What Oklahoma Can Learn From a Municipal Ban on Fracking in Texas

  • Joe Wertz
A Frack Free Denton booth at the University of North Texas. On Nov. 4, voters approved a citywide ban on hydraulic fracturing.

Crystal J. Hollis / Flickr

A Frack Free Denton booth at the University of North Texas. On Nov. 4, voters approved a citywide ban on hydraulic fracturing.

Driven by water worries, safety questions and quality of life concerns, residents in Oklahoma and states other the country have pushed for citywide bans on hydraulic fracturing.

Many of those efforts have proved successful, but, in the end, fracking bans might be more about lawyers than voters.

Using local referendums, residents in states like California, Colorado, New York and Ohio have successfully banned fracking. The anti-fracking fervor has even spread to Texas, the country’s No. 1 crude oil producer. On Election Day, voters in Denton approved a citywide ban on fracking.

In Oklahoma, Norman has been limiting outdoor water use and carwashing to remedy water supply problems brought on by drought and low levels at Lake Thunderbird. And when some residents learned that an oil and gas driller had received a permit to use drinking water to frack a well, they organized a May 2014 meeting and invited David Slottje, co-founder of the Community Environmental Defense Council, a New York-based organization that provides legal representation to those pushing for local fracking bans.

Slottje’s argument is based on an interpretation of “home rule,” the authority cities have to enact rules to govern themselves. This includes land-use rules and zoning restrictions, the basis for most local fracking bans around the country.

More than 170 communities in New York have banned fracking based on Slottje’s advice, a legal framework grassroots groups are adapting for local bans in other states.

”The law is clear here,” Slottje told the town-hall crowd in Norman. “The Constitution, the state statute, the Oklahoma Supreme Court and the Oklahoma Attorney General, all agree that you can both prohibit and regulate.”

Property Rights

In Oklahoma, local officials have the authority to regulate and restrict oil and gas activity within city limits, an ordinance that enforced a fracking ban would likely draw an immediate legal challenge, says Robert Sheets, a land-use and natural resources attorney at the Phillips Murrah law firm in Oklahoma City.

“That’s what the cities are going to have to look at: Are they taking a property right from an individual by saying, ‘You cannot drill, you cannot frack on this property.’”

The energy industry has deep roots in Oklahoma, and many of the property laws themselves were written with oil and gas interests in mind. Sheets says the justification for an outright ban would have to be steep and defendable in court, especially if royalty owners argue that fracking is necessary to produce their oil and gas property.

“You’re probably going to end up with that rational basis test,” Sheets says. “Is there a rational basis for what they’re doing?”

Don Burdick, a petroleum geologist at Panther Energy Partners.

Joe Wertz / StateImpact Oklahoma

Don Burdick, a petroleum geologist at Tulsa, Okla.-based Panther Energy Partners.

Profits and Production

Many cities in Oklahoma restrict drilling, but there are no bans on fracking. And while some residents in Norman and Slaughterville have suggested fracking bans, some cities have loosened their oil and gas rules in recent years.

In 2010, the City of Tulsa lifted its 100-year-old ban on drilling within the city limits. Petroleum Geologist Don Burdick, now with Panther Energy Partners, lead the ordinance task force.

“One thing that I think definitely has changed is the safety and sort of the environmental concerns the modern oilfield implements compared to those early days.”

One reason Tulsa reconsidered its drilling ban was the hope that drilling would bring more revenue to the city. The promise of big profits from oil and gas production — especially those most effectively unlocked by fracking — mean a lot of money could be at stake.
Both Burdick and Sheets, the attorney, say that means any future fracking ban or new drilling limitation will likely encounter immediate litigation.