Seven months after Denton voters passed Texas’ first ban on hydraulic fracturing, the City Council Tuesday night considered repealing the ordinance, saying a new state law passed during the just-ended legislative session made it unenforceable.
House Bill 40, championed by the oil and gas industry and signed into law by Gov. Greg Abbott last month, reasserts state control over the drilling process in Texas and makes bans like the one approved by 59 percent of Denton voters in November illegal.
Yet, after more than five hours of listening to a chamber full of citizens — including a few fresh out of jail following their arrest for blocking the entrance to a drilling site where hydaulic fracturing was being used in defiance of the ban — the council decided to take no action, letting the issue die shortly after midnight.
By doing nothing, council members said they would take the additional time to consider their next move, including leaving the ordinance, the only one of its kind in Texas, on the books but simply not enforcing it.
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“I’m good with giving it more time,” Mayor Chris Watts said in recommending that they put off taking a vote, something many of those speaking to the council asked them to do. “In the end, we have to decide what is right. We have to do what Denton thinks is right.”
Throughout the meeting council members expressed their frustration with what state lawmakers did and appeared to be struggling with exactly what to do. The city already has been sued by the Texas Oil and Gas Association and the Texas General Land Office over the ban.
“While we would like to drive the bus ... right now House Bill 40 is the law of the land,” said Council member Kathleen Wazny.
Adam Briggle, president of the Denton Drilling Awareness Group, the grassroots organization that successfully campaigned for the ban last year, asked the council to postpone any decision Tuesday, but acknowledged that eventual repeal of the ordinance may be necessary.
“We find ourselves at a melancholy crossroads,” said Briggle, an associate professor at the University of North Texas who was arrested at the drilling site on Monday.
The city’s inability to enforce the ordinance “is disheartening and confusing,” he said.
But, he said, even the group’s lawyers have told them that the Denton ordinance may be a bad test case and counseled them that eventually defending the ordinance in court may make for bad law.
But Denton resident Jim McKinney urged the council to enforce the ban and trigger the subsequent legal challenges so that the courts can sort out if HB40 or the Denton ban should stand.
“As it is, neither law has been applied so there is no legal battle,” McKinney said. “It is very frustrating for us as voters” to see the ban simply go away.
City Attorney Anita Burgess told the council that the ordinance is unenforceable and that the city is already negotiating with industry and state attorneys about settling the lawsuits but no agreement has yet been reached.
Many cities in the 5,000-square-mile Barnett Shale in North Texas have ordinances pertaining to gas drilling to protect the health and safety of residents.
The new state law includes a four-part test for allowing cities to regulate drilling operations above ground, including emergency response, noise and setbacks. But the law says those controls must be “economically reasonable” and can’t hinder or prohibit the work of a “prudent operator.”
To provide some comfort to cities with longstanding 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.
Some municipal officials opposed the legislation, saying it erodes municipal powers and is too ambiguous. City rules banning saltwater injection wells might not survive, they said. Blowout prevention measures may be gone, and requirements for capturing well site emissions could be compromised.
Some of the issues, ultimately, may be decided by court challenges, city attorneys said.
Seven stages of grief
Activists in Denton said that they sought the ban out of desperation. The Denton Drilling Awareness Group emerged after residents became frustrated with the city when a company was allowed to search for natural gas within a few hundred feet of homes. They also thought the state was not responsive to their complaints.
The group was concerned about the effects on public health, welfare and safety of allowing the injection of water, gels and acids into aquifers, as well as the venting of gas, noise issues and site security.
The group collected nearly 2,000 signatures to put a referendum on the ballot. The ordinance did not ban all drilling, just hydraulic fracturing, but industry representatives said it effectively banned drilling since it is not cost-effective to drill conventional wells that aren’t fracked.
The council was required to hold a public hearing and vote on the proposed ordinance. In the end, on two procedural votes, the council opted not to vote on the ban themselves but to put the referendum on the ballot.
Many of the activists who led the drive for the ban are continuing their fight. Six have been arrested at the drilling site northwest of downtown that is being operated by Vantage Energy, three Monday and three Tuesday. The company has said the protests have not significantly affected operations.
Vantage has been in close contact with city staff since it decided to start fracking in Denton, said Seth Urruty, vice president of development, in a prepared statement.
“Open communication has been central to a productive working relationship between our company, Vantage Energy, and the city of Denton. Since the ban on hydraulic fracturing took effect in 2014, we have maintained regular dialogue with Denton city officials,” Urruty said.
“Vantage Energy is proud of the work we do and we have become known throughout the Barnett Shale as a respected, responsible operator. We work hard to be a good neighbor in the communities where we work and Denton is no exception.”
At least one industry represenatitve crticized the protesters, saying that when theys were arrested Monday, they were all smiles and went out for tacos after being released from jail.
“Denton’s fracking ban is the most expensive ban in America, imposing over $1 million in costs for local taxpayers, which is ten times more than what Frack Free Denton promised voters,” said Steve Everley, a spokesman for North Texans for Natural Gas, a grassroots organization that claims membership of more than 100,000 people who support responsible natural gas development.
“Drilling opponents certainly have a right to protest, but it’s a little odd that they would compare themselves to civil rights leaders and then celebrate the whole charade with smiles and tacos.”
But Cathy McMullen, the home health care nurse who was a leader of the fracking opposition, said those who supported the ban are still going through the seven stages of grief. They learned only last week that the city was considering repealing the ban.
“It has to be repealed, but no one wants to hear it yet,” said McMullen, who chose not to speak to the council, but sat outside the chambers with her dog. “We need to go through the seven stages of grief. They are still at the anger stage. They’ve got three steps to go through to get to seven, which is acceptance.”
Max B. Baker, 817-390-7714