On November 4th, the majority of Denton residents voted in favor of a proposed ban on hydraulic fracturing, thereby making it the first Texas city to adopt such a measure. As many observers predicted, the ban has sparked legal challenges. The morning after the election, the Texas General Land Office (GLO) filed a motion for a permanent injunction against the enactment of the ban.
In the motion, the GLO emphasized that the ramifications of the Denton fracking ban will be felt throughout Texas. The Texas Constitution created the Permanent School Fund (PSF) to provide funding to Texas public schools. The PSF is supported by income from public land managed by the GLO. According to the GLO, the primary source of income from the land derives from oil and gas operations. Indeed, the GLO stated that it has a constitutional duty to ensure that the public land is put to its most profitable use. The GLO also stated that under the Texas Natural Resources Code, it is responsible for leasing Texas’s mineral rights. Currently, the GLO has several active leases in Denton. The GLO warned that the Denton ban would negatively impact every child in the Texas public school system and estimated that the ban would cost the State of Texas millions of dollars.
The GLO raised several legal challenges to the Denton ban. First, the GLO asked the court for declaratory relief, arguing that the fracking ban cannot be enforced against the State of Texas and its land and mineral interests. Second, the GLO requested that the court hold that the Denton measure is preempted by state law empowering the Railroad Commission of Texas authority over oil and gas operations in Texas and by state law authorizing the GLO to manage Texas’s mineral rights. Third, the GLO contended that the fracking ban should be invalidated because it is unreasonable, arbitrary, and capricious. Because the enforcement of the Denton fracking ban would harm Texas’s mineral interests, the GLO requested that the court issue a permanent injunction against the ban.
Read the complaint.
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.
