Fracking goes to the ballot: Multiple venues to vote on hydraulic fracturing bans tomorrow

On November 4th, Denton residents will vote on whether hydraulic fracturing should be permitted within the city limits.[2] This issue initially was before the Denton City Council; however, rather than pass the ban itself, the Council opted to place the ban on the ballot for the November elections.[3] Although some members of the Council desired to pass the ban, they ultimately were unable to garner sufficient support from the other members.[4] Denton currently has a moratorium in place prohibiting drilling until January 20, 2015.[5]This proposal has spawned a panoply of divergent views. Some Denton residents state that they simply desire that any drilling operations be conducted reasonably.[6] Others argue that the ban could not withstand legal scrutiny because the Texas Constitution prohibits local laws that contradict state law.[7] Members of the oil and gas industry have stated that the proposed ordinance would subject the city to potential suits from mineral rights owners.[8] In fact, the state of Texas has stated that it would sue if its mineral interests were harmed by the proposed ban.[9] One state legislator has stated that if the ban were to go into effect, the state legislature would likely pass legislation prohibiting localities from issuing bans on fracking.[10] The Mayor of Denton, Mark Burroughs, has even suggested that the proposed ordinance is illegal.[11] Aside from the legal ramifications, it is estimated that a ban on hydraulic fracturing could result in Denton losing a significant amount of jobs and revenue.[12]
B. Local fracking bans in other states

Denton is not the first city to attempt to prohibit hydraulic fracturing. After November 4th, other cities could also have local legislation barring hydraulic fracturing. Residents in the following locations will vote on legislation barring hydraulic fracturing very soon: Santa Barbara County, California;[13] San Benito County, California;[14] Mendocino County, California;[15] Athens County, Ohio;[16] Gates Mills, Ohio;[17] Kent, Ohio;[18] and Youngstown, Ohio.[19] Residents in Colorado were prepared to also vote in November on similar legislation—Initiative 89.[20] Under Initiative 89, local governments would have the authority to pass laws superseding state laws regarding hydraulic fracturing.[21] However, Governor John Hickenlooper agreed to a compromise with U.S. Representative Jared Polis to remove the initiative from the November ballot.[22] Instead, a commission will be formed to provide recommendations to the state on fracking regulations.[23] Voters in Butte County will also vote on a fracking ban, but the measure will not be placed on a ballot until the November 2016 election.[24] Meanwhile, county employees are working on an anti-fracking initiative so that the vote would be unnecessary.

A number of cities have already enacted prohibitions against hydraulic fracturing. Five cities in Colorado have passed ordinances prohibiting fracking.[25] Likewise, several cities in California have enacted fracking bans.[26] Similar bans also exist in various cities throughout New York,[27] Hawaii,[28] New Jersey,[29] and New Mexico.[30] Rather than impose a permanent ban, some cities have imposed temporary prohibitions against hydraulic fracturing.[31] Other states, like Illinois, are currently discussing potential statewide fracking regulations.[32] Moreover, in Michigan, groups are attempting to garner sufficient votes to have a proposed fracking prohibition submitted to a statewide vote.[33] Activists in Colorado are also seeking to get a measure permitting local fracking bans submitted for the November election.[34] In fact, other communities in Texas may be following Denton’s example. For instance, activists in Alpine, Texas are attempting to gather support for a fracking ban.[35]

C. Legal ramifications of a local fracking ban

Courts throughout the country have diverged on whether localities can enact ordinances barring hydraulic fracturing. Some courts have held that such bans are invalid. For instance, in Longmont, Colorado, the City enacted a ban on hydraulic fracturing as well as the storage or disposal of waste associated with fracking within the city limits.[36] The Colorado Oil and Gas Association and others sued, challenging the legislation.[37] The City argued that its authority to enact the bill derived from the doctrine of home rule and its ability to regulate land use.[38] The court granted summary judgment in favor of Plaintiffs, reasoning that the City’s bans were preempted by the Colorado Oil and Gas Conservation Act.[39] Specifically, the court relied on the doctrine of conflict preemption.[40] Nonetheless, the court held that the ban against hydraulic fracturing may continue until the time for an appeal elapsed.[41] Because Longmont is currently challenging the district court’s judgment before the Colorado Court of Appeals, the ban remains in effect.[42]Courts in West Virginia have taken a similar approach to local bans against hydraulic fracturing.[43] The city of Morgantown enacted an ordinance prohibiting fracking not only within the city limits but also one mile outside of the city.[44] Northeast Natural Energy, LLC and Enrout Properties, LLC sued Morgantown, alleging that the ordinance was preempted by state regulations permitting fracking.[45] In response, Morgantown argued that it had authority under the home rule doctrine to issue the ordinance.[46] Relying on the field preemption doctrine, the court granted summary judgment in favor of the plaintiffs and held that the state completely occupied the field of regulating...