While Denton becomes the first city to ban fracking in Texas on Tuesday, the fight over its prohibition against the controversial drilling method is far from over.
The grassroots initiative against hydraulic fracturing, approved by voters on Nov. 4, takes effect despite threats by the oil and gas industry and state officials that it violates state law.
Since the city had imposed a moratorium on issuing gas well permits earlier this year, Mayor Chris Watts said he is not sure what immediate impact the ban will have. The ban’s imposition doesn’t mean operators must “shut down the wells and turn off the lights” on existing wells.
If operators want to “refrack,” those wells, “then we have this ban in place,” he said.
Hours after it passed, the powerful Texas Oil & Gas Association, with former Texas Supreme Court Justice Tom Phillips as its attorney, filed a lawsuit saying the ban disrupts the state regulatory framework. The state’s General Land Office lawsuit also said the ordinance was unconstitutional.
But Monday, on the eve of the ordinance going into effect, the city fired back in Denton and Travis County courts, saying that the some of the activities associated with fracking — heavy truck traffic, liquid spills, vibrations, to name a few — are the kind of public nuisances that cities routinely regulate.
The city also contends it is not usurping the power of state agencies such as the Texas Railroad Commission, which regulates the state’s oil and gas industry, if it takes steps to control activities that have caused “conditions that are subversive of public order.”
“We think there is room for the city and the state to regulate gas well development,” said Terry Morgan, a Dallas attorney representing the city. “We don’t think our approach conflicts with their authority. … We think it is defensible. How it turns out in court, we’ll find out.”
Phillips did not return calls from the Star-Telegram seeking comment. Jim Suydam, a spokesman for the General Land Office, said that his agency will “respond in court” to the city.
So far, no court hearings on the lawsuits have been scheduled and Morgan said they will meet this week with the other attorneys involved about the cases.
Cathy McMullen, leader of the grassroots Denton Drilling Awareness Group that brought the ban to the voters, has said her group plans to file as an intervenor in the lawsuits to defend the ban. They expect to announce who is representing them this week.
“It’s a group of high-powered attorneys familiar with these kind of cases,” McMullen said.
McMullen’s group collected nearly 2,000 petition signatures to put the ban on the ballot. The ordinance does not ban all drilling, just hydraulic fracturing. Industry representatives, however, say it is a ban on all drilling since it is not cost-effective to drill conventional gas wells.
“They can nuance it all day long, but it’s a ban on drilling,” said Ed Ireland, executive director of the Barnett Shale Energy Education Council, an industry-sponsored group.
McMullen’s group said it pushed for the ban as a last resort because it became frustrated with drilling and fracking near homes. While the city established 1,200-foot setbacks from residents, schools and parks, they city had previously issued permits allowing drilling at closer distances.
The lawsuits filed by the oil and gas association and the land office contend the measure adopted by the voters, by focusing on a “completion process,” triggers a legal doctrine that holds that local law can’t displace a state or federal law in the same area.
The Railroad Commission typically sets the parameters for drilling techniques while the Texas Commission on Environmental Quality usually sets what environmental guidelines will be followed.
But the city in its court filings on the industry group’s lawsuit in Denton County said that it does not specifically identify what regulations have been passed that would render the ordinance unconstitutional.
Simultaneously, in Travis County court, the city asked that the General Land Office lawsuit be transferred to Denton County.
Adoption of the ban has industry and state officials concerned that fracking bans may catch on. Last month, two California counties approved bans while another rejected one. In Ohio, one city approved a ban while three others were voted down. And in Colorado, similar ordinances were struck down by lower courts and are now on appeal.
Jim Bradbury, a Fort Worth environmental attorney who helped write the city of Fort Worth’s drilling ordinance, said the Denton situation may encourage cities to re-examine their ordinances. But he believes concerns that bans could become widespread are overblown.
“I don’t think there is going to be any brush fire. I don’t see any cities poised politically or economically to follow Denton on this,” Bradbury said.
Bradbury is more concerned about state lawmakers trying to pass legislation in the upcoming session that would restrict cities’ abilities to regulate drilling activity. State Rep. Phil King, R-Weatherford, has said he is looking at legislation that would not permit this kind of ban.
“Smarter people in this game recognize there has to be a meaningful way out,” Bradbury said.