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City answers fracking ban lawsuits

Profile image for By Peggy Heinkel-Wolfe / Staff Writer
By Peggy Heinkel-Wolfe / Staff Writer

The city of Denton has answered lawsuits from the state and from the oil and gas industry challenging its ban on hydraulic fracturing, calling the process a public nuisance and one that subverts public order. The city also asked for a change of venue in the state’s case against the ban.

The citizen-driven initiative, which passed by a wide margin on Election Day, officially goes into effect today.

In a prepared statement, Mayor Chris Watts said on Monday that the filings were consistent with the City Council’s direction to uphold the vote of the community.

Both the state and the oil and gas industry filed lawsuits the day after the election, challenging the ban on state constitutional grounds and seeking injunctions to stop enforcement.

The Texas General Land Office, through Commissioner Jerry Patterson, filed suit in Travis County. Patterson claimed a fiduciary responsibility to the state agency that oversees state-owned lands on behalf of Texas public schools, including the $1.2 billion deposited in the state’s Permanent School Fund last year, largely from oil and gas revenues.

In the request for a change of venue, the city said it was improper to try the case in Travis County because the state provided no reason for the venue and was seeking relief solely in Denton County.

The Texas Oil and Gas Association filed in Denton County.

The city took special exception to the claim by the Texas Oil and Gas Association’s lawsuit that the “entire field” of regulations by the Texas Railroad Commission and the Texas Commission on Environmental Quality pre-empted the city’s ban.

The city asked Denton District Judge Jonathan Bailey to order the association to be specific with that claim, a requirement in Texas courts known as “fair notice.”

In the state’s lawsuit, the city took a similar exception, saying that the petition failed to specify how the city’s alleged actions conflicted with the state constitution or were “arbitrary, capricious and unreasonable.”

In both lawsuits, the city said to defend the ban, it would show, if necessary, that fracking “caused conditions subversive of public order and constitute an obstruction of public rights of a community as a whole.”

The defense included a list of public nuisances associated with fracking, including heavy truck traffic, spills, vibrations and other offensive practices.

The answers were filed by Terry Morgan, a Dallas-based attorney who has advised the city on its oil and gas development ordinance for several years, along with two other attorneys, James W. Morris Jr. of Dallas and Jose E. de la Fuente of Austin.

City spokeswoman Lindsey Baker said the city has sought additional counsel in answering the lawsuits, but the city hasn’t settled on whether to hire another or additional attorneys for the defense.

“For the long term, that has not been determined,” Baker said.

Should the industry’s challenge prevail in court, the ruling would benefit all operators, according to Tom Phillips, a former chief justice of the Texas Supreme Court and an attorney with Baker Botts, which represents the association.

Currently, no operator is fracking in the Denton city limits. The ban does not affect operators working in the city’s extraterritorial jurisdiction.

Cathy McMullen, president of the Denton Drilling Advisory Group, issued a statement in response to the filings, hailing the city’s actions.

“It speaks well of our city that Denton city government today acted to defend the fracking ban,” McMullen wrote. “Denton voters enthusiastically passed the ban by almost 20 points. It passed with the majority of Republicans, and with the majority of Democrats. We’re glad our city is listening.”

A motion for the Denton Drilling Advisory Group to join the city as an intervenor — helping to defend the ban — is expected as soon as this week.

PEGGY HEINKEL-WOLFE can be reached at 940-566-6881 and via Twitter at @phwolfeDRC.