Cathy McMullen shook her head as a year of hard work went down in flames.
The leader of the Denton grassroots group that spearheaded the state’s first voter-approved ban on fracking last fall felt powerless as state lawmakers tossed the Denton ban onto the ash heap earlier this year. On a drive back from Austin, McMullen thought that after years of fighting, her activist days might be over.
But when she got home, her phone continued to ring.
“There were groups from all over Texas asking for advice about how we did this and that,” McMullen said. “I was telling them which agency to call and what rights you have ... It is amazing when you start reaching out to people how they want to be involved.”
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McMullen is now joining with others across the state to form what they are loosely calling the Texas Grassroots Network to not only monitor energy industry activities but to find ways to recruit candidates and influence public policy — locally and statewide — on oil and gas drilling.
So far, members of the group have met in Austin and Arlington to talk about strategies and network. McMullen and others also testified at last month’s Environmental Protection Agency hearings in Dallas on methane emissions from oil and gas drilling.
House Bill 40 includes a four-part test for allowing cities to regulate drilling operations above ground, such as emergency response, noise and setbacks. But the law says those controls must be “economically reasonable” and can’t hinder or prohibit the work of a “prudent operator.”
The group is still in its formative stages, described by one activist as “a group of groups.” Another said it’s too early to say exactly what it hopes to do besides hold politicians and policymakers accountable.
“If anyone wants to know who is in charge, everyone is in charge,” said Sharon Wilson, Texas organizer at Earthworks Oil & Gas Accountability Project.
Dr. Anne Epstein, chairman of the board of health for the city of Lubbock, has been talking to McMullen and others and says that a lot of citizens are unhappy because they feel that state lawmakers stripped away local control over oil and gas drilling in the last legislative session.
“I think people are angry. I think it is possible that people who didn’t think they had an opinion about fracking are angry about the challenge to local control,” Epstein said.
Denton fracking bill
What set fire to this new grassroots uprising was the passage of House Bill 40, commonly known as the “Denton fracking bill.”
Passed after Denton became the first city in Texas to ban hydraulic fracturing, it reasserts the state’s control over oil and gas drilling. HB40 prohibits cities from imposing such a ban, giving them only limited control over the oil and gas process within city limits.
The oil and gas industry pushed hard to not only get rid of the Denton ban but to prevent it from being repeated elsewhere. Industry leaders and lawmakers as well as the governor said they hoped it would end a patchwork quilt of regulations across the state.
“HB40 strikes a meaningful and correct balance between local control and preserving the state’s authority to ensure that regulations are even-handed and do not hamper job creation,” Gov. Greg Abbott said when he signed the bill into law in May.
The new law includes a four-part test for allowing cities to regulate drilling operations above ground, such as emergency response, noise and setbacks. But the law says those controls must be “economically reasonable” and can’t hinder or prohibit the work of a “prudent operator.”
To provide some comfort to cities with longstanding ordinances, such as Fort Worth, the bill contains a “safe harbor” provision that says any ordinance or other measure in effect for five years that has allowed drilling should be considered commercially reasonable.
State Rep. Drew Darby, chairman of the powerful House Energy Resources Committee that wrote HB40, defended the new law by saying it put into writing what cities are allowed to regulate.
I have cautioned both parties not to rush to the courthouse.
State Rep. Drew Darby, R-San Angelo
“We did some great things for the city,” said Darby, a Republican from San Angelo. “It set into statute what they have the power to control on the ground as long as it is reasonable. Before they had assumed those rights, but they were never in writing.”
While he expects a continued debate and legal challenges about what is considered to be “commercially reasonable,” Darby said lawmakers intentionally left it flexible to allow for negotiations about what is best for a particular community.
“Commercially reasonable is there to promote discussions between the oil and gas industry and the cities and hopefully we are seeing that,” Darby said. “I have cautioned both parties not to rush to the courthouse.”
So far, cities across the state are taking a “wait and see” posture regarding HB40, said Snapper Carr, a lobbyist for the Texas Municipal League, which initially opposed the legislation. He said most of the cities are working through the statute without any case law for guidance.
The decline in oil and natural gas prices also has cut back on drilling activity, meaning that there have been fewer opportunities for conflict to develop, Carr said.
“If the industry listens and lives up to the stated intent of this, we’re not going to see cities bring up a big effort at the statehouse to look at this again,” Carr said. “But if they take an approach and are real hard-lined about how HB40 applies, it will be an ongoing fight for several sessions.”
They threw us in front of a freight train and let oil and gas run over us
Tammy Vajda of Flower Mound
In Fort Worth, HB40’s passage triggered internal discussions but little change in policy, said Randle Harwood, the city’s planning and development director. Fort Worth’s ordinance was praised during the legislative debate as a model for the state.
“It has made us more cautious to looking at our ordinance, but we haven’t had a need to,” Harwood said. “We’re still applying our ordinance and there is some concern if somebody says ‘reasonable,’ then our attorneys look at it, which we didn’t do before.”
“Get the Frack Out of Here”
While the seeds of this grassroots movement are just being sown, it is re-energizing those who fought against urban drilling in the past.
Activists, especially those in the 5,000-square-mile Barnett Shale in North Texas, said that when they were developed their ordinances they were simply protecting the health and safety of residents, filling a void in state regulations.
Tammy Vajda of Flower Mound said her city’s ordinance — which the city’s website touts as one of the most stringent in North Texas — was written with citizen and industry input in 2010 and 2011. The Flower Mound ordinance establishes a 1,500-foot setback between any well and a home, park or public building. Oil and gas operators routinely say that large setbacks are not economically reasonable.
The Texas Grassroots Network is called a “group of groups” where everyone is in charge
Vajda called the new network a “group of groups” and that she is involved because of her concern about the future. Vajda also said it is unfair to blame Denton for bringing about HB40; the industry has been trying to clamp down on community regulation for years.
“Since 2009 they have been trying to take municipal authority away and the towns fight it,” Vajda said. “To me, they threw us in front of a freight train and let oil and gas run over us.”
Diane Harris and Michael Guidoitti were involved in the battle against XTO Energy’s efforts to drill in Southlake in 2011 and 2012. They were leaders in the Southlake Taxpayers Against Neighborhood Drilling, which posted eye-catching “Get the Frack Out of Here” yard signs.
Guidoitti said it is too early to say exactly what the group hopes to do, since the Legislature is not back in session. But he said they do hope to influence legislation and back candidates who support their positions.
“I think there is a great deal of concern over the way the current Legislature voted on this bill and there certainly is an interest in supporting candidates who have a different perspective on legislation. ... That is the only way to change it,” he said.
Tricia Cortez with the Safe Fracking Coalition in Laredo said she’s had dozens of contacts with the network, including having McMullen talk at a town hall meeting via Skype. Cortez also traveled to Dallas to testify at the EPA methane hearings.
Cortez said Laredo is on the southern edge of the Eagle Ford Shale, where horizontal drilling hasn’t been an issue until lately. But she said it became apparent that Laredo’s ordinance, written in the 1970s and updated in 2000, inadequately protects the citizens.
“They are a really good resource and they are a lot more seasoned in the politics to get an ordinance that is better for the people,” Cortez said.
McMullen said she was beaten down after the Denton drilling ban campaign, but now says she “wants to stick with a fierce but calm determination to right the wrong that HB40 wrote.”
“We need a calm, reasoned group of people who have been in this for a long time,” McMullen said. “I don’t think it will be a big change overnight but I do think that we’ll be able to get some big changes to HB40 with our grassroots efforts.”
“We realized a long time ago you can’t count on the municipal or state government to do what is right. You have to get a large majority of your voters to get them to do what is right,” she said.