Denton's fracking ban: Is it a reasonable prohibition or the taking of mineral rights?

If Denton voters adopt the fracking ban on Nov. 4, should the city expect a stack of lawsuits on the steps of City Hall on Nov. 5?

If you ask opponents of the ban, they promise years of costly court battles challenging the city's authority and asking for millions of dollars in compensation for unrecoverable minerals.

This would be the first time a Texas city has voted to ban fracking, so other cities in Texas and around the country will be paying close attention.

"There's some unique issues here that no court has decided in Texas," said Terry Welch, a municipal law attorney with Brown & Hofmeister, LLP. "It really boils down to an issue of property rights versus public health, safety and welfare."

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Hydraulic fracturing, or fracking as it's more commonly called, is the process of injecting millions of gallons of water and chemicals into a well bore to break open the shale rock, releasing oil and gas. The controversial process combined with horizontal drilling is used throughout the Barnett Shale and across the country for oil and gas development.

Tom Phillips, a former Texas Supreme Court Justice, said the fracking ban is unconstitutional and will lead to years of costly litigation for the city of Denton and its taxpayers.

Now a partner with Baker Botts, Phillips was hired to speak on behalf of the Texas Oil and Gas Association over the summer.

"I believe the proposed ordinance to ban hydraulic fracturing is unconstitutional because state regulation of oil and gas exploration and production has displaced the city's ability to ban all economically viable drilling within its borders," Phillips said in remarks to the Denton City Council in July.

Nicholas covers the energy, manufacturing, aviation and transportation beats for the Dallas Business Journal. Subscribe the Energy Inc. newsletter