Signs, Signs, Everywhere Signs: A Big Idea for Informing Prospective Homebuyers

We know that vested rights means that the future of fracking in Denton is likely to include drilling close to homes – despite our best efforts to prevent this situation. The best that we may be able to accomplish now is to make sure that people are fully informed about the presence of nearby gas wells when they buy a home (and perhaps even when they rent an apartment). How do we ensure people really are giving their informed consent to live close to gas wells?

On this question, I recently received an e-mail with what I think is a brilliant idea. The source of this idea said it may be best if he/she remains anonymous. So what follows is a lightly edited version of the e-mail she/he sent me. I would very much like to hear opinions about this. And I would also hope that City Council will consider this idea.

There is, of course, no way realistically for the City to police notifications for homebuyers. So, regardless of any terms of such an agreement, it’s highly unlikely that each and every prospective buyer - both initial and subsequent buyers - will be properly informed.

However, there may be one way to ensure that any prospective buyer who visits the site prior to purchase is properly advised: Simply revise the gas well and/or sign ordinance to require that a large sign, minimum x by x with letters x feet high, which so states information about gas well proximity be placed at each entrance to any new development with a gas well onsite or within X feet.

The signs will have to be clearly visible - not behind a bush, shrub, tree, or fence - and will have to be maintained in good repair by the developer and, later, the HOA. It will have to be erected prior to any disturbance of ground for construction and will have to remain fully visible at all times through the life of the development. The long-term requirement is necessary, because one never knows when a well will be re-drilled or converted from a vertical to a well with lateral lines or what kinds of redriling future technology will make possible.

Required signage will be a low-cost item for the developer (and later HOA), will inform all viewers equally, will be easy for the City to police, will not tread on any mineral rights holders, and will likely not be fodder for court challenges.

Of course, the signs may render some land effectively undevelop-able, at least for residential...but that's the trade-off: short-term revenues from gas wells or long-term revenues from (quality?) development.

Thinking Sideways and the Fracking Double Standard

There has been some confusion about ‘my voice’ on this blog and elsewhere. Perhaps I am poorly spoken (I do mumble, but in this case I think I have been speaking too clearly...). Maybe I am self-contradictory (but aren’t we all? “I am large. I contain multitudes”). But maybe I am playing a role that is little understood– a role that is neither academic nor activist – the role of field philosopher or public intellectual. I speak as a new species of ‘researcher’ but it is not clear if anyone has ears for this kind of knowledge –if even the university can hear the voice of its new offspring. Or perhaps she can hear, but is not sure if she wants to claim THAT as her child.

The activist says ‘do not think the other side’s thoughts.’ The academic says ‘do not think from a side at all.’ But sideways thinking is all there is. The trick is to think from this side and that. The public intellectual seeks strong objectivity. Remember the words of J.S. Mill:

“But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

Here is an opinion that I have heard from some in the fracking business - to be clear the entire rest of the post is me channeling the voice - the side - of this industry perspective...(the question is what do you make of it?):

“It’s not fair, all this focus on drilling and fracking. Don’t people realize that Denton is full of polluting activities? Just look at all the cars and trucks. Don’t they realize that the Peterbilt plant alone emits 270 tons of VOCs every year? City Council approves a tax abatement to enlarge the facility for Tetrapak, one of the larger producers of emissions in town. And there is no news about that. Indeed, people congratulate them. But they vilify us. Us! Providers of tax revenues and royalties – would the airport exist without US?!

"THERE IS A DOUBLE STANDARD HERE. Fracking is not benign, sure. But it is just the peas in a chemical soup – a risk soup – that we swim in all the time. Do Dentonites realize there is arsenic in their playgrounds? And what is in their food – what chemicals in their children’s clothes? They think it is safe to travel sixty-five miles per hour down the road just a few feet from other cars going the same speed, but more than 30,000 people die in traffic accidents in the U.S. every year. How many people have died of fracking?! No one, or at least nothing even remotely comparable to the carnage on our roads – a carnage they calmly accept and that can’t even get them to bat an eyelash any longer. Yet they froth at the mouth about fracking…

"Do you know what is happening here? This is all a temporary and irrational fear of the new. When the automobile first arrived on the scene, some cities passed ordinances requiring all cars to be preceded by men waving flags and blowing horns to warn people. That’s hysteria. And in the case of fracking it may even be worse, because this is fear of what only appears to be new, because fracking has been around a long time. All these opponents of fracking might think they are liberals, but they embrace what Michael Oakeshott called the “conservative disposition,” which is “to prefer the familiar to the unknown.” The only thing wrong with fracking is its perceived newness. People worry about it when they daily accept far greater risks without a single thought, simply because those risks are familiar. People are not yet accustomed to fracking. But just give them time. How does the saying go…? “Men can get used to anything…”"

Conflict of Interest: Take Two

It's true that I could have done more research prior to venturing into this topic. But I was hoping to generate a conversation and collaborative fact-finding mission (and I am glad to see the Facebook thread is starting to generate just the kind of information we need to pursue this issue).

I am not going to apologize for asking questions, and I don't think there was anything frantic or persecuting about them. But I would like to elaborate on my questions in a way that makes my concerns clearer.

I am one among many who are frustrated by how hard it has been to get regulations in place that adequately protect core values like public health, safety, and community integrity.

When I try to figure out why that is, I chalk it up to a mix of two reasons: 1. Our elected officials agree with my conception of the common good and did the best they could within the Texas and federal legal system, but the system just doesn’t allow for what we think is best. 2. Our elected officials disagree with me, but they are working from some other reasonable conception of the common good.

I never chalk it up to: 3. Our elected officials are not working from any reasonable conception of the common good, but are in fact seeking their own private gain. That is, I never assume a conflict of interest, which I take to be in this case: Using public office to reap private rewards.

 I believe that everyone on City Council approaches fracking (and all other policy issues) with nothing but a genuine commitment to seek the common good (public interest) as they see it. That is my default mentality, and it would take a lot to convince me otherwise.

OK, but what about this business with Mr. King? If I don’t believe something is wrong here, why raise the questions?

It’s because on its surface this sure appears like a conflict of interest even though it may not actually be a conflict of interest. What I mean by “actual” here is not the facts about the interests involved (e.g., what percentage of income counts as a conflict). Rather, I mean a situation where a person’s moral judgment is biased by the prospects of private gain. I could imagine someone in Mr. King’s situation being able to set aside considerations of private gain when it comes time to make a decision. If it was me, I wouldn’t be able to sleep at night if I let even the slightest consideration of private gain creep into such an important public policy. I have no reason to believe Mr. King doesn’t share that same basic impulse of conscience. I did not and am not impugning his character.

But I can also imagine myself in his situation and deciding that it would be best to recuse myself on policies impacting EagleRidge. I might think that, because people cannot have direct access to my moral judgment, they may suspect that I am biased even though I would know I am not. And this suspicion might undermine our public policy efforts.  

That’s why my questioning was about the problematic appearance of a conflict here. That’s why I wrote this at the end: “even apparent conflicts of interest can be a problem, because they can undermine trust in government and the legitimacy of its authority.”

The standstill negotiations are a longshot, but at least they continue dialogue and the possibility of improvements. But they are so fragile that this apparent conflict of interest could derail them. They might produce something worthwhile, but the public might dismiss the outcome because it resulted from a biased process – even if there was no actual conflict (as I define it or as defined by legal facts).

I am trying to point to this potential problem and open a space to demonstrate how there is no actual conflict of interest, which would make the appearance go away. Sunshine is the best remedy for apparent conflicts of interest. Being silent on this (even if one thinks it is baseless) is not going to help. And even though it was disclosed earlier, it should be made public again given how much renewed importance it has taken on.

Unfortunately, my earlier post only fanned the flames I was hoping we could squelch with an open and honest conversation. But perhaps it is not too late. And hopefully this post helps to reset the tenor and focus of that conversation.

Conflict of Interest? We Need Answers

The City of Denton is currently in a period of negotiation with EagleRidge Energy. One of the architects of this deal is City Councilmember James King. Claims have recently been made that Mr. King owns minerals on wells operated by EagleRidge. These photographs would seem to corroborate those claims.

 

We need Mr. King to publically address this issue. Does he own mineral rights on wells operated by Eagleridge Energy? If so, how much does he make and how much could he stand to make in the future if EagleRidge fares well? Why has he not recused himself from policy decisions pertaining to EagleRidge?

We deserve answers to these questions. It is important for him to recognize that even apparent conflicts of interest can be a problem, because they can undermine trust in government and the legitimacy of its authority.

Mr. King: Please clue us in.

Bad Deal: Denton Loses in its Agreement with EagleRidge

The City of Denton has entered into a standstill agreement with EagleRidge that is effective until January 31, 2014. City Council member Kevin Roden wrote some remarks about the agreement this morning. I have always appreciated his support of DAG (which was his idea to begin with) and respect his position on this issue. But I disagree with him when it comes to the standstill agreement and some other points in his remarks.

Here are the basic terms of the standstill agreement:

·         During this period, EagleRidge will not drill, re-drill, or frack any wells in the city limits EXCEPT for twelve wells, including the three most controversial ones in the Vintage area, three wells within 800 feet of Southlakes Park (two of them new), and four wells across the highway from UNT.

 

·         For these wells, EagleRidge has agreed to eight operating requirements.

 

·         In return for this, Denton will issue all required permits for all twelve of these wells.

Here is my read of the agreement, which is far more cynical than Mr. Roden’s:

·         EagleRidge continues with status quo. After all, they can only work on so many wells at a time – twelve is plenty. This will in no way impede their operations. They won’t be ‘standing still.’

 

·         The eight operating requirements are mostly standard and insignificant stuff. Diesel rigs still used. They will close gates. They will collect any dripping oil from under trucks (as if that was the big concern). A bunch of other stuff (like using licensed water haulers) that they have to do anyway. The one potentially important condition is a requirement of green completions, but see more on that below.

 

·         The City hears stories of frustrations and fears from people in the Vintage area and they respond not by obstructing EagleRidge but by actually handing them the permits! This also makes very plain that EagleRidge was operating penalty-free without the required permits.

Now, more on green completions. EagleRidge claims that “Since the formation of EagleRidge Energy in 2009, we have performed green completions on all of our gas wells in Denton and Wise Counties.” Note also their claim about no excess gas escaping into the atmosphere.

But then, watch this video taken by ShaleTest of an EagleRidge well being completed just a couple of weeks ago across the street from UNT. This was taken with a Flir camera that can detect several air toxins and VOCs such as benzene. Here is a screen shot of a clip from the video (can't get it to load as a preview for some reason):

 

 

What was that about no excess gas escaping? These emissions triggered health complaints to the TCEQ (of course, they called EagleRidge to tell them they were coming to test so they were able to temporarily shut down during the test). I once went jogging near another EagleRidge well being completed and was overwhelmed by the noxious odors and felt sick that day. I was no closer than these homes will be in Vintage.

So, to conclude my cynical read: The City gave EagleRidge their blessing to frack many of the most controversial wells in town and got nothing meaningful in return.

Finally, I want to take issue with one of Mr. Roden’s comments. He claims that “throughout the drafting” of our ordinance it was clear that the rules would only apply to “NEW drilling operations.” But that actually was not clear to me until toward the end. It only became clear after the first draft came out from behind the veil of closed-door legal sessions with all that impenetrable language about vested rights. This was never taken up appropriately in an open and public way. We never got a chance to tackle this explicitly, to do research on it, to hear from alternative legal perspectives…

I think he is right that we need to build further protections into our ordinance. It is just frustrating to hear this now after the window has closed on our major policy overhaul and we are forced to react in an ad hoc way as drilling continues amidst all the confusion. It is also frustrating to hear him only now casting doubts on the fact that our ordinance (35.22.5.A.1.d) still allows residential sub-divisions to be built as close as 250 feet from a drilling and production site.

I don’t like to say “told you so,” but I can point to the first DAG report (released two years ago), which explicitly called for removing this section and read: “There should be no variances for pre-existing or pre-planned wells.”

Buyer Beware: Informed Consent and Gas Wells

The local politics of gas wells boils down to the conflict between the surface and mineral estates. Developing minerals can harm the surface. Protecting the surface can render minerals worthless, because inaccessible.

 

But one of the big problems in Denton right now is that the two wealthiest interests in the surface and mineral estates are not in conflict. Land developers can build to maximum capacity right up to gas wells without informing homebuyers about the industrial activities that will occur near them. Witness the Vintage situation with DR Horton. Without enforcement of setbacks on new home developments and without stricter disclosure rules, big developers have nothing to lose from gas wells on their property. And we all know that the gas companies are vested under older rules in place prior to the development of homes. So, new surface developments don’t jeopardize their mineral holdings.

It’s a win-win for the big money guys. The only losers are the unsuspecting folks who actually live there and breathe in the fumes. And when they try to sell their homes (as many are doing and plan to do in the Vintage area) they have to disclose the presence of gas wells. So, they take the financial hit in addition to the risks to their health.

As a friend of mine says, “buyer beware” should apply to the big land developers and not just the home owners. The big companies should beware that if they want to develop land in Denton, they will need to know either that they cannot build closer than 1,200 feet from gas wells or they will need to fully and accurately inform potential buyers about nearby gas wells.

This issue is playing out again – this time with a proposed development by Bob Shelton near Ryan Road (see the image above). He wants to rezone about 75 acres from Neighborhood Residential 2 to Neighborhood Residential 3. There is one gas well on the site and, according to a letter from Mr. Shelton in City Council’s back-up material for their meeting this week (item 5D); there are two other approved drilling sites (one of which is just 400 feet from Ryan Elementary). These sites do not show up on the Railroad Commission website, but there is a 105 acre plat in the backup material for City Council that does seem to show them (though it is fuzzy and hard to read).

City Council rejected this request last week. But the Mayor was absent for that vote and so he has put it back on the agenda.

As always, these things are so damn complex it is hard to know what to say. But here are some points to consider. First, from Mr. Shelton’s letter to Mayor Pro Tem Pete Kamp:

So, maybe the development is actually a good thing, because if it works it would mean that site near Ryan Elementary that has been approved (I guess...by the City?) would never actually get developed. But, then again, who knows whether this statement is true – it would be good for City Council to press this point and ask what law he seems to be referring to here that would require him to obtain these waivers. And, by the way, my records show that this is actually a well where the majority of mineral owners are based in Denton – many right near the well and some others up on W. University Drive.

And then, consider this from Mr. Shelton’s letter to Mayor Burroughs:

And here is the notice he proposes using:

I’d be interested in hearing the thoughts of City Council on this. After all, this is their ruling ideal (I think) for when it is acceptable to have people living close to gas wells. That is, it is only acceptable when they have given their informed consent. But what does that actually mean in practice and would a notice like this be a good practice?

Is this notice good enough? It is certainly better than no notice at all. So, would it be alright to have homes just 250 feet from a gas well if the homeowners had signed such a notice?

I think it hinges on the question of whether potential buyers would really understand what they are getting into with just these words. I wonder if City Council could require land developers to show potential buyers some videos of actual drilling and fracking operations near homes (they can use footage from the Vintage area). I know this might sound over the top, but how else will folks really understand what “drilling and production for natural gas” really means? 

The Wells Near Southlakes Park: A Look At Just How Fracked We Are

It looks as though I was wrong in my earlier post about the EagleRidge pad sites near Southlakes Park.  You will recall there are three pad sites – but only two of them (labeled here as northern and southern) are at issue for their proximity to the park.

 I interpreted the ordinance as not being applicable to either pad site. They are in an industrial zone and my reading was that this means the 1,200 foot setback from Protected Uses (including public parks) does not apply.

Turns out I was wrong. Actually, I was wrong about two things. First, I have heard from someone in the know that gas wells in industrially zoned areas are still subject to the setback requirements. I have been assured that everyone in the City holds this to be true. That means these pad sites, even though in an industrial district, cannot be within 1,200 feet of the neighboring Protected Use.

Ah, so that rig is operating illegally, right?!

Wrong.

EagleRidge is not subjected to the current ordinance.

Why? It’s our old friend: vested rights. Even though this is new activity, it is on an existing pad site, which is considered an ongoing project (I guess) according to the logic of Texas Local Government Code Chapter 245.

But, the southern pad site, with two new wells, is a brand new project and would be subject to our ordinance, right?!

Wrong.

There is no southern pad site. The RRC plats show that all three gas wells (Acme 1H, 3H, and 4H) are located on the same site. So, even though the RRC map makes it look like there are two sites (and the southern one would have two brand new wells) there is only one site. Note on this plat how the SL (surface location) is all the same for these three wells. (Only 2H is different, it is on a the western pad site, which was never at issue.) What I have done here is combine the relevant information from the four plats (for wells 1, 2, 3, and 4).   

And because that is all platted, it is all vested. It is certainly vested because there is an existing (vertical) well there (1H).

So, I initially thought the 1,200 foot setback didn’t apply because of the zoning district. But now I think it doesn’t apply because of vested rights. The result is the same either way. The current ordinance doesn’t apply. I have been saying for a while now that the ordinance might have teeth, but it’s got nothing to bite.

But let me emphasize this: It is the City's position that any new drilling (new wells) is considered NEW and must get a permit and comply with the CURRENT ordinance. That would mean in this case that two of these wells would indeed be illegal (the two new ones, 3H and 4H). But note, there is a procedure built into our ordinance whereby operators can formally claim that their project (even if a new well) is vested and thus not required to comply with the current ordinance.

The zaniness here might be magnified. Bear with me as we delve into some language from the Texas Local Government Code Chapter 245. It reads:

“Each regulatory agency shall consider the approval, disapproval, or conditional approval of an application for a permit solely on the basis of any orders, regulations, ordinances, rules, expiration dates, or other properly adopted requirements in effect at the time:

(1)  the original application for the permit is filed for review for any purpose, including review for administrative completeness; or

(2)  a plan for development of real property or plat application is filed with a regulatory agency.”

My take on this: a gas well operator like EagleRidge is vested under the rules in place at the time they filed a plat application. It is not clear whether this means a city plat or a Railroad Commission plat.

But many of the plats on file not only date from ten or more years ago – they also cover huge swaths of land many hundreds of acres in size. Look at this blown up image from the corner of the Acme plat.

 

I have been told that there are plats like this and even larger all over town. This could mean that operators can claim any well drilled anywhere within the hundreds of acres covered by a plat (even if it does not currently exist) is part of an ongoing project and is therefore vested under older rules. It wouldn’t matter if they are right next to homes, schools, or parks. In other words, we might be more royally screwed by this vested rights business than I previously thought.