Courts Will Take Up Case of Fracking v. Drilling

Dear Texas, welcome to Fracking 101. Your professors? Texas judges.

Denton’s vote last week to ban hydraulic fracturing within city limits drew a national spotlight, but resolved little in the bitter Barnett Shale dispute. Just hours after health and environmental advocates proclaimed victory, two opponents – the Texas Oil and Gas Association and Texas Land Commissioner Jerry Patterson – challenged the ban in court.

But this much is clear: The legal wrangling will give Texans a free course on the widely misunderstood oilfield technique that put Texas at the forefront a national energy boom.

Approved with 59 percent support, the Denton measure does not prohibit drilling outright; it would only ban fracking, which involves blasting apart underground rock with millions of gallons of chemical-laced water injected at high pressures. A frack job can take as long as 10 days, and wells are often fracked more than once.

But without fracking, opponents of the ban say, there's no profit in drilling for gas beneath the city, so in effect a fracking ban is a drilling ban.

The lawsuits argue that the ban violates the state’s right to regulate oil and gas production, and mineral owners’ rights to tap those underground resources.

Proponents called the ban a last-ditch effort to address noise and toxic fumes that spew from wells just beyond their backyards. 

Texas law says the state intends its mineral resources to be “fully and effectively exploited,” but courts have said the power is not absolute. The Railroad Commission has jurisdiction over all oil and gas wells in the state, with authority to adopt “all necessary rules for governing and regulating persons and their operations.” Local governments have the right to impose reasonable health and safety restrictions, and the Legislature has granted most Texas cities, including Denton, the power to “regulate exploration and development of mineral interests.”

A key question is where fracking falls on that spectrum.

Sorting that out will highlight the differences between terms that plenty of news reporters, lawmakers and everyday Texans often obscure.

Last week, Christi Craddick, chairwoman of the Texas Railroad Commission, said the oil and gas agency will keep issuing drilling permits in Denton despite the anti-fracking vote. Many observers and headline writers blurred the all-important distinction. For instance, one headline, in The Dallas Morning News, read: “Denton’s ban won’t stop fracking permits, Railroad Commission chairwoman says.”

Texas does not issue permits to frack.

Other examples abound. That includes journalists and others who refer to earthquakes in areas with heavy oil and gas activity as “frackquakes,” even though most experts have singled out disposal wells for oilfield waste – not fracking itself – as the likely trigger. 

Squabbling over terminology may seem trivial, but confusing the words could lead to bad policy, industry advocates and energy experts say.

“It’s become so frequently misused. The term fracking, in a lot of cases, is referred to the whole process – from start to finish," Ed Ireland, executive director of the Barnett Shale Energy Education Council, said earlier this fall at The Texas Tribune Festival. “That does have some implications when it comes to making policy – that you’re focused on the wrong thing.”

That includes efforts to limit pollution. In September, for instance, a five-university study found that cracks in poorly built gas wells – not fracking, often mentioned in that case – likely caused a prominent case of groundwater contamination in Parker County and problems in Pennsylvania. 

The researchers suggested that regulators zero in on ways to prevent future troubles by paying more attention to the well itself, rather than the frack job.

“I do think it’s an issue,” Robert Jackson, a Stanford University researcher who worked on that study, said of how “fracking” is used. “I think you just have to be careful to communicate exactly what you mean.”

Some legal experts suggest that Denton could make a compelling argument that a fracking ban would not wipe out all options to produce gas.

“The property — the mineral estate — isn’t left valueless. You can drill, but you just can’t frack,” Terrence Welch, a lawyer who has helped write drilling ordinances in several Texas cities, told the Tribune in July.

But industry advocates say current economics make drilling all but impossible without fracking, and the lawsuits cite Texas Supreme Court cases calling production in the Barnett Shale “entirely dependent on hydraulic fracturing.”

Those who pushed Denton’s ban insisted they weren’t trying to ban drilling, which would more likely jeopardize the law’s survival in court. Still, to the chagrin of industry advocates, the pro-ban campaign highlighted industry problems unrelated to fracking, including noise from drilling rigs – which are removed before a frack job – and an exploded pipeline.

Courts will now be asked to settle the legal disagreement, but will increased attention on the fracking/drilling nuance change how Texans think about fracking? Don't bet on it, Jackson said.

“I don’t think the public cares what precise step causes a problem. They just know a problem has happened,” he said.  “Educating the public is not going to solve the problem. The word’s meaning has changed.”