Environmental groups seek intervention in Denton fracking ban suits

When the city of Denton passed a ban on hydraulic fracturing, the general land office and the oil and gas industry quickly filed lawsuits to stop the ban. Now environmental groups are trying to intervene in the suits.

On Dec. 4, the Denton Drilling Awareness Group and Earthworks filed an original petition in intervention seeking to uphold the ban. 

According to the petition, Denton Drilling Awareness Group (Denton DAG), is a Texas non-profit “dedicated to educating the public about the dangers of gas well drilling and its related processes” to public health, the environment and property values in the city of Denton. The group was behind the creation of the Frack Free Denton campaign, which supported a ballot initiative calling on the city of Denton to enact an ordinance prohibiting hydraulic fracturing, or “fracking,” within the city limits.

In the Nov. 4 election, the ballot measure passed by 59 percent.

Immediately following the passage, the Texas General Land Office filed suit claiming the ban prevented oil and gas revenues legally bound for the public schools fund. On Nov. 5, another suit was filed by the Texas Oil and Gas Association, claiming the ban violated the Texas Constitution.

A few weeks later, the city of Denton 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. The city on Dec. 1 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.

The Denton DAG and Earthworks, a national non-profit organization dedicated to protecting communities and the environment from adverse impacts of mineral and energy development, seek to intervene in a petition filed Dec. 5.

Earthworks worked closely with Denton DAG in support of the fracking ban, according to the petition.

“Intervenors file this Intervention Petition as party defendants to provide a vigorous defense of the legality and enforceability of the Ordinance,” the intervenors’ petition states.

The groups claim they “expended extensive time and resources to secure passage of the Ordinance” that the plaintiffs seek to nullify, including collecting signatures to have the ban ordinance on the Nov. 4 ballot after the Denton City Council declined to enact a city ban in July.

“Because of the close, continuous and integral role the Intervenors played in the sponsorship of the initiative and the passage of the Ordinance, Intervenors would be seriously prejudiced by a judgment for TXOGA,” the petition states.

The petition cites Section 37.006(a) of the Texas Civil Practice and Remedies Code, which states “[w]hen declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties.”

The intervenors request the following relief:

• That the court declare that the ordinance is not inconsistent with any state law, rules or regulations and therefore is valid under Article XI, Section 5, of the Texas Constitution;

• That the court declare that the Ordinance is not invalidated by the operation of the Texas Natural Resource Code, the Texas Water Code, the Texas Health and Safety Code, rules or regulations of the Texas Railroad Commission or the Texas Commission on Environmental Quality or any other Texas statute, rules or regulations;

• That the court declare that the ordinance is valid and fully enforceable by the city of Denton;

• That the court award attorneys fees and costs to the intervenors; and

• That the court grant the intervenors any other relief which they may be entitled.

The petition for intervention was signed by Robert F. Brown of Brown & Hofmeister LLP in Richardson. Intervenors are also represented by Deborah Goldberg of Earthjustice in New York, N.Y., and Daniel Raichel of the Natural Resources Defense Council in New York, N.Y.

The Texas Oil and Gas 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.