Tom Phillips said the ordinance would be illegal.

“I don’t think public policy allows for a municipality to decide if there will be no drilling,” Phillips, who represents the Texas Oil and Gas Association, said in an interview with the Star-Telegram.

“The state has a strong policy in favor of oil and gas development. … To completely ban it we think runs afoul of the law.”

Spirited debate

Denton is in the middle of the Barnett Shale, which lies under in a large chunk of North Texas, and is one of the nation’s biggest natural gas fields. While fracking’s widespread use has greatly boosted domestic oil and gas production, it also has sparked controversy and growing opposition, including moratoriums in New York state and several cities in Colorado and California.

Fort Worth, Arlington, Denton and other cities have struggled with urban drilling. Denton, which has 275 active gas wells within the city limits — and another 212 within its extraterritorial jurisdiction — imposed moratoriums in 2012 and 2013 as it overhauled its drilling ordinances.

But the idea to simply ban fracking came from Denton Drilling Awareness Group. Its members were frustrated with drilling and fracking near homes. While the city established a 1,200-foot setback from residences, schools and parks last year, a provision still allows drilling within 250 feet of previously permitted well sites.

The group was concerned about natural gas drilling’s effect on public health, welfare and safety including the injection of water, gels and acids into aquifers as well as the venting of gas, noise issues and site security.

But the proposed ban championed by the group would prevent only additional fracking from taking place. It would not stop a traditional well from being drilled within the city, although drilling proponents said those wells aren’t productive.

Roden said before the meeting that after the initial drilling was done in Denton by the bigger operators like Devon Energy and Chesapeake Energy, the “vultures of the gas drilling industry, who have much smaller operations and need to cut costs,” have come in to “drain the previously untapped reserves.”

Maile Bush told the council that the drive to ban fracking was a grassroots effort of “people of Denton who are standing up for Denton.”

Bush, who said she is the mother of two small children, said she lives near drilling sites and that her kids have headaches, nosebleeds and coughing fits. Bush is convinced her kids illnesses were caused by the fracturing.

“I’m just a mom and I have a duty to protect my children,” Bush said. “If the industry does not think [those health problems] are not fracking related, they need to prove it.

“Fracking is a dirty and dangerous practice by an industry that puts profits before people.”

She told the council that it has “the opportunity to be on the right side of history” by imposing the ban.

On the other side, state Sen. Craig Estes, R-Wichita Falls, told the council there are no definitive studies showing that fracturing has polluted groundwater or caused health problems to anyone living near a well.

“I think it would be unwise to ban this procedure,” Estes said.

Randy Sorrells presented the council with petitions with 8,000 signatures gathered by a group called Denton Taxpayers for a Strong Economy that supports “responsible drilling regulations” that will “protect the economy and the environment” but not ban fracking.

Sorrells, who has three traditional wells on his land that could not be developed if the ban is adopted, said his group is also concerned about the millions of dollars the city would spend defending the ban in court.

Industry lashes out

In anticipation of Tuesday’s meeting, state officials, industry groups and others lashed out.

Barry Smitherman, chairman of the Texas Railroad Commission, sent a letter to the city calling the measure “essentially a ban on drilling” that is “extremely misguided.”

If other cities follow your lead, “we could potentially, one day, see a ban on drilling in Texas,” he wrote.

A study conducted by the Perryman Group said the ban would cause potential losses of $251.4 million in economic activity over 10 years and more than 2,000 jobs and reduce tax revenues by $5.1 million to the city. The study was commissioned by the Fort Worth Chamber of Commerce.

“A ban on fracturing in the Barnett Shale is a ban on drilling,” said Ed Ireland, spokesman for the Barnett Shale Energy Education Council, an industry group that also sponsored Perryman’s study. “There is some worry that it will spread.”

“It is such an attack on individual property rights that a lot of people are very concerned about that kind of action,” Ireland said.

In an interview with the Star-Telegram, Phillips said the ban faces a several legal hurdles. One is that the Texas Constitution says no law shall contain any provision that contravenes laws passed by the Legislature. He said the Natural Resource Code states that “mineral resources of this state be fully and effectively exploited.”

Then there is the “taking” of someone’s rights to sell or develop their mineral rights, he said. Even if there are provisions that allow drilling, if it is too difficult that is considered a ban.

Roden scoffs at the dire economic predictions made by Smitherman and others. He said the amount of jobs in the city related to oil and gas is less than 1 percent. He said the money to be made on fracking in Denton has already been made.

“I don’t want our citizens going into this issue to be scared that the economy is going to drop out,” Roden said earlier in the week.

“There is a boldness to be the first Texas city to go out on this limb,” Roden said. “Denton is symbolic to them [the drilling industry]. I fully expect if this ban goes through — with a citywide vote — the coffers are going to open up to unleash litigation on us.”

Max B. Baker, 817-390-7714 Twitter: @MaxBBaker

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