To understand the importance of local control, just follow the money. Ask yourself: Might these elected officials be a teensy bit biased? They don’t represent communities; they represent the industry that bought their tickets to Austin.
Oil and gas donations across the political career of the candidate:
The Texas Legislature is on the attack. And their strategy is clear. They are going to eviscerate local control by giving the oil and gas industry the power to define what counts as a “reasonable” rule. Municipal oil and gas regulations will be judged on the industry’s terms.
Of the dozen bills that target local control, HB 40 (and its companion SB 1165) has the most momentum. This is a dangerous piece of legislation that could potentially undermine not just the ban, but also other protections won by communities over the years.
HB 40 expressly preempts local control over oil and gas, effectively making the Railroad Commission the City Council of Texas.
More specifically, this bill changes the standard for determining the validity of municipal oil and gas regulations. Currently, local rules are judged foremost in terms of the impacted communities: do they provide reasonable protections for health and safety and mitigations against nuisances? HB 40 shifts the standard to the industry’s perspective. It will require local rules foremost to be “commercially reasonable.” In other words, the test shifts from “does this protect the community?” to “does this allow operators to fully and effectively exploit minerals?”
Armed with this new standard, the industry will be able to challenge a wide range of local protections, claiming now that they are illegal because they are not “commercially reasonable.” Just what counts as “commercially reasonable” is unclear, but we can be sure they will use this legislation not just to counter the Denton fracking ban. They will also use it to attack what they are now calling “extreme setbacks.” Denton, Flower Mound, Dallas, Southlake, and several other cities will be vulnerable. Anything the industry doesn’t like is now fair game for being illegal, because ‘unreasonable.’
Please let the legislature know you support community vitality above industry profits. Tell them to get their priorities straight and vote no on HB 40.
The Denton fracking ban has sparked an important discussion about the political authority of municipalities and the role of citizens’ initiatives in a democracy. This is often couched under the label of local control, a core value that state legislators are now hypocritically attacking.
One of their strategies is an appeal to rule of law. In a nutshell, the argument is something like: “Local control is all well and good as far as it goes. But it is not an absolute value. Taken too far it becomes mob rule. The Bill of Rights prevents majorities from stripping minorities of their civil liberties. Just because an ordinance is passed by a city or citizens’ initiative, doesn’t mean it can trump certain basic rights that are afforded all U.S. citizens.” Here’s one example of this argument.
No one will dispute the possibility that local control can be misused to violate Constitutional protections. But this argument doesn’t apply to Denton’s hydraulic fracturing ban. As we’ve maintained all along, the ban is legally sound and indeed it is less restrictive than other valid Texas ordinances.
Denton’s law is not depriving anyone of their property rights (or any civil liberty). It is simply a recognition that the rights of all citizens to peacefully and safely enjoy their property trumps the imperative to maximize profit from mineral resources via a hazardous, uniquely invasive, and noxious well stimulation technique. Securing equal rights for all citizens requires limiting activities that harm others. In other words, property rights come with the correlative duty to respect the property rights of others.
Indeed, the rule of law argument actually favors the Denton ban, because it was the only remaining path to secure the basic rights of citizens put in harm’s way. Let us not forget for how long and hard the people of Denton worked to draft a set of reasonable rules. Leaning on systematically biased state laws, the industry refused to cooperate. On November 4, bad neighbors got their comeuppance.
In reality, the rule of law argument is a sheepskin atop the wolf of corporate power. The oil and gas industry owns the state legislature. They fund the campaigns of law makers and even regulators. As a result, they have been able to put in place a legal system that prioritizes their profits over health, safety, community integrity, and welfare.
This is why local control is so vital in this context: municipalities are the only level of government concerned with protecting the people exposed to the harms of fracking. Rule of law is only as good as the laws that are ruling. With vested rights, non-disclosure of chemicals, non-reporting of emissions, the dominance of the mineral estate, lax enforcement, and much more, the state allows the industry to run roughshod over the people. Those appealing to the rule of law at the state level need to get busy making some better laws. In the meantime, local communities will need to continue to stand up for the rights of those neglected by the state.
On November 5th, the morning after we passed the ban, the oil and gas industry and the state of Texas sued the city of Denton. Not long after that, some state legislators filed proposed bills that (if voted into law) would undermine the authority of municipalities to regulate oil and gas development and even to vote on citizens’ initiatives.
In other words, we very quickly went from the “pass the ban” phase of our campaign to the “defend the ban” phase. This post is intended to get you up to speed quickly on where things now stand as we seek to defend the ban – and the very ideal of local control – both in the courthouse and at the statehouse.
The TXOGA lawsuit is being heard in the 16th District Court in Denton County by Judge Sherry Shipman.
The GLO lawsuit was recently moved from Austin to Denton and it looks like it will also be heard by Judge Shipman.
The Denton Drilling Awareness Group (DAG), which spearheaded the Frack Free Denton campaign and Earthworks (which helped DAG all the way) have been allowed to act as intervenors in at least the TXOGA case (here is the motion for intervention). This essentially means that they have entered as co-defendants to help the city. DAG and Earthworks are being represented by attorneys from Earthjustice, the Natural Resources Defense Council, and Brown and Hofmeister.
At least four bills have been proposed in the state legislature in response to the Denton fracking ban:
HB 539 (Phil King, R-Weatherford) This bill would require cities to pay the state for lost revenues resulting from local oil and gas regulations.
HB 540 (Phil King, R-Weatherford) This bill would require cities to first get the attorney general’s blessing before putting a citizens’ initiative up for a vote.
SB 440 (Konni Burton, R-Colleyville) This bill would prohibit cities or counties form banning hydraulic fracturing. *update this now seems to be flying under the number SB 720 (slightly revised version of same thing, same sponsor).
SB 343 (Don Huffines, R-Dallas) This bill would effectively eliminate home rule for Texas cities.
Write a letter to the editor. Here is a link to the form – it is very easy to do and takes just a few minutes.
Donate to Denton DAG so that we can help win in the courthouse and at the statehouse. We need funds to help cover expenses of lobbying in Austin and to help pay for legal fees. You can donate online here or send checks to “Denton DAG” to 1620 Victoria, Denton, TX, 76209.
Adam Briggle (Vice President of the Denton Drilling Awareness Group) and Kevin Roden (City Council Representative from District 1) recently published this opinion piece in the Fort Worth Star-Telegram. Below is a slightly expanded version.
In November, the citizens of Denton passed a ban on hydraulic fracturing. Now it is time to defend the ban. The ban is under siege in the courthouse as the city faces two lawsuits. It’s also being attacked at the statehouse as politicians have proposed at least four bills reacting to the Denton vote.
What’s at stake here is much larger than the ban. State legislators have used this as an occasion to attack local control and further erode the power of people to self-govern.
In so doing, our state leaders have worked themselves into a crisis of political philosophy.
When it comes to the perceived overreaches of the Federal government, they decry top-down control. But when it comes to municipalities, they embrace their own position of centralized power to attack governments that embody democracy in its smallest and most representative form.
State Representative Phil King’s proposed HB 540 is a good example. It targets citizens’ initiatives, which allow people to gather signatures on a petition and call for a vote. One would think Mr. King should want to protect the sovereignty of the people in this most direct form of democracy. After all, he is fond of saying, “We should always trust people over big government.” But HB 540 would require citizens to first get the blessing of the attorney general before voting on a petition. Rather than trusting the people, Mr. King thinks we need big government to save us from ourselves.
Why is he so hypocritically jettisoning his own values? Three words: oil and gas.
Mr. King’s bill only exists because the people of Denton used a citizens’ initiative last November to ban hydraulic fracturing. We won despite the oil and gas industry outspending us 15 to 1. The people spoke. Inconveniently for the political ideals of some state leaders, though, they spoke against the industry that owns Austin.
Texas cities have long regulated oil and gas development with local authority that would seem to embody Mr. King’s other cherished motto: “Local control and limited government must be the first resort not the last.” Local communities know what suits them best. As newly elected Governor Greg Abbott said, we should resist “one-size-fits-all, cookie cutter solutions” pushed down from central government.
Yet Mr. King’s other proposed bill, HB 539, is a ticket to cookie cutter solutions. It would require cities to get a fiscal note from the state prior to enacting any measure related to oil and gas development. The note would estimate costs of the measure to the state, which cities would have to reimburse. This proposal would end generations of local control of the oil and gas industry, because no city would risk incurring the costs ginned up by the oil-soaked calculators in Austin. The only thing left will be the one-size-fits-all rules of state government.
When oil and gas prices fall, the industry can slow or cease operations. This has detrimental economic impacts. But HB 539 has nothing to say about industry-inflicted costs. When busts happen, well, that’s just tough luck. But when cities limit industrial activity to protect health and safety, that’s a crime against the state.
Local rules for oil and gas development protect health, safety, welfare, and property values. HB 539 doesn’t take these benefits into account. On a true cost and benefit calculation, the state may well owe cities money for the economic benefits of local oversight. Cities are doing much of the work that industry-captured state regulators fail to do. The state ought to be the one paying municipalities for doing the job it refuses to do. The biased view of regulations behind the bill illustrates how many assumptions will go into forging a fiscal note. It is pure mendacity to pretend the economic impacts of regulations can be pinned down with any accuracy. HB 539 is a black box of arbitrary and vindictive guesswork.
Mr. King is using the Denton fracking ban as an excuse to go on a rampage against all local control. It’s the same government overreach so often decried by our conservative leaders. Clearly, this is not about sound policy or rule of law. It’s about power politics: HB 539 is designed to disenfranchise and neuter municipalities. Why? Because municipalities are the only remaining level of government accountable to citizens rather than big money.
What we need from Austin is legislation that actually addresses the conditions that led to the fracking ban in Denton. It is remarkable how silent our state leaders and state regulators are about the basic situation that drove us to the ban: The industry refused to be a good neighbor and state laws let them get away with it. Rather than chasing down this rabbit hole of arbitrary and biased fiscal bullying, we need leaders who can focus on what needs to be fixed. We need to reduce industry influence over the Railroad Commission, the state oil and gas regulatory agency. We need to resolve the issue of vested rights and equalize the authority of the surface and mineral property estates.
And we need to reform the taxing policies for the industry. As it stands now, Austin takes all the production taxes and redistributes them across the state. Locales with intensive development, like Denton, are economic sacrifice zones as most of the wealth flows out of town while residents pay the nuisance and pollution costs. The state should give at least 50% of taxes from minerals produced in a locale back to that city.
We need to tell our legislators to live up to their own values. It’s time to kill these bills and get working on ones that might actually solve problems.
Denton Drilling Awareness Group & Earthworks act to counter lawsuits challenging local law
Denton, TX, Dec. 4 — The Denton Drilling Awareness Group (DAG) and Earthworks today filed intervention papers in two lawsuits seeking to overturn the Denton, Texas ban on hydraulic fracturing (fracking) that went into effect on Tuesday, December 2. DAG’s Frack Free Denton campaign, with Earthworks’ help, successfully secured passage of a ballot initiative making Denton the first Texas city to ban fracking. The groups are represented by the Texas local government law firm Brown & Hofmeister, and attorneys from national environmental organizations, Earthjustice and the Natural Resources Defense Council, are seeking court permission to participate as co-counsel.
“Denton residents, with Republican and Democratic majorities, voted overwhelmingly to ban fracking,” said DAG president Cathy McMullen. “Our city has the legal power to prevent bakeries from setting up shop in residential neighborhoods. To suggest that we don’t have the legal power to similarly bar fracking, a much more dangerous process, is the height of industry arrogance.”
Denton passed the fracking ban when attempts to work with the industry failed, and local and state regulators allowed new fracking operations adjacent to homes, schools, parks, and hospitals. Repeated citizen testing of fracking facilities within Denton detected carcinogens at levels exceeding state and federal exposure limits.
“The State and industry could have respected Denton communities’ health, safety, and property,” said Earthworks’ energy program director, Bruce Baizel. “They chose not to. The ban is the result. Now, rather than constructively engage with the community, they simply overlook their regulatory failure and move to overturn democracy through legal action.”
The groups moved to intervene in two separate lawsuits brought against the City of Denton: one by the Texas Oil and Gas Association in the Denton County District Court, and the other by the Commissioner of the General Land Office (a state agency that manages certain state-owned lands and mineral interests) in Travis County District Court. At the heart of the cases is the claim that Denton’s ordinance is overridden or “preempted” by state law. Texas has a longstanding tradition, however, of home rule authority over oil and gas development within municipal borders. Comprehensive local oil and gas ordinances are in force across the state, including in nearby Flower Mound and Dallas.
The State of Texas has granted municipalities the right to oversee oil and gas operations. The people of Denton have exercised that right, and we intend to help preserve it,” said Earthjustice Managing Attorney Deborah Goldberg, who represented the Town of Dryden, N.Y., in a landmark case, decided in June, allowing municipalities throughout New York to prohibit oil and gas development within their borders. “Communities from California to Texas to New York are fed up with the abuses of the oil and gas industry. When state and federal officials won’t stand up for the public, citizens must have the right to use local democracy to protect themselves.”
“This fight cuts to the heart of our democracy, and it is far from over. The people of Denton have voted to keep fracking away from their homes and schools—they will not be bullied by powerful oil and gas companies that want to make a profit at the expense of their health,” said Natural Resources Defense Council attorney Dan Raichel. “Denton is a pioneer in Texas, but it is not alone. This community joins hundreds of others around the country—and in Texas—that are demanding the right to determine what happens within their own borders.”
DAG is pleased to announce that we will join Earthworks and seek intervener status before the courts so that we can be co-defendants in the lawsuit filed against the city of Denton. The city is agreeable to DAG having this status.
We are very close to retaining national and local attorneys who are familiar with and successful in working on these type of cases.
We will make a more complete statement after the Thanksgiving Holiday.
Texas Representative Phil King was elected promising to fight big government and protect local control.
“We should always trust people over big government. Local control and limited government must be the first resort, not the last.” — philking.com/about
He is well on his way to breaking his promise, and becoming the biggest hypocrite in Texas in the process.
Because, now that Denton’s voters have banned fracking by ballot initiative, Rep. King wants to prevent other cities from doing the same, and maybe overturn Denton’s ban in the process.
Denton’s ban vote was a landslide. The people who know fracking best – there are over 270 fracked wells in Denton, some only 200 feet from homes – said no. And the voters who did so were majority Republican, and elected Republicans in the same election.
Before Denton’s ban, King was for small government. Now he says citizens shouldn’t be able to decide how, when, where, or even if fracking happens in their cities.
Texas Railroad Commission chairwoman Christi Craddick has a guest column in today’s Denton Record Chronicle.
There are actually a few moments of clarity in her piece. First, she writes that economic gains from extracting minerals are “meaningless without the health and safety of our citizens and our environment.”
But where was this concern five years ago when fracking happened across the street from McKenna Park? Where was this concern a year ago when fracking happened less than 200 feet from homes? Or when Denton residents lodged over 300 formal complaints? Where was Ms. Craddick’s commission for all these years when Denton residents struggled to control an industry hell-bent on risking our health and safety for their profits? They were nowhere to be seen. What kind of “ally” acts that way?
They thought we would just get tired and give up. They thought wrong. We got angry. We got educated. We got powerful. Years of total silence from Austin and now she says we should “work together.” Years of trying to negotiate with an industry that just kept showing us nothing but the back of its hand and now she laments the absence of a “reasonable model of peaceful cooperation.” Too little. Too late.
Here is a second moment of clarity: “The voice of the people of Denton should not be overruled…In the end, a solution that keeps the local and state economies strong and the will of Denton’s residents intact is not only possible, but an obligation.”
Yet she doesn’t seem to understand that the people of Denton just voted for that solution. The ban on hydraulic fracturing within Denton’s city limits is the will of our residents and it will mean a stronger economy.
Her own words make it clear that there is no conflict between state and local jurisdictions. Her office issues “drilling permits” and “companies doing business here [in Denton] must comply with city ordinances.” That’s right. Companies can still get drilling permits. But to operate in Denton they cannot use the well stimulation technique of hydraulic fracturing. That’s what our new ordinance says. It’s simple.
Of course, most of her column is just what we would expect it to be: condescending, out of touch, and full of the same old empty rhetoric.
The worst of it is how she has the gall to talk down to us. She accuses us of “misinformation” and “sensationalism” but doesn’t point to a single claim we made. That’s probably because she never bothered to tune us in and listen to the real story of fracking in Denton. She’s still somewhere in the Shangri-La of “responsible drilling.”
So, without even listening to our actual case (bolstered by peer-reviewed studies), she rides in here and has the nerve to pretend like she’s the real expert. As if those of us who live and work here don’t know the situation a thousand-times better than she does. Ms. Craddick is an armchair General fighting a war that doesn’t exist, some imaginary battle in her head with imaginary radicals. Meanwhile, the voters — of all ages and political stripes — just won the real war.
Wake up! A Texas city that votes like the rest of the state on other issues just banned fracking. The Railroad Commission and the industry might want to take the time to actually find out why the ban passed rather than pretend that they already know.
Because it’s clear that they don’t know. Ms. Craddick talks about setback requirements as local government’s most useful tool. That’s right. Denton has a 1,200 foot setback requirement. Despite that, fracking continues less than 200 feet from homes. The fact that she does not even mention vested rights indicates her remaining cluelessness. Or worse, if she actually does know this, it indicates that she’s still trying to fool Dentonites. The industry just spent $1 million trying to ‘educate’ us. What part of “we ain’t buying it” does she not understand?
No longer can the industry claim the King’s X in Denton. And the time for empty rhetoric is over. You think you’ve got a solution and a “reasonable approach,” then spell it out. With her column, Ms. Craddick had a chance to communicate to a very educated readership. But rather than talk up to our level and to the specifics of our situation, she talked down to us with platitudes and bureaucratese.
You want to dialogue? Then get out of the armchair and catch up to us. We are a long ways down the road.
I am still in shock. We did it? We actually did it! Against all odds.
(The celebration! – photo credit Christina Ulsh, KERA News)
In January, the day before fracking began in the Meadows at Hickory Creek neighborhood, the Denton Drilling Awareness Group decided to pursue the ban. After years of working to fix our ordinance only to have more fracking 200 feet from homes, we knew the writing was on the wall. What was it going to be: spend the next decade going to community meetings at fire stations and rec centers informing Dentonites that their neighborhood just became an industrial zone? Or draw a line in the sand?
We drew the line. And on Tuesday the people of Denton stood with us shoulder to shoulder along that line. We have become a force.
I don’t think we can yet fully comprehend the magnitude and the significance of what we accomplished. But I can tell you that it was ten long months. It felt like rolling a boulder up a hill. I wasn’t home very much. Family dinners are a distant memory. There are no words for how grateful I am for the support of all my girls, especially Amber. She saw me through the long nights of work and worry.
(The gang of seven as captured by Pauline Raffestin)
It was fitting that Election Day was rainy and windy. I stood on a street corner for 12 hours getting soaked to the bone. The wind turned my umbrella inside out. It blew my Frack Free Denton sign out of my hands. And all across the city, other volunteers were standing in the rain until it was pitch black. You see, for ten months the wind was blowing in our faces. All the powers that be were aligned against us. How much easier it would have been to turn our backs and let the wind carry us away – along the comfortable avenues of apathy into the hidden corners of collective irresponsibility.
But we stood there in the wind and in the rain. Immoveable. Have you seen the pictures of our volunteers on Election Day? The sun never appeared. It was night all day long. Yet their faces were glowing as if lit up from the inside. That is the light and the splendor of glory. It is the torch of a caring heart.
(Laura T. as captured by Michael Leza)
David beat Goliath (or as one of my dear friends said, David beat Godzilla). Malcolm Gladwell has this to say about that ancient story: “Giants are not as strong and powerful as they seem. And sometimes the shepherd boy has a sling in his pocket.”
It turns out that Goliath likely had acromegaly. This accounts for his enormous size. But it also gave him double vision and made him profoundly nearsighted. So, although he appears imposing and powerful to onlookers, “the very thing that was the source of his apparent strength was also the source of his greatest weakness.” He could not see things clearly.
Doesn’t that ring true about our opponents? The industry outspent us 10:1 but they couldn’t see that a barrage of slick mailers and advertisements (let alone Russian conspiracy theories and personal attacks) was no way to talk to a fiercely independent, intelligent, and unique Denton citizenry. The Board of the Chamber of Commerce couldn’t see how a backroom decision would actually alienate them and put them on the defensive. The Denton County Republican Party couldn’t see that clean air and water and safe neighborhoods are not partisan issues. The Eppstein Group that ran the “responsible drilling” campaign couldn’t see that Dentonites are smart enough to know doublespeak and empty rhetoric when they hear it.
(Me and Gena, gettin’ soaked)
The giant was never as strong as he appeared. And we proved that the shepherd boy was never weak. What was the sling in our pocket? What was the source of our strength?
It was Tara Linn Hunter, who hasn’t slept in weeks, because she has been coordinating a massive ground campaign by our volunteers. It was Ed Soph, who blended wisdom with a preacher’s fiery passion. It was his wife, Carol, “the hammer,” who spent two straight weeks at the Civic Center chasing down voters. It was the political wit, public health expertise, and enviable sangfroid of Rhonda Love. It was Sharon Wilson who woke us all from our slumbers. It was Cathy McMullen who is my hero.
It was Angie Holliday and Nikki Chochrek who are my inspiration. It was the lion-hearted Sandy Mattox. It was the courage of Maile Bush, Debbie Ingram, Alyse Ogletree, and Kelly Higgins. It was Ken and Nicole, who let us use the Greenhouse as command central. It was Alan and everyone else at Earthworks who believed in us and supported us all the way. It was Charlene who gave us a winning image. It was a very special local donor…I don’t know your name but I know the measure of your character. It was the leadership at UNT who protected my academic freedoms in the face of great pressure.
(Our last meeting at the Greenhouse. Night before election)
You know I could go on and on! It was everyone who knocked on doors, made art and played music (Brave Combo, are you kidding me!!), distributed flyers, donated money, put out a yard sign (or even made their own!), made phone calls, hosted fundraisers, built coffin racers (!), ‘liked’ us and encouraged us on social media, spoke to neighbors and colleagues, serenely ignored the haters, registered voters, did their homework about fracking, and of course VOTED!
(Polka the Vote with Brave Combo!)
We were the sling. We were the strength. What we saw in Denton was a victory for grassroots democracy – the kind of thing that’s not supposed to happen anymore in the age of big political money. Well, it just happened.
(Tara Linn, Field General)
This was the most intense journey I have ever taken. Every day seemed to bring more and more weighty decisions. There were at least two times when I thought for sure we made a catastrophic error. I thought we were doomed. I am happily eating crow now and thankful for my fellow travelers who spoke wisely and judiciously throughout the campaign.
The industry will not be running roughshod over Denton anymore. The nightmare that unfolded in the Meadows at Hickory Creek will not be repeated. We will have cleaner air and water and safer neighborhoods. Our kids’ schools, playgrounds, and bedrooms will be protected. And I do believe we will have a stronger local economy as a result of the ban. These are the most important legacies of our efforts.
Given the national and international attention we have attracted, there will doubtlessly be much wider impacts. For me, this was always a Denton thing. I always said we were not laying out a blueprint for anyone else. The ban was not about what’s right for other places. It was about our right to self-determination.
So, my hope for those broader implications is that local communities are empowered. Those who are most vulnerable to the risks of fracking should have the greatest say. The petition process enfranchised the people – it gave us a voice…and how good it felt to speak! As frack sites proliferate across the world, I hope that those who are put in harm’s way are able to find their voice too. And I hope that those with power and money will listen.