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Fracking case is on the move

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

A Travis County judge has ordered the state’s case against the city’s ban on hydraulic fracturing to move to Denton County.

State District Judge Tim Sulak also upheld the city’s objection to a last-minute, amended petition from the Texas General Land Office meant to keep the case in Travis County. News of both rulings, which the judge signed late Thursday afternoon, came Friday morning.

Attorneys for both the city and the state argued before the 353rd District Court on Wednesday over the city’s request for a change of venue. Because the land office sought an injunction — an order that Denton lift the ban if it is found unconstitutional — Texas rules of civil procedure typically require a case be heard where injunctive relief is sought.

Denton voters overwhelmingly approved a proposition in November that banned fracking in the city limits. Within hours after the polls closed, both the Texas Oil and Gas Association and the Texas General Land Office sued the city to block the ban.

The association, a trade group for the oil and gas industry reinvigorated by technological advances involved in fracking, filed suit in Denton County. But the land office filed in Travis County. The land office is responsible for public lands and the development of oil and gas on those lands.

The ban has been in effect since December.

It is possible that both the state’s and the association’s cases against the city could be consolidated. State District Court Judge Sherry Shipman, who presides over the 16th District Court in Denton County, recently declined to move ahead with a scheduling order in the association’s case, citing the possibility the two cases could be combined.

Joe de la Fuente, attorney for the city, said that it would take the Travis County clerk a few days to gather up the file and move the case to Denton. A motion for consolidation from the city “depends on the direction of our client,” de la Fuente said. “No decision has been made.”

Ken Slavin, attorney for the land office, did not return a call for comment.

Deborah Goldberg, attorney for Denton Drilling Advisory Group and Earthworks, which are now intervenors in both cases, said that as a matter of law, the state’s lawsuit should have been filed in Denton County. Moreover, defending the proposition in two venues would have cost taxpayers more money.

“I’m sure we’ll get a fair hearing wherever we go,” Goldberg said, adding that consolidation would also conserve judicial resources.

Both the state and the oil and gas industry are challenging the ban on constitutional grounds.

Efforts by local governments to control fracking have faced similar court challenges around the country.

Most recently, the Ohio Supreme Court ruled that certain zoning laws couldn’t be used there to circumvent the state’s authority over oil and gas drilling.

In a 4-3 decision with three written dissents, Ohio’s high court said that the home-rule clause of that state’s constitution doesn’t allow a municipality to block drilling activities otherwise permitted by the state.

The decision came in a case brought by the Akron suburb of Munroe Falls against Beck Energy Corp. over a 2004 state law that gives Ohio “sole and exclusive authority” to regulate the location of wells.

Beck received a state-required permit from the Ohio Department of Natural Resources in 2011 to drill a traditional well on private property in Munroe Falls.

The city sued, saying the company illegally sidestepped local ordinances.

Writing for the court’s majority, Justice Judith French said, “The issue before us is not whether the law should generally allow municipalities to have concurrent regulatory authority, but whether [the law] and Home Rule Amendment do allow for the kind of double license at issue here. They do not.”

Three justices — Paul Pfeifer, Judith Lanzinger and William O’Neill — dissented in the decision.

“Let’s be clear here. The Ohio General Assembly has created a zookeeper to feed the elephant in the living room,” wrote O’Neill.

“What the drilling industry has bought and paid for in campaign contributions they shall receive.”

In their dissents, both Lanzinger and Pfeifer said they saw room for the state and local laws to live side by side. Lanzinger noted that the high court has regularly ruled that state laws written to pre-empt local laws can’t divest a community of its constitutional home-rule protections.

Justice Terrence O’Donnell opted to concur on the opinion in judgment only. Munroe Falls attorney Tom Houlihan said that means the court was divided 3-1-3 on the legal reasoning behind Tuesday’s decision.

“It’s obviously a very complicated and difficult case,” Houlihan said. “None of the reasons got a majority of votes, which could be carefully read by future courts that there’s still a role for local zoning in the oil and gas field. I’m hopeful that is the case.”

The highest courts in New York and Pennsylvania upheld local control.

Denton’s ordinance taps its police powers, not its zoning authority, to ban fracking in the city limits.

The Associated Press contributed to this report.

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