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Do local governments have the right to ban fracking?

November 19, 2014

By Jeremy Quattlebaum, Student Voices staff writer

Last Election Day, besides deciding who will represent them in Congress, a handful of towns and counties voted to not allow energy companies to operate within their borders.

Voters in Denton, Texas, approved a ban on hydraulic fracturing, commonly known as “fracking,” within the town limits. Athens, Ohio, and the California counties of Mendocino and San Benito also approved bans on the practice. While the bans in Ohio and California look likely to go into effect, the voter initiative in Texas is heading to court.

Hydraulic fracturing is a process that is used to get natural gas out of porous rock underground known as shale. The gas, ancient organic matter that has broken down to form natural gas, is trapped in large deposits all over the country, from Pennsylvania and Ohio to Texas and California.

Water and chemicals known as lubricants, in addition to fine-grain sand, are forced into the shale rock, extracting the natural gas. The used water, now contaminated with the chemicals and natural gas, is processed for use in other industrial practices. Most of the water can be reclaimed, but 20 to 40 percent of the liquid and sand stays in the shale.

The energy industry has promoted fracking as a boon to local economies, providing jobs and money to landowners who allow the companies to extract natural gas from their land. The industry argues that fracking is safe and that there is little chance of contaminating drinking water and surface water because the process happens deep below the Earth’s surface.

But opponents fear that the process has potentially irreversible negative effects, poisoning water supplies and damaging the environment. They say that large amounts of caustic chemicals used to flush natural gas from bedrock seep into the water supply.

The voters in Denton, deep in the Barnett shale formation where fracturing was first developed, approved the ban, which will go into effect Dec. 2. The state government and energy companies have sprung into action.

“We haven’t been served yet, but we’re aware of it,” Mayor Chris Watts said after the results came in. “It’s an ordinance that’s on the books, and we’re going to defend it to the best of our ability. Come Dec. 2, it will go active.”

The Denton Drilling Awareness Group, which proposed the initiative, was ecstatic, noting that energy companies outspent the group 10-1 to try to defeat the initiative. It is also ready for a fight, knowing that passage was just the first step. “We’re in it for the long haul,” said Cathy McMullen, group founder.

The day after Election Day, the Texas General Land Office, a state government body, and the Texas Oil and Gas Association, an interest group for natural gas and energy companies, sued the town to keep Denton from enforcing the ban. Tom Phillips, former chief justice of the Texas Supreme Court and practicing attorney for the Texas Oil and Gas Association, say the ban violates the Texas Constitution. “State law trumps over local law just as federal law trumps over state law,” Phillips said. “I’m perfectly comfortable with, and confident in, our position that the state has sufficiently regulated this area, that no one municipality has the legal authority to rise up and say ‘not in my backyard.’”

The ban could have a domino effect in Texas if more towns seek to stop fracking, threatening the state’s “energy renaissance” based on hydraulic fracturing, Texas Railroad Commissioner David Porter said.

Opponents of fracking hope this will be the case if Denton wins in court. Lori Glover, the co-chair of the Sierra Club in Big Bend, an environmental group aiming to enact a similar ban in Alpine City, says a victory for Denton would create a precedent for other cities to enact similar bans.

"What happened in Denton shows people that it can be done," Glover said.

The cases, which will be decided in a state court, will decide whether the bans are constitutional under state law. New York is the only other state to determine this issue, siding with local governments based on their land-use powers.

In Texas, local governments can dictate to landowners how they can and cannot use their land for the benefit of the town as a whole. This is primarily though the permit process and the development of zoning codes. But the state government, with its history of oil production and the development of hydraulic fracturing, could override the ban, based on powers the state granted to the Texas General Land Office.

What do you think?

If you were the judge, how would you decide the Denton case? Do local interests trump private industry needs? Should the state government be able to overrule a town’s land-use powers on issues like hydraulic fracturing? Join the discussion and let us know what you think!

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Comments
3/15/2016
Stroudsburg, PA
Rory
Mr. Hanna/Stroudsburg JHS
I believe that the banning of fracking should not be decided by the town, but by the county. It would lead to a better decision because there were more people involved in deciding on whether or not it can be banned. Fracking has it's ups and it's downs. For example people may say that it causes earthquakes, it does but they are weaker than what they might have been. So, would you rather have a small insignificant earthquake now? Or a devastating one in five years?

9/2/2015
Sidney, MT
Marcus Lovegren
Mr. Faulhaber
If a local government wants to ban the process of fracking, then they are to take the blame for the lost revenue their community won't be receiving. By fracking the ground, you are allowing oil and natural gas, that was before unobtainable, to flow out of the shale. Fracking a well after drilling allows a company to increase the amount of oil produced from that well substantially. When you are fracking down thousands of feet into the rock formation, there is no threat of ground water contamination, as most water tables are within the top 50 feet of ground. There are also companies that specialize in disposing of the frack sluice and some even have portable reclaiming stations that they can take right to the well site. So, I believe that these activists' fears are unfounded and the real drawbacks of fracking can be found on the surface. Drawbacks such as a drastic increase in people coming to the community, an increase in truck traffic, and farmland being taken for well pads. I do believe, however, that a landowner, who owns the mineral rights, has complete say to whether or not a company can drill on or through his property. Landowners have paid hundreds of thousands of dollars to own their land and its mineral rights. The government shouldn't be allowed to dictate where they are not legally allowed to do so.

9/2/2015
Sidney,MT
Cade Strasheim
Mr. Faulhaber/SHS
In this case i believe the local government should be allowed to place a ban on fracking in their city. Although State government has always trumped local government, in this case i think it should be flipped. If a property owner has land with an abundant source of natural gas obviously someone is going to want to extract that gas. If the land owner does not want his or her land being fracked on they should have the right to say no. The best way they could go about banning fracking on their land is asking the local government to ban it from the city.

9/1/2015
Sidney, MT
Cyrus
Mr. Faulhaber/SHS
I don't think that local government should be allowed to ban fracking. I think that state law should overrule local law. fracking and oil should are a very good way to get jobs and help cities thrive.

6/5/2015
Stroudsburg, PA
Jordan
Mr.Hanna/Stroudsburg JHS
Yes I think that local governments have the right to ban fracking. I think that because it is their town and they can allow and not allow whatever they want. If they don't want the land and water supply to be ruined then that is the governments decision

6/5/2015
Stroudsburg,Pennsylvania
Victoria Arce
Hanna/ Stroudsburg Junior High School
It is bad... I think this because when they drill into the ground all the sand or dirt particles shoot out of the hole that they are drilling and it goes into the atsmosphere and it can destroy or help destroy the ozone. Also they might not be able to do anything with that part of land anymore because they are drilling and there will be big holes in the ground. And what they do with the with the gas may be harmful to us and to the air. So I think that local governments should ban fracking in their lands.

1/19/2015
texas
Lidia
Bradley/Nimitz
If I were a judge I would look at the points of views of the landowners who have taken the measures to buy a property in order to do with it as they please. By the state of Texas trying to over power land owners they are basically saying that the land is only theirs unless the state can a profit from them. I dont believe this to be right or respectful to any landowner. The state government does not have the full insight to what is going on in the towns therefore they can not make a wise decision in accordance to the people who land is proving such fuels. The town should be able to make decisions knowing their people and each of their situations and positions.

1/17/2015
Irving/TX
Hillary
Bradley/Nimitz
I think that the cities should have the right to control what goes on. The state or city should be able to interfere with the law and do what they need in order to satisfy the citizens.

1/15/2015
Irving/Tx
Tyler
Bradley/Nimitz
State law should trump local law, just like federal law trumps state law. The risk that the chemicals that are left in ground and could contaminate the drinking water is a questionable one, although I'm not sure how much of a danger it really is. Companies have been "fracking" for awhile now and there is no contamination of the drinking water yet. Whether or not it will stay that way is another matter. If the drinking water gets contaminated somewhere it will surely put an end to "fracking" everywhere. However, right now it is simply boosting the economy in the country. I if there is state law that says that "fracking" is legal, a local group can't ignore the state law. I think that the oil companies should be innocent until proven guilty. But if they do contaminate the drinking water they will definitely have to pay the citizens to compensate for their mistakes.

1/15/2015
Irving/Texas
Rachel
Bradley/Nimitz
It is no secret that fracking is a highly controversial issue, particularly in North Texas. Because of early 2000's legislation, the energy industry, particularly in the production of natural gas and oil, has been extremely deregulated by conservatives. The deregulation via federal law makes me inclined to say that the local ban goes against current federal statutes, and that Denton does not legally have the right to ban the practice. However, I feel personally that the practice of fracking is pretty shady. Companies who use the technique for unconventional gas extraction don't even have to disclose the chemicals they use. Something needs to be done, but what Denton is doing is...well, not legal at the moment.

1/13/2015
Irving/TX
Colton
Bradley/Nimitz High School
I would have judged the Denton case as a choice of the city. Fracking causes a great amount of water pollution and tectonic fatigue. Cities should have the right to control the activities on their land especially when it comes to a possible environmental hazard. Local interest should always come first especially when it impacts the welfare of the citizens

1/12/2015
Irving/Tx
Katherine
Bradley/Nimitz
The needs of our country, as a whole, should come first. Fracking can provide many jobs along with another source of natural gas that, if not obtained through fracking, would have to be obtained some where else, probably at a higher cost. Unless given a legitimate reason or evidence that it can cause substantial harm, fracking should not be allowed to be banned by local governments.

1/8/2015
Irving,TX
Azaria
Bradley/Nimitz
I would decide that the state should be able to override the local governments ban. A local government should not have say over something like hydraulic fracturing especially since it helps gain material that is needed by everyone.However, the state government should look into whether or not fracking is safe for the local area that it happens in, even though the needs of the country should be placed first the concerns about the locals in the fracking area should be addressed.

12/29/2014
Irving,TX
Noemi
Bradley/ Nimitz High School
Hydraulic fracking is not only an alternative energy source but also a new opportunity for jobs and economic booms. However, the legal question present is not why fracking should or should not be done. The legal question at hand is whether state governments or local governments have the authority to control the decision of whether or not facking should be banned. In order to answer the question of who should control decisions dealing with things like hydraulic fracking one must consider the reasoning behind the issues. Local government is worried that fracking will lead to irreversible consequences- contaminated water. State governments seems more concerned over authority than fracking detriments. State governments are worried of the domino effect local governments can incite if their denial of fracking goes through. Although locals have every right to worry about the harms fracking can bring, local governments should not control banning decisions. This is because while protecting the locals, the rest of the nation is in need of new sources of energy. While protecting the locals well being, they are harming others indirectly.

12/16/2014
Sidney, MT
Mary V.
Mr. Faulhaber/SHS
I do not believe that fracking should be banned by local governments. I believe that the state government should be able to decide what happens in the state not the local governments. Like Tom Phillips said “State law trumps local law just as federal law trumps over state law.” If I were the judge I would side with the State because only 58% of Denton wanted the law to pass and having this ban could have very severe negative effects on the states economy. Having fracking banned could be detrimental to the states and the town’s economy because many jobs would be lost and a lot of money would be lost. I honestly believe that the private industry trumps local interest because the private sector contributes a lot to the locals with the amount of taxes they pay, and if they aren’t doing anything illegal then they should not be stopped. Fracking could make the United States the top oil and energy producer in 2015. The stopping of the Fracking bans is what is best for the United States and the state of Texas.

12/15/2014
Sidney/MT
Kortney
Mr. Faulhaber/SHS
I don’t believe that fracking is allowed to be banned by local governments. Although the Tenth Amendment says that it is up to the states to decide on issues that aren’t specifically in the Constitution, it also ends with “or to the people.” This may seem like local governments should be able ban whatever they want, but if it’s in the state’s Constitution, they can’t go against that law, just like we aren’t able to go against federal law if it’s mandated. If I was in the Denton case, I would say exactly what Tom Phillips says in the article which is, “state law trumps over local law just as federal law trumps over state law.” I believe that if the local governments want to start banning things such as fracking it should have at least ¾ of the population in the community to agree upon the ban. I did some other research and it said that only 58% of the people in Denton wanted the ban. That is hardly over half of the people. That means almost half of the people weren’t for the ban. I also agree with Jessica by saying that if it hasn’t harmed anyone or anything, why should they have to stop? This is a valid point showing that if there isn’t any proof of harmful outcomes there shouldn’t be a ban on fracking. I believe that it is ultimately up to the states to decide on this issue because of how many jobs it produces and how much more efficient this process is. If it isn’t hurting anyone, I don’t see what is wrong with it.

12/15/2014
Sidney/MT
Hailey
Mr. Faulhaber/SHS
I believe that local governments should have the right to ban fracking, but they should get a board together consisting of people that are very educated about the subject to help understand the pros and cons of fracking. If they still feel after the professionals have examined it that it is a negative thing they should be allowed to ban fracking locally. If I was a judge in the Denton case I would side with letting local governments make their decision on the issue. I agree with Peyton when talks about states should not be allowed to overrule a town's land use powers. If the town does not think it is a safe thing then they should be allowed to do what they think is most safe for their citizens. I believe that local interests trump private industries needs most definitely. Like I said before the local government is doing what is best for all of the citizens’ not just private industry owners. All in all, I think that the local government should have the right to ban fracking but they should really investigate the process before they decide to do so. Because my step dad works in the oil-field he interacts with the fracking process daily. He believes that fracking is beneficial and people are not educated with the process and that is why they do not agree with it.

12/13/2014
Irving/Tx
Luke
Bradley/Nimitz
Taking a hammer and chisel to the foundation everything is built upon for money is never a good idea. Hydraulic fracturing does stimulate the economy, but so did farming incorrectly before the dust bowl. Although banning the practice at the local level is a good start as a strategic move, this will have to be solved at a much higher level eventually. Denton does not have the right to ban fracking, but it forces the question to reach the state government.

12/11/2014
Irving, TX
Mark
Bradley/Nimitz
I believe that the fracking bans should be removed as tracking not only creates jobs, but is also better for the enviornment. Sure, tracking may cause some pollution, but compared to the current energy resources we use, it is a much better alternative. Furthermore, I believe that state law definitely trumps local law. If local law was to be dominant, it would cause such a great division between each town that they might as well be their own separate state.

12/11/2014
Irving/TX
Marilynn
Ms.Bradley/Nimitz
There are both positive and negative effects when fracking that come into account, such as providing more jobs to people within the community, but also harming the water supply. But If I were the judge, I would allow Denton to ban fracking because it is a local issue and they are wanting to ban it for safety reasons. Because this case is focused on a local area where the people within the area clearly do not want their property/area from being fracked, this is a reason to why the local government has the right to ban fracking. It is important to take into consideration the voices of those who live within an area that is being affected by an important issue. That being said, the state should not be allowed to overturn a town's land use powers on issues such as this one for money & business reasons, because the safety and the wants of the people who live within that area is more important.

12/10/2014
Irving/Texas
Peyton
Bradley/Nimitz
If I was a judge for the Denton case, I would let Denton keep the ban. I do feel that local interests trump private industry needs. The locals of the area being "fracked" are the ones who have to drink the water from that underground area. If it is contaminated, they should have every right to place a ban on whatever is contaminating it. The state shouldn't be allowed to overrule a town's land-use powers, because it is important to put the people's needs above the business deals. It's not all about the money, but should be more about the safety and wishes of locals,especially if the fracking is being done on their property.

12/10/2014
Irving,TX
Miguel
Bradley/Nimitz
Though fracking can have a very positive effect on the local economy of a place, it can also be very environmentally harmful to the locals. Fracking is one of the primary methods of extracting natural gas in America, and in Texas, it is seen as a continuation of Texas’ energy importance. The effects of fracking though, can be very bad to the people around the place it occurs. Fracking involves chemicals being pumped in deep underground, which then can leak into the local freshwater resources. The state and country as a whole may benefit because of fracking, but the locals of a place where it occurs may suffer. Local governments should have a complete right to ban fracking. The locals are the ones that will be harmed because of fracking, if they wish to not be harmed, they shouldn't. They should be able to protect themselves from things they see as harmful. Them not having the right to ban fracking means that they would have to unwillingly sacrifice themselves for the profits of natural gas, something that isn’t very humane. I believe local governments have the right to ban fracking.

12/10/2014
Irving,TX
Miguel
Bradley/Nimitz
Though fracking can have a very positive effect on the local economy of a place, it can also be very environmentally harmful to the locals. Fracking is one of the primary methods of extracting natural gas in America, and in Texas, it is seen as a continuation of Texas’ energy importance. The effects of fracking though, can be very bad to the people around the place it occurs. Fracking involves chemicals being pumped in deep underground, which then can leak into the local freshwater resources. The state and country as a whole may benefit because of fracking, but the locals of a place where it occurs may suffer. Local governments should have a complete right to ban fracking. The locals are the ones that will be harmed because of fracking, if they wish to not be harmed, they shouldn't. They should be able to protect themselves from things they see as harmful. Them not having the right to ban fracking means that they would have to unwillingly sacrifice themselves for the profits of natural gas, something that isn’t very humane. I believe local governments have the right to ban fracking.

12/9/2014
Irving, TX
Jonathan
Mrs. Bradley Nimitz High School
As a judge I would let the ban stand because its a majority vote. Its for the care and security of the people, or the ones that this country is suppose to be for. In the political hierarchy the state does have the terms to overrule a towns decision due to the fact that is how the system is, is it right though I would say defiantly not. Yet because this world is blinded by money and acts in business like manners the peoples well being and since of security is not always put before other "important decisions".

12/9/2014
Irving/Texas
Kierria S.
Bradley/Nimitz
Even though I’m a person who respects environmental safety, it is pointed out in the constitution that States’ powers topped local cities powers because of the hierarchy of political knowledge and experience. Fracking is quite harmful, mainly since the town’s water can be contained chemicals that will harm our bodies. If the energy companies are going to use fracking, then they should get an approve agreement with the hazard department to see if there are any precaution to take into consideration. Unfortunately, most states do have more say over what goes on in there yard than local, so it would be ruled in the states favor on whether there needs to fracking or if there needs to be another alternative.

12/8/2014
Irving/Texas
Gabriel M
Bradley/ Nimitz
If I were a judge I would allow the City of Denton to keep the ban because, the people voted for it. When looking at the case it should not be looked at from a business standpoint, but from a perspective where the people who live in the area are happy. The state should not overrule the town’s decision because, it would overreach the powers of local governments and would open up similar cases across the U.S. of businesses not being satisfied with what they can and can’t do in an area. Money should not run the government, the interest of the people should.

12/2/2014
Murrieta/California
Curtis
Mr.Jabro/Creekside HIgh School
If I was the judge and I had to decide on whether or not local interests trump private industry needs I would first look into how the constitution was written concerning matters such as this. I would also look at known facts about hydraulic fracturing, who it benefits, and the possible damage that could be done to society and the economy. I believe that if its not going to benefit the people in the long run then it shouldn't be put into effect. I also believe that a legitimate decision needs to be made by the people for the people. I believe that in certain cases the government knows whats best but this particular one I believe is all about the money and being on top, not about the people at all. From what I've heard about hydraulic fracturing and what I've read in this passage has led me to believe at this moment in time that the court should side with the people and not with private industry.

12/1/2014
Irving/TX
Jessica
Ms. Bradley/ Nimitz High School
Local interest should be able to say something about what is happening in their town especially if it can involve their health. Although fracking is said to be done properly without contaminating anything, one can never be too sure. Proper research and testing should be done on fracking. But of course the state should be able to overrule town’s land-use powers. They know what they are putting at risk and believe that fracking is being done safely. If past history on fracking show that nothing has gone wrong in the towns, then there should be nothing wrong with continuing it. Fracking should not be entirely banned, but it should be controlled on the amount.

11/26/2014
Murrieta
Kailee
Jabro/Creekside
In the Denton case I would say the ban should be enforced if the the natural gas is poisoning the air for the citizens. I think the local people should be considered over the company. I think the state government should be able to interfere with the local law and do what they need to do to support the state.

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