Throughout the
United States, especially in communities with existing or potential oil-and-gas
development, outside groups have moved in with a vengeance and agitated the
population—resulting in bans against all exploration for hydrocarbons and/or
the use of hydraulic fracturing. Expensive lawsuits have been filed and courts
have repeatedly declared such bans as “unconstitutional.” The newest domino to
fall is in Texas where Governor Greg Abbott, on May 18, signed House Bill 40
(HB40)—also known as the Denton Fracking Bill—which clarifies that an “oil and
gas operation is subject to the exclusive jurisdiction of the state.”
As was the case in Mora County, New Mexico, the Pennsylvania-based
Community Environmental Legal Defense Fund participated in pushing Denton,
Texas’ fracking ban—passed in November by 59 percent of the voters. In Mora
County, a federal judge declared its drilling ban “unconstitutional.” Courts have
handed down similar decisions against attempts to ban fracking in Colorado and Ohio. But the Texas legislature didn’t wait for the courts to
decide in the challenges to the Denton ban.
Lawmakers
introduced a total of 11 bills aimed at confirming that regulating oil-and-gas
activity is the province of the Texas Commission of Environmental Quality and
the Texas Railroad Commission. HB40 emerged as the final word—making Texas the
first state to pass specific legislation limiting, not eliminating, local
control. The Oklahoma legislature has passed a similar bill and Governor Mary Fallin is expected to
sign it. In New Mexico, the House passed a pre-emption bill, but it was never
brought up for a vote in the Senate.
The Texas law
allows communities to impose commercially reasonable ordinances that regulate
above ground oil-and-gas activity such as traffic noise, lights, and
setbacks—but do not “effectively” prohibit resource extraction. In response to
the new law, Ed Longanecker, President of the Texas Independent Producers and
Royalty Owners Association said:
“This is a balanced approach that protects the ability of municipalities to
reasonably regulate surface activity related to oil and gas development, while
offering the regulatory certainty necessary for our industry operations.”
HB40 was crafted
with input from the Texas Municipal League—which, the Texas Tribune reports, “counts 1145 Texas cities among its members.” The
Texas Municipal League was “initially among the bill’s fiercest critics,” but
its involvement “added language listing areas cities could still regulate” and
other changes that “the Municipal League found more palatable.”
David Holt,
president of the Consumer Energy
Alliance, which actively campaigned against the ban, believes “This
bill struck the right approach. While local government should have some control
over growth, energy development is a statewide issue. Tax revenues go to the
entire state. The state agencies have been regulating production for almost 100
years. An open robust discussion on the proper balance seems to be leading to
good results in most local areas. Once folks have all the facts they can and do
make good decisions. But those who simply say no energy production anytime or
anywhere are doing a disservice to their neighbors and the nation.”
Denton, Texas, sits
on top of one of Texas’ biggest natural gas reserves: the rich Barnett Shale—
producing $1 billion in mineral wealth, according to the Associated Press, and pumping more
than $30 million into city bank accounts. The Texas Tribune reports: “In
some cases, neighborhoods are expanding closer to longtime drilling sites.”
The idea of
fracking, like the Keystone pipeline, is less of a problem itself than what it
represents: more fossil fuels.
In Texas, thanks to
fracking, according to the Wall Street Journal (WSJ), oil production
has tripled in the past five years. The increase benefits Texas by providing
the state with almost $6 billion worth of revenue in fiscal year 2014 through
severance taxes. But it is not just fracking—which has been done safely and
successfully for the past 65 years—that has created the new American energy
abundance. It is fracking combined with horizontal drilling. But horizontal drilling
doesn’t sound bad and fracking does. Plus, the general population doesn’t know
what fracking, short for hydraulic fracturing, really is—making it easy to use
fear, uncertainty, and doubt to scare the public.
In a 2013 report
called Fracking by the Numbers, a group called Environment America
redefines fracking. In a box on page 6, it states: “In this report, when we refer to the impacts of
‘fracking,’ we include impacts resulting from all of the activities needed to
bring a shale gas or oil well into production using high-volume hydraulic
fracturing (fracturing operations that use at least 100,000 gallons of water),
to operate that well, and to deliver the gas or oil produced from that well to
market. The oil and gas industry often uses a more restrictive definition of
‘fracking’ that includes only the actual moment in the extraction process when
rock is fractured—a definition that obscures the broad changes to
environmental, health and community conditions that result from the use of
fracking in oil and gas extraction.”
This inaccurate
definition allows for the recent spate of minor tremors to be blamed on
“fracking,” when, in fact, if they are the result of oil-and-gas activity, they
are reportedly caused by injection wells—which “inject” water that
comes up as part of the drilling process, into wells miles below the surface.
Injection wells, which may be far from the drilling site, can be used whether
or not the well is stimulated using hydraulic fracturing. The U.S. Geological
Survey study states: “Hydraulic fracturing, commonly known as ‘fracking,’ does
not appear to be linked to the increased rate of magnitude 3 and larger
earthquakes.” Yet, anti-fossil fuel groups continue to scare the public with
such claims.
Ed Ireland,
Executive Director of Barnett Shale
Energy Education Council, told me his organization sent out five
different mailings to 36,000 households to counter the misinformation spread by
drilling opponents.
Supporters of the
ban try to claim that it is not a drilling ban, just a fracking ban. However, since the
natural resource underneath Denton is shale gas—meaning natural gas is trapped
in tight little pockets within the rock—the shale must be fractured to allow
the gas to flow out. Conventional drilling methods don’t work with shale. A ban
on fracking is a ban on drilling.
While the
Legislature has acted and the Governor has signed HB40, with it apt to be a
pilot for the national issue and a template moving forward, we likely haven’t
heard the last of municipal fracking bans—despite courts repeatedly shooting
them down.
Earthjustice
attorney Deborah Goldberg, in a CommonDreams.org story on the Texas
legislation, says the people of Denton are not ready to give up yet: “We
have been proud to represent the proponents of Denton’s ban and we know they
will regroup and fight back against this legislative over-reach.”
Ireland says he
won’t be surprised if drilling opponents engage in protests of some sorts
because they have strongly suggested that they will.
One day after HB40
was signed, Colorado-based Vantage Energy announced: “that they were preparing for ‘frac work’ starting
May 27.” According to the Denton Record-Chronicle (DRC), “neighbors
reported seeing production equipment being moved to the company’s well site.”
In response, Adam
Briggle, president of Frack Free Denton, which campaigned for the ban, told the
DRC, he expects Denton residents to continue to fight. In a statement, Briggle
said: “We cannot say how this story will unfold, but we do know this dark
chapter shall not be the last one written.” The DRC reports, in an interview
regarding Vantage’s planned drilling, that Briggle added he: “couldn’t confirm
whether people would stage protests at the site. But it wouldn’t be a stretch
to imagine it.”
Perhaps it is a
good thing, for now, that lower oil prices are providing what WSJ calls “a
natural cooling off period.”
When Oklahoma
Governor Mary Fallin signs its “preemption” bill into law, it will be the next
domino to fall.
The author of Energy Freedom, Marita Noon serves as the executive
director for Energy Makes
America Great Inc. and the companion educational
organization, the Citizens’ Alliance
for Responsible Energy (CARE). She hosts a weekly radio
program: America’s Voice for Energy—which expands on the content of her weekly
column.
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