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.