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The disappearing Pecos cantaloupe

A very Texas story.

Beto Mandujano jabbed his kitchen knife through the rough, yellow rind of the Pecos cantaloupe he had scooped from the ground. The melon’s dense flesh glistened with juice, its color a deep orange.

Many Texans swear these cantaloupes are the best anyone can find. But today, Pecos cantaloupes are on the verge of extinction. Mandujano and his two brothers are the last farmers selling them on a large scale.

A number of factors explain this decline. The most recent, obvious culprit is oil.

Pecos, a city of roughly 10,000 on the eastern edge of the Chihuahuan Desert, feels like a middle-of-nowhere boomtown. People see unfamiliar faces in Walmart. They steer cautiously among big trucks barreling down their small country roads.

Industry is redefining this place, as it has many Texas towns before it. Oil and gas equipment stands on hot, dusty, empty fields. Farming and ranching once central to the Pecos region now seem to have faded into the background.

Texas farmers harvested nearly 10,000 acres of cantaloupe in 2000, according to the U.S. Department of Agriculture. That fell to 1,300 acres in 2017.

Around Pecos, harvested acreage plummeted from more than 2,000 in 1969 to roughly a tenth of that amount in 2017. The Mandujanos planted 260 acres of the crop this year, along with other produce.

For a century, farmers planted cantaloupes around Pecos. Like Fredericksburg peaches, or East Texas tomatoes, their reputation was linked to the land.

“It’s a part of Pecos,” 86-year-old resident Carolyn McNeil said. “Pecos cantaloupes.”

It’s an interesting story, and among other things you will learn that cantaloupes are categorized as vegetables. We like cantaloupe at our house, though I can’t honestly say that we’ve had Pecos cantaloupes. Be that as it may, I hope this family and their crop find a way to keep going.

Senate whinefest about ballot propositions

Spare me.

crybaby

Members of a state Senate committee called Monday for changes in Texas law to prevent cities from thwarting or blocking citizen petition drives, a key issue for conservative and tea party groups in Houston and other cities in recent years.

At a meeting of the Senate Intergovernmental Relations Committee, members made it clear they support changes to ensure that ballot language is not deceptive or misleading and to keep cities from using outside law firms already doing city business to drag out legal proceedings against citizen petitioners.

Representatives of Texas’ approximately 300 home-rule cities cautioned against making changes to the current process or tipping the laws too far in favor of citizen groups, saying that could dilute local control in favor of state mandates.

Tension between citizen activists and local officials who often are the targets of their ire has been bubbling across Texas in recent years, thanks to a boost of tea party activism. Much of the testimony at Monday’s hearing centered on contentious petition drives and ballot fights in Houston, including the city’s controversial drainage fee levied more than decade ago and the repeal of Houston’s equal rights ordinance, known as HERO, in 2015.

[…]

Austin lawyer Andy Taylor, who fought the City of Houston before the Texas Supreme Court on ballot issues such HERO and the city’s drainage fee, told the committee how citizens who have had to go to court on their petition drives have had to pay hefty legal fees even though they won the legal battles.

Taylor testified that the cost of one case alone totalled $650,000. Bruce Hotze, a Houston businessman who has fought the City of Houston in another case, said he has spent well over $350,000 and the case is not over yet, because the city will not implement a charter change approved by voters.

Witnesses testified that other issues include petition signatures being invalidated in questionable ways, and cities using outside attorneys to increase the costs to citizen petitioners, a move that could discourage them from pursuing an action the city leadership opposes.

Let’s remember three things:

1. Andy Taylor’s fight over the drainage fee has been about nullifying the petition-driven referendum that was approved by the voters. The claims about “confusing language”, which were rejected by a district and appeals court before finally being bought by a credulous and activist Supreme Court, were raised after the election, by people who didn’t like the outcome.

2. That same Supreme Court put the anti-HERO referendum on the ballot without considering a lower court ruling that the petition effort had been rife with petition sheets that did not meet state law and widespread forgery. It never even held a hearing to allow an argument from the city, but ruled solely on a motion from the plaintiffs.

3. Apparently, this entire hearing occurred without anyone mentioning the Denton fracking referendum, in which yet another petition-driven referendum that was ratified by the voters was nullified, first by a judge and then by legislators like Paul Bettencourt.

The point here is that this isn’t about process, and it sure isn’t about The Will Of The People being stifled. It’s about the voters doing things that state Republicans don’t like. It’s about cities having a different vision and priorities for themselves than Greg Abbott and Dan Patrick and the Legislature do. Abbott et al don’t accept the authority of the federal government, and they don’t accept the authority of local government. That’s what this is about.

New methane rules finalized

Gentlemen, start your lawyers.

The Environmental Protection Agency on Thursday issued its final rule for methane emissions from the oil and gas industry.

The rule limits methane emissions from new oil and gas infrastructure and requires operators to submit to semi-annual or quarterly monitoring, depending on the type of operation. In addition, the agency took another step toward drafting a rule that would apply to existing oil and gas operations.

“They will help keep the nation on track to help the us cut emissions from the oil and gas sector,” EPA administrator Gina McCarthy said on a call with reporters Thursday. The new rule will reduce emissions by 11 million tons per year of CO2 equivalent by 2025, she said.

The Obama administration has a goal of reducing methane emissions from the oil and gas sector by 40 to 45 percent from 2012 levels by 2025. Natural gas is 80 percent methane, while oil extraction processes also often release methane trapped underground. In 2012, 30 percent of the country’s methane emissions came from oil and gas operations.

Methane is a potent greenhouse gas, trapping heat 86 times more effectively than CO2 over a 20-year span, so leaking methane can be a huge problem. While natural gas burns more cleanly than coal, leaks in the system can eliminate the climate benefits. Scientists have found that in the United States, methane leaks and venting have nullified any emissions benefit from transitioning the electricity sector from coal- to natural gas-fired power plants. In fact, the EPA recently found that the problem of escaping methane is even worse than initially feared. The United States currently gets a third of its electricity from natural gas, up from 24 percent in 2010.

[…]

There are, though, two key changes from the initial draft rule the EPA published last year that environmentalists welcomed. Under the new rule, natural gas compressors will be subject to quarterly monitoring — twice as often as under the proposal. In addition, low-production wells will be included in the rule. In its fact sheet, the agency credited the changes to the more than 9,000 public comments it received after the draft rule was published.

See here and here for some background. We all know what comes next, and we know it’s not over till the Supreme Court says it is. So sit back, pop open a cold one, and wait for the legal action to begin. Daily Kos and the Trib have more.

Houston’s anti-pollution ordinance killed by Supreme Court

Alas.

Bill White

Bill White

In passing two ordinances designed to regulate air pollution, the city of Houston overstepped its authority and illegally subverted state law, the Texas Supreme Court ruled Friday. The ruling is a victory for a coalition of industrial facilities whose emissions were subject to inspection and possible prosecution by the city.

The case pit the BCCA Appeal Group, a coalition of companies including ExxonMobil, the Dow Chemical Company, and ConocoPhillips, against the city of Houston, which sought to penalize companies in criminal court when those companies violated state emission guidelines.

Attorneys for the city of Houston argued that the city was simply trying to enforce the standards set out by the Texas Commission on Environmental Quality, a state agency, by putting in place a parallel enforcement mechanism that would impose fines on the companies even if the Commission chose not to act.

“If the TCEQ is letting something go, and not enforcing its own standards, there’s something wrong with that,” attorney Robert Higgason told the justices in September.

In an 8–1 ruling Friday, the justices made it clear that they disagreed – saying that if the Commission chose not to enforce any given law, that did not clear the way for Houston authorities to do so.

“By authorizing criminal prosecution even when the TCEQ determines an administrative or civil remedy—or even no penalty at all—to be the appropriate remedy, the City effectively moots the TCEQ’s discretion and the TCEQ’s authority to select an enforcement mechanism,” Justice Paul Green wrote. “This is impermissible.”

See here and here for the origin story, and here and here for the most recent updates. The Chron story adds more.

City Attorney Donna Edmundson issued a statement saying the court’s decision “will not dampen the city’s efforts” to assist the Texas Commission on Environmental Quality with the enforcement of environmental laws. The statement said the city will employ “other legal mechanisms” allowed under state law to monitor and take action against polluters. A spokeswoman said the city hadn’t decided whether to appeal.

Adrian Shelley, executive director of the advocacy group Air Alliance Houston, said the decision was “not the least bit surprising” but dismaying nonetheless.

“It’s pretty in-keeping with both previous judicial decisions and the direction in which our state government is moving,” he said. He cited the state Legislature’s passage of a bill last session that caps the amount local governments can collect through environmental lawsuits, Gov. Greg Abbott’s filing of a brief in support of the industry advocates in this case, and a prior legal case that made its way to the Texas Supreme Court.

“There will be more polluters who pollute with impunity,” Shelley said. “There will be a little poorer public health in the city as a result.”

Houston battled smoggy skies for decades and has failed to comply with federal ozone standards. The 10-county area includes the largest petrochemical complex in the country, hundreds of chemical plants and a bustling port.

Under the ordinances, the city collects registration fees from companies in order to investigate potential violations of air pollution laws.

City officials have defended the ordinances since their passage in 2007, arguing they helped fill an enforcement gap created by understaffing at TCEQ, the state agency responsible for monitoring and punishing polluters.

The city said legal mechanisms it could use against polluters include requesting that TCEQ investigate suspected polluters, seeking injunctive relief and penalties in civil court against suspected violators and notifying TCEQ of violations deemed to be criminal in nature.

Former Mayor Bill White pushed for the ordinances after growing frustrated with TCEQ. He and City Council members voted to amend a 1992 ordinance and start requiring businesses to pay registration fees based on their size and emissions. The fees range from $130 for a dry cleaning plant with fewer than six employees to $3,200 for plants emitting more than 10 tons annually of airborne contaminants.

The ordinances also authorized city health officers to seek civil, administrative and criminal sanctions for violations that can be prosecuted in municipal court, with fines of up to $2,000 per day for repeat violators.

The ordinance was based on the premise that these facilities are outside Houston’s boundaries, but their emissions directly affect the city and its residents, not to mention Houston’s non-compliance with EPA regulations. The Supreme Court wrote that allowing such ordinances might lead to uneven enforcement around the state. I can see the logic of that, but as is so often the case with the TCEQ, if they bothered to enforce the law in the first place, the city wouldn’t have passed that ordinance. It’s the same impetus that drove Denton to ban fracking, and as was the case there, it’s the same impulse to squash inconvenient expressions of local control that led to this result. How long can you hold your breath, Houston? The Press and the Observer have more.

Earthquake!

It’s a real risk in Dallas now.

The Dallas-Fort Worth area has a 1 to 5 percent chance of experiencing an earthquake strong enough to damage buildings in the next year, the U.S. Geological Survey said Monday.

That risk has grown tenfold since 2008, when the area began experiencing a surge of mild to moderate-sized quakes, said Mark Petersen, chief of the National Seismic Hazard Mapping Project at the USGS in an exclusive interview with The Dallas Morning News. North Texas’ earthquake hazard is now on par with parts of Oklahoma and California.

“One of the big concerns for me is that there is a very high population density in the Dallas-Fort Worth area, and this activity is taking place within that area,” he said.

Last week, The News obtained a report, produced by the Federal Emergency Management Agency, detailing the potential damage from earthquakes of magnitude 4.8 and 5.6, which fall within the hazard map predictions.

The vast majority of damage to buildings would be minor, such as cracks in walls and ceilings. “I don’t want people to feel like their houses are all going to come down,” Petersen said.

But he said he couldn’t rule out a larger earthquake because the Dallas-Fort Worth area has long faults running through it that may have the potential to rupture.

Earthquakes and their risks are in the news this week because of a new report from the US Geological Survey that mapped out the risks of both natural and human-induced earthquakes. Here’s NPR.

A decade ago, an Oklahoman could count the number of noticeable quakes on her fingers. “In this past year, we had over 900,” says USGS seismic hazard expert Mark Petersen. “So the rates have surged.”

Petersen says induced quakes have become more frequent because there’s more wastewater from oil and gas operations around the country that has to be disposed of. Companies pump it down into underground wells, and sometimes that water raises pressure on underground faults that then slip and cause small quakes.

Industry officials say the percentage of waste wells that pose quake risks is very low. But with the rise in hydraulic fracturing (fracking), which produces a lot of polluted water that needs to be disposed of, the overall number of waste wells around the country has skyrocketed.

The new maps also include the risks of natural quakes around the country, as they have in the past. Those risks haven’t changed much. But the number of induced quakes has increased tenfold since 2014, according to the USGS.

Petersen notes that most of these induced quakes are not likely to bring down buildings. Most are in the range of magnitude 3 or 4, which are minor. But some are above magnitude 5, which can do serious damage — cause cracks in your house, for example, or in bridges and roads.

[…]

“I think that we need help people understand that they do face a risk in these areas of induced earthquake activity,” Petersen says, “and they need to take precautions just like people in California do.”

Taking precautions against induced earthquakes — such as strengthening buildings or changing insurance rates — might be tricky, though.

Mark Zoback, a geophysicist at Stanford University who studies induced quakes, says: “It’s important to recognize the risk that these maps point out, but that risk is going to change depending on what’s happening on the ground.” Wastewater wells may not be active for more than a few months or a year; after that, they may no longer pose a risk. Meanwhile, it can take years for a state or community to change building codes to make structures more quake-sturdy.

Moreover, some states have started to ban or limit waste wells in these quake zones. “And in the few places where the injection has stopped,” Zoback says, “the earthquakes have stopped.”

Zoback adds that the boom in oil and gas exploration in some places is dwindling, which would likely mean fewer waste wells and lower risk. On the other hand, wherever the industry drills new waste wells could become the next quake hot spot.

Can’t wait to see what the discussion of this looks like in next year’s Legislature. Assuming they’re allowed to talk about it at all, of course. Vox and the Chron have more.

New EPA rules for methane coming

You know what will follow.

Building on already pending rules to cut methane leaks from both new oil and gas wells and those on federal lands, the U.S. Environmental Protection Agency now plans to bring to the oil sector the tough emissions standards it previously applied to automobiles and power plants.

The change would bring federal pollution rules in line with President Barack Obama’s earlier stated promise to reduce methane emissions from oil and gas drilling at least 40 percent by 2025, EPA Administrator Gina McCarthy said.

“Based on this growing body of science, it’s become clear it’s come time for EPA to take additional action,” she said in a news conference Thursday. “We’ll start this work immediately, and we intend to work quickly.”

The EPA said it was only just beginning to put a rule together and would be reaching out to oil and gas companies next month to request emissions data, to get a better handle on the scale of the problem and the costs of fixing it.

But based on the methane rules, already pending, hundreds of thousands of oil and gas wells across Texas and the country are likely to be required to invest in technology like infrared cameras and methane sensors to seek out and repair natural gas leaks in their pipelines and storage tanks.

[…]

A recent study commissioned by the Environmental Defense Fund puts the cost of reaching Obama’s goal at 1 cent per Mcf of natural gas – less than 1 percent at current prices – when factoring in current lost revenues from escaping natural gas.

But in a conference call with reporters Thursday, Kyle Isakower, vice president of regulatory and economic policy at the American Petroleum Institute, said costs were likely to be far higher.

He said the industry would need to see the final rule before deciding whether to take legal action, as states and coal producers have done over Obama’s Clean Power Plan.

“We’re keeping all our options on the table,” Isakower said. “The administration is catering to environmental extremists at the expense of American consumers.”

Yeah, yeah, we’ve heard it all before. While the many, many lawsuits filed over Obama’s environmental regulations have in some cases delayed implementation for awhile, in the end the EPA and everyone who likes clean air and water has generally prevailed, as the Supreme Court has upheld the EPA’s authority to set and enforce these rules. I see no reason why this time should be different. Think Progress has more.

David Porter not running for re-election to RRC

Another open seat.

David Porter

Texas Railroad Commission Chairman David Porter will not be running for re-election after all.

Thursday’s surprise announcement from Porter, who was first elected in 2010, unleashed a flood of interest from Republicans pondering bids for his seat.

Former Texas Land Commissioner Jerry Patterson, state Rep. Jim Keffer, R-Eastland, and former state Rep. Wayne Christian, R-Center, all confirmed they are weighing their options. And rumors were swirling around Austin that others might jump in.

[…]

Porter, who formerly ran a Midland accounting firm that catered to oil and gas companies, was elected to the three-member commission in 2010. And he took over as chairman in June.

At the agency (which also regulates mining, pipeline safety and natural gas utilities, but not railroads), Porter launched the Eagle Ford Shale Task Force, a collection of public officials, industry leaders, landowners and environmentalists who discussed issues surrounding oil and gas development in Texas’ drilling country. He also pushed Texas to find new uses for natural gas — particularly as a fuel for automobiles.

Last year, as Denton was preparing to vote on a hydraulic fracturing ban that the Legislature has since outlawed, Porter drew mocking from activists after he and another commissioner claimed — without evidence — that Russians were trying to shape the anti-fracking message in the North Texas town.

In recent weeks, Porter appeared to be gearing up for a major primary battle, sending out press releases blasting “radical environmentalist ideology” related to climate change and speaking of terror threats to power plants and pipelines posed by The Islamic State, or ISIS.

Porter is kind of an accidental Commissioner – he came out of nowhere to knock off then-Commissioner Victor Carrillo in the 2010 GOP primary, which no one saw coming. No great loss when he leaves, though as always the next person in line could be worse. Patterson or Keffer would be okay, the rest probably not. I figure this nomination will be decided in the runoff. It would of course be much better to have a good Democrat in the race, and as of Sunday, we have one:

Former state Rep. Lon Burnam, a Fort Worth Democrat, said Sunday that he has filed to run for a seat on the Texas Railroad Commission, the state agency that regulates oil and gas development.

“I think it’s really important that we have a progressive voice in this Railroad Commission race, and I think it’s very important we end one party rule in this state,” Burnam said.

Burnam represented House District 90 beginning in 1997; he ran for reelection in 2014 but was defeated in the Democratic primary by the current occupant of the seat, state Rep. Ramon Romero, D-Fort Worth.

Burnam would certainly be a fresh voice on the RRC, which isn’t used to having non-industry shills. He’s clearly a longshot to win, but given how crazy things are in the GOP Presidential primary, who knows what could happen. This is the only non-judicial statewide office on the ballot, and according to the Star-Telegram, Burnam will face 2014 Senate candidate Grady Yarbrough in the primary. We know what kind of random results we can get in these low-profile races, so I hope Burnam can raise a few bucks and get his name out. FuelFix has more.

Regulating methane emissions

Get all your gas and fart jokes ready, because they’re just going to be inevitable.

The Obama administration’s plan to slash methane emissions will raise costs for the oil and gas industry, forcing energy companies to invest in new pumps, compressors and equipment to prevent leaks of the potent greenhouse gas.

Although the draft regulations advanced by the Environmental Protection Agency on Tuesday chiefly target new oil and gas wells, processing equipment and storage facilities, the four-pronged proposal lays the groundwork for the government to eventually go after methane leaking from existing infrastructure.

Oil and gas companies already reeling from low commodity prices warn the planned rules will throttle domestic energy development and aren’t needed in light of the industry’s voluntary work to plug leaks of methane, the primary component of natural gas.

“The oil and gas industry is leading the charge in reducing methane,” said American Petroleum Institute CEO Jack Gerard. “The last thing we need is more duplicative and costly regulation that could increase the cost of energy for Americans.”

The proposed regulations, set to be final next year, will add to President Barack Obama’s environmental legacy and give the administration a concrete action to talk up at international climate negotiations in Paris this December. They also mark another step in the president’s gradual move away from natural gas, a fuel he previously championed as a cleaner alternative to coal.

But the EPA’s draft rules alone won’t fulfill a White House pledge to pare oil and gas industry methane emissions by 40 to 45 percent from 2012 levels by 2025. The proposed regulations along with a 2012 rule targeting new natural gas wells are expected to reduce the sector’s methane emissions by just 20 to 30 percent.

Janet McCabe, the acting assistant administrator of the EPA’s Office of Air and Radiation, stressed that the proposal is only one step toward the 2025 benchmark. “As we move forward, additional opportunities will be identified to get to that goal,” she said.

[…]

Industry officials argue they already have a financial incentive to capture leaking natural gas and bring it to market, though the additional costs of some of those changes, such as updated compressors, valves and controllers, may exceed the potential recovery, making them a harder sell amid today’s low oil prices.

Although methane represents only about 9 percent of human-related greenhouse gas emissions in the United States, the substance is 25 times more powerful than carbon dioxide in warming the atmosphere.

The industry proudly points to an 11 percent decline in methane emissions from natural gas systems since 2005, but some observers expect numbers to start climbing as a result of the oil drilling boom. Recent research suggests many leaks go undetected, so actual emissions could be much higher.

A study in Environmental Science and Technology on Tuesday suggests gathering equipment and processing facilities are leaking natural gas at rates eight times higher than EPA estimates.

Methane emissions also threaten to undo some of the climate change benefits of generating more electricity from natural gas and new EPA rules curbing greenhouse gas emissions from the power sector.

I’m sure the energy industry is doing what it can to prevent leaks and capture the emissions that come from the leaks that do happen on active wells, but that’s not the main problem.

And there’s another methane-leaking elephant in the room: existing and abandoned oil wells. Most of the regulations target new and modified wells, but the U.S. has somewhere on the order of 3 million abandoned wells, many of which are probably leaking methane. Many existing active wells are leaking, too. A 2014 Environmental Defense Fund study noted that by 2018, upwards of 90 percent of methane emissions from the oil and gas sector could come from wells built before 2012.

Who’s going to be responsible for those? And what does it mean for Texas?

Just as Texas leads the country in overall greenhouse gas emissions, it’s also a particularly large source for this potent warming gas. That’s in part because two major methane-emitting activities — agriculture and oil and gas drilling — are huge here. The state pumps about a third of the country’s oil and a quarter of its natural gas.

Oil and gas industry representatives have pointed to EPA data showing total greenhouse gas emissions in the country have dropped amid a drilling surge to suggest that fracking yields climate benefits — as cleaner burning natural gas replaces coal-fired power.

But measuring nation-wide methane emissions isn’t easy. Several recent peer-reviewed studies suggest that the federal government is vastly underestimating methane emissions, particularly in heavily drilled parts of the country.

In July, a series of studies centered on North Texas, for instance, found that the gas-rich Barnett Shale was leaking 50 percent more of the gas than previously thought. Human error and faulty equipment accounted for most of the emissions, the studies found, with most coming from a small percentage of sites.

Opponents of the rules say emissions still appear to be falling over time, claiming that Obama is unfairly targeting an industry that’s only responsible for a portion of the methane pollution. The agriculture sector — through cow farts and burps, for instance — emits lots of methane too. The EPA has adopted a voluntary program aimed to address that problem.

I mentioned the fart jokes, right? Cows are better organized than you might think. I’m thinking those “voluntary” regs may need to become more enforceable.

One other thing:

According to the EPA, 29 percent of U.S. methane emissions come from the oil and gas sector. Next is the agriculture sector at 26 percent: livestock emits methane through normal digestive processes. Landfills come in third place with 18 percent of the pie.

Another reason why I want to see landfills get closed, not opened. If that means treating recycling as a utility and subsidizing it as needed, I’m okay with that. Beyond all this, it’s just a matter of getting the rules finalized, then going through the inevitable litigation, because that’s what we do. Consider that another reason why the power of appointing federal judges is a big deal in the Presidential race.

Bill to ban anti-fracking ordinances likely to go forward

Disappointing.

Despite vociferous opposition from local elected officials, environmentalists and citizens, many Democrats in the Texas Legislature are supporting controversial legislation that would strip local governments of the power to regulate or ban fracking.

House Bill 40, by Rep. Drew Darby (R-San Angelo), is one of 11 measures in the Legislature filed in response to a fracking ban approved by Denton voters in November. Darby’s bill, which was temporarily delayed on Tuesday, would overturn Denton’s fracking ban, Dallas’ de facto prohibition on drilling and other cities’ oil and gas regulations, possibly even rules about the distance between rigs and homes not deemed “reasonable.”

Rep. Senfronia Thompson, a progressive Democrat and the longest-serving woman legislator in the House, is one of eight Democrats sponsoring the legislation.

“I think that fracking is a safe mechanism, which they can use to be able to extract oil,” she said. Asked about the practical impact of the bill and whether it would allow oil and gas companies to challenge ordinances they don’t deem “reasonable,” Thompson said, “You’re asking me a legal question and I haven’t had oil and gas law since I was in law school.”

Most of the Democrats who signed onto HB 40 are from areas that don’t contend with the hazards of urban drilling: earthquakes, noise, pipelines through yards and air and water pollution. None are from North Texas, where drilling rigs and other oil-and-gas infrastructure often sits uncomfortably close to homes, churches and businesses.

“The cities are the ones who are truly affected and we’re taking that out of their hands and saying that we’re going to be the ones doing it?” said Rep. Nicole Collier, a Democrat from Fort Worth who plans to vote against HB 40. “They’re the ones who have to answer every day and we’re taking that out of their hands.”

Floor discussion of HB40 was delayed till Friday due to a point of order. The bill is now a substitute version that was agreed upon by the Texas Municipal League, which had initially opposed it, and the Texas Oil and Gas Association. Here’s the TML’s guide to the updated HB40, which they say addressed their larger concerns about pre-empting city ordinances. I appreciate their efforts and I can see where they’re coming from – it was highly likely that some kind of bill of this nature was going to pass, so they did what they could to mitigate it – but I’m more in line with RG Ratcliffe.

The core argument against bans such as the one in Denton is that they take away the property rights of the drillers, the people and companies that buy or lease land to exploit it for mineral production; i.e., frack it for gas. But what about the property rights of people driven out of their homes because of a potential explosion, or who have the value of their homes driven down by a nearby well? And, ultimately, what about the hypocrisy of attacking local control? The state of Texas has been fighting against the federal government over unwanted laws and regulations, so is the Legislature going to grind down local voters in a similar fashion? Denton and Arlington are not cities filled with tree-hugging environmentalists; they typically vote about 60 percent Republican.

[…]

On the one hand, I’m sympathetic to the oil industry’s desire to drill on land it has owned or leased, but isn’t it also a “taking” if a homeowner cannot sell a house or loses value on a home because of its proximity to an oil or gas well? These are not wells down a caliche road a quarter-mile from a farm house. These are wells in residential neighborhoods. It looks like the legislative leadership is putting jingoism and campaign contributions from the oil and gas industry ahead of the very real concerns of Texas voters and communities.

Well, we know whose takings are more important. Like I said, I can see TML’s rationale. They saw how the wind was blowing and they did what they could to make the best of a bad situation. You don’t have to like what they agreed to, but it was a respectable effort. What I don’t like is Rep. Thompson’s rationale for not only supporting but sponsoring HB40. I’m no expert in oil and gas law, either, but I understand local control and I can see that cities and homeowners are getting the short end of the stick. More to the point, we progressives need to do a better job of sticking together on stuff like this. Pissing off our own allies isn’t helpful. We’re never going to get anything done if we can’t get people who are broadly aligned with us but not direct stakeholders in a given issue when there’s a fight. I mean, if I’m not willing to scratch your back, why should I expect you to scratch mine?

Somewhat watered down fracking bill advances in House

By “fracking bill”, I mean a bill to limit how cities can regulate fracking, because that’s how things are these days.

In a 10-1 vote, the House Committee on Energy Resources approved an updated version of House Bill 40, among the most prominent of nearly a dozen bills filed in the aftermath of Denton’s vote in November to ban hydraulic fracturing within the North Texas city’s limits.

Intended to clarify where local control ends and Texas law begins, HB 40 would pre-empt local efforts to regulate a wide variety of oil and gas activities.

But the substitute legislation also includes language that specifies what cities could still regulate, including fire and emergency response, traffic, lights and noise, while also allowing them to enact “reasonable” setbacks between drilling sites and certain buildings.

State Rep. Rafael Anchia, D-Dallas, voted against the bill, while Rep. Gene Wu, D-Houston, voted “present,” meaning he did not pick a side.

The legislation – proposed by the committee’s chairman, Rep. Drew Darby, R-San Angelo – now heads to the full House.

The vote drew rebukes from environmentalists, who criticized any attempt to roll back local control. But some representatives for local governments said they were encouraged by changes to the proposal.

“It’s a lot better,” said Bennett Sandlin, executive director of the Texas Municipal League. “There’s a couple of things we’re not 100 percent happy with, but it’s much better than the filed version.”

See here for the background. I’m glad this bill is more limited in scope now, though there are still plenty of other bills out there to stick it to cities, but the fundamental problem that there is no true statewide oversight of fracking remains. I’ll say it again, if the Railroad Commission were worth a damn, cities like Denton wouldn’t have taken things into their own hands. If the Lege really wants to address this, that’s the place to start. Trail Blazers has more.

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.

Local control, schmocal control

From Lisa Falkenberg:

So, let me get this straight.

Government is the problem, not the solution. It’s a bumbling bureaucracy run by tyrants, cronies and other self-important suits who think they know better than you or I how to live our lives – UNLESS, of course, that bumbling bureaucracy operates under a pink dome on a well-manicured lawn in Austin.

Then, my dear reader, the government is the solution. The only solution. And if you and your local community dare to come up with your own solutions, well then, it is you who is the problem.

That seemed to be the perspective expressed by our newly elected governor, Greg Abbott, earlier this week while speaking to an influential group of conservatives at an event sponsored by the Texas Public Policy Foundation.

“Texas is being California-ized and you may not even be noticing it,” Abbott said. “This is being done at the city level with bag bans, fracking bans, tree-cutting bans. We’re forming a patchwork quilt of bans and rules and regulations that is eroding the Texas model.”

Silly me. I thought the “Texas model” was based on something called local control.

From the Express News:

Seriously, when Abbott decries the regulations that cities choose for themselves, he’s ignoring the other side of the equation. The state is so allergic to regulations, it often fails Texans. That’s why cities attempt to fill the void.

If, say, the Texas Commission on Environmental Quality or the venerable Railroad Commission took the environmental impacts of fracking seriously, maybe folks in the city of Denton wouldn’t have felt compelled to pursue a fracking ban.

But beyond this, local control sort of strikes us as a Texas thing. Heck, when Abbott talks about pre-K funding, he often says districts should be able to choose how they spend those additional state funds, if they choose to pursue them. That’s local control.

From Tod Robberson:

“Our public education system is too centralized. One-size-fits-all solutions are pushed down from the top. We have too many unnecessary, unfunded mandates from Austin that tie the hands of our educators. The state should set high standards, provide the tools for success, then get out of the way.”

Those exact words were written by our incoming governor, Greg Abbott, in a guest column in May for the Waco Tribune. The fundamental message there reflects how Candidate Abbott felt about local control and, as he called it, the need for the state to “get out of the way.” So why is Abbott now reversing his philosophy and declaring that the state should intervene to circumvent local rights to govern how we live?

If Dallas, Houston or Austin wants to regulate the use of plastic bags in grocery stores, that is our business, not the state’s. That is, unless the state also wants to pick up the dime for cleanup of our roadways and waterways every time one of these bags gets discarded by a careless user. It is not enough for Abbott to declare that local ordinances shouldn’t get in the way of the free conduct of business.

[…]

Abbott seems to be maneuvering this argument in a way to justify state intervention in the regulation of gas-fracking operations. Just as is the case when local governments have a right to establish zoning rules — limits on where heavy industrial sites can be located, for example — local governments also have a right to say whether they want noisy, polluting fracking operations within their city limits. Abbott wants to take that right away.

Amazing. This is the same guy who fought so hard against increased federal intervention in our lives. When it comes to his perspective of top-down governance from Washington, he’s against it. But, somehow, he believes in the McCity concept that establishes uniform rules that must apply to all cities across the state. We all must look, smell, feel and behave the same, according to state mandate. Under Abbott’s vision, top-down governance from Austin is better than what we, the citizens of Dallas, Austin, Lubbock, Clarendon, Muleshoe, Brownsville and El Paso choose for ourselves.

Thank you, Greg Abbott, for restoring the concept of Big Government that you fought so hard in your campaign to wipe out.

I couldn’t have said it better myself.

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.

A look at how Democratic legislative challengers did against the spread

It’s been long enough since the election that I feel like I can go back and look at some numbers. Not a whole lot of good out there, but we’ll try to learn what we can. To start off, here are all of the Democratic non-incumbent candidates for the State House and a comparison of their vote total and percentage to those of Bill White and Linda Chavez-Thompson from 2010:

Dist Candidate Votes White LCT Cand% White% LCT% ============================================================ 014 Metscher 6,353 9,980 7,540 28.5 36.3 27.8 016 Hayles 4,744 8,490 5,995 13.6 22.5 15.9 017 Banks 12,437 17,249 12,852 35.4 43.3 32.8 020 Wyman 10,871 15,512 11,232 22.7 31.4 22.9 021 Bruney 9,736 13,174 10,499 25.6 31.3 25.3 023 Criss 14,716 19,224 15,866 45.4 50.1 41.8 026 Paaso 11,074 16,104 12,290 30.3 37.0 28.4 043 Gonzalez 10,847 14,049 12,635 38.6 45.8 41.7 044 Bohmfalk 9,796 13,369 9,847 24.3 32.1 23.7 052 Osborn 12,433 12,896 10,539 38.5 39.4 32.4 058 Kauffman 6,530 10,672 6,913 19.5 29.0 18.9 061 Britt 7,451 10,103 6,725 17.0 23.4 15.6 063 Moran 9,016 10,797 8,107 22.7 27.4 20.6 064 Lyons 12,578 12,238 9,722 33.8 38.0 30.3 065 Mendoza 10,419 10,926 8,921 35.7 37.3 30.5 083 Tarbox 6,218 9,664 6,250 18.7 25.9 16.8 084 Tishler 6,336 9,444 6,969 27.3 33.7 24.9 085 Drabek 9,628 14,460 10,758 33.4 44.8 33.6 087 Bosquez 3,656 6,945 4,736 15.6 25.4 17.4 089 Karmally 11,105 11,192 8,925 28.4 31.7 25.4 091 Ragan 9,346 10,214 8,039 28.2 32.2 25.4 092 Penney 12,553 12,374 10,020 36.4 35.7 29.0 094 Ballweg 16,461 14,852 12,247 40.5 37.1 30.7 102 Clayton 12,234 15,709 12,110 37.5 44.1 34.3 105 Motley 10,469 11,766 9,793 42.7 43.8 36.7 106 Osterholt 9,586 9,112 7,212 27.5 30.1 23.8 107 Donovan 13,803 14,878 11,936 45.0 46.3 37.5 108 Bailey 16,170 17,401 12,859 39.3 42.0 31.3 113 Whitley 12,044 13,483 11,575 40.6 44.8 38.7 115 Stafford 11,761 12,428 9,955 39.5 39.8 32.0 129 Gay 12,519 17,441 12,896 32.2 37.5 28.0 132 Lopez 10,504 12,016 9,677 33.8 37.9 30.8 133 Nicol 11,728 19,800 12,595 25.4 35.7 22.9 134 Ruff 20,312 31,553 21,380 38.8 51.0 35.1 135 Abbas 10,162 13,971 11,005 34.1 39.6 31.4 136 Bucy 15,800 14,742 12,031 41.1 39.7 32.6 138 Vernon 8,747 12,918 9,878 33.2 40.5 31.2 150 Perez 10,317 13,086 9,829 26.8 31.0 23.4

The most encouraging numbers come from Williamson and Tarrant Counties. I discussed the race in HD94 before the election, where the combination of Wendy Davis’ presence on the ballot plus the outsized wingnuttery of Republican candidate Tony Tinderholt helped boost the performance of Democratic challenger Cole Ballweg. Tina Penney, running in HD92 against freshman Jonathan Stickland, also benefited. We’ll want to see what the full comparisons for this year look like, but Tarrant Dems ought to look to those two districts for a place to try to make further gains in 2016.

Nearby in Denton County, Emy Lyons in HD64 and Lisa Osterholt in HD106 both exceeded Bill White’s vote total, though not his percentage. I don’t know offhand where those districts are relative to the city of Denton, but it wouldn’t surprise me if the fracking ban referendum helped them a bit. These results are a reminder of two things – the importance of local issues in engaging voters in off years, and that it’s not enough in places like Denton County to increase vote totals. You have to keep up with the overall population increase as well. Otherwise, you’re falling farther behind even as you move forward. I’ll give Sameena Karmally in Collin County’s HD89 a nod for a decent showing in that tough district as well, with the same caveat about keeping up with the overall growth.

In Williamson, John Bucy’s strong showing in HD136 against freshman Tony Dale should make it a top target for 2016. Bucy nearly equaled President Obama’s 41.2% in HD136 from 2012, so there’s plenty to build on there. Chris Osborn didn’t do too badly in HD52, either. Note that in each district, the Libertarian candidate scored around five points – 5.03% in HD52, and 4.70% in HD136 – so the win number in each of those districts could wind up being less than 48%.

Finally, in Dallas County, the Battleground-backed candidates all fell short, but generally didn’t do too badly, and they continue to offer the best pickup opportunities for continuously Republican-held seats in HDs 105, 107, and 113. An ambitious goal for the Presidential election year would be to win back HDs 117 and 144, and take over 105, 107, 113, and 136. With no statewide race above the level of Railroad Commissioner but Presidential year turnout – if we work at it – to make things more competitive, I see no reason not to view that as a starting point.

That’s not all we should focus on, of course – I agree with Campos that we should put a lot of effort into local race around the state, which in Harris County means finding and funding a challenger to County Commissioner Steve Radack. Frankly, we should be doing that in 2015 as well, in municipal and school board races. Maybe that will help some people understand that we hold elections in the other three years, too, and their participation in those elections is needed and would be appreciated. This is something we all can and should work on.

First impressions of the 2014 results

My initial thoughts, for what they are worth.

– Let me begin by saying that for all the criticism I had of the UT/Texas Trib’s polling and the skepticism of Internet-sample methodology, they were fairly accurate in the end. In particular, the last YouGov result just about nailed it. I still think what they do is more alchemy than anything else, and their subsample results often look ridiculous, but however they did it, they got it right and they deserve credit for it.

– I’m sure we’re about to be deluged with critical stories about Battleground Texas and public doubts about their future viability – the Trib and the Observer are already on it – but I have to ask, given the way this election went nationally, why they are more deserving of scorn than anyone else. In particular, how did they do any worse than the DCCC, DSCC, and DGA? The DSCC’s fabled “Bannock Street Project”, which was supposed to save the Senate by increasing Democratic turnout in battleground states, was a spectacular dud. Democratic candidates for Governor lost in such deep red states as Illinois and Maryland. Hell, the chair of the DGA, Vermont Governor Peter Shumlin, who pooped on Wendy Davis’ campaign a few months ago, failed to get a majority of the votes in his own election. BGTX doesn’t have much to brag about today, and I have no doubt they could have done plenty of things better. But I know a lot of people – friends of mine – who worked their tails off for BGTX and the Davis campaign, and I will not demean the work they did. If you want to criticize them, go right ahead, but please be specific about your complaints. I’m not going to pay attention to any generalized rants.

– Davis didn’t come close to matching Bill White’s vote total, and no statewide Dem reached 40% of the vote. That’s the harsh truth, and there’s no sugarcoating it. The funny thing is, though, for all the talk about turnout being down, it wasn’t actually Democratic turnout that was down. Here’s a comparison of the vote totals for the Democrats running for the top four offices over the last four non-Presidential cycles:

2002 2006 2010 2014 ======================================================= Governor 1,819,798 1,310,337 2,106,395 1,832,254 Lt Gov 2,082,281 1,617,490 1,719,202 1,810,720 Atty Gen 1,841,359 1,599,069 1,655,859 1,769,943 Comptroller 1,476,976 1,585,362 N/A 1,739,308

Davis didn’t peel crossover votes away from Abbott the way White did from Rick Perry, but beyond that I don’t see a step back. If anything, it’s an inch or two forward, though of course that still leaves a thousand miles to go. Where turnout did decline was on the Republican side. Greg Abbott received about 360,000 fewer votes than he did in 2010. Given the whipping that Republicans were laying on Dems across the country, one might wonder how it is they didn’t do any better than they did here.

One thing I’m seeing, and I’ll have more to say about this tomorrow, is that some people seem to think that because Davis got about 265K fewer votes than Bill White that means that overall Democratic turnout was down by that amount. In a word, this is baloney. White drew the votes of some 300K people that otherwise voted Republican. Their presence in his tally was nice for him, and would have been critical in a different year, but they had nothing to do with Democratic turnout. I am at a loss for why people are making that claim, and why they are overlooking or ignoring the gains in the races just below the Governor’s race, where a coordinated turnout effort would have an effect. Like I said, more about this tomorrow.

– Harris County wasn’t any prettier than the state was, and here in Harris there were declines in the vote totals of both parties. I’ve been looking at the statewide results more closely to see where the gains and losses were, and my initial impression is that the other big counties did move forward in ways Harris did not. The mail program was a success, but it seems clear that it mostly shifted behavior. If there was a net gain, in terms of votes we wouldn’t have had at all without the mail program, it means that in person turnout efforts were that much less successful. If we’re going to be introspective, that’s the place to start.

– All that said, if I’m newly-elected Harris County DA Devon Anderson, I’d take a few minutes to be concerned about the fact that I have to be on the ballot again in 2016. Consider this: By my calculation, the average Republican judicial candidate who had a Democratic opponent received 359,759 votes. The average Dem judicial candidate got 297,311. Anderson received 354,098 while Kim Ogg got 311,094. To put it another way, Ogg got crossover votes, which stands both her and Anderson in contrast to Pat Lykos in 2008 and Mike Anderson in 2012. Frankly, if she’s up for it, I’d tell Kim Ogg to keep running and start fundraising now for 2016. Assuming the patterns from the last two Presidential years hold here, she’d have a real shot at it.

– Along the same lines, of the five legislative seats the Dems lost (three in the House, one each in Congress and the Senate), HDs 117 and 144 should flip back in 2016, and if I were Pete Gallego I’d keep running for CD23 as well. (If he doesn’t want to run any more, allow me to be the first to hop on the Mary González bandwagon.) If Susan Criss can’t win HD23, which had been trending red for some time, I doubt anyone can. As for SD10, it’s not up again till 2018, but for the record, Libby Willis basically hit the Bill White number, which suggests she drew a non-trivial number of crossovers. Someone ought to take another crack at that one next time around but bear in mind this was always going to be a tough hold. I strongly suspect that if Wendy Davis had decided to run for re-election instead that we’d still be mourning her defeat.

– One prize Dems did claim was knocking off longtime Bexar County DA Susan Reed. Republicans claimed a victory over DA Craig Watkins in Dallas, where he was his own worst enemy. I refer you to Grits for more on that.

– Other results of interest: You already know about the Denton fracking ban. The Katy and Lone Star College bond initiatives passed. Austin Council Member Council Member Mike Martinez and attorney Steve Adler are in a runoff for Mayor; other Council race results, the first single member district elections in Austin, are here. And finally, Old Town Tomball repealed its ban on alcohol sales. Pour one out, y’all.

– Finally, a word on the matter of the efficacy of campaign ads, in particular negative ads. Yesterday morning after we dropped off the kids at school, Tiffany mentioned to me that Olivia’s understanding of the Governor’s race was that if Abbott won, there would be more standardized tests, which did not please her. “He wants to test four-year-olds!” she said. “That’s just wack!” I will simply note that at no time this year did I ever discuss the Abbott and Davis pre-k plans with her, and leave it at that.

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.

Denton fracking ban update

One more look at what is surely the most contentious issue on the ballot anywhere in the state.

With Denton preparing to vote Tuesday on banning hydraulic fracturing within city limits, tension has mounted as rival groups work to undermine each other.

The election has turned into a flash point for a national debate on the oil and gas drilling boom. Towns in New York and Colorado have voted in similar bans. But this would be the first such prohibition in Texas, the home of the country’s energy industry, probably setting off a long legal fight if it passes.

Business owners speak in hushed tones about the ban for fear of alienating customers. Accusations are flying of misleading voters on everything from how hydraulic fracturing works to how to vote for the ban. Representatives from both sides say they have received threats of violence.

For residents, the melee of yard signs, highway billboards and, more recently, television advertisements, has become impossible to avoid.

“I don’t have a television. But when I try to watch something on YouTube, I have to sit through the fracking ads,” said Nick Webber, the owner of a T-shirt shop in downtown Denton. “I’m a little confused where it’s all coming from.”

Tension over fracking has been mounting in Denton for years.

The town, with a rapidly growing population of 123,000, sits atop the natural-gas-rich Barnett Shale. Over the past decade drilling has boomed and dimmed, as hydraulic fracturing has brought forth natural gas long thought undrillable. Denton is now estimated to contain 270 wells, some of which lie close to homes, a hospital and a city park.

Last year, controversy erupted when a Dallas oil and gas company began fracking some older wells in the middle of a new housing development. Residents began reporting respiratory problems blamed on the associated fumes. And the noise of heavy equipment blanketed the neighborhood.

Seven months earlier the city had enacted rules restricting drilling activity within 1,200 feet of homes. But the driller argued successfully in court it did not apply to existing wells.

Soon a core group of fracking opponents, including a staffer with the environmental group Earthworks and an associate philosophy professor at the University of North Texas, were organizing a petition. They collected 2,000 signatures, forcing the City Council to either ban fracking inside the city limits or put it to voters. In July, the council voted 5-2 for a referendum.

See here and here for the background. This is by far the most expensive election in Denton’s history, with ban opponents outspending advocates ten to one. It’s a cinch that this winds up in court if it passes, and you can be sure someone will introduce a bill in the Lege to stamp out this sort of vote in the future regardless of the outcome. That doesn’t seem to have discouraged ban proponents, however.

One more thing:

Long a small college town surrounded by farms, Denton is changing fast. As the University of North Texas has grown, a plethora of new shops and restaurants have sprung up to cater to a new class of young families, professionals and “creatives,” as they call themselves. Graduates who once headed to Austin or Dallas are now staying put.

The new residents have proved a fertile platform for the anti-fracking movement, residents from both sides say.

“The town’s definitely getting more liberal. The old codgers never would have allowed it,” said Dewayne Grissom, a 47-year-old Denton resident opposing the fracking ban.

Early voting is way up in Denton compared to 2010. That’s partly a function of population growth, but this race is fueling it as well. Denton is a Republican stronghold and one would normally assume this turnout boost benefits them, but in this case I think the picture is fuzzier. We’ll know more tonight.

More on the Denton fracking referendum

I think everyone agrees the Denton anti-fracking referendum will wind up in court if it passes. It’s just a question of how wired the courts will be for the plaintiffs.

Voters will decide whether the city will become the state’s first to ban hydraulic fracturing, or fracking – the method of oil and gas extraction that has led to a domestic energy boom. But passage of a ban would probably trigger another fracking fight: a legal clash over a city’s power to regulate for health and safety and the rights of mineral owners to develop their resources. The outcome could reshape Texas law at a time when drilling is causing tension in some of its urban areas.

“It’s going to be one of those first-time tests, and I don’t think there’s a clear answer out there in Texas law,” said Jim Bradbury, a Fort Worth-based lawyer who focuses on environmental and energy issues.

The Denton measure would not 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. After gathering nearly 2,000 signatures on a petition calling for a ban on fracking, opponents forced the City Council to vote on it. Council members rejected the proposal last week, leaving the decision to voters.

Denton, a city of 121,000 with more than 270 gas wells scattered among its neighborhoods, is one of several cities that has tried to ban fracking. That includes towns in New York, whose highest court last month upheld local ordinances banning the practice. The state of Colorado has sued its cities that have banned fracking and is pushing back against ballot measures that would toughen regulations. The prospect of such a ban in Texas – a leading oil and natural gas producer — has put Denton in a bright spotlight, rankling industry leaders and the state”s Republican leadership.

“If one community after another continues to say ‘Not in my backyard,’ then before long, a tsunami of exclusion will jeopardize our freedom as a country profits as a corporate entity,” said Chris Faulkner, the chief executive of Breitling Energy in Dallas, one of many industry representatives who spoke at City Hall before the Council”s vote.

I fixed your quote for you, Chris. The debasement of the word “freedom” is one of the great travesties of the 21st century so far.

Though Texas courts have occasionally considered cities’ drilling regulations, they have yet to see a case of such size and scope, legal experts say.

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.”

The state has long regulated most aspects of drilling, including well integrity, pipeline safety, and air and water impact, while cities have typically controlled noise and authorized the location of wells or related facilities like compressor stations. Now, a key question is where fracking falls in that spectrum.

Tom Phillips, chief justice of the Texas Supreme Court from 1988 to 2004, said he would expect courts to side with the energy industry — by ruling that the ban unconstitutionally supersedes state law or that it makes gas beneath the city too difficult to tap and amounts to a taking.

Phillips, now a lawyer with the firm of Baker Botts, who was asked to review the proposal for the Texas Oil and Gas Association, said state law gave cities less stringent options for protecting health and safety at well sites, and that Denton “can’t just say no” to fracking.

Other legal experts acknowledge that state high courts tend to favor oil and gas interests, but say that Denton could make a compelling argument that a fracking ban would not wipe out all options to drill.

“To say that this is a slam dunk, it’s a taking, I think that’s painting with an overly broad brush,” said Terrence Welch, a lawyer who has helped write drilling ordinances in several Texas cities. “The property — the mineral estate isn’t left valueless. You can drill, but you just can’t frack.”

See here for the background. It’s hard to be optimistic about how the courts might rule if you’re a ban supporter, but I suppose anything is possible. And I’ll say again, if the Railroad Commission wasn’t such an utter lapdog for the industry and people in places like Denton had any reason to believe that true regulatory oversight with actual enforcement was in place, this referendum would not exist. There would be no need for it.

One more thing:

Jerry Patterson, Texas’ outgoing land commissioner, warned in a letter last week that the state would “pursue any available remedy to ensure the right to develop” those minerals.

George P. Bush, the Republican nominee in this year’s election to succeed Patterson, said he supported that stance. “We don’t need a patchwork approach to drilling regulations across the state,” he said. But John Cook, Bush’s Democratic opponent, disagreed, saying that “local communities need to have a say” in quality-of-life issues.

Know who you’re voting for this fall, people of Denton.

Fracking ban on the ballot in Denton

This has the potential to be even bigger than the HERO repeal referendum.

Voters will decide whether this North Texas college town will become the state’s first city to ban hydraulic fracturing.

After a public hearing Tuesday night that stretched into Wednesday morning, the Denton City Council rejected a proposal to ban the method of oil and gas extraction inside the city, which sits on the edge of the gas-rich Barnett Shale. The 5-2 vote kicked the question to the city’s November ballot, the next step in a high-profile property rights clash that will likely be resolved outside of Denton.

“It’s a high-stakes game,” said mayor Chris Watts, who said he voted against the proposal so that citizens would have a say. “This issue is going to be decided in one of two places: the statehouse or the courthouse.”

Fracking opponents forced the council’s vote after gathering nearly 2,000 signatures on a petition calling for a ban. The proposal would not prohibit drilling outright; it would apply only to fracking, which involves blasting apart rock with millions of gallons of chemical-laced water.

Denton, population 121,000 and pockmarked with more than 270 natural gas wells, is one of several Texas cities wrangling with questions about where to allow drilling and how strictly to regulate it.

As drilling increasingly moves into urban areas, tension is growing between property rights above ground and sub-surface mineral rights. States, along with the federal government, regulate most aspects of drilling, including well integrity, pipeline safety, and air and water impact. Cities, however, have sought to regulate noise and to control the location of wells or related sites like compressor stations.

No Texas city has tried to ban fracking, and the prospect of a ban in Texas prompted state officials and energy industry representatives Tuesday to join an overflow crowd at city hall.

“The whole world is watching Denton, Texas,” said Chris Faulkner, CEO of Dallas-based Breitling Energy, who urged the council to reject the ban.

I think that’s fair to say. It’s also highly likely that there will be a ton out outside interest and money in this referendum, and if it passes you can be sure there will be litigation.

A Chron story from Tuesday morning set the scene.

“I think everyone all along assumed this was going to go to a citywide vote, given the uncharted waters we find ourselves in,” Councilman Kevin Roden said in an interview. “My guess is there’s comfort in letting it go to an entire city vote as opposed to seven of us trying to decide this.”

Denton sits over the Barnett Shale, one of the nation’s largest natural gas fields.

[…]

Barry Smitherman, chairman of the Texas Railroad Commission, sent a 4-page letter to the mayor and council members blasting the ban proposal as “extremely misguided.”

“Increased production of natural gas, natural gas liquids and crude oil has greatly enhanced the Texas economy,” Smitherman wrote. “Over 400,000 Texans work in the oil and gas industry and the average wage per employee is a staggering $128,000.”

Smitherman [didn’t] attend Tuesday’s public hearing because of a prior commitment, but asked that his written comments be considered.

Although Roden, the councilman, declined to state his position on the ban, he was unimpressed with Smitherman’s letter.

“We’ve been struggling with how to make natural gas drilling compatible in residential areas and largely because of the regulatory environment we find ourselves in, the state is pulling the shots and we’re not able to regulate from a local perspective,” he said.

“For him to write us a letter in the 11th hour with no policy suggestions on how to get better, only advocating for an industry he’s supposed to be regulating, I found it pretty out of touch.”

Here’s Smitherman’s letter. Perhaps if the RRC had any credibility as a watchdog, this sort of advocacy would not have arisen. State Rep. Myra Crownover, who represents Denton, is quoted in the Trib story saying that she will work with Sen. Craig Estes “to find a finely crafted fix for these issues”, but again, I don’t know how much credibility that carries. We all know whose interests come first around here. The Observer, Unfair Park, and Texas Sharon, one of the leaders of the petition effort, have more.