Opponents of Denton’s fracking ban have indicated that they will challenge the measure in court if it is passed in November. Bloomberg BNA reports that in addition to promises by mineral rights holders to sue the city if the ban is passed, “There is also a push to have a bill passed in the Texas Legislature that would prohibit cities from banning hydraulic fracturing” according to Cathy McMullen, president of the Denton Awareness Group.
The potential outcome of suits challenging the ban is unclear. Opponents have cited to two parts of the Texas Constitution that they believe invalidate the ban, according to Bloomberg BNA:
First, because the Texas Railroad Commission is in charge of permitting for drilling under state law, a municipality does not have the authority to regulate it, [Jeffrey Gaba, law professor at Southern Methodist University’s Dedman School of Law] said. The state’s authority preempts the city.
“On a case-by-case basis, the courts have generally ruled that is not true,” Gaba said. “Cities have a role in the permitting process.”
On the other hand, a ban on all hydraulic fracturing and not just a case-by-case review of each permit might be considered a preemption of the state’s authority, Gaba said.
“They’re suggesting that a fracking ban would be unconstitutionally inconsistent with state legislation about fracking,” Zachary Bray, assistant professor of law at the University of Houston, told Bloomberg BNA. “It’s an argument that will certainly be made, and it might be successful, but I think more likely not. I think the takings claims are likely to be more important.”
The second argument is that the ban is a regulatory taking that violates the Fifth Amendment of the U.S. Constitution. Sometimes, people invoke the state constitution in takings cases out of state pride, Bray explained. But in a recent takings case, the Texas Supreme Court said it was guided by U.S. Supreme Court construction and application of the Fifth Amendment in the U.S. Constitution.
Earlier this month, a group of mineral royalty owners has sued the city of Denton, claiming that the city’s moratorium on fracking is a violation of their property rights.
The Associated Press reports that “Denton lawyer Charles Chandler Davis filed a lawsuit in Denton County earlier this month on behalf of Arsenal Minerals and Royalty, NASA Energy Corp. and his son’s trust fund, claiming more than $1 million in damages.”
Recently, the Denton City Council voted to extend the moratorium until January 20, 2015. If a permanent ban is approved by voters in November, the law would take effect January 21.