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.

5 comments on “Texas Cities Prevented from Exercising Democracy

  1. […] to prevent local governments from acting in the interests of their residents proceeds apace. First Texas, and now neighboring Oklahoma have passed state laws that preempt local ordinances that ban […]

  2. […] Carolina (state pre-emption of local civil rights ordinances) allow state voters to override the will of locals–particularly when race, class, and partisan identifications separate an urban constituency […]

  3. […] I’ve studied and written about this issue in some depth, I would point out that this is one of the best popular accounts of the history of preemption and […]

  4. […] wage and antidiscrimination ordinances, major areas of city-state conflict, although in many states local environmental protections have been preempted, which is increasingly important as the federal […]

  5. […] legislative preemption of municipal action, a serious problem for economic equity, development, and environmental protection. This would avoid the Democratic Party’s fixation on the Presidency and the Senate and […]

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