Rocky Mountain Warning

The ban on hydraulic fracturing that will go before Denton voters this November is similar to an ongoing effort to ban hydraulic fracturing in Longmont, Colorado that was struck down by a judge earlier this week
 
The judge in Colorado found that “a ban on the technique (hydraulic fracturing) — credited with unlocking previously untapped oil and gas reserves in Colorado and nationwide — steps on the state’s authority.” Other officials in Colorado echoed these findings. Including Colorado Attorney General John Suthers, who explained that “the court got it right” because “under the current law, local governments can’t ban fracking."

Interestingly, the co-defendants along with the City of Longmont included various national environmental groups, such as Washington, D.C. based Earthworks, which has promoted the Denton ban and raised money for this "local" effort. (See their Denton ban fundraising page for more information – https://www.earthworksaction.org/donate/denton.)
 
While the inevitable lawsuits from a Denton ban obviously will be decided by Texas judges applying Texas laws, the decision in the Longmont case parallels many of the warnings that legal experts in Texas have issued regarding the Denton ban. Over the past several weeks current and former public officials across Texas have weighed in on the legal dangers of a local ban on hydraulic fracturing that would effectively bring an end to energy production in the city. 
 
Texas Land Commissioner Jerry Patterson warned that efforts in Denton must be “done in a manner consistent with existing state laws.” He went on to say that the “exercise of zoning and the authority of a city to exercise police powers is not a grant of absolute, unfettered power.”
 
Former Texas Supreme Court Chief Justice Tom Phillips made similar comments in his appearance before the Denton City Council last week, explaining that the proposed ban is unconstitutional. Following the meeting, Justice Phillips explained to the Star-Telegram that “public policy” in Texas does not allow “a municipality to decide if there will be no drilling” and to “completely ban (energy production)… runs afoul of the law.” 

Justice Phillips submitted additional information to the City Council at the public meeting and his legal opinion is available via The Denton Record-Chronicle. His opinion explains the problems with the proposed ban and gives insight as to the potential "damages that might be awarded against the City" following litigation. Phillips makes it clear that the Council should therefore "make every effort to educate the voters about the risks they might incur as taxpayers should this ordinance become law.” 
 
The prospects for the Denton ban surviving a legal challenge seem remote and the legal fees and possible damages are guaranteed to be costly. The Longmont example offers a glimpse of these high costs. The Denver Post reported that the City of Longmont “has spent $116,324 defending the ban as of June 30.” This bill is sure to rise as the case is appealed by the activists who attempted this end run around the state legislature in Colorado.

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