The ongoing saga of the Denton, Texas fracking ban continues to send resounding messages about local control and the power of oil and gas companies to those of us concerned about protecting local property rights.
You may remember that residents of Denton voted 59-41 last November to ban fracking within the city limits. The election was particularly remarkable because Denton is in the heart of the Barnett Shale, one of the largest natural gas producing regions in the world.
It was a great story because it was a completely unexpected triumph of grass roots activists against the power of oil and gas companies, which spent a fortune trying to keep the ban from passing. One of the most important forces behind the victory was Cathy McMullen, a local nurse with no experience in politics, whose personal story we told last December.
As you would expect, the loss did not sit well with the oil and gas industry. As soon as the measure passed, the Texas Oil and Gas Association filed a lawsuit to stop Denton’s efforts to control drilling.
The premise of the industry association lawsuit is that the ban exceeds the limited power of home-rule cities and intrudes on the authority of several state agencies, particularly the Texas Railroad Commission, which regulates the oil and gas industry.
But the industry didn’t stop there.
State lawmakers connected to the oil and gas industry and to the American Legislative Exchange Council (ALEC) immediately began introducing bills aimed at undermining local democracy, designed to prevent other cities from following Denton’s lead.
“I do feel very strongly that air-quality measures and the engineering and scientific issues of oil and gas should be regulated at the state level, where the expertise is,” Texas Rep. Phil King (R-Weatherford) said in defense of his bill.
But the reason that Denton residents organized to pass the ban was that the Texas state legislature, like the Montana legislature, had done nothing to protect local communities from the hazards of oil and gas drilling.
This is a familiar story. When the Denton residents initially expressed concerns about fracking to their local city council, they were told this was not a local issue, and had been sent to talk to their representatives in Austin.
They went many times, but received no help.
“We did work on [regulating drilling] at the state level, and (our representatives) did everything they could to undermine getting anything passed at the state level,” said former Fort Worth Rep. Lon Burnam, who now works for Public Citizen, referring to Denton County representatives. “So they’ve kind of reaped what they sowed.”
Frustrated, they went home and got a fracking ban passed.
But last Friday, the Texas House of Representatives passed H.B. 40—one of several bills recently proposed to address anti-fracking measures similar to Denton’s fracking ban.
Under H.B. 40, localities are expressly preempted from adopting legislation concerning oil and gas operations. Localities would only retain the authority to adopt ordinances that regulate “surface activity that is incident to an oil and gas operation, is commercially reasonable, does not effectively prohibit an oil and gas operation, and is not otherwise preempted by state or federal law.”
Approximately ten amendments to the bill were proposed, but they were all rejected. If accepted, the amendments would have ensured that localities retained the authority to regulate some aspects of oil and gas operations. One of the proposed amendments would have created a grandfather clause that local ordinances that have been enacted for at least ten years are not preempted. Now, H.B. 40 advances to the Texas Senate.
There’s still a lot to happen here, both in the legislature and in the courts, and it is impossible to determine how this will all play out.
The important lesson for all of us that local property owners can never achieve a permanent triumph in their fight to protect their property, their water, and their way of life. The important thing is to keep on fighting.