Clusterfr#ck Denton

Clusterfrack [n.]: A tragic clash of incommensurable values triggered by short-sighted decisions early on and sustained by fracking. In other words: what has happened to Denton.

This should be apparent to anyone who watched last night’s City Council hearing about the proposed gas well ordinance. It laid bare the torturous pas de trois between the industry/mineral owners, land developers, and residents – or, respectively, those whose primary interest in this case is money from gas, money from development, and living safely in their homes.

Well, maybe ‘tragedy’ is too theatrical…perhaps it is just politics: the give and take of different competing private property rights and various ill-defined obligations to steward the common good. But whether tragedy or politics, it’s pretty messy.

The clusterfracking of Denton has been slowing unfurling for about fifteen years. That’s how long it took to spray the city’s territory with the buckshot of nearly 290 gas wells on more than 150 frack sites.

All three interests have always been involved, but the industry held the lion’s share of power right from the get go. That’s not only because of state laws that systematically favor them (especially the split estate and the predominance of minerals). It’s also because most of the early fracking was in relatively sparse areas (thus few residents) with only a handful of landowners many of whom also owned the minerals.

Obviously, as fracking encroached on more residents and as more residents became aware of this uniquely toxic, invasive, and secretive industry, the balance of power began to shift. Residents claimed their greatest victory on November 4^th last year with the ban. Of course, that was short lived and thanks to money in Austin, HB 40 has swung power back to the industry.

But where were the developers throughout the saga of the 2012-2013 ordinance rewrite, the 2014 ban, and the 2015 preemption orgy down in Austin?

One developer said last night that they are basically in the business of maximizing developable land and revenue from it. Now, many of them do far more than that, of course, and generate all sorts of positive values for our community. But given that that is their primary orientation, what do they make of fracking?

As I try to enter into that perspective, I think I’d see fracking as a negative. The actual pad sites chew up developable land (2 to 5 acres). And we are talking about industrial sites that are irrationally either going to be permitted in any neighborhood you build or are already located in an area you’d like to turn into a neighborhood. That’s not going to be good for property values and revenues.

But developers last night didn’t focus on fracking. Rather, they focused on the reverse set back distances that would be mandated when new development encroaches on existing frack sites. In so doing, they started sounding just like the industry — promoting its basic value of dense urban fracking. Members of the industry must be doing lots of self-satisfied finger-tenting to watch all the support coming from what should be their natural adversary.

Did you note the disparity in presentations? Residents and land developers face profound challenges — can we be safe in our homes? Can we use our land at all? By contrast the gas industry was left to contemplate the marginalia — whether we need stone walls or if, really, chain link fences might do the trick after all. There’s little doubt who comes out on top when it comes to a clusterfrack.

Several individual cases were presented depicting how different reverse setback distances from existing wells (either on their land or adjacent land) would impact development plans. Developers showed how reverse setbacks greater than 225 feet would hamper their plans and in some cases even render their land basically worthless.

One of them gave a fascinating rough calculation. It is something like this: 150 existing frack sites each with a 1,000 foot setback radius around it means nearly 17,000 acres of land rendered undevelopable. That is about 28% of the entire area of Denton!

So, you want a prediction? – Council will not impose a 1,000 foot reverse setback distance. It will be 225-250 feet. That would render only about 2,000 acres of land undevelopable, about 3% of the city’s area.

I am suspecting that Council will think something like this: one interest (land development) faces such severe negative repercussions, that the reverse setback distances just have to give in and shrink down. (Wait, we could ban fracking, thus opening up all that land for development and protecting residents…oh, yeah…that’s right.)

It was interesting to watch some on Council commiserate with the developers and point out, in effect, “See! Look how much land we are gobbling up with these setbacks!” But who has done the gobbling? The implication at times seemed to be that it is the residents and their (what, hysterical, irrational?) demands for greater setbacks.

But those setbacks are only being considered because of fracking. It is fracking that has gobbled up the land. When I see those big swaths taken out of development by maps with proposed setback distances, I think: Well, there’s the true cost of fracking for you. If you want it in your city and you also care about protecting health and safety, then you are talking about massive opportunity costs. And even just speaking economically that’s bad news, because developing that land will produce far more revenue for the city than fracking ever will (remember this?).

So, the big question is: Where have the developers been all these years? Of course we hear from them now, because their bottom line faces a clear and present danger. But couldn’t they see this coming? Why weren’t they leading the charge years ago to minimize the surface impact of fracking? Why weren’t they speaking up for healthy and safe neighborhoods?

Now that fracking has been forced back on us, how are we going to slice up its off-the-book costs? How much do we make developers and landowners swallow in terms of lost revenues and how much do we make residents swallow in terms of increased risks to their health and safety? That’s the political decision before us.

The great hope is disclosure (or notice): We can have our cake and eat it too by having small setback distances (thus not much lost revenue) and robust disclosure for residents (thus only willingly accepted risks). IF people genuinely consent to the presence of the risk nearby, then who are we to stop them? We can allow for profit maximization and respect the autonomy of residents.

I wish this could be so, but I fear that it is a mirage. Let’s not forget that this was the very issue that tipped us into the ban. Yes, the proposed disclosure rules are better than they were, but that’s not saying much. All residents will not be notified of the presence of fracking and its associated risks…only lot owners. And even if we could get this generation of residents to consent to a reduced setback, they’d effectively be foisting their will on the next generation (i.e., whoever moves in a week, a month, or a year later).

Genuine consent starts to sound pretty unworkable…even utopian in the face of the hard-headed claims of practical necessity. I think we may be trying to make this bitter pill of pragmatism go down more smoothly by swallowing a spoonful of that mythical creature, the “rational man” – this fully aware decision maker who will know just precisely what he is getting himself and his loved ones into.

There is a strong case for keeping the reverse setback distance the same as the forward setback distance. Our local government has an obligation to provide a safe and healthy city for our residents. Sadly, it looks like in Denton’s case that means taking huge swaths of land out of development because the frackers have set up shop will nilly all over the place – concerned, as they are, only with the wealth below and not one jot with the havoc they wreak on the surface.

But, again, we will wind up with very small reverse setbacks. We’ll have homes just as close to wells as if this was all happening back in 2003 when we knew nothing about fracking and might really have thought that was a safe scenario. But this time we’ll have homes that close to frack sites for a different reason…we just can’t afford to give up that much land! That’s the clusterfracking of Denton.

I do predict that Council will impose a 1,000 foot setback distance for new sites, which is the one thing that has the industry spooked (in case we can build out before they can ‘fully exploit’ minerals). That will be a good thing (sadly, about as good as it gets under HB 40). But I’m not sure it will be as important as it sounds.

Why? Well, much of the action will be around existing sites (thus the centrality of reverse setbacks). But the real game is going to be in Master Planned Communities. I’d like to see a map that overlays zoning categories with frack sites. My hunch is that a solid majority of them are out in MPCs like Cole Ranch. In these cases, the pas de trois becomes a pas de deux, because the land owner/developer is also the mineral owner.

Despite the outsized importance of MPCs, the ordinance under consideration largely does not apply to them. They are governed by their own, that’s right, ‘master plans,’ which slot in gas wells wherever the developer would like to put them.

Now, I’ve heard tell that the thinking here is: MPCs are different, because of the coincidence of mineral and surface interests. Surely, they won’t intentionally develop in the way things have happened in Denton unintentionally when these two interests operate separately. No one would clusterfrack on purpose!

I, for one, am not so sure. The best way to maximize mineral and surface property values is to drill lots of wells and build lots of homes. That means, of course, homes close to wells. Another good assurance is to make sure the folks who buy those homes don’t know too much about the gas wells. I don’t see why we would expect them to plan for safe setback distances and robust disclosure policies…and so I don’t see why they are exempt from the ordinance. Don’t get me wrong: I am quite sure there are perfectly valid legal reasons. I’m just saying as a matter of morality and commonsense…

So, we will end up with small reverse setback distances because developers were partly hamstrung by frackers and poor planning decisions and partly sleep-walked into this scenario. And we’ll end up with an ordinance that otherwise does the best we can but that won’t apply to huge swaths of Denton’s frack zones.

I really think our staff and elected officials are doing a great job, considering the circumstances, especially those in place during the reign of HB 40. It is certainly despite their best efforts, not because of them, that the clusterfrack continues. After all, one characteristic of a tragedy is that the protagonists have no way out. We may be able to see just how we will fail…but nonetheless be unable to stop it.