THOMAS HEDGES, PRODUCER, TRNN: Denton, Texas is the site of an ongoing battle between its residents and the oil and gas companies that want to drill within its city limits. As one of the most fracked cities in America, Denton stands not only as the birthplace of a practice that exploded 20 years ago, but now is its new frontier. Fracking involves pumping millions of gallons of water and chemicals deep underground to free gas trapped in shale rock, but studies have linked it to health, environmental, and water risks.
When the town approved a straight ban on fracking last year, the oil and gas industry responded with lawsuits and pushed the state to pass House Bill 40, a harsh piece of legislation that could serve as a blueprint for other states that want to quell popular dissent.
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ADAM BRIGGLE, UNT ASSISTANT PROFESSOR: To understand why they did that you have to go back to November 5, the day after the vote for the fracking ban.
HEDGES: Adam Briggle is an activist with Frack Free Denton as well as an associate professor at the University of North Texas.
BRIGGLE: The industry knew that our ban was likely defensible under the current legal regime at the time. And so they spent much of their effort trying to buy a new law down in Austin, essentially. And that’s what HB 40 is. It’s a law that everybody agreed made our ban at that point unenforceable.
So the reason to repeal the ban had to do with those existing lawsuits. Because we had to find some way to get out of those lawsuits. And so Denton city council I think ultimately made the decision it’s better to repeal the ban than to have it go to a court where it would face a near-certain ruling against us, that it would be unconstitutional. And what would be bad about that is it would give HB 40 some legal precedent, and it would become something more than just the product of a corrupt political process.
So we were really looking for a long-term strategy here, and picking a different battleground to fight on.
HEDGES: Briggle is one of three activists, along with filmmakers Candice Bern and Eric Graham, the Real News spoke to about the battle over fracking in Denton.
BRIGGLE: What is not getting a lot of press, HB 40 undermines and reverses an 85-year tradition that was in place in Texas. It’s a tradition that didn’t have a name and it wasn’t a statutory tradition, but it was upheld through the court system. If you look back over the last 85 years, municipalities had beat the industry every single time the industry has challenged local regulations. And that’s because the courts were applying what I call a community reasonable test, which is they looked first to defer to local government’s judgment about what they need to do to protect the health and safety of their citizens. And that’s why the cities had such a long winning track record.
This new four-part test that HB 40 establishes, really the key to it is that term commercially reasonable. That becomes a new standard which is the exact opposite of community reasonable.
HEDGES: That’s despite 59 percent of voters in Denton approving the ban in November. The ballot initiative also withstood the $700,000 influx of campaign money companies like Chesapeake Energy funneled into the effort, ten times what Frack Free Denton raised.
Bernd isn’t surprised, because she says that HB 40 is part of a nationwide effort to shrink local jurisdiction and transfer it into the hands of corporate entities.
CANDICE BERND, FILMMAKER, ASSISTANT EDITOR AT TRUTHOUT: You know, it’s a law that erodes local control and local democracy. And it’s also connected to ALEC, the American Legislative Exchange Council. Basically these guys are a shadowy corporate bill mill, and what they do is they get together in a room, and it brings together the corporate lobbyists, the corporate representatives, and the lawmakers and they basically vote on which legislation will be introduced in state houses across the US, and that’s what HB 40 is.
Phil King is a co-author of HB 40. He serves as the national chair of ALEC this year. He also received $41,000 in oil and gas contributions in the 2014 election cycle. Drew Darby, that, the primary author of HB 40 received close to $65,000 in oil and gas contributions in that same election cycle, that’s from the Texans for Public Justice.
HEDGES: In some ways the town’s fierce opposition to the drilling process, coupled with the oil and gas industry’s itch or need to develop Denton, has created a test tube scenario whereby corporate forces can explore and experiment through new legal avenues.
That’s what the American Legislative Exchange Council, or ALEC, is doing in Denton. They’re using a dual strategy of passing preemptive laws like HB 40 and also overwhelming Denton with lawsuits.
BERND: ALEC is already a sort of institution that undermines democracy, and they’re writing rules that simply eviscerate it that much more. So we’re just looking at the erosion of democracy on many levels here. And now you’re seeing the same sort of preemption strategy being used in Oklahoma to undermine local control, local regulations of oil and gas, as well as Florida.
And they’ve also used this preemption strategy again, you know, to beat back other sort of progressive wins such as minimum wage hikes, as well as paid sick leave. So this is broader than even oil and gas.
HEDGES: Bernd and Graham are currently working on a documentary that chronicles the fight in Denton over fracking.
GARRETT GRAHAM, FILMMAKER: After Denton became the first city in Texas to successfully ban fracking, we thought that our job as documentary filmmakers was pretty, pretty done and over.
And it was actually in the process of editing together what would have been a short documentary about the successful fracking ban into what is now a much longer, feature-length documentary about a much broader movement. Not just about fracking in Denton but now, you know, basically a local control, pro-democracy kind of struggle that I think should be relevant to anybody who feels themselves encroached upon by industrial activity, or who feels sort of out-of-town market forces stripping them of their right to determine what happens to their neighborhood, their air, and their water.
HEDGES: As the fight continues the conflict between left and right, Democrat versus Republican is giving way to another narrative. One that pits local welfare against the interests of corporate outsiders. That narrative surfaced in an interview Texas Railroad Commissioner Christi Craddick gave with the Texas Tribune right after the ban was approved in November.
INTERVIEWER: Should cities be allowed to regulate – specifically on the Denton question. Should cities be allowed to regulate that aspect of drilling, if that’s what they decide they want? And your response was, personally, no.
CHRISTI CRADDOCK, TEXAS RAILROAD COMMISSIONER: And I still agree with that.
INTERVIEWER: I thought you guys on the Republican side of the line liked local control.
CRADDICK: Local control is great in a lot of respects. But I think you’ve got a lot – I’m the expert in oil and gas. The city of Denton is not.
HEDGES: What began with preserving local autonomy in Denton has ballooned into a struggle for local autonomy across the state and across the country.
ACTIVIST: So the opposition has paid people $15 an hour to stand at the polls and confuse people and lie to people, and that’s terrible. So we’re going to be the voice of clarity.
HEDGES: The stark battle between community control and commercial control has prompted Frack Free Denton to migrate outside of the city in search of other cities that can form a coalition, and then oppose HB 40 as a united entity.
GRAHAM: Although a lot of people here in Denton are understandably having a lot of hard feelings about what’s been done to what they’ve been working on so hard for so long, I think that the scope of this struggle has really expanded rapidly. And I’m not sure if the oil and gas industry really kind of understands what they’ve done. I think that they’ve thought that they could swat this thing down really quickly and easily with all of their considerable wealth and power. But my hope, and my projection is that they’ve stirred up a hornet’s nest of resistance.
HEDGES: For the Real News, Thomas Hedges, Washington.