"I do feel very strongly that air-quality measures and the engineering and scientific issues of oil and gas should be regulated at the state level, where the expertise is," Texas Rep. Phil King (R-Weatherford) told a group of North Texans Monday, March 2, during a meeting in his Capitol office about a bill he introduced that would create barriers to a city's ability to regulate the oil and gas industry.
The room was largely filled with people from Denton, which passed Texas' first ban on hydraulic fracturing (fracking) within city limits. Since the ban passed last fall in a landslide victory, state lawmakers connected to the oil and gas industry and to the American Legislative Exchange Council (ALEC) have introduced a number of bills aimed at undermining local democracy, ostensibly to prevent other cities from following Denton's lead.
Activists, however, says these bills would effectively kill local democracy so that citizens would lose the ability to introduce ballot referendums, and local governments would be unable to regulate industry to protect the health and safety of residents.
"The reason that we're here is because the state did a terrible job. That's why the opposition [to oil and gas drilling] is growing," said Sharon Wilson, a Gulf coast organizer with Earthworks, in response to King's assessment.
King continued to assert his confidence in state oil and gas regulators and told the group he plans to move forward with his bills. One of the bills would allow the state to reject a municipal ordinance and the other would require a city to assess the tax revenue cost of any attempt to regulate oil and gas.
At the March 2 meeting, about 40 residents from Denton, Dallas, Arlington, Mansfield, Grand Prairie and Pantego expressed concerns about the state-level regulatory lapses that brought Denton to the point of banning fracking. These lapses are driving many other cities across the state to make their local oil and gas regulations stronger.
As a resident of Denton myself, I watched the city struggle for more than five years to regulate the oil and gas industry's activities within city limits. Yet oil and gas companies refused to follow many of the rules the city adopted when it revised its gas drilling ordinance in 2013, claiming instead that their drilling activities were grandfathered under old rules. Finally, Denton was left with no other option but to ban fracking entirely in 2014, delivering a blow to the industry in a city on the same shale where the drilling technique was pioneered in the '90s.
Years earlier, Denton City Council members had instructed residents to take their concerns about gas drilling to Austin, telling many of my neighbors that their hands were simply tied at the local level. Residents took their advice and traveled to Austin multiple times, but rather than finding the help they were seeking, Austin lawmakers at the time sent representatives of the Denton Drilling Awareness Group (DAG) back to Denton, telling them explicitly that it was a local issue. Now, as it turns out, they seem to be changing their minds.
"We did work on [regulating drilling] at the state level, and Phil King and Myra Crownover and Tan Parker did everything they could to undermine getting anything passed at the state level," said former Fort Worth Rep. Lon Burnam, who now works for Public Citizen, referring to Denton County representatives. "So they've kind of reaped what they sowed."
King's bills are part of a wider strategy emerging in Republican-dominated state legislatures this year to curtail municipalities' regulatory authority, including their ability to pass local ordinances and citizen-led ballot referendums. The legislation often comes at the behest of industries that stand to lose money because of regulations initiated in the municipalities where they operate.
According to The New York Times, eight states led by Republicans have prohibited municipalities from passing paid sick day legislation in just the past two years. Other such preemption laws have barred cities from raising the minimum wage and regulating the activities of landlords. This year, Arkansas passed a law that blocks a city's ability to pass anti-discrimination laws that would protect LGBT people, and bills introduced in six states this session would follow Arkansas' lead.
Many industries, including, most prominently, the restaurant industry and oil and gas interests, are working together this year through ALEC, which generates "model" legislation that advances the interests of its corporate members throughout state legislatures. Rep. King is serving as ALEC's national chair this year and introduced his two preemption bills with Denton's fracking ban in mind.
King denied that his role in ALEC had anything to do with the introduction of his preemption bills and said the bills were not model legislation created by ALEC. The organization's corporate funders have contributed tens of thousands of dollars to King over the years.
Two other bills filed in Austin this session would go even further than King's in gutting local regulatory power: One would prevent any city or county in Texas from banning fracking, and another would effectively kill home rule authority (a city's ability to pass laws to govern itself) so that cities cannot pass local ordinances.
State lawmakers and the oil and gas industry isn't just responding to the blow delivered to fracking interests in Texas, but also hoping to beat back frack bans nationally. Bans on hydraulic fracturing passed in local municipalities across the nation during midterms elections. Those bans, and in particular, Denton's ban - have created a backlash from the oil and gas industry and conservative statehouses in the United States.
Last month, the Ohio Supreme Court ruled that only the state - not cities or counties - has the authority to regulate oil and gas drilling, effectively killing a municipality's ability to ban the drilling practice. But in other states, judges have ruled exactly the opposite, such as in New York's Supreme Court, which in July decided that local governments did have the authority to ban fracking. In another case in Pennsylvania, a court ruled that cities have the authority to regulate fracking, but not to outlaw it.
"The reason all these [preemption] bills are being filed is [state legislators are] in a state of shock, because the people of Denton conducted an electoral revolution and passed this [fracking ban], and now they are reeling from it," Burnam said.
Dentonites and other North Texans living on top of the Barnett Shale formation are fighting a state and industry attack on their right to determine what's best for their communities. They point out the hypocrisy of conservative lawmakers in Austin who rail against so-called "Big Government" at the federal level while simultaneously attempting to strip small municipal governments of their power.
The grassroots activists have also been quick to point out conservative lawmakers' duplicity when it comes to property rights. They have largely framed their arguments at the state Capitol in those terms because state representatives often ignore other valuable environmental and health concerns.
"The whole ALEC team, led by Phil King, is more considerate of the property rights of corporations than they are the property rights of homeowners and individuals, and this is what this battle is really about, because in Texas, the overriding law is deferential treatment to the subsurface mineral right owners over the surface homeowners," Burnam said.
This contradiction was front-and-center during anti-fracking activists' meeting with Sen. Craig Estes about the bill he introduced, which mandates that cities compensate mineral owners if they pass regulations that cut into potential mineral profits.
The activist group argued that mineral owners' rights to extract minerals and earn profits from them conflicts with the property rights of homeowners, because the industrial process of fracking can create property damage and decrease property values, as well as prevent homeowners from enjoying their property due to light, noise and air pollution created by fracking.
Dentonites are also continuing efforts to defend their city's fracking ban at the local level. DAG members, with the help of Earthworks, are intervening in two court cases brought against the city by the Texas Oil and Gas Association and Texas' General Land Office, which argue the city's ban violates the Texas Constitution. The Denton groups asked that the cases be moved to Denton County from Travis County, and the court agreed.
Meanwhile, Dentonites continue to testify at City Council meetings as council members once again work to revise the city's drilling ordinance, which will become the last word on drilling regulations if the city's ban is overturned in court.
Full disclosure: As a resident of Denton for seven years, this reporter, at various times throughout the past five years in which residents have organized against fracking in Denton, has participated in those efforts. To read her personal account of the city's struggle to protect residents' health and safety, see this story.