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First Texas City to Ban Fracking Cites "Public Nuisance" in Lawsuit Response

By Steve Horn - Posted on 04 December 2014

Cross-Posted from DeSmogBlog

Attorneys representing Denton, Texas, the first city to ban hydraulic fracturing ("fracking") in state history, have issued rebuttals to the two lawsuits filed against Denton the day after the fracking ban was endorsed by voters on election day. 

Responding to lawsuits brought by attorneys with intimate Bush family connections — with complaints coming from both the Texas General Land Office and the Texas Oil and Gas Association — the Denton attorneys have signaled the battle has only just begun in the city situated in the heart and soul of the Barnett Shale, the birthplace of fracking. 

In its response to the Texas Oil and Gas Association, Denton's attorneys argued the Association did not provide sufficient legal evidence that the Texas constitution demarcates the Texas Railroad Commission or the Texas Commission on Environmental Quality as the only governmental bodies that can regulate or permit fracking.

"Nowhere in...the Petition as a whole, does Plaintiff identify what regulations have been passed by the Texas Railroad Commission or the Texas Commission or Environmental Quality that allegedly occupy the 'entire field' rendering the [ban] preempted and unconstitutional," wrote the attorneys. "City requests the Court to order Plaintiff to replead that claim with greater specificity to meet those fair notice requirements."

Industry-friendly Railroad Commission (RRC) chairman Christi Craddick is on the record stating that the RRC will continue to issue permits despite the fact Denton citizens voted for a ban.

The Denton attorneys also argued that fracking is a "public nuisance" and "subversive of public order" in defense of the fracking ban.

Denton Response to Texas Oil and Gas Association Lawsuit
Image Credit: Denton County, Texas

General Land Office Response

In response to a lawsuit by the Texas General Land Office  an organization soon to be headed by George P. Bush, nephew of George W. Bush and son of likely 2016 Republican Party presidential candidate Jeb Bush Denton's legal team has argued for a venue change.

Currently in Travis County, Denton's attorneys believe the case should be moved to Denton County because the legal questions at hand center around fracking in Denton and not Travis.

"Plaintiff’s suit concerns mineral interests in public lands located in Denton, Texas. Plaintiff is the manager of those interests," wrote the Denton team.

"Plaintiff brought this suit in Travis County, Texas but does not cite to any specific statutory provision upon which it relies to establish venue for this case in Travis County...The City further asserts that venue of this dispute is mandatory in Denton County, Texas and the case should be transferred to that county."

Denton Response to Texas General Land Office Lawsuit
Image Credit: Travis County, Texas

Like the Texas Oil and Gas Association response, the Denton attorneys argued that fracking is a "public nuisance" and "subversive of public order" in the affirmative defense portion of their legal response.

"Watershed Moment"

Denton has set aside a $4 million fund to assist its legal response.  

"The Denton fracking ban is a watershed moment for Texas," Cathy McMullen of Frack Free Denton said in a press release. "If state officials truly support local control and the rule of law, they must defend our community’s fracking ban from political attempts to overturn it. And let the courts decide whether it’s legal, as we are sure it is."

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