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Frack Free Denton

Local control deathwatch: Environment

Unsurprisingly, the Denton fracking ban has provoked a strong reaction.

As policy dilemmas go, the one triggered when Denton voters decided last fall to ban hydraulic fracturing in their city looked like a whopper: The oil and gas industry versus local control — two things Texas holds dear — in intractable opposition. There seemed little doubt lawmakers would weigh in upon their return to Austin.

But four months after the North Texas city’s historic vote, top state lawmakers don’t appear to be scratching their heads. Petroleum is winning hands down, and local control appears headed for a beating.

Several legislative proposals so far leave less wiggle room for Texas cities to regulate oil and gas production. 

“We need to restate that principle that the state has responsibility to regulate the oil and gas industry,” said state Rep. Drew Darby, R-San Angelo, who chairs the House Energy Resources Committee. “I don’t know where people might have believed that the state was not going to assert fully its rights to regulate that.”

Texas lawmakers this session have filed at least 11 bills that would discourage local governments from enacting or amending certain drilling rules. Meanwhile, those watching legislation on the issue say they haven’t noticed one proposal to bolster – or even support – local control on petroleum development.

“We didn’t expect these to be just completely one-sided,” said Bennett Sandlin, executive director of the Texas Municipal League. “Instead, they’re swinging for the fences, and it’s quite alarming.” 

The trend is part of a broader debate — touching on issues including plastic bag bans and sanctuary cities — that some Republicans have sought to reframe as a debate about the size of government.

Supporters of Denton’s fracking ban “accused me of violating my conservative principles, arguing that since a local government passed a measure, any attempt to overturn it would be using ‘big government’ to squash dissent,” state Rep. Phil King, R-Weatherford, wrote in a recent op-ed in the Fort Worth Star-Telegram. “They have it backwards, because ‘big government’ is happening at the local level.”

One of King’s bills would require cities to get the attorney general’s blessing before enacting or repealing any ordinance by voter initiative or referendum, the tool Denton activists used to push that city’s fracking ban. Another would require cities that tighten drilling regulations to reimburse the state for any lost tax revenue.

Other bills have addressed compensation for mineral rights owners harmed by a local ordinance, while legislation from state Sen. Konni Burton, R-Colleyville, gets right to the point of the Denton debate: It would ban fracking bans.

Perhaps the most controversial proposals, however, are those most likely to pass. Identical bills from Darby and Sen. Troy Fraser, R-Horseshoe Bay, chairman of the Senate Committee on Natural Resources, would limit cities’ power to regulate the industry to “surface activity that is incident to an oil and gas operation, is commercially reasonable, does not effectively prohibit an oil and gas operation, and is not otherwise preempted by state or federal law.”

Texas law says the state intends its mineral resources to be “fully and effectively exploited,” but courts have said the power isn’t absolute. The Texas Railroad Commission oversees the state’s oil and gas industry, with authority to adopt “all necessary rules for governing and regulating persons and their operations.” Local governments have the right to impose reasonable health and safety restrictions, and the Legislature has granted most Texas cities the power to “regulate exploration and development of mineral interests.” 

See here for past coverage. I would have voted for the Denton ban, but I can understand the objections to it. Mineral rights are complex in Texas, and anyone who had such rights within Denton could reasonably complain that his or her property was taken away. It’s also generally better to have a uniform regulatory environment to facilitate business compliance. But that gets to the crux of the matter here, which is that the regulatory environment in Texas is a joke. The Railroad Commission is a complete lapdog for corporate interests. It’s precisely because activists in Denton felt they were being ignored and pushed aside that they sought out an alternate remedy. If we had a useful, functioning Railroad Commission, we would not have had this ballot referendum or interest in having such a referendum in other cities. This is not hard to understand, but the campaign coffers of people like Phil King and Konni Burton depend on them pretending to not understand it.

And speaking of the environment.

In another fight over local control this session, state Rep. Charlie Geren (R-Fort Worth), one of the more powerful lawmakers in the House, is pushing a bill that would erode the ability of cities and counties to collect civil penalties from polluters. This morning, Geren described the latest version of his House Bill 1794 to the House Environmental Regulation Committee as a way to curb “lawsuit abuse” by capping the maximum penalties that can be assessed on environmental violators at $4.3 million and imposing a five-year statute of limitations on the filing of lawsuits.

The legislation appears to be a response to high-profile litigation between Harris County and three companies considered liable for the San Jacinto River waste pits, an EPA Superfund site that has been leaking dioxins into the San Jacinto River and Galveston Bay for decades.

While Geren jettisoned some of the most far-reaching parts of the original version of HB 1794—a requirement for local governments to prove that a company “knowingly or intentionally” violated the law, for example—local authorities and environmentalists said they were still opposed.

Tom “Smitty” Smith, the veteran head of Public Citizen’s Texas office, said cities and counties need the ability to force polluters to pay civil penalties because state enforcement of environmental laws is so weak.

“We think the [Texas Commission on Environmental Quality] is a toothless tiger,” he said. The agency doesn’t have the resources or “the guts to go after biggest polluters.”

[…]

County- or city-led lawsuits seeking penalties from water polluters are relatively rare, but Harris County, with its vast petrochemical facilities, 20 known Superfund sites and loose rules that allow homes next to industry, is probably the most litigious. In the last 19 years, the county has issued 18,000 violation notices to companies and filed 205 civil actions, said Cathy Sisk, a retired environmental attorney with Harris County. She said the county only resorted to the lawsuit because the three successor companies hadn’t done anything to clean up the site, even going so far as to defy EPA’s orders.

“We feel like in those cases we need a hammer,” she said.

Harris County Commissioner Jack Cagle, a Republican, made a pitch for keeping local control. “Government is best when it’s closest to the people,” he said. Sometimes, state officials are “removed from the passion of the folks who actually live in the neighborhoods, where we work, where we breathe, where we play and live.”

HB 1794 was left pending. A companion bill in the Senate, SB 1509, by Sen. Kelly Hancock (R-North Richland Hills) has yet to be assigned a committee.

Indeed, the TCEQ is as useless as the Railroad Commission and as deeply in the pocket of the people and businesses they are supposed to regulate. What else is one to do but take the avenue that is available? If you don’t want the Harris County Attorney filing so many lawsuits against polluters, then provide a regulatory agency that will, you know, actually regulate. That includes going after the bad actors and levying punishments as needed. Again, this is not hard to understand. It should not be this hard to do.

Texas Progressive Alliance taps Denton’s “fracktivists” Texans of the Year

From the Inbox:

In one of the organization’s more closely contested votes, the Texas Progressive Alliance — the state’s consortium of liberal blogs and bloggers — named Frack Free Denton and its diverse group of activists 2014’s Texan of the Year.

“The biggest win for progressives in the Lone Star State on Election Night happened in Denton, Texas,” said Charles Kuffner, president of the Alliance. “The people showed the powerful who is still in charge. No matter that the Texas Railroad Commission or the state’s Legislature may try to undo the will of Denton’s Republican, Democratic, and independent voters; for one day in November of 2014, those North Texans came together and said, “No more. No more polluting our air and water and poisoning our children for profit without accountability. The people together spoke, and they were heard.”

There were also three Honorable Mentions for the coveted award. Finishing a close second: the medical staff of Dallas Presbyterian Hospital, who were at the front lines of the nation’s Ebola crisis, notably Dr. Kent Brantley and nurses Nina Pham and Amber Vinson, who all contracted the virus and lived to tell about it. In addition, two other large groups of Texans on either side of the political spectrum were selected: the 33% of Texans who turned out to vote in last month’s midterm elections, predominantly Caucasian male Republican voters; and the Democratic volunteer army of deputy voter registrars, blockwalkers, and those who spent long hours on their phones calling prospective voters to urge them to cast their ballots.

“To the victors go the spoils, someone famous once said,” noted Kuffner, in reference to the GOP base vote. “But no one worked any harder than the folks in their precincts, neighborhoods, counties, and across the state to turn back the tide, at least a bit,” he added.

The TPA’s member bloggers salute all the Texans who were nominated this year, which included several candidates, some elected officials, and other activist groups.

See here for the background. Always a little weird quoting myself in a post like this, but the award is well earned. The victory may be short-lived, but it was hard won and it made a strong statement. I wish them well going forward.

A Denton fracking overview

The Trib has a long piece on the Denton fracking fight, also published in Politico to help non-Texans understand what this was about. It’s a good read that goes over all the main points if you need a refresher on the details. There are two bits of interest I’d like to highlight:

Cathy McMullen taps the brakes of her Toyota Prius after driving through a neighborhood of mostly one-story homes in Denton, about an hour northwest of Dallas. “There,” she says, nodding toward a limestone wall shielding from view a pad of gas wells. McMullen, a 56-year-old ­­­­home health nurse, cruised past a stretch of yellowed grass and weeds. “They could have put that pad site on that far corner right there,” she says, pointing ahead. “The land’s all vacant.”

Instead, the wells sit on the corner of Bonnie Brae and Scripture Street. Across the way: Texas Health Presbyterian Hospital. Across another street: the basketball court, picnic tables and purple playground of McKenna Park. That was where Range Resources, a company based in Fort Worth, wanted to start drilling and fracking in 2009.

McMullen, who at that time had just moved into a house about 1,500 feet away from the proposed site, joined others in raising concerns about bringing the gas industry and hydraulic fracturing — widely known as fracking — so close to where kids play. Fracking, which involves blasting apart underground rock with millions of gallons of chemical-laced water to free up oil and gas, “is a brutal, brutal process for people living around it,” McMullen says.

Their efforts in city hall failed.

If McMullen felt invisible five years ago, she doesn’t anymore. Today, state lawmakers, the oil and gas industry and national environmental groups have become acutely aware of Denton, home to two universities, 277 gas wells and now, thanks to a rag-tag group of local activists, Texas’ first ban on fracking.

Thrust into the saga is George P. Bush, who in January will take the helm of the Texas General Land Office, an otherwise obscure office that manages mineral rights on millions of acres of state-owned property. In his first political office, Jeb’s eldest son and George W.’s nephew will inherit one of two major lawsuits filed against Denton, home to a sliver of that mineral portfolio.

We don’t need a patchwork approach to drilling regulations across the state,” Bush, a former energy investment consultant, told The Texas Tribune in July as the anti-fracking campaign gained steam. It appears to be his only public statement on the issue.

Bush’s role in the dispute — however peripheral — only brightens the spotlight on Denton, and it forces him and others to choose between two interests Texans hold dear: petroleum and local control.

I’m sorry, but the idea that “local control” is a dearly-held ideal, especially by Republicans, is a complete myth. Just look at the myriad bills Republican legislators have introduced in recent sessions and/or will introduce this session to limit or eliminate the ability of cities to pass and enforce anti-discrimination ordinances and to regulate a wide variety of things, from fracking to single use plastic bags to payday lending. Throw in other top legislative priorities to require cities to enforce federal immigration laws and to limit their revenue growth via tighter appraisal caps on top of that. As I said before, Republicans are at least as interested nowadays in nullifying municipal laws as they are of nullifying federal laws. Whatever fealty there is to the idea of “local control” has long gone out the window any time some local entity has tried to do something state Republicans – or more specifically, their corporate masters – don’t like. It’s time we recognized that.

McMullen’s group — Frack Free Denton — persuaded nearly 59 percent of Denton voters to approve a fracking ban on Nov. 4, after knocking on doors, staging puppet shows and performing song-and-dance numbers. The movement had help from Earthworks, a national environmental group, but its opponents — backed by the oil and gas lobby — raised more than $700,000 to spend on mailers and television ads and a high-profile public relations and polling firm. That was more than 10 times what Frack Free Denton collected.

[…]

Trying to make sense of the Nov. 4 landslide vote, some industry officials suggest that the voting power of Denton’s roughly 51,000 university students effectively drowned out the town’s permanent residents. The gowns, the argument goes, drove the town. “If we’re looking at Denton and trying to glean some sort of national significance out of this,” says Steve Everley, the national spokesman for Energy In-Depth, which promotes the petroleum industry, “then the significance is that activists are having success in college towns and in populations with few if any wells.”

But Denton’s voting records cast doubt on that argument. It’s not clear that college students turned out in high enough numbers to single-handedly tilt the vote. Voters closer to campuses overwhelmingly supported the ban, as well as Democrat Wendy Davis in the race for governor. But plenty of conservatives also rejected fracking. Both Republican Greg Abbott, who ultimately defeated Davis, and the ban prevailed in 11 of Denton’s biggest 33 precincts. Roughly 25,000 votes were cast in the fracking question and those opposed to fracking outpaced supporters by some 4,400 votes. Denton would have still passed the measure by 412 votes even if voters younger than 30 were disregarded. Voting data also shows that the average age of a voter was 52.

I’ve mentioned before that Democratic turnout in Denton was helped by the referendum, and that’s good, but it could and should have been better. I wonder how many people in Denton voted for the fracking ban and also voted for Ryan Sitton for Railroad Commissioner and George P. Bush for Land Commissioner, perhaps without realizing that by doing so they were partially undermining their own vote. Some of that was probably force of habit – partisan affiliation is strong – some of it was probably just not making the connection. I’m sure there were missed opportunities for Dems to work with the anti-fracking folks to help make that connection. Of course, that can be a dicey proposition when you need Republican support to win and thus need for your effort to appear as non-partisan as possible so as not to turn any of those folks off, and besides I’m sure it would have been difficult to get that message through when the city is already drowning in pro- and anti-fracking ads. I don’t have a good answer here, I’m just saying this is the sort of thing we need to be thinking about.

Everyone wants to get in on the fracking fight

Come on in.

National environmental groups joined forces with grassroots activists in Denton on Thursday, seeking to defend in court the first municipal fracking ban adopted in Texas.

The Denton Drilling Awareness Group, a citizens group that fought to put the ban on the November ballot, and Earthworks, a national nonprofit organization based in Washington, D.C., filed a petition in court asking to be named as defendants and intervenors so they can help provide a “vigorous defense of the legality and enforceability of the ordinance.”

Hours after the ban was overwhelmingly approved by voters on Nov. 4, the Texas Oil and Gas Association, along with the Texas General Land Office, filed lawsuits challenging the ban’s constitutionality and accused it of disrupting the state regulatory framework.

In addition to attorneys from a Richardson law firm that worked on local drilling ordinances, Denton Drilling Awareness Group and Earthworks are being represented by lawyers from Earthjustice and the Natural Resources Defense Council.

Cathy McMullen, the leader of the grassroots group that collected nearly 2,000 signatures and petitioned to get the ban on the ballot, said they’ve been talking for some time to Earthworks and others about mounting a legal defense if the ban was approved by voters.

“This is what they do,” McMullen said. “I’m proud to have their help.”

Ultimately, a Denton civil court judge will decide whether the two groups can join the litigation. The other parties involved in the litigation can protest their involvement, but the city of Denton has said it will not block them from joining their legal defense team.

“We are happy to work with them and are open to their request to become an intervenor. We won’t oppose it,” said Lindsey Baker, a spokeswoman for the city.

I don’t really have anything to add to this. I’m just following the news related to this election and the subsequent litigation, and this is interesting, if not unexpected, development. I can’t wait to see what comes next.

Other towns consider fracking bans

If Denton can do it

A Texas hamlet shaken by its first recorded earthquake last year and hundreds since then is among communities now taking steps to challenge the oil and gas industry’s traditional supremacy over the right to frack.

Reno Mayor Lyndamyrth Stokes said spooked residents started calling last November: “I heard a boom, then crack! The whole house shook. What was that?” one caller asked. The U.S. Geological Survey confirmed that Reno, a community about 50 miles west of Dallas, had its first earthquake.

Seismologists have looked into whether the tremors are being caused by disposal wells on the outskirts of Reno, where millions of gallons of water produced by hydraulic fracturing are injected every day. Reno took the first step toward what Stokes believes will be an outright ban by passing a law in April limiting disposal well activity to operators who can prove the injections won’t cause earthquakes.

Reno and other cities are taking their lead from Denton, a university town north of Dallas where the state’s first ban on fracking within city limits takes effect Tuesday. The Denton ban has become a “proxy for this big war between people who want to stop fracking and people who want to see it happen,” said Michael Webber, deputy director of the Energy Institute at the University of Texas at Austin.

It also has become a referendum on Texas cities’ rights to halt drilling.

[…]

Denton’s city council has pledged to defend its ban, and other cities have taken note.

“Regulation doesn’t work very well in the state of Texas because the Railroad Commission doesn’t work on the public’s behalf,” said Dan Dowdey, an anti-fracking advocate in Alpine, a college town a few hours from two major shale formations, the Permian Basin and Eagle Ford. Dowdey and others are calling for Alpine’s city commission to ban fracking — even though the closest drilling is more than 100 miles away.

“We’re familiar with what the oil and gas industry can do to an area, and it’s not real pretty and it smells bad,” Dowdey added.

Residents of Presidio, a border town southwest of Alpine, want municipal leaders to protect their water source from being tainted by exploratory fracking wells in Mexico, said Pat Simms, who sits on a Presidio County water conservation board.

See here for some background. The Legislature will of course seek to pass a law that would forbid cities from adopting such bans, and the ongoing lawsuits might make that moot anyway. But maybe they won’t! Who knows? Point is, the desire to do this isn’t going to go away, and as long as that exists there will be a way. BOR and Texas Vox have more.

Whining about the fracking ban

These guys just can’t believe they lost.

Did college students tilt the outcome of Denton’s vote to ban hydraulic fracturing?

That question has stirred debate since the city – home to the University of North Texas and Texas Woman’s University – became the first in Texas to ban the oilfield technique that sparked a drilling boom and spawned tension in some urban areas.

Overall, the vote wasn’t close. Nearly 59 percent of voters supported the ban, even though its opponents – buoyed by contributions from energy companies – spent far more money. That margin, the ban’s supporters say, amounted to a mandate.

But ban opponents (meaning supporters of fracking) argue that college students disproportionately affected the vote, effectively drowning out Denton’s permanent residents – particularly those living alongside natural gas wells.

“The election returns clearly show the permanent residents of Denton favor property owner rights, economic benefits from responsible drilling and American energy independence while our city’s college students did not,” Bobby Jones, treasurer of anti-ban group Denton Taxpayers for a Strong Economy, said three days after the election.

The ban’s supporters reject that narrative.

“They’re treating a whole group of people as if their votes don’t count as much as other people,” said Adam Briggle, a board member of Frack Free Denton, a group pushing the ban. “My second reaction is, it’s wildly inaccurate.”

See here for the background. The Trib does some number-crunching to show that the pro-frackers’s complaints are largely without merit, but let’s be clear. This is about denigrating the value of the students’ votes, making it seem like their votes don’t, or shouldn’t, count as much as other votes. There’s a reason why student IDs were not deemed acceptable for voter ID purposes. It won’t matter for the purposes of the litigation that’s already been filed, but it is of a piece. Some people’s votes count more than others, and when those others help swing an election, the first reaction in some (Republican) quarters is to de-legitimize those votes. It’s the reality we live in these days, and it’s going to take a lot of effort, and electoral victories, to change that.

Denton responds to fracking ban lawsuit

Game on.

One day before its first-in-Texas ban on hydraulic fracturing is set to take effect, Denton called the oil and gas extraction technique a “public nuisance” that the North Texas town has the right to regulate.

“Those activities have caused conditions that are subversive of public order and constitute an obstruction of public rights of the community as a whole,” Denton’s attorneys wrote in a legal brief filed Monday. “Such conditions include, but are not limited to, noise, increased heavy truck traffic, liquid spills, vibrations and other offensive results.”

The argument came in the city’s two-page response to a lawsuit filed by the Texas Oil and Gas Association just hours after Denton voters overwhelmingly approved a ban on hydraulic fracturing – widely known as fracking – on election night Nov. 4.

Texas’ largest petroleum group is asking a Denton County district court to declare the ban invalid and unenforceable, saying it infringes on the state’s right to regulate drilling – and mineral owners’ right to develop their resources.

[…]

In its response, Denton said the petroleum group did not identify specific state regulations that make its ban unconstitutional.

“The suit is premised on the [Railroad Commission of Texas] completely occupying the field of regulation,” said Jim Bradbury, a Fort Worth-based lawyer who focuses on environmental and energy issues. “Denton is rightly seeking to have them identify the actual regulations that supposedly occupy the field.”

See here for the background. That was written Monday – the ban went into effect yesterday, and as far as I could tell from a news search last night, has not been enjoined by a judge. Denton’s response to the TXOGA lawsuit is here. There was apparently a second suit filed by the General Land Office (GLO press release here) at the same time, alleging that the Denton ban prevents the GLO from performing its constitutional duty to maximize revenues from leasing public school lands; Denton’s response to that suit is here. I’m not a lawyer and I’m not going to try to evaluate the merits of these claims, I’m just looking forward to seeing what the courts do with them.

Denton fracking ban passes

Let the freakout – or perhaps I should say “frack-out” – begin.

Nearly 59 percent of voters in Denton, which sits on the edge of gas-rich Barnett Shale, approved a measure banning hydraulic fracturing, or fracking — the method of oil and gas extraction that has led to a domestic energy boom.

Proponents called the measure a last-ditch effort to address noise and toxic fumes that spew from wells just beyond their backyards, after loopholes and previous zoning decisions rendered changes to the city’s drilling ordinance unenforceable.

“It means we don’t have to worry about what our kids are breathing at city playgrounds,” Cathy McMullen, a nurse and president of Frack Free Denton, a grassroots group that pushed the ban, said in a statement. “It means we don’t have to worry about our property value taking a nose dive because frackers set up shop 200 feet away.”

The ban’s passage will almost certainly trigger litigation, with energy companies and royalty owners arguing that state drilling regulations trump Denton’s and that the city was confiscating mineral rights, which have long been dominant in Texas law.

Several state lawmakers have promised to fight the ban in Austin.

[…]

The Denton measure does not technically prohibit drilling outright; it would apply only to fracking, which involves blasting apart rock with millions of gallons of chemical-laced water hauled in by trucks. But opponents of the ban say it would make gas beneath the city too difficult to profitably tap – amounting to a drilling ban.

Energy companies pumped big money into effort to defeat the ban. The Denton Record-Chronicle called it the most expensive campaign in the town’s history by far.

See here, here, and here for the background. And quicker than you can say “Tort reform!”, here comes the litigation.

In a lawsuit filed Wednesday in Denton County district court, the Texas Oil and Gas Association called the ban unconstitutional. Because of current shale economics, the group says, the measure amounts to a ban on all drilling – denying mineral owners their property rights. TXOGA asked the court to declare the ordinance invalid and unenforceable, and said state law should supersede Denton’s.

“While home-rule cities like Denton may certainly regulate some aspects of exploration and drilling, TXOGA does not believe that they may enact ordinances that outlaw conduct, like hydraulic fracturing, that has been approved and regulated by state agencies,” Tom Phillips, a former Texas Supreme Court justice, said in a statement. Phillips is now a lawyer with the firm Baker Botts, which is representing the petroleum group in the dispute.

[…]

Texas law says the state intends its mineral resources to be “fully and effectively exploited,” but courts have said the power is not absolute. The Railroad Commission has jurisdiction over all oil and gas wells in the state, with authority to adopt “all necessary rules for governing and regulating persons and their operations.” Local governments have the right to impose reasonable health and safety restrictions, and the Legislature has granted most Texas cities, including Denton, the power to “regulate exploration and development of mineral interests.”

A key question is where fracking falls on that spectrum.

Legal experts say Texas courts tend to favor oil and gas interests. But they suggest Denton could make a compelling argument that a fracking ban would not wipe out all options to drill.

Any lawyers out there want to take a crack at that? I’m guessing they had this suit all written up and ready to go well ahead of time, just in case. The Lege will have their back regardless of the outcome in court, but I’m sure they’d like to have an injunction in hand. It was fun while it lasted.

One shorter term effect of this is that it may have helped Democratic turnout in Denton County. A comparison to 2010 for the top three offices:

Abbott 93,506 Davis 47,134 Perry 83,726 White 43,073 Patrick 92,290 Van de Putte 45,017 Dewhurst 92,074 C-Thompson 33,962 Paxton 93,466 Houston 43,778 Abbott 93,268 Radnofsky 33,953

Note how the R vote totals are basically flat, while the Dems are up about 10,000. Still a big win for the Rs, but this is the sort of thing I’m talking about when I say their turnout was down. Anyway, it was a small bit of sunshine on an otherwise dark and stormy night.