DALLAS (CN) – The Texas energy lobby wasted no time responding to Denton voters’ approval of a first-in-state fracking ban, suing the city within hours of the polls closing.
The Texas Oil & Gas Association sued the city in Denton County Court Wednesday morning, claiming the ban is preempted by state law, and violated the Texas Constitution.
Representing more than 5,000 companies in the state’s oil and gas industry, the association claims the ban “undermines” the state’s already “comprehensive” regulation of oil and gas development.
The Texas General Land Office – a state agency – filed a separate suit Wednesday in Travis County Court against Denton’s ban.
The Land Office’s new leader, George P. Bush, was elected Tuesday and will take office as Texas Land Commissioner in January.
In its lawsuit, the Texas Oil & Gas Association claims the Texas Railroad Commission and Texas Commission on Environmental Quality have exclusive powers granted by the Legislature to regulate the industry.
Fracking, also known as hydraulic fracturing, is the practice of drilling and injecting highly pressurized fluid to break shale rocks to release natural gas. The practice has been popular in the vast Barnett Shale in North Texas, as rising energy prices have made the expensive process more profitable.
Other cities in the region have tried to regulate fracking due to environmental concerns by citizens. Denton, pop. 123,000, northwest of Dallas, is the first city to ban it outright .
Voters on Tuesday approved the ban with over 58 percent of the vote. It is set to take effect in December, pending approval by the Denton City Council.
The seven-member council unanimously agreed to place the measure on the ballot in July after a grassroots campaign amassed the required 2,000 signatures.
“The ordinance’s complete ban second-guesses and impedes this state regulatory framework,” the Oil and Gas Association says in its 18-page complaint.
“The ban will result in the total inability to develop hydrocarbon interests within the city because wells in Denton produce gas from the Barnett Shale, and the only way to produce such gas in commercial quantities is through the use of hydraulic fracture stimulation of this dense shale formation that would not otherwise economically produce.”
The association claims the ban “directly conflicts” with Railroad Commission and TCEQ regulations.
“The Railroad Commission has granted permits to TXOGA’s members to drill horizontal wells within the Denton city limits,” the complaint states. “The Railroad Commission and the TCEQ have broad authority to regulate each of the ‘impacts’ and ‘dangers’ listed in the ordinance – and have done so with unmistakable clarity … the Hydraulic Frac Ban, under the guise of regulating these various alleged ‘impacts’ and ‘dangers,’ is nothing more than a complete ban of hydraulic fracturing, an act that is in direct conflict with existing state regulation.”
The association claims the Railroad Commission has “sole responsibility” to regulate ground and surface water contamination.
Immediately after voters approved the ordinance, Mayor Chris Watts made clear the city’s readiness to defend the ban in court.
“The City Council is committed to defending the ordinance and will exercise the legal remedies that are available to us should the ordinance be challenged,” Watts said Tuesday evening. “The City Council is committed to continuing the review of our gas well ordinance to ensure the utmost health, safety, and welfare of our residents, and we will continue to work with industry representatives to ensure full compliance with our gas well drilling ordinance.”
Drilling watchdog ShaleTest.org released a report in September stating that toxic emissions were found in the air at several area playgrounds that exceeded long-term exposure limits imposed by the state. The report stated that at sites it tested in Denton, Dish and Fort Worth, levels of carcinogenic benzene exceeded levels allowed by the TCEQ.
“Although emerging science confirms that fracking-related air pollution is a health risk, there’s no agreement yet on ‘how close is too close’,” ShaleTest director Calvin Tillman said in September. “These results suggest that sometimes ‘miles away’ can be too close.”
After the lawsuit was filed, TXOGA said it was “disappointed to see voters in Denton” pass the ban.
“Many of the wells in Denton cannot be produced without hydraulic fracturing, so a ban denies many mineral interest owners the right to gain value from their property, despite the State’s public policy in favor of developing natural resources,” it said in a statement. “TXOGA respectfully acknowledges differing opinions among local officials, residents, community groups, and companies on the legality as well as the efficacy of this type of ordinance.”
TXOGA seeks declaratory and injunctive relief to stop enforcement of the ban. It is represented by Thomas Phillips with Baker Botts in Austin.
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