Texas, Petroleum Industry Broaden Their Lawsuits Against Denton

^{Editor's note: This story has been updated throughout.} 

Lawyers for Texas and its powerful oil and gas industry won’t let Denton out of their sights – even after the North Texas city conceded that the Legislature defanged its six-month-old ban on hydraulic fracturing.

The Texas Oil and Gas Association (TXOGA) and the state’s General Land Office (GLO) have expanded the scope of their lawsuits against Denton, with both taking aim at the city’s moratorium on new gas drilling in addition to the fracking ban the city is no longer enforcing. In amended complaints filed Monday, both parties argued that a new state law preempting local control over a wide range of oil and gas activities – House Bill 40 – should quickly erase both policies from the city’s books.

Nearly 59 percent of Denton voters supported the fracking ban last November, making the city of about 123,000 the first to outlaw the use of high-pressure water to shatter underground shale and release stored oil and gas.

Just hours after health and environmental advocates proclaimed victory, TXOGA, the state’s largest petroleum group, and the General Land Office, which manages the state’s mineral interests, filed separate suits calling the ban unconstitutional. Both lawsuits are now in Denton County district court. 

The Legislature, meanwhile, responded by passing HB 40, which preempts local regulation of all “below ground oil and gas activities” – like bans on hydraulic fracturing or drilling – and says all other related local regulations must be “commercially reasonable.” Gov. Greg Abbott quickly signed the bill into law.

Even before Denton made international headlines by banning fracking, its city council adopted a moratorium on issuing new permits for gas drilling. That temporary stoppage of drilling dates backs to May 2014 and was extended several times. The council put it in place “to maintain the status quo within the corporate limits of the city” as it weighed efforts to beef up the city’s drilling regulations.

Vantage Energy, a natural gas operator, resumed fracking operations inside the city earlier this month, effectively negating an ordinance that Denton officials concede they can no longer enforce. But the city has not officially overturned either law. 

In its fresh legal filings, the petroleum group and the state argue that HB 40 renders both the city’s fracking ban and moratorium unenforceable.

The groups are asking the court for a partial summary judgment – a quick ruling that would strike down Denton’s laws without a full trial.

Denton officials said they are still digesting the filings.

“We are currently reviewing the document to determine our next steps,” Lindsey Baker, the city’s spokeswoman, said.

The Legislature’s swift move to invalidate the city’s rules has stirred outrage in Denton, and a conversation about local control that could last for years. City officials and anti-fracking activists have struggled to decide how to respond.

A city council meeting Tuesday night could shed more light on what’s next. Council members are expected to take up measures that would keep the anti-fracking ordinance on the books but specify that the city will not enforce it – an effort to preserve a symbol of the voters' will while trying to resolve the city's legal troubles.  

But not killing the laws outright could extend the costly litigation, some experts say – even if pulling the trigger proves unpopular with Dentonites.

“To me it doesn’t make a lot of sense,” said Jim Bradbury, a Fort Worth-based lawyer who focuses on environmental and energy issues. “The more they continue to delay and not face up to reality, it continues to put a stick in the hand of TXOGA, where they can beat them.”

Keeping the policies around – even just symbolically – could tempt Texas and its petroleum industry to challenge other provisions of Denton’s drilling ordinance, such as requirements for a 1,200-foot buffer zone between drilling and homes, schools and other structures. Still, the industry and state could risk political backlash if they toss more legal grenades at the city.

“I think they run a little risk there,” Bradbury said. “I think maybe there is some sympathy out there for Denton, and there may be some wise heads there at TXOGA saying, we do not need to crush the city into dust.”