Talking point 5: Tackle Vested Rights

We know that vested rights are a big deal. I have heard that most of the footprint for gas development in Denton is basically built out. This is good, because it means not much more land will be sacrificed. But it is bad, because it means most activity will occur on existing “projects” (either adding more wells to an existing pad or building out an already-permitted or platted project) and this activity will be vested under the rules in place when those projects were permitted. There are three strategies I see here (and I am sure there are more – please submit other ideas):

1.      I think we ought to find ways to legally challenge the status of these activities such that they constitute a NEW project, requiring a new permit under current rules. I don’t think it makes sense to consider a single well sitting there producing gas as an ongoing project, such that re-fracking it, making it horizontal, or adding other wells on the same site are seen as simply part of a continual string of development. I think it makes more sense to see a producing well as an established use. It is more like people sitting on their couch in their home – they are using that home, not continually making it. If they want to then add a second story to their home, that would be a NEW project, requiring them to follow the latest building, fire, and electrical codes. Similarly, if someone wants to take a well that has been sitting there for five years and re-frack it (or turn a vertical well horizontal or add new wells to a site), they should follow the latest rules.

2.      We can and should appeal to operators’ sense of community good will and responsibility. Maybe they have a trump card when it comes to vested rights, but they should not play it wantonly. No one wants to make enemies with the places where they are doing business. We can work to forge voluntary compliance with new rules. I know that Eagleridge already does some of this – I applaud them for it –and I bet other operators do too. Let’s build from that.

3.      The third option builds from this spirit of voluntary cooperation. The basic idea is to establish a pot of money that could be used to upgrade (retrofit) old sites with new equipment and/or to make drilling and fracking operations comply with current best practices. My initial thought is to have the City devote some of its own gas well funds to the cause of upgrading out-dated equipment. Many operators would find this attractive, because best practices often prove to be money savers (e.g., by reducing fugitive emissions). But I wonder if we could push this into a cost-sharing practice, where the City helps to defray some of the up-front costs that may be involved for operators to comply with the latest rules. If the objection to compliance is monetary (i.e., it is cheaper to play by older, laxer rules), then let’s find ways to remove this objection.  

4.      More ideas? I bet there are other strategies here. The Gas Well Task Force should have devoted more creative energies to this (I credit Vicki Oppenheim for coming up with the third option). But they didn’t. Let’s not take that as a sign that we must resign ourselves to some looming legal determinism that a ‘project is a project; period.’ I don’t buy it.