Wednesday, September 12, 2012

Legal Expertise Needs to be Publically Justified

The Denton Record Chronicle ran a front page story today about City Council's vote to extend the drilling moratorium through December 18th. The audience was overwhelmingly in favor of the extension and overwhelmingly in opposition of any amendments that would allow EagleRidge to proceed with their four wells. But Council voted for the extension with the amendments, claiming that their hands were tied by Texas state laws of vested rights. I think this means basically that those wells met the criteria classifying them as already in process prior to adoption of the ordinance.

This is a taste of what is to come. It seems to me that City Council wants to limit drilling as much as possible - in this they are responsive to the vocal majority of residents following the issue. But the question becomes "how much is possible"? How strong can the ordinance be without exposing the city to a losing lawsuit? This framing of the issue (which may be inevitable and even for the best...) certainly puts all the power into the hands of legal experts. To me, it was apparent that the most powerful people in City Hall last night were not the elected officials but the lawyers. They are the ones with the requisite expertise to determine how strong the ordinance can be.

Expertise is clearly important. But expertise has a way of shutting down public discourse - it can be a showstopper in the form of, "trust me, we just can't implement that idea." I think this means that the citizens need to consistently ask our legal staff to justify statements made about limits to an ordinance's strength. This is said not out of mistrust for our fine legal team. It is said, rather, in the spirit of democracy -- we ought to be able to understand why the rules must be the way they are. It may further be the case that articulating legal reasons for various ordinance provisions opens up creative alternatives that may not have been as visible from within the assumptions and framings of expert legal discourse. We need to be sure that we don't pass off assumptions and values positions (that could legitimately be otherwise) as neutral, unimpeachable expertise.

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