I am here to urge the City Council to respond to TXOGA's filing for a summary judgment in their lawsuit by filing a motion to dismiss. I know this is not popular advice; many people believe this avenue may open our ban up to being ruled unconstitutional by a judge. This is a risk many people are unwilling to take. I, however, want to use my short time today to talk about why we NEED to take the risk.
In the book Success Without Victory: Lost Legal Battles and the Long Road to Justice in America, civil rights lawyer Jules Lobel admits that in a utilitarian view of the law, “To succeed means to win concrete results, to change the legal rules, to win damages for your client, or to obtain a court injunction” (3). I believe this is the kind of reasonable, win-based strategy that the city has been urged to take. But Lobel cautions against such a narrow definition of success, particularly when a short-term legal “win” may come at the expense of longer-term political gain. Lobel points out that “Virtually hopeless test cases brought to challenge unjust policies is a recurring thread in the tapestry of American law” (6). And he persuasively argues that “we should view success as the living out of values, persistence in the face of great odds, and the strength to stand up for principle even when defeat seems inevitable” (267).
I believe that we the people of Denton are in a position where we cannot respond to TXOGA and the Texas legislature with reasonable measures. We all know that we are in an unreasonable situation where oil and gas interests effectively govern our state. Where “commercially reasonable” practices are allowed to trump our ability to make choices about our health and safety. We have no hope of stopping fracking in Denton, let alone in the state of Texas, if we agree to continue our fight on their terms.
If by filing a motion to dismiss, we expose the way our whole political system in Texas, including the judiciary, is in the pocket of oil and gas, then all the better. Remember, while our ban passed through a democratic process, so did HB40. It’s just that the legislature and their friends in the industry are telling us that their democracy holds more weight than ours does. TXOGA wants to shove this point home by forcing us to repeal a ban that is already in fact unenforceable. We can’t give in to how they want to play the game. We need to reach for true success, a Denton without fracking, and if we need to lose in the short term, then I say so be it. As we’ve been singing out in front of the the Vantage site for the past few weeks, “Ain’t no frackers gonna break us/Denton love is much too strong.”
