As promised, here are some recommendations for improving the ordinance under consideration Tuesday night. The goal is not to attempt a comprehensive list, but to indicate some ideas that hopefully generate more from the engaged and educated citizens of Denton.
The goal at this point is to craft the most robust ordinance possible within the parameters of HB 40. What that means is not entirely clear. For example, it is true that Flower Mound, Southlake, and Dallas have, in many respects, strong rules. However, it is also true that the industry made it clear in Austin during the hearings about HB 40 that they intend to target these cities. They have not challenged their rules yet, but they may well do so…and it is not clear that their rules are compliant with HB 40.
So, Denton officials have been looking to other cities as they drafted this latest revision of the ordinance. But this certainly doesn’t mean it is a simple matter of cutting and pasting. There are many uncertainties and context-dependent variables involved.
That being said, here are some ideas for improvements.
Perhaps the two biggest have to do with the related issues of distance and disclosure.
Setbacks are pegged to different zoning categories, that is, separation distances depend on whether the site is in an area zoned residential, commercial, or industrial. Note that Planned Development and Master Planned Communities (PD and MPC) have their own rules…and these are where lots of potential future gas development could happen.
Moreover, setbacks differ depending on whether the site is an existing one or a new one (approved after the passage of this ordinance).
There are also different categories of setbacks along two dimensions: priority and variance. The first category asks: does the protected use predate the gas site (setback) or does the gas site predate the protected use (reverse setback). The second category asks: shall we give a variance to reduce the setback distance down toward some minimum setback. So there are setbacks, reverse setbacks, and minimum setbacks.
Let’s focus on setbacks first.
HB 40 has a safe harbor clause that states: “An ordinance or other measure is considered prima facie to be commercially reasonable if the ordinance or other measure has been in effect for at least five years and has allowed the oil and gas operations at issue to continue during that period.”
The Town of Dish has had a 1,000 foot setback in place for about five years and at least three new wells were drilled and fracked under that rule. That would seem to satisfy the provisions of the safe harbor clause.
Denton too should have a 1,000 foot setback distance, at least in residential zones. Right now, that number is 750 feet.
Now to minimum setbacks. There are two ways that a waiver or variance can be issued. First, if the operator gets approval from 100% of affected protected use owners. Second, if the operator gets approval from the Zoning Board of Adjustments. Actually, then there is a third – an administrative variance granted by the gas well administrator. When a waiver or variance happens, operators must comply with new enhanced nuisance mitigation standards.
There is room for improvement here too. For example: all residents (not just owners) of affected protected uses should be given the chance to give or refuse permission for variances.
Now to reverse setbacks. This raises the issue of disclosure, because the rationale for smaller reverse setbacks is (presumably) that someone moving near to an existing gas well site knows this and knows the risks involved and the potential for different kinds of activities in the future. Reverse setback distances in this ordinance range from 500 to 225 feet, with most of them at 225 feet (the same as most minimum setback distances).
Only a very robust disclosure policy would justify smaller reverse setback distances. And on this point the ordinance is sorely lacking. The penultimate page of the ordinance pegs all disclosure procedures to “lot purchasers.” This means there are no requirements to notify renters. Also, consider the fact that at least one assisted living facility is being planned in a reverse setback scenario. According to this ordinance, the people moving into that facility would not get any disclosure about the industrial risks nearby.
Given the inadequate disclosure, reverse setbacks should provide the same protection as setbacks (e.g., 1,000 feet in residential areas). At the very least, the disclosure policy must be strengthened to target all residents and not just lot purchasers.
Devon Energy’s representative even went on record last week arguing that setback distances and reverse setback distances should be the same. Since 1,000 feet seems to satisfy the criteria of HB 40 as a “reasonable setback,” then all people should be afforded that protection.
Finally, a major part of the ordinance deals with operating standards for the sites and equipment on them. Here there are several questions to raise – just a couple:
Why are vapor recovery units not mentioned?
Can we require electric motors in place of diesel?
Hopefully this gives some indication of how we might improve the ordinance. Please contribute ideas and questions as we lead up to the meeting.
This Tuesday July 28th at 6:30 p.m. at City Hall, the Denton City Council will hold a public hearing about the revised gas well drilling and production ordinance. Members of the public will be able to make comments and all are encouraged to come out to speak their mind. The ordinance they will be considering was recommended to them this week by the Planning and Zoning Commission. Click here for a redline version of the ordinance they will be considering. For those interested, it appears that this ordinance is actually an amalgamation of pieces destined for three different sub-chapters in the development code (5 – zoning districts, 22 – gas wells, and 16 – subdivisions).
Even if the City had not repealed the fracking ban, we would still need to write a new ordinance, because HB 40 rendered the ban unenforceable (obviously, given the fracking on Nail Road at the Vantage site). Repeal or no repeal we’d be in the same deplorable situation of trying to write rules that comply with HB 40. That is, until HB 40 is overturned.
Until then, we need local rules that do as much as possible within this unjust state legal regime to protect health, safety, welfare, and community character. So, please come and offer your ideas. We will be posting some of our recommendations for improvements shortly.
Denton DAG regrets that both the political and legal situation in Texas essentially forced our city council members to repeal the ban on fracking, as voted in by a significant majority of Denton voters in November, 2014.
At a recent public meeting, DAG detailed the various options open to city council, noting that none of them were good. This reversal of the voters’ wishes is a particularly bitter pill to swallow, but we remain committed to our mission of public education and advocacy.
We will engage city council and relevant committees in discussions and will remain vigilant that everything that can be done under the rule of current law will be done to protect Denton’s citizens from the harmful process of fracking. We will also join with others to form a state-wide coalition to repeal or nullify HB 40, which has removed local control from towns and cities.
Adam Briggle, President of the Denton Drilling Awareness Group, gave a short interview today on the Texas Standard discussing HB 40. He also wrote an op-ed in the Denton Record Chronicle about HB 40 recently.
Yesterday, the Texas legislature effectively killed Denton’s fracking ban. Rather than see our political victory in November compounded by a victory in the courts, the industry used their influence in Austin to make an end run. They knew the ban was legal. So they changed the law. That’s the kind of thing you can do when you spend $21.3 million to buy politicians.
But HB 40 is not just a ban on fracking bans. It is far more nefarious and far-reaching than that. It puts dozens of local ordinances regulating oil and gas activity on the chopping block, exposing thousands of people to the harms of a uniquely invasive and secretive industry.
In an epic show of hypocrisy, politicians who sing the virtues of local control just sold out communities across Texas. HB 40 is paternalism through and through – it doesn’t matter what the people say, Big Austin knows best and will force fracking on us.
The Real Intent of HB 40
Through hours of hearings, Drew Darby (the author of HB 40) and other legislators honed a message about the purpose of HB 40: We need regulatory certainty! Oh, how horribly the industry would suffer if it were subjected to a patchwork quilt of local laws!
This might sound reasonable, until you consider that there are over 300 local ordinances already regulating oil and gas in Texas. Indeed, Texas communities have had ordinances in place for decades. Surely, this must have hampered productivity! But, to the contrary, Texas has been leading the U.S. in oil and gas production for a long time.
So, what’s the problem that HB 40 was supposed to fix?
Hold on to that question.
State Representative Myra Crownover said another intent of HB 40 was to actually “strengthen the ability of cities to enact common sense regulation of oil and gas activities.” For the first time, she continued, cities will have “specific authorization in state law to enact local ordinances.” Never before has there been statutory recognition of local ordinances.
This too might sound reasonable, until you find out that decades of common law court rulings have routinely upheld the constitutionality of municipal ordinances. There is no need for statutory recognition when the courts have provided ample grounds already for city authority. Of course, Representative Crownover doesn’t really care about local control – if she did, she would have supported some of the amendments for HB 40 instead of shooting them all down.
So what’s the real intent of HB 40?
Ok, if that’s too simplistic, here’s a more sophisticated answer. Darby, Crownover, and all the rest know perfectly well what HB 40 really does: it puts the industry in charge of determining which local laws are valid and which are invalid. HB 40 “expressly preempts” municipal ordinances (essentially renders them null and void) unless they can pass four tests. Any local ordinance:
Must apply only to surface activity,
Must be “commercially reasonable,”
Must not effectively prevent an oil and gas operation from occurring, and
Must not be pre-empted by another state or federal law.
The kicker, of course, is number 2. Yes, cities can still regulate this or that aspect of oil and gas production…as long as it is deemed reasonable by the industry’s standards. So, while Crownover tries to distract us with a meaningless first (statutory recognition) the important first goes unspoken: For the first time, local ordinances will be judged solely by the extent to which they might interfere with the industry.
In one fell swoop, HB 40 will erase a tradition of eighty years. Since 1935, Texas courts have applied a different kind of reasonableness standard to local ordinances: not “commercially reasonable,” but what we might call “community reasonable.” In case after case through the years, from Houston to Galveston to Fort Worth, the courts have ruled that local governments first and foremost are obligated to protect the health, safety, and welfare of their citizens. Of course, they cannot enforce laws that are “arbitrary and unreasonable.” But, the courts have used a highly deferential standard of reasonableness, that is, a standard that defers to the judgment of a local community (see section III B of this law review article).
That’s the “problem” that HB 40 is really designed to fix: too much deference to local communities getting in the way of profit maximization.
Representative Crownover said that defending Denton’s fracking ban in the courts “would almost certainly have been a losing battle.” No one familiar with case law history of municipal oil and gas regulations in Texas could honestly say that. Cities have beat the industry damn near every time in the courts. Why else do you think the industry worked so hard to find a legislative “fix” that would obviate the need to go through the courts?
The community reasonable test begins with the presumption that a local ordinance is reasonable and sets a high bar for the industry to make a case that it goes too far. That was the law of the land. That is the standard that Governor Abbott will erase soon with a stroke of his pen. The commercially reasonable test flips the script. It begins, not with health and safety, but with the bottom line. The test is simply: Can the industry make the profits it desires?
Like we said. Money.
The Implications of HB 40
We do not yet know what the fall out will be. But we do know it will be grim. And we know that the legislature just used its oil and gas money and its bully pulpit in Austin to overturn a grassroots democratic decision in Denton. That’s not going to sit well. We also know that Vantage Energy is even now preparing to hydraulically fracture as many as nine wells in the city limits of Denton off of 380 and Nail Road (see map for a close up look and a bigger picture to get a sense of the location). We can’t say for sure, but it’s a good guess that the people of Denton won’t just let that happen without at least bearing some sort of witness there to the demise of democracy.
We also know that Devon Energy testified recently in Denton’s City Hall that they have 10,000 acres of minerals leased in the city and would like to put one well on every 20 acres. That’s 500 gas wells. They didn’t like the City’s plans for colocation of wells – a smart new regulatory regime that had cost us $700,000 to craft. It’s probably a safe bet that those rules won’t pass the new test. All that money out the window as we watch Devon get its way thanks to their friends in Austin.
Of course, this doesn’t just impact Denton. HB 40 subjects all citizens of Texas to a free for all. Things are quiet now with low oil and gas prices but just you wait. In short order, there is going to be a massive blitz of natural gas exports to Asia and Europe. Gas prices are expected to rise in the next twenty years from current levels of $2.50 per million BTU to nearly $8.00 per million BTU.
It’ll be another industrial boom even as more Texas land is gobbled up by fast-growing cities. And now that HB 40 has established a new standard, the industry will be able to scrape every last molecule of methane and drop of oil from under our neighborhoods. After all, anything less would be unreasonable.
After you contact the members of the Natural Resources Committee, begin contacting ALL senators and insisting they vote against HB 40 unless it contains the following changes. To email a senator, simply click on his/her email address.HB 40 is sitting with the Senate Natural Resources Committee, so we have more time to seek revisions. Please contact the members listed at the end of this email and ask them to make the following changes to HB 40.
1. Remove the stipulation that gas ordinance regulations be “commercially reasonable.” This phrase is vague and places gas industry’s wishes above the health, safety, and well being of residents. It would annihilate most truly protective regulations.
2. Allow city gas ordinances passed in the last year to be effective. Important due to ever increasing knowledge about impacts of fracking on health and safety and the environment as well as rapidly changing technology.
3. Permit cities to reject/ regulate injection wells. Mention this week’s report that Azele Earthquakes are being caused by injection wells makes this right critical.
4. Permit cities to require vapor recovery units. Recent worker deaths from inhaling hydro-carbons makes this right essential.
HB 40 has passed the House but all hope is not lost. It still has to be reconciled with the Senate version of the bill. So, it is time to apply pressure on the Senate. It’s probably best not to ask them to oppose the bill at this point (unless you know that they already oppose the bill), but to add amendments to it that further protect local control for health and safety reasons.
A key talking point here in the wake of the recent studies definitively linking injection/disposal wells to earthquakes: Request that the bill explicitly grant local governments the right to control injection wells. Local communities are the ones exposed to the risks of earthquakes and so should be the ones empowered to decide whether those risks are acceptable or not.
Here is a list of the TX Senators. Contact them all, but if you only have time to contact a few, make it Jane Nelson (Senator for areas impacted by earthquakes), Craig Estes (Senator for much of the Denton area), and Troy Fraser (Chair of the Senate Committee on Natural Resources and Economic Development where the bill is now being considered). Here is all the contact info:
The real reason for the state preemption of local control over oil and gas development is, of course, money. The influence of the industry over Austin is no secret (for example, over $1.5 million in campaign contributions just to the three Railroad Commissioners supposedly regulating the industry).
In short, it’s pure politics – the brute power of special interests. Yet despite this obvious reality, our state legislators are trying to pass this off as sound policy in service of the common good.
The most recent example comes today from state Rep. Phil King. In the wake of a new scientific report linking disposal wells to earthquakes, King (who represents the quake-shaken Azle area) said, “This adds even more support to the fact that a state agency with the scientific expertise is the entity that needs to be regulating those type of wells.”
Yeah, that’s the reason for HB 40…to protect us from frackquakes! This tortured and anemic logic is the depressing doublespeak of an oligarchy pretending to be a democracy.
Sure, it would be nice if the state could conduct seismic tests about disposal wells. That could provide important data about risks. But it in no way answers the question of who ought to decide whether those risks are acceptable. THAT ought to be right of the people exposed to the risks – that’s the reason for local control. King conflates the epistemic capacity to characterize risks with the political jurisdiction over risk management. His argument is a non-sequitur: The state has more money and experts, therefore it should decide.
How would the state act in light of evidence of risks? The Railroad Commission’s staff seismologist (the person who will advise state legislators about how to act in the face of new studies) gives us a clue. He said of the report linking disposal wells to earthquakes, “the study raises many questions with regard to its methodology, the information used and conclusions it reaches.”
So, that’s how they’d act: like merchants of doubt, dragging their feet while newly-defanged communities suffer.
On Friday, the Texas House of Representatives approved HB 40, a bill that will “expressly preempt” local control of oil and gas operations. If HB 40 becomes law, whenever the industry thinks a municipal ordinance is not “commercially reasonable,” they won’t have to follow it – regardless of how reasonable it may be in terms of protecting health, safety, and welfare.
The approval of HB 40 is disappointing but predictable. After all, this is just another version of a story that is repeated far too often: Big money special interest groups using state power to override local democracy.
The oil and gas industry spent $21.8 million dollars this past election cycle to buy Texas candidates and committees. That’s 286 times the amount of money we spent on a successful grassroots campaign last year to ban hydraulic fracturing in the city limits of Denton. After years of being stonewalled in our efforts to negotiate with the industry (which would like to frack another 500 gas wells in Denton), the ban was our last resort.
Having been roundly shamed for being such bad neighbors, the industry chose to muscle up rather than amend their ways. It is an impressive show of force, but it cannot extinguish the candle of democracy that has been lit in Denton and in cities and towns across the state. It will not silence the voice of the people.
In true Texas fashion, we will defend our ban and our rights to local control against all odds.