Galen Gatten, Arlington's assistant city attorney, speaks to City Council members during a hearing on gas drilling permits on May 23, 2023. Photo by Haley Samsel, Fort Worth Report.
By Haley Samsel, Fort Worth Report
July 28, 2023
Following five hours of arguments on July 26, a Tarrant County district court judge refused to grant a court order preventing the city of Arlington from issuing new gas well permits.
In June, French energy company Total Energies — known in North Texas as TEP Barnett — earned city council approval to drill two new gas wells in southeast Arlington.
Environmental advocacy organization Liveable Arlington and two residents living near the gas drilling site filed suit against the city shortly before the council decision was finalized. Their lawyers accuse city officials of violating Arlington’s gas drilling ordinance and failing to properly notify the public of changes to Total’s drilling plans.
While he denied the request to invalidate the city’s permits, Judge Tom Lowe also rejected the city of Arlington’s argument that the court does not have jurisdiction to rule on the issue.
Lowe recognized that Arlington’s citizens have a right to hold their officials accountable in situations like this, said Jayla Wilkerson, an attorney representing Liveable Arlington and married couple Gibran Farah Esparza and Jade Cook.
“By denying the injunction, however, (Lowe) failed to hold them accountable for their actions today,” Wilkerson said in a statement. “Both decisions are subject to interlocutory appeal, and we are discussing next steps now.”
An appeal is interlocutory when it is filed before all other claims are resolved.
City spokesperson Susan Schrock said Arlington has already issued the gas well permits to Total Energies, which previously indicated it will begin drilling on the site as soon as late 2023 or early 2024. City attorneys alleged they have governmental immunity from the lawsuit, meaning the city is protected from certain legal action.
“Both parties have the right to appeal their respective denials to the Court of Appeals in Fort Worth,” Schrock said by email.
During his ruling, Lowe said he’s “very inclined” to dismiss the lawsuit in its entirety but would consider further arguments over any claims not heard during the July 26 hearing. He anticipates the case will be decided in appeals court.
Liveable Arlington executive director Ranjana Bhandari was among the four people who took the stand to testify in the case. Farah Esparza, who shares a home with his pregnant wife and two young children within 1,320 feet of the gas drilling site on 5720 S. Watson Road, also testified.
“We stay fully committed to securing all protections granted to residents by Arlington’s gas drilling ordinance and by other applicable laws as our community faces severe negative health and quality of life impacts due to rapid expansion of drilling by French energy giant Total,” Bhandari said in a statement.
Arlington residents accuse city of violating drilling rules
Liveable Arlington, along with residents Cook and Farah Esparza, accuse the city of violating the Texas Open Meetings Act by not posting the entirety of Total Energies’ permit application at least 72 hours before the public hearing. Arlington officials are also accused of not following city ordinances during council hearings in May and June.
Senior city attorney Joshua Skinner argued those claims are invalid because Arlington officials are entitled to immunity from lawsuits or liabilities related to the permit application. The city provided proper notice of the agenda items under consideration during public meetings, he said.
If Liveable Arlington and residents have problems with new gas drilling, they should take legal action against Total Energies or the Railroad Commission, the state agency tasked with regulating oil and gas activity in Texas, Skinner said. The city is not drilling any new wells, and the site in question is not on city-owned land, he said.
“The city doesn’t really have a dog in this fight,” Skinner said during the hearing. “We’re just not supposed to be involved in this.”
Wilkerson and attorney Chrysta Casteñada, who is representing Liveable Arlington, said their issue is with the city’s permitting process. That’s why the city was named as the defendant in the case, Wilkerson said.
The permitting process came under scrutiny during the hearing when Casteñada called expert witness Phillip Kingston to testify about the city’s changes to Total’s proposed “drill zone,” a specified area that includes both existing and new gas wells. Once City Council members vote on a particular drill zone, city staff can administer new gas well permits internally without going through a public hearing.
Attorneys for Liveable Arlington argued the city changed the drill zone to exclude an existing well on the site that was about 600 feet away from a home. Any drill zone within 600 feet of a protected use, such as a home, requires approval from at least seven council members.
The permits passed 8-1, but the plaintiffs say the city did not include proper documentation of the new drill zone prior to the vote. City staff didn’t definitively prove the well was 600 or more feet away from the home, according to attorneys for Liveable Arlington, Farah Esparza and Cook.
By taking the existing gas well out of the drill zone, the city also shrunk the population of people who will be notified about future drilling, said Kingston, a land use attorney and former Dallas City Council member.
Kingston also argued that state law prevents drilling in “thickly settled,” or densely populated, areas. Skinner and fellow city attorney Cynthia Withers contested his expertise.
With the case likely headed to appeals court, Bhandari told the court she is personally invested in seeing the city follow both local and state law.
“I think rules exist for a reason,” Bhandari said. “The implications of the rules not being followed can be vast, even beyond the issue at hand.”
At the Fort Worth Report, news decisions are made independently of our board members and financial supporters. Read more about our editorial independence policy here.
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