To Quiet Calls for Fracking Curbs, Texas Bans Bans

Workers inspect a special oil-drilling rig that slides from one well to the next on a pad near Nordheim, Texas, May 7, 2015. Even as boom towns go quiet, oil production chugs along thanks to rapid gains in technology to extract more with less. Michael Stravato/The New York Times/Redux

Jeb Bush's eldest son, 39-year-old George Prescott Bush, is the latest Bush to become a politician. Last November, he was elected commissioner of the Texas General Land Office, which manages the mineral rights to millions of acres of state-owned property—the spoils of which fund public schools and benefits for veterans.

It's George P. Bush's first political office, and it has dropped him in the center of a battle raging for months before he took the position in January, one that pits Texans against the state of Texas in a debate over who gets to decide which lands are subjected to intensive hydraulic fracturing—also known as fracking—and to what extent the state gets to overrule the people who live on that land.

On May 18, Texas Governor Greg Abbott signed into law a measure that prohibits cities and towns from passing ordinances to prohibit fracking and regulate underground activity, effectively banning fracking bans like the one the city of Denton passed last November. The legislation—the first such measure to be enacted in the nation—represents a major win for the oil and gas industry and was characterized by the governor as a defense of "private property rights" and a move to limit government bureaucracy and overregulation.

"For the past century, cities in Texas have had courts and the state recognize their power to govern themselves, with the understanding that the city knows best how to protect its way of life and its citizens," says Adam Briggle, a philosophy professor at the University of North Texas in Denton, and the president of the Denton Drilling Awareness Group, which supports fracking bans. "That tradition has now been undermined."

In May, more states moved to block towns and cities from imposing municipal bans on fracking, an extraction technique in which energy companies blast hydrocarbons from rock thousands of feet below the earth.

Since taking office, George P. Bush, a former private-equity dealmaker in the energy industry and nephew of former President George W. Bush, has backed the state's efforts to halt municipal fracking bans, stating, "We don't need a patchwork approach to drilling regulations across the state." He declined to comment to Newsweek, because of ongoing litigation, but his spokesman says his position hasn't changed.

Bush's office sued Denton, a fast-expanding university town with a population of just over 120,000, when nearly 60 percent of its residents voted to ban fracking within the town's city limits. The ban forced energy companies to stop drilling in Denton for six months and 12 days—until Texas lawmakers imposed a ban on the ban.

"We didn't start out wanting a ban," Briggle tells Newsweek. "We're Texans—we are obviously used to drilling and seeing rigs around town. For several years, we tried to work with the industry, but it was creeping into densely populated areas, and they were unwilling to compromise. That's when we voted for the ban."

The city, which sits atop the Barnett Shale—part of a wider oil- and gas-rich geological formation known as the Fort Worth Basin—is in one of Texas's top-producing counties; Denton County yields as much as 20 million cubic feet of gas a month. Over the past 15 years, more than 17,500 wells have been drilled in the Barnett Shale, yielding at least 5 billion cubic feet of natural gas a day, according to the Perryman Group, a Waco, Texas, financial analysis company, which studied Denton.

Fracking has already resumed in Denton, but even with the new law in place to protect drilling activity, Denton residents, both Republican and Democrat, are starting to picket drill sites again—and protests are expected to escalate. The Barnett Shale is what's known as a "tight" reservoir, meaning it requires more intense fracking to extract hard-to-get gas, and major portions of the field are in urban areas, with Denton at its core.

Briggle said in late May his group was planning a demonstration at City Hall, while another anti-fracking group, Blackland Prairie Rising Tide, was kicking off civil disobedience training. Residents who oppose fracking argue it has polluted Denton's water and object to increased drilling within 200 feet of the town's parks, homes and schools. "What city is proud of permitting hazardous industrial waste next to children's bedrooms?" Briggle asks.

The opposition to bans is just as great. In Texas alone, 11 bills were filed this legislative season to prevent fracking bans, while at least eight bills were introduced in Oklahoma, according to the National Conference of State Legislatures. "Some of the proposed measures would allow for certain ordinances, such as those related to road use, traffic, noise or odor, but would prevent outright bans," says Kristine Hartman, who tracks legislation, both for and against fracking, for the Washington-based organization.

The curbing of local bans is part of a long tradition of states keeping a tight rein on local governments' so-called home rule, even as they zealously guard their own powers from federal encroachment, which conservatives decry as "big government." (The states also say they are limiting government overreach by banning the local bans.) There is an even longer tradition of honoring mineral rights over the rights of homeowners, dating back to pre-colonial Europe, says Roger Flynn, a professor of energy and mining law at the University of Colorado in Boulder and director of the Western Mining Action Project.

"For centuries, mineral access to land was considered the highest, best use of land," he says. "And that was enshrined in United States law as we built this country. The mineral owner is dominant, and there's not much you can do about it if you're a homeowner who owns the surface land but not the mineral rights underneath."

In resource-rich states like Texas, homeowners frequently find they do not own the mineral rights to their homes. "In many of the cases I fight, the only way we can really challenge the mineral owner is if the drilling threatens an aquifer or an endangered species," says Flynn, who is also a practicing attorney. "Mineral production in this country still trumps hunting, recreation and wildlife."

Oklahoma Republican Governor Mary Fallin must decide whether to sign the nation's second ban on fracking bans by mid-June. The measure was passed by the Oklahoma Legislature this spring, even as the Oklahoma Geological Survey warned in April that an increase in earthquake activity in the state since 2008 amounted to "approximately 600 times the historical" trend and was "very likely" linked to the injection of fracking wastewater into disposal wells. Fallin's office declined comment. In a statement in late April following the warning, she assured residents that "Oklahoma state agencies are already taking action to address this issue and protect homeowners." She did not elaborate.

Other states are introducing similar measures to protect fracking, says the National Conference of State Legislatures' Hartman. Colorado is considering legislation that would require local governments that ban fracking to compensate royalty owners affected by the ban. Oklahoma also has legislation pending that would allow royalty owners to go after towns and cities for interfering with oil and gas exploration.

Courts have also stepped in, ruling in favor of states that are cracking down on local fracking bans. In February, Ohio's Supreme Court decided in a 4-3 vote that the state has "exclusive authority" over fracking bans, and in January a federal judge in New Mexico overturned one of the nation's earliest fracking bans, imposed in 2013 by Mora County, which was sued by a Royal Dutch Shell subsidiary.

Meanwhile, other states have banned fracking, such as Vermont, in 2012, and New York, in 2014. The Maryland Legislature approved a bill to ban fracking in the state for the next two years, although it isn't clear yet whether Governor Larry Hogan will sign it. Measures requiring additional state studies or temporary moratoriums are being considered by at least seven states. New Jersey and Hawaii have bills pending to prohibit fracking, while New Hampshire's bill to halt fracking in the state failed.

As a rule, state law trumps local law, and federal law trumps state law. But the federal government has little authority over the fracking wars erupting between states and municipalities, says Flynn. "It's not really in the purview of the federal government to step in on something like this, unless it has to do with the use of public lands or federal environmental regulation." In other words, expect a lot more protests.

What it really comes down to is balancing homeowners' rights with those of property owners holding mineral rights, Briggle says. "Right now, Denton families get only 2 percent of the mineral wealth yet bear the costs for 100 percent of the pollution," he says, citing the Perryman study. "The energy companies keep telling us how good it is for our economy, but most of Denton's jobs come from the service, education and tech industries. Most of those profiting live out of town, while most of those suffering live here."