Monday, January 21, 2013

After the Vote, Part 2/3: Why Didn’t we Get an A?

Last Tuesday, the crowd that remained for the midnight vote filed out quietly once the board flashed the 5-1 score. I put on my gloves and rode my bike slowly home through cold dark streets. I was trying to understand what happened and why.
In my previous post, I argued that what happened was we got a C- ordinance. That might be a bit harsh. Maybe it was a solid C. There is no doubt the ordinance is an improvement over what we had in place prior to the revisions. The ultimate goal was to improve the ordinance. So in that sense: mission accomplished.  
But it was not all that we had asked for in the name of health, safety, welfare, and community character. So, rather than rest content, we should ask why we didn’t fare better.
There are lots of reasons, of course.
1.      Democracy. Laws are forged in a crucible of competing interests. No one gets everything they want. Indeed, when that happens it may be a bad sign that other groups didn’t have a voice.

2.      Look in the mirror. I definitely could have done more to mobilize participation, to educate myself and others, and to frame a clear and viable message. We also didn’t do enough to learn lessons from other cities.

3.      Inappropriate industry influence. Some have pointed to a stacked Task Force as major problem. I agree. I do think some industry involvement was appropriate. They are stakeholders (indeed ‘the industry’ is too simple –there are lots of industries sometimes with competing interests). But the Task Force was not designed to do enough to subject all claims (e.g., about feasibility) to critical scrutiny. They did not do enough to bring in more information and perspectives. They just voted on general concepts. Eventually all new ideas for the ordinance were met by silence from the majority.

4.      The policy process was dominated by a hyper-cautious narrative about the limits of home-rule authority. Yes, the Task Force did not generate and flesh out enough ideas. But the behind the scenes language crafting by lawyers and consultants did not explore the full range of legally defensible alternatives. This is a story I have been telling on this blog for some time. It is easy to tell, because you can look at Southlake and say “Look what cities can do!” But it is not an entirely fair accusation. The question is partially about creativity --- did our policy makers do enough to generate alternatives? And it is partially about risk --- what is a prudent (wisely cautious) and what is a hyper (unwisely) cautious decision?

5.      City Council. Some have taken to blaming City Council and often in abusive, disrespectful ways. I cannot condone that. It was beyond the pale to insult City Council Members – especially right after they demonstrated they were listening to us and had found ways to incorporate some of our main ideas. I don’t even buy the milder narratives about City Council lacking creativity and leadership. I know many will object, but I believe our elected leaders performed admirably on a very complex topic faced with legal limitations (see below) and pressures from all sides. I think they came up with some cunning ways to assert home-rule authority without inviting lawsuits. I want to see more, of course. I would have made a different risk assessment and pushed for more protections. But it is easy to play armchair lawmaker.

(Edit: This has struck a chord so let me say more. There was no indication that anyone on Council was pro-drilling (I haven't seen any evidence of that). In fact, Council rarely even framed their goal as striking a balance between drilling and health/safety. They almost always framed what they were doing in terms of the goal of crafting the strongest legally defensible ordinance. I think they worked in good faith to try to achieve that goal. I don't think they did all they could - I think we can do better and should strive in that direction. But I also don't think they deserve the bulk of the blame when it comes to assessing why we don't have an ideal ordinance. As I argue below, I think the biggest reason for that is all the limitations that make the 'strongest legally defensible' ordinance still not strong enough.)  

6.      A stacked deck. The game is rigged to favor the extraction of oil and gas even at great costs to local communities. This is tied into the previous two explanations, because you can still have some success if you have creative leaders making wise decisions. But there is no denying the fact that the field is tilted. Consider the main obstacles we face in trying to protect health, safety, welfare, and community character:

a.       Technological imperatives. We can’t do X, because…venting and flaring are necessary in cases of emergency; toxic chemicals must be used; high-pressure pipelines must go somewhere; leaks and spills are ‘normal accidents.’ “Safe fracking” is indeed an oxymoron. Our lives depend on the smooth functioning of systems. To ensure smooth functioning, experts must be in charge of the systems.  This is the ultimate limitation we faced: A logic of submission to rule by experts.  The rules are rigged simply because they are so daunting and complex as to inexorably stamp out public engagement.

b.      Vested rights. We could have given this ordinance all the teeth in the world and it would hardly matter as it has very little to bite anyway. The rules are rigged to favor the past over the present. This is troubling given the proactionary way we innovate first and figure out consequences later (the opposite of precaution).  Proaction can only work if we can learn from mistakes and adjust the system in light of that knowledge. But vested rights, like non-disclosure agreements and trade secrets, stymy that learning process. As a result, Denton will long be haunted by the ghosts of technologies and practices past. Or maybe not...our City Council may have found some cunning work-arounds for this...we'll have to see how it plays out.

c.       Predominance of the mineral estate. The rules are rigged to favor mineral holders over life on the surface.  

d.      Preemption: The rules here are rigged to favor state and federal values that may not reflect the values and priorities of any given community…and to distance citizens from structures of accountability and participation.

e.       Regulatory takings: The rules are rigged to allow an industrial activity to occur near homes, parks, hospitals, and schools. We are told we can’t zone fracking industrial, because it will constitute a regulatory taking.
Can we find cunning ways to win a game where the rules are stacked against us? It’s like a football game where the referees try to trip you as you run down the field. The zone-fracking-industrial strategy is one such chance to exercise our cunning. City Council should be applauded for even putting this on the agenda, let alone promising to pursue it.
The next blog will expand on ways we can still win the game, despite all the limitations.


  1. R u so close 2 council that you must absolve them of all blame? flawed reasoning prof.

    1. do you have a more reasonable account or are you only interested in perpetuating a myth? I just don't see any plausible story here about how they are the main reason for an average-at-best ordinance.

  2. I have too many questions to absolve the council.

    1. Agreed in principle but in this case, if you compare the bulk of the citizen comments to reality, it's not even close.

    2. Agreed.

    3. And who is responsible for that? Other cities have excluded industry from their task forces. They were allowed to make a presentation. Some cities allowed industry on their task force but they were not a majority. The cities with the weakest ordinances allowed industry to play the biggest role--Fort Worth, Arlington and Denton. This task force was a ridiculous waste of time and taxpayer dollars.

    4. Attorneys who represent stakeholders have a conflict of interest and tend to give bad advice. Big surprise.

    5. Who does bear the bulk of the blame? Who was responsible for importing Groth from Arlington? Who allowed the task farce to be stacked with industry people? Who forced them to have a premature vote when the moratorium could extend through Feb? Why was their process so different from the other, more successful cities? Why not have non-industry expert panel give presentations or at least consult so they would have sound information? Who has the ultimate responsibility?

    Phase II was a two year process but the entire ordinance process took four years--four years for a C or C-.

    Who forgot to supply the students with their talking points as promised? Maybe if they had been given the talking points they would have maintained better focus.

    6.True but it's a cop out.

    1. You make a good point that comes up most clearly in your response to 3: City Council is ultimately responsible for the process (the buck stops there, as it were). So you are right that the bungled task force and overall policy falls on their hands.

      I didn't forget talking points. See my blog with many posts explicitly labeled 'talking points.' I also supplied text via e-mail to the whole group with the title 'some possible things to say on Tuesday night.' I ain't gonna take the blame for others' poor decisions.

    2. amendment: I meant overall policy PROCESS above, forgot that word

    3. I am not suggesting you take the blame for poor decisions but you did forget to follow through with your promise to print out and bring those talking points. Also the slip of paper with the suggested starting sentence. I remember explicitly that you promised to bring these materials. If your email was meant to serve instead of your promise to bring them, then you should have stated that in the email. Fortunately I was able to look back on a Facebook comment made by Amber to find the starting sentence about solidarity. I copied that and pasted it into to notes and read it from my phone. But like everyone else, I thought the talking points would be available as agreed.

      You did forget. That is a fact.

  3. The way I see it is the city was just as, or more, disrespectful than people say the students were. The only difference is the students said F*** you out loud and the city and the city council said F*** you with their actions. Personally, I would prefer someone who expresses their opinions to my face over someone who shits on me and tells me it's ice cream so be happy. There is no way to turn what the city and the council did into something other than what it is was. Their actions were disrespectful, arrogant, uninformed, and irresponsible. It was disrespectful to all of those who have spent countless hours doing research and attending meeting.

  4. You know, I've been looking for a way to respond to some of your blog posts and it's taken a while to find the right way of saying this.
    The people you dismiss as students are also people who live in Denton, who may or may not move away but who do have a stake in breathing clean air & drinking clean water. Also? Not everyone in the group is a student. There are people in that group who aren't students but who care deeply and want a group to go to. They are not toys to be set forth by DAG, they deserve respect and consideration. They have a very clear understanding of what they want & are working very hard to achieve it. They are not stupid children running around or existing to do whatever you tell them to do. The language you use to describe them is infantilizing and demeaning.
    This also leads to your consistent use of the fact/emotions dichotomy that you're quick to bring up. None of these people are mad without reason. In fact, they're mad BECAUSE of the facts. They know the facts, they've read the same studies, done the research and still come out mad. They see the people who will be hurt by fracking. Some of them know the pain of seeing someone suffer because of pollution. And they've made factual arguments. They've asked the city, they've brought it up and still felt like the city wasn't listening because they weren't. They hold closed meetings and try to stack the deck to the industry's advantage and then tell you that they're being open & fair. This is not random, and the fact you dismiss their anger says you don't actually see them as people capable of logic. In fact, it's the same argument the industry uses to dismiss environmental concerns because how dare people feel indigent that they're being poisoned? These people have every right to be angry and your dismissal of them says you worry more about being a good liberal than a good person. And that should concern you deeply.

    1. Well, this is quite a litany of accusations. I would like to see where I use dismissive, infantalizing, and demeaning language. I also would like to see where I ever (let alone consistently) make a fact/emotion dichotomy.

      I won't back down from my belief that insulting City Council members is uncalled for (especially on Tuesday when they just made major concessions to our demands). I am not dismissing anger; I'm asking for it to be channeled productively.

      I'm getting tired of these baseless attacks and accusations. It's like you are looking for an enemy - constructing a straw man to be angry at...even me! A guy who has put in countless hours fighting for stronger regulations. I'm starting to wonder who I've been fighting for...