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Denton, TX, 'Strategically Repeals' Frack Ban; Lawsuits Move Forward

One month after Texas enacted a law that prohibits localities from enacting bans on hydraulic fracturing (fracking), the Denton City Council voted 6-1 early Wednesday to "strategically repeal" its ordinance in hopes of mollifying litigants against the city.

After nearly three hours of debate, the city council agreed to repeal Initiative Ordinance No. 2014-01, which was enacted by city voters last November (see Shale DailyNov. 5, 2014).

"If we are going to move forward and argue that we're going to moot these lawsuits, we need to repeal this hydraulic fracturing ban," City Attorney Anita Burgess said before the vote. "I don't think wordsmithing is really the right approach to take. If we're going to do it, I think the word 'repeal' needs to be in this ordinance."

But the mood among city officials was bitter. "I'll be honest with you. This is really difficult for me, because I know the right thing to do is repeal," Denton Mayor Chris Watts said, adding that at a public hearing last July, "we had a hundred people coming up here, advocating for the [ban].

"The compelling part of the story is the public vote. If we had passed this ban ourselves, most likely I'm not sure it would have stood as long as it has."

Watts added that he would only support repealing the ordinance if language was inserted that showed the city council supported last November's vote. After a short break, Burgess read a statement that said the city council "reluctantly deems it in the best interest of the citizens of this city to strategically repeal Initiative Ordinance 2014-01."

In a statement Wednesday, the city said the repeal "not only potentially reduces ongoing court costs and attorneys’ fees related to ongoing litigation with the Texas Oil & Gas Association [TXOGA] and the General Land Office [GLO], but it also significantly mitigates problems and perceptions associated with operational discrepancies between the ban ordinance and newly adopted state law, to which the city is bound to comply."

Councilwoman Keely Briggs cast the lone "no" vote.

Last month, Texas Gov. Greg Abbott signed HB 40 into law, which effectively prohibits the state's municipalities from enacting ordinances that interfere with oil and gas activities, including fracking (see Shale DailyMay 18; May 4; March 31). Denton was the first and only city in Texas to ban fracking by a popular vote.

Despite repealing the ordinance that bans fracking, Denton still has in place a moratorium on new drilling permits (see Shale DailyApril 15). Jessica Rogers, an assistant to the city manager, told NGI's Shale Daily that the moratorium has been extended until Aug. 18.

The ban on fracking and the moratorium on new drilling permits have raised the ire of TXOGA and the GLO, which filed separate lawsuits against Denton shortly after the vote last November. Representatives from both organizations confirmed Wednesday that their respective lawsuits were amended on Monday, with TXOGA indicating that the change was done to reflect the passage and enactment of HB 40.

The amended GLO complaint, which was filed in Denton County District Court, seeks declaratory judgment that the fracking ban and the drilling permit moratorium are both preempted by state law.

"I'm not sure who said that if we repeal this that somehow we think it is all going away," Watts said. "I'm not sure where that's coming from, because I can tell right now I've never had that thought at all. This isn't the end, this is the beginning."

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