Fear and Fracking in Southlake

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On October 18, the night the city council was set to vote on the revised ordinance, the citizens of Southlake began arriving, anxious to find out what the ordinance would hold, and what it would mean for both sides. Aalund was there. So was Rucker. At the outset, the city attorney warned the council that enacting too burdensome an ordinance could amount to what's known as a "regulatory taking" — the legal term for what happens when laws prevent mineral rights owners and leaseholders from developing the natural resources beneath them. Mineral rights owners in town had threatened litigation if the council passed an ordinance containing setbacks so large that they effectively banned drilling in Southlake. But municipalities have long been given free rein to regulate themselves, and there's almost zero settled case law placing the city in danger of an unfavorable ruling. Terrell said it was a very real threat that weighed heavily in the council's deliberations. Anti-drillers characterized it as a last-minute, desperate scare tactic.

Residents for and against filed up to the podium to make their positions known, though by stalling the process and driving XTO out of town, there was the unshakable sense that Rucker and the others had already lost.

"I think the ordinance, as it's currently written, is going to kill drilling in Southlake," said Steve Oren, a composed, well-dressed elderly man.

"This could be a very important source of income for my family, my children," Jim McCutcheon said. "My real problem is the bigger picture. I've been to three of these meetings and each seems to deal with more and more restrictions."

Too much regulation here in Southlake, he continued, was simply the state of America writ small.

Disgusted with the pace of the proceedings and the lateness of the hour, Rucker stalked out before she could speak. But her comment card was eventually read aloud, and it conveyed her opposition to the proposed ordinance, which would keep the 1,000-foot setback between drilling rigs and homes, prohibit fracking during summer months due to the drought's impact on the water supply and establish a 300-foot setback from ignition sources like Joe Wright's tank farm.

She worried that if the ordinance passed, neither XTO nor Chesapeake nor any other company would return, and that the greatest resource since Spindletop struck oil would go untapped here.

As the council members entered their votes into computers, the susurrus of whispered conversations quieted. The results were transmitted to a projection screen: 7-0 in favor of added restrictions on fracking in Southlake. It was a little after 11 p.m., and the city council had just approved one of the most comprehensive drilling ordinances in North Texas. Aalund and his cohort rose and made their way outside. So did Joe Wright and Jim Milner, old-time Southlake men — good ol' boys, some in town call them — who stood the most to gain. Neither would comment. Everyone seemed weary, by the late hour and by a resource that had caused so much rancor in a town so unaccustomed to it. Neither side was sure what they'd won, or even who'd won at all.

That much wouldn't be clear for a few weeks.

The backlash from the industry didn't wait long.

"If you have to invest your millions — and we're talking tens of millions in many cases — in order to potentially be issued a permit by any city hall, they may still have the option to decline, whether through their zoning process or their special use process or whatever," says Julie Wilson, Chesapeake Energy's vice president for corporate development in the Barnett Shale. "Each city handles it a little differently. It's a pretty big risk to take if you can't meet that ordinance exactly the way it is.

"And then when you have made these investments and you're ready to move forward, and the ordinance changes, and now you can't meet the new ordinance requirement, you can see the conundrum there. You've proceeded forward in good faith thinking you were going to be allowed to develop your minerals and the ordinance changes."

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Brantley Hargrove

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