Arlington City Council denies fracking permit near day care, despite prior approval
On a night where Arlington officials appeared poised to approve more gas drilling near a day care center and homes, the city council denied the permit request by a razor-thin margin after a public hearing Tuesday.
Cheers rang out inside the chamber after council member Rebecca Boxall’s “no” vote flipped the council’s initial Nov. 30 approval of a gas well permit to a 4-5 denial. French energy giant Total sought to drill three more wells at its AC360 site on 2000 S. Watson Road, which sits inside Boxall’s district.
In a statement posted to Facebook, Boxall said she struggled with the decision to switch her vote. But after residents in District 5 spoke passionately in opposition to more gas drilling, she decided to deny Total’s permit request.
“Perhaps my vote will make a difference in how people perceive themselves as citizens and their important place in the governing process,” Boxall wrote. “I hope so, and I hope they will join me in advocating for local solutions to consume energy more responsibly.”
Boxall joined council members Nikkie Hunter, Raul Gonzalez, Victoria Farrar-Myers and Ruby Faye Woolridge to deny the permit. Andrew Piel, Helen Moise, Barbara Odom-Wesley and Mayor Jim Ross voted to grant the request.
Staff from Mother’s Heart Learning Center and environmental activists spilled into the plaza outside City Hall to celebrate the outcome of nearly two years of opposition to Total’s expansion plans in Tarrant County. Mother's Heart is adjacent to the drilling site and serves a student population entirely made up of children of color.
“I was relieved, but not surprised, because there is an overwhelming body of evidence telling (council) this is the right thing to do,” said Ranjana Bhandari, executive director of environmental advocacy group Liveable Arlington. “There is very clear evidence that they did not follow their own ordinance in November.”
Liveable Arlington and Wanda Vincent, the owner of Mother’s Heart, were plaintiffs in a Dec. 30 lawsuit accusing Ross, council members and top city planning official Richard Gertson of not following Arlington’s gas production ordinance when conducting the November vote.
The suit also accused the city of endangering children’s health and discriminating against communities of color living near natural gas operations.
On Wednesday afternoon, Bhandari and Vincent announced they were dropping their suit because their claims were addressed through the permit denial.
“We believe that our lawsuit was a strong motivating factor in the second vote, and we are proud of that victory,” Liveable Arlington said in a prepared statement. “We will continue to monitor the city’s activities related to fracking permits and will be ready to hold them accountable if they violate their ordinances again.”
Boxall said she made the decision to switch her vote before being informed about the lawsuit. Most of the arguments made by those opposed to the gas wells did not play a role in her decision to vote no, she said.
“Efforts to frame energy company Total in the most negative light possible are not helpful,” she wrote. “From my research, they are a reputable and conscientious company.”
Meeting ‘dances’ around lawsuit
Neither activists nor council members explicitly mentioned the lawsuit during the public hearing Tuesday. But Ross questioned Gertson, Arlington’s assistant director of planning and development, on the crux of the suit’s argument that the city violated its own procedures for approving gas permits.
When council members originally voted Nov. 30, they approved a drill zone map that did not include one of Total’s existing wells, which lies less than 600 feet from a residence. That well was approved in 2010 and therefore not part of the council’s decision on Tuesday, Gertson said in a Wednesday interview.
Because the final map did not show wells less than 600 feet from protected buildings, the council could approve Total’s permit with a simple majority of five votes rather than the seven that would be required otherwise, according to Gertson.
Gas companies like Total are required to submit maps that show all existing wells during the application process, Gertson said during the hearing. However, he argued, the council has the power to reshape a drill zone to include only where more wells will be drilled – not the entire site.
“The sole purpose, the only function, of the drill zone is to establish the area where future wells may be drilled,” Gertson said.
To Gertson’s knowledge, this is the first time that the drill zone has been reshaped by a council vote. That could be a product of new language added to Arlington’s ordinance last spring that was meant to clarify the concept of a drill zone, he said.
“It seems like what we've managed to do is just raise more questions,” Gertson said.
In their lawsuit, Liveable Arlington and Vincent point to ordinance language stating that the map must “enclose all the wells on the drill site.” Jennifer Quick, social media coordinator for Liveable Arlington, said the city’s decision to exclude the problematic well from its drill zone map undermined transparency in city permitting.
“The regular ordinance is crystal clear,” she said. “If we’re not going to follow that, then this whole hearing process is kind of a show and dance, right?”
City, company consulted on drill zone
Activists were also concerned with how closely Gertson and other city officials worked with Total’s representatives to develop a map that would earn approval from council. Liveable Arlington obtained communications between Gertson and Total employees through a public records request and shared the emails with the Fort Worth Report and KERA.
An hour before the Nov. 30 council meeting began, Gertson told Total’s Julie Jones and Kevin Strawser that their original map, which showed a “skewed” aerial view, would not prove “without a doubt that the drill zone is totally beyond 600 feet from the houses.”
“I wouldn’t use it,” Gertson wrote in an email. “But it’s your case.”
Jones replied that Total was “definitely taking your recommendation” and revising the map.
By 6:41 p.m. that day, with the meeting already in session, Arlington planning officials replaced Total’s original map – the one approved by planning and zoning commissioners in October – with a drawing that excluded a well measured less than 600 feet from homes.
In a Wednesday interview, Gertson said his communications with Total were “customary” of conversations between a permit applicant and city staff, especially since council raised questions about the actual location of the drill zone. Total’s original map inaccurately depicted the drill zone overlapping with homes, he said.
“They pushed a new map to us. That one was clearer, it had less fine-grained detail on it,” Gertson said. “My role is not to make their case for them, but to help present the information that the council wants to see. It’s up to (Total) to produce the map.”
It’s also “quite common” for city staff and applicants to communicate about permit applications right up to the time that council meetings begin, Gertson said.
“Is it customary for staff to talk to an applicant, whether it's Total or anybody else, about these kinds of things?” Gertson added. “Yes, especially when council wants clarification or answers to questions.”
Will Arlington face another lawsuit?
It’s unclear whether Total will continue to pursue more wells at the east Arlington site or file a lawsuit challenging council’s denial of the permit. Gertson has not heard from Total representatives about the company’s plans, he said.
Under House Bill 40, a controversial state law that prohibits cities from banning fracking, cities are only allowed to implement natural gas drilling regulations on natural gas drilling that are considered “commercially reasonable.” That has typically included rules for noise control and the required distance between drilling and protected buildings, like hospitals and schools.
In November, Ross and fellow council members said they feared an expensive, lengthy lawsuit to explain their support of Total’s permit. If Total sues, it would be the “first real test” of House Bill 40 in state court, said Luke Metzger, executive director of the nonprofit group Environment Texas.
The possibility of legal trouble is a “lame excuse” for city leaders, said Luis Castillo, president of Arlington’s League of United Latin American Citizens.
We cannot live in a world where we don’t want to do things because we're afraid of litigation,” Castillo said in an interview after the vote. “Everything’s possible for litigation, and we’ll just have to deal with it when it comes.”
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This story was produced in partnership with Haley Samsel, the environmental reporter for the Fort Worth Report. Her position is supported by a grant from the Marilyn Brachman Hoffman Foundation. Email Haley Samsel at firstname.lastname@example.org. You can follow Haley on Twitter via @Haley_Samsel.