Tuesday night municipal attorney Terry Welch (currently Copper Canyon and formerly Flower Mound) addressed residents at a meeting organized by Frack Free Denton.
I live-tweeted from the event, which included a short presentation by Welch on legal issues around the proposed ban on hydraulic fracturing in the city limits and a question-and-answer session with the audience. You can see the chain of tweets on the Twitter fall of our main page.
The topic was especially timely since the city was just sued by a mineral owner. Welch kept it simple, letting residents know that a ban on fracking was not the same as a ban on drilling and, as such, was legal.
First, there is no real state case law for oil and gas takings, which is why there has been reluctance to try such cases, Welch said. Unlike other property rights cases where it might be clear and easy to measure what is lost, oil or gas isn’t lost in a drill-but-no-frack scenario, he said.
“The gas is still there,” Welch told the crowd.
Second, a recent Texas Supreme Court ruling on an unrelated case could be brought to bear on recent claims of vested rights. EagleRidge Energy and Devon Energy have written the city claiming that permits issued long ago for leases they hold allow them to drill under old rules. Welch’s opinion was that rights that vest for development are quite specific and don’t extend to evolving business regulations.
Third, Texas cities, particularly home rule cities like Denton, have always had the authority to regulate oil and gas to some degree. There is no pre-emption.
Health and safety always trump property rights, Welch said.
However, he said it was possible that the Texas Legislature could introduce legislation that would forbid cities from banning fracking.