Occupy the Ordinance

This is an interactive post! Be ready to do your homework and submit your questions!

The City of Denton has just posted its draft fracking ordinance in a new, convenient searchable format! Of course, that is the only thing that is user-friendly about this dense thicket of legalese. You will find it is 112 pages long – but don’t worry it is actually two versions of the ordinance. The first 62 pages are over-tracked with changes from the last version (round 4, was it?). The (relatively) clean draft begins on page 63 if you want to skip there.  

Breathe easy – only 62 pages of homework!

So will this ordinance protect the health, safety, and welfare of the people of Denton? That’s for you to decide.

But I imagine that you could use some help deciphering what the ordinance actually means in terms of protecting citizens. That is why DAG is requesting that the City of Denton partner with it in sponsoring an educational event.

The premise is very simple. 1. We, the people, identify our remaining questions about the ordinance (both about what is in there and about what has been left out). 2. We submit those in advance to knowledgeable members of City Staff. 3. We all attend a presentation where those questions are answered for us – and hopefully we engage in a bit of respectful dialogue.

I think I speak for most members of DAG when I say: I will not endorse this ordinance until I get satisfactory answers to our remaining questions. The process has been bungled - not democracy at its best - so I think we are owed this chance to understand how this industrial activity will impact our community in the future. I know they don’t need my endorsement – but as one of our engaged and educated citizens (call me a fracktivist if you want J), I sure hope they try to get it. As I said in a recent publication – I’m not sure what the rules would look like for ‘responsible fracking’ – they may not even exist. But I am sure, despite making some good progress, that we haven’t crafted them yet.

OK – I warned you – now it is time for you to dig into the ordinance and submit your questions! Please use the comment function on the blog or add to the Facebook string. Let me prime the pump with a list of questions that some members of DAG have already put together. (Some of these are listed in our most recent report). If you agree with some of these, please also indicate that --- that way we know which ones seem to be most pressing:

1.      Why can’t we increase set back distances to 1,500 feet as Flower Mound did? 35.22.5.A.1

2.      Why have we not followed the lead of other cities and prohibited compressor stations?

3.      Why can’t we use a three-tiered zoning strategy for fracking: permit drilling by right in industrial areas, via an SUP in commercial areas, and prohibit drilling in residential areas?

4.      To limit vested rights claims, can we set an expiration timeline for projects (not just permits) so that projects are not perpetually considered ongoing?

5.      Following on that point, which activities will this new ordinance actually apply to?

6.      Why can’t we eliminate variances (reductions of setbacks between wells and protected uses) altogether or at least make sure they are designed to protect inhabitants of rental properties? 35.22.5.A.1

7.      Why can’t we eliminate all pits that would contain anything but freshwater?

8.      Why can’t we simply ban fracking?

9.      Why can’t we require low-bleed valves and other industry-recognized best practices catalogued in the EPA-STAR natural gas program?

10.  On p. 17 of the over-tracked version: What are vapor recovery units? Why are they only required under certain circumstances and what are those circumstances?

11.  On p. 17: Regarding reduced emissions completions, what does it mean to be infeasible, who determines that? Can we be sure that all vapors (and not just the recovered gas) are captured and prevented from release? What does it mean to ‘minimize’ release to the atmosphere – what standard is applied here?

12.  On p. 20: Why can’t we simply prohibit venting and flaring outright? When is it allowed by RRC and TCEQ?

13.  On p. 20, What are centralized tank batteries? What hazards do they present? Are they necessary?

14.  Air and water monitoring requirements – why are these not spelled out in the same detail as the soil sampling requirements? Have you looked at the example provided by Hurst?

15.  On pp. 34-35: Why was the leak detection and compliance plan removed? How can we be sure we are monitoring, measuring, preventing, and responding to emissions of harmful chemicals?

16.  On pp. 35-36:  Why were the freshwater well testing requirements removed? How can we be sure that we are protecting our aquifers and watersheds?

The Injustice of the 1,000 Foot Setback

Denton’s leaders are debating whether to increase the setback distance between wells and protected uses (homes, schools, etc.) from 1,000 feet to 1,500 feet. Some are asking: What is gained from the additional 500 feet in terms of protection?

We could look for studies on impacts to health and property values in an attempt to answer this question. But I question the question itself. We don’t know what is gained from the extra 500 feet, but we also don't know what is lost by not having the extra 500 feet. The question puts the burden of proof on those who are advocating for 1,500 feet. But arguably the burden should be on those who support 1,000 feet. After all, this number was arrived at through political compromise and policy diffusion. It is not like we have proof that 1,000 feet is sufficient. Both numbers are arbitrary. So why are we asking proof of the efficacy of 1,500 feet that we are not asking of 1,000 feet? It can only be because it is politically expedient, that is, we feel comfortably safe from lawsuits.

For Council, it is a question of how to act under uncertainty. I think they ought to buy more assurance for our top priority of public health…at least until we have a better understanding of how setbacks correlate to public health.  

Setbacks establish the ceiling. There is a variance procedure by which those living nearest to a proposed well site can voluntarily opt for shorter setback distances. This is a way to respect citizens' informed consent. If those most vulnerable to this industrial activity want to knowingly bear greater risks for potentially greater rewards, then they should have that right. (Of course identifying who should count as ‘the most vulnerable’ is the sticking point.)

But there is no procedure for surrounding residents to INCREASE the setback distance. This asymmetry needs to be made visible. The setback in the ordinance establishes the maximum distance allowed. Those who would like to voluntarily opt for larger setbacks will not have that option, whereas those who want shorter setbacks do.

Arguably, the City should establish a one mile setback and allow its residents the power to negotiate with one another and with operators for distances less than that. Maybe that is not feasible, but it is more just than what we currently have where the City sets the bar and allows citizens to lower it but not raise it. This is why 1,500 feet is hardly radical. It is only a minor move in the right direction.

Pauline's Plea for a Stronger Ordinance

City Council voted to extend the moratorium into late February. They cast their votes just after 11 p.m. (after an intense discussion on the smoking ordinance), which was less than an hour before the moratorium was set to expire.

This is a victory of sorts, but we need to use the remaining time wisely to push for improvements, because I think the next decision will be the final vote rather than another delay.

There were several great remarks to the Council, including a creative interpretation of "The Grinch Who Stole Christmas" that featured a greedy corporate grinch despoiling Denton until he has an epiphany, goes green, and puts up solar panels (I think that is how it went - but I need to get my own copy so I can get the story right).

But I thought the best comments came from Pauline Raffestin - especially because she reminds us that we are working for our kids and for the future generations of Denton. Below, I have pasted her words with her permission. Thank you, Pauline, for sticking it out through this process - your voice is so important. And thank you to everyone else in Denton who has remained engaged. (A special shout out to Cathy and Sharon who went all the way to Austin to tell the Railroad Commission to start doing their job.)

Good evening,

My name is Pauline Raffestin. My husband and I have a 5 year-old son.

I am here tonight to urge City Council not to adopt the proposed version of the ordinance relating to Gas Well Drilling and Production and to extend the moratorium. For the last couple of years, I have attended many meetings on the topic of the ordinance re-writing: information meetings organized by the DAG, planning & zoning meetings, task force meetings, the mayoral candidate debate on the topic, the moratorium vote… A lot of the material discussed at those meetings was dry, technical, and often discouraging… not the kind of stuff citizens enjoy spending their personal time learning and talking about. But, like many, I am glad I attended these meetings, because now I have an informed opinion on the matter. And my opinion is that this ordinance is insufficient. It does not take into account many of the recommendations made along the way, and it does not provide Denton citizens with the same level of protection as ordinances in other cities on the Barnett Shale and in other parts of the country. Isn’t feeling safe and healthy in your own city a reasonable expectation to have?

Now, I really like Denton and I’d like to feel comfortable staying here. However, the things that make Denton appealing--its music scene, its many family-friendly events, its Jazz Fest, its Holiday Lighting Festival, and its creative community—all these things will be meaningless the moment our children start getting sick because of the air they breathe or the water they drink. As a matter of fact, children are already getting sick (I can’t keep track of the number of children with asthma and other respiratory issues in my son’s school, not to mention the cases of childhood leukemia, which we now know can be caused by exposure to benzene, a by-product of gas-drilling.) Denton likes to fancy itself a green city (with solar trash cans on the square, 40% of our electricity coming from renewable energy, a great recycling program…), so now is the time to show that the city really cares about the environment and the health of its citizens by imposing stronger regulations on the gas-drilling industry. This industry is inconspicuous by nature. I am convinced that more people would come to these meetings if only they realized that gas drilling is happening within their city limits. Lots of people think that drilling is only happening where wells can be seen. They don’t know about all the underground activity, the emissions near compressor stations, the land-farming practices, etc. Some know, but they’re in denial. It’s hard to accept the fact that your family might be exposed to harmful chemicals on a daily basis, while you feed them organic food and strive to give them the best start in life. On behalf of the many parents of young children in Denton who are justifiably concerned, I ask you to please demand that a better ordinance be drafted and to extend the moratorium until then. Thank you.

Work Still Needed on Denton's Ordinance

Here are my remarks for City Council tonight.

The draft ordinance is an improvement. I commend City Staff and Council for their efforts. I could see this being ready for approval in a few months. But we are not ready yet, so I urge you to extend the moratorium one more time.

There are two reasons we aren’t ready. First, there are still crucial elements either missing or in need of strengthening. Second, it is unclear how key provisions in the ordinance will perform in terms of protecting health, safety, and welfare.

What’s still missing? Here are some of the most important items:

1.      Increased set backs of 1,500 feet

2.      Prohibition of compressor stations

3.      A three-tiered zoning strategy that would permit drilling by right in industrial areas, via an SUP in commercial areas, and would expressly prohibit drilling in residential areas.

4.      An expiration timeline for projects (not just permits) so that projects are not perpetually considered ongoing and new activities must comply with new rules.

5.      Eliminate variances granted by Zoning Board of Adjustment and amend variances to protect inhabitants of rental properties.

6.      Eliminate all pits that would contain anything but freshwater.

7. Require low-bleed valves and other industry-recognized best practices.

What’s still unclear? Here are some of the most important questions:

1.      On site requirements, n. p. 14: Vapor recovery units – when are these required, what can they do to protect our health?

2.      On site requirements, p. p. 15: Reduced emissions completions – what does it mean to be infeasible, who determines that? Can we be sure that all vapors (and not just the recovered gas) are captured and prevented from release? What does it mean to ‘minimize’ release to the atmosphere – what standard is applied here?

3.      Operations and equipment standards and practices e. p. 16: Why can’t we simply prohibit venting and flaring outright? When is it allowed by RRC and TCEQ?

4.      Storage tanks b. p. 17 – what are centralized tank batteries?

5.      Air and water monitoring requirements – why are these not spelled out in the same detail as the soil sampling requirements? Have you looked at the example provided by Hurst? Why are the freshwater well testing requirements removed? How can we be sure that we are protecting our aquifers and watersheds and how can we be sure we are preventing releases of noxious or nuisance vapors?

To address these remaining issues, DAG would like to invite a panel of knowledgeable City representatives to give a public presentation. We have in mind an educational, detailed explanation and justification of the ordinance so that citizens can better understand what City Council will be voting on. I would be happy to work with you in arranging the logistics. And, while we arrange this meeting, please have the ordinance posted online in a searchable format.

Export or Bust?

The Washington Post blog has a good piece today on the recent DOE report on the possibility of large-scale US exports of natural gas. Cheniere Energy's Sabine Pass Liquefication Project in Lousiana has already been approved for exporting liquified natural gas (LNG) and other projects are pending DOE approval. The pending applications represent 60% of current domestic consumption of natural gas. In other words, this could be a major change to the domestic energy market.

The DOE report argues that under all scenarios exporting LNG will bring net economic benefits to the US. The main winners will be gas producers such as Range, Chesapeake, and Devon. Nuclear plants will also benefit as higher gas prices will make their electricity more competitive. I imagine this means coal would do well too. The losers would be domestic chemical industries that will face higher prices here for their feedstock gas. And, of course, all US natural gas consumers will face higher prices...because supply will drop as producers sell their product for higher prices abroad (currently they can get roughly 5x the money on the Japanese market than on the US market).

But there is another wrinkle noted in the Post blog. The big export might not happen at all. It is very expensive to liquify gas. And the global market is uncertain. For large-scale exports to take off lots of pieces would have to fall in place -- continued low domestic prices (it could be we don't have as much natural gas as most are assuming and there are many growing domestic demands for natural gas that may boost prices here), increased demand from Japan (if it retires all nuclear facilities)....and it is possible that China, India, and E. Europe might add their own shale gas resources to the global market...this would quell demand for US gas. This is all hashed out in a recent Brookings Institution report.

As a friend of mine argues, none of this business is concerned with the poor woman down the street who would like to fry her egg for a penny.

Denton and the Road Not Taken

Frustration is mounting with the Denton gas drilling ordinance re-write process. I think a major cause of frustration is a sense of futility. Even if we get some improvements, we will just be rearranging the furniture on the Titanic. This ordinance can do nothing more than put lipstick on a pig. We may get some new screening requirements and maybe even vapor recovery units – but this is all cosmetic. It does not address a deeper-rooted, systemic problem.

How do we label that problem? We may find some guidance from Amory Lovins’ 1976 essay Energy Strategy: The Road Not Taken. Lovins contrasts our status-quo “hard” energy technology system (large-scale, centrally-managed, corporate-controlled) with a “soft” path that we could choose – one that is small-scale, tuned to context, and democratically/locally controlled. 

Most prophetic are Lovins’ remarks about the politics of a hard technology system. No ordinance revisions will address these political problems. For those feeling frustrated, it may be precisely this realization: We are trying to democratize a system that is, in its essence, anti-democratic. It only gives us a few crumbs of power – perhaps to post ‘no smoking’ signs on pad sites, maybe to require some tree planting.

But the larger reality is that we are fundamentally disenfranchised. The frustration is that sickening feeling that it is more rational to simply acquiesce – to let the experts figure it out and to play the role of passive consumer enjoying, as Marcuse said, our “smooth, comfortable unfreedom.” Why spend so much time and energy trying to reform a system that does not compute your existence? The problem with natural gas is not this-or-that design flaw -- it is its hardness -- a massive system run by powerful, entrenched interests and managed by bureucrats and technocrats. No ordinance revision will change that reality.

Here is an excerpt from Lovins that I find particularly meaningful in light of Denton’s current situation, especially the ongoing questions about who has been crafting the ordinance (in never-ending closed sessions) and which priorities they represent:  

The hard path, sometimes portrayed as the bastion of free enterprise and free markets, would instead be a world of subsidies, $100-billion bailouts, oligopolies, regulations, nationalization, eminent domain, corporate statism.

While soft technologies can match any settlement pattern, their diversity reflecting our own pluralism, centralized energy sources encourage industrial clustering and urbanization. While soft technologies give everyone the costs and benefits of the energy system he chooses, centralized systems allocate benefits to surburbanites and social costs to politically weaker rural agrarians. Siting big energy systems pits central authority against local autonomy in an increasingly divisive and wasteful form of centrifugal politics...

In an electrical world, your lifeline comes not from an understandable neighborhood technology run by people you know who are at your own social level, but rather from an alien, remote, and perhaps humiliatingly uncontrollable technology run by a faraway, bureaucratized, technical elite who have probably never heard of you. Decisions about who shall have how much energy at what price also become centralized—a politically dangerous trend because it divides those who use energy from those who supply and regulate it.

The scale and complexity of centralized grids not only make them politically inaccessible to the poor and weak, but also increase the likelihood and size of malfunctions, mistakes and deliberate disruptions. A small fault or a few discontented people become able to turn off a country…Societies may therefore be tempted to discourage disruption through stringent controls akin to a garrison state. In times of social stress, when grids become a likely target for dissidents, the sector may be paramilitarized and further isolated from grass-roots politics.

Any demanding high technology tends to develop influential and dedicated constituencies of those who link its commercial success with both the public welfare and their own. Such sincerely held beliefs, peer pressures, and the harsh demands that the work itself places on time and energy all tend to discourage such people from acquiring a similarly thorough knowledge of alternative policies and the need to discuss them. Moreover, the money and talent invested in an electrical program tend to give it disproportionate influence in the counsels of government, often directly through staff-swapping between policy- and mission-oriented agencies. This incestuous position, now well developed in most industrial countries, distorts both social and energy priorities in a lasting way that resists political remedy.

Just the Facts?

There is a recent piece out by an industry supporter calling for “facts not fear” to drive the policy decision about fracking in Illinois. I have written before about a "fact-based" framing of the debate.

I think there are problems with putting things this way. This piece about Illinois is a perfect example of a selective reading of the studies that confirm her position, while conveniently ignoring any studies to the contrary. This is perfectly fine advocacy work. But it should not be passed off as simply ‘the facts’ or ‘the whole truth.’ For example, she mentions frac focus as a shining beacon of industry disclosure, but she fails to note the loopholes that riddle that system. And there is no mention of studies (even industry studies) that show well casing integrity problems are persistent.

 But the ‘fact-based’ framing is not limited to the industry. NY Governor Cuomo recently stated (in reference to that state's moratorium on fracking pending a scientific review): "Let the science dictate the conclusion. We will make a decision based on facts."

The same framing is shared by those who oppose fracking. The leading fracking critic in the US, Josh Fox, also thinks the facts are on his side. Indeed, he thinks the answer to the question: "Should we ban fracking?" is as easy as the answer to the question: "What color is the sky?" He is able to paint the exact opposite picture of fracking – as inherently and irredeemably dangerous – by, of course, simply letting the facts speak.  

Should New York, Illinois, or even Denton ban fracking? The answer to that question is just not as simple as looking out the window and reporting on the color of the sky. Yes, we must be ever vigilant to make sure biased and bogus claims are not passed off as facts. But there is more work than just that.

Shale gas policies entail judgments about what kinds of risks and uncertainties are acceptable, who to empower with decision-making, who to empower with the authority to speak the 'facts,' what kind and how much evidence to require prior to taking action, how to prioritize competing goods, and which tradeoffs to make. Judgments and interpretations are unavoidable in a way they are not when we are deciding on the color of the sky.

What I see going on are two incommensurable worldviews. One says fracking is wonderful; the other says it is evil. They both claim to be reporting just the facts. They both claim the other side is lying; either out of selfish greed or baseless fear.

What this framing does is submerge the driving worldviews and keep them out of the debate. One side believes in the free market, in the unlimited potential of the human intellect to solve problems, that humans are defined by calculated risk-taking, and in a boundless quest for progress through the technological control of nature. The other side believes nature sets non-negotiable limits to human action, that markets often fail and require regulations, and that humans can act hubristically by overreaching and unleashing powers they cannot understand or control.

There is a telling example of this in the book that has lately become so popular among those opposed to fracking. In Merchants of Doubt, Naomi Oreskes and Erik Conway argue that science often shows we need health and environmental regulations. Corporations don't want to hear that, so they obfuscate the science and manufacture doubt and debate where the facts are actually established...if only we would listen to the science.

So, they have the same fact-based framing as is used so often by the industry, but of course in the service of opposite policy conclusions. But at the very end of their book, they acknowledge the limits of a science- or fact-based framing. The caution against a "foolish cynicism" that would have us always questioning and demanding scientific proof. Their very last paragraph reads:

“Or as Bill Nierenberg put it in a candid moment, ‘You just know in your heart that you can’t throw 25 million tons a year of sulfates into the Northeast and not expect…consequences.’ We agree.”

In a wonderful act of irony, a book premised entirely on listening to the science concludes with a plea to listen to one’s gut. Oreskes and Conway clearly share that second worldview about limits to human power. That is why their heart counsels them to be more cautious and impose regulations.

This, I think, is the best part of the book. It is not a plea to simply ignore science or the facts. They make it very clear that such wishful thinking is a serious problem (epistemic closure is another name for it). But it is an acknowledgement that the facts will never be enough. We cannot help but choose and interpret facts from a particular standpoint. Here, finally at the very end, they admit that they think we ought to interpret things from a standpoint of caution and limits. That is the place they are coming from - and that makes all the difference. Josh Fox opens GasLand with a scene of his beautiful home in the woods along a creek - that fragile, limited, natural place is where he is coming from -- that is the key to understanding how he reads the facts. But no one talks about that part of the movie - it is all about the facts of flaming faucets, not the standpoint of one's beloved home.

***
By way of commentary on Merchants of Doubt. I think there is a great deal right about this book. Especially valuable is the call for critical thinking when it comes to assessing knowledge claims - they are right to point out our responsibility to look at who is speaking, where they have subjected their claims for critical review (scientific peers?), and where their money comes from.

In the case of tobacco, such vigilance helped eventually to show how power and ideology was masquerading as science. I think the same is needed in the case of climate and fracking.

But what I don't like about that book is the way they conflate science with policy -- the way they tend to argue that once we see who is speaking the real facts, the policy conclusion is self-evident. As if the policy derives from the science - or the science compels a single rational course of action. As Cuomo said: "Let the science dictate the conclusion."

This is clearly not true in the case of tobacco. Yes it is dangerous...now what? Should we prohibit it outright the way we do other drugs, should we prohibit smoking by parents, should we prohibit smoking in bars or restaurants, should we tax it, at what level....? Numerous courses of action seem consistent with the scientific consensus, because the policy is not reducible to facts.

The same is true of climate change. Oreskes and Conway seem to think that accepting the IPCC consensus is tantamount to endorsing the Kyoto Protocol. But that is just one policy response. It implicitly defines the problem in terms of mitigation, which in turn stems from their underlying worldview about the necessity of curtailing human actions on a finite planet. But one could accept the scientific consensus and nonetheless call for a different kind of mitigation scheme, or geo-engineering such as carbon capture, or a mixture of some of this with adaptation - we could do a cap and trade scheme or a carbon tax or.... I don't think one can accept the science and then do nothing - but how to change the status quo is again open to interpretation and judgment.

With fracking things are different. There is no consensus from an authoritative body such as the IPCC and there are not decades of intensive, controlled experiments by the federal government as in the tobacco case. So here I think the big questions are not about who has the facts but how should we act under conditions of uncertainty - who bears what burden of proof - and how are we going to get independent, trustworthy scientific consensus on risks? I have been saying all along - and DAG always endorsed this idea - that we ought to follow a precautionary approach to such uncertainty. We have acted too fast, done too much with insuffcient knowledge. And we don't have the conditions in place to gather more knowledg and modify fracking in light of that knowledge, because the industry has too much influence on the market of ideas and the regulatory process.

4 Reasons to NOT Ban Fracking

I just wrote-up four reasons for Denton to ban fracking. But are they good reasons…should Denton really seek a ban? We need to examine counter arguments. I believe that responsible citizens listen to all sides of an issue rather than only to the perspectives they want to hear. This is the only way to achieve what my favorite feminist philosopher calls “strong objectivity.” Regardless of where you stand on the issue –consider other standpoints.

So, what are the reasons to not ban fracking?

Argument 1: Prudence in the face of futility

Simply put, a ban will not withstand a legal challenge. But it will expose Denton taxpayers to a very costly lawsuit that may even have them paying out millions to compensate mineral holders. Fracking will continue but now after an expensive loss in court. If a ban can work at all, it would have to be at the state level. It is not fair or reasonable to expect a city council to do the impossible, and to adopt this extreme position will cause you to be ignored and your other ideas to be discounted. For a city to attempt a ban would invite more efforts from the state to strip municipalities of the power they do have to regulate drilling and production. Many at the state level are just waiting for this kind of excuse to push their agenda through. This would spoil things for every other municipality. This is why the city is so cautious - it does not want to set a precedent that haunts Denton and every other Texas city.

Argument 2: An acceptable track record

There are over 450 wells in Denton. Yes, there have been incidents and accidents. But the same is true of any industry. These are occasions to improve the practice, perhaps restrict where it occurs to some extent, but not prohibit it. There has been no fracking catastrophe in Denton to warrant a wholesale ban that would deny peoples' property rights.

Argument 3: Technical and regulatory fixes

Drilling and fracking for shale gas evolve quickly, bringing along new practices that reduce risks of harm. Reduced emissions completions, better cement, and new water recycling technologies are just some examples. Rather than ban the practice, critics would be better served to accelerate the development of such new practices and ensure that they are required through regulations. There are plenty of examples of smart regulations and improved practices minimizing environmental and public health problems – from smog reduction to soil conservation. 'Responsible fracking' need not be just lipstick on a pig: there are substantive ways to ensure acceptable - and ever improving - practices. Of course, this would also require increased resources for monitoring and enforcement.  

Argument 4: Opportunity costs

It is easy to call for a ban on any technology if we only consider its downsides. Cars kill nearly 40,000 people every year in the US but we don’t ban them because they do plenty of good things too. A ban on fracking does not just eliminate the negatives but also the positives of natural gas. It generates jobs and wealth and has certain advantages over the major competitors – coal (dirtier combustion, mountaintop removal) and nuclear (high magnitude risk, radioactive waste) and hydropower (ecological harms). Solar and wind cannot replace the all-important capacity of natural gas to ramp up instantly to meet peak loads on the grid.

Well, I bet there are more and better arguments on both sides. Hopefully this chases them out into the open. If you are convinced by these arguments against a ban, but still think regulations are insufficient, then the strategy is to continue to lobby for stronger regulations and cunning uses of local power by our City Council members. 

4 Reasons to Ban Fracking

Denton is approaching a decision point on fracking. What is the right thing to do? We can go forward with the ordinance as it has taken shape over the past several months. We can push for more to be included in it. Or we can call for a ban on fracking.

Other municipalities have taken the latter route but I had not seen a good argument to justify a ban. So, I asked readers of this blog to help me think through the question: Should Denton ban fracking? The comments have been very helpful. At least four arguments seem to be emerging:

Argument 1: Unique risk -- Fracking poses an unacceptable risk

Fracking is risky in a way that other industrial activities are not and that justifies a ban where those other activities can be adequately regulated. What is this unique kind of risk?

It is the risk of an irreversible, high-magnitude catastrophe, namely, the poisoning of vast zones of ground water. When an activity poses a catastrophic risk, we should have definitive proof that harm will not result. That proof is lacking: we do not know the long term fate of chemical compounds that remain underground. Indeed, we do not even know what the compounds are – we only know their ingredients. And, thanks to non-disclosure agreements, we don’t know much about harms that have occurred. This means that fracking is not so much an unacceptable risk (a known probability of harm) as an unacceptable uncertainty (an unknown probability of harm). Due to over-sized corporate influences on the way decisions are made, we don’t even know what the odds are of causing a catastrophe. One should not act under ignorance when the stakes are so high.

Argument 2: Unique exposure -- Fracking is an incompatible use

Fracking is dispersed in a way that other industrial activities are not. Other industries must occur only in the proper zoning districts, but fracking occurs wherever the minerals happen to be. This constitutes a unique exposure to harms such as air pollution, noise, explosion hazards, and declining property values. These harms to neighbors justify imposing limits on property rights. This is an argument for zoning classification, which would essentially ban fracking from all places but those zoned industrial.

Argument 3: Unique exemptions -- Fracking owes its existence to loopholes

Fracking is only currently legal because it is uniquely exempted from several pieces of environmental legislation. This allows the fracking industry to operate in ways that would be illegal for other industries. Here, the case for a ban is that fracking would be prohibited by the federal government according to its own standards if it had not (for unjustifiable reasons) made an exception for it. To ban fracking, then, is simply to restore consistency to the law of the land.

Argument 4: Unique time on Earth -- Fracking is the wrong direction

Here we must shift our framework. The preceding three arguments operate from within the assumed parameters of a growth-oriented economy. But from this perspective it is that framework that is the problem. Fracking is an instance of a much larger problem of unsustainable growth, pollution, and resource exploitation. The planet is imperiled and we are irresponsibly burdening future generations with the consequences of our decisions.

I think about my daughters in 25 years asking me how my generation could have looked at so much evidence of environmental degradation and continued with the status quo – indeed, worse, how we actually intensified our addiction to fossil fuels by going to such costly lengths to extract the last drops (removing mountaintops, scalping boreal forests, drilling in backyards).

Admittedly it seems far-fetched to call for a ban on fracking as part of an overarching sea-change in the way we live and the way we organize society. But when are we going to make that change? Who is going to make it? It has to start somewhere – why not Denton?

As always, I remain open to refinements and rebuttals. I hope that this helps to spur further critical thinking about a crucial issue facing Denton and the wider world.  

Draft Ordinance Still Disappoints...What Now?

There is a new version of the draft ordinance included in the back-up material for tonight’s P&Z meeting. For those of us who have been following Phase II revisions from the beginning, the new draft invites a kind of emotional roller coaster. On the upside, there are 203 new changes – this shows that staff is taking the ordinance seriously. On the downside, there are 203 new changes – this makes it hard to keep track of an extremely imposing 53-page legal document.

There is a temptation to give into what we might call a “rational submission” to technocracy: How could we possibly remain intelligently engaged with such a technically and legally complex process? Wouldn’t we just bungle it anyway? Best to leave it to the experts.

But we must fight this temptation, because the decisions the experts are making when they write the ordinance are simultaneously technical AND values decisions. We are talking about design standards for an industrial process that impacts water, air, health, and quality of life. We must not cede this territory to a systems bureaucracy.

This is why I thought the very process of writing the ordinance should have been done out in the open, in the public. Instead, the legal language is crafted by behind-the-scenes experts. It leads to what we now see – a war of attrition where citizens await the release of a new draft and then struggle to comprehend and question all the new moving parts. It stacks the deck against us, whereas a collaborative, open process of writing the ordinance would have helped us to stay afloat.

But we must soldier on. So, here is what I see in the new draft (mind you I have not had time to digest it all). I see some good changes. I like the new “protected use” definition and the new “purpose” section and they seem to be sticking to their guns on vapor recovery units (though I still have my doubts about this technology). There is good stuff about soil sampling.

Yet there is a lot that is frankly dispiriting and depressing about the new draft. For starters, there is a disturbing amount of angst evident about preemption. One of the strongest additions has been the inclusion of a leak detection and compliance plan (LDCP). There is now a comment that reads: “entire LDCP is probably preempted under the Texas Clean Air Act.” Cathodic protection would now be required, but again there is a comment that it might be preempted (never mind other cities require it). There is even a cautious remark about preemption when it comes to closed-loop mud systems --- even though operators are giving no push back on this one! And there is a comment referencing Harper Park 2 that implies specific conclusions regarding gas wells. But this is case law that was not specifically about gas wells. I don’t think it is right to cite it as if it were the same as statutory law. What this case means for gas development is open to interpretation…but of course that is not reflected in this closed process.

I can appreciate caution from attorneys advising our City, but this is going too far. It calls into question the choice of experts and the whole tenor of the message they are sending: “Be wary, don’t do too much, don’t push the boundaries.” Where are the voices on the inside telling our leaders to push the envelope? Why is Don Butler advising the language-writing…but not Vicki Oppenheim? Why do we have these voices behind the scenes and not others? Who is Lloyd Gosselink?

Then, let me give you a laundry list of items that are still missing even in this, the most current, draft:

1. It still does not have 1,500 foot set backs
2. It is still confusing about pits. Just ban everything but freshwater pits – that is not hard.  
3. There are still too many ways to get variances to reduce set backs.
4. Compressor stations are still not prohibited.  
5. I think flaring is now prohibited, but that needs to be stated clearly (there is still language in there about flaring at daytime).  
6. There's nothing about frack sand exposure
7. There’s nothing about low-bleed valves
8. Drilling is permitted by right in too many areas. I don’t understand why we can’t afford people the same protection just because they live in a particular zoning classification.
9. There’s no requirement to post inspection results online
10. There’s a bunch more missing…waste management plan and DAG suggestions on EPA and industry recognized best practices.

So, what do we do? Is this draft good enough? I don’t think so. Do we continue fighting for further amendments? Maybe.

Or maybe we just call for a ban. Look at the new “purpose” section:

Purpose. The drilling and production of gas and the development of gas well facilities within the corporate limits of the City necessitate promulgation of reasonable regulations to prevent destruction of property to protect watersheds and groundwater resources within the City of Denton, to prevent injury to persons, and to ensure that gas well drilling and production activities are compatible with adjacent land uses throughout the duration of such activities and conform to The Denton Plan. The regulations contained in this Subchapter are designed to protect the health, safety, and general welfare of the public and to assure that the orderly and practical development of mineral resources is compatible with utilization of the surface estate.

And ask yourself: Are there any rules that could ensure we achieve all these goals (protection of water, prevention of injury, compatibility with other land uses)? If so, do we have those rules now…or what would they look like? If not, maybe the “reasonable regulation” here is a ban.

When is a Fracking Ban Justified?

I have been thinking about the ethics of banning fracking. Other cities and towns are doing it, so why not Denton? I'm interested here not in whether we CAN (legally get away with it) but whether we SHOULD (morally is it the right thing?).

I don't think a city should ban fracking just because that is what a majority of its citizens want. Majorities have a history of wanting some pretty unethical things, which is why the protection of minority rights plays such a large role in America's struggle for justice. In this case, mineral holders are the minority.

So, condition #1 for justifying a ban: We need some good reason for denying mineral holders the use of their private property.

Condition #2 is: We need some good reason for singling out shale gas/fracking as an industry/technology that requires prohibition rather than (as with other industries/technologies) regulation.

We don't satisfy these two conditions with the claim that fracking is inherently unsafe. So are electricity and airplanes, but we generally accept the inherent risks of those industries and technologies.

Rather, we need to say something like fracking is so dangerous that it could never be made acceptably safe (the benefits it brings would never be worth the costs it exacts -- necessary costs that could not be mitigated through regulations).

And/or we need to say that fracking is different in imposing risks on people who do not consent to those risks. This does seem true of an industry that rather uniquely sets up operations very close to homes, schools, parks, and hospitals because that is where the minerals are. Maybe the mineral holders and corporations are unjustly imposing risks and harms on others and the only way to protect them is via a ban.

I'm not sure, though, that a ban is justifiable on grounds of informed consent and autonomy. If this is the principle behind a ban, it seems more compatible with a policy that would allow fracking only under the condition that those exposed to the risks consent to the operation. Just as unregulated fracking infringes on one's freedom to choose against that risk, a ban seems to also infringe on one's autonomy or freedom to take calculated risks. But maybe because those exposed to risks are so widespread, there is no practical way to obtain all their informed consent, so a ban is necessary. If entire watersheds and ecosystems are really jeopardized by fracking, then that would justify a ban.

There is, I think, a third condition necessary to justify a ban. Condition #3: A city that bans fracking must eliminate its consumption of natural gas.

This seems necessary to avoid the charge of NIMBY-style hypocrisy. Italy is a good example here. They (a majority of Italians) have decided that nuclear power is too risky - all four of their nuclear plants have been decommissioned and plans to build new plants were shelved after the 2011 Fukishima disaster. Yet Italy imports 10% of its electricity from nuclear plants located in other countries. The implicit moral claim is: "Let others suffer the harms so that we may enjoy the benefits."

Should a city ban fracking but continue to consume electrons generated from fracking in Denton (or anywhere else)? I don't think they can without making an unjustified moral exception of themselves (that somehow their health and safety are worth more than that of others) - after all, they are the ones who decided fracking was so dangerous. Moral consistency demands not just that their ground be free of wells but that that their grid by free of electrons that bear the immoral stain of fracking.

So there are my three conditions for justifying a ban: show why minority property interests are justly denied; show why this industry is so dangerous as to require prohibition (rather than mere regulation); and make the ban complete by forbidding consumption of the commodities resulting from fracking. Otherwise a ban constitutes tyranny of the majority, unwarranted discrimination, or hypocrisy. But if we can meet these three conditions then Denton should pursue a ban.

The Ethics of Banning Fracking

[This is an open-source argument - I plea with anyone to help me think through this...I am struggling here!] As shale gas development continues to encroach on communities across the nation, municipalities are asking themselves: Should we ban fracking and can we ban fracking?

The latter question is the legal one and the answer seems to be a qualified ‘yes.’ Courts in New York have ruled in favor of local control – claiming that towns are within their authority to amend zoning laws to keep out natural gas development. This will continue to be a live question, especially following recent bans by Longmont, Colorado and towns in Ohio.

The former question is the ethical one. Are these laws just? Is a ban the right thing to do?

It’s important to ask, because a ban has victims. Of course, the natural gas industry will be harmed. Justifying a ban will require articulating some morally relevant reason(s) for singling out that industry for prohibition. Otherwise, it is baseless discrimination.

More importantly, mineral rights holders will not be allowed to use their private property. We cannot simply affirm a ban on the grounds that it represents the will of the majority (interestingly, a bipartisan majority in the case of Longmont, CO). The majority should not be allowed to coerce minorities simply by virtue of their brute numbers. So justifying a ban will also require articulating some morally relevant reason(s) to impose the will of the majority on a minority.

In other words, we tolerate all sorts of industries and all sorts of private property uses. How is natural gas different from a chemical or concrete plant or paper or steel mill? Why ban development of mineral rights when we allow development of surface rights into strip malls, parking lots, and NASCAR stadiums? Why do we think grassroots-driven fracking bans are “what democracy looks like” when we don’t even think about democracy when companies come into “our town” to set up telephone lines or to build fast food restaurants?

In this case, the reason is grounded in public risks and harms. It is one thing for a private property owner to cause some minor nuisance to the surrounding community – there are ways to mitigate that. But imagine that the minority required an industrial process to enjoy their property that, without a doubt, killed thousands of their neighbors and fellow community members. Clearly such certain and egregious harm to others would justify prohibiting this use of private property and the industry it relies on.

Now, I have not actually seen a good ethical justification for fracking bans. But I think most proponents of bans have something like this in mind. The hazards posed by fracking justify the denial of mineral rights. They may not amount to certain death for thousands, but they are far more than minor nuisances that lend themselves to regulatory tweaking. The hazards are sufficient to make fracking unlike other industries that we regulate rather than ban.

I think this is a crucial point for any ethical justification of a ban – that regulation is insufficient. I have had people tell me, roughly, “no amount of regulations can prevent harm and suffering.” I think this can mean either “no rules can militate against the inherently toxic nature of this activity” or “maybe there are rules that could make it safe in theory, but they will never be enforced in reality.”

I have been advocating a more moderate position of improving regulations to make fracking safer. But I have been impressed with the number of times I have been told “safe fracking is an oxymoron.” This is an emerging position on the national scale. In an interview with Rolling Stone, Sean Lennon claimed that “fracking for gas is inherently dirty and dangerous” and that “no amount of regulation can make fracking safe.” Sandra Steingraber has also insisted that “safe hydrofracking is the new jumbo shrimp.” She writes, “safe fracking is an oxymoron even with the best of laws and with their strongest enforcement.”

This might mean that, no matter what the rules, fracking will always carry the risk of negative consequences. If that is the case, I agree, but it doesn’t do the moral work we need – namely, it does not differentiate fracking from other industries and technologies. Flu shots carry inherent risks. So do electricity, lawnmowers, airplanes, processed foods, and pharmaceuticals. So does driving, as Ralph Nader claimed in his 1965 book Unsafe at Any Speed: The Designed-in Dangers of the American Automobile. The US Census Bureau reports that nearly 34,000 people were killed in automobile accidents in 2009. I haven’t seen any comparable mortality figures from fracking.

We have not banned all industry and all technology, despite inherent dangers, because safety is not the only thing we value.

But maybe the oxymoron claim means that there is no such thing as an acceptably safe fracking: sure, risk is unavoidable, but there is a limit to what we can and must tolerate. Perhaps fracking is so much more dangerous than other technologies and industries that we simply ought no longer to pursue it. This is, I think, the position that many hold. It explains Canterow’s claim that fracking is the earth’s final showdown. Her case for a ban depends on singling fracking out as exceptionally catastrophic.

But is it? I have been chastised by both sides for my gullibility when I claim that I don’t know an answer to this question. One side says that I have been hoodwinked by deep-pocketed merchants of doubt. The other side says I have been swayed by irrational phobias. There are two worldviews at work here and I haven’t found any neutral ground from which to judge both of their claims. They both claim that science and truth is on their side.

Maybe this stalemate of dueling experts could be avoided by justifying a ban not by what we know, but by what we don’t. Fracking might be catastrophic and until we know more we ought not to pursue it. But that won’t avoid the duel, because the industry side claims that we know plenty already to rest content with its relative safety. And that really only justifies a moratorium, not a ban.

But maybe the oxymoron claim is about more than levels of safety. Maybe it points to a deeper concern about autonomy. Perhaps it is saying something like: WE, the people of this community, do not find it acceptably safe, and WE are the decision makers who count. The general principle would be something like: no one shall incur risks that they have not freely consented to; or no innovation without representation.

Yet we regularly bear risks that we don’t consent to (I don’t recall consenting to the risks created by nuclear weapons or plastics or GMOs). So, what would make fracking different? Furthermore, this “WE” is the majority, so there is a need to justify their will on the grounds of something more than just raw numbers. Imagine the majority had been subjected to a propaganda campaign that smeared an industry with unfounded accusations. Then they ban it on that basis. Their might, in such a case, would not make right. Once again, this throws us back on the science of proving that fracking is so dangerous as to justify the denial of mineral rights.

Or it leads to the claim that the siting of hazardous industries shall be granted only under the condition that those most vulnerable (those nearest to it) give their free and informed consent. I like this idea, but it is not a ban. It would allow fracking as long as a deal could be struck that satisfied all parties involved.  

There is one last salient difference between natural gas and most other industries.

This industry can occur anywhere there is gas under the soil. It is not restricted to particular zoning classifications, because the industry comes in to extract minerals that nature had long-ago tucked away here and there regardless of any political boundaries. But when a heavy duty truck factory comes to town, it must obey the zoning categories that make human sense in terms of which uses belong next to one another. So, fracking can suddenly bring hazards to neighborhoods where no one signed-up for an industrial neighbor.

Perhaps a ban is a response to the geological accident that put gas under schools, homes, parks, and hospitals rather than just under the appropriately zoned areas. But a ban is not necessary for this correction. Fracking could just be zoned industrial (and I think it should be). Again we are thrown back on the necessity of claiming that it is simply too dangerous to permit at all, anywhere in town (or in the state in the case of calls for state-wide bans).

So, that’s where I am at this point. To justify a ban, we have to provide morally relevant reasons for singling out this industry and denying mineral rights. Do we have those reasons? If not, then I don’t think it is right to ban fracking just because we can. But if we do have those reasons, then we should pursue this option.

Fracking and the Fate of the Earth?

Ellen Cantarow has a piece out in Salon today titled "America's Secret Fracking War." I wish there was a good word for hyperbole in the fracktionary - "frackerbole" sounds dumb, so does the fracking-hysteria blend "fracksteria." Anyway, someone should invent a term for this and crown Cantarow the queen of it.

Here she is in full throat: "As unlikely as it sounds, the fate of the Earth may rest with the residents of…tiny villages and small towns you’ve never heard of."

Indeed, it does sound unlikely. But that doesn't stop her from saying it.

She embraces the military metaphoric framing of the issue with verve: "There’s a war going on that you know nothing about between a coalition of great powers and a small insurgent movement.  It’s a secret war being waged in the shadows while you go about your everyday life."

This is the "war" between overmatched but spunky never-say-die environmental activists and a death star coalition of evil-empire-building oil and gas corporations.

Just when you think she can't dial the rhetoric up any higher she hits a new register of apocalypticism: "In small hamlets and tiny towns you’ve never heard of, grassroots activists are making a stand in what could be the beginning of a final showdown for Earth’s future."

Wow. Final Showdown.

That must be why Cantarow sees the only possible response as a total ban on fracking. Indeed, she equates democracy with total prohibitions. Cities and towns must stop the frack altogether. There are two options for municipalities – take a stand or die.   

Why is that? Well, instead of grounding her conclusions in an argument, she just adds hand-waving to the hyperbole. First, she waves at climate change, conjuring up droughts, fish kills, wildfires, super storms, and a prediction that 100 million people will die if fossil fuel consumption is not reduced by 2030. (No mention of how many would do if fossil fuel consumption is reduced). Yikes, fracking caused Sandy!

The assumption, I guess, is that fracking will worsen climate change. But that’s debatable. The alternative really is not wind farms and solar panels – it is coal. Natural gas does better than coal in terms of CO2 emissions. Now, methane leaks are a problem. But they can be reduced through better regulations. And industry wants to reduce fugitive emissions, because that is money lost in the air. But, remember, the only option is a ban. So, hello coal!

Then, she waves at a recent GAO study, claiming that it concludes that “fracking poses serious risks to health and the environment.” Actually the report never uses the phrase “serious risks.” It does point out the risks (and uncertainties) involved. But lots of things are risky – things, like driving, that we don’t ban because benefits come with the risks. Indeed, the GAO report notes the benefits of fracking in terms of a better balance of trade and reduced air pollutants from less dependence on coal.

This might make one pause and think, just perhaps, that we might want to see if we can’t retain the good things while minimizing some of the bad things. Maybe we could do that through smarter regulations. But, no. Not for Cantarow and her army of “insurgents.” They are dead-set certain that fracking is evil.

It would be nice to have such moral clarity on this issue. And it is an alluring position. It is so easy: simply stop the frack attack. Cantarow cites an engineering professor who classifies fracking as a case of “the health of the many versus the wealth of the few.” How crisp and clear.

But it is just far too simplistic. Millions of Americans benefit from natural gas – it is part of our collective wealth as a modern society with all the comforts and conveniences that brings. Indeed, it may be the health of the few (those closest to fracking) versus the wealth of the many. But that is also too simplistic. I think it is a jumble of goods and bads.

If it’s not apparent by now, I take umbrage with Cantarow’s piece – the hyperbole, the militaristic framing, the reduction of options to “ban” or “end of the world.”

I can respect a call to ban fracking. I don’t like fracking either. I can especially respect it when it is a matter of empowering people in decisionmaking processes that impact what happens in their communities. But what I can’t stomach is the moral certainty and the hysteria of it all. I don’t think fracking is a clear-cut, doomsday evil.

Rather, I think it does some good and some bad. I also think there are ways to do it that bring more of the good with less of the bad.

I think Cantarow does a disservice to the grassroots movement. I’ve been a grassroots participant in the fracking debate for nearly two years now. But I’ve decided to take the path of working for better regulations, which includes working with corporations to try to hammer out middle ground, sensible solutions. I’ve met in town halls AND corporate board rooms. This includes opening the black box of “fracking” to see all the variety of suppliers, contractors, materials, processes, equipment, and operators – and then picking the best ones and pushing those to get even better.

Cantarow leaves no space in her worldview for this kind of work. Now, I won’t claim the fate of the world rides on it, but I think it is important.

What City Council Should Do Next

Cities in Colorado and Ohio just banned fracking. I applaud their boldness and hope they win in their impending legal defenses. I know some will want to see Denton follow suit. But I don’t think an outright ban is a good strategy for our city.

I think the best strategy for Denton is to renovate the technical system so that we can have both safe, healthy communities AND mineral development. This is our battle – not to ban fracking, but to make it an acceptable activity in our city. There will be reasonable differences about what will count as “acceptable.” But there is also common ground.

Here is how I would structure the next City Council meeting. Start with these 4 items, because they are both important AND promise broad agreement. Indeed, it is remarkable the current draft still lacks such requirements given that many operators are already on board:

1.      Require the use of green completions and prohibit flaring (except in emergencies).

2.      Eliminate all on-site pits and require closed-loop fluid systems. At the very least, eliminate all pits that would ever contain anything but freshwater – and only allow those when they would eliminate or reduce truck traffic.

3.      Require the use of low-bleed valves and low-toxicity drilling fluids.

4.      Require cathodic protection.

Then I suggest that City Council move on to consider these items, which are important BUT invite reasonable disagreement:

1.      Increase set-back distances to 1,500 feet.

2.      Provide those living in the ETJ with the same protections as we afford those in residential districts within the city.

3.      Alter the variance procedures for reducing set-back distances such that the informed consent of ALL impacted parties is required.

4.      Require the purchase of renewable energy to run on-site electric motors.

5.      Require the use of zero-emission dehydrators and other industry-recognized best practices.

6.      Bolster air, water, and soil testing before and after drilling/fracking.

7.      Prohibit compressor stations.

8.      Establish a pad-site upgrade incentive program to retrofit old sites with new equipment. This is a work-around for vested rights claims.

9.      Incentivize operators to use green or ecologically friendly fracking fluids. This could be part of a “most preferred operator” status program.

These are the big-ticket items. I don’t know why City Council got bogged down on Tuesday in discussing landscaping requirements. I don’t know why the chart they were given was so haphazard and did not reference the current draft or the DAG report. Sadly, not much got done. We need to keep our eyes on the big picture, start from common ground, and work out from there.