Texas Cities Prevented from Exercising Democracy

Governor Greg Abbott has signed a bill preempting Texas municipalities from regulating natural gas drilling or “fracking” activities below the Earth’s surface.

The language the Governor used to describe this law is telling:

“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.”

I’d like to just state that Abbott views property rights as superior to political democracy as an abstract proposition, then dust my hands off having demonstrated the essence of modern conservatism.

I wouldn’t be wrong doing that, of course, but the reality is both more nuanced and no less horrible. After all, Abbott is not actually defending property rights in the abstract. He’s defending the right of oil and gas companies to exploit property rights to subsurface minerals (severed from surface property rights, and 80% owned by industry in Denton) at the expense of surface landowners’ rights to their own property and groundwater and against the right of citizens (with or without property) to be free from public nuisances. According to the city’s legal briefs filed in response to industry suits to overturn the ban, these nuisances include

conditions that are subversive of public order and constitute an obstruction of public rights of the community as a whole,” Denton’s attorneys wrote in a legal brief filed Monday. “Such conditions include, but are not limited to, noise, increased heavy truck traffic, liquid spills, vibrations and other offensive results.”

and helped motivate 59 percent of participating voters in Denton to decide that their city would be better off without fracking.

And, while Denton’s ban on fracking was the immediate spur for the industry’s legislative allies to introduce the preemptive bill, the new law covers not only bans on fracking, but any local regulation on the practice whatsoever. Restricting fracking near schools? Near reservoirs? Near parks? Near commercial centers, churches, or homes? No locality can supersede the state’s regulations to suit local preferences.

The bill exposes the absurdity of the ongoing devolution of authority under the “new federalism,” which in principle purports to devolve decisions to the level of government that is most accessible to the public, but in practice seeks to vest more power in the states at the expense of both federal and local authority.

“We have sued the federal government multiple times because of the heavy hand of regulation from the federal government – trying to run individuals’ lives, encroaching upon individual liberty,” [Abbott] said. “At the same time, we are ensuring that people and officials at the local level are not going to be encroaching upon individual liberty or individual rights.”

Maybe it’s just about the fact that the state is the level of government most susceptible to the influence of industry (Eric Lipton just won a Pulitzer for his work on this)?

Interestingly enough, when the property rights oil and gas executives hold in their homes are threatened by the rights the industry holds in subsurface minerals, things work out a bit differently, as Dan Solomon writes for Texas Monthly:

How do we know this? Because one of the opponents of a fracking project in Denton County is Rex Tillerson, CEO of ExxonMobil—a company that proudly touts fracking as an essential part of American energy development. As WFAA.com reports:

Rex Tillerson  has joined a lawsuit to stop construction of a water tower near his estate on Dove Creek Road. That water would be used in fracking, a process to drill oil and gas.

Tillerson even appeared at a Bartonville Town Council meeting to speak against it last November, saying that he and his wife moved to the area for its rural lifestyle. Tillerson told the Council that he had invested millions of dollars into their property to turn it into a cutting horse facility.

To be clear, Tillerson’s stated reasons for the suit that would prevent the fracking water tower from being built aren’t environmental, but cultural: He doesn’t want the noise, traffic, or heavy trucks to disturb his horses or lower his property values. (That didn’t stop folks on websites like Reddit from treating Tillerson’s suit as proof that fracking is unsafe.)

The moral of the story is that any residents of Denton who want to exercise similar control over other people’s property should just get an army of private lawyers and not mess with democracy. And it underscores my contention here that the municipal arena is the most vital place for a revival of democratic politics.

Uniting Citizens after Citizens United: Open Access Article in AMSJ

American Studies and University of Kansas Press have generously supported open-access online publication of my article, which is now in press in the current issue of American Studies.

The article is a think-piece about recovering traditions of public democracy in American cities prompted by two observations I made when the Supreme Court’s ruling in Citizens United v. FEC was announced in 2010. First, the way that liberal commenters on the decision talked about the problem of money in politics (that corporate political expenditures were somehow much worse than those made by rich individuals) made little sense, and the solutions they proposed (empower “small donors” to make more contributions) less sense still, since, anecdotes of grandmothers sending their dimes to campaigns aside, the donor class is roughly coterminous with the wealthiest 10% of Americans. Hardly a triumph of democracy. Second, that there was a major blind spot in the ways that commenters were imagining corporations. While business corporations were set up as antagonists to the non-profit corporation set up as an issue-advocacy group (the latter being legit as a political player in the liberal critique), this position was rooted not as much in an argument about equalizing influence, but in an argument about ensuring the rights of shareholders to keep owning stock while ensuring that the companies they invest in don’t support political speech they oppose. While this is a sort of democracy, it’s not really very satisfying.

So, what else could be done? Because I’ve had a longstanding interest in the legal status of cities and its relationship to spatial forms of inequality, one line of inquiry that occurred to me was that no one, whether liberal nor conservative, nor lefty, was discussing some of the most important corporations of all: cities. Rather than condemning the recognition of a corporate right to speech as applied to businesses (whose owners can speak quite loudly enough as individuals), why not ask what would happen if the rights of cities as corporate speakers were recognized, and if the substance of city speech became an object of public politics?

I wanted to see if I could connect the role of cities in today’s political economy to the diminishment of democracy. After a lot of reading about local government law, the history of urban home rule movements, and the legal theory of government speech, I think I did. You can judge for yourselves. Here’s the abstract:

The 2010 Citizens United ruling has been misunderstood. This essay argues that the FEC’s arguments, which shaped the dissenting opinion and subsequent reform proposals, were deeply rooted in a neoliberal, individualistic, and undemocratic conception of shareholder citizenship that fetishizes the ability of individuals to spend money to influence elections. More democratic politics must come not from rejecting the principle of corporate political activity, but extending it to include cities. Historically, broader doctrines of city power helped to solve common problems and establish the concept of the public interest in diverse urban areas. Social, spatial, and ideological developments associated with suburbanization have helped a neoliberal notion of shareholder citizenship to supplant this public democracy. Recent events demonstrate that new urban social movements might leverage city power to make cities not just venues but instruments of politics.

And you can access the full-text here, again, for free and without an institutional subscription, thanks to AMSJ and KU Press.

“Segregation’s New Geography” by Karen Beck Pooley

This piece is up on Southern Spaces, a reviewed electronic journal published by Emory University. Pooley explores the overlaid geographies of housing equity wealth, school achievement, and racial segregation in metro Atlanta. In light of the recent publicity around the Atlanta Public Schools cheating scandal, it’s important to recognize that the vast majority of African American students in the region live outside of central Atlanta, and the binary between city and suburb no longer effectively describes racial segregation patterns that are considerably more complex.

The Atlanta region provides an important and instructive study of recent national trends. The migration of black Americans back to regions of the South, the suburbanization of blacks and the exurbanizing of whites, the persistent residential segregation, and the increasing segregation in schools, have all played out with particular force in Atlanta. Metro Atlanta’s segregated neighborhoods and schools, which now extend well into suburbia, are not only underserving the current generation of minority homeowners and students, but stand to undercut the life chances of future generations of minority residents as well. As it booms and continues to sprawl, metro Atlanta shows how segregation puts limits on minority homeowners’ ability to build wealth, minority students’ ability to excel in school, and low-income families’ ability to achieve upward mobility.