The City of Denton, a small north Texas city sitting on the edge of the Barnett Shale, recently passed a ballot measure banning hydraulic fracturing within the city limits. On November 5, 2014, the day after the measure passed, the city was hit with two different lawsuits.
Jerry Patterson, Texas’s outgoing Land Commissioner, and the Texas General Land Office (“GLO”), filed suit in Travis County, seeking a declaratory judgment that state law preempts Denton’s ban and that the ban is inapplicable to state-owned lands. The GLO also seeks a permanent injunction prohibiting Denton from enforcing the ban. The suit claims that only the Texas Railroad Commission (“TRC”) has the authority to ban fracking and that Denton’s ban infringes on the GLO’s responsibility to manage oil and gas leases for the benefit of Texas public schools.
The Texas Oil and Gas Association (“TXOGA”) filed suit in Denton County, also seeking a declaratory judgment that state law preempts the ban and seeking an injunction prohibiting enforcement of the ban. TXOGA is a statewide trade association that represents the interests of various oil and gas companies doing business in Texas. TXOGA claims it has standing to sue over the ban because it is seeking a declaration that the ban is unconstitutional and unenforceable, relief that applies to all entities subject to the ordinance. So, according to the TXOGA, it is unnecessary for individual members to participate in the suit. TXOGA also seeks an expedited briefing schedule, as it has no plans to conduct discovery and instead will file a motion for summary judgment imminently.
The ban was passed with 59% of Denton voters approving the measure. It passed despite opponents out-fundraising the ban’s supporters by nearly a 10 to 1 margin. However, litigation against the ban was expected. During the campaign, opponents warned the city repeatedly that several entities would likely sue the city for interfering with state law. Denton is a home rule city with the authority to pass health and safety regulations, but the GLO, TXOGA and others opposed to the ban claimed drilling regulations must come from the state legislature and statewide agencies like the TRC and the Texas Commission on Environmental Quality.
The TRC has expressed disappointment over the ban, citing how beneficial fracking has been to the nation’s economy and claiming the ban was based on flawed science. Indeed, Christi Craddick, the chair of the TRC, says the TRC will continue to issue permits for drilling in Denton. Thus, while the ban enjoys widespread support in Denton, its future is uncertain, given the various challenges it faces both in the courts and at state agencies.