Let the freakout – or perhaps I should say “frack-out” – begin.
Nearly 59 percent of voters in Denton, which sits on the edge of gas-rich Barnett Shale, approved a measure banning hydraulic fracturing, or fracking — the method of oil and gas extraction that has led to a domestic energy boom.
Proponents called the measure a last-ditch effort to address noise and toxic fumes that spew from wells just beyond their backyards, after loopholes and previous zoning decisions rendered changes to the city’s drilling ordinance unenforceable.
“It means we don’t have to worry about what our kids are breathing at city playgrounds,” Cathy McMullen, a nurse and president of Frack Free Denton, a grassroots group that pushed the ban, said in a statement. “It means we don’t have to worry about our property value taking a nose dive because frackers set up shop 200 feet away.”
The ban’s passage will almost certainly trigger litigation, with energy companies and royalty owners arguing that state drilling regulations trump Denton’s and that the city was confiscating mineral rights, which have long been dominant in Texas law.
Several state lawmakers have promised to fight the ban in Austin.
The Denton measure does not technically prohibit drilling outright; it would apply only to fracking, which involves blasting apart rock with millions of gallons of chemical-laced water hauled in by trucks. But opponents of the ban say it would make gas beneath the city too difficult to profitably tap – amounting to a drilling ban.
Energy companies pumped big money into effort to defeat the ban. The Denton Record-Chronicle called it the most expensive campaign in the town’s history by far.
In a lawsuit filed Wednesday in Denton County district court, the Texas Oil and Gas Association called the ban unconstitutional. Because of current shale economics, the group says, the measure amounts to a ban on all drilling – denying mineral owners their property rights. TXOGA asked the court to declare the ordinance invalid and unenforceable, and said state law should supersede Denton’s.
“While home-rule cities like Denton may certainly regulate some aspects of exploration and drilling, TXOGA does not believe that they may enact ordinances that outlaw conduct, like hydraulic fracturing, that has been approved and regulated by state agencies,” Tom Phillips, a former Texas Supreme Court justice, said in a statement. Phillips is now a lawyer with the firm Baker Botts, which is representing the petroleum group in the dispute.
Texas law says the state intends its mineral resources to be “fully and effectively exploited,” but courts have said the power is not absolute. The Railroad Commission has jurisdiction over all oil and gas wells in the state, with authority to adopt “all necessary rules for governing and regulating persons and their operations.” Local governments have the right to impose reasonable health and safety restrictions, and the Legislature has granted most Texas cities, including Denton, the power to “regulate exploration and development of mineral interests.”
A key question is where fracking falls on that spectrum.
Legal experts say Texas courts tend to favor oil and gas interests. But they suggest Denton could make a compelling argument that a fracking ban would not wipe out all options to drill.
Any lawyers out there want to take a crack at that? I’m guessing they had this suit all written up and ready to go well ahead of time, just in case. The Lege will have their back regardless of the outcome in court, but I’m sure they’d like to have an injunction in hand. It was fun while it lasted.
One shorter term effect of this is that it may have helped Democratic turnout in Denton County. A comparison to 2010 for the top three offices:
Van de Putte 45,017
Note how the R vote totals are basically flat, while the Dems are up about 10,000. Still a big win for the Rs, but this is the sort of thing I’m talking about when I say their turnout was down. Anyway, it was a small bit of sunshine on an otherwise dark and stormy night.