When House Bill 40 was making its way through the Texas Legislature, it became known as the “Denton fracking bill” because the city passed the state’s first ban on fracking.
Lawmakers wanted to shut down the possibility of any other city adopting a similar ban and HB40 does that, as well as limiting a city’s ability to regulate oil and gas operations.
So logic says that a legal challenge to HB40 would likely come at the Denton County courthouse, where there are already two lawsuits contesting the city’s ban.
But Denton City Council members and attorneys familiar with the new state law, the drilling ban and the city’s drilling ordinance say that Denton should not be the test case for a challenge. Even the attorney for the local grassroots groups that fought for the ban recommended backing down from a legal showdown.
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As a result, the Denton City Council early Wednesday morning opted to take no action after hours of discussion regarding a proposed repeal of the city’s drilling ban and decided to look at its options, partially out of fear that they could go to court, lose and affect other cities’ ability to regulate urban drilling.
The city has been sued by the Texas Oil and Gas Association and the Texas General Land Office over its ban.
“It is really likely that we will lose,” said Denton City Councilman Dalton Gregory, who asked if it was better to repeal the ban or have a judge issue a broad, damaging ruling. “I think we run the risk of putting other cities in an awkward situation” of being unable to enforce their ordinances.
Jim Bradbury, an environmental lawyer who helped to write Fort Worth’s drilling ordinance, considered a model for the state, agrees. Denton is not the place to decide what is a proper setback and if a local regulation is “commercially reasonable,” as the new law dictates, he said.
“One of the threads that runs through this is that its [the city of Denton’s] regulatory and permitting approach to urban drilling has been an utter mess,” Bradbury said. “They had permits issued by the Fire Department. They regulated in fits and starts.”
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 out of bounds.
The new state 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 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 is too ambiguous. Some of the issues, ultimately, may be decided by court challenges, city attorneys said.
Denton citizens pushed for its ordinance banning hydraulic fracturing, or fracking, after they became frustrated with the city’s inability to control drillers. The regulatory landscape was patchwork, with fire department inspectors at one time issuing permits for wells at some pad sites in perpetuity, so that a producer did not have to seek a new permit for additional wells.
Adam Briggle, president of the Denton Drilling Awareness Group, the grassroots organization that successfully campaigned for the ban last year, told the council Tuesday night that their lawyer, Deborah Goldberg of Earthjustice, said defending the ban would “set a bad precedent for other cities.”
Goldberg said Denton’s ban was not enforceable under HB40 and that the lawsuits filed challenging it “shouldn’t proceed.” She also agreed with Bradbury that Denton is not the place to challenge the new state law.
“HB40 changes things very dramatically,” Goldberg said. “There isn’t a basis for trying to enforce it and defend it under the current circumstances.”
Cathy McMullen, a Denton resident who fought successfully for the ban, is convinced that the city’s ban needs to be repealed and that her city is not the place to challenge HB40.
“If we don’t repeal it and we take it to court and [lose], we may take away the power for other cities in the state to regulate oil and gas and I don’t want that on my conscience,” she said.
City Attorney Anita Burgess said the lawsuits by the Texas Land Office and TXOGA right now do not take HB40 into account. But she and other attorneys say the pleadings could be amended to include issues like setbacks, banning saltwater injection wells and blowout prevention measures.
“The two [plaintiffs] could amend their pleadings to take the ordinance apart piece by piece to see if it is commercially reasonable,” Bradbury said. “They are looking for a test case to do that. … A court ruling won’t stop with the ban.”
Mansfield Public Safety Director Bill Lane, who is also an attorney, said it will be up to the courts to decide some of the lingering issues with HB40 such as what is commercially reasonable when establishing a setback provision. And Denton is not the city to take the lead in that fight, he said.
“This is not the place to do it. It is the reason for HB40. We’re all here because Denton passed a fracking ban,” Lane said. “You might not get the result you want.”
Max B. Baker, 817-390-7714