This week Denton, Texas became the first city in the state to ban fracking within its city limits. The ban passed with nearly 59 percent of the vote.
Many in Denton worry about how fracking and associated activities impact their health and quality of life. But opponents say the ban is bad for the economy. The drilling industry, which pumped hundreds of thousands of dollars into the campaign against the ban, is concerned with the precedent Denton could set for other Texas towns.
There may be more legal challenges on the way.
The TxOGA lawsuit asserts that “the public policy of Texas is to encourage the full and effective exploitation of our mineral resources,” says Tom Phillips, a lawyer with Baker Botts who is working on the challenge.
“The Texas legislature has passed a number of statutes giving [state regulators] the right and the duty to pass rules and regulations regarding hydraulic fracturing,” Phillips says, “because of that assumption of power by the state, no city has the right to totally ban hydraulic fracturing within the city limits.”
TxOGA is seeking a temporary injunction on the ban before it goes into effect. Even before the ban passed, Denton mineral rights owners were considering lawsuits of their own.
“We have a right to develop our minerals, and if you vote to not frack, you can’t develop your minerals,” Bobby Jones, a local mineral rights owner and campaigner against the ban told StateImpact Texas last month. “It’s gonna devalue land.”
Jones says many people expected the state of Texas to either file suit against the ban, or for lawmakers to pass legislation to end it.
“I would say the first move would be to see what the state of Texas is going to do with the city of Denton,” said Jones, “then if that doesn’t go anywhere, they better get ready for a bunch of mineral owners to file lawsuits … They’ll have to pay them off,” said Jones.
The lawsuits Jones is referring to are different from the kind filed by TxOGA. They would assert that the ban represents a taking of mineral rights owners’ private property. If those challenges are successful, the city may have to pay off mineral rights owners for blocking access to their natural gas. “It won’t be pretty, I don’t think,” Jones added.
“Those [takings challenges] are premature at this point,” Baker Botts’ Phillips says. “I would think because the law hasn’t come into effect, and therefore nothing’s been taken.”
Even if that’s the case, the prospect of multiple lawsuits and the money they would cost has supporters of the ban concerned.
“I spoke to a lawyer about what it’s going to look like when the ban passes, and he said ‘It depends on how vigorously your city defends the ban,'” said pro-ban activist Cathy McMullen, also before the vote.
“With our issue with the way that the [gas[ wells were permitted, I feel that the courts are the only solution — that’s the only solution that we have,” she said. “I welcome the lawsuits because at least somebody is paying attention to what we’re saying.”