Why Denton fracking ban is not a taking and not illegal

Despite the really crazy rhetoric coming from industry, based on established Texas law and federal law, the Denton fracking ban is not illegal and is not a taking.

Earthworks commissioned a legal opinion from Jordan Yeager the attorney who successfully defended Pennsylvania’s cities’ right to regulate fracking. You can read that legal opinion below.

My comments at the public hearing summarized that opinion. Here is an excerpt:

In order to show that this ordinance is a taking under Texas law and federal law, the proponents of this industrial activity would have to show either:

1. That the regulation eliminates all economically beneficial or productive use of the property,
2. or that the regulation creates a taking under factors established by the U.S. Supreme Court that balance private economic interests with the community’s right to protect the public

Proponents of fracking would fall flat under either test.

First, a prohibition on hydraulic fracturing does not eliminate all economically beneficial use. It does not even eliminate all mineral extraction uses, or impact the existing production from wells that have been fracked already. Many other lawful uses of the property will remain.

Second, under the Supreme Court’s multi-factor approach, Denton’s interest in protecting water supplies and other community interests would be a strong basis for a prohibition on fracking while at the same time, the prohibition would have a limited impact on mineral rights owners because it would not affect existing royalty streams flowing from already-producing wells, nor would it impact the extraction of oil and gas without the use of hydraulic fracturing. Finally, the City can persuasively argue that no one has a reasonable expectation to invest in an activity that is inherently polluting and injurious to the community, and that, at a minimum, carries uncertain risks due to the current state of science.

If the industry had operated here with anything approaching reasonableness we wouldn’t be here. But they haven’t. Now they resort to what they do best: bullying and scaremongering.

A closer look at the legal opinion, reveals federal case law that upholds a city’s right to prohibit an industry that is a nuisance.

…the U.S. Supreme Court has upheld an ordinance that prohibited brick kilns in a city without requiring evidence of a nuisance. Hadacheck v. Sebastian 239 U.S. 394 (1915). Here, Denton can show that hydraulic fracturing has and continues to pose serious impacts on “the health and comfort of the community” that strongly suggest that hydraulic fracturing is nuisance.

Denton has more than a strong suggestion that hydraulic fracturing is a nuisance. We have proof from the State of Texas that hydraulic fracturing has created a nuisance in the city of Denton. 

The state regulatory agency issued a Notice of Violation saying that an operator created a nuisance situation in neighboring backyards during fracking operations. The TCEQ issued a Notice of Violation to EagleRidge at their Bonnie Brae A4H Unit on Vintage Blvd. in Denton, Texas, on May 5, 2014. The alleged violation reads:

Investigation 1151847:

Failure to prevent the discharge from any source whatsoever, one or more air contaminants or combinations thereof, in such concentration and or such duration as to interfere with the normal use and enjoyment of property in violation of 30 TAC §1014. It was documented that Eagle Ridge Operating LLC, Bonnie Brae A4H site allowed odors generated through fracturing and flowback operations to impact nearby receptors between January 24, 2014, through February 13, 2014, through an odor log, written statement and investigator observations. Odor impacts were documented at a level that constitutes a nuisance as per TCEQ Nuisance Odor Investigations. Unpleasant odors discharged by the Bonnie Brae A4H site are documented to have occurred for more than four hours at a moderate intensity on a weekly basis. Offensive odors discharged by the Bonnie Brae A4H site are documented to have occurred once for more than 12 hours at a strong intensity.

The state has declared fracking a nuisance and the U.S. Supreme Court has upheld a city’s right to prohibit industries that create a nuisance.

On February 9, 2014, which was during the EagleRidge violation time frame, the Denton Drilling Awareness Group (DAG) took an air sample in the backyard of one of the “receptors” mentioned in the Notice of Violation. From the DAG press release:

The summa canister test, a method also widely used by Texas and federal regulators, was taken
from a Denton resident’s backyard less than 425 feet from an EagleRidge fracking operation. The tested residence is one of many adjacent to the same fracking operation. The summa test, performed near the end of the flowback process, showed that residents were exposed to levels of benzene pollution exceeding state long term exposure limits and six other compounds including acetone.

On May 5, EagleRidge sent a statement to CBS11 in response to the DAG press release.

“The company is also committed to being environmentally responsible and points to the fact that it has been in compliance with state and local government standards relating to safe drilling, fracing and ongoing operations and that it has no violations.”

That is obviously not true.

But this was not the first time EagleRidge has received a violation in Denton.

On April 23, 2013, the Texas Railroad Commision sent a request for legal enforcement to their legal department for failure to notify the district office immediately per SWR 20 (a) (I), when EagleRidge lost control of the well and had a blowout in another Denton neighborhood.

On September 11, 2012 Eagleridge Operating, L.L.C. receive an enforcement action regarding the Corbin Lease, for failure to properly dispose of waste when EagleRidge dumped waste in Hickory Creek in violation of Statewide Rule §3.8(d)(1).

Despite the despicable behavior of this one operator, it is important to remember that the Denton ban is not about one “bad apple.” Years of experience and mountains of evidence shows that the despicable behavior is industry wide. This is an industry that will not follow rules.

Comments Regarding the City of Denton's Proposed Hydraulic Fracturing Ordinance