Published: December 3, 2013
By: Earthworks et. al.
As you know, the City Plan Commission drafted a comprehensive new gas drilling ordinance over the summer, and its fate is set to be decided at a City Council meeting on December 11th. Whatever policy is ultimately adopted will govern any potential future gas drilling operations in Dallas for years to come. Will city-owned park land be open for future drilling proposals? How far away from homes, schools or businesses will drilling sites need to be? Will gas processing facilities and compressor stations be allowed in residential areas? The stakes are as high as they've ever been. We urge you to vote to pass the gas drilling ordinance as proposed by the City Plan Commission and reject any efforts to delay or weaken it.
Gas companies have lobbied hard against the new rules – especially the proposed 1,500 foot setback or buffer zone between drilling sites and residents. Their attorneys have apparently argued that a strong setback requirement would force them to sue the city for taking away industry’s “right to drill” near neighborhoods. It’s unconstitutional, they say. If this sounds familiar, it's because some also suggested a massive lawsuit when the Trinity East drilling permits were being debated. Those applications were denied, of course, and we're all still waiting for the suit. But it's also familiar because another municipality here in D/FW has already provided a perfect test case.
Flower Mound passed a new drilling ordinance that required gas companies to stay at least 1,500 feet away from homes, schools, parks, businesses, essentially anywhere people might be. Some gas companies did not think that was fair, and applied for drilling permits closer than 1,500 feet. Flower Mound stuck to its guns and denied the permits, so the gas companies promptly sued, five times. Flower Mound has won each time. Four cases have been dismissed and one case is pending, but it has been inactive since being filed in 2010. Municipalities have the authority to enforce rules designed to protect their residents. Under previous state and federal rulings, determining the constitutionality of an ordinance includes an examination of the character and motivation of the governmental action. When considering setback requirements, Dallas is legally authorized to assess the role of the public health, safety and welfare in setting minimum distances. If that weren’t true, then any setback distance above 300 feet – the weak, default state law for gas drilling – could be labeled as unconstitutional.
The heart of this policy is the idea that residents should be able to enjoy their private property and quality of life without being subjected to the negative impacts of a nearby industrial operation. Distance has much to do with this. Recent peer-reviewed studies have suggested a correlation between living near gas drilling sites and serious public health risks. Hazardous air and water pollution doesn't stop at property lines. Due to the uncertainty about the public health and environmental aspects of gas drilling, as well as the decrease in property values of surrounding neighbors, municipalities have a legal, justifiable basis for increased setbacks. Several D/FW cities have passed new rules increasing this distance. Fort Worth went to 600 feet, Southlake went to 1,000, Denton went to 1,200, and Flower Mound set the bar at 1,500 feet. No city in Texas has been found to have unconstitutionally restricted property rights due to gas drilling setbacks.
We've had over three years of debate on this proposed ordinance, with a special Gas Drilling Task Force and a wealth of work by the City Plan Commission. It's time for Dallas to set strong standards and ensure that any future drilling operations will include the best possible public health and safety protections. After all, you shouldn't be guided by fear of litigation, but by your resolve to leave Dallas better than you found it. Mayor Rawlings, you put it this way during the City Council vote on the Trinity East gas drilling permits:
“We continue to grow, and there are generally too many unknowns in respect to urban drilling and its effects on our community’s health and safety.… I will be supporting the efforts of our City Plan Commission on new gas drilling ordinances, to make sure the standards are such to ensure the safety of our citizens.”