Wednesday, April 16, 2014

We Dalton Do It

I support Dalton Gregory in his bid for the Place 5 seat on Denton’s City Council.


This may strike some as surprising, because I am one of the architects of the Frack Free Denton campaign, which Dalton has publicly questioned. It’s true that he and I disagree when it comes to reading the legal tea leaves of municipal authority over fracking. But that superficial difference masks a core of basic values that we share: protecting citizen health and safety, promoting livability and Denton’s unique community character, and committing to reasoned dialogue that is open to genuine learning and mutual understanding.


Dalton has been working at urban drilling for longer than me. Few people in town have a better grasp of the issue. He’s been a long time attendee at DAG forums, and he’s reached out to me on numerous occasions so that we can learn from each other. Few other city leaders have done that. He has left no doubt that he shares the same position as so many Denton citizens: fracking does not belong in our city. Dalton has stated openly that he fully supports just about every ethical argument for a ban on fracking, and he will vote for the ban when it comes before the citizens in November.

It is worth remembering that Dalton broke ranks with other Council members by voting against the standstill agreement that handed EagleRidge the permits to several of the most controversial wells in town. And he promoted the disclosure requirements for new homes near existing gas wells, which, though admittedly insufficient, are a step in the right direction.


Most importantly, Dalton has sworn to defend the fracking ban should the citizens of Denton decide to vote for it. He will fight for it. It is a fight that he wants to take on – he just wants everyone to go into it fully aware that it will be a real struggle. I agree. And I believe that Dalton is going to be the toughest and most savvy leader when it comes time to defend our community’s right for self-determination. When this battle starts, we don’t need someone in office on the front end of a steep learning curve.


I see Dalton’s questioning of the petition to ban fracking as a form of respect. It shows that he takes it seriously and is weighing its worth carefully against his charge to be a public servant for the best interests of Denton. Leaders do not just hop on the latest popular bandwagon for personal political gain. They do the hard work of elevating citizen initiatives into policy realities. By fostering a discussion about the legal ramifications of a fracking ban, Dalton is giving us the chance to look city leadership in the eye and, without blinking, say “Yes, we mean it.” By having this conversation now, the city can’t get weak in the knees when the industry comes rattling its saber. They can’t make excuses about how the citizens didn’t really know what they were doing.


Dalton and I are now working together to learn more about the potential costs of a lawsuit, and he has advocated for framing this in the context of the many costs of not banning fracking – the health costs, lost property values, the drag on future development, and even the costs of trying to enforce our current regulations. This is the hard work of true leadership: Dalton reaches across disagreements to find common ground. Rather than festering on problems, he molds the clay of political realities into something more ideal.

Framing all of this is Dalton’s distinguished record of service to our city. The fracking ban, after all, is about protecting our citizens and promoting what’s best about Denton, and that is what Dalton has done on so many issues. He has supported food trucks, which instill a vibrant conviviality into our community. He is the leading champion of bicyclists, having spearheaded the safe passing ordinance and improvements to the bike and pedestrian mobility plan. He was the strongest force behind the smoking ordinance. And he was instrumental in rerouting the controversial DME transmission line to reduce negative impacts on citizens. Time and again, Dalton finds a way to serve and improve the common weal. His record shows he has been the most progressive member on Council.


I’ve always said that the Frack Free Denton campaign should be about civic education. People should think and debate as we advocate for our cause, because the more you learn about this issue the more obvious it becomes that a ban is the right and reasonable path for Denton. I see Dalton very much as an ally in that process. The campaign will be stronger as the result of his questioning. And Denton will be stronger when we elect Dalton. 

Tuesday, April 8, 2014

Where Did You Go, NT Daily?

The NT Daily has stopped covering fracking just as things are heating up. Since the launch of FrackFree Denton I have talked to media from around the nation but no one from our campus paper has contacted me. They have not run a single word about it. In fact, if you do a search for “fracking” and “shale” on their site, you’ll find that their last article (outside of a very brief mention in a recent piece on the Mayoral candidates) was back on November 1st, 2013.  

Nearly six months of silence? That seems to me like a problem, though perhaps others disagree.

What’s going on? I am not sure. It could be any number of things. I did hear one story from a reliable source with inside knowledge that the NT Daily printed an article with an error in it. My source said that the industry intimidated the editorial staff to such an extent that they responded by essentially self-censoring. Now, I don't know what to make of this story. It certainly doesn't seem likely. There are several other reasons we could imagine to explain the absence of coverage about fracking. I mean, maybe it's not as important or interesting for the student body as I think it is. That's fine. Maybe it's simply an artifact of how busy these students are and how much turnover happens at the paper -- they are doing this on top of all their classwork.

Anyhow, the purpose of this post is not to spin or support any conspiracy theory. I just want to see if anyone can explain this for me - does anyone have light to shed on the issue?


Monday, April 7, 2014

A Fracking Ban Will Not Sink the City

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. King’s Letter 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 and enforceable.
Some Perspective
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 business (a 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.
Regulatory Takings
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, “municipalities 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 remains.”
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 existing technologies.
Hydraulic fracturing 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 opinion.
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 challenge.
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 government.
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 proposed.
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 local government.

Tuesday, March 11, 2014

Video: The Myth of the Local Fracking Boom

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.


Monday, March 3, 2014

Video: A Failed Strategy -- Fracking Regulations in Denton

Here is a 6 minute video that explains Denton's regulatory approach to fracking - the compatibility strategy - and why it has been a failure. It shows how it is time for a change...time for a Frack Free Denton.

Sunday, February 23, 2014

What We Are Fighting For

Some think the initiative to ban fracking is all about what we are AGAINST. But this is really about what we stand FOR. It is a positive campaign – we stand for the health, safety, and integrity of Denton.

But that’s too abstract. Here’s what really keeps me motivated to keep up the fight: it’s the thought that a year from now a child – someone just like my daughters – will go outside in her neighborhood in our town to ride her bike and she won’t have frack trucks nearby pumping out diesel, silica, and other chemicals. She’ll come inside for dinner breathing clean air with no coughing. She’ll drink clean water not threatened by toxins (neither known nor non-disclosed). She’ll sleep soundly in the night with no interruptions. She’ll grow up healthy and do her own part to make Denton and the world better.

About 30,000 new families are going to move to Denton in the near future. Many of them will end up in situations like we’ve seen at Vintage and S. Bonnie, where the children couldn’t even go outside to trick or treat at Halloween. We’re fighting for a Denton where kids are safe in their own neighborhoods.

Wednesday, February 19, 2014

Time for a Frack Free Denton

The Denton Drilling Awareness Group is launching a campaign – Frack Free Denton – to ban hydraulic fracturing in the city limits. This campaign is a ray of hope for our community. It promises not only to protect us from a uniquely invasive and toxic industry, but also to provide us with an occasion for a civic conversation about who we are and who we aspire to be. In the spirit of that conversation, let me briefly explain why I will be signing the petition.
When it comes to fracking, all of the most powerful players are focused on a narrow set of intended outcomes: profits, economic growth, and energy security. The oil and gas industry seeks to exploit minerals. The Texas Railroad Commission fosters and promotes this development. State and federal lawmakers are increasingly captured by corporate interests.
It is at the local level where most of the broader unintended harms from fracking occur, namely, air and water pollution, property devaluation and damage, and noises and other nuisances. Working within this context, the City of Denton has pursued what we might call the compatibility strategy: it has sought to make the production of minerals compatible with health, safety, welfare, community integrity, and surface property rights.
After years of effort, I have come to realize that the compatibility strategy is a failure. We can either have fracking or a safe, healthy, and vibrant city. We cannot have both. In calling for a ban on hydraulic fracturing, we are choosing our safety over their profits. We are choosing our community over their reckless pursuit of commodities. We are choosing the health of our children over a shortsighted, poisonous, and unsustainable fossil fuel addiction.
This is a choice I have made with a great deal of deliberation. Indeed, for five years the committed citizens of Denton tried to make the compatibility strategy a success. We tried despite a Task Force stacked with oil and gas industry representatives. We tried despite closed-door meetings and behind-the-scenes legalese. We tried even as our ideas for bolstering safety and health – ideas that had been implemented by other cities on the Barnett Shale – were repeatedly denied. And we tried even as we learned that the new rules that did actually pass – including the 1,200 foot setback distance – would not apply to the hundreds of gas well pad sites within City limits grandfathered under older regulations.
But we could no longer stomach the failures of this strategy when three gas wells were drilled, fracked, and flared in one of our neighborhoods – and we saw that this would be the ugly future of Denton under status quo policies. We could no longer simply work through the bureaucratic system – with all its hoops, loopholes, and systematic biases – when people were getting sick and parents had to keep their kids indoors in desperate attempts to protect them from the fumes. We could no longer ignore the fact that most of the people exposed to the harms were not informed and were not receiving any of the financial benefits. And we cannot watch our City grow over the coming years into the heart of the gas patch and let thousands of new Denton families suffer in this way.
As natural gas prices rise in the future, things will only get worse. Unless we act.  Enough is enough. It is time for a frack free Denton.