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The Only Fracking Stopped by the Ban Is the Good Kind

Most reasonable people would probably agree that, ideally, drilling for oil and natural gas should take place on relatively large tracts of rural land, well away from residences and public places.  But here’s the poorly understood irony facing Denton voters on November 4: That’s the only kind of drilling that will be stopped if the proposed ban passes.

That’s right: It’s only out-of-the-way, inoffensive drilling on large tracts that will be stopped under the ban.

Here’s why: While Denton had a weak drilling ordinance and issued some unwise drilling permits, that ordinance has now been significantly strengthened. Indeed, today’s Denton drilling ordinance has stricter requirements and larger setbacks than that of many other cities in north Texas. Anyone obtaining permits and drilling new wells today has to operate under the newly strengthened ordinance, including 1,200 foot setbacks. Fort Worth’s setback, for example, is only 600 feet.

Only wells on relatively large tracts of land and well away from property lines meet the test of the new ordinance and are thus even candidates to be banned.

Proponents of the ban are still seething over wells that were drilled close to residences and property lines under the old ordinance, or indeed that were drilled on unincorporated land. But the city’s hands are tied over those previously drilled wells.

That’s because the U.S. Constitution forbids retroactive, or ex post facto laws.  One of King George III’s favorite little tyrannies was to pass retroactive laws affecting the American colonies.  Colonists were acting completely within the law and then the king would change the law and throw them in jail anyway.

So our Founders excluded ex post facto laws as one of our Constitution’s many protections of individual freedom.

Ban proponents apparently thought or expected that the new, stronger ordinance would retroactively eliminate the offensive drilling sites, but it didn’t of course, because of the Constitution’s prohibition on retroactive laws. That’s why existing permits and wells are “grandfathered” when ordinances are changed or strengthened.

So the new ordinance is not “unenforceable,” as the banners claim—it’s completely enforceable to the degree that the city chooses to enforce it. It just can’t be retroactive.

And here’s the rub: if the ban on fracking passes, it won’t have any retroactive power, either. Just as the newly strengthened ordinance couldn’t be retroactive, neither will the ban. So don’t vote for the ban expecting wells to be capped or existing permits to be invalidated, because it won’t happen.

What this means is that the only drilling that can be banned is that which is in compliance with the updated ordinance—on larger tracts, away from homes and property lines, and relatively inoffensive.

Now, if you roll your eyes at any description of drilling as “good” or as “inoffensive,” you’ve decided to ignore the dramatic economic benefits of oil and gas exploration to our region and to the United States, and are not open to persuasion.

But for those with more open minds, it’s important to understand that, while the ban won’t touch the existing permits and wells that have people upset, it will ban the inoffensive kind of drilling, and in the meantime will subject the taxpayers of Denton to expensive litigation and possibly enormous legal settlements.

Why? Back to the Constitution, which also forbids governments from taking the value of someone’s property without compensation. This is another protection against government tyranny, which proponents of the ban simply brush aside. Denton cannot effectively seize control of privately owned mineral rights and declare them null and void without violating the Constitution’s prohibition of such “takings.”

It’s true that a city can restrict land use, such as not allowing a bakery to be built on a particular lot. But that lot has other uses for other types of businesses, so it’s not a taking. But the only value of Barnett Shale mineral rights is access to the Barnett Shale. Banning fracking robs mineral rights owners of their property, and it’s likely that the city (i.e., Denton taxpayers) will be on the hook for significant legal settlements with mineral rights owners.

In summary, the ban can’t undo the mistakes of the past, but it will create many more expensive mistakes for Denton’s future.

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