Breaking: No Action Taken on a Proposal to Repeal Denton, Texas Fracking Ban

onJun 3, 2015 @ 08:09 PDT

Denton’s city council decided not to vote on a repeal of the city’s fracking ban, after almost six hours of discussion on the topic at a public meeting last night.

The vote to repeal the ban was called for shortly after Texas Governor Greg Abbott singed HB40 into law, making Denton’s fracking ban illegal.

Oklahoma’s governor Mary Fallin signed a similar law on May 31, making bans on the fracking industry illegal there too.

The entire city council and Denton’s mayor Chris Watts expressed displeasure with HB40.

The mayor disclosed that the city’s legal counsel advised that repealing the fracking ban is necessary in order to defeat HB40. They were told there are better ways to challenge the law than by defending the fracking ban, and that, if the ban isn’t repealed, both the Texas General Land Office and the Texas Oil and Gas Association, which have sued to block the ban, could ask for a judgment under HB 40 that could result in setting a legal precedent.

“It isn’t just about Denton, anymore,” Councilman Roden told DeSmog before the meeting. ”HB40‘s reach goes way behind fracking, it threatens all local ordinances industry doesn’t like. Now every city with oil and gas activity has to grapple with basic questions like, ‘How can we defend a setback greater than 100 feet?’”

Setbacks are the distance that industry must keep its operations from homes, schools and businesses. The Texas Railroad Commission, which regulates the oil and gas industry, has not enacted setback distance requirements, so many municipalities have established their own.

While Roden believes “major petrochemical extraction operations are incompatible with neighborhoods and urban environments,” he said he was willing to repeal the ban if doing so makes the fight to overturn HB40 more ‘win-able.’

But because no motion was made to vote on repealing the fracking ban, the council and the public now have more time to figure out if there is a strategy to fight HB40 that doesn’t require repealing the ban.

Adam Briggle, the president of the Denton Drilling Awareness Group, was one of over 40 speakers who asked the council to put off the vote to repeal the ban. He and the other speakers think the community needs more information and time in order to respond to the possibility of the ban being repealed.

Deborah Goldberg, the group’s attorney advised the group that repealing the ban was a necessary tactic to ensure overturning HB40 and that they must find a better way to fight HB40 than defending the ban. Goldberg worked with Earthjustice to successfully defend Dryden, New York’s fracking ban.

“Though repealing the ban is heartbreaking to those of us who fought for years to protect Denton from fracking, it is the right thing to do,” Cathy McMullen, the former president of the Drilling Awareness Group who was instrumental in making the ban a reality, told DeSmog. The situation is complicated but “If you understand the difference between surface rights and mineral rights, and how the Texas court systems works, repealing the ban makes sense,” she explained.

Surface rights address issues that deal with activities that take place above the ground, including set back distances and the amount of emissions and noise industry can make. Mineral rights deal with all things underground, including fracking and injection well use.

“We have protective ordinances that regulate surface activity,” McMullen said. And though she believes the ordinances are far from perfect, they do a lot of good. Without them things would be much worse.

Since municipalities are already regulating surface rights, McMullen believes any city fighting to enforce surface regulations is fighting a battle that can be won.

But regulating mineral rights, the way a fracking ban does, is another matter. That is why legal advisors for the city and the Denton Drilling Awareness group believe there is a better way to fight HB40 then by defending the fracking ban.

While HB40 clearly makes fracking bans illegal, the law is ambiguous when it comes to local ordinances. And there is no doubt industry will begin challenging more ordinances. HB40 states ordinances must be ‘commercially reasonable,’ but because it doesn’t define what reasonable is, you can fight it,” McMullen said.

Since any case against the fracking ban will be hard to beat, repealing the ban would be a strategic action, stopping industry’s challenge against the ban before it gets to court.

“Those who are against repealing the ban are thinking with their heart and not looking at the bigger picture,”McMullen said. Her goal since she began fighting for the ban is unchanged. She wants to make sure Denton is protected from oil and gas drilling, and though repealing the ban might seem counter intuitive, it is the best way to protect the city.

McMullen believes that if industry wins its case against the fracking ban, that victory will make HB40 constitutionally viable and once that precedent is set, ordinances enacted by over 300 Texan cities will be in jeopardy.

“Legislators overstepped their powers trying to control local ordinance and that cannot stand,” she said. “If HB40 is found to be unconstitutional when it is challenged in a case related to local ordinances, then Denton can re-instate the fracking ban if the case wins. However if we let industry challenge the ban on fracking bans and lose, we also lose the ability to keep hard fought ordinances in place too.”

“The oil and gas industry has so corrupted state law that, thanks to HB40, it’s now in Denton City government’s interest to act against the overwhelming opinion of Denton City residents,” Sharon Wilson, Earthwork’s Gulf Regional Organizer told DeSmog. In her latest blog entry, she listed all the cities across Texas that will potentially be stripped of their local ordinances if Denton challenges the ban and loses.

Other cities in the Dallas-Ft. Worth area also worry about the impact of HB40. Lance Irwin, a founding member of the Mansfield Gas Well Awareness told DeSmog:

“Armed with HB40 and money, industry can do whatever it wants and Mansfield at some point will find it is stuck with a monster they helped create, Now protecting your family and home from toxic emissions and earthquakes is indefensible or illegal.”

Arlington, Texas recently confronted the dangers that accompany the fracking industry, experiencing a blowout of a Vantage well in April that threatened a residential neighborhood.

Tammie Carson, a member of Liveable Arlington, a grassroots organization, told DeSmog, “It is crucial now for groups fighting against fracking to band together.”

Meanwhile in Oklahoma, while some residents are calling for a moratorium on injection well use until the current wave of earthquakes stops, Oklahoma’s legislators stopped any move citizens might make to ban injection well use and fracking. The state’s anti-fracking ban law came as the record number of earthquakes in the state continues to increase.

“Funny how local control is only fitting when it benefits the state government. It seems that being a person in Oklahoma means you are a second-class citizen,” Angela Spotts, Oklahoma homeowner and one of the founders of Stop Fracking Payne County, a grassroots organization, told DeSmog.

“Our risk grows everyday for a life threatening man-made earthquake and they actually cut the funds to the Oklahoma Corporation Commission, the agency that regulates industry. Most in Oklahoma don’t realize that the legislature also cut funds that go to our roads, bridges and infrastructure that are being damaged just like our homes by the earthquakes,” she said.

In Denton, some have taken defending the fracking ban into their own hands. Since fracking activities resumed on June 1, six people have been arrested for blocking the entrance to a Vantage Energy fracksite and more acts of civil disobedience are planned.

At the council meeting members of the Denton Drilling Awareness group encouraged the council members and the mayor to join them in participating in civil disobedience. One council member said he would consider it.

McMullen has chosen another route.

“Now is the time for coalition building and getting like-minded politician elected,” she said. “The ones we have are so deep in the pocket of the oil and gas industry that they cannot see daylight anymore.”

The council is taking more time to consider its options, despite legal counsel advising them to repeal the ban.

Meanwhile, the fracking industry is back in action, despite a few residents temporarily blocking trucks from entering a frack site for two days in a row.

Whatever happens next, Denton’s hard-earned fracking ban won’t be legally implemented anytime soon.

By Julie Dermansky

Julie Dermansky is a multimedia reporter and artist based in New Orleans. She is an affiliate scholar at Rutgers University’s Center for the Study of Genocide and Human Rights. Visit her website at www.jsdart.com.