I voted to adopt the frack ban back on July 15 when the citizens first brought it to the council. I voted for the ban in the voting booth in November. I continue to think that major petrochemical extraction operations are incompatible with neighborhoods and urban environments. I maintain that the successful, sustainable city of the future will be one that rids itself of such things. I believe that Denton is a more desirable, livable, and economically sound city as a result of the citizens voting in the fracking ban.
And I want to continue to fight against an arrogant, destructive industry and their paid-for Texas Legislators who have displayed their disdain for democracy and demonstrated their continued inability to solve the problems that put Denton in this situation in the first place.
Many of us want to continue the fight. The question for Denton at this moment is this: what is the smartest way to fight?
It is for this reason that the council has placed an item on this coming Tuesday’s agenda to discuss whether or not to repeal the frack ban ordinance.
Back in July, the Mayor predicted that this issue was going to be resolved one way or another by the Statehouse or the Courthouse. Immediately after the successful vote to ban fracking in Denton, we were hit on both fronts. Though two lawsuits were filed immediately against the frack ban ordinance, the Texas Legislature was the first to act and did so with the passing of HB40. The existence of that legislation is now a major assist for our opponents in the still-pending litigation against Denton on the issue of the legality of our frack ban.
No one seems to be taking the stand that our frack ban is legally enforceable in light of HB 40. Likewise, no one seems to think that we have any chance of winning the pending legal action against the city, especially in light of HB40. While there might be legitimate legal grounds to challenge HB40, the current lawsuit we are in is not the best place to do it. It could very well happen elsewhere and there are growing rumors that it might.
Our current lawsuits will end in one of a few ways:
1) we agree to some sort of consent agreement – unlikely given what they might want to tack on to this or ask us to agree to as part of it
2) we let this play out and the judge issues a summary judgment – this now becomes legal precedent and will likely include a judge officially declaring HB40 constitutional with such and such legal precedence being set
3) we move to moot the lawsuits by repealing the ban – no judicial judgment on HB40 one way or another
We must think about all this in light of our long-term goals. HB40 took away much more than our frack ban. It seems to take away our ability to enforce things like our 2013 ordinance, our 2010 ordinance, or anything that some operator finds “commercially unreasonable” on any point.
The long-term fight against HB40, it seems to me, will be strengthened to the extent that we don’t allow a judge to issue a favorable ruling now on HB40. Such a ruling would have consequences not only for us, but for many other cities who have an interest in getting in a legal tangle to defend their particular ordinances in light of HB40. Such a ruling would have consequences for any city wanting to challenge HB40 head on.
Right now all we have is a very over-reactive legislature and their bad legislation. It seems clear that the industry also wants to use the two lawsuits against us as a way to put a early judicial stamp of approval on HB 40 to use in any future lawsuit that might seek to challenge it.
Repealing the ban ordinance pulls the carpet out from under the industry and doesn’t give them the pleasure of getting an early legal assist on this issue. They want us to fight this all the way in court. It gives them what they want. I don’t want to keep giving the industry what they want. I want to continue to fight, but do so in a way that best prepares us for the strategic battles ahead.
I look forward to hearing your thoughts on this, both now and on Tuesday night. Feel free to contact me at kevin.roden@cityofdenton.com or 940-206-5239.