1. What is hydraulic fracturing?
Hydraulic fracturing (also called “fracking”) is a technique used to recover oil and natural gas from underground rock formations. Hydraulic fracturing involves pumping fluids (primarily water and often toxic chemicals) along with sand or other similar substances under high pressure into rock formations to crack them and allow the natural gas inside to flow to a production well.
2. Are there any concerns about hydraulic fracturing?
Yes, there are serious concerns. Hydraulic fracturing has been the subject of much controversy because of the potential effects that hydraulic fracturing and natural gas production activities have on the environment and human and animal health. While studies are ongoing and results have been conflicting, some of the concerns include the handling of toxic waste materials, potential air quality risks, potential contamination of ground water, loss of land value, and human and animal health consequences related to possible air and water contamination.
3. What is the purpose of prohibiting hydraulic fracturing in Denton?
The answer is simple. With so much scientific data unknown or in dispute about the environmental and health effects of hydraulic fracturing, the safest course is to prohibit it unless and until it is either proven safe or hydraulic fracturing technology advances so that there are no credible environmental and health risks.
4. Have other cities and states prohibited hydraulic fracturing?
Yes, there are state, county, and municipal prohibitions or other stringent limitations on hydraulic fracturing in Texas, New York, Pennsylvania, Ohio, West Virginia, New Mexico, and Colorado. For example, in Flower Mound, Texas, hydraulic fracturing is generally limited to daylight hours, and in Southlake, when an XTO well site for gas drilling was approved in 2011, the city council imposed limitations on hydraulic fracturing.
5. Will Denton get sued if it adopts a prohibition on hydraulic fracturing?
While anyone can file a lawsuit these days, the proposed ordinance does not prohibit gas drilling in Denton–it just prohibits hydraulic fracturing. A prohibition on hydraulic fracturing is not a ban on gas drilling. During the last decade, Flower Mound has been sued because of its denials of several gas drilling permits and has prevailed in every lawsuit filed against it. In fact, in one lawsuit in 2012, a pipeline company paid $55,000 to Flower Mound for a larger portion of its legal fees. It should be expected that the gas drilling industry will threaten Denton residents with lawsuits should this ordinance be adopted by the voters. However, this ordinance is defensible and Denton should prevail in a lawsuit if one is filed. For more on this, please see an independent legal analysis of the proposed ban.
6. What would a prohibition on hydraulic fracturing mean for existing gas wells in Denton?
The City would be required to review its existing gas drilling permits and determine if the hydraulic fracturing ban applies to those permits. At a minimum, if this ordinance is adopted by the voters, from that time forward hydraulic fracturing will not be allowed in Denton on any future gas drilling permits.
7. Who will enforce the prohibition on hydraulic fracturing?
If adopted by the voters, the City would be required to enforce it since it is a binding City ordinance.
8. Will Denton be losing potential property tax value if it prohibits hydraulic fracturing?
No, a prohibition on hydraulic fracturing is not a prohibition on natural gas drilling. Denton will continue to receive property taxes on any gas well sites in the City. Further, property tax revenues received by Denton because of natural gas drilling are not dramatic, and over the years, those property tax revenues steadily decrease anyway.
9. Why can’t we just ban gas well drilling?
A complete ban of drilling would result in a Texas court finding that there has been an unconstitutional taking of property in violation of the Texas Constitution. That case has not yet been litigated in Texas, but most cities shy away from an outright ban.
10. Gas industry representatives have asserted that the proposed ordinance is preempted by state law, meaning the City cannot regulate hydraulic fracturing. Is that true?
No. Effective 01/01/2014 the state of Texas has adopted new rules for hydraulic fracturing in Texas. Those rules are found in the Texas Administrative Code; however the new rules do not preempt municipal regulation of hydraulic fracturing. First, there is no doctrine of implied preemption under state law ( meaning that just because the State enacts legislation does not imply that a city is powerless to address the issue) and second, for any municipal regulation to be preempted by state law, the State Legislature must do so “with unmistakable clarity.” There is nothing in the new State rules that specifically preempt the City from adopting the ordinance as proposed.