Recently, the debate over hydraulic fracturing has centered on whether localities have the authority to enact fracking bans. As one commentator described, courts are confronted with “the right of home rule versus the authority of the state to regulate natural resource development.”[1] Several cities throughout the United States have attempted to impose such bans with varying success. One of the latest cities to join this movement is Denton, Texas. Because Texas courts have not yet addressed this issue, it is unclear whether localities have the authority to pass that form of legislation. This article analyzes the viability of local bans in Texas. This article first examines the proposed ban at issue in Denton and similar bans nationwide. It then proceeds to discuss the possible responses by Texas courts to such a ban.

A. Proposed ban in Denton

On November 4th, Denton residents will vote on whether hydraulic fracturing should be permitted within the city limits.[2] This issue initially was before the Denton City Council; however, rather than pass the ban itself, the Council opted to place the ban on the ballot for the November elections.[3] Although some members of the Council desired to pass the ban, they ultimately were unable to garner sufficient support from the other members.[4] Denton currently has a moratorium in place prohibiting drilling until January 20, 2015.[5]This proposal has spawned a panoply of divergent views. Some Denton residents state that they simply desire that any drilling operations be conducted reasonably.[6] Others argue that the ban could not withstand legal scrutiny because the Texas Constitution prohibits local laws that contradict state law.[7] Members of the oil and gas industry have stated that the proposed ordinance would subject the city to potential suits from mineral rights owners.[8] In fact, the state of Texas has stated that it would sue if its mineral interests were harmed by the proposed ban.[9] One state legislator has stated that if the ban were to go into effect, the state legislature would likely pass legislation prohibiting localities from issuing bans on fracking.[10] The Mayor of Denton, Mark Burroughs, has even suggested that the proposed ordinance is illegal.[11] Aside from the legal ramifications, it is estimated that a ban on hydraulic fracturing could result in Denton losing a significant amount of jobs and revenue.[12]
B. Local fracking bans in other states

Denton is not the first city to attempt to prohibit hydraulic fracturing. After November 4th, other cities could also have local legislation barring hydraulic fracturing. Residents in the following locations will vote on legislation barring hydraulic fracturing very soon: Santa Barbara County, California;[13] San Benito County, California;[14] Mendocino County, California;[15] Athens County, Ohio;[16] Gates Mills, Ohio;[17] Kent, Ohio;[18] and Youngstown, Ohio.[19] Residents in Colorado were prepared to also vote in November on similar legislation—Initiative 89.[20] Under Initiative 89, local governments would have the authority to pass laws superseding state laws regarding hydraulic fracturing.[21] However, Governor John Hickenlooper agreed to a compromise with U.S. Representative Jared Polis to remove the initiative from the November ballot.[22] Instead, a commission will be formed to provide recommendations to the state on fracking regulations.[23] Voters in Butte County will also vote on a fracking ban, but the measure will not be placed on a ballot until the November 2016 election.[24] Meanwhile, county employees are working on an anti-fracking initiative so that the vote would be unnecessary.

A number of cities have already enacted prohibitions against hydraulic fracturing. Five cities in Colorado have passed ordinances prohibiting fracking.[25] Likewise, several cities in California have enacted fracking bans.[26] Similar bans also exist in various cities throughout New York,[27] Hawaii,[28] New Jersey,[29] and New Mexico.[30] Rather than impose a permanent ban, some cities have imposed temporary prohibitions against hydraulic fracturing.[31] Other states, like Illinois, are currently discussing potential statewide fracking regulations.[32] Moreover, in Michigan, groups are attempting to garner sufficient votes to have a proposed fracking prohibition submitted to a statewide vote.[33] Activists in Colorado are also seeking to get a measure permitting local fracking bans submitted for the November election.[34] In fact, other communities in Texas may be following Denton’s example. For instance, activists in Alpine, Texas are attempting to gather support for a fracking ban.[35]

C. Legal ramifications of a local fracking ban

Courts throughout the country have diverged on whether localities can enact ordinances barring hydraulic fracturing. Some courts have held that such bans are invalid. For instance, in Longmont, Colorado, the City enacted a ban on hydraulic fracturing as well as the storage or disposal of waste associated with fracking within the city limits.[36] The Colorado Oil and Gas Association and others sued, challenging the legislation.[37] The City argued that its authority to enact the bill derived from the doctrine of home rule and its ability to regulate land use.[38] The court granted summary judgment in favor of Plaintiffs, reasoning that the City’s bans were preempted by the Colorado Oil and Gas Conservation Act.[39] Specifically, the court relied on the doctrine of conflict preemption.[40] Nonetheless, the court held that the ban against hydraulic fracturing may continue until the time for an appeal elapsed.[41] Because Longmont is currently challenging the district court’s judgment before the Colorado Court of Appeals, the ban remains in effect.[42]Courts in West Virginia have taken a similar approach to local bans against hydraulic fracturing.[43] The city of Morgantown enacted an ordinance prohibiting fracking not only within the city limits but also one mile outside of the city.[44] Northeast Natural Energy, LLC and Enrout Properties, LLC sued Morgantown, alleging that the ordinance was preempted by state regulations permitting fracking.[45] In response, Morgantown argued that it had authority under the home rule doctrine to issue the ordinance.[46] Relying on the field preemption doctrine, the court granted summary judgment in favor of the plaintiffs and held that the state completely occupied the field of regulating oil and gas such that Morgantown lacked the authority to enact an ordinance in that area.[47]

Pennsylvania also opted to take the preemption route, albeit unsuccessfully. Pennsylvania attempted to expressly preempt local ordinances concerning oil and gas by amending the Oil and Gas Act.[48] The amendment, Act 13, would, among other things, prohibit “any local regulation of oil and gas operations” and mandate “statewide uniformity among local zoning ordinances with respect to the development of oil and gas resources.”[49] In Robinson Township v. Commonwealth, the Pennsylvania Supreme Court held that the amendment was unconstitutional.[50] However, Pennsylvania courts have not been completely hostile to other preemption arguments. Pennsylvania courts have allowed municipalities to enact “traditional zoning regulations that identify which uses are permitted in different areas of the locality, even if such regulations preclude oil and gas drilling in certain zones.”[51] In contrast, a municipality cannot enact its own “regulatory scheme” to govern oil and gas operations.[52]

Conversely, in Matter of Wallach v. Town of Dryden, the New York Court of Appeals recently held that municipalities may enact local bans on fracking.[53] Matter of Wallach was a consolidated appeal involving challenges against fracking bans issued by the Town of Dryden and the Town of Middlefield.[54] Plaintiffs argued that the ordinances were preempted by the Oil, Gas, and Solution Mining Law (OGSML).[55] The court reasoned that the OGSML did not preempt the ordinances.[56] Rather, in the court’s view, the cities had authority under the doctrine of home rule and were therefore permitted to adopt zoning laws.[57] The court reasoned that the OGSML was limited to regulating oil and gas operations, not zoning.[58] The court acknowledged that the city bans would impact oil and gas operations but concluded that the local laws were focused primarily on zoning.[59]

Suits challenging similar fracking bans are also pending in California, New Mexico, and Ohio. The Western State Petroleum Association is suing Compton, its mayor, and members of the City Council, alleging that the City lacked the authority to enact a recent fracking ban.[60] Likewise, in New Mexico, the Independent Petroleum Association of New Mexico and several landowners are suing Mora County and its Board of County Commissioners to challenge a recently enacted ordinance prohibiting fracking.[61] In addition, the Ohio Supreme Court heard oral arguments earlier this year in State of Ohio ex rel. Morrison v. Beck Energy Corp., et al, a case in which the City of Munroe Falls is challenging the appellate court’s ruling that several of its ordinances regarding oil and gas operations are preempted by state law.[62]

Needless to say, the law is unsettled on this issue. Although there is some question as to whether the Denton fracking ban can withstand judicial scrutiny, if passed, the ban is certain to spawn a significant amount of litigation.

[1] Earl L. Hagstrom, State Legislation vs. Municipal Home Rule Over Fracking, Law 360, (Mar. 24, 2014 5:29 PM), http://www.law360.com/articles/520360/print?section=california.

[2] Nicholas Sakelaris, Denton frack ban won’t solve the problem, mayor says, Dallas Business Journal, (Jul. 21, 2014, 9:02 AM), http://www.bizjournals.com/dallas/blog/2014/07/denton-frack-ban-wont-solve-the-problem-mayor-says.html?page=all .

[3] Sakelaris, supra note 2.

[4] Id.

[5] Nicholas Sakelaris, Denton extends drilling moratorium until 2015; vote on frack ban looms, Dallas Business Journal, (Sept. 10, 2014, 11:21 AM), http://www.bizjournals.com/dallas/news/2014/09/10/denton-extends-drilling-moratorium-until-2015-vote.html?page=all .

[6] Richard L. Burleson, Burleson: Denton fracking ban could lead to a crippled Texas economy, Houston Chronicle (Aug. 1, 2014, 2:28 PM), http://www.chron.com/opinion/outlook/article/Denton-fracking-ban-could-lead-to-a-crippled-5663368.php.

[7]Id.

[8] Id.

[9] Sakelaris, supra note 2.

[10] Marissa Barnett, Denton voters to consider state’s first ban on fracking, Dallas News, (Sept. 23, 2014, 10:53 PM), http://www.dallasnews.com/news/metro/20140923-denton-voters-will-consider-ban-on-fracking-a-first-in-texas.ece.

[11] Alex Dropkin, What a Ban on Fracking in Denton Could Mean for the Rest of Texas, StateImpact Texas, (April 8, 2014 9:13 AM), http://stateimpact.npr.org/texas/2014/04/08/what-a-fracking-ban-in-denton-could-mean-for-texas/.

[12] Nicholas Sakelaris, Frustrated Denton Councilman sees fracking ban as the only option, Dallas Business Journal, (Sept. 23, 2014, 12:08 PM), http://www.bizjournals.com/dallas/blog/2014/09/frustrated-denton-councilman-sees-fracking-ban-as.html?page=all.

[13] Fracking ban initiative becomes Measure P on November ballot, Santa Maria Times, (June 26, 2014 12:00 AM) http://santamariatimes.com/lompoc/news/local/fracking-ban-initiative-becomes-measure-p-on-november-ballot/article_bff3e0fb-ad67-520a-93fa-4e6d1165c454.html.

[14] Elizabeth Cook, San Benito County Divided Over Fracking Measure On November Ballot, CBS San Francisco, (Sept. 30, 2014 8:10 PM), http://sanfrancisco.cbslocal.com/2014/09/30/san-benito-county-divided-over-fracking-measure-on-november-ballot-campaign-2014-hydraulic-fracturing-oil/.

[15] Fracking bans, minimum wage among local measures, Houston Chronicle, (Oct. 4, 2014 5:22 PM), http://www.houstonchronicle.com/business/energy/article/Fracking-bans-minimum-wage-among-local-measures-5801489.php.

[16] David DeWitt, Fracking ban proposal will go on November ballot, The Athens News, (Feb. 19, 2014), http://www.athensnews.com/ohio/article-41775-fracking-ban-proposal-will-go-on-november-ballot.html.

[17] Sara Dorn, Anti-fracking bill of rights will be on Gates Mills November ballot after village officials change stance, Cleveland.com, (Sept. 8, 2014 12:30 PM), http://www.cleveland.com/hillcrest/index.ssf/2014/09/anti-fracking_bill_of_rights_w.html.

[18] Election 2014: Fracking Bans on the Ballot, Common Dreams (2014), http://www.commondreams.org/election-2014-fracking-bans-ballot.

[19] David Skolnick, Anti-fracking charter amendment to be on Nov. 4 ballot in Youngstown, Vindicator, (Sept. 3, 2014).

[20] Rachael Seeley, Momentum shifts in favor of development in Colorado, Unconventional Oil & Gas Report, (Oct. 16, 2014), http://www.ogj.com/articles/uogr/print/volume-2/issue-5/momentum-shifts-in-favor-of-development-in-colorado.html.

[21] Id.

[22] Id.

[23] Id.

[24] Jerry Olenyn, Anti-fracking measure headed to 2016 Ballot, KRCR News, (Aug. 26, 2014), http://www.krcrtv.com/news/local/antifracking-measure-headed-to-2016-ballot/27740486.

[25] David O. Williams, A Big Oil and Gas Drilling Battle Brews in Colorado, Government Executive, (Aug. 4, 2014), http://www.govexec.com/state-local/2014/08/colorado-fracking-local-drilling-regulations/90440/.

[26] Sean McLernon, Calif. City Fracking Ban Faces Industry Challenge, Law360, (July 24,2014, 7:35 PM), http://www.law360.com/articles/560717/calif-city-fracking-ban-faces-industry-challenge.

[27] Kate Taylor & Thomas Kaplan, New York Towns Can Prohibit Fracking, State’s Top Court Rules, The New York Times, (June 30, 2014), http://www.nytimes.com/2014/07/01/nyregion/towns-may-ban-fracking-new-york-state-high-court-rules.html?_r=0.

[28] Erin Miller, Council OKS ban on fracking, Hawaii Tribune Herald, (Oct. 17, 2013 12:05 AM), http://hawaiitribune-herald.com/sections/news/local-news/council-oks-ban-fracking.html.

[29] Nora Carnevale, Council votes to officially ban fracking in town, The Princeton Sun, (Sept. 25, 2014 2:55 PM), http://theprincetonsun.com/2014/09/25/council-votes-officially-ban-fracking-town/.

[30] New Mexico county first in nation to ban fracking to safeguard water, Los Angeles Times, (May 28, 2013), http://articles.latimes.com/2013/may/28/local/la-me-fracking-ban-20130529.

[31] Heather Palmer, Battles Continue Over Local Bans on Hydraulic Fracturing, The National Law Review, (July 28, 2014), http://www.natlawreview.com/article/battles-continue-over-local-bans-hydraulic-fracturing.

[32] Jason Keyser, No vote on Illinois oil and gas fracking rules until November, Penn Energy, (Oct. 15, 2014), http://www.pennenergy.com/articles/pennenergy/2014/10/no-vote-on-illinois-oil-and-gas-fracking-rules-until-november.html?cmpid=EnlWeeklyPetroOctober172014.

[33] Christopher Behnan, ‘Fracking’ stirs up controversy, Livingston County Press (Sept. 15, 2013).

[34] Simon Lomax, The Campaign Goes On: ‘Ban Fracking’ Groups Target New Colorado Task Force, Breaking Energy, (Sept. 2, 2014).

[35] Travis Bubenik, Big Bend Area Residents call for Local Fracking Ban, StateImpact Texas, (July 2, 2014 4:16 PM), http://stateimpact.npr.org/texas/2014/07/02/big-bend-area-residents-call-for-local-fracking-ban/.

[36] Colorado Oil & Gas Assoc. v. City of Longmont, Colorado, No. 13CV63, at 2 (Dist. Ct.—Boulder Cnty. July 24, 2014).

[37] Id. at 1.

[38] Id. at 2.

[39] Id. at 17.

[40] Id. at 16.

[41] Id.

[42]Cathy Proctor, Longmont, other groups appeal judge’s order that tossed city’s fracking ban, Denver Business Journal, (Sept. 11, 2014 5:54 PM), http://www.bizjournals.com/denver/blog/earth_to_power/2014/09/longmont-other-groups-appeal-judge-s-order-that.html?page=all.

[43] Northeast Natural Energy, LLC and Enrout Properties, LLC v. The City of Morgantown, West Virginia, No. 11-C-411 (W.Va. Cir. Ct.—Monongalia Cnty. Aug. 12, 2011).

[44] Id. at 1.

[45] Id.

[46] Id. at 2.

[47] Id. at 6–7.

[48] Robinson Township v. Commonwealth, 83 A.3d 901, 915 (Pa. 2013).

[49] Id.

[50] Id. at 985.

[51] Range Res.—Appalachia, 964 A.2d 869,872 (Pa. 2008).

[52] Id. at 875.

[53] 23 N.Y.3d 728 (June 30, 2014).

[54] Id. at 739–41.

[55] Id. at 740–41.

[56] Id. at 739.

[57] Id.

[58] Id. at 745.

[59] Id.

[60] Palmer, supra note 25.

[61] Amended Complaint, Vermillion v. Mora Cnty., No. 1:13-cv-01095 (D.N.M. Jan. 10, 2014)

[62] Brief of Plaintiffs-Appellants at 3, State of Ohio ex rel. Morrison v. Beck Energy Corp., No. 13-0465 (Ohio Mar. 22, 2013).