AUSTIN — Denton residents, concerned about air quality, noise and potential water contamination, may be the first in Texas to ban hydraulic fracturing — but if they do, state lawmakers will probably push back.
Residents leading the effort call the proposed ban on the November ballot a last resort after years of negotiating for restrictions they say were ultimately trumped by state law.
Those opposed to the measure, including royalty owners and industry groups, contend the ban infringes on mineral rights and goes further than necessary to keep residents safe.
And some say the battle got out of hand because the city allowed housing developments so close to existing well permits. State law protects those permits, which has hurt previous attempts to regulate fracking in Denton.
“There are conflicts set up about how far a city can go with its home rule, and they’ll be solved at the state level,” said Ed Ireland, executive director at Barnett Shale Energy Education Council.
It’s not unusual for cities to outlaw certain activities. In the absence of state action on texting while driving and payday lending, for instance, several Texas cities have passed ordinances banning such practices.
But fracking — a huge driver of the state’s recent oil and gas boom — could prove more difficult.
Industry representatives have vowed to sue the city if the ban passes, arguing that under current law, mineral owners would have a strong case that their property was illegally taken by the government.
And unlike other states that are limiting the practice and winning concessions from the industry, key Texas lawmakers have already expressed a hesitancy to tighten statewide regulation. At least one leader on the issue says the backlash could lead the Legislature to prevent city bans.
“Texans are reluctant to move against the oil and gas industry. They don’t want to kill the goose that laid the golden egg,” said Matthew Wilson, a political science professor at Southern Methodist University.
A divisive issue
Fracking is the process of blasting water and chemicals deep into the earth to break up rock rich in oil and gas. It has freed up vast new energy resources but has brought drilling closer to residential areas.
Nearly four years ago, a handful of Denton residents began expressing concerns about the health effects of an industry operating increasingly close to people’s homes.
“We went to the neighborhoods and could hardly believe our eyes that these processes were happening right where children lived,” said Rhonda Love, a member of the Denton Drilling Awareness Group and a former professor of public health.
The city commissioned a task force in 2011 to consider potential regulations, and in January 2013, the City Council passed an ordinance that more than doubled the previous setback requirement — the space between a well and a home, school or other building — to 1,200 feet.
Shortly after, Dallas-based EagleRidge Energy began drilling at two well sites within 200 feet of a Denton subdivision, claiming its rights preceded the new setback. Company representatives declined to comment for this report.
State law doesn’t set requirements for how far wells must be built from homes. In many drilling areas around the state, different people may own the surface land and rights to the minerals beneath it. But mineral rights have priority. And existing well permits are grandfathered in state law.
“The city gave a driller a permit for a pad, and then the city gave a permit for a developer to build [a subdivision] up to 250 feet from the pad site; both sides were legally operating but that set us up for a conflict,” said Ireland, who served on the city’s task force.
Tom Phillips, a former chief justice of the Texas Supreme Court who is now an attorney for the Texas Oil and Gas Association, said that the city’s ordinance, if passed, would violate state law and could lead to lawsuits in which Denton could have to compensate mineral owners for lost income.
“If they want Texas law to ban hydraulic fracturing, they should take their cause to the Texas Legislature,” Phillips said in a July City Council meeting. “That is the only governing body in the state with the authority to grant the relief they seek.”
Politics a factor?
Proponents of the ban collected nearly 2,000 signatures to get the issue on the fall ballot. But it’s unclear how the measure will fare on the November ballot, when Denton County is expected to see heavy Republican turnout for statewide races, such as for governor. The Denton County Republican Party recently urged voters to reject the ban.
At the state level, representatives said they are not considering any laws now that would establish a minimum buffer zone between drilling operations and homes.
Rep. Jim Keffer, chairman of the House Energy Resources Committee and author of a 2011 bill requiring the disclosure of chemicals used in fracking, said imposing statewide regulations that required a certain distance between homes and wells would not be feasible.
“Dallas, Fort Worth, Denton, Arlington — they all have different setback rules because they all have different topography, different issues with their own cities. You could set a standard and then you would have to waive it all the time, you’d have to amend it,” he said.
Rep. Phil King, R-Weatherford, said the most likely action the legislature would take on the issue would be to outlaw cities from passing bans.
“If it passes in Denton, I feel very confident that there will be legislation — in fact, I’ll probably file it myself — to prohibit cities from total bans on fracking,” he said.
In addition to the economic benefits of fracking, lawmakers have benefited from oil and gas largesse. Research compiled by Texans for Public Justice found that lawmakers received nearly $12.2 million in contributions from oil and gas interests between January 2011 and June 2014. The figure made up about 7.5 percent of total political contributions.
“The influence of the industry is pervasive,” said Andrew Wheat of Texans for Public Justice. “To the extent that there is any effort to regulate these activities, it’s coming from the grassroots local government, it’s not coming from Austin.”
Follow Marissa Barnett on
Twitter at @marissambarnett.
