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The Lie at the Heart of the Denton Fracking Ban

I thought we were finally finished with this.

And then, last Wednesday on the Diane Rehm Show, with another of her typical three vs. one panels, it all came back.

Not only did Texas learn from the Denton Disaster and take steps to prevent it from happening again, but so did Oklahoma, passing a clear ban on cities attempting to regulate below-the-surface issues such as drilling techniques and either blatant or de facto bans on fracking.

During Diane’s show, several called from Denton, and at least one of them repeated the lie that is at the core of the Denton fracking ban, or more specifically, the lie they keep repeating.

What is that lie? “We tried to regulate drilling activity, and it didn’t work. The fracking companies just ignored the regulations.”

Extended dance remix version of the lie: “We passed restrictions in Denton on the gas companies, but they still found ways to skirt the regulations and do whatever they wanted to do.”

This is a lie. Companies do not simply ignore local ordinances, and only the unsophisticated fell for this lie, and continue to fall for it. (Unfortunately, in many places, including Denton, the unsophisticated comprise a 50 percent +1 constituency.)

Here is what actually happened in Denton:

  1. The City of Denton was unprepared and asleep at the switch as far as ordinances is concerned, and had not adequately prepared for the increase in drilling related to the Barnett Shale (other communities on the Barnett Shale did a much better job and didn’t have Denton’s problems).
  2. Furthermore, the City of Denton issued some very unwise drilling permits, which specifically did not expire if they were not used by a certain time (“vested” drilling rights). These permits were issued BEFORE Denton updated its drilling ordinances.
  3. When Denton got around to updating its ordinances, they still had the problem of these previous permits which had been issued, which were vested, and which could not be invalidated ex post facto after the ordinance had been updated.
  4. In recognition of its mistake, the City of Denton could have found ways to deal with these unwise permits. They could have spent city money buying out the rights from the rights holder, etc.  (This would have cost money, but not as much money as Denton has had to spend since). The city did not.
  5. The company holding the vested permit proceeded with drilling. This may have been unwise from a PR standpoint, and almost certainly earned the rancor of other energy companies, but it was legal.
  6. Failing to recognize the problem that a new ordinance can’t invalidate a previously valid permit, and not particularly interested in the niceties of law and public policy anyway, activists in Denton leaped to the conclusion that “regulations don’t work” and decided that only a ban would accomplish their goals, utterly failing to understand that a ban faced the very same issue that the new ordinance faced: The city could not invalidate previously valid permits ex post facto. In other words, even the ban could not stop the holder of a vested permit from drilling within the parameters of that permit.

Of course, I made these points at every speaking and debating engagement leading up to the election, but proponents of the ban were in no mood to be reasoned with.

The other thing that happened in Denton is that environmental groups realized the tremendous public relations value of a ban on fracking in a Texas city, and proceeded to whip the activists up into a frenzy and promise them that the ban would stand and withstand legal challenges (it wouldn’t, and won’t). While many good folks in Denton had sincere concerns about the safety of fracking, at the core of the ban were radical environmental activists who believe we are using too much energy and need to “live lighter on the earth.” You got used, Dentonites. As I kept telling you.

So it simply isn’t true that Denton tried to pass reasonable regulations on fracking but couldn’t get them to stick. Denton passed very workable ordinances, which could have worked and still will work. But they couldn’t invalidate previously issued vested permits. No ban was necessary.

It’s also interesting to note that the City of Denton is going to drop its ban instead of continuing the legal fight. Passage of HB 40 in Texas has given the city an excuse to stop wasting its money on a futile legal defense.

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