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October 23, 2015

Texas Fracking Battles Quiet For Now With Potential Storms Brewing

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

Though a new Yale University studyvindicates hydraulic fracturing, or fracking, from responsibility for groundwater contamination, it’s not likely to quell controversy over the practice. And despite the state of Texas’ legal defeat of a Denton fracking ban, any current quiet over the issue is no sign of acquiescence.

Understanding the upcoming storm first involves understanding the deconstruction of Denton’s fracking ban.

In November 2014, the north Texas college town made headlines withpassage of its first-in-the-state fracking ban . The city faced immediate legal challenges as the Texas General Land Office and the Texas Oil and Gas Association both filed lawsuits.

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

The Texas Oil & Gas Association also filed an action asking for injunctive relief against the city, citing grounds that a fracking ban is inconsistent with state law and therefore violates the Texas Constitution.

In addition to the city, the lawsuits also named as co-defendants the Denton Drilling Advisory Group (DAG), a group reportedly formed “at the request of a city government official to provide expert and public input while the city council developed drilling ordinances” along with Earthworks, a national nonprofit advocacy group.

And as the Texas Legislature convened for its regular 140-day biennial session in January 2015, fracking bans along with municipal challenges to state authority quickly became hot topics.

House Bill 40 was passed and became effective immediately upon Gov. Greg Abbott’s May 18 signing of the bill , a bill he termed as doing a “profound job of protecting private property rights.”

Though the bill reasserts the state’s exclusive jurisdiction to regulate oil and gas operations in the state and expressly precludes local governments’ regulation of such operations, it offers criteria under which above-ground oil and gas operations can be regulated. In this area, the measure addresses emergency response, traffic, lights, noise and setback requirements. It deems imposed limitations to be “commercially reasonable” and conducted by a “reasonably prudent operator.”

The bill also terms existing long-standing regulations under which some Texas cities operate as “commercially reasonable if the ordinance or other measure has been in effect for at least five years and has allowed the oil and gas operations at issue to continue during that period.”

In June, both the GLO and TXOGA amended their Denton lawsuits citing HB 40 as a basis to overturn the Denton ban and disallow the city’s moratorium on new drilling permits. According to the Denton Record-Chronicle , a footnote in the filings said attorneys’ fees could also be sought.

At a meeting the following day, the Denton City Council voted to repeal the ban . Citing the law as “unenforceable” due to a new state law, the council, in a statement, explained, “it is in the overall interest of the Denton taxpayers to strategically repeal the ordinance.”

In its statement, the city also noted that the ban’s repeal “potentially reduces ongoing court costs and attorneys fees related to ongoing litigation” and that it also “significantly mitigates problems and perceptions associated with operational discrepancies between the ban ordinance and newly-adopted state law, to which the City is bound to comply.”

The statement concluded: “Council members emphasize this decision was not taken lightly, and that the City Council is looking to the long-term interests of this city by balancing all concerns and concluding the litigation on the matter.”

Both the GLO and TXOGA’s lawsuits against the city were dropped in September .

In “Denton Gears Up For Bigger Fight Over Fracking,” Adam Briggle, a University of North Texas associate professor and also DAG president, provided his fracking ban issue views toThe Real News Network . The ban repeal, he said, was necessary to get out of the lawsuits.

“And so Denton City Council, I think, ultimately made the decision it’s better to repeal the ban than to have it go to a court where it would face a near-certain ruling against us, that it would be unconstitutional,” Briggle told Thomas Hedges, a TRNN producer. “And what would be bad about that is it would give HB 40 some legal precedent, and it would become something more than just the product of a corrupt political process.”

“So we were really looking for a long-term strategy here, and picking a different battleground to fight on,” he continued.

Briggle, along with filmmakers Candice Bernd and Eric Graham who are shooting a documentary about the Denton fracking battle, characterized the issue as about more than fracking – about being a matter of state versus local control.

Graham described how their original fracking project has become “a much longer, feature-length documentary about a much broader movement.”

The film, he said, is “not just about fracking in Denton but now, you know, basically a local control, pro-democracy kind of struggle that I think should be relevant to anybody who feels themselves encroached upon by industrial activity, or who feels sort of out-of-town market forces stripping them of their right to determine what happens to their neighborhood, their air, and their water.”

But also, in his TRNN interview, Graham stated the oil and gas industry might perhaps not understand what they’ve done suggesting, “they’ve stirred up a hornet’s nest of resistance.”

In an early 2015 article, North Texas fracking ban becomes case of state v. local control, Tom Giovanetti, president of the Institute for Policy Innovation, discussed how a “patchwork quilt of bans and rules threatens to erode the ‘Texas model.’”

Giovanetti used a “Don’t fetishize local control” column to warn of Texas cities “embracing California’s highly regulatory approach on issues such as tree ordinances, bans on plastic grocery bags, fracking and the like.”

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

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.”

So in Texas, more fracking ban battles are likely ahead with a state v. local control companion issue a new part of the mix. Denton’s fracking battle is, for now, resolved, but a larger ideological storm is undoubtedly looming.

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


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