Denton fracking ban goes into effect as city responds to lawsuits

By Marilyn Tennissen | Dec 3, 2014

The ban on hydraulic fracturing in the city of Denton went into effect Tuesday, despite objections from a state agency and an industry group. 

The ban on hydraulic fracturing in the city of Denton went into effect Tuesday, despite objections from a state agency and an industry group. 

The north Texas town voted Nov. 4 to ban the process known as “fracking” within the city limits. Residents claim the process – which uses water, sand and chemicals under high pressure to force more oil out of depleted wells or rock formations – is dirty, noisy and hazardous and may even be causing earthquakes.

But as soon as the measure was passed by voters, the General Land Office and the Texas Oil & Gas Association filed lawsuits against the city objecting to the ban.

The industry association, which filed its suit in Denton County, sought an injunction to stop the ban from going into effect on the grounds that it is preempted by the Texas constitution.

The ban “exceeds the limited authority of home-rule cities and represents an impermissible intrusion on the exclusive powers granted by the Legislature to state agencies, the Texas Railroad Commission and the Texas Commission on Environment Quality,” the association argued in its Nov. 5 petition.

In his suit filed the same day in Travis County, Land Commissioner Jerry Patterson argued that the ban deprives Texas schools of oil and gas revenues.

Now the city of Denton has responded to the suits. In the suit filed by the GLO, the city has requested a change of venue, moving the case from Travis County to Denton County.

“Plaintiff brought this suit in Travis County, Texas, but does not cite to any specific statutory provision upon which it relies to establish venue for this case in Travis County,” the city’s original answer filed Dec. 1 states.

In addition, since the GLO is seeking a permanent injunction against the enforcement of the ban, the city claims that under the Texas Civil Practice and Remedies Code, the “mandatory venue for a case seeking injunctive relief is in the county where the defendant resides” and that for a suit affecting real property interests, the proper venue is in the county in which the real property is located.

The city submitted a general denial, and also submitted an affirmative defense, claiming the fracking process obstructs public rights of the community, including noise, increased heavy truck traffic, liquid spills, vibrations and other offensive results.

“Those conditions, all of which are associated with hydraulic fracturing, constitute a public nuisance which may be abated … and prevented by the City under its regulatory powers and are not subject to preemption as alleged by the plaintiff,” the city claims.

In response to the suit filed by the Texas Oil & Gas Association, the city argues that the group fails to “identify what regulations have been passed by the Texas Railroad Commission or the Texas Commission on Environmental Quality” that would render the ban preempted and unconstitutional.

As in its response to the GLO, the city submitted a general denial and the same affirmative defense to the association’s suit on Dec. 1.

The association is represented by Thomas R. Phillips and Evan Young of Baker Botts LLP in Austin and Bill Kroger and Jason Newman of Baker Botts LLP in Houston.

The city is represented by Terry D. Morgan of Dallas; James W. Morris Jr. of Morris Schorsch & Stapleton PC in Dallas; Jose E. de la Fuents of Lloyd Gosselink Rochelle & Townshend PC in Austin; and Anita Burgess and Jerry Drake, attorneys for the City of Denton.

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