Home rule measures in Texas and elsewhere are sending fracking-ban lawsuits to state Supreme Courts.
The city of Denton, Texas, dubbed the birthplace of fracking, made history in November when it became the first Texas city to use a home rule measure to ban fracking.
Home rule can vary from state to state. According to the Texas Supreme Court the purpose of the Home-Rule Amendment is “to bestow upon accepting cities and towns of more than 5,000 population full power of self-government, that is, full authority to do anything the legislature could theretofore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers.”
So while the extent of home rule is limited by the state constitution, home-rule cities have many inherent powers, including making amendments to their city charters. But if a city charter conflicts with state law, state law takes precedence.
After Denton passed the measure to ban fracking, lawsuits were filed against the city by the Texas Oil and Gas Association and the Texas General Land Commission. The lawsuits argue that the measure to ban fracking is illegal under state law, which gives the state the authority to regulate the oil and gas industry, and to ensure the state’s resources are fully utilized.
There is a history of local oil and gas regulation in Texas and after Denton passed this measure, Texas legislators began drafting laws that will keep such regulation solely in the jurisdiction of the state.
The case will inevitably end up in the Texas Supreme Court. Many Texas landowners will be fighting heavily to overturn the ban, as much or all of their income comes from oil and gas leases. The state itself manages several such leases and according to the Dallas Morning News has contributed $1.2 billion dollars of that income to public education.
According to a November article in the Dallas Morning News, similar arguments in other states have met with varied results. New York’s highest court upheld cities’ rights to ban fracking at the local level. Colorado and West Virginia courts have ruled against the local authority in such cases.
State senators in Florida have taken the fight against fracking a step further and are introducing a bill that will ban fracking in the entire state. Fracking isn’t a common practice in Florida but exploratory drilling near the Everglades has citizens worried. The proposed legislation will limit where and when companies can employ fracking in the state and allows municipalities to ban it.
Although not a big part of oil production in California, fracking is taking some heat there recently as well. The Center for Biological Diversity has filed a notice of intent to sue the federal government unless it bans offshore fracking in California, claiming it may violate the state coastal management program.
As these bans and subsequent lawsuits are becoming increasingly prevalent, it becomes ever more clear that the public needs to be informed and educated about mining and drilling practices. Whether state supreme courts uphold the bans or assign regulatory powers at the state level, those in the oil and gas industry need to keep working and compromising with other groups and the general public in order to keep the industry thriving.