City of Denton Fracking Ban Initiative (November 2014)
|Voting on Fracking|
|Not on ballot
- 1 Aftermath
- 2 Election results
- 3 Potential aftermath
- 4 Background
- 5 Text of measure
- 6 Support
- 7 Opposition
- 8 Path to the ballot
- 9 Similar measures
- 10 See also
- 11 External links
- 12 Additional reading
- 13 References
The Denton, Texas Fracking Ban Initiative banned all hydraulic fracturing, commonly called fracking, in the city limits of Denton, while still allowing other oil drilling methods under city regulation.
The approval of the City of Denton Fracking Ban Initiative on November 4, 2014 made Denton -- which was home to 121,000 residents and featured more than 270 natural gas wells in 2014 -- the first major city in the state of Texas to permanently prohibit the use of fracking within its city limits.
Less than 12 hours after the initiative was certain to pass on November 4, two lawsuits were filed against this measure. One was filed by the Texas Land Office and a separate suit was filed by the Texas Oil and Gas Association. These are just the first of many lawsuits expected against the contentious fracking ban, with threats of more litigation coming from multiple state lawmakers.
The court cases will boil down to questions of local autonomy and property rights. While state law gives authority and jurisdiction over oil and gas wells to the Railroad Commission, it gives local governments such as Denton the power to impose reasonable health and safety regulations. So the imminent court battles will revolve around where fracking lies with regard to these two powers and whether the initiative eliminates all options for profit from oil and gas drilling, thus violating property rights.
Land Office lawsuit
The Texas General Land Office filed a suit in Travis County court claiming the initiative is unconstitutional, and the confident Land Commissioner Jerry Patterson said, “This ban on hydraulic fracturing is not constitutional and it won’t stand.”
Oil and Gas Association lawsuit
Lawyers from the Texas Oil and Gas Association filed a lawsuit in Denton County court claiming that the initiative could shut down all oil and gas operations because of the condition of shale economics, and they argue that this amounts to an unconstitutional violation of property rights for mineral owners.
Tom Phillips, a lawyer with the firm Baker Botts, which is representing the petroleum group, said, “While home-rule cities like Denton may certainly regulate some aspects of exploration and drilling, TXOGA does not believe that they may enact ordinances that outlaw conduct, like hydraulic fracturing, that has been approved and regulated by state agencies."
Frack Free Denton responded by pointing to the 59 percent voter approval, saying, “They have apparently learned nothing from last night’s landslide vote. Industry could have taken this moment to address why the ban was passed. Instead they’re going to try to squash it.”
Although Texas courts historically tend to side with energy interests, Terrence Welch, a lawyer who has helped write drilling ordinances in several Texas cities, said the outcome of these lawsuits is still very much up in the air. According to Welch, “To say that this is a slam dunk [for oil and gas interests] ... I think that’s painting with an overly broad brush. The property — the mineral estate isn’t left valueless. You can drill, but you just can’t frack.”
|Denton Fracking Initiative|
Election results via: Denton County Elections Office
Before the initiative's passage, David Spence, a professor of law, politics and regulation at the University of Texas, said that if the initiative passed, which it did, it would almost certainly draw lawsuits from oil and gas companies. Spence said that he expected lawsuits based on two claims:
1) State rules outweigh local laws; and
2) Landowners have a right to the value in their land and cannot have it taken away without compensation.
Spence said, “These two types of litigation are about to become much more common. There are hundreds and hundreds of municipalities nationwide who have passed anti-fracking ordinances recently, so these kinds of cases are going to be bubbling up through the courts a lot in the near future.”
While many lawsuits have been fought over the issue of fracking and local control over the oil industry in many states, notably Colorado, the DAG initiative was the first attempt to prohibit fracking on a local level in Texas. A lawsuit over this initiative would set a precedent of paramount importance for the future of local control through direct democracy over the issue of fracking in Texas.
Proponents of the initiative are not afraid of a lawsuit. While a fracking restriction has never been challenged in Texas court, other local regulations on oil and gas operations have been upheld by the judicial system in the past. Adam Briggle, the vice president of DAG, said, “You can see that municipalities have a winning track record when it comes to case law history against the oil and gas industries in Texas, and I think we’ve written a smart ordinance here. But you’ll never know until it goes through a court system.”
The day before the Denton DAG turned in its signatures, the city council voted to impose a moratorium until September 9, 2014, on all new gas well permits and any physical drilling at new or existing sites within the city limits. The moratorium was enacted to give the city government more time to study the effects and possible dangers of fracking. Since the Denton DAG initiative was approved, it made the moratorium on fracking in the city permanent.
Fracking in Texas
- See also: Fracking in Texas
Texas has long led the nation when it comes to oil and natural gas activity. Texas holds about 23 percent of the total natural gas reserves in the United States. Texas also accounts for 22 percent of the total crude oil production in the nation.
The first written discovery of oil in Texas occurred in 1543 when Spanish explorers found oil floating on top of the Galvenston Bay. The first oil refinery in the state was opened in 1898. Texas has been associated with oil and natural gas production ever since. The modern version of fracking currently employed was first used in Texas in the late 1990s.
Below is a map of some of the oil and gas wells around the City of Denton. The public can access maps of the wells around Texas from the Railroad Commission's website here.
In Texas, the Railroad Commission regulates the oil and natural gas industry. The Texas Commission on Environmental Quality also regulates this industry to some degree. It oversees emissions, well casings and cementing, as well as off-site impacts. Much of the basis for oil and gas regulation has been set by the Texas Constitution. Throughout Texas' oil boom in the 20th century, many of the regulations the state crafted became the standard across the nation. Texas was the first state to require the disclosure of fracking fluid chemicals in 2011.
Evidence used to fuel the drive to collect signatures for the fracking ban initiative included reports from residents living along Vintage Boulevard, Bonnie Brae Street and in Southridge that drillers set up well sites as close as 250 feet from houses, in violation of the city's restrictions.
DAG campaign video"The Myth of the Local Fracking Boom: A Denton Shale Gas Short"
Early in 2013, the Denton City Council updated its oil and gas drilling rules, including the addition of a requirement that wells be a minimum of 1,200 feet from homes, schools, parks and hospitals. This was a 200 foot increase from the previous regulation. The city's new regulations also established exceptions for developers who wanted to construct new homes near already existing drilling wells. Many critics claimed the new regulations did not do enough to restrict the industry, pointing to the provision that allowed old wells to continue under the old regulations.
In October of 2013, Denton City filed a lawsuit against EagleRidge Energy, a Dallas-based drilling company, in response to allegations that the company had drilled two wells without permission and close enough to a housing development to violate the city's minimum distance buffer. The city requested an injunction to cease operation of the wells, but was denied by a district judge.
A group of Denton residents from 26 different properties took up where the city left off and jointly filed a lawsuit against EagleRidge Energy over drilling operations close to residential areas. The full legal complaint is available here. A "stand still" agreement was reached according to which EagleRidge Energy ceased operation of offensive wells. This agreement ended on May 6, 2014.
Text of measure
The full text of the initiative read as follows:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, AMENDING CHAPTER 16, “LICENSES, PERMITS AND BUSINESS REGULATION,” OF THE CODE OF ORDINANCES OF THE CITY OF DENTON, TEXAS, BY ADDING A NEW ARTICLE VII, “PROHIBITION OF HYDRAULIC FRACTURING,” GENERALLY PROVIDING THAT HYDRAULIC FRACTURING OPERATIONS ARE PROHIBITED IN THE CITY OF DENTON; MAKING FINDINGS; PROVIDING A REPEALER CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR A PENALTY; AND PROVIDING FOR PUBLICATION AND AN EFFECTIVE DATE.
WHEREAS, as a Texas home-rule municipality pursuant to Article II, Section 5, of the Texas Constitution, the City of Denton, Texas (“City”), may enact regulations not inconsistent with the general laws of the State of Texas in the interest of the health, safety and welfare of the citizens of the City; and
WHEREAS, natural gas drilling and production operations in general involve or otherwise impact the City’s environment, infrastructure and related public health, welfare and safety matters, including but not limited to noise issues, road repair issues due to use of heavy equipment, site security and signage issues, issues related to operating hours, venting of gas, fire suppression issues, lighting issues, containment systems, hazardous materials management, spill issues, operator insurance issues, environmental impairment matters and other regulatory issues; and
WHEREAS, there is an abundance of reports, studies, information and data about the effects of natural gas drilling on public health, welfare and safety, some of which reports, studies, information and data are contradictory, and due to such, many of the City’s residents have undertaken extensive study to determine what, if any, effects natural gas drilling may have on the public health, welfare and safety of Denton and its residents; and
WHEREAS, the well stimulation process known as hydraulic fracturing is used to extract oil, gas, and other hydrocarbons through the underground injection of water, gels, acids or gases, sands or other proppants along with chemical additives, many of which chemicals are known to be toxic; and
WHEREAS, during hydraulic fracturing, chemicals and waste fluid pumped into such wells may be introduced into and could contaminate drinking water aquifers; and
WHEREAS, it is the purpose of this Ordinance to protect the public health, safety and welfare, the environment, and property values by prohibiting hydraulic fracturing within the City of Denton, Texas; and
WHEREAS, this Ordinance is enacted pursuant to the right of the residents of the City of Denton to govern their own community, specifically with regard to the well stimulation process known as hydraulic fracturing, as referenced in this Ordinance; and
WHEREAS, the citizens of Denton are seeking to protect themselves from the dangers associated with hydraulic fracturing, including ground and surface water contamination, air pollution, property devaluation, and other threats to the public safety, health, and welfare; and
WHEREAS, more than ten years of experience has proved that meaningful limitations concerning hydraulic fracturing, along with other land use provisions, are ineffective for a variety of reasons, including both legal and regulatory; and
WHEREAS, the citizens of Denton recognize that their shared values of environmental and economic sustainability and a commitment to renewable forms of energy cannot be achieved if these goals are routinely thwarted by oil and natural gas producers and corporations; and
WHEREAS, it is neither the intent nor the purpose of this Ordinance to rezone property and/or otherwise engage in land use regulation authorized by Chapter 211 of the Texas Local Government Code, as amended; rather, it is the intent of this Ordinance to regulate certain aspects of business operations that impact the public safety, health, and welfare; and
WHEREAS, the citizens of Denton believe that the protection of the City’s residents, neighborhoods, community integrity, and the natural environment is an appropriate purpose for the adoption of this Ordinance and as such, the City is legally authorized to adopt this Ordinance pursuant to its police powers.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS, THAT:
The matters and facts recited in the preamble to this Ordinance are hereby found and determined to be true and correct and incorporated herein by reference as if fully set forth herein.
From and after the effective date of this Ordinance, Chapter 16, “Licenses, Permits and Business Regulation,” of the Code of Ordinances of the City of Denton, Texas, is hereby amended by adding a new Article VII, “Prohibition of Hydraulic Fracturing,” to read as follows:
ARTICLE VII PROHIBITION OF HYDRAULIC FRACTURING
Sec. 14.200. Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
Fluid means any material or substance which flows or moves whether in semi-solid, liquid, sludge, gas, or any other form or state.
Gas means all natural gas, whether hydrocarbon or non-hydrocarbon, including hydrogen sulfide, helium, carbon dioxide, nitrogen, hydrogen, casinghead gas, and all other fluid hydrocarbons not defined as oil.
Hydraulic fracturing means the process of directing pressurized fluids containing any combination of water, proppant, and any added chemicals to penetrate tight formations, such as shale or coal formations, that subsequently require high rate, extended flowback to expel fracture fluids and solids during completions.
Oil means crude petroleum, oil, and all hydrocarbons, regardless of specific gravity, that are in the liquid phase in the reservoir and are produced at the wellhead in liquid form.
Oil and gas means both oil and gas, or either oil or gas, as the context may require to give effect to the purposes of this article.
Person means any person, firm, association of persons, company, corporation, or their agents, servants, or employees.
Sec.14.201 Prohibition of Hydraulic Fracturing.
It shall be unlawful for any person to engage in hydraulic fracturing within the corporate limits of the City.
Sec. 14.202 Penalty.
The violation of or noncompliance with this article by any person, firm, association of persons, company, corporation, or their agents, servants, or employees shall be punishable as a misdemeanor and upon conviction, such person, firm, association, company, corporation or their agents, servants or employees shall be fined a sum not less than one dollar ($1.00) but shall not exceed two thousand dollars ($2,000.00), and each day any violation or noncompliance continues shall constitute a separate and distinct offense.”
All ordinances, orders or resolutions heretofore passed and adopted by the City Council of the City of Denton, Texas, are hereby repealed to the extent that said ordinances, resolutions, or parts thereof, are in conflict herewith.
If any section, subsection, clause, phrase or provision of this Ordinance, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unconstitutional, the remaining sections, subsections, clauses, phrases and provisions of this Ordinance, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Any person, firm or corporation violating any of the provisions or terms of this Ordinance shall be deemed guilty of a misdemeanor and, upon conviction, shall be punished pursuant to the provisions contained in Section 14.202 of the Code of Ordinances of the City of Denton, Texas, as amended.
This Ordinance shall be in full force and effect from and after its passage and publication as provided by law, and it is so ordained.
The group called Denton Drilling Awareness Group (Denton DAG) was behind the initiative effort.
Arguments in favor
Fracking opponents argued that the process could pollute the water and air, causing harm to both humans and the ecosystem surrounding fracking sites.
Adam Briggle, the vice president of DAG, said, “The realization was that you can either have fracking or you can have a healthy city, but you can’t have both.”
Mark Burroughs, the mayor of Denton, was in favor of restrictions on fracking but expressed his opinion that the proposed ban went too far and could land the city in legal trouble.
Oil and gas drilling companies have traditionally been willing to spend large amounts of money in opposition to laws prohibiting the process of fracking, especially in areas like Denton that have abundant shale rich in gas and oil.
Mayor Burroughs said, “If it does pass, the city has to follow it. We could be bound to enforce an illegal act, which throws into a whole panoply of open issues [sic] … We as a city would be bound to defend it, whether we believed it was illegal or not. So it’s a real open, difficult series of issues.”
Path to the ballot
The petition process for an initiative in Denton requires that valid signatures equaling 25 percent of the votes cast in the last regular municipal election be collected in a maximum of 180 days in order to qualify an initiative petition for the ballot. For 2014, this number amounted to 596 signatures, according to the City Secretary Jennifer Walters. Since the Denton Drilling Awareness Group began collecting signatures on February 18, 2014, they had until August 17, 2014, to submit the required signatures. On March 14, 2014, the Denton DAG announced that they had collected over 596 signatures and were continuing the signature petition drive to accrue as many signatures as possible. DAG President Cathy McMullen said, “We want to send a strong message to the city that the citizens want this. We need to gather as many signatures as possible, to show they’ll pay a political price if they try to thwart their constituents’ wishes.” On May 7, 2014, the Denton DAG turned in about 1,871 signatures, which was three times more than the required number. During the city council meeting on July 15, which stretched into the early morning of July 16, city council members voted 5-2 to put the measure before voters rather than approving it outright.
The DAG originally announced that it needed 571 signatures in 180 days to qualify their initiative for the ballot. This information was, apparently, based on inaccurate voting records, and City Secretary Jennifer Walters corrected this number, saying that the accurate requirement was 596 signatures, which was equal to 25 percent of the votes cast in the last municipal general election. This was 25 more signatures than the group at first thought were required.
- See also: Notable 2014 local measures
Denton, Texas (November 2014)
Athens, Ohio Issue 7 (November 2014)
Santa Barbara, California Measure P (November 2014)
San Benito County, California Measure J (November 2014)
Mendocino County, California Measure S (November 2014)
Gates Mills, Ohio Issue 51 (November 2014)
Youngstown, Ohio Issue 4 (November 2014)
Kent, Ohio Issue 21
City of Niles "Community Bill of Rights" Fracking Ban Initiative (November 2014)
City of Loveland Two Year Fracking Suspension Initiative, Question 1 (June 2014)
Youngstown "Community Bill of Rights" Fracking Ban Charter Amendment (May 2014)
Johnson County Fracking Ban Referendum (March 2014)
- List of measures on the November 4, 2014 ballot in Denton
- Denton Drilling Awareness Group (Denton DAG) website
- WFAA, "Denton fracking ban tees up local control fight," March 17, 2015
- Inside Climate News, "It's David vs. Two Goliaths in Texas Fracking Fight," November 23, 2014
- Texas Tribune, "Denton Group Seeks Local Fracking Ban," February 18, 2014
- Blog Star Telegram, "Denton groups seeks to ban hydraulic fracturing in city," February 18, 2014
- Denton Record Chronicle, "Group seeks ban on fracking," February 18, 2014
- Texas Tribune, "Denton Fracking Ban Could Spur Wider Legal Clash," July 25, 2014
- Denton Record Chronicle, "Group seeks ban on fracking," February 18, 2014
- Texas Tribune, "First Lawsuits Filed Over Denton's New Fracking Ban," November 5, 2014
- State Impact, "What a Ban on Fracking in Denton Could Mean For the Rest of Texas," April 8, 2014
- Denton Drilling Awareness Group (Denton DAG) website, archived April 9, 2014
- Dallas Business Journal, "Denton imposes moratorium on gas drilling ahead of petition seeking ban," May 7, 2014
- National Public Radio, "A Look at Natural Gas Production in Texas," accessed May 5, 2014
- National Public Radio, "Oil Production in Texas," accessed May 6, 2014
- The New York Review of Books, "Why Not Frack?," March 78, 2012
- Frackwire, "Fracking regulations in Texas," July 9, 2013
- Texas Tribune, "Denton Group Seeks Local Fracking Ban," February 18, 2014
- Dallas Observer, "Denton Homeowners Are Suing to Stop EagleRidge's "Loud and Constant" Fracking Operation," March 12, 2014
- Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
- Desmogblog, "Residents Deliver Petition to Ban Fracking to City Hall in Denton, Texas," May 7, 2014
- The Texas Tribune, "Denton Council Punts Fracking Ban Proposal to Voters," July 16, 2014
- Denton Record Chronicle, "Petition may require more signatures," February 20, 2014
- Frack-free Denton, "Fracking Ban Exceeds Signature Requirement To Get On November Ballot, In face of government opposition, group continues signature drive at local events," March 14, 2014