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First Lawsuits Filed Over Denton's New Fracking Ban

That was fast. Just hours after Denton residents voted to ban hydraulic fracturing, the state’s General Land Office and biggest petroleum group filed legal challenges to the new rule.

Fracking in Fort Worth, Sept. 27, 2013

*Editor's note: This story has been updated throughout. 

That was fast.

Just hours after Denton residents voted to ban hydraulic fracturing, the Texas General Land Office and the state’s biggest petroleum group fired off separate legal challenges to the new rule.

“This ban on hydraulic fracturing is not constitutional and it won’t stand,” said Land Commissioner Jerry Patterson, who filed a lawsuit in Travis County courts Wednesday seeking a permanent injunction against the ban. 

Patterson called the ban “arbitrary, capricious and unreasonable” and said it threatens the state's royalty interests, which flow into the $37.7 billion Permanent School Fund.

In a lawsuit filed Wednesday in Denton County district court, the Texas Oil and Gas Association also 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.

Nearly 59 percent of voters in Denton, which sits on the edge of the gas-rich Barnett Shale, approved the ban on Tuesday after the most expensive ballot campaign in the city's history. 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.

The litigation was expected, and several state lawmakers have also promised to fight the ban in the statehouse.

Frack Free Denton, the grassroots group that pushed the ban, blasted the industry association for its quick lawsuit.  

“They have apparently learned nothing from last night’s landslide vote,” a statement from the group said. “Industry could have taken this moment to address why the ban was passed. Instead they’re going to try to squash it.”

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.

“To say that this is a slam dunk [for oil and gas interests] ... I think that’s painting with an overly broad brush,” Terrence Welch, a lawyer who has helped write drilling ordinances in several Texas cities, told The Texas Tribune in July. “The property — the mineral estate isn’t left valueless. You can drill, but you just can’t frack.”

Lindsey Baker, a spokeswoman for the city of Denton, said the city has 20 days to respond to the filings. 

Neena Satija contributed to this report. 

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