Before Denton voters went to the polls in November to decide the fate of a citizen-proposed ordinance to ban fracking in their city, oil and gas industry representatives and supporters assured them repeatedly that passing the measure would only set the city up for lawsuits that it would most certainly lose.
Now state Rep. Phil King, R-Weatherford, wants his legislative colleagues to pass a law to ensure that voters in cities across the state never have that choice again.
The industry argument in Denton was that the Texas Constitution, state laws and Railroad Commission rules guarantee property owners the ability to extract minerals from beneath their land and sell those minerals if they wish.
Fracking is the controversial technique for oil and gas extraction that is the almost exclusive method for getting at natural gas in the Barnett Shale formation beneath Denton.
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The argument was that a ban would deny access to that gas and thus would fail in court, leaving the city with high and fruitless legal costs.
Sure enough, voters approved the ban by a convincing 59-41 margin.
And sure enough, early the next day the Texas Oil and Gas Association and the state’s General Land Office filed lawsuits. The Land Office got involved because it owns property and mineral rights in Denton County.
The legal process is ongoing. If the association and the GLO are right, it should be an easy case for the courts to decide. This could all be wrapped up in a nice legal bow, and the ordinance would go away.
It might seem like an unnecessary fight and a waste of tax dollars to some people, but we go to the bother and expense of supporting a court system because reasonable people sometimes disagree.
In this case, the people of Denton spoke loudly, having been fully warned of the risk. If they achieve nothing else, they’ve sent a strong message to the oil and gas industry that some people feel they’ve been pushed around by the industry for too long.
King would muffle that message. On Wednesday, the House State Affairs Committee held a hearing on his proposed House Bill 540.
The bill says any city that has a charter allowing residents by petition to propose new ordinances or repeal current ones would have to submit the proposals to the attorney general before calling an election.
The AG would have 90 days to determine “whether any portion of the proposed measure would violate the Texas or federal constitution, a state statute, or rule adopted as authorized by state statute” or would require that compensation be paid to any property owner.
If in the AG’s opinion any of those things are true, the city may not call an election, no matter what its voter-approved charter might say.
There’s no provision in the bill for an appeal.
It’s baffling that a local lawmaker would propose removing both voters and the courts from decisions about how Texans want to live their lives.
It takes a lot of nerve or disregard for differing points of view, neither of which are faults I would say King is known for. Still, he pushed the bill.
I say the process in Denton has been an encouraging display of democracy. The charter there allows ordinances by petition, some well-organized people took advantage of that provision, a proper election was held and voters firmly decided what the city should do.
The other part of it also has worked well. Industry advocates had ample opportunity to persuade voters. They lost, but they have the opportunity to continue their fight in court.
The courts can decide whether the new ordinance is unconstitutional or violates superior Texas laws or state agency rules. If the industry was confident of its position before the election, it should be just as confident now.
It’s far more dangerous to give one official in Austin the power to veto initiatives like this before voters even get a chance to speak.
Mike Norman is editorial director of the Star-Telegram. 817-390-7830