Frack Free Denton statement in response to industry lawsuit to stop the ban

Contact: Adam Briggle, dentondag@gmail.com, 940-536-8710

Statement of the Frack Free Denton/Denton Drilling Awareness Group Board

We expected the oil and gas industry to sue the citizens of Denton after we voted to ban fracking.

Unfortunately, industry has met our expectations. They have apparently learned nothing from last night’s landslide vote. They have taken no time to reflect on their own irresponsible actions that brought the people of Denton to this point.

Industry could have taken this moment to address why the ban was passed. Instead they’re going to try to squash it.

If justice prevails, and we think it will, they will lose.

We WON! A few thoughts from president Cathy McMullen

This is a victory for the citizens of the city of Denton.

For our families, for our health, for our homes, and for our future.

What does this fracking ban mean?

It means we don’t have to worry about what our kids are breathing at city playgrounds.

It means we can cheer on the Mean Green without fracking pollution blowing over the football field.

And it means we don’t have to worry about our property value taking a nose dive because frackers set up shop 200 feet away.

But this ban wouldn’t have passed without the tireless efforts of countless people concerned enough about their city to help make this happen.

Unfortunately, not all is sweetness and light.

We know the oil and gas industry is going to sue to try to overturn the fracking ban.

But we lawyered this ban every which way before launching this effort. And we consulted legal precedents for Texas home rule cities like Denton. And we’re confident it will stand up.

We know the oil and gas industry is going to try to use our own state government against us by directing its paid flunkies to overturn the ban in the legislature.

To them I say, if you vote to overturn this ban, never again say you’re against big government

Because politicians didn’t pass this ban.

This ban is the voice of the citizens of Denton speaking directly to the fracking industry, and local, state and national government: WE HAVE HAD ENOUGH.

So try to overturn it if you will. But know that if you do, you are on the side of corporate interests and against the people.

Because this isn’t a ban on fracking everywhere.

If YOU want fracking in YOUR COMMUNITY, fine! Keep it.

But in Denton, we don’t.

And if you force it on us anyway, that is the VERY DEFINITION of big government.

To those in industry and government who are concerned by the success of this ban, rather than try to overturn it, address why we had to pass it.

Because the ban was our LAST RESORT. We tried for years to get government and industry to work with us. And they wouldn’t. This was the only way left open to us. And so we took it.

If you want to prevent more bans, especially in towns that know drilling best, do yourselves a favor and listen to concerned citizens. Because if you don’t, you may wind up reaping what you’ve sown.

The Fracking Kings

What does “responsible drilling” mean?

Surely it doesn’t mean the way the industry is behaving in Denton: Fracking less than 200 feet from homes. Ignoring our local rules. Poisoning our families.

After all, every industry representative that has ever come before Denton’s City Council has admitted they wouldn’t want to live next to a frack site. They have talked like they understand we have a real problem here. For years, they promised to help fix things. Of course, nothing came of it. It was just talk. That’s all it’s ever been. Buzz words. Doublespeak. Empty rhetoric.

A couple of days ago, they finally came out and said what they really mean. When asked in an interview with the Dallas Business Journal to define “responsible drilling,” the leader of Denton Tax Payers for a Strong Economy said that fracking companies “haven’t done anything wrong.”

Their blueprint for “responsible drilling” is just more of the same. They aren’t spending over $700,000 on this campaign so they can clean up their act. No. They are trying to buy our submission so that they can go right back to exploiting Denton.

The bright lights of frack site and noise of semi trucks in the middle of the night in Vintage neighborhood. Photo courtesy of Gena Felker and Britt Utsler.

The bright lights of frack site and noise of semi trucks in the middle of the night in Vintage neighborhood. Photo courtesy of Gena Felker and Britt Utsler.

Here’s their definition of responsible drilling: The act of systematically ducking commonsense regulations to frack next to homes and playgrounds, jeopardizing the health and safety of Denton families in order to maximize profits for outside corporations, outside mineral owners, and a handful of residents who make more from fracking than the entire school district.

They are trying to pass off profit maximization as the same as property rights. But of course, it doesn’t make sense to have a democratic society if some can use their property in a way that harms the property of others.

That would be a monarchy. And that’s precisely the way they are acting. As if they have the King’s X. Exempt from rules that apply to everyone else. Untouchable. The very opposite of being a responsible member of a community.

Nuisances, hazards, chemical trespass, threats to water resources – these are all encroaching on Denton families’ rights to freely enjoy our property…not to mention our rights to clean air and water. In the past year, Denton residents have lodged hundreds of complaints to the Texas Commission on Environmental Quality. Here is a small sample:

Our neighbors are suffering. Your neighborhood could be next.

The industry’s un-neighborly ways have backed us into a corner. The ban is our last resort; it’s the only way to protect our health, safety, and property.

Our choice on November 4 is not between the fracking ban and anything a reasonable person might imagine by “responsible drilling.”

It is a choice between the ban and the continuation of a nightmare.

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Fracking and UNT

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At the UNT polling place this week, the workers being paid by Denton Taxpayers for a Strong Economy are handing out a piggy bank flyer that reads in part: “A drilling ban will cost UNT MILLIONS IN LOST REVENUE resulting in either cut-backs or higher tuition.”

We have asked four different people handing out this flyer for a reference or resource to support that claim. No one has had an answer. That’s particularly irksome on a college campus where students are taught to verify empirical claims with references.

The industry-funded Perryman report does mention UNT twice and talks about “millions.” But they are both offhand speculations with no data or analyses to back them up. There is nothing else on their website.

So, we went to the Denton Central Appraisal District to find out the appraised mineral values held by UNT and the Board of Regents. Those data show UNT with active gas wells starting in 2008.

The average annual mineral wealth held by UNT since then is about $125 thousand. After we pass the ban, there would be no new fracking but the UNT wells will continue to produce gas. Given the marginal location of UNT on the shale and the fact that they have drained the sweetest portions already, it’s hard to see how millions will be lost with no new fracking.

One other point: the revenues are extremely sporadic – in some years they are as low as $5,000. This is not the kind of activity you do any long-term investment or fiscal planning with.

UNT’s budget is about $865 million. So, fracking contributes 0.01%. That’s a hundredth of one percent. Or to put it differently, it’s the same as the annual tuition from six resident or four out of state students. There are 37,000 students at UNT.

Boy, this all seems so familiar – unfounded claims about huge losses from the ban that vanish as soon as we shed light on them.

Why You Should Vote for the Fracking Ban

Here is your one-stop shop to clear away all the industry propaganda. Please share it widely.  We know once people get the facts, they will vote FOR the ban. Thank you!

Why should I vote for the fracking ban?

Simply put, without the ban fracking will continue unchecked all across Denton less than 200 feet from homes, schools, and playgrounds. The negative health and safety impacts of living close to fracking are well established. Fracking requires heavy truck traffic, poses risks of industrial-scale accidents (like the blowout in Denton last year), uses non-disclosed proprietary chemicals, and has permanently contaminated over 1 billion gallons of Denton’s fresh water.

No one, not even industry representatives, wants a frack site in their back yard. No one thinks this is responsible. But that is the reality without the ban, because our 281 gas wells and another 10,000 acres of city land are vested (grandfathered) under older regulations that were written when Denton was much smaller and before we knew the hazards of this process.

Denton actually has a set of reasonable rules in its city code. They require a 1,200 buffer between frack sites and homes. But the industry does not have to follow these rules. AFTER we wrote those rules, they continued fracking less than 200 feet from a neighborhood. And they have claimed they can do this over and over again “in perpetuity.”

We don’t even allow bakeries in neighborhoods. Why fracking?

But what about the economic impacts of the ban?

In our post “Grow Strong AND Healthy,” we tackle this question. We show three things:

  1. The industry-sponsored report about economic impacts of the ban relies on a group notorious for using its proprietary formula to gin up numbers that suit its clients preferred conclusions;
  2. Yet even if we take their numbers at face value, their own report shows that fracking is 0.2% of our economy, 0.2% of our work force, 0.5% of our tax revenues, and less than 0.2% of our school budget; and
  3. Their own numbers show that fracking is an economically unproductive use of land – building homes generates 4X as much tax revenue for roads and schools. Every acre of fracking means more pollution and less economic prosperity.

But what about the threats of lawsuits should the ban pass?

In our post “Of Lawsuits and Lies,” we tackle this question. We show three main things:

  1. Other US cities have defended their municipal fracking bans for between $38 and $125 thousand dollars. That is far less than the “millions” threatened by the industry. And it is 3% of Denton’s fund set aside for defending lawsuits in general.
  2. The ban will survive any preemption challenge, because Texas home-rule cities like Denton are proven in courts to be Texas tough – winning every challenge to their authority.
  3. The ban will survive a regulatory takings challenge, because it does not prohibit all forms of mineral development and a more restrictive ordinance in Texas was just upheld by the Texas Supreme Court.

But what about our schools and parks?

In our post “Vote FOR the Children. Vote FOR the Ban,” we tackle this question. Again, using industry’s own numbers we show that fracking contributes at most $20 per student in Denton Independent School District. That’s out of a budget of $7,700 per student. Meanwhile, fracking is a major contributor to the smog-forming ozone that gives our region the highest childhood asthma rates in the state.

In our post “Take our Parks Back,” we also tackle this question. We show that gas well funds constitute 1.2% of the Parks budget. We also show how the city explicitly classifies these funds as “short-term” and does not use them to maintain anything, including swing sets. Meanwhile, benzene is being emitted from a frack site by McKenna Park at unsafe levels, which keeps several parents and at least one private school from letting their kids play there.

But what about American energy independence?

In our post “Why Denton Should Ban Fracking,” we tackle this question.

If you crammed all of Texas’ gas wells into the 7 percent of its land area that is developed, Denton would still have three times as many wells as the average city. We’re doing far more than our fair share for energy independence. And our existing wells will continue to produce gas after the ban. Besides, the claim that fracking in Denton is helping the U.S. become more energy independent is a red herring. The U.S. only imports oil, not natural gas, from the Middle East, and Denton only produces natural gas. Water scarcity is the real national security concern here anyway.

Plus, fracking companies are scrambling to export American natural gas overseas to Asia where they can get higher prices.

But doesn’t this ban apply to all fracking everywhere?

No. The ban applies only within the city limits of Denton, TX. Why Denton? Again, because our city is in a unique situation where we tried for years to regulate this industrial practice only to find out that it is too late. This is not about national energy policy. This is not about what’s right for other places. This is about one community’s right to self-determination.

frackmap

RELEASE: Infrared videos show Denton oil and gas air pollution still unaddressed by regulators

Despite industry promises to operate responsibly, videos show chronic, ongoing releases of volatile organic compounds within Denton city limits

Oct 21st, Denton, TX — Newly released infrared videos taken over the past three months show that oil and gas air pollution is ongoing, chronic, and unaddressed in Denton, Texas despite assurances of safety by industry. The videos make visible normally invisible volatile organic compounds emissions (VOCs) — such as carcinogens like benzene.

“These videos prove to Denton residents that, even as they go to the polls bombarded with industry promises of ‘responsible drilling’, those promises are empty.” said Earthworks’ Texas organizer Sharon Wilson. She continued, “Instead, we’re getting polluted with ongoing, long-term exposure to poisonous volatile organic compounds.”

FLIR (Forward Looking InfraRed) cameras are used by the oil and gas industry and government regulators specifically to detect leaks of volatile organic compounds. The videos released today were taken by an ITC certified Optical Gas Imaging thermographer using a FLIR GF 320 camera.

The Denton City Council promised at a 2013 public meeting to monitor air pollution from oil and gas operations. It has not done so. When individual instances of pollution have been brought to the attention of the Texas Commission on Environmental Quality (TCEQ) has dismissed them, claiming they didn’t violate short-term pollutant exposure standards. The videos released today show the pollution to be long-term.

“Citizens shouldn’t have to measure fracking air pollution. That’s government’s job,” said Cathy McMullen, president of the Denton Drilling Awareness Group and Frack Free Denton. She continued, “But when citizens provide proof of pollution, regulators need to investigate, not dismiss the problem. The fact that government neither detected the pollution, nor acted upon previous evidence of pollution, is a main reason why we need to ban fracking in Denton.”


For more information:

Map of Denton with links to all videos:

Regarding the FLIR camera used to take the videos:

Contact:

  • Sharon Wilson, 940-389-1622, swilson@earthworksaction.org

Of Lawsuits and Lies

With all those piggy bank ads from the other side, people are wondering about lawsuits and the proposed fracking ban. Won’t we get sued? Will it cost tons of money?

These are indeed important questions. We encourage voters to think this through with a level-head (rather than get caught up in the industry scare tactics). Because once you do that, you will find two things: 1. the proposed ban is smartly written and legally sound; 2. defending the ban will not cost anything close to what they are threatening us with.

To make a complex issue more digestible, we’ll slice things up into five main points.

1. The mere fact of a lawsuit. Most likely, the city will be sued once the ban passes. Though that is certainly not a trivial affair, we should keep this in perspective. It’s worth remembering that the City of Denton regularly finds itself in lawsuits. The mere fact of a lawsuit should not cause us to shudder. When an issue is of vital importance, it is nearly impossible for it to not find its way to court. The courts are forges where we test the mettle of competing claims to justice. We can and often do take a different attitude toward lawsuits: not fear, but conviction. Our rights to clean air and water and the peaceable enjoyment of our homes are worth fighting for. The industry’s ads say lawsuits will “waste” city tax dollars. Since when is it a “waste” to protect our homes and families?

2. The cost of a lawsuit. The industry claims a lawsuit is not just a waste, but will cost Denton “millions.” But we don’t have to guess how much it will cost. Other cities around the country are defending bans against industry lawsuits. How much has it cost them? $38 to $125 thousand — a small fraction of Denton’s $4 million already set aside for legal costs, far less than the “millions” industry claims, and money well spent to protect our air, water, and property. (We’ve got word from Longmont’s attorney that their ban has cost $125k to defend. The source used in the below meme states $109k for three Colorado cities. Even at the higher figure, the point still holds: this is far from “millions” and is about 3% of the funds that have been set aside).

piggy2

3. A preemption lawsuit. The ban is not pre-empted by state law. As Tom Phillips even acknowledges, Texas home-rule cities have the power to “regulate exploration and development of mineral interests.” He leaves this part out, from the Texas Municipal League: “…home rule cities have the inherent authority to do just about anything that qualifies as a ‘public purpose’ and is not contrary to the constitution or laws of the state.”

That is pretty sweeping legal authority. You can find other strong claims about home rule powers in the Texas Local Government Code, which, for example, grants home-rule municipalities the power to regulate the location of industrial activities and to “define and prohibit any nuisance within the limits of the municipality and within 5,000 feet outside the limits” and the power to “enforce all ordinances necessary to prevent and summarily abate and remove a nuisance” (Sec. 211.003 and Sec. 217.042).

There is a long history of courts upholding municipal regulations on industries that are often also regulated at the state level. The basic rationale is that the purpose of municipal regulations is different from state regulations. It was on this basis that the New York appellate Court upheld the Town of Dryden’s ban on fracking.

Just because the state of Texas seeks to foster and promote mineral development does not mean that Texas cities have to capitulate to their interests. The city also has legitimate and legally recognized interests in protecting community integrity and citizen health, safety, and welfare. The proposed ban on hydraulic fracturing is a reasonable exercise of the powers of local government.

The state of Texas has adopted new rules for hydraulic fracturing in Texas. Those rules are found in the Texas Administrative Code; however, the new rules do not preempt municipal regulation of hydraulic fracturing. First, there is no doctrine of implied preemption under state law (meaning that just because the State enacts legislation does not imply that a city is powerless to address the issue) and second, for any municipal regulation to be preempted by state law, the State Legislature must do so “with unmistakable clarity.” There is nothing in the new State rules that specifically preempt the City from adopting the ordinance as proposed.

Finally, you should read this peer-reviewed article by an independent attorney who points out the fact that Texas cities have a perfect winning track record in lawsuits against the industry. Texas home rule cities, like Denton, are Texas tough. From that article: “Texas common law generally favors municipal authority to regulate oil and gas activities…. every direct challenge to a city’s police powers has been soundly defeated” (p. 372).

piggy bank

Saving what’s really valuable…our air, water, safety, and health!

4. A takings lawsuit. Despite their confident assertions, there is nearly no established case law in Texas on this issue. An independent law firm, however, has made a very strong case that the ban is not a taking of private property. The biggest reason for this is that the ban only applies to hydraulic fracturing (a secondary recovery process) not drilling. There are 18,000 conventional wells in our area that do not require fracking to produce gas. Furthermore, even after the ban, all of Denton’s 281 gas wells will continue to produce gas. The ban does not turn off some magic valve on already producing wells.

The ban mirrors the long-standing legal tradition of prioritizing health, safety, and welfare when it conflicts with maximization of private property rights. It does so without depriving mineral owners of all economically viable uses of their property.

There is just one good case law precedent for this in Texas. And it favors our position. It refers to a valid ordinance in Houston that is more restrictive (because it bans all drilling) than the proposed fracking ban in Denton. A very recent ruling by the Texas Supreme Court upheld a lower court’s ruling in favor of Houston. Their more restrictive ordinance was upheld and they did not owe anything to any mineral owners.

The article cited above notes that the Fort Worth Court of Appeals ruled “any deprivation resulting from a lawful ordinance enforced pursuant to the legitimate policing authority of a municipality does not constitute a loss of property without due process under the law… the reasonableness of a municipal ordinance is presumed and considered controlling by courts ‘unless the unreasonableness of the ordinance is fairly free from doubt’” (p. 371). Consider fracking less than 200 feet from homes in Denton, which is the reality without the ban. Remember the dozens of health complaints from nearby residents, and recall that that situation will happen again and again as the city grows despite years of attempts to regulate it at the local level. There is no way one could say a ban in such a situation is clearly unreasonable.

Just because a dangerous process has come along that allows maximization of one’s mineral interests, one is not endowed suddenly with an unimpeachable right to use that process with impunity, especially in a situation where health and safety regulations can be systematically ignored.

The ban is very defensible. But imagine the worst case scenario where it is overturned by a judge. All the minerals will still be there. That’s how this is different than surface takings cases where the state, say, paves over your yard, fences it in, and calls it State Highway 57. In that case, you have been clearly deprived of your property. But even in the unlikely case of a ruling against the ban, no one will have taken any minerals or rendered them unusable.

5. Vested rights. Here is what the industry doesn’t want you to think about when it comes to the legal dimensions of the ban. It is written to bypass their claim to vested rights. The industry is claiming that they have 10,000 acres of Denton and 281 existing gas wells all grandfathered under older laws. Then they turn around and say we just need to work on more “responsible” rules when they know darn well that any rules we pass won’t apply to them and they can go on with business as usual.

That is, unless we pass the ban. Why? Because the ban treats hydraulic fracturing for what it is – an aspect of business operations, not a land use. The vested rights or grandfathering only applies to land uses. In other words, the ban close the loophole they have been exploiting. It is the only way to prevent the mass industrialization of our neighborhoods, further poisoning of our air and water, and further drags to our economy and property values.

A City Rising Up

We’d like to thank We Denton Do It for inviting some reflections on why Denton needs to Vote FOR the Fracking Ban. You can find that essay here, complete with must see videos of emissions from frack sites in Denton. Text only is pasted below:

Eight months ago, we initiated a citizens’ petition to ban hydraulic fracturing in the city limits. That was the spark. We have since been humbled to watch the people of Denton fan that spark into a flame that is lighting the path toward a brighter future – a future when parents can set down their heavy burden of worry about the specter of fracking near their homes.

We can see that possibility now. On November 4, we can write the story of a new tomorrow for Denton. What was going to be a tale of industrialized neighborhoods and poisoned playgrounds can become the story of a vibrant city, proudly announcing its right to self-determination.

We felt a shift the moment we announced the petition for the ban. People came out from the dark corners of apathy and hopelessness. They rekindled a sense of citizenship and put their creative talents in service of the commonweal. And now we can feel our city rising up. Now we can see a new dawn on the horizon. Now we can hear the voices of the people. We are saying in unison: this is our air and our water. This is our health and safety. This is our Denton and we are taking her back.

city rise up

Make no mistake. As these videos show, fracking is uniquely invasive, secretive, and toxic. A blowout in Denton last year released thousands of gallons of hydrochloric acid and proprietary chemicals. Nearby homes were evacuated. A new report shows chronic emissions of benzene at a frack site by McKenna Park. Fracking is a major reason why our area has the worst air quality and asthma rates in the state.

Arsenic and fracking chemicals were just found in water wells near Denton. To date, fracking has contaminated over 1.6 billion gallons of our freshwater forever. And a growing body of peer-reviewed research shows the health impacts, confirming what Denton families near fracking have long said: headaches, nosebleeds, breathing difficulties, nausea, and sleepless nights. Even the CEO of Exxon Mobile sued to keep fracking away from his home, citing well-grounded concerns of property devaluation.

For years, we tried to negotiate with the industry. We asked for some simple things. Could they install devices to reduce pollution? Could they eliminate the use of toxic waste pits? Could they stay at least 1,200 feet away from homes, parks, and schools?

Their response: “no, we don’t have to pay attention to your rules.”

Well, we have their attention now.

They have unleashed a flood of deceptions and distortions. But they have underestimated the intelligence of Denton voters. Every slick mailer of breathless hyperbole only strengthens our resolve. Every trumped up threat only emboldens us. Every bogus economic claim only swells our numbers as we learn that each acre of fracking actually means more pollution and less economic productivity.

They are hoping we will roll over at the prospect of a lawsuit. But we know the ban is legally sound and that this is a fight worth waging, because the very soul of our city and health of our bodies are at stake. We will not be bullied any longer.

The brighter our light grows, the more desperate they get. They’ve resorted to bizarre claims about our swing sets falling into disrepair after the ban. They are self-imploding, spinning out accusations of Russian conspiracies like a trail of debris from a dying star.

95% of donations to Frack Free Denton came from local citizens. Compare that to 0.2% from the other side. This is what it looks like when the people stand up.

Denton is on the rise. Now is the time for action. Everything hinges on the vote.

On your vote.

Vote FOR the ban and together we write the story of a stronger Denton.

Polka your way to the polls!

Denton’s Brave Combo

The world-renowned but still very much local Denton band, Brave Combo, has graciously offered to put on a show in support of a Frack Free Denton. Early voting starts on the 20th so come out, celebrate, dance, and most importantly VOTE!!

Local puppet troupe Puppets for the Planet will open with a musical comedy on fracking featuring the Frackettes! Also rumors of a frack free flash mob to take place, come catch all the fun!

Concert info:
Monday, October 20th, 7pm
Quakertown Park, 700 Oakland St.
Denton, TX 76201

Sign up for the concert on Facebook: https://www.facebook.com/events/773527429352353/
Follow the Live Stream here:  http://ustre.am/1ihBv