Denton Council Punts Fracking Ban Proposal to Voters

DENTON – Voters will decide whether this North Texas college town will become the state's first city to ban hydraulic fracturing. 

After a public hearing Tuesday night that stretched into Wednesday morning, the Denton City Council rejected a proposal to ban the method of oil and gas extraction inside the city, which sits on the edge of the gas-rich Barnett Shale. The 5-2 vote kicked the question to the city’s November ballot, the next step in a high-profile property rights clash that will likely be resolved outside of Denton.   

“It’s a high-stakes game,” said Mayor Chris Watts, who said he voted against the proposal so that citizens would have a say. “This issue is going to be decided in one of two places: the statehouse or the courthouse.”

Fracking opponents forced the council’s vote after gathering nearly 2,000 signatures on a petition calling for a ban. The proposal would not prohibit drilling outright; it would apply only to fracking, which involves blasting apart rock with millions of gallons of chemical-laced water.

Denton, population 121,000 and pockmarked with more than 270 natural gas wells, is one of several Texas cities wrangling with questions about where to allow drilling and how strictly to regulate it. 

As drilling increasingly moves into urban areas, tension is growing between property rights above ground and sub-surface mineral rights. States, along with the federal government, regulate most aspects of drilling, including well integrity, pipeline safety, and air and water impact. Cities, however, have sought to regulate noise and to control the location of wells or related sites like compressor stations.

No Texas city has tried to ban fracking, and the prospect of a ban in Texas prompted state officials and energy industry representatives Tuesday to join an overflow crowd at city hall.

“The whole world is watching Denton, Texas,” said Chris Faulkner, CEO of Dallas-based Breitling Energy, who urged the council to reject the ban.

The ban's proponents, led by an organization called the Denton Drilling Awareness Group, call it a last-ditch effort to address noise and toxic fumes that spew from fracked wells just beyond their backyards, after local drillers have refused to comply with the city’s existing regulations. Opponents­ of the ban argue the move would effectively halt all drilling inside Denton, costing mineral owners and the local economy millions of dollars and exposing the city to expensive litigation.

Denton updated its drilling rules in 2013, included adding 200 feet to its previous 1,000-foot buffer between homes, schools, parks and hospitals, but the changes did not deter drilling clearly within that zone. Last October, the city filed a lawsuit against Dallas-based EagleRidge Energy for allegedly drilling two wells without permission — and too close to a housing development. But the city withdrew the lawsuit after a district judge denied the city’s request for a temporary injunction. The city is now in “standstill” agreement with EagleRidge, which says the company will not drill at new well sites while it negotiates rights at existing sites.

“They are treating us like a commodity,” Adam Briggle, a University of North Texas philosophy professor who joined the push for the ban, said during the hearing.

In April 2013, an EagleRidge well blowout released benzene and other chemicals into a neighborhood, prompting evacuations and flight diversions at the city's airport.  

State Rep. Myra Crownover, R-Denton, and Sen. Craig Estes, R-Wichita Falls, both said they understood such concerns, but that a ban on fracking would go too far in addressing them, and that it’s the state’s job to go after the industry’s bad actors.

“I promise to work diligently with Senator Estes to find a finely crafted fix for these issues,” Crownover, vice chairwoman of the House Energy Resources Committee, said at the hearing.  

Other critics said a ban would be legally risky in state where mineral rights reign supreme.

“My guess is a court will say that a municipality lacks that power,” Tom Phillips, chief justice of the Texas Supreme Court from 1988 to 2004, said in an interview. Alternatively, said Phillips, who was asked to review the proposal for the Texas Oil and Gas Association, a court could deem the city guilty of a “taking” of mineral property and require the city to shell out millions of dollars in compensation.

Phillips cautioned, however, that a legal dispute of this size and scope would be unprecedented and that “making a 100 percent prediction is tricky.”

Proponents of a ban argue it is tailored narrowly to withstand such challenges, and that it would not stop an operator from pumping from an already fracked well.