Put Fracking in its Place

[a draft of notes for City Council tomorrow]

I am speaking today in solidarity with those citizens of Denton who are opposed to this weak ordinance and who demand greater protection from a polluting industry.

No one disputes that fracking is an industrial activity. To see it happen near homes and parks and schools evokes such a strong reaction because it is so obviously out of place. One of the main tasks of city government is to put things in their place. That is why zoning powers are so essential – they allow us to fashion coherence and compatibility out of a jumble of private interests. A good city is one where all the parts are ordered into fitting relationships.

There are two strategies for putting fracking in its place. The first is to zone all drilling and production activities as strictly industrial uses. The second is to allow fracking to occur in any zone with conditions attached via the special use permit (SUP) process.

You have chosen the latter strategy. This presumes that there are conditions that would satisfy the approval criteria laid out in sub-chapter 6 of the Denton Development Code: in order for a special use to be approved, it must be compatible with and must not have an adverse impact on the surrounding area.

The draft ordinance does not satisfy this criterion. Compressor stations are not regulated, venting and flaring are permitted near homes and schools, air and water quality are not monitored, and there is no requirement of a leak detection and compliance plan or a waste management plan. This is an industry that is allowed by federal and state governments to pump undisclosed chemicals into the environment. For that reason, we need these kinds of protections.

Southlake has them all. Yet you have not adapted Southlake’s ordinance, because you have been told that such rules are preempted by state and federal law. But they are not. The Texas Health and Safety Code states that local government has the same power as TCEQ to monitor air emissions. The Texas Local Government Code states that a city may prohibit the pollution or degradation of and may police anything related to its water supply. A 2008 court case confirmed the ability of municipalities to regulate compressor stations via zoning authority. Under Texas law, if the legislature is to preempt a subject matter normally within a home-rule city’s powers it must do so with “unmistakable clarity.”

I learned this information from the Dallas Task Force – not our own, industry-dominated, task force.

If you decide to stick with this SUP option, you must crawl out from under the hyper-cautious narrative you have been told and bring Denton up to the same standard as Southlake. You have been led by bureaucrats, consultants, and lawyers. I know this is a complex technical issue. But it is ultimately a moral and political question of what kind of place our city should be. We expect our elected representatives to chart a path forward and if they won’t do it, the people will.

And what I think counts as a true path forward is the first option: zone fracking as the industrial activity that it in fact is. I know the hyper-cautious narrative now warns of regulatory takings. But the ordinance could be written in such a way as to provide an administrative appeals process to possibly re-zone a proposed drilling and production site.

Furthermore, technological advances are making this option increasingly feasible. The average horizontal lateral is now about 4,000 feet long. Halliburton just drilled a 9,124 foot lateral. Gulfport Energy reported a new record last year on the Utica Shale of a 7,974 foot horizontal lateral. The Journal of Petroleum Technology reported in 2009 that a well in Qatar had a lateral of nearly 36,000 feet. It’s like the male enhancement industry with businesses competing for the title of longest lateral.  

It is disheartening to contrast this entrepreneurial spirit of the industry with the timidity of our democratic leaders. In your last work session, I watched you talk about semi-colons when you should have been talking about zoning strategies. You have given us the impression that the task of our elected leaders is to sign off on rules written by experts. I know you are trying to do what is best for Denton. Right now what we need is your leadership to put fracking in its place.