The divide in opinion over the issue of fracking is vast. No one contends that it’s pleasant to live near a fracking site—even the CEO of ExxonMobil sued to stop a fracking operation from being built near his backyard in North Texas. But fracking also addresses a very real need for energy that none of us can deny. (Even if you drive an electric car and live in a solar-powered house, the organic tomatoes in your sandwich made it to the market in a vehicle powered by gas.) The issue is complicated.
Fracking is an effective means of obtaining oil, but it also has very real environmental costs—both in the immediate sense (it doesn’t appear to be pleasant to live next to) and in the bigger-picture sense (those earthquakes in North Texas are quite a curious coincidence, and expending huge amounts of water in a state with drought problems should make anybody nervous).
But the question “Is fracking good or bad?” isn’t really the issue in the law signed this week by Governor Abbott, which overturns the ban that the city of Denton passed on fracking and prevents similar bans from going into effect in other cities. As the Texas Tribune reports:
Saying Texas needs to avoid a “patchwork of local regulations” that threaten oil and gas production, Gov. Greg Abbott on Monday signed legislation that would pre-empt local efforts to regulate a wide variety of drilling-related activities.
“This bill is so incredibly important,” the Republican said at a state Capitol ceremony. Flanked by the measure’s sponsors, he said House Bill 40 does a “profound job of protecting private property rights.”
Intended to clarify where local control ends and Texas law begins, the bill is the most prominent of the flurry of measures filed in response to Denton’s November vote to ban hydraulic fracturing within city limits.
The bill that passed limits the ability of local governments to determine what sort of fracking regulations they want to create. Instead the bill ensures that the majority of regulations are determined by lawmakers in Austin, who seem a bit more enthusiastic about the idea that a fracking operation could launch in someone else’s backyard than the folks in Denton were about it happening in their own community.
The regulations that are allowed are limited: They include “fire and emergency response, traffic, lights, and noise—but only if such rules were ‘commercially reasonable,’” the Tribune writes. “The language also allows cities to enact some setbacks between drilling sites and certain buildings.”
What that exception means in practical terms is unclear, especially with language like “commercially reasonable” that’s vague enough to be at a judge’s discretion. But the larger point here is clear: as far as the Eighty-fourth Texas Legislature is concerned, “local control” is a fine principle in theory, but when local authorities attempt to regulate something that the Lege doesn’t want regulated, that principle can be ignored.
As a result, the critics of HB 40 go beyond the usual environmental groups and activists. Conservative blog HotAir.com weighed in, taking shots at the “towns, cities, or counties around Texas [that] have been listening to their liberal, green-minded activists” who “give energy companies fits as they struggle to figure out where and how they can do their work.” But author Jazz Shaw also went on to express some deep ambivalence about how the law signed this week actually works:
He said that he was protecting private property owners from ‘the heavy hand of local regulation.’ This is pretty much the exact opposite of what conservatives are normally up in arms about, when the federal government is imposing its views on state and local governments against the better judgement and wishes of residents. It would be disingenuous of me at this point to not admit that I’m fully on the side of expanding energy exploration here, as any long time reader already knows. I think these local bans are counterproductive, based on faulty “science” and have hindered potential economic recovery all around the nation.
But for the most part, the bans are being put in place at the local level by village, city or county governments. These are the entities which are most directly tied to the will of the voters and they deal with issues specific to the needs of the community. No matter how misguided, these are the choices that local voters make and they usually have to live and learn from them. How do we align fidelity to small government conservative principles with the idea of the state (or federal) government stepping in and overriding their choices? I may completely agree that the city council is doing the residents no favors by cutting them off from the ability to lease their lands for energy exploration, but it really comes down to a sort of zoning issue at the end of the day, doesn’t it? And isn’t that precisely the sort of question which conservatives want handled on a case by case basis at the local level and not by Uncle Sam? (Or Austin or Albany or whichever other state capital you prefer.)
Shaw’s concerns about a central government overriding a local government’s ability to represent the will of the people on the issues that affect them most is ideologically consistent—something it’d be hard for anyone in Austin who talks about the “heavy hand” of overregulation to claim.
And, indeed, fracking hasn’t been the only issue on which local control has been euphemized into “patchwork regulations” that need to be overturned by the Lege in this current session. The Legislature considered a bill that would have prevented municipalities from regulating how companies like Uber and Lyft work within their own city limits, and similar bills denying cities the right to ban plastic bags or the cutting down of heritage trees have come up in the session as well.
Philosophically, Abbott argues that giving local governments the right to determine for themselves how they want Uber operating in their boundaries, or if they want to restrict plastic bags—or, of course, to ban fracking—is an example of the “Californization” of Texas that he’s there to stop. He discussed his opposition to local control in January:
“Texas is being Californianized and you may not even be noticing it,” Abbott said, addressing a downtown Austin conference hosted by the conservative Texas Public Policy Foundation, an influential think tank. “It’s being done at the city level with bag bans, fracking bans, tree-cutting bans. We’re forming a patchwork quilt of bans and rules and regulations that is eroding the Texas model. . . . That is contrary to my vision for Texas,” Abbott said. “My vision is one where individual liberties are not bound by city limits. I will insist on protecting unlimited liberty to make sure Texas will continue to grow and prosper.”
Of course, there’s no such thing as “unlimited liberty,” because different people want different things. And a governor in Austin determining that what’s right for Houston is also right for Abilene is hard to describe as a vision for “unlimited liberty” in the first place.
But ultimately, the question comes down to whose liberty should be unlimited—passing any law by necessity denies someone some amount of liberty, as the people of Denton lose the right to determine if they want fracking banned in their city. It’s not necessarily a surprise that the Legislature opted for the liberty of the oil and gas industry in this matter—golden geese and all of that—but it’s never anywhere near as cut and dried as a politician’s soundbite makes it seem.
(AP Photo/Tony Gutierrez)
