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Anti-fracking demonstration occurs outside New York Gov. Cuomo’s office in Manhattan on Oct. 9, 2012. More U.S. cities are passing tracking bans or moratoriums. (Adam Welz/CREDO Action)

As U.S. Fracking Bans Increase, So Do Lawsuits

Legal skirmishes are mounting as more U.S. municipalities, including four in Tuesday’s midterm elections, ban the controversial oil and natural gas drilling technique known as hydraulic fracturing or fracking.

Two lawsuits were filed Wednesday, only hours after 59% of voters in Denton, Texas, adopted the Lone Star state’s first fracking ban. The city, a 45-mile drive northwest of Dallas, sits atop the Barnett Shale, one of the nation’s largest natural gas fields and a prime fracking site. Fracking blasts huge volumes of water, mixed with sand and chemicals, deep underground to blast apart shale rock and release oil and gas molecules trapped in the ore.

The Texas Oil and Gas Association and the Texas General Land Office filed suit to prevent the city from enacting the ordinance, which could take effect as early as Dec. 2. Also, state lawmakers say they will propose legislation to make such bans illegal. The association’s legal challenge says the ban violates Texas law, arguing state agencies have the power to regulate drilling and fracking.

Denton’s Mayor Chris Watts, expecting a legal challenge, said the city council is committed to defending the ordinance.  In a statement, he said it will “exercise the legal remedies that are available to us.” The city has challenged fracking before. Last year, as residents grew concerned about the possible health effects of nearby well sites, it adopted rules to keep drilling 1,200 feet from homes and schools. Some drillers say they’re covered by old rules that allow wells within 250 feet.

From coast to coast, as thousands of new fracking wells have led to a boom in energy production, dozens of municipalities have approved fracking bans or temporary moratoriums. Aside from 80 bans and 100 moratoriums in New York, some of which have expired, about 29 other local, tribal or state bans have passed in the United States, says Karen Edelstein of FracTracker Alliance. (See: “Battles Escalate Over Community Efforts to Ban Fracking.”)

A record number of anti-fracking measures appeared on Tuesday’s ballots, and four passed — in Denton, the southeastern Ohio city of Athens and the northern California counties of San Benito and Mendocino. A proposed ban in California’s wealthy Santa Barbara County, where fracking is already occurring, was defeated after a coalition of energy companies waged a costly opposition campaign.

Not surprisingly, energy-industry groups are challenging some of these measures in court, and they’ve seen success. The Colorado Oil and Gas Association filed a lawsuit against a fracking ban passed by the city of Longmont in November 2013. In July, Boulder County District Judge Dolores Mallard struck down the ban, saying Colorado law gives the state the primary regulatory authority over oil and gas operations. “There is no way to harmonize Longmont’s fracking ban within the stated goals of the [Colorado] Oil and Gas Conservation Act,” she ruled.

A month later, another Colorado judge overturned Fort Collins’ five-year moratorium on fracking. Like Mallard, District Judge Gregory Lammons said the moratorium “impedes a state interest and prohibits what the state law allows.”

Yet in July, in a 5-to-2 decision, the New York State Court of Appeals upheld fracking bans approved by the towns of Dryden and Middlefield, according to FrackingInsider, which tracks regulatory, legal and economic developments.

The opposite verdicts are due largely to varying state laws on the authority of local governments to regulate oil and gas development. In 2012, the Pennsylvania General Assembly passed statewide standards that preempted local bans on drilling, but several towns have successfully challenged the law in lower courts.  (See related series: “The Great Shale Gas Rush.”)