The issue of whether a municipality has the power to outright ban hydraulic fracturing has presented itself in the State of Texas. On November 4, 2014, votors passed an ordinance that banned hydraulic fracturing in the City of Denton. The municipality sits atop the Barnett Shale. The ordinance provides, in pertenant part, as follows:
It shall be unlawful for any person to engage in hydraulic fracturing within the corporate limits of the City… The violation of or noncompliance with this article by any person, firm, association of persons, company, corporation, or their agents, servants, or employees shall be punishable as a misdemeanor and upon conviction, such person, firm, association, company, corporation or their agents, servants or employees shall be fined a sum not less than one dollar ($1.00) but shall not exceed two thousand dollars ($2,000.00), and each day any violation or noncompliance continues shall constitute a separate and distinct offense.
One day after the ordinance was passed, the Texas Oil & Gas Association commenced a declaratory action seeking a determination that the ban is preempted by Texas law and is consequently unconstitutional. Specifically, the petitioner alleges that the ban is unconstitution because it violates Texas laws. Here, petitioner allege that the Texas Railroad Commission has sole jurisdiction over all oil and gas activity in Texas and that entity is charged with adopting rules for governing oil and gas drilling activity. That Commission has promulgated retulations regarding fracturing which are inconsistent with the ordinance.
As a consequence, petitioner alleges, the ordinance is preempted by Texas law and is unconstitutional. A copy of the pleading, as well as the ordinance at issue, can be found here.