Saturday, July 19, 2014
Thursday, June 26, 2014
The industry-sponsored “North Texans for Natural Gas” thinks that because we use natural gas we should
not be concerned about the negative impacts of fracking in Denton.
Here’s their logic: if you use plastics and
electricity or grill steaks, then you must accept the cancer-causing air
emissions, waste of clean water, and noise of fracking in your neighborhood.
Free Denton is not a movement against natural gas.
Rather, it is against the permitting of toxic industrial activities near homes,
schools, and parks. It is a movement for safe
and healthy communities and people’s rights to peacefully enjoy their property.
With the ban on fracking, the citizens of Denton are
taking a stand for safe and healthy neighborhoods. And the frackers’ response
is to tell us that we have to accept their poisonous activities because natural
gas is used to make lacrosse
That’s how out of touch they are. They just want us
to be meek and compliant consumers, not active citizens protecting our
children, our property, and the future of our town.
According to their absurd logic, as long as we use natural
gas we cannot reject any part of its development (even one process in one town)
no matter how dangerous it is. If that was the way we did things, we’d still be
insulating our schools with asbestos.
Frack Free Denton is all about local
self-determination: the people bearing the negative impacts of hydraulic
fracturing should be the ones to decide. We get to choose what Denton will be. And
we’ve chosen to cultivate the nation’s largest
community garden and to get a nation-leading 40%
of our energy portfolio from renewable, wind-generated
Denton has long been shaped by thoughtful citizens. Thanks to their leadership, we are already walking down a path toward
independence from the industry’s unsustainable and harmful products.
Tuesday, June 3, 2014
Friday, May 2, 2014
There are two things I want to address in this blog.
First, I have asked Dalton Gregory to remove my endorsement statement for his election from his blog and he will do so on Sunday when he returns from a trip. It was inappropriate for me to issue political endorsements like that when I am working as a member of a non-profit educational group.
Second, air quality tests that Denton DAG recently released show benzene at dangerous levels in a Denton neighborhood near gas wells.
Air monitoring is so important because in the backwards Texas regulatory system, fracking is treated as innocent until proven guilty. Even though we know the industry is using carcinogenic and toxic chemicals, the burden of proof falls on the residents to establish that those chemicals are trespassing into their neighborhoods and their bloodstreams.
Who can monitor our air to keep it safe and healthy? State agencies don’t have the funding, personnel, or equipment to even come close to an adequate monitoring program. There are 18,000 gas wells on the Barnett Shale and TCEQ has six air monitors! And when TCEQ responds to complaints, they are going to be taking measurements long after the emissions event and after the industry knows they are coming.
That means it is up to local communities to monitor the industry. Southlake, Grand Prairie, and Hurst all have monitoring programs as part of their drilling ordinances.
For two years, DAG repeatedly recommended a program be built into Denton’s ordinance.
When it came time for the final vote in January, 2013, Denton City Council, including Councilman Gregory, did not include a monitoring program in the ordinance. BUT they promised to make an air monitoring program as a stand-alone requirement. This, they said, would be even better, because it would avoid the vested rights issue so that monitoring would apply to all gas well sites – old and new.
I expected City Council would get to work on this right away. But they didn’t. In fact, in the fifteen months since they made that promise, they have had one meeting about air monitoring. Our elected officials have done nothing to monitor the air and not enough to protect the health and safety of the people who elected them.
I know lots of people pushed the issue, but I’ll just speak for myself. I wrote e-mails and made phone calls. I met with city officials to see how we could start a program. I wrote blogs trying to spur action. DAG brought Jay Olaguer, one of Texas’ leading air quality scientists, to Denton to give a presentation on monitoring. Jay and I tried to work with Denton and other cities to build a regional consortium for monitoring.
There was little cooperation and no action.
The city could have required in the ordinance that operators pay the expense of monitoring. Instead, citizens have to pass the hat to collect the thousands of dollars it takes to get Summa canister samples. They have to wait for months on end to get a few hours with one of the only FLIR cameras in the region (these cameras can cost $40,000 or more).
And when citizen test results confirm the presence of toxic chemicals, industry spouts lies about how the cameras are only seeing heat waves when in fact those cameras are designed to detect and make visible only toxic chemicals, not heat waves. This is the same old stuff out of the tobacco industry’s playbook.
The city’s failure to implement its own monitoring system has given industry the ability to say there is no danger, placing the time and expense and responsibility of proving that there is danger on the backs of the citizens instead of the city.
This is exactly why the citizens have taken the job of writing an adequate fracking ordinance into their own hands.
All of this once again goes to show why we need to ban fracking in Denton. We really, really tried to make it compatible with our city. We tried to internalize costs. We tried to provide safety and monitoring assurances. But at every turn, we met with obstacles.
We need to flip this backwards system. Ban fracking until we have proof that it can be done safely – that it can be done without sending benzene into the homes where our kids are sleeping, into the schools that they attend and playgrounds and parks where they play.
Monday, April 7, 2014
So far, the main
argument against a fracking ban – one that I have heard from nearly everyone in
city leadership – is not that it is
the wrong thing to do. Many of our elected officials agree that fracking is an
overall economic loser
for our city and is inherently
incompatible with our community. Some have even said they really would like
to ban fracking…if only we could! You see, that’s their argument: not that
we shouldn’t ban fracking, but that we can’t.
Here’s the argument: The
city does not have the authority to ban fracking. If we pass a ban, the
industry and the state will sue the city. The lawsuit will cost millions of
dollars, because Denton will almost certainly lose. This could entail financial
ruin and higher taxes. As Dr. Jean Schaake said at a recent Mayoral debate, “a
ban will sink the city. This is something to take to Austin and the Railroad
Commission,” she continued, “not to City Hall.” In sum: sadly (they will say),
the issue of legal jurisdiction trumps the well-grounded ethical
objection to fracking.
This argument is similar
to the way the moderate white clergy reacted to Dr. Martin Luther King Jr. They
said his goal was noble, but his means were untimely and misdirected. Dr.
from a Birmingham Jail was a reply to those who say “I agree with you in the
goal you seek, but I cannot agree with your methods of direct action.”
For a long time, I was
the moderate voice against a fracking ban, and I respect those in positions of
leadership who are making the moderate argument today – indeed I support some of their
campaigns for election. Temperance, after all, is a virtue, and their
position is a serious one that deserves deep and careful reflection.
The problem is that
citizens may hear this argument from so many leaders and, rather than reflect
on it, automatically assume it is the truth. They may confuse authority for
wisdom. People are especially likely to make this snap judgment, because the
argument concludes in a costly legal battle, which naturally evokes fear.
People hear this and dismiss the ban as some ill-begotten idealism that will
bankrupt the city. In this way, even though no one intends this, the moderate
argument becomes entangled with a logical fallacy, namely, appeal to fear.
I want to brush away the
cobwebs of fear that lie atop the moderate argument and cloud our efforts to
see it clearly. To do this, I’ll make two kinds of remarks. First, I set some
things in perspective. Second, I show why the ban is actually quite reasonable
What, really, are we afraid
of? I will grant that should the ban pass it will likely face legal challenge.
But the mere fact of a lawsuit should not cause us to shudder. When an issue is
of vital importance, it is nearly impossible for it to not to end up in court. The courts are forges where we test the
mettle of competing claims to justice. Some cases like Brown v. Board of Education come to form part of our collective
moral backbone. We can and often do take a different attitude toward lawsuits:
not fear, but conviction and even celebration.
The City of Denton
regularly finds itself in lawsuits. One case in point: the city has been in litigation ever since
it passed an ordinance restricting certain aspects of the payday lending
year ago). There are strong parallels here: natural gas extraction and short-term
lending both threaten citizen well-being, both ordinances prohibit certain
aspects of the business that are most harmful (hydraulic fracturing in one case
and predatory lending practices in the other), and both ordinances are
justified by the jurisdictional authority of municipalities to protect citizen
health, safety, and welfare.
Recall also that if
this, or any other lawsuit, becomes too unwieldy, the city can withdraw or
negotiate. There is never an uncontrollable slide into unmanageable legal costs
– that’s just a scare tactic.
In short, the mere fact
of litigation cannot be the problem – this is the daily bread of city politics.
Some Legal Defenses of the Ban
No, it must be that we
are almost certain to lose the
lawsuit. That’s the real problem. But is that true?
This is the most
frustrating thing about the moderate argument – the supposed fact of a near
certain loss is bandied about as an article of faith. I have never seen this
premise actually accompanied with a reasoned argument grounded in statutory or
case law and addressed specifically at the legal merits of the proposed
ordinance to ban fracking (the petition). Those who espouse it usually just
wave one hand at the colossal bogey man of the oil and gas business and the
other hand at the supposed frailty of municipal authority.
I’ve even watched this
drift into outright lies as was the case at one Planning and Zoning Commission
meeting where a Commissioner asked a city lawyer if there had ever been a case where a city actually
defeated the oil and gas industry in a lawsuit. The lawyer’s response, after
much dithering, was basically ‘no.’ But that is just patently not true – cities
have defeated the industry in Texas and around the country dozens if not
hundreds of times (see below). The moderate argument holds that there is no
legal precedent in this case, which makes it too risky. But there is a long
track record of municipalities defeating the oil and gas industry.
Consider the legal
status of home rule municipalities like Denton. One part of the moderate
argument is that home rule just doesn’t give cities as much power as we would
like. But listen to this from the Texas Municipal League:
“…home rule cities have the inherent authority to do just about
anything that qualifies as a ‘public purpose’ and is not contrary to the constitution
or laws of the state.”
That is pretty sweeping
legal authority. You can find other strong claims about home rule powers in the
Texas Local Government Code, which, for example, grants home-rule municipalities
the power to regulate the location of industrial activities and to “define and
prohibit any nuisance within the limits of the municipality and within 5,000
feet outside the limits” and the power to “enforce all ordinances necessary to
prevent and summarily abate and remove a nuisance” (Sec. 211.003
and Sec. 217.042).
Now consider the legal
status of the oil and gas business and how it challenges home rule authority.
There are two main issues here. First, the predominance of the mineral estate
that supposedly necessitates permitting this incompatible industrial land use
in residential areas. If a city refuses to allow access to minerals, then (the
argument goes) they will lose a regulatory takings lawsuit. Second, the fact
that state agencies like the Railroad Commission have jurisdiction over oil and
gas supposedly trumps local rules. If a city bans fracking, then (the argument
goes) they will lose a preemption lawsuit. Put these two together and you get
the conclusion of the moderate argument that this industry enjoys certain
special rights and is managed according to the state’s concern with developing
minerals rather than the city’s concern with protecting community integrity and
citizen well-being. But how serious are these legal challenges? Let’s consider
each in turn briefly.
One good resource for this is a law article by Terry Welch, “Municipal
Regulation of Natural Gas Drilling in Texas.” Though he notes there is an
ongoing tension in the law between the industry’s interests to develop minerals
and cities’ interest in protecting public health and safety, he chronicles several
cases where cities have defeated the industry, including cases of outright
prohibition. Courts have a long record of deferring to the judgment of local
government and the citizens they represent.
Another great resource is a law article by Timothy Riley, “Wrangling with
Urban Wildcatters.” I’ll just give you the punch line in two parts. First,
have many sticks in their regulatory bundle to successfully defend a prudently
enacted oil and gas ordinance against both partial and categorical takings
claims.” Second, and here’s the kicker, “Texas common law generally favors
municipal authority to regulate oil and gas activities…. every direct challenge to a city’s police powers has been soundly
defeated” (p. 372).
In the 1980s, the Fort Worth Court
of Appeals ruled that “any deprivation resulting from a lawful ordinance
enforced pursuant to the legitimate policing authority of a municipality does
not constitute a loss of property without due process under the law” (p. 371). A
year later, the same court found the “City’s ordinance was not preempted by
state statute, nor was it in conflict with state law, and thus posed no due
process or equal protection violation of the Fourteenth Amendment. Moreover,
the court stated that the reasonableness of a municipal ordinance is presumed
and considered controlling by courts ‘unless the unreasonableness of the
ordinance is fairly free from doubt’” (p. 371).
Now, look at some of the fracking
that is going on just 250 feet away from homes in Denton, remember the dozens
of health complaints from nearby residents, and recall that that situation will
happen again and again as the city grows despite
years of attempts to regulate it at the local level. I don’t see how one
could say a ban in such a situation is clearly unreasonable.
To be reasonable,
local oil and gas ordinances must not arbitrarily discriminate against the
industry. The proposed ban does not do that – it treats the industry like any
other business and, just like payday lending, it prohibits certain business
operations for reasons of health and safety. I guess one could argue that
banning hydraulic fracturing is analogous to 'allowing' payday lenders to
operate...just without computers, electricity, and internet. But using
computers in a workplace is not a public health threat on anywhere near the level
that using carcinogenic chemicals is. In the payday lending case, protecting
citizens does not require turning off their lights and computers. That would be arbitrary and
discriminatory. But in the case of fracking, protecting citizens does require
prohibiting the use of the chemicals and the associated process. The measure
taken is reasonable and proportionate to the threat at hand.
Of course, underneath
all of this is the fundamental legal right to private property. But even
foundational rights like this, or the right to free speech, are qualified. This is a point that Eagleridge even makes on their
website (my emphasis added):
“The basic principle of this country and the Constitution is freedom and the
unalienable right to enjoy the use of personal and real property. Certainly
not at the expense or detriment to others, but the right still
Say that someone owns
a pond and they have the right to catch the fish in it, because it’s their
property. But they use dynamite to get the fish. This creates loud noises that
disturb the neighbors and it also creates chemical runoff that pollutes
neighbors’ property. The legal (and ethical) response is to say that person can
get the fish, but they can’t use dynamite. His enjoyment of his private
property can’t prevent you from enjoying your property. If there is no other reasonable
alternative to dynamite, then that property remains inaccessible for the time
being. The appropriate response is to push for safer technologies, not to lower
the bar on public health and safety regulations in order to accommodate
is like fishing with dynamite. The ban is a recognition that we don’t yet have
a reasonable and technologically available way to access the minerals – really
what it is saying is that we have never had such an alternative – we
have just been trying to pretend that hydraulic fracturing fits that bill.
The moderates contend
that only the state has the authority to regulate oil and gas drilling. But
they cannot really mean that, because it is so obviously false. On the Barnett
Shale alone, there are dozens of municipal ordinances that constitute
regulation of the industry by local governments.
So what they must mean
is that there are certain limits to the city’s jurisdiction over the oil and
gas industry. That’s true enough, but by itself it’s a trivial statement. The
question is whether this ban as formulated on the petition exceeds those
limits. On that question, I have yet to hear anyone in city leadership offer their
Denton’s leadership holds
a very conservative view about the limits of municipal authority over the oil
and gas business. They did not adopt several of the provisions found in Flower
Mound’s ordinance out of fear of a preemption lawsuit. Yet in recent years
Flower Mound has faced five lawsuits from the industry, and they have won four
with the fifth still pending. Grand Prairie also won in a recent court
More broadly on the
issue of preemption, there is a long history of courts upholding municipal
regulations on industries that are largely regulated at the state level. The
basic rationale is that the purpose of
municipal regulations is different from state regulations. It was on this basis
that the New
York appellate Court upheld the Town of Dryden’s ban on fracking. That
ordinance doesn’t really regulate the
industry; rather it just establishes permissible and prohibited land uses,
which is something that has long been held to be a proper function of local
In Texas, there is no doctrine of implied preemption
under state law (meaning that just because the state enacts legislation does
not imply that a city is powerless to address the issue). Furthermore, for any
municipal regulation to be preempted by state law, the State Legislature must
do so “with unmistakable clarity.” There is nothing in the state rules about
fracking that specifically preempts the city from adopting the ordinance as
Just because the state of Texas seeks to foster and promote mineral
development does not mean that Texas cities have to capitulate to their
interests. The city also has legitimate and legally recognized interests in
protecting community integrity and citizen health, safety, and welfare. The
proposed ban on hydraulic fracturing is a reasonable exercise of the powers of
Tuesday, March 11, 2014
More than two dozen homeowners are suing EagleRidge for damages up to $25 million. The lawsuit, filed by residents at the Meadows at Hickory Creek, claims that two EagleRidge frack sites have diminished property values, trespassed onto their properties by contaminating air, and reduced enjoyment of their property.
The missing piece of this story is mineral rights. No one in this neighborhood is making a dime from the fracking, because they do not own the minerals. So, as the lawsuit makes clear, they are suffering the costs while not getting any of the benefits.
This raises a larger question: How is the mineral wealth produced by gas wells in Denton distributed? How much money actually stays local in the pockets of Denton families?
I created a short video to answer those questions. The Myth of the Local Fracking Boom shows how most of the wealth generated in Denton drains out of town. All too often, the people living near fracking sites pay the costs but do not see any of the benefits.)