It looks like Denton has entered the homestretch in the marathon reform of its natural gas drilling and production ordinance. On September 11, City Council approved a second extension of the moratorium and unveiled a timeline leading to adoption of the final ordinance in December. It will begin with release of the draft ordinance at a meeting of the Gas Well Task Force on October 1. This comes after a long “scientific and legal review” conducted by City Staff and consultants. Indeed, since the last Task Force meeting on March 26, the process of drafting a new ordinance has been sequestered behind a veil of technical expertise.
Even City Councilmembers have not had a peek behind the curtain. Yet during the May 8 City Council meeting, our elected officials requested a process that would be more iterative and transparent. They wanted to see what the scientific and legal experts made of minority recommendations that were not unanimously passed by the Task Force. They wanted a Council work session on such alternative proposals. They also wanted to see a comparative report of other city ordinances to show what they are doing that we may not be doing and explain why. They wanted a comprehensive summary of the legal landscape, which details relevant lawsuits faced by other municipalities. And they made clear that these steps should happen prior to the release of a draft ordinance.
Yet none of this has happened as we approach the grand unveiling of the draft ordinance. This gives me a sinking feeling that over the past six months this expert review process has outrun the democratic process. Rather than provide some initial suggestions and alternative options for Council input and public deliberation, it looks like it is going to supply a finished product for an up or down vote.
My concern is that the product of this technical review process is going to be presented as a fait accompli – as the shape that our ordinance must take. It will be a juggernaut with so much momentum provided by the heft of scientific and legal expertise that democratic deliberation will be bowled over. Any ideas the public may have will not fit with the current framing and will derail the process. The train has left the station and is chugging down the tracks.
In the May 8 meeting, Mayor Burroughs said that for Staff to present a finalized legal document would be “a waste of a lot of resources” and that the ordinance must be in a “developmental stage” if public input was to be effective.
There is clearly a culture clash at work here between Council and Staff. The root of it is the fact that such an ordinance is Janus-faced. On one hand, it is a technical document that must be enforceable and justifiable according to complex legal standards. Doing this part well requires experienced and expert crafting. On the other hand, it is a political document that expresses community values. Doing this part well requires democratic deliberation and leadership from elected officials.
What makes balancing this core conflict between experts and citizens so challenging is that there is no clear dividing line between the technical realm of expertise and the values realm of the public sphere.
Yet the ordinance review process presumes just such a strict dividing line. This is the heart of the problem. The assumption is that the experts are taking the values expressed at Task Force and Council meetings and packaging them into technical language. This packaging is seen as a neutral act that leaves the values untouched. If that is the case, then the public can now passively await the technical outcome of their deliberations.
But things are messier than that. First, the values are contested with remaining disagreements about how to prioritize basic goods and goals (thus the Council request to include minority recommendations). Second, even if there were consensus on this level it is not possible to remain value-neutral when writing technical language. The final wording will inevitably give the underlying values a certain valence and trajectory (just think about how a clause like “whenever feasible” could change things entirely). Third, the technical review process necessarily included only a very limited sub-set of scientific and legal experts. But there is a great deal of disagreement even among the experts when it comes to shale gas development and its regulation by municipalities.
This means that over the past six months, as citizen involvement has been forced into hibernation, values judgments were being made and built into the ordinance. But this has happened behind closed doors and has been masked as a supposedly neutral and technical operation. This is what I call black-boxing:a process where values judgments are made behind the cloak of neutral, expert calculations. Just as the magician does not let us peek behind the curtain where the crucial transformation occurs. Viola, a rabbit! Viola, an ordinance!
It may not be too late to restore democratic legitimacy and genuine public involvement. But doing so will require treating the draft ordinance for what it is – a document that reflects the hard work of our dedicated Staff and consultants, but one that retains a great deal of contingencies that could legitimately be altered. We must be wary of treating the ordinance as a black box that simply must be the way it is because the experts have made it so.