A Dallas Drilling Scandal Primer

Garbage piling upThanks to everyone who turned out last Thursday for the (abbreviated) public hearing on the Trinity East "zombie" gas permits before the City Plan Commission. Our apologies to those of you who were not allowed to speak by the arbitrary too-soon ending of the hearing. It was one more example of a process gone off the rails when it comes to these permits.

It's now clear that what began as a neighborhood-based effort to fight off irresponsible urban gas drilling three years ago has now grown into not only a turning point for the entire Dallas environmental movement, but as of last week, into the largest Dallas City Hall scandal in years as well. There are suddenly lots of moving parts. Here's a quick summary of what we know as of today.

On Thursday morning, the Dallas Observer broke the story that in 2008 Dallas City Manager Mary Suhm signed a secret side agreement with Trinity East  that essentially turned City Hall into a lobbying machine for the company's gas permits. The first impact of that lobbying was a reversal of the no drill policy in Dallas parks. Only six months after city staff had told the Council and Park Board there would be no surface drilling in Dallas parks allowed, the side agreement Suhm negotiated with Trinity East assured the company that she and her staff were "reasonably confident" they could win permission to drill in parks for the company.

Many Dallas activists have speculated about such an agreement as the only way to explain why city staff seemed to be going out of its way to push through the Trinity East permits, including abruptly re-defining the current gas ordinance on the fly, ignoring or flouting precedents, and declining to bring the usual level of official scrutiny to bear. Suhm and city attorneys kept this document from public view even after years of opposition from neighborhood groups to drilling sites, including Trinity East's. At a time when every city staffer had an obligation to wear the Trinity East agreement on their sleeves, City Hall hid the fact they were working for the company to win its permit. Dallas Councilwoman Angela Hunt has prepared a detailed timeline of Suhm's deception.

Suhm declined to talk directly to the Observer, but instead issued a statement to the Morning News that said, in essence, she was shocked, shocked that anyone could think this side agreement with Trinity was a "back room" deal. Mayor Rawlings is standing by Suhm so far, issuing a statement of support late Thursday that emphasized the "non-binding" nature of the side deal that was "cut," as the Mayor so eloquently put it back in November.  The Observer's Jim Schutze had a take down of both of their official statements on Friday, saying "some stuff just won't spin." 

A growing chorus of groups and individuals are calling for Suhm to resign, as are some Council members like Hunt, and Scott Griggs. Her fate now seems linked to that of the Trinity East permits, since both seem tainted beyond redemption by the disclosure of the side deal. How can any resident or Council member trust what city staff says about the permits? How can any resident or Council member trust that Suhm won't sell them out again?

Meanwhile, the Observer has raised the possibility of Open Records Act violations by the City because it's pretty sure it asked for ALL documents related to the Trinity East permits. Citizens groups and individuals that have been turning in a constant flow of Open Records Act requests for the last three to four years might also have the same gripe.

But they'd have to take a number because four people, including Downwinders Director Jim Schermbeck, Zac Trahan of the Texas Campaign for the Environment, Raymond Crawford of Dallas Residents for Responsible Drilling, and Marc McCord of frackDallas went down to the District Attorney's office and filed a criminal complaint against the City Plan Commission Chair on Wednesday, alleging a violation of the Open Meetings Act prior to the January 10th vote to "reconsider" the Commission's denial of the permits. According to the complaint, Chair Joe Alcantar called members and lobbied them to vote for reconsideration in a practice called "daisy-chaining a quorum" that is explicitly against the law. If the charge is substantiated by an investigation, all subsequent decisions about the permits by the Commission could be invalidated. That would mean reverting back to the original December denial of the permits.

On the political front, John Carona, the Republican State Senator whose district includes the Elm Fork Soccer Complex, sent a letter to Mayor Rawlings, urging him to withdraw his support for the Gas Refinery and Compressor Station proposed for only 600 feet west of the Complex. Democrat State Representative Rep. Lon Burnam of Ft. Worth sent a similar letter, further isolating the Mayor politically.

In all, quite the "goat (act of procreation)", as the Observer's Brantley Hargrove labeled the whole Trinity East controversy last month.

What happens now?

Officially, the City Plan Commission put off any (legitimate or not) vote on the permits until its March 21st meeting. They have now specifically requested the Council deal with changing the current prohibitions against parkland and floodplain drilling before they're asked again to violate the law. So theoretically, the show now moves to the whole City Council, which has scheduled a 1:00 pm Wednesday, February 27th state-mandated public hearing on the city permanently removing park land from the city park system for drilling.

This same hearing has been scheduled twice before however, only to be canceled when the City Plan Commission didn't get around to doing what the Council couldn't bring itself to do first. Up to now the Mayor's strategy was to push the permits through the Plan Commission and Park Board to provide a cover for Council approval of drilling activity in parks and flood plains that's still not allowed. Apparently there's enough resentment about that among Plan Commission members for them to toss the hot potato back to the Mayor and Council. But it does so exactly as the Suhm memo hits and makes political support for the permits more tenuous.

We'll know soon whether the February 27th City Council hearing on turning over park lands to drilling is really on or not. Stay tuned.

Open Meetings Act Violation Filed Against Dallas Plan Commission Chair

(Dragnet(This release was sent out Wednesday afternoon…..)

(Dallas)—In the latest twist over the ordeal of what to do with old gas leases in Dallas, citizens have accused the Mayor’s appointee to the City Plan Commission of taking actions that may have resulted in a violation of the Texas Open Meetings Act while trying to reverse a denial of gas drilling permits for the last of those leases.

A group of four individuals representing themselves and various citizen and environmental organizations filed an official complaint with the District Attorney’s office alleging that CPC Chair Joe Alcantar individually lobbied Plan Commissioners over the phone prior to the CPC’s January 10th meeting in order to win a rare “reconsideration” vote to grant permits for Trinity East’s three controversial gas drilling and production sites in Northwest Dallas.

Lawyers familiar with the statute say if that’s what happened, it could be a violation of the Texas Open Meetings Act known as “daisy-chaining.” Not only would the January 10th reconsideration vote itself be illegal, but any action resulting from that vote – like Thursday’s scheduled public hearing on the reconsideration – could also be illegal.

In a letter to Dallas Mayor Mike Rawlings, City Manager Mary Suhm and City Attorney Tom Perkins, the group referred to the complaint, noting that at least three different Commissioners had independently confirmed that Mr. Alcantar, appointed by the Mayor, systematically called each of them to lobby for the favorable reconsideration vote.

“In this instance, we believe there’s a prima facie case that Mr. Alcantar met (via telephone) with members of the Plan Commission in number more than a quorum to discuss public business in private, the letter reads. “We believe this may constitute a criminal violation of the Open Meetings Act.”

The letter asks Mayor Rawlings to join the group in requesting a full investigation by the District Attorney’s office of the circumstances surrounding the January 10th vote. 

“As a result of our concerns, an official complaint, enclosed, has been filed with the Dallas County District Attorney’s Office. We want this matter fully investigated by an objective and independent third party. We ask that you join us in that call for a full investigation by the District Attorney.”

Members of the groups said that while they don’t know for certain if illegal activity took place, the allegations fit the profile of a City Hall that’s twisting the machinery of municipal government in order to get the result it wants.

“There’s no question that someone at City Hall has been tightening the screws on the City Plan Commission,” said Jim Schermbeck of the local clean air group Downwinders at Risk. “Whether that degenerated into the criminal behavior outlined in our complaint is for the District Attorney to discover.”

Besides Schermbeck, Zac Trahan of the Texas Campaign for the Environment, Raymond Crawford of Dallas Residents for Responsible Drilling, and Marc McCord of FracDallas all signed the complaint and the letter. They also all criticized the lack of transparency that has marked Dallas City Hall’s push for gas permits.

 “Ever since the original gas leases were signed in Dallas, City officials have retreated behind closed doors,” said Molly Rooke of the Dallas Sierra Club. “This is just another example of a back-room deal’ that affects every Dallas resident, but that no one sees until after the fact.”

Others in the group cited recent legal backflips by the City in what to call a proposed gas processing and compressor station facility just a few hundred feet from the new Elm Fork Soccer Complex. Last year it was a processing plant that would have required a special zoning district. This year, city attorneys say it’s only routine drilling equipment.

“The City is desperately pulling out all the stops in trying to get Trinity East’s gas permits approved,” said Zac Trahan of Texas Campaign for the Environment. “They’ve taken ridiculous positions and attempted parliamentary trickery, but this time their tactics may have gone too far.



Reporters have asked why we're not naming the Commissioners who described the Chair's actions. Here's why:

We don't believe anyone but the Chair is responsible for the illegal conduct and we don't want anyone else implicated. We'll talk about what we know under oath as part of an official investigation. If individual Commissioners want to speak to reporters on their own, that's their business, but we're not going to drag them into this just for publicity's sake.

Study: Gas Drilling “Significantly” Increasing DFW Smog

In the middle of another bad North Texas ozone season, a new study by a Houston research consortium concludes that Barnett Shale natural gas facilities "significantly" raise smog levels in DFW, affecting air quality far downwind.

According to the study, ozone impacts from gas industry pollution are so large, they'll likely keep North Texas from being able to achieve the EPA's new 75 parts per billion (ppb) ozone standard.

Author Eduardo P. Olaguer, a Senior Research Scientist and Director of Air Quality Research at the Houston Advanced Research Center, concludes that, "Major metropolitan areas in or near shale formations will be hard pressed to demonstrate future attainment of the federal ozone standard, unless significant controls are placed on emissions from increased oil and gas exploration and production….urban drilling and the associated growth in industry emissions may be sufficient to keep the area (DFW) in nonattainment."

Olaguer's article describing his study was recently published in the July 18th edition of the Journal of the Air & Waste Management Association. It's the first independent study to examine specific North Texas ozone impacts from the gas industry.

Environmental groups say air pollution from natural gas sources is already making it impossible for DFW to meet even the obsolete 15-year old standard of 85 ppb. So far in 2012, five monitors have violated that level of smog despite a state plan that Austin guaranteed would reduce ozone concentrations in DFW to record lows this year. Counting 2012's failure, DFW has been in continual violation of the Clean Air Act for its smog pollution since 1991.

"This study is proof we need a regional strategy of self-defense to reduce air pollution from the gas industry," said Downwinders at Risk Director Jim Schermbeck, whose group has been leading the fight to reduce smog-forming pollution from gas sources for two years now. "TCEQ and EPA are not doing enough to rein-in these facilities. Despite their official plans, our air is getting dirtier, not cleaner because gas pollution is still under-regulated. It's time for us to do more at the local level."

Schermbeck suggested the study could make a difference in the upcoming city council vote on a new Dallas gas drilling ordinance.

"Dallas has a chance to react positively to this new evidence by adopting the nation's first policy aimed at mitigating the tons of new pollution caused by gas mining in its new drilling ordinance. That would be a very large step forward in advancing regional clean air goals."

A city-wide coalition of neighborhood, homeowners, and environmental groups has been urging the Dallas city council to require gas operators to reduce as much air pollution as they release through funding of anti-pollution measures across the city. The Houston Center study gives them a lot of fresh arguments.

According to it, "…oil and gas activities can have significant near-source impacts on ambient ozone, through either regular emissions or flares and other emission events associated with process upsets,and perhaps also maintenance, startup, and shutdown of oil and gas facilities."

In fact, just routine emissions from a single gas compressor station or large flare can raise ozone levels by 3 parts per billion as far as five miles downwind, and sometimes by 10 ppb or more as far as 10 miles downwind.

Those impacts rival the size of smog effects traced back to the Midlothian cement kilns or East Texas coal-fired power plants by previous studies.

As the study notes, "Given the possible impact of large single facilities, it is all the more conceivable that aggregations of oil and gas sites may act in concert so that they contribute several parts per billion to 8-hr ozone during actual exceedances."

This conclusion directly contradicts the stance of the Natural Gas industry and the Texas Commission on Environmental Quality, both of which deny that Barnett Shale gas emissions are large enough or located in areas that can influence DFW ozone levels.

But the Houston study is based in part on data collected by industry, as well as information from the city-sponsored "Fort Worth Study," and citizen-sponsored testing in the town of DISH in Denton County. It also uses a kind of computer modeling that allows for a more realistic understanding of how large releases from gas facilities can increase ozone pollution than the one the TCEQ uses.  It's the most sophisticated challenge yet to the state and industry's claim that gas emissions do not constitute a large threat to DFW air quality.

"This is reality-based science, not the ideologically-influenced happy talk that's coming out of TCEQ these days," said Schermbeck. "Local governments in North Texas, especially those that are traditional allies of clean air, need to pay close attention and act on it."

The report is available for downloading here.

The EPA Loss in Court You Didn’t Hear About, But Could Affect You More in DFW

Let's face it, the EPA legal team has taken a bunch of hits lately. Losses in court over the Texas Flex permitting plan and national cross state pollution rules, among others, have gotten lots of headlines, but for various reasons may not be as awful as they first sound to environmentalists.

But there was a recent ruling that did hit home for metropolitan areas like DFW that are a) already in "non-attainment" of the federal ozone, or smog, standard, and, b) host lots of urban gas and oil drilling. You probably didn't hear about it, but it may have more of an impact on your air here because it once again left a large loophole in current law that allows the oil and gas sector to escape emissions "off-setting."

According to the Clean Air Act, every large industry that comes to set up shop in a non-attainment area like DFW must decrease as much pollution as it estimates it will increase. This is required so that new pollution doesn't just take the place of pollution that's been reduced from industries already operating in the area. Otherwise, there would be a large imbalance between new industries and established ones that would put air quality progress in peril.

And that's exactly what's happening in DFW.

For a decade now, gas mining in the Barnett Shale has added tons and tons of new air pollution to the North Texas airshed that has not had to be off-set with reductions. While emissions from this industrial sector grew, pollution from local cars, power plants and cement kilns actually decreased. Based on past experience DFW should be making headway toward cleaner air. But we're not. For the last two years, DFW air quality progress has stagnated and even begun rolling backwards. This year we already have five monitors out of compliance with a 1997 ozone standard, compared to just one in 2010.

So why aren't gas emissions subject to Clean Air Act  "off-sets" just like a power plant or cement kiln? Because nobody writing the Clean Air Act in 1970, or its amendments in 1991, anticipated urban drilling on the scale we're experiencing it in DFW these days. Nobody foresaw the establishment of a huge gas patch in a large metropolitan area with connected, but widely diffused sources of emissions spread out over hundreds of square miles.  They were thinking about "stationary sources" of pollution like coal-fired power plants, refineries and the like. The amounts needed to trigger off-setting are all oriented toward these massive facilities, not lots of smaller sources that eventually equal or surpass their output. As a result, there's a huge loophole that keeps the oil and gas industry from being regulated like any other industry in a non-attainment area.

EPA has recognized this loophole and tried to close it by ruling that facilities connected by process in the gas field may be treated as one large source of pollution – the term is "aggregate." And this is the definition that a court recently shot down in a Michigan case:

"The Cincinnati, Ohio-based 6th U.S. Circuit Court of Appeals held yesterday that EPA had no basis to find that the natural gas sweetening plant and sour gas production wells owned by Summit Petroleum Corp. in Rosebush, Mich., are "adjacent" under the statute and therefore a single source just because they shared some similar functions.

It is an important case for the oil and gas industry because it is the first appeals court ruling to address a recent EPA move seeking to more aggressively "aggregate" various nearby sources of air pollution at oil and gas facilities for permitting purposes.

The court ordered EPA on a 2-1 vote to consider again whether the facilities, spread over a 43-square-mile area, are "adjacent" under the "plain-meaning of the term," which focuses only on physical proximity."

Just in case there was any doubt about why the gas industry was challenging the EPA policy of aggregating, the next sentence of the article makes it clear:

"Industry groups object because it can bring the individual sources under the umbrella of more stringent Clean Air Act permitting requirements."

Now, of course adjacent in common law means next door. But what does it, or should it mean, in environmental law? The collective air pollution being generated by that 43 square mile complex could very well be "adjacent" to your lungs a short distance downwind. But the court didn't see it that way.

That means that going into the next clean air plan for DFW – one that will, at least theoretically be aimed at the new 75 parts per billion ozone standard –  EPA will not be able to "off-set" the large amounts of air pollution generated by gas mining and processing in the North Texas non-attainment area.

And that's why we have to do it ourselves, one city and one county at a time. Starting in Dallas. Starting now.

As part of the larger re-writing of the Dallas gas drilling ordinance, a very large and impressive coalition of homeowners groups, neighborhood associations, and environmental organizations have all endorsed the idea of Dallas requiring local off-sets for any pollution released by new gas facilities within the city limits. A company would have to pay for projects that would reduce as much pollution as it was estimated to release every year. Dallas would be the first city in the country to adopt such a policy, but it probably wouldn't t be the last. And it wouldn't take that many before you started seeing an impact on industry's emissions.

We have a model in the successful Green Cement Campaign of the last half decade, that also started in the Dallas City Council chambers with a first-in-the-nation vote. All it took was a dozen cities and counties passing green cement procurement ordinances to get the cement industry's attention. As of 2014, something like 300,000 tons of air pollution a year will have been eliminated because there are no more dirty wet kilns in North Texas.

We can do it again. This time with gas patch pollution. We have to. Nobody else is going to do it for us.

“Drilling in Dallas” Community Meeting: Northwest Dallas on Thursday Night

Dallas Residents at Risk’s road show on fracking in Dallas continues its tour with a stop at 7pm Thursday night, May 3rd, at the North Hills Prep School at 606 E Royal (near L.B. Houston Golf Course and the now famous drilling pad-in-a-park endorsed by none other than the President of the Dallas Parks and Rec Board). If you’ve seen the map of gas drilling leases on city owned land, you know that Northwest Dallas is a hotspot of activity. Along with West Dallas and Mountain Creek, it’s one of the most densely leased areas of the city. Come see a basic explanation for why the activity is hazardous to neighborhoods, talk to some of the good guys who were on the City’s gas drilling task force and find out what’s being done to write a better gas drilling ordinance. Information is power. Don’t be powerless.

It’s a Wonderful Fight: Downwinders Wins First-Ever Green Source Environmental Leadership Award

From the tragically ridiculous, to the sweet sublimity of community…..Only hours after being kicked-out of Dallas City Hall, Downwinders Director Jim Schermbeck showed up at the first annual Green Source Environmental Leadership Awards dinner and ceremony to accept the honor, and terribly heavy piece of sculpture, that goes with winning in the Grassroots Organization category. For hours before then, he’d been in exile, watching on a computer screen as the Dallas Gas Task Force disassembled the progress he and others thought they had made over the last 6 month of work. He had lots of time to reflect on when he’d ever even come close to getting thrown out of a meeting before…..More than 12 years now, during an clean air planning session in Arlington with former Collin County Judge Harris presiding. Back then he and Downwinders members were trying to to tell officialdom that the Midlothian cement plants really did contribute to DFW smog, should be included in these clean air plans, and should be required to put on new controls. Crazy talk like that. Schermbeck would not shut up from his seat on the outside of the decision-making circle that the state was purposely underestimating the bad impact of the cement plants’ pollution. He and Harris almost took it out in the Hall. As it turns out, that same pair would later collaborate on the best clean air plan DFW ever cobbled together, and yes, as a matter of fact it did include new controls for those cement plants. So here Schermbeck was in 2012, taking on the gas industry juggernaut as it nudges its way into the City of Dallas. Adopting the crazy stand that allowing natural gas mining in Dallas without better controls will make already bad air worse, and put residents in harms way. That city Park land should not be Gasland. Openly quarreling with traditional allies. Going out on an unpopular limb – again. Schermbeck believed he’d done the right thing at City Hall in so publicly standing up against the last-minute roll back that was going on, but as an organizer, one always keeps a seed of doubt alive. Coming directly from the very late and frustrated ending of the Task Force into the Awards party already on-going at the new Eco-op near White Rock Lake, that seed of doubt withered. Beekeepers. Worm Ranchers. Eco-friendly event planners. Old-fashioned Hell-Raisers. Community icons. People who’ve been doing this for 30 years that you haven’t seen in 20. People you’re meeting for the first time but already have three friends in common. Approximately 120 of DFW’s most ardent green folk and activists were gathered together – and it wasn’t even an Earth Day event! And the crowd looked like Dallas itself does these days, with a more diverse collection of skin tones. And here they were in their own space, a real-life mortar and bricks expression of a commitment to needed infrastructure in the regional environmental scene. It was an overdue celebratory meeting of the tribe. When Downwinders’ name was read as the winner in its category, Schermbeck had a “It’s a Wonderful Life” moment. The enthusiasm of the reception caught him off-guard. He’s not used to being that popular in public, and of course, he’d just been so unpopular in public he was escorted out of City Hall. Even more than the title, or the award itself, it was that rousing reception from peers and comrades that turned out to be the biggest prize anybody could ever take home. And for that especially, the Staff and board of Downwinders at Risk sincerely thank the Memnosyne Foundation, Green Source DFW, and everyone who attended and voted for us for what we’ll take as a right-in-the-nick-of-time fateful affirmation of our mission to get out front and lead, even if that means occasional friction with the status quo, and alternative seating arrangements.