Wednesday, January 30, 2013

Our Beastly Energy Addiction

Raskolnikov, the main character in Crime and Punishment, at one point blurts, “Man can get used to anything, the beast!” He has hit upon a paradox: adaptation is both quintessentially human and dehumanizing. Humans can acclimate themselves to a wide diversity of customs, beliefs, and practices. But although we can feel “at home” with almost anything, we should not. To conform to some things would betray our humanity, our ideals, our conscience.
The question is which customs are morally acceptable ‘homes’ for humanity and which are not.
Today, we are accustomed to an extreme fossil fuel addiction. To get at the increasingly hard-to-reach remaining reserves, humans are scalping boreal forests, decapitating mountains, drilling oceans, and injecting chemicals into the Earth. The scale of these undertakings should be mind-boggling – there is one oil project in Russia that costs the same as building 145 Hoover Dams. But we’ve grown used to this sort of thing.
We are despoiling the environment and destabilizing the climate. And Americans are no happier today than they were in the 1950s before our addiction hit such extremes. Development in America via growth and resource consumption long ago outstripped any justification in terms of genuine human well being. Our society commands the most rational scientific and technological means but it puts them in the service of insane ends.  
Over the past decade, this insanity has come home to roost in Denton. Advances in hydraulic fracturing (fracking) and horizontal drilling have increased natural gas production around here. Denton is home to 267 wells with another 188 on its outskirts.
With several other citizens, I spent the last year and a half helping the City rewrite its rules for fracking. We were able to get some improvements.  For example, the setback distance from wells was increased slightly and new practices for reducing emissions and spills will be implemented. But fracking will continue apace, complete with flaring and massive water consumption and chemical use.
We can take solace from Thomas More: “if long-established vices can’t be reformed just as you might like, that doesn’t mean you should refuse to participate in government, any more than you should abandon a ship in a storm simply because you can’t control the winds.” As More advised, we worked within the system and did not bother with things outside of our control –laws that favor resource extraction, loopholes on fracking, and the dictates of American energy needs. We took all of that as simply given facts and pursued the changes we could yet muster.   
In retrospect, I’m not sure that was the right thing to do. Certainly, it was the ‘reasonable’ path. We couldn’t expect City government to do anything about those larger givens. To get anything done, we had to accept those limitations and squeeze whatever juice we could out of the frail lemon of municipal authority.
But I can’t help thinking about the reply given to More by his friend Raphael. He argues that if he were to adopt the approach of working within the system, “the only thing I’d achieve…is that, while I was trying to cure others of insanity, I’d be acting like a madman myself.” Indeed, there is something mad, or maddening at least, in setting aside the root issue (our ideal of the good life) in order to debate the details of allowable decibel levels for drilling rigs and what kind of fence must surround them.
I didn’t take up those deeper ‘givens’ about the way our laws are written and the way we lead our lives. But unless we address those, at best we can only make cosmetic changes and, at worst, we may actually help society achieve a “more accomplished lunacy.” If we make quieter drilling rigs and better fences, we can drill in more areas!
Someone has got to question the system itself – the very laws, customs, and beliefs that condone such energy extremism. That’s why I applaud the Sierra Club for endorsing acts of civil disobedience (for the first time in its 120-year history) against the Keystone XL Pipeline.
Civil disobedience is the most powerful democratic way to shake off some vile habit we have gotten used to. Or, we could follow the fatalism of blogger Erik Erickson who recently opined that climate change isa problem we probably have to get used to, as opposed to something we can cure.” We have to get used to it, he argues, because we are not going to kick our escalating energy addiction.
Denton is now slightly safer from the dangers of fracking. But the gas under our feet will all be extracted and combusted. The same holds for all the oil under the forests and seas and all the coal under the mountains. Unless. As the Lorax wrote, unless…

Tuesday, January 22, 2013

After the Vote, Part 3/3: Next Steps

So, we have an improved but still unsatisfactory ordinance. I have tried to explain why I think we didn’t do better – lots of reasons, but most importantly legal limitations that require persistence to overcome. The question is how best to channel our energies and talents.
Where can we go from here? Let me just briefly lay out some options. Please vote and/or add more alternatives in the comments.
1.      Citizen initiative. Denton has a process whereby the electorate can propose an ordinance. This direct democracy approach is one option if the sense is that representative democracy has failed. It will take money for legal advice, lots of work to draft the appropriate language (what would the substance of the ordinance be?), and boots on the ground to get signatures and votes.
2.      Continue to work with the City. An alternative is to work with Staff and Council on key items that we think need to be improved. I would propose pushing the compressor station issue, the zone-fracking-industrial-use strategy, and pits. I also think we need to work with the City to make sure they develop a robust air and water monitoring program.
3.      Get involved at the State level. No matter what we do at the City level, we need to consider regional and Texas-wide action. This can mean endorsing or opposing pending legislation dealing with oil and gas development. It can also mean initiating a resolution to share with our State representatives asking them to stand up for local control. Home rule municipalities should have greater say over this industrial practice – city leaders are more directly accountable to their constituents and act on a weekly basis, which means they can respond more swiftly to citizen concerns.

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.

Sunday, January 20, 2013

After the Vote, Part 1/3: Ordinance Gets a C-

After more than two years of revisions, Denton City Council passed the new drilling and production ordinance on Tuesday night by a 5-1 vote (King opposed, Engelbrecht absent).
This is the first in a three part series of blogs where I take stock of where we sit, how we got here, and where we go now that the law is in the books. This post provides a table of important issues, some brief comments, and my grade. The next post will be my analysis trying to explain why things ended up the way they did. The third blog post will look ahead to map out possible next steps.
The process was not a shining beacon of democratic rule-making. The Task Force had an ambiguous mission, was dominated by industry interests, and did not collect enough information. The actual drafting of the ordinance was insulated from public criticism and it outpaced public deliberation by our elected leaders. The Planning & Zoning Commission did not weigh in substantively. Important legal perspectives were not consulted. I and the DAG could have done more to mobilize public turnout and speak with a clarion voice. Public attendance waned seriously through the long slog. And public comments too often veered into irrational diatribes, bloated into selfish posturing and one-upmanship, and (worst) devolved into disrespectful, unfair, and absurd name-calling and insults.
In terms of process, I give us all a C-.
I give the same grade for the overall outcome. You will see that there were some victories but ample problems remain. I don’t think anyone should look to Denton’s ordinance as an overall model for the municipal regulation of shale gas development. There are some good parts that others might want to cherry-pick and the use of the SUP process still seems fundamentally sound to me. But it is not strong enough and has never read with the crisp clarity and coherence of other ordinances.
If you spot errors in claims contained in this table, please let me know via a comment (tough to keep track of all the changes). [my thanks to an anonymous tipster in the know who corrected some of my mistakes - this was updated about 12 hours after first posting]

Improved. It boldly states our values and clearly grounds the ordinance in our home-rule authority. Unfortunately, much of the ordinance does not appear to use that authority to the fullest.
Protected uses
This definition was broadened.
Fracking is still allowed in any zoning classification. The framing of the ordinance assumes that fracking is a compatible use in all areas with some cosmetic changes via the SUP process. This is wrong. We need a zoning process that prohibits fracking in any zone but industrial. There are two reasons this does not constitute a regulatory takings. First, the average horizontal well in Denton County is now over 1 mile long, a length that is going up at the rate of 400 feet per year. Second, the process could allow for the possibility of rezoning a proposed plat site. We need an ordinance that begins with the common sense point that fracking is NOT a compatible use in non-industrial areas. I give this partially an ‘incomplete,’ because some Council members have promised to fight for this zoning strategy over the coming year.
Vested rights
Most of the future drilling and fracking activity in Denton will occur under old rules. I give this an C- more out of protest for the fact that the law allows us to be haunted by outdated practices than out of any legitimate gripe with the City (its hands are largely tied here…though not entirely). We’ve been worried about what teeth this ordinance has, but the real issue may be that there is not much for it to bite anyway. We will have to see how this plays out...apparently all new permits will be considered under the new rules and operators will have to jump through hoops to get out of them. That may work better than how I originally understood this.
They are still in there. Everyone loves Southlake’s ordinance but hates variances. But the first thing Southlake’s ordinance does is lay out a detailed variance procedure! There are two takes on variances. First, they are good, because they provide non-litigious (out of court) administrative recourse for grievances. Second, they are bad, because they allow activities to happen closer to protected uses. Denton’s ordinance allows the ZBA to grant variances down to 500 feet. The other variance procedure was removed. Tough one to grade.
Plans and permits
The watershed protection permit, water conservation plan, and site reclamation plan are robust. But overall there is not enough: there is no requirement for seismic permit, traffic impact assessment, waste management plan, or a leak detection and compliance plan.
Air and water monitoring
After months of saying we were preempted from doing this, Council made a last minute amendment. But it is not in the ordinance (which might actually be good) and not specified. So, it’s promising but it gets an “incomplete” because we need to make sure this gets done right.
The ordinance says closed-loop systems will eliminate the need for pits on all new sites. But Mr. Groth equivocated when Mr. Roden asked him to clarify which pits will be eliminated. It seems like not all pits will be gone even from new sites. And more importantly all sorts of pits are still allowed on old sites vested under old rules. It’s not an “F” because there are some marginal safety measures (liners, fill level, content). But these things cannot be policed – toxins will volatize quickly. And note that benzene is allowed…not good at all.
Compressor stations
This was the other major last minute move by Council. They will now be permitted but with regulations for set-back distance (1,200 feet), noise, and screening requirements. That’s a start, but it is not enough. There will be more of these and they are dirty and dangerous. We need to prohibit them as other cities have done or at least increase setbacks significantly.
Venting and flaring
They are still allowed. Worse, variances can allow them to happen very close to protected uses. City Council suggested this might constitute a noise violation under our ordinance, so operators could incur the daily $2,000 fine. But we need to be clearer than that. We should prohibit these practices outright. They will occur in emergencies, but by prohibiting them we discourage any non-emergency venting and flaring episodes and we send a message that these are simply unacceptable practices. If drilling and production can’t occur without them, then they shouldn’t occur at all.
Well bore integrity
Cathodic protection still seems to not be required. This is a tough one for the City to police, but there was far too little discussion of options here.
City Council was looking for a way to justify 1,500 feet. We never convinced them, but they did appeal to an obscure federal flood protection requirement in the DDC to get 1,200 feet. Watts made the motion, but I know others gamed this with him prior to the vote. Decent.
Vapor recovery units
These are required, but only when VOC emissions exceed the allowable level of 25 tons per year. VRUs are not the magic bullet that everyone hopes they can be in terms of eliminating vapors from tanks. They only work well and safely when vapor levels are high. This is another instance where the ordinance gets a bad grade but more out of my displeasure with technological limitations and the inherently polluting nature of the activities than with my sense the City could have done much better.
Reduced emissions completions
These ‘green completions’ will be mandatory. That is good (of course they are soon to be required by federal law anyway).  But there are weasel words. They are not mandatory if it is not ‘feasible.’ In such cases emissions must be ‘minimized’ (not specified to what level).
Public notice
Operators must notify the City ten days in advance of several activities, but it does not appear that re-fracking requires notification. All dwellings within 1,200 feet will be notified 48 hours prior to activity. These are good notices, but the dissemination mechanisms are not robust enough. The Gas Well Inspection Division needs to post notices on their website. There should be a City Facebook page where planned activities can be posted. This should be linked to the interactive map that is being made. Finally, notices should be posted in the Denton Record Chronicle.
Low toxicity drilling fluids and low-bleed pneumatic valves
These seemed like simple things to ask for, but they never made it into the ordinance.
Other best practices and a pad site upgrade incentive program
We had lots of ideas for various ways to reduce emissions (taken from the EPA Natural Gas STAR program site) but none of them were incorporated. The notion of a voluntary incentive program also got very little play in official policy discussions.
Electric motors
These are required but other motors that generate equal or less noise or emissions can be approved. The point is to reduce on site emissions and this seems to help in that direction…although the current draft posted here (and in many other spots) is difficult to read (can’t tell what is over-tracked and what is supposed to be deleted, etc.).
Soil sampling
Home run.
Noise mitigation
Well done.
These levels were increased…perhaps still not enough given the risks we are taking with our water (and the water for all future residents of Denton). Arguably, insurance and security requirements should be prohibitively high until we have full disclosure of the chemicals being pumped into our environment. How can we adequately assess the risk and establish reasonable insurance requirements under conditions of secrecy? We don't know what is happening to the (unknown) chemicals below the ground - where are they migrating, how fast, who will pay for future damages...?
We said from the beginning, and the Mayor also stated at the final meeting, that pipelines pose perhaps the most significant safety risks. The transmission pipeline system is a high-pressure, explosive network that was simply not addressed. I'll take as much blame as anyone for this (Elma Walker sure tried to get our attention!)...the question is: Are there any problems here (are new pipelines going into Denton, do we have the old ones mapped adequately, are they safe, monitored, etc.) and can we do anything about them?

Monday, January 14, 2013

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.

Friday, January 11, 2013

Frack the Poor?

You shouldn’t have to be rich to afford the best protections from fracking. But that is how things are on the Barnett. Flower Mound and Southlake have the strongest ordinances for their citizens. The median household income in Flower Mound is $126,000 and in Southlake it is $173,000. The median household income in Denton is $47,000.
Is that why Denton is about to allow compressor stations anywhere and allow venting and flaring next to homes and schools? Why Denton will not require air and water quality monitoring or a leak detection and compliance plan or a waste management plan? Why Denton will allow property owners to reduce setbacks from wells to as little as 250 feet without the consent of renters living on that property? Why Denton will not raise the setback distance to 1,500 feet? Why there has been no serious discussion of zoning fracking as an industrial use as part of a broader vision for our City?
No, certainly not, we are told. We are told that it’s not that we don’t deserve the same protections as the affluent. Rather, we are told that we can’t afford to take the same risks. The ordinance we have now is the best we can do. Anything stronger, and we will be sued. And given that Denton doesn’t have deep pockets, we must be cautious.

But the ordinances of Flower Mound and Southlake have blazed a trail, making our trek less risky. Their residents had to reach into their own pockets to pay for the best protections. That shouldn’t be necessary anymore now that they have shown the way. Southlake in particular has a model ordinance. There is nothing unconstitutional about it – it simply requires that a heavy industrial practice be subjected to appropriate plans, standards, and rules before it can take place in an urban setting.
I have heard several City Council members say that they want the strongest possible ordinance. Well, if that is the case, we could have wrapped this up months ago. Take Southlake as the gold standard and adapt their rules for Denton. Now that is a cautious strategy. So tell me again, why is it we don't deserve the same protections?

Thursday, January 10, 2013

Oh, Yes We Can!

The City of Denton is about to release a document explaining all the reasons why we can’t have a stronger ordinance to protect our health, safety, and welfare. The technicalities are complex, but the message is simple: No we can’t. No doubt there are limits to municipal control over fracking. But those limits are not as strict as their message would have us believe.

I asked them: Can we require air quality monitoring? They said, “No we can’t.” I asked them: why? They said, “State law trumps our ability to do that.” But that is not true.

I say, “Yes we can.”

Look at the Texas Clean Air Act Subchapter E on the “authority of local governments.” It states that “local government has the same power” as TCEQ “to inspect the air and to enter public or private property in its territorial jurisdiction to determine if the level of air contaminants in an area in its territorial jurisdiction and the emissions from a source meet the levels set by [TCEQ] or a municipality's governing body.”
It goes on to state that municipalities have the power to “enact and enforce an ordinance for the control and abatement of air pollution, or any other ordinance, not inconsistent with this chapter or the commission’s rules or orders.”

That’s why Southlake, Hurst, and other cities require air quality monitoring. Because they can. We can too. What else can we do that they say we can’t do?

Wednesday, January 9, 2013

The End of Closed-Door Paternalism

The rewrite of the ordinance has happened far too much behind closed doors – closed sessions with City Council, P&Z, and the Task Force and months behind the scenes with lawyers and consultants.
Why is this?
It could be that those on the other side of the curtain do not have the citizens’ best interests at heart.
But I have heard from our elected leaders who get to sit on the inside that the opposite is the case. They have to convene in closed sessions, they say, precisely because it is the best way to protect the citizens. To openly discuss provisions in the ordinance is to make it vulnerable to challenge by the industry. To explain is to provide ammunition for those who want to make the ordinance weaker.
This is what I call closed-door paternalism. There’s just one problem with it: we already have a weak ordinance! The very process that is supposed to be protecting our interests is undermining them.
The reason for this is simple. The closed-door process magnifies the power of the lawyers and bureaucrats. They get a privileged position to consistently drum their message into our elected leaders’ ears. And their message is one of hyper-caution: “We can’t do this. We can’t do that. Preemption. Vested Rights. Regulatory Takings.” The tape plays on repeat over and over. And we, the citizens, are cut out of the loop. We can’t hit the ‘stop’ button to question that message and to interject the voices of other experts who have alternative messages.
And before we know it, our elected leaders’ worldviews are indelibly stamped and they confuse the hyper-cautious message with reality. Then we, who speak of other ways of seeing the world, start to sound simply crazy – out of touch with reality. Closed-door paternalism sets us up to look like children.
At the last City Council meeting (start at 44:26), they toyed with the idea of waiving their attorney-client privilege and releasing legal documents. And they got this far only because we have been so adamant in asking our childish questions: Why? Why? Why? Why are we not increasing set-backs? Why are we not prohibiting pits? On and on.
Those documents explain why we have the draft ordinance we have. They also explain the worldview that is shaping how our representatives see reality. We need to see them. But they dismissed the idea of sharing them. Too dangerous…for us, of course.
It is time to call an end to closed-door paternalism. The children are grown up and shall write their own ordinance.  

Monday, January 7, 2013

Dear Mayor Burroughs

I am getting lots of resistance from City Council on our request to push the setback distance up to 1,500 feet. I have heard it is impossible and constitutes a regulatory takings. The Mayor wrote to me asking for studies that would very specifically justify this policy change in terms of city zoning powers (e.g., nuisance, noise, and light)...of course there are no such studies...but we don't need them. Here is my reply to the Mayor:
Dear Mayor Burroughs,
I am not aware of any studies about the very specific issues that you mention (about noise, lights, and child safety between 1,000 and 1,500 feet). The sad fact is that there is not nearly as much money available for studying the health impacts of shale gas development as there is available for extracting the gas. What we do have are numerous stories told by families about how fracking has been a nuisance for them and how it has decreased their property value.
If such studies are necessary for making this decision, then perhaps we should extend the moratorium until they are conducted to your satisfaction. It seems like our Task Force should have commissioned experts to testify about such issues – the Dallas Task Force did a far more thorough job of collecting information. We must have had a botched and superficial advisory process if our decision makers are now, at this late stage, still lacking vital information.
So, we could call a do-over on the Task Force and get it right this time. But actually, for this issue, I don’t think we have to do that. The case for 1,500 feet is pretty simple.
We do know that drilling and fracking emit noxious (and toxic) chemicals into the air. And we know that the health impacts of those chemicals are worse the closer you are to their source – indeed health risks are high as far as ½ mile away. I have linked to a couple of studies here, but I also understand that Sharon Wilson of Earthworks has supplied you with others that have come to similar conclusions.
It is better for health, safety, and welfare (the stated purposes of the ordinance) to be further away from drilling and fracking. The question is: How far away is safe enough? That is a political and moral, not strictly a scientific, question. It is about how to act under uncertainty and how much risk to ask citizens to shoulder for an industry that is imposing externalities on us.
Though science can establish some reasonable parameters, there is ultimately not a ‘scientific’ answer to this question, because it is about our values. Flower Mound has shown that 1,500 feet is politically possible – why wouldn’t we make the same values decision? It is a reasonable and prudent move in a situation characterized by uncertainty and imbalanced risk allocation.
Or we can put it another way: How close would you like this next to your kids’ homes, schools, and playgrounds?
Thank you for your continued efforts on the ordinance. All the best,

Thursday, January 3, 2013

Call a Spade a Spade

Fracking is an industrial activity. Yet no Texas city has zoned it accordingly. They all know it is a spade but they call it a joker and let it happen anywhere. Why? Well, state law allows the mineral estate to trump the surface estate. But that is an old state law written when Texas had far fewer people and well before we entered the age of high-tech extreme energy.

Maybe Denton could be the first city to call a spade a spade. We would be like the little girl who finally points out the emperor has no clothes. Scales will fall from eyes. People will see the obvious: let's treat this industry like every other industry and put it in its place. Eureka!

How about this for core ordinance provisions:

1.      Zone fracking as strictly an industrial use.
2.      No new wells or re-fracking anywhere but industrial zones.
3.      1,500 foot setbacks from any protected uses near industrial zones.
4.      No variances.
5.      No compressor stations.
6.      No pits.
7.      No venting or flaring.
8.      Mandatory reduced emission completions (no ‘feasibility’ or ‘minimization’ clauses).
9.      Mandatory pre and post drilling air, water, and soil monitoring.
10.  Mandatory leak detection and compliance plan.
11.  Mandatory use of best practices for capturing emissions.

Wednesday, January 2, 2013

A Question

How is it that after nearly 18 months of Phase II revisions we don’t have a better ordinance?

·         There is still venting and flaring.
·         There are still pits.
·         There are loopholes in the reduced emission completion requirements.
·         Setbacks are still stuck at 1,000 feet.  
·         There is a red carpet for variances.
·         Compressor stations are nowhere mentioned.
·         Gas wells can still pop up near homes and schools.
·         There is no waste management plan.
·         There is no water and air monitoring.  (The last draft actually took a step backward by eliminating freshwater well monitoring and the leak detection and compliance plan.)
·         There is no requirement to implement best practices.
·         And even the few improvements we do have will not apply to much future activity, which will be vested under old rules.

The clock is ticking and it looks like we are not going to get an ordinance that protects the health, safety, and welfare of the people of Denton. Those of us who have tried to reform things from within the system are growing weary…