House Bill 40 makes Denton frac ban unenforceable

Texas Map Denton

Denton is located just north of Dallas.

Denton City Council held a meeting last night to consider its options for moving forward with the ban on hydraulic fracturing that it enacted in December of last year. The Texas legislature passed Texas House Bill 40 last month, making the Denton frac ban unenforceable.

According to the text of HB 40, “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.”

After five hours of listening to comments from citizens, the council decided to determine its next step at a later date, reports the Star Telegram. The council decided it needed more time to consider its options before making a final decision.

“While we would like to drive the bus … right now, House Bill 40 is the law of the land,” said Council member Kathleen Wazny.

Some Denton residents are asking the council to move forward with enforcement of the Denton frac ban in order to trigger litigation that would force the Texas court system to decide which law will stand. Lawyers for Denton Drilling Awareness Group, which campaigned for the frac ban, have said that the Denton ordinance could be a bad test case and have said trying to defend it in court could end with unfavorable rule making.

City Attorney Anita Burgess told the council that the ordinance is unenforceable and that the city is already negotiating with oil and gas industry and state attorneys about settling the lawsuits that followed immediately after the frac ban was put in place. Burgess said no agreement has been reached at this time.

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