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Fracking a "Nuisance," Denton Tells Court

The first city in Texas to ban hydraulic fracturing tells a court it has every right to do so, calling the oil and gas extraction technique a “public nuisance” with "offensive results."

Fracking in Fort Worth, Sept. 27, 2013

One day before its first-in-Texas ban on hydraulic fracturing is set to take effect, Denton called the oil and gas extraction technique a “public nuisance” that the North Texas town has the right to regulate. 

“Those activities have caused conditions that are subversive of public order and constitute an obstruction of public rights of the community as a whole,” Denton’s attorneys wrote in a legal brief filed Monday. “Such conditions include, but are not limited to, noise, increased heavy truck traffic, liquid spills, vibrations and other offensive results.”

The argument came in the city’s two-page response to a lawsuit filed by the Texas Oil and Gas Association just hours after Denton voters overwhelmingly approved a ban on hydraulic fracturing – widely known as fracking – on election night Nov. 4. 

Texas’ largest petroleum group is asking a Denton County district court to declare the ban invalid and unenforceable, saying it infringes on the state’s right to regulate drilling – and mineral owners’ right to develop their resources.

“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 chief justice of the Texas Supreme Court, said shortly after the group sued. (Phillips is now a lawyer with the firm Baker Botts, which is representing the petroleum group in the dispute.)

In its response, Denton said the petroleum group did not identify specific state regulations that make its ban unconstitutional.

"The suit is premised on the [Railroad Commission of Texas] completely occupying the field of regulation," said Jim Bradbury, a Fort Worth-based lawyer who focuses on environmental and energy issues. "Denton is rightly seeking to have them identify the actual regulations that supposedly occupy the field."

Denton’s measure does not prohibit drilling outright; it would apply only to fracking, which involves blasting apart underground 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. 

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.”

It is unclear where fracking falls on that spectrum.

The lawsuit is one of two challenges Denton faces in the aftermath of its vote. The Texas General Land Office filed a lawsuit in Travis County, saying the ban threatens the state's royalty interests, which flow into the $37.7 billion Permanent School Fund.

On Monday, Denton’s attorneys asked to move that suit to Denton County, arguing it’s a “mandatory venue” for a case concerning property interests there.

Three private law firms are helping the city defend the ban. Denton officials say they can tap a $4 million "risk fund" for such matters. 

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