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February 26, 2015

North Texas Fracking Ban Becomes Case of State v. Local Control

IPI expert referenced: Tom Giovanetti | In The News | Media Hit

By Lou Ann Anderson

The November election saw voters in Denton, a college town north of Dallas/Fort Worth, approving a hydraulic fracturing, or fracking, ban and while legal challenges loom, debate over a larger issue – state v. local control – is now emerging.

MOB RULE V. RULE OF LAW: The “landslide victory” of passing a local fracking ban in Denton, TX will be met with legal fees due to its violation of state law.

Despite some headlines proclaiming a “landslide” victory, Denton, with an estimated 2013 population of 123,099, approved the fracking ban with a 59 percent marginreflecting 14,881 out of 25,376 votes cast. The city is now defending this action on two legal fronts – at the expense of voting and non-voting taxpayers.

Calling the ban “‘arbitrary, capricious and unreasonable’ prohibition,” Texas Land Commissioner Jerry Patterson filed a lawsuit seeking a permanent injunction the morning after the election.

“This ban on hydraulic fracturing is not constitutional and it won’t stand,” Patterson said. “If it were allowed to be enforced it would hurt the schoolchildren of Texas, who earn hundreds of millions of dollars a year on oil and gas production on Permanent School Fund lands.”

On the same day, the Texas Oil & Gas Association (TXOGA) also filed an actionasking for injunctive relief against the city citing grounds that a fracking ban is inconsistent with state law and therefore violates the Texas Constitution. Both Patterson and the TXOGA noted state agencies like Railroad Commission of Texas (RRC/TRC) and the Texas Commission on Environmental Quality (TCEQ) – not municipalities – as regulators of oil and gas in Texas.

So what’s next?

“What lies in the future is Denton spending a ton of money on legal fees and losing,” says Tom Giovanetti, president of the Institute for Policy Innovation.

“The city of Denton understands they are in trouble. They know legal fees are going to mount, that they are going to spend lots of money and lose,” Giovanetti continued. “Denton is really serving as a bad example that other cities and towns are learning from and trying to avoid becoming.”

In January, New Mexico reported how after U.S. District Court Judge James O. Browning invalidated one county’s fracking ban “for conflicting with New Mexico law and violating the U.S. Constitution, it looks like the three-member Mora County Commission is trying to find the best way to extricate the county from the whole flap — especially the potential legal bills it faces.”

And as the Texas debate continues, local control is becoming the “hot button” issue. In a recent “Don’t fetishize local control” column, Giovanetti warns of Texas cities “embracing California’s highly regulatory approach on issues such as tree ordinances, bans on plastic grocery bags, fracking and the like.” Such a “patchwork quilt of bans and rules,” he explains “threatens to erode the ‘Texas model.’”

“Municipalities are creations of states. It’s entirely appropriate for states to limit what municipalities can do.”

Per Giovanetti, conservatives think local control is a conservative principal, but rule of law is the true conservative principle. Tyranny is not okay if voted in by local people.

“We have a state constitution and state laws that are enacted by the duly elected representatives of the people,” Giovanetti said. “One rogue council doesn’t get to roll over these decisions. That’s mob rule, not rule of law.”

In “Rep. King should bow to local control,” Denton Drilling Awareness Group Vice President Adam Briggle and Denton City Councilman Kevin Roden, however, argue that two pieces of legislation – HB 539 and HB 540 – filed by Rep. Phil King, R-Weatherford, reflect the legislator “using the Denton fracking ban as an excuse to go on a rampage against all local control.”

“Texas state leaders have worked themselves into a crisis of political philosophy,” Briggle and Roden contend. “When it comes to the perceived overreaches of the federal government, they decry top-down control. But when it comes to municipalities, they embrace their own position of centralized power to attack governments that embody democracy in its smallest and most representative form.”

Giovanetti, meanwhile, calls the local control issue “a bit of a distraction.”

“The local control argument is the only argument they are going to have left,” he says. “The state is top of the food chain because it was here first. “

“Government power should be at the lowest level possible, but it’s more like a triangle with the state at the top, down at bottom left is the federal government and bottom right is local.”

This article was written by a contributor of Watchdog Arena, Franklin Center’s network of writers, bloggers, and citizen journalists.


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