Texas cities are losing control of fracking
Overall, conservatives in Texas had a very good election night earlier this month. Republicans took all the statewide offices, as indeed they have in every election since 1994, and claimed virtual supermajorities in both the state house and senate. Even a ballot measure on a light rail project in liberal Austin went down to defeat.
Yet in the midst of this dominance of common sense came one ominous result. Voters in the city of Denton approved a ballot measure banning all hydraulic fracturing within city limits. While municipalities have banned fracking in states ranging from Colorado to Pennsylvania, Denton represents the first time a city in energy-loving Texas has done so. And unless swift action is taken, it may not be the last.
What happened? The anti-fracking campaign raised the typical objections: fracking contaminates groundwater; fracking causes earthquakes; fracking will lead to a zombie apocalypse. But the arguments that seem to have gotten the most traction were the “quality of life” concerns. A drilling boom is accompanied by increased traffic and noise, among other things that residents find to annoying. The pro-drilling campaign emphasized the huge economic benefits that the city was foregoing, but in the end, the idea of NIMBY—“not in my backyard”—won out.
What happens next will be utterly predictable. First, there will be lawsuits. In fact, they have already begun. Mere hours after the election results were announced, the Texas Oil and Gas Association filed suit in state court seeking an injunction of the ban. The lawsuit argues that the city ban violates state law by prohibiting drilling on sites where it is permitted by the state. As a “home rule” city, Denton does have a good deal of regulatory latitude, but can’t pass restrictions that contradict state law.
The new ordinance is also vulnerable to claims that it has taken property without paying just compensation. Both the Texas and U.S. Constitutions provide that government entities must pay when they deny landowners the use of property, including mineral interests, via regulation. These lawsuits have also already started. In September, Denton-area attorney Charles Chandler Davis sued Denton for a million dollars based on a takings claim, and many other suits are expected. Given how much valuable oil and gas is stored beneath the ground there, paying compensation could leave the city in a dire situation.
You might wonder why the city government would support such a daft idea. And, in fact, the answer is that they didn’t. A fracking ban was voted down by the Denton city council this past summer. Instead, Tuesday’s referendum was the result of an environmentalist-led petition drive, whereby a small percentage of a city’s overall population can force an issue onto the ballot. It’s reasonable to expect that the campaign that proved successful in Denton will become a model for efforts to block production in other cities and counties.
This is hardly the first time that a city has pulled out a rifle and taken aim at its own foot (see, Detroit). And ordinarily if a city wants to pass stupid laws, that’s up to them. But energy is different. The shale boom is transforming both the Texas and American economies. Natural gas production is up by a third since 2005, and Texas alone is now producing 36 percent of America’s crude oil output. The efforts are underway to put large fractions of that energy off limits to production, with the Denton ban only one small example, are misguided at best.
The relationship between the states and the federal government is full of give and take. Cities, in contrast, are ultimately creatures of the state in which they were built. Local control cannot be a pretext to justify taking private property. When cities like Denton begin losing control over fracking regulation to environmentalist campaigners, it’s time for the state to step in and reaffirm who has primary authority over regulating energy production.
