The following is from the Oct. 23, 2014, edition of Bloomberg. Professor Jeffrey M. Gaba of SMU's Dedman School of Law provided expertise for this story.
October 24, 2014
By Nushin Huq
The residents of Denton, Texas, will vote on a ballot measure Nov. 4 that would ban hydraulic fracturing within the city limits, but the debate on the oil and gas drilling practice probably won't end on election night.
Opponents of the ban say they will file lawsuits if the referendum passes.
A complete ban on fracking in the city, located atop the Barnett Shale formation, would infringe on mineral rights, opponents of the ban contend. Supporters say hydraulic fracturing near their homes poses a health risk and will drive down property values . . .
There are currently no similar ballot measures in communities located on the Barnett Shale formation. Whether or not other cities will consider such approaches depends not only on the result of the November vote, but also on the lawsuits that are likely to follow, (Ed) Ireland (executive director of the Barnett Shale Education Council), said.
There certainly will be lawsuits if the ban passes, but how the courts will rule is not as clear, said Jeffrey Gaba, law professor at Southern Methodist University's Dedman School of Law. The city can argue that the ban is needed to protect public health and that they are only banning drilling and not surface development. As a home-rule city, Denton has more legal authority to regulate development and drilling than other cities in the state.
“There has been plenty of case law going back to the 1940s that says municipalities can regulate oil and gas companies,” Gaba told Bloomberg BNA on Oct. 10. “Cities have turned down individual permits for drilling and the courts have generally upheld that, but the oil and gas companies can argue that differs from a 100 percent ban.”
Holders of the mineral rights might file a lawsuit that states the ban is essentially a taking of land by the government and seek compensation from the city.
“The Supreme Court's ruling on takings laws is quite ambiguous,” Gaba said. Gaba and other attorneys who spoke to Bloomberg BNA all agreed that legal questions surrounding takings is one of the murkiest areas of law, and how the courts will rule is unpredictable.
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