One of the most highly debated issues during the November election was the question of whether localities have the authority to enact fracking bans. Several cities throughout the country have attempted to enact prohibitions against hydraulic fracturing with varying degrees of success. Denton, Texas has become one of the latest cities to consider such a ban.
On November 4th, Denton residents voted on whether the city should enact a ban against hydraulic fracturing within the city limits. The measure passed with 59 percent of Denton residents voting in favor of the measure and 41 percent voting against it. The Denton City Council considered the measure initially; however, rather than enact the ban itself, the Council opted to place the ban on the ballot for the November elections. Denton currently has a moratorium in place banning drilling until January 20, 2015.
Several cities in California and Ohio also attempted to pass local bans against hydraulic fracturing. Specifically, fracking bans were on the ballot in the following localities: Santa Barbara County, California; San Benito County, California; Mendocino County, California; Athens County, Ohio; Gates Mills, Ohio; Kent, Ohio; and Youngstown, Ohio. Most of the proposed fracking bans were defeated. The majority of voters in San Benito County and Mendocino County voted in favor of the ban, but the anti-fracking measure was defeated in Santa Barbara. The anti-fracking measure was defeated in Gates Mills, Kent, and Youngstown, but voters in Athens County approved the fracking ban.
Multiple cities have already enacted prohibitions against hydraulic fracturing. Five cities in Colorado have passed ordinances prohibiting fracking, and several cities in California also have fracking bans. In addition, similar legislation exists in localities throughout New York, Hawaii, New Jersey, and New Mexico. Some cities have taken the alternative approach of enacting temporary prohibitions against hydraulic fracturing. Other cities in Texas may also follow Denton’s example. Anti-fracking groups in Alpine, Texas are attempting to garner support for a city ban on hydraulic fracturing.
Courts throughout the country have disagreed on whether localities can enact ordinances barring hydraulic fracturing. Whereas some courts have invalidated local fracking bans, other courts have upheld such local laws. Currently, there are legal challenges to similar local bans pending in California, New Mexico, and Ohio. Indeed, several landowners have already filed suit against Denton to challenge the city’s moratorium on drilling. Moreover, the day after the election, the Texas Oil and Gas Association filed a motion to stop the enforcement of the fracking ban. Although the law is not yet settled on the validity of local fracking bans, one thing is certain—the Denton ban will serve as precedent for other Texas cities considering fracking bans.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
