Note: I am not a lawyer. I know it. Now you, for the record, know it.
We should never underestimate the arrogance, ignorance, and shortsightedness of those with money and power. I believe that the State of Texas and the oil and gas industry may have some glaring weaknesses in their attack on Denton and local control. But I am hearing and seeing a lot of give up by the city, citizens, and special interest groups. I am hearing and seeing a lot of “let’s lose the battle so we can win the war.” I would argue that we are in the middle of two crucial battles and that each must be won or there is no war to win. Again, I am clearly not a lawyer – but I do know that I am sworn to uphold the ordinances of our city and the laws of the State of Texas. At this moment I think our hydraulic fracturing ban is legal. At this moment I question the legal application of HB40 to Denton. The following ideas, interpretations, and recommendations are my own and I am sharing them with fellow citizens and with my fellow city council members as part of the larger discussion and call for ideas on the topic of Denton’s next steps in its lawsuits over the hydraulic fracturing ban and implications of HB40.
It appears to me that many of us are making the mistake of looking at the two lawsuits filed against our city by the Texas General Land Office and the Texas Oil and Gas Association as the potential statewide battle ground in a war between HB40 and Local Control. Citizens, staff, council, and special interest groups have all expressed fear that our two lawsuits are not the right cases to battle HB40. I agree, but for what I think may be different reasons. Here is why. Simply look at the timeline. The two lawsuits we have against us were filed moments after we voted our ban into law last November. HB40 was only signed into law by our Governor a few weeks ago. The lawsuits filed against us are not about HB40 and if the plaintiffs or judge try to make it about HB40 wouldn’t a proper rebuttal be The Texas Constitution Bill of Rights Article 1, Section 16 (banning retroactive laws among other things)?
==== FIRST: A SEQUENCE OF EVENTS AS I UNDERSTAND THEM ====
- Oil and Gas operators move into Denton to tap into the Barnett Shale with the practice of hydraulic fracturing in urban settings.
- Denton struggles for years to establish proper permitting procedures, ordinances, and enforcement of ordinances.
- Denton finally starts to get it together in terms of ordinances but has trouble enforcing them.
- A PUBLIC NUISANCE – Having grown tired of having their rights to be protected from public nuisances (including but not limited to localized air pollution, unsafe noise levels, and general threats to immediate safety from industrial processes) by the oil and gas operators, the citizens petition city council to pass a ban on hydraulic fracturing.
- DENTON PUTS THE BAN ON HYDRAULIC FRACTURING UP FOR A VOTE – City council chooses to put the passing of the ban to the people to decide in a general election (November 2014), where the citizens vote to approve the city-wide ban on hydraulic fracturing (note that it was not a comprehensive ban on drilling, just a ban on the specific practice of hydraulic fracturing).
- PASSING THE BAN ON HYDRAULIC FRACTURING IN DENTON AND LAWSUITS – Immediately after the citizens passed the ban on hydraulic fracturing the Texas General Land Office and the Texas Oil and Gas Association file lawsuits against the City of Denton’s rights as a home rule city to regulate the public nuisances directly attributable to the practice of hydraulic fracturing.
- LET’S PAUSE AND CONSIDER FOR A MOMENT – Those two lawsuits are a legal challenge based on law that was on the books prior to HB40. The basic claim is that Texas Railroad Commissioner has the sole jurisdiction over drilling operations within the state, is solely responsible for the prevention of surface and subsurface water pollution, and that no home-rule ordinance can contradict state law. That is fine, our ban on hydraulic fracturing was not about regulating surface and subsurface water (the domain of the Texas Railroad Commission). Our hydraulic fracturing ban was put in place as a home rule city’s contractual duty and responsibility to regulate public nuisances on behalf of its citizens. THAT IS THE BATTLE IN THES LAWSUITS. A WIN OR LOSS IN THESE TWO CASES NEITHER VALIDATES NOR INVALIDATES HB40 BECAUSE HB40 WAS MADE LAW AFTER THESE LAWSUITS WERE FILED. If HB40 is even mentioned as a consideration by the plaintiffs in these cases then their entire argument becomes a simple violation of Article 1, Section 16 of the Texas Constitution Bill of Rights (http://www.constitution.legis.state.tx.us/)
- HB40 IS PASSED INTO LAW SPRING OF 2015(http://www.capitol.state.tx.us/tlodocs/84R/billtext/html/HB00040I.htm) – It has been widely referred to as the “Denton Bill” and taken as a reaction to our ban on hydraulic fracturing, the way that ban was brought forward into being via citizen referendum, and as a preventative measure to legally establish the state’s authority in the future. Quote:
|“… it is in the state’s interest to explicitly confirm the authority for regulation|
|of oil and gas activities within the state. The legislature intends that this Act|
|expressly preempts regulation of oil and gas operations by municipalities and|
|other political subdivisions that is already impliedly preempted by state law.”|
=======THE TWO LAWSUITS ==============
NOW LET’S BRIEFLY REVISIT OUR CURRENT LAWSUITS – If the State of Texas felt as though it had already clearly established and confirmed authority for regulation of oil and gas activity and had done so in a way that preempted (or made illegal) regulation of oil and gas operations by municipalities why did they see a need to propose and enact into law HB40? Here is why. Because they know and fear that the legal arguments by the plaintiffs in the cases challenging our hydraulic fracturing ban are weak. And should the ruling in these cases stand in favor of Denton then the door is left wide open for all other municipalities to pass similar local ordinances. The State of Texas knows that these cases are very winnable by Denton and passed HB40 to shut that door on other cities taking similar action in the future. We can win the two lawsuits filed against the city. But don’t get confused, these two lawsuits are not about HB40. A win or loss in those cases does not validate or invalidate HB40. WE CAN AND SHOULD DEFEND OUR BAN IN THESE TWO LAWSUITS. AT THE TIME THE LAWSUITS WERE FILED OUR BAN WAS LEGAL. THERE IS NOW A STATE LAW THAT RETROACTIVELY MAKES OUR BAN UNENFORCEABLE. THEREFORE THERE IS NO GROUND FOR THESE LAWSUITS. IF ANYTHING, LET’S AMEND OUR HYDRAULIC FRACTURING BAN IN SUCH A WAY THAT WE ACKNOWLEDGE IT IS UNENFORCEABLE SO LONG AS HB40 IS ON THE BOOKS.
========CHALLENGE HB40 ==========
WHERE IS THE OFFENCE? LET’S QUESTION HB40’s CONSITUTIONALITY – Let’s keep this simple and grounded in the fundamental constitutional rights granted to our citizens by both the Federal and State government. Do we not have the capability to draw Denton’s offense (and defense for that matter) from two powerful and fundamental sources of our rights as a people?:
- The U.S. Constitution Bill of Rights: 10th Amendment, and
- The Texas Constitution Bill of Rights: Article 1, Section 16
The U.S. Constitution Bill of Rights: 10th Amendment “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Constitutional Question 1: At the moment the City of Denton put its hydraulic fracturing ban in place was there any Federal or State legislation that had already been established to effectively and clearly make claim to this power of oversight or regulation, or otherwise indicate that a local ordinance would be illegal? Yes or No? The fact that the states of New York and Maryland have successfully put into place bans on hydraulic fracturing tells us that clearly the federal government had no claim to this power. With regard to the state, we can argue that the perceived need for the State of Texas to enact HB40 is a strong indicator that the state had not clearly made their claim to sole oversight and regulation of oil and gas operations at the local level (if they had why would the state need to pass such legislation?).
The Texas Constitution Bill of Rights: Article 1, Section 16 “BILLS OF ATTAINDER; EX POST FACTO OR RETROACTIVE LAWS; IMPAIRING OBLIGATION OF CONTRACTS. No bill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shall be made.”Constitutional Question 2: Can the State of Texas, or any other party engaged in a lawsuit against the City of Denton, legitimately prove that the application of HB40 to the City of Denton is not a retroactive law, or more importantly, a law which impairs the ability of our City Council to fulfill the contractual obligation (oath as an elected official to uphold the local ordinances of the City of Denton) it has to the citizens to uphold the ordinances of the City of Denton? Yes or No? Wouldn’t any legal action and judgment against the City of Denton with regard to HB40 would be a violation of the Texas Constitution?
======= WHAT I THINK WE SHOULD DO ================
DO NOT REPEAL THE BAN. WE RISK EVERYTHIONG IF WE REPEAL THE HYDRAULIC FRACTURING BAN – The State of Texas wants us to repeal our hydraulic fracturing ban. That is exactly what they want us to do. They have put fear into the hearts of those who are supposed to fight for us. It’s a trap that we don’t need to fall into. If we repeal our ban we eliminate the state’s risk of losing the two current lawsuits filed against the City of Denton – losses which would prove that the Texas Railroad Commission authority to regulate surface and ground water pollution does not cover the many other public nuisances that our ban on hydraulic fracturing was intended to safeguard our citizens against. And if we repeal our ban we also lose the ability to challenge the constitutionality of HB40 against our current ban. Further, we lose the right to put a hydraulic fracturing or similar ban in place in the future even if we were to win a challenge to the constitutionality of HB40 against our previous (repealed) ban.
CONCLUSION AND RECOMMENDATION – Based on what is presented above, it is my current opinion that the City of Denton should:
- Immediately file a suit (potentially a class action suit which would pull in other cities across the State of Texas) against the State of Texas challenging the constitutionality of HB40.
- For the purpose of making irrelevant the two existing lawsuits against the City of Denton due to there being no damages incurred or foreseeably incurred, immediately amend the City of Denton’s hydraulic fracturing ban in a way that acknowledges that HB40 renders the ban unenforceable and therefore the ban will not be enforced by the City of Denton so long as HB40 is in place, and…
- Immediately extend the moratorium on hydraulic fracturing until judgment or settlement is reached in the City of Denton’s suit against the State of Texas.
At the last council meeting it was decided that we needed more ideas brought to the table, we needed more options to consider and weigh. What I have provided above is my attempt to bring something different to the table – an idea, an alternative. Clearly I am not ready to give up. What are your thoughts? What are your ideas?
PS – Do you realize that it only takes a simple majority (4/7 council votes) to remove an ordinance put in place by a citizen vote? Four council members can erase the voice of nearly 60% of our citizens. I have a problem with that and want that changed. Do you?
Your humble representative,
Keely G. Briggs
City Council Member – District 2