NOTE: Less than a year after Denton’s fracking ban was enacted, Frack Free Denton and Earthworks are looking to offload the legal costs they created onto the city’s taxpayers, breaking yet another promise that the groups made to convince the city that a ban was a sound policy decision. The move also reflects a troubling and broader tactic of the “local” anti-fracking movement, which at least one green group has admitted will require municipal bankruptcies to be sustained.
by Steve Everley
Frack Free Denton Breaks Promise, Leaves Taxpayers on the Hook for Legal Fees
Last year, as the City of Denton considered whether to ban hydraulic fracturing, public officials and many residents expressed concern over the cost of such a policy. If a ban were enacted, the resulting lawsuits would put taxpayers on the hook for court costs and other legal fees. If a ban were enacted, it was “going to be decided in the statehouse or the courthouse,” Mayor Chris Watts said last summer.
Recognizing that the prospect of future legal fees was undermining their campaign, members of Frack Free Denton publicly proclaimed that the city had nothing to worry about. Help would come, they said, from groups like Earthworks, a national anti-fracking group based in Washington, D.C., and other prominent environmental organizations.
But less than a year after Denton’s fracking ban was enacted, Frack Free Denton and Earthworks are looking to offload the legal costs onto the city’s taxpayers, breaking yet another promise that the groups made to convince the city that a ban was a sound policy decision. The move also reflects a troubling and broader tactic of the “local” anti-fracking movement, which at least one green group has admitted will require municipal bankruptcies to be sustained.
A Promise to the ‘People of Denton’
In testimony last July to the Denton city council, Frack Free Denton campaigner Sharon Wilson “told the council that should Denton adopt the ban, legal help would come,” according to the Denton Record-Chronicle. “I assure you, legal assistance will come,” said Wilson, who also works for Earthworks.
According to the official minutes of that July 15, 2014 meeting, Denton City Councilman Kevin Roden was particularly interested in the prospect of outside legal help, due to the potential costs of a ban:
Council Member Roden questioned Wilson’s statement that legal assistance would come to the City. This issue would likely cause the City to incur a costly fight and asked for more detail of her claim of support. Wilson replied that she could not be specific as attorneys had commitments but other cities had received support. (emphasis added)
A few days after the ban passed, Wilson repeated her promise:
“We need to make sure the city knows we aren’t going away and will support them in keeping their promise to vigorously defend legal challenges to the ban.” (emphasis added)
Wilson does not live in Denton, but she played a central role in the supposed “local” campaign to ban fracking in the city. Frack Free Denton has also proclaimed that Wilson “speaks for us all” on the issue. Earlier this year, she ignited controversy when she compared hydraulic fracturing to sexual assault, a comparison that both Earthworks and Frack Free Denton promoted.
The day after the ban was enacted, the State of Texas, which owns minerals inside the city limits of Denton, and the Texas Oil and Gas Association filed lawsuits alleging the ban was illegal under state law. In early December, Earthworks and the Denton Drilling Awareness Group (of which Frack Free Denton was a project) petitioned to intervene on behalf of the city. The groups were assisted by other national entities like the Natural Resources Defense Council and Earthjustice.
The NRDC said it was “proud to help these two organizations that are fighting on behalf of the people of Denton, and communities everywhere that want a voice in their own fracking future,” adding that the groups were “taking the next step in helping secure the law that they were integral in crafting.”
A Promise Broken
The activists appeared to have followed through on their promise to “vigorously defend legal challenges to the ban.” But after several months of legal fees piling up, the same groups are now looking to extricate themselves from the suit, potentially leaving Denton taxpayers on the hook for attorney fees and other costs.
As the Denton Record-Chronicle recently reported, Earthworks and Frack Free Denton are trying to cut and run:
Local activists and the national nonprofit that helped them with the campaign to ban hydraulic fracturing in Denton have asked to be dismissed from a pair of lawsuits against the city.
The Denton Drilling Advisory Group and Earthworks intervened in the lawsuits last year. They asked to stand with the city as co-defendants against the Texas General Land Office and the Texas Oil and Gas Association.
Representatives from both groups said they wanted to help defend the ban. But on Wednesday, they jointly filed motions of nonsuit, asking the judges to allow them to exit the cases.
Neither Earthworks nor Denton DAG offered a statement on the latest maneuver in a battle that has garnered international attention.
Though the groups were mum, the Record-Chronicle strongly suggested why the activists were abandoning a legal defense they had promised to maintain:
Both the state and industry filed amended pleadings and made new claims against the city under HB 40.
Negotiations to settle the lawsuits in light of HB 40 failed. Moreover, the industry suggested in its pleadings that it may seek attorneys’ fees from the defendants — not only the city but also Denton DAG and Earthworks. (emphasis added)
In other words, the same activists who assured Denton residents that they didn’t need to worry about the legal costs – because “legal assistance will come” – are now trying to offload those costs onto the taxpayers.
Local residents were less than thrilled about the news. In comments posted on the Denton Record-Chronicle, Phillip Sweet said, “When the going gets tough, the fractivists head for the exits!” Bobby Jones, a Denton landowner who led Denton Taxpayers for a Strong Economy, said the activists “are trying to throw the City of Denton under the bus.”
Denton County resident Andy Goin asked rhetorically: “Weren’t these the groups that said ‘Don’t worry about the lawsuits, we’ll be around to help the city fight them’ and ‘We have lawyers lined up’ and on and on?”
Earlier this year, Denton’s city attorney told the Texas legislature that, had taxpayers known what the full cost of the fracking ban would have been, it would have had a “chilling effect” on the election outcome.
Although Frack Free Denton is only now looking to remove itself from the lawsuit, its members had moved on to other advocacy months ago. Despite promising that they were “not laying out a blueprint for anyone else,” and if other cities wanted fracking they should “keep it,” Frack Free Denton’s leaders quickly changed their minds.
In January Adam Briggle, the president of Frack Free Denton, traveled to Louisiana to help a parish try to ban fracking. Cathy McMullen (also with Frack Free Denton/DAG) “recently stepped down as president of the Denton Drilling Advisory Group to work with anti-fracking activists in other cities, including those in the vast Eagle Ford Shale gas formation in South Texas,” according to theDenton Record-Chronicle.
McMullen has also has been helping organize communities against fracking as far away as Idaho.
Meanwhile, Earthjustice – which had pledged its own support to defend Denton’s fracking ban – now says that the ban was “just too severe,” according to KERA News. The group’s managing attorney, Deborah Goldberg, is now “waiting for another town to wind up in court over drilling rules” in order to bring another legal challenge against Texas state law.
A National Trend
The strategy of forcing cities into costly lawsuits is unfortunately a growing trend among groups pushing local fracking bans. One of those groups, the Pennsylvania-based Community Environmental Legal Defense Fund, was recently profiled by Reuters as the authors of more than a dozen legally questionable ordinances nationwide.
The result, according to Reuters: “cash-strapped local jurisdictions find themselves on the hook for defending ordinances in court cases they have little chance of winning.” Thomas Linzey, the executive director of CELDF, which “has never won a case that went to court,” openly admits that taxpayers will have to pay for “ban fracking” activism:
“If enough of these cases get in front of a judge, there is a chance we could start to have an impact within the judiciary,” said Linzey. “And if a town goes bankrupt trying to defend one of our ordinances, well, perhaps that’s exactly what is needed to trigger a national movement.” (emphasis added)
Linzey recently penned a defense of Denton’s fracking ban in the Denton Record-Chronicle.
CELDF and Earthworks are both funded by the Park Foundation, a New York-based organization that funds anti-fracking advocacy nationwide, and which has been called a “hero for fracking opponents.” Park’s president, Adelaide Park Gomer, has even bragged about the foundation’s role in the national campaign against drilling. “In our work to oppose fracking, the Park Foundation has simply helped to fuel an army of courageous individuals and NGOs,” Gomer said.