What a Ban on Fracking in Denton Could Mean For the Rest of Texas

A rig contracted by Apache Corp drills a horizontal well in a search for oil and natural gas in the Wolfcamp shale located in the Permian Basin in West Texas. A successful petition in Denton could bring fracking bans to communities around the state.

Terry Wade / Reuters /STRINGER /LANDOV

A rig contracted by Apache Corp drills a horizontal well in a search for oil and natural gas in the Wolfcamp shale located in the Permian Basin in West Texas. A successful petition in Denton could bring fracking bans to communities around the state.

Come elections in November, the city of Denton could be split between two very different futures.

The Denton Drilling Awareness Group (DAG) recently got enough signatures on a petition to place an ordinance banning fracking within city limits on local ballots. Though other communities in Texas have passed restrictions on fracking, a moratorium on drilling activity within Denton could spur the rise of similar legislation across the state.

If the ban passes it will likely provoke a precedent-setting legal battle that would help clarify the authority of local governments over oil and gas operations in Texas.

Why ban fracking in the first place?

The DAG petition against hydraulic fracking, the drilling method of using water, sand and chemical injections to extract oil and gas from shale formations, cites that fracking operations “impact the City’s environment, infrastructure and related public health, welfare and safety matters.” Aside from concerns over groundwater contamination, noise pollution and air quality, drilling disposal wells that store waste from fracking have also been heavily linked with low-magnitude earthquakes.

But, according to the group, an all-out ban was a last solution in a long, unsuccessful effort to restrict hydraulic fracking through less extreme means. There are over a dozen wells within city limits, and a previous ordinance failed to prevent drilling activity near neighborhoods and residential areas.

“We saw, once the [original] ordinance was passed, the sort of futility of this compatibility strategy,” Adam Briggle, the vice president of DAG said. “The realization was that you can either have fracking or you can have a healthy city, but you can’t have both.”

Mark Burroughs, the mayor of Denton, supports restrictions on fracking but thinks that the moratorium goes too far, and worse, might be illegal.

“If it does pass, the city has to follow it,” Burroughs says. “We could be bound to enforce an illegal act, which throws into a whole panoply of open issues…. We as a city would be bound to defend it, whether we believed it was illegal or not. So it’s a real open, difficult series of issues.”

Can Texas cities even ban fracking?

In Texas, the Railroad Commission issues drilling permits for oil and gas companies. Local municipalities have very little say in where these permits are granted and how they’re handled. But cities and communities aren’t entirely helpless, either.

Aside from being able to place restrictions on things like when and where drilling activities can happen, communities can enact ordinances to protect the health, safety and welfare of their citizens.

“I think cities throughout Texas are looking at the fact that while an individually fracked well might not be that big of a deal, when you talk about lots and lots of wells and lots and lots of oil and gas facilities being located where people live, play and work, that does become an issue,” Cyrus Reed, conservation director of the Lonestar chapter of the Sierra Club, says.

Reed says negative health impacts don’t just come from fracking, but also the activities associated with fracking like increased truck traffic.

But it’s unclear if a complete ban falls under the health, safety and welfare clause.

Since the rise of fracking almost a decade ago, restrictions like the proposed ordinance in Denton have popped up in states like New York, Pennsylvania and Colorado. Courts have tended to side with municipalities, David Spence, a professor of law, politics and regulation at the University of Texas, says.

But since a full moratorium hasn’t been enacted and then challenged in Texas before, he isn’t sure what will happen.

“This issue may be enough of a hot-button issue that courts are going to really work hard to try to find a way to be able to uphold local ordinances, and at least we’ve seen a little bit of that in the northeast,” he says.

According to state law, every Texas city must obey the state’s constitution and statutory requirements. “Home rule” cities like Denton, are given a bit more autonomy and legal flexibility may be legally able to adopt a fracking moratorium.

And if the ban passes?

Almost without a doubt, if the proposed ban passes in November, it will draw legal challenges. Around the country, oil and gas companies have filed suits against fracking bans, and the state of Texas itself could get involved if it believes Denton oversteps its authority.

Lawsuits may be filed on two claims: developers or landowners may make the argument that the state rules trump local laws. Landowners can also claim their mineral rights were taken without compensation, a federal constitutional claim called regulatory takings.

“These two types of litigation are about to become much more common,” Spence says. “There are hundreds and hundreds of municipalities nationwide who have passed anti-fracking ordinances recently, so these kinds of cases are going to be bubbling up through the courts a lot in the near future.”

Though no fracking restrictions have been challenged in Texas so far, Briggle is encouraged by rulings on local regulations against the oil and gas industry.

“You can see that municipalities have a winning track record when it comes to case law history against the oil and gas industries in Texas, and I think we’ve written a smart ordinance here,” he says, “But you’ll never know until it goes through a court system.”

Reed believes that a successful ban in Denton could lead to similar bans in other cities. He says it shows “political will and some momentum that people really want better regulations, better enforcement, better inspections of fracking activity.”

Briggle, however, says that the group of Denton citizens isn’t necessarily interested in seeing similar bans enacted; it only wants what is best for Denton.

“The trend that I hope catches on is local self-determination … now whether that means folks want to ban fracking everywhere, I don’t know,” he says. “To me, the more important thing is that communities are able to determine that for themselves.”

Comments

  • RatDog

    “rise of fracking almost a decade ago” … The first well was frac’d in March of 1949 (that’s sixty five years, not a decade), and has been performed hundreds of thousands of time since then. Hydraulic fracturing of horizontal wells is simply a different application of an old technique. A technique, by the way, that has not caused any significant disruption to the environment, massive earthquakes, or dogs and cats to live together.

    • http://westchestergasette.blogspot.com/ WCGasette

      Hello, RatDog. That’s an appropriate name. So, this new drilling technique is “simply a different application of an old technique.” Not so, RatDog. Let’s go to class, shall we?

      As you know, In the olden days of “Conventional” drilling, they didn’t drill down up to 12,000 feet and at a certain “kick-off” point turn the drill bit horizontally and drill up to a mile in shale rock. This new “technique” requires massive amounts of “fresh water,” chemicals and sand (to keep the fractures open) so the gas way down deep can rise to the top. They don’t call it “UNconventional” drilling for nothing.

      http://www.forbes.com/sites/christopherhelman/2012/07/19/billionaire-father-of-fracking-says-government-must-step-up-regulation/

      There’s the bell! Class dismissed.

  • http://westchestergasette.blogspot.com/ WCGasette

    The story talks about a ban and a “moratorium.” These are two different things. A “Fracking Ban” is different from a Moratorium since a Moratorium Ordinance has a time-frame and might be lifted at any time. Please clarify. Thank you.

  • Mary Sweeney

    “‘I think cities throughout Texas are looking at the fact that while an individually fracked well might not be that big of a deal, when you talk about lots and lots of wells and lots and lots of oil and gas facilities being located where people live, play and work, that does become an issue,’ Cyrus Reed, conservation director of the Lonestar chapter of the Sierra Club, says.”

    This is a problem encountered by all areas with shale gas extraction: the number of shale gas wells keeps growing and growing and growing because each individual well depletes rapidly. It is not as if they can put a few shale wells in a town in an area that is zoned for industrial activity and keep everyone happy. The wells (and pipelines and compressor stations) end up taking over the town and being sited near homes, schools, busy roads, existing businesses and so on. Shale gas extraction industrializes areas that were formerly rural or residential. To quote again, from the article above: “The realization was that you can either have fracking or you can have a healthy city, but you can’t have both.”

  • Angrywhitey

    I don’t want any ordinances that would cause my city get sued. Farmers Branch, Texas recently spent over 10 million defending itself because they tried to prevent illegal immigrants from renting apartments. If the citizens of the town vote for something that controversial they deserve the headache, but if only the City Council approves it that’s wrong!

    • http://westchestergasette.blogspot.com/ WCGasette

      Farmers Branch violated established law. The Dept. of Justice has all kinds of case law for that argument. An upfront Ban on Fracking in a Texas Home Rule city is a very different issue.

      • Angrywhitey

        Why is the city attorney advising against it? Why is Mayor Burroughs (also an attorney) quoted as saying it may be illegal?

        • http://westchestergasette.blogspot.com/ WCGasette

          A city saying there “could be” a lawsuit is the usual argument for arguing against a moratorium or ban. The proximity of these drilling sites to neighborhoods is criminal. Do we worry about criminals suing before they are arrested? Think.About.It.

          • Angrywhitey

            From the Seattle Times article about this same subject “The Rayzor Co., which has one of the largest mineral holdings in Denton, stands to lose about $1.75 million a year if it’s barred from fracking on its former cattle ranch. Chief executive Phillip Baker insists that fracking is the only process capable of retrieving gas from the mineral rights held by Rayzor and others” So at your job you ignore the advice of your attorney & do things they tell you not to do? Do you think a company that will lose that much money is going to go away quietly? Think about it!

          • http://westchestergasette.blogspot.com/ WCGasette

            The right to life of babies and children and families trumps any amount of money. Heavy, industrial activity and Drilling/Gas activities within a few feet of neighborhoods is a death sentence. A company that sues will have a difficult case at best. Public opinion has changed a lot as more have learned all about it.

          • Angrywhitey

            You have a company that was making 1.75 million a year all of a sudden unable to produce a product. It doesn’t matter if it is gas drilling or dog kennels the result is the same. You have changed the zoning on a piece of property & the owners of the property have been damaged! What part of that don’t you understand? Why should we as citizens have to bear the burden of your NIMBYism? Why don’t you try doing something in your own town, like banning gas pumps without recovery devices or idling trucks?

          • http://westchestergasette.blogspot.com/ WCGasette

            It DOES matter. Industry pushed the public to believe this was not heavy industrial activity. This is not simply an economic issue. It’s unfortunate that money always trumps people in your worldview.

          • Angrywhitey

            I meant it is a common legal term called “grandfathering” & it doesn’t really matter what the use, it was once “conforming” & it is now “non-conforming”. If this is allowed there will be no limit to how many things people will attempt to outlaw, because times have changed or they don’t like Wal Mart. I don’t think it is unreasonable to grandfather the permitted use!

          • http://westchestergasette.blogspot.com/ WCGasette

            Ah, but this is a mistake in zoning. An EPIC error that was strategized and pulled off by the way it was presented to our municipalities. It can be considered fraudulent since people leased their land based upon incorrect information from landmen who only wanted “the sale,” and knew very little about the process – or cared about it.

          • Angrywhitey

            This is also similar to what is happening in Dallas w. leases from the City. It’s kind of hard to claim fraud & not give companies the right to extract the minerals AFTER you have accepted the money to lease! Did you know that the City of Denton & Denton ISD have leases for many of their properties?

          • http://westchestergasette.blogspot.com/ WCGasette

            All if our cities and school systems signed leases in North Texas during the leasing frenzy. It was presented in a very competitive way. It has been a paradigm shift in Dallas since 2007 when those leases for city property were signed. It was a marathon since that decision…as citizens became educated about all of it.

          • Angrywhitey

            All what? Do you think cities should be able to keep the bonus money if the property can’t legally be developed?

          • http://westchestergasette.blogspot.com/ WCGasette

            That was a typo. Fixed it. All oil and gas development is a gamble. Investors can lose their money, too. There are NEVER any guarantees in fossil fuel mining. Never. It appears that these operators were taking a lot of risk just because they had the push from their investors to disco.

  • http://westchestergasette.blogspot.com/ WCGasette

    The article says, “Local municipalities have very little say in where these permits are granted and how they’re handled.”

    That statement is incorrect and was, in fact, what our municipalities were saying in past years. It’s what the industry reps repeated over and over again. One thing we’ve learned is that our cities have lots more “power” than they want to admit when it comes to shale gas operations inside city limits.

    Setbacks were the big debate back in 2009 and 2010. Now, Denton, TX has taken the next step and has obtained enough signatures from Denton citizens to vote for an outright ban. These powers have always been available. It’s just that our cities and the people who are in power were not interested in having that discussion. Now, in Denton, the power for making that decision is finally on a ballot. Amen.

  • Carrie Richardson Karr

    Why are people building homes right this very second across from well sights! If they don’t like it Go build your house somewhere else!! the well was there first!!!!

    • http://westchestergasette.blogspot.com/ WCGasette

      Actually, housing developers want to build homes and businesses right next to plugged wells and abandoned or inactive well sites in our region of North Texas. Currently, developers are not required by state law or municipal law to disclose this information to the “buyers.” Well sites that are simply dormant can be re-worked for further production at any point. This is something our state legislature doesn’t want to bring up simply because it would be interpreted as a negative by the oil and gas industry. Apparently, our state law makers are not very courageous when it comes to writing common sense laws that might impact their own ability to be re-elected.

  • Jim Henry

    Here is a TRUE technical paper, written by individuals with real credentials (ie Engineering degrees):

    http://fracfocus.org/sites/default/files/publications/hydraulic_fracturing_101.pdf

    It cites over 190 other technical papers (as a well written study should).

    I recommend it to everyone, whether they are for or against fracking. There is too much false science and unfounded facts floating around (http://bigstory.ap.org/article/experts-some-fracking-critics-use-bad-science).

    Just to lighten the mood I also pulled up some less technical websites for your enjoyment:

    Ten lies about fracking:

    http://www.spiked-online.com/newsite/article/ten_big_fat_lies_about_fracking/13944#.U8WcUfldWkE

    The Gas Land director hiding more facts:

    https://www.youtube.com/watch?v=e9CfUm0QeOk

    The fracking movement has a bad week because the US government realizes burning natural gas (produced from wells that are fracked is much cleaner than burning coal):

    http://energyindepth.org/national/the-no-good-very-bad-week-for-the-anti-fracking-movement/

    And of course Gas Land’s big money connections:

    http://naturalgasnow.org/gasland-part-ii-funding-help-shows-foxs-big-money-connections/

    Look I’m sorry that everyone is being lied to by the anti-fracking community. But don’t take my word for it. Open your mind and read these sources. Then call up the anti-fracking groups and challenge them. Challenge them to produce real studies, real evidence and not just false claims of ‘fracking is bad and we should study it by banning it and not allowing anyone to do it anymore’.

    Finally a word about the morals of these anti-fracking groups. They have none. Case and point: John Bryson founded the Natural Resources Defense Council (a huge environmental and now anti-fracking group) and went on to be the US Secretary of Commerce until he had to resign in disgrace because he committed a double hit and run on the same day!

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