Denton’s hydraulic fracturing ban was passed with great fanfare in November, but early Wednesday morning the City Council was forced to take it off the books because of a new state law and pending lawsuits.
The council voted 6-1 to repeal the ordinance because it had been rendered unenforceable by House Bill 40, a law signed by Gov. Greg Abbott last month that prohibited cities from adopting such bans.
The council said repealing the ban was “in the overall interest of the Denton taxpayers to strategically repeal the ordinance,” a statement said. “Doing so not only potentially reduces ongoing court costs and attorneys fees related to ongoing litigation” but it also “significantly mitigates problems and perceptions associated with operational discrepancies between the ban ordinance and newly-adopted state law.”
“Council members emphasize this decision was not taken lightly, and that the City Council is looking to the long-term interests of this city by balancing all concerns and concluding the litigation on the matter,” the statement said.
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Repealing the ordinance came a day after the Texas Oil and Gas Association and the state’s General Land office went back to court seeking to toss out the ban on hydraulic fracturing and a moratorium the city used to stop drilling while it reworked its overall gas drilling ordinance.
TXOGA and the land office sued Denton in November, the day after its citizens approved the ban on hydraulic fracturing. Their amended petitions filed Monday seek declaratory judgments tossing out the moratorium and the ban and an injunction preventing city officials from enforcing them.
Both amended lawsuits contend that HB 40, passed during the recent legislative session prohibit cities from halting development of natural gas reserves, even if only for a short time.
“Both the drilling moratorium and the hydraulic frac ban, which in effect completely prohibit the development of the Barnett Shale within the city of Denton, are unconstitutional because they are expressly pre-empted by HB40,” the TXOGA lawsuit states.
Denton has not been enforcing the ban. Earlier this month, Vantage Energy began fracking at a well site it operates northwest of downtown Denton. Eight protesters supporting the ban have been arrested at the site, including a 92-year-old mother and her son Tuesday.
The council put off repealing the ban two weeks ago even while admitting the ban is unenforceable.
On the agenda were two options — one to amend the ordinance regarding the ban but declare it unenforceable, and the other a new ordinance simply saying that it’s unenforceable, said Lindsey Baker, a spokeswoman for the city. Repealing the ban was not on the agenda, but the council has the authority to repeal the ban if members want to, she said.
Eventually, the council chose to repeal the ordinance.
“HB 40 is the law now in the State of Texas. Denton will comply with it so long as it remains valid,” the council statement said.
Council was warned
Denton has been struggling to figure out what to do with its fracking ban, the first in Texas, since the passage of HB40, which limits the ability of cities to regulate the oil and gas industry.
HB40, also known as the Denton fracking bill and championed by the oil and gas industry, reasserts state control over the drilling process in Texas. The new law includes a four-part test for allowing cities to regulate drilling operations above ground, including issues such as emergency response, noise and setbacks. But the law says those controls must be “economically reasonable” and can’t hinder the work of a “prudent operator.”
To provide some comfort to cities with long-standing ordinances, such as Fort Worth, the bill contains a “safe harbor” provision that says any ordinance or other measure in effect for five years that has allowed drilling should be considered economically reasonable.
City Attorney Anita Burgess warned the council two weeks ago that while the initial lawsuits filed by TXOGA did not take HB40 into account, they could be amended to include issues like setbacks, banning saltwater injection wells and blowout prevention measures.
Burgess also told the council that the ordinance’s fracking ban was unenforceable and that the city was negotiating with industry and state attorneys about settling the lawsuits. TXOGA’s petition filed Monday says the “parties remain in dispute” over the enforceability of the city’s ordinances.
As of earlier this month, the city had spent about $219,600 defending the fracking ban in court. It had spent another $622,700 writing, developing and defending its overall gas well ordinance since 2009, far less than the $1 million the industry has said it spent since the ban was enacted.
But in their latest pleadings, TXOGA and the land office still make it clear that they believe what Denton has done does not comply with the law and they want the courts to put a stop to it.
“The drilling moratorium and the hydraulic frac ban … undermine Texas policy and invade the province of the agencies tasked with regulating this state’s oil and gas resources,” documents state.
Tough to swallow
Municipal officials from across the state opposed HB40 for being too ambiguous and said it ultimately will face court challenges. But environmental and city attorneys have warned that Denton is not the best place to do so, given its checkered past in dealing with drilling.
They said a negative ruling in Denton could make it difficult for other cities to enforce their drilling ordinances.
Jim Bradbury, an environmental lawyer who helped write Fort Worth’s drilling ordinance, said the new pleadings by TXOGA and the state are short of what he and others have been worried about: a challenge to the city’s entire drilling ordinance, not just the ban.
He said Denton needs to get rid of the ban and be done with it.
“Why continue to give TXOGA a stick to beat you with?” Bradbury said.
But both Bradbury and Mansfield Public Safety Director Bill Lane said an argument can be made to defend a moratorium, which other cities have also used since urban drilling’s early days.
Lane, who is an attorney, said as long as a moratorium is adopted to allow a city to study traffic or public safety — issues that HB40 allows cities to regulate — it can be done.
Denton imposed its moratorium in May 2014 before the fracking ban was approved by voters as it sought to update its ordinance. The city eventually extended the moratorium to August, and the council was set to discuss the overall ordinance again at its meeting Tuesday.
“Pandora’s box has been opened,” Lane said. “Everyone is going to have to step back and figure out how to live with them.”
Lane said the new filings by TXOGA and the land office are a signal to Denton that they “mean business.”
“It’s like that cheap steak in a steakhouse. You keep chewing and chewing and you can’t get it swallowed. But that is where we are,” he said.
Max B. Baker, 817-390-7714