Forrest for the Trees

Austin Energy's solar farm in Webberville
Solar Austin
Austin Energy's solar farm in Webberville

One of the most inexorable and (buzzword coming…) disruptive trends in the energy world has, for some time, been the precipitous decline in the cost of solar. Like other renewable energy technologies, solar power has obvious environmental and climate benefits but hasn’t necessarily been competitive, in strict market terms, with fossil fuels. That’s changing very rapidly—even in Texas.

Two recently announced solar projects in West Texas show how solar is becoming more than just a niche source of energy.

First, there’s Austin Energy’s brewing deal with SunEdison for a 150-megawatt solar project in West Texas. The size of the project is significant. It’s enough to power 14,000 homes and represents the second-largest solar project in Texas, following a 400 MW installation commissioned by CPS Energy, San Antonio’s city-owned utility. But the more salient fact is the price. Although the exact figure has not been released, it’s somewhere around 5 cents per kilowatt-hour—perhaps the cheapest price in the U.S. ever. A nickel per kilowatt-hour is impressively low.

For comparison’s sake, Austin Energy’s 30-megawatt solar farm just east of Austin in Webberville priced in at 16.5 cents per kilowatt-hour. That was just a few years ago. The typical residential customer in Austin currently pays about 10-11 cents per kilowatt-hour and it’s thought that the SunEdison project will slightly lower electricity rates for Austinites. Finally, and perhaps most important, the solar project is cheaper than building a new natural gas plant, when considering the costs of each over the life of the facilities.

Austin Energy received “a substantial number of bids” totaling 1 gigawatt all under 5.5 cents per kilowatt hour, said Michael Osborne, one of the gurus of the renewable energy industry in Texas and, until recently, a special assistant at Austin Energy.

“If you can aggressively price solar below [5 cents per kilowatt-hour] that is going to be a revolution,” Osborne said at a recent Solar Austin gathering. “Solar at that price is going to beat natural gas anytime.”

Osborne attributes cheap solar prices, in part, to the maturation of the market. “Solar is the new wind,” he says. Texas, of course, is a global leader in wind power but in the early years the Texas wind industry was buffeted by engineering problems, timid investors and questions about how to fit wind—with its fickle nature—into the grid. Similarly, solar developers now enjoy more sophisticated financing options, cheaper construction costs and just the general benefits of experience. “The same thing happened in the wind business: It’s a sign of the market maturing.”

The other first-of-its-kind project to be announced this year is FirstSolar’s Barilla Solar Project, a 22-MW array in Pecos County. To date, virtually all of the solar deals in Texas have been driven by the renewable energy goals of city-owned utilities. FirstSolar’s Barilla project is different; it’s a “merchant” plant that will have to compete in the open market. The developer will build the plant without a firm deal in place and then try to sell the power to an array of customers.

“The merchant plant is a really big deal,” said Stan Pipkin, CEO of Austin-based Lighthouse Solar. “It’s price-based and market-based.”

Osborne projects that 200 to 300 megawatts of merchant solar will be built in the next year or so.

Still, some in the renewable energy business think solar still has a ways to go to close the gap. In the utility world, the concept is “grid parity”—the almost-talismanic threshold at which a budding energy source can produce power equal to or cheaper than what’s coming off the grid.

Or, in layman’s terms, it’s when solar (or wind or geothermal, etc) officially kick coal, nuclear and natural gas’ ass.

Shalini Ramanathan, vice president for origination with RES Americas, points to wholesale prices in ERCOT, which hover around 3 cents per kilowatt-hour, a fair sight lower than the levelized cost (5 cents/kWh) for even the cheapest solar.

“My sense is that solar is getting closer than ever to grid parity but it’s not quite there yet,” she said.

But that gap is deceptively large. For one, notoriously volatile natural gas is the prime driver of wholesale electricity prices in ERCOT. If the fracking bonanza fizzles or natural gas exports overseas pushes the commodity price of natural gas higher, electricity prices will rise too. Renewables on the other hand provide price certainty decades into the future.

“Uncertainty in the ERCOT market could be part of the appeal of solar and wind,” Ramanathan said. “It’s so obvious that sometimes developers don’t pitch it this way: But once you build it, the fuel is free. It can provide a really good hedge against power prices from fossil sources increasing in the future.”

Wind power received a huge boost from Texas government when the Texas Legislature passed and Gov. George W. Bush (that hippie!) signed legislation establishing mandates for utilities to purchase green energy. No such concession has been made for solar in Texas, even though the resource offers the same environmental and economic benefits and is arguably the most obvious solution to the specter of brownouts on the ERCOT grid. The tea party’s anti-government grip has made public policy of this sort a non-starter. Still, if solar can assert itself in the market, the industry may have a sunny future in Texas.

John Carona
State Sen. John Carona (R-Dallas)

At the current rate, there may be a day in the not-so-distant future when every Austin lawmaker and staffer goes to work for the payday loan industry, leaving no one, at last, to pretend to care about usurious rates, the cycle of debt and criminalization of borrowers.

I exaggerate, of course, but only slightly. The list of legislators and their staff who have moved, sometimes overnight, from the Capitol to the industry is impressively long. As Texans for Public Justice found last year, 10 percent of the lobbyists employed by lending interests at the Legislature were former lawmakers. Among them was Rep. Vicki Truitt, the Southlake Republican who carried the “reform” bills in 2011 and chaired the House committee that oversees the industry. And it’s bipartisan, too: the former chief of staff to Sen. Kirk Watson (D-Austin), Trent Townsend, is a lobbyist for Cash America, EZCorp and First Cash Financial.

Perhaps we need to retire the “revolving door” metaphor and just think of the industry, the lobby and the state government as different chambers in a giant shark tank, like a high-dollar Sea World for predators.

I raise the issue now because of a rather astonishing letter to the editor published this weekend in the Galveston Daily News. It’s penned by one Adam Burklund, the former general counsel for state Sen. John Carona. Remember Carona? He’s the (recently defeated) Dallas Republican who carried a payday loan reform bill in the last session so weak that it split consumer advocates and faith groups into two camps. He’s also the guy who accused his fellow Republican senators of being “shills” for payday loan lobbyists and then complained that he “just want[ed] to go home and feed [his] cat.” Anyway, Burklund used to work for him as general counsel before peeling off to go work for—clutch your pearls now—the main payday loan industry group, the Consumer Service Alliance of Texas—the good people who helped write said legislation carried by Burklund’s boss last year.

Burklund was reacting to an op-ed co-authored by three Democratic state legislators who made the rather anodyne observation, “During the last legislative session, industry lobbyists blocked the reform bill we tried to pass.”

Burklund seems sincerely outraged at that assertion, lashing out, in turn, at the three Democrats, Houston trial lawyer Steve Mostyn, Wendy Davis and what he calls “disingenuous special interest groups.”

Every time the industry pushes for a compromise, some of the special interest groups immediately characterize that compromise as an “industry proposal” — and oppose it, hoping to push the industry further.

Such devious behavior on the part of special interests does nothing to help consumers, nor does it advance the debate over a problem that is desperately in need of a solution. It only serves to widen the rift between consumer groups, the industry and anyone else seeking to score political points.

Who are these “devious,” all-powerful “special interest groups” capable of thwarting the good, reform-minded payday loan industry with its 82 lobbyists, $4 million in campaign contributions and allies in government? Burklund never quite spells it out but we can only guess that he’s referring to consumer advocacy groups like Texas Appleseed and faith groups like the Texas Baptist Life Commission. In fact, some of the religious groups were the most adamantly opposed to Carona’s compromise because they viewed it as not just a compromise, but fundamentally compromised, ceding far too much ground to the lenders. I guess having God on your side might make you a “special interest” but unless you’ve got the cash too, you’re in for an uphill fight at the Lege.

At least give credit to Carona for acknowledging how money had limited the options: “You have to get the most you can get with the political support that you have,” Carona said in March 2013. “This industry is in business and this industry has amassed enormous political support at the Capitol.”

At the Capitol, it’s not so much about what the lobby gets as what it prevents others from getting.

Joe-Straus-house-floor
Patrick Michels
Joe Straus

The American Legislative Exchange Council (ALEC), the embattled corporate-funded group that pairs lawmakers with special interests to write legislation in secret, is coming to Texas, and Joe Straus is helping to throw a “welcome party.”

ALEC is holding its annual meeting in Dallas this year from July 30 to August 1. In a letter composed on ALEC letterhead obtained by the Observer, Straus—the speaker of the Texas House often celebrated for his relative moderation—and other Republican lawmakers ask potential donors to attend a meeting at the exclusive Austin Club on April 1 to help plan a “Welcome party to kick off the conference.” The letter is signed by Straus, state Sen. Kelly Hancock (R-North Richland Hills), Rep. Jodie Laubenberg (R-Parker) and Rep. Phil King (R-Weatherford), who is the first vice-chair of ALEC.

ALEC and the legislators present an array of “sponsorship” opportunities”—from the $5,000 Jim Bowie Level to the $50,000 William B. Travis Level—and make clear that donors will receive access in exchange. (Curiously, Sam Houston, who is by far a more important figure in the Texas Revolution than Travis, receives lower billing at the $25,000 level.)

“The reception provides an excellent networking opportunity for state legislators, industry leaders and policy experts,” the document states. At the $50,000 level, donors are promised, among other perks, “five invitations to VIP events, including the Leadership Reception and Dinner.”

The documents direct recipients to Doner Fundraising, an Austin-based firm that’s consulted for a variety of Republican candidates. The firm is apparently casting a wide net, sending the invitation to a variety of progressive groups, including the Center for Public Policy Priorities and the Texas League of Conservation Voters.

“They’re losing money, so I’m not surprised ALEC would come to Texas to try and hide from the national notoriety and bad press of recent years,” said Phillip Martin of Progress Texas, a Democratic-affiliated group that has dogged ALEC.

ALEC suffered an exodus of members and donors last year following revelations that the organization had promoted the Florida “stand your ground” law that figured prominently in the Trayvon Martin killing. The Guardian reported in December that ALEC had hemorrhaged more than 400 legislators and 60 corporate funders, plunging the organization into financial crisis. Among the legislators quitting the group was Straus lieutenant Rep. Jim Keffer, an Eastland Republican who just pulled through a tough primary challenge against a tea party opponent.

Straus is generally considered one of the few bulwarks in state government against tea party excesses. Why would he join forces with ALEC?

His spokesman, former journalist Jason Embry, wouldn’t comment, saying only that Straus is not a member of ALEC. Of course, it helps to have powerful and wealthy friends when the peasants are at the castle gate.

Texas Gov. Rick Perry
Patrick Michels
Gov. Rick Perry

The debate over the “Texas miracle” just won’t die.

By my estimation (and a search of the Nexis news database) the “Texas miracle” emerged as a term in 2010-2011 and really gained currency when Rick Perry ran for president. Not to be confused with that other, earlier “Texas miracle”—the largely-debunked Bush-era notion that standardized testing bumped up the scores of Texas schoolchildren—this Texas miracle has to do with the state’s economy, job growth, relatively low unemployment and growing population.

It’s a silly phrase, because even if you think there’s much to admire in the Texas economy, there’s nothing particularly miraculous about it. Unemployment, for example, is lower here than the national average but not by much. In December, Texas had 6 percent unemployment, tied for 17th best in the U.S. with West Virginia and Missouri; the national unemployment rate is 6.7 percent. And many of those jobs are attributable to the miracle of fossil fuels underlying a good portion of our state. The other thing is that the proponents of the “Texas miracle” attribute it not to divine intervention but a constellation of Republican policies.

We all know it by heart: Low taxes. Light regulation. Pro-business. It’s typically the second thing GOP candidates for office mention right after how much they hate Obama.

The chairman of the Dallas Fed, Richard Fisher, is a tireless Texas miracle zealot, giving speeches and providing data-driven studies to back up his belief that Texas holds economic lessons the rest of the country should heed.

There’s a whole boosterish book devoted to the topic by Erica Grieder of Texas Monthly. I reviewed—fairly critically—the book here.

Paul Krugman has been one of the big guns on the other side, firing some of the first shots at the national level in 2011, when he disparaged the Texas miracle as “a myth.”

The latest entrant into the debate: an article by Phillip Longman in Washington Monthly. Now, first things first: Why does some guy writing in Washington Monthly care about the ins and outs of the Texas economy? Because, as he points out, Texas has had some of the best job growth during the Obama years, even as the state has lurched further to the right.

“Progressives, and everyone earnestly interested in improving the nation’s economic performance, need to confront all this Texas bragging and find out what, if anything, it proves,” Longman writes.

There’s a lot of work done in the article. For one, Longman deflates some of the overheated Texas vs. California rhetoric by pointing out that California isn’t hemorrhaging all that many people to Texas. (Although the intense bitching about Californians in Austin would suggest otherwise.)

Using U.S. Census data, Longman argues that most of Texas’ population growth comes not from Americans “voting with their feet” and moving to Texas but from a high birth rate and immigration, much of it unauthorized.

He also argues that the oil boom is responsible for a greater share of the state’s GDP, and job growth, than is usually accounted for.

But perhaps the most interesting points are scored in attacking the very notion that Texas is low-tax and business-friendly. It’s a thrillingly subversive argument. As Longman writes:

[F]or most Americans, as well as for most businesses, moving to Texas would not mean paying less in taxes, and for many it would mean paying more.

Oh yes, I know what you’ve heard. And it’s true, as the state’s boosters like to brag, that Texas does not have an income tax. But Texas has sales and property taxes that make its overall burden of taxation on low-wage families much heavier than the national average, while the state also taxes the middle class at rates as high or higher than in California.

If you’re a rich Texan, you do indeed pay low taxes, but if you’re poor or middle class you’re, excuse the phrase, Taxed Enough Already. This suggests that we’re having the wrong conversation. It’s not about low taxes vs. high taxes but who bears the burden. But you’re not going to hear a Rick Perry or Dan Patrick or Ted Cruz go there. Politically, Texas economic boosterism sells for the GOP and no data point is going to change that.

Finally, Longman makes his most startling point, one that flies in the face of Rick Perry’s central case for the “Texas model.” Businesses in Texas pay high taxes… at least relative to the national average and wasteland states like Massachusetts (aka “Taxachusetts”) and Illinois.

But most Texas businesses, especially small ones, don’t get such treatment. Instead, they face total effective tax rates that are, by bottom-line measures, greater than those in even the People’s Republic of California. For example, according to a joint study by the accounting firm Ernst & Young and the Council on State Taxation, in fiscal year 2012 state and local business taxes in California came to 4.5 percent of private-sector gross state product. This compares with a 4.8 percent average for all fifty states—and a rate of 5.2 percent in Texas.

With the exception of New York, every major state in the country, including New Jersey, Massachusetts, Pennsylvania, Ohio, Michigan, Indiana, Illinois, Wisconsin, and Minnesota, has a lower total effective business tax rate than Texas.

The Ernst & Young/Council on State Taxation study cited by Longman is just one way of slicing the data, of course. And the study’s authors acknowledge that their method does not look at competitiveness. However, a 2011 study by the same groups did rank states for local and state tax competitiveness for new investment. Texas came in 20th, right between Pennsylvania and Indiana. We’re No. 20! We’re No. 20! We’re No. 20! … It just doesn’t have much of a ring to it.

Meet Jim Hogan, Democratic Mystery Man

Jim Hogan had no money, no campaign and no political experience. So how did he beat Kinky Friedman and Hugh Fitzsimons in the race for Texas Agriculture Commissioner?
Jim Hogan
Cleburne Times-Review
Jim Hogan

Some candidates win by working their butts off, shaking hands, kissing babies and speaking to Rotary Clubs. Others prevail by raising and spending more cash. And some, like Jim Hogan, just sit back, relax and wait for God to work a miracle.

Hogan had a lot of folks asking “Who the hell is Jim Hogan?” last night, when the Cleburne insurance salesman placed first in a three-way Democratic primary for Texas agriculture commissioner. He bested Hugh Fitzsimons III and landed in a runoff with Kinky Friedman.

Hogan spent less than $5,000, maintains no campaign website, has never been involved in politics and ran his entire campaign, if you can call it that, from his home computer. Fitzsimons, on the other hand, appeared at events with Wendy Davis, hired professional consultants and produced slick campaign literature. Fitzsimons, a bison farmer from the San Antonio area, spent $40,000 and had more than $85,000 on hand when he lost. He got 23 percent of the vote while Hogan pulled in 39 percent. Kinky came in second with 38 percent.

So how did Hogan do it? Or was it just a fluke, a result of the near anonymity of candidates in the weak Democratic field for almost all statewide offices?

I talked to Hogan today, and he attributes his victory to the Almighty.

“It was a miracle and only God could’ve pulled it off,” he told me. “That doesn’t sell papers and you may think that’s corny but I truly believe it.”

I can understand why God wouldn’t want the atheistic Kinky Friedman representing God’s Party but what about Fitzsimons, who actually campaigned?

Hogan scoffs at the idea that “the Establishment” has anything to teach him.

“When I called Democrats and told them I was gonna be on the ticket first thing they said was, ‘How long you been in politics?’ I said, ‘I’m not no politician.’ They said, ‘Let me tell you something: It takes a lot of money to win a state race and you can’t win.’ I said, ‘Let me tell you something, y’all haven’t won since 1994.’”

And that’s true enough. Democrats have lost every single one of the last 100 or so statewide races since 1994. Hogan thought he’d try something a little different: He wouldn’t really campaign.

“Basically I run on the internet and a phone,” he said. “My motto is: My phone and Internet can outrun any jet plane or car across the state of Texas. I don’t have to be there.”

But how did voters know about him at all? Details about his candidacy only appear in a handful of small-town papers.

“All you gotta do is Google my name—’jim hogan ag commissioner’—and there’s enough on there.”

Hogan says he signed up for the Democratic ticket only because the field was weaker than the Republican slate, which featured five candidates.

“I can’t whup all five of ‘em but I might whup one of ‘em,” he said. “Sign me up!”

To be fair, Hogan has more experience than Kinky Friedman with farm and ranch affairs. He says he’s been involved in agriculture from childhood and ran a dairy farm from 1973 to 2005. Now in the insurance business, Hogan can speak at length about the economics of irrigated agriculture and the functions of the Texas Department of Agriculture. Still, he doesn’t have much of a platform.

“You’ve gotta get in and meet the people, see what’s been going on in the past. It’s just like running a business, you gotta get your hands around it.”\n\nThe reality is that Hogan is precisely the wrong person to be asking for answers to why he won. The Texas Democratic primaries produce all sorts of weird and unexpected results. Kesha Rogers, the LaRouche Democrat who wants to colonize Mars, has won two nominations for Congress and is in a runoff to challenge U.S. Sen. John Cornyn in November. Wendy Davis lost the primary last night in a number of border counties to political unknown Ray Madrigal.

For years, Gene Kelly, a vanity candidate who refused to give interviews or campaign, would give mainstream Democratic candidates a run for their money. One could go on… Democrats face a Catch-22: Strong candidates typically don’t want to run statewide because they’ll almost certainly lose to a Republican, but weak candidates draw little interest and excitement from the Democratic base. Anecdotally, I asked half a dozen partisan Democrats today who they voted for in the ag race. Not one could remember.

In any case. the Kinky-Hogan runoff will present an interesting choice for Democrats:

Do you vote for the opportunistic joke candidate who appears to be more interested in hawking his merch than actually winning, or the good-natured country boy who hasn’t done any campaigning?

Hogan’s keeping a positive attitude regardless.

“If you don’t win, no big deal, go home.”

A house destroyed by the West fertilizer plant explosion in the northern part of town.
Jonathan McNamara
A house destroyed by the West fertilizer plant explosion in the northern part of town.

In the aftermath of the West fertilizer plant disaster, media outlets—The Dallas Morning News in particular—and some of our better public servants have done yeoman’s work exploring the failures that led to the tragedy. We now know that the oversight and regulation of ammonium nitrate fertilizer plants is complicated and lax at the same time. We know, as the Morning News put it, that “it could happen again” at one of Texas’ hundred or so fertilizer plants. And we know what needs fixing. (For example, it’s remarkably stupid that Texas bans small counties from adopting fire codes. Whatever happened to local control?)

Yet the state has done little to address the problems. The Texas Legislature met for almost four months following the West disaster and didn’t pass a single reform to address the holes in the system.

That’s not to say that some aren’t trying. God bless the state fire marshal, Chris Connealy, for at least doing what he can to prevent another West. Connealy’s team has aggressively inspected all 104 ammonium nitrate facilities in the state. He’s holding town hall meetings in the 68 counties with a fertilizer plant and plans to conduct follow-up inspections this spring. But a can-do attitude goes only so far. The inspections are voluntary, their scope is limited and Connealy has no enforcement authority. All he can do is plead and prod—something he readily acknowledges.

“I guess if they didn’t correct [a problem identified in the inspection] by the time we come back, then that tells us we need to encourage them more strongly,” Connealy says. “I can’t make them do it.”

Still, I was curious what Connealy was turning up in his inspections. Through the state open records process, I requested a handful of the most recent inspection reports. Within a couple of weeks, the fire marshal’s office sent me a set of heavily redacted documents. Missing was any information on how the fertilizer is stored, site security, descriptions of the buildings and any hazardous findings. The agency even blacked out the names of local fire departments and the precise locations of fertilizer plants, though that information could be gleaned from other unredacted details. With all the secrecy, the reports were worthless to me and to any citizens trying to figure out what might be happening in their backyards.

After an opinion from the Texas Attorney General’s office, I obtained more information from the reports. However, the AG had ordered the fire marshal to redact the names and addresses of the facilities. Only by looking at the two versions together was I able to get a full picture of what the inspectors found—and where.

I examined three reports, which is admittedly a small sample, but they still made apparent that some fertilizer plants are vulnerable in the same way West’s was. None of the three facilities—Standley Feed & Seed locations in Madisonville and Iola, and Anderson Fertilizer in Carthage—had sprinkler systems to suppress fires. Only one of them even had a portable fire extinguisher. Two of the facilities had electrical problems, including exposed and damaged wires. All three are housed in combustible wooden structures, just like in West, and a top concern for Connealy.

The Anderson facility, the inspection report notes, has dry vegetation around it, which could help a fire “rapidly spread into the building.”

Standley Feed in Iola is located 500 yards from two “public assembly buildings” and three-tenths of a mile from a school. The one in Madisonville is planted on the town square, across the street from the county courthouse. The report states that Standley no longer plans to carry ammonium nitrate, and Connealy says his inspectors will follow up to confirm.

But absent new laws and regulations, it’s not clear how Connealy or anyone else is going to minimize hazards. Bobby Anderson, the owner of Anderson Fertilizer, says he fixed the electrical problems identified by the state fire marshal but has no plans to replace his wooden storage bins, install fire suppression systems or make any other expensive and, in his mind, unnecessary changes. “Let me tell you, a fire extinguisher is not going to do any good when a nitrate bin blows up,” he said. “I’ve got children, wife, parents, grandbaby right there within 200 or 300 yards. We live there on the farm, and I wouldn’t do anything to hurt anybody.”

Anderson says he’s not going to let fears about West or new regulations push him out of a business he’s been in for 29 years. “Shit, I ain’t getting out,” he told me. “Until they quit making the same damn stuff I’m gonna keep using it because it’s the best source of nitrogen there is.”

 

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Cleopatra de Leon, Nicole Dimetman, Vic Holmes and Mark Phariss
Patrick Michels
From left, Cleopatra De Leon, Nicole Dimetman, Vic Holmes and Mark Phariss, speak with reporters outside San Antonio's federal courthouse after oral arguments in their suit to overturn Texas' same-sex marriage ban. Their attorney Neel Lane is behind them.

Two weeks after hearing oral arguments in an attempt to overturn Texas’ ban on same-sex marriage, U.S. District Judge Orlando Garcia offered an early sign that he agrees the ban is unconstitutional.

On Wednesday, Garcia granted a preliminary injunction against further enforcement of Texas’ same-sex marriage ban, saying the two couples—two men from Plano and two Austin women—were likely to prevail at a trial. That would have allowed the two men to marry here, and let the two women to have their Massachusetts marriage recognized in Texas—except that Garcia also stayed his injunction pending a decision in the ultra-conservative U.S. Fifth Circuit Court of Appeals.

Today’s ruling doesn’t change much in practical terms—as the lawyers noted in court, because the suit isn’t a class action, the injunction would only have applied to the four plaintiffs anywaybut it’s being heralded as another small step in a nationwide march toward same-sex marriage that’s become more of a sprint in the last few months.

Garcia’s order, and the stay, recognized this lawsuit’s place as just one in a complex and fast-changing world of court rulings on same-sex marriage around the country, all leading to a likely resolution with the U.S. Supreme Court. But it also armed opponents of Texas’ 2005 ban with some powerful language. (You can read the whole thing below.)

Texas’ ban, Garcia wrote, “causes needless stigmatization and humiliation for children being raised by the loving same-sex couples being targeted.” That’s a direct response to the state’s main argument that Texas has an interest in kids growing up in healthy, loving families, which it argued couldn’t include those with same-sex parents. Anyway, as Garcia observes, “procreation is not and has never been a qualification for marriage.”

Garcia said the state never backed up its claim that letting gay and lesbian couples marry somehow harms heterosexual marriage. Texas’ ban, he writes, is unconstitutional because it violates the couples’ rights to equal protection, later adding, “this court does not find justification for the disparate treatment of homosexuals.”

“Today’s Court decision,” he writes, “is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent.”

Responses to the ruling from politicians and activists came fast. The national group Freedom to Marry recognized that Garcia’s decision put Texas in league with Utah, Ohio, Oklahoma, Kentucky and Virginia, where judges have all recently tossed same-sex marriage bans. “With 47 marriage cases in 25 states now moving forward, and the possibility that a freedom to marry case will again reach the Supreme Court as soon as 2015, we must continue the conversations and progress—Texan to Texan, American to American—that show that all of America is ready for the freedom to marry,” said the group’s founder Evan Wolfson.

Republican lieutenant governor candidate Dan Patrick seemed momentarily swayed by Garcia’s reasoning this afternoon, tweeting, “MARRIAGE= ONE MAN & ONE MAN,” before copping to his own “oops” moment.

Like many Texas Republicans, Gov. Rick Perry largely stuck to a state’s rights argument.

“Texans spoke loud and clear by overwhelmingly voting to define marriage as a union between a man and a woman in our Constitution,” he said in a statement, “and it is not the role of the federal government to overturn the will of our citizens. The 10th Amendment guarantees Texas voters the freedom to make these decisions.”

Notably, Perry did not spend a lot of time moralizing about how banning same-sex marriage is for the “eternal benefit of our children,” as he did in 2005 when he signed legislation that put the ban in front of voters. Instead, marriage equality is now consigned to the same status as other “10th Amendment” issues—gun rights, environmental regulation and healthcare. And perhaps that’s a tacit reflection of how much things have changed since 2005, when Texas voters approved amending the state constitution to include a ban on same-sex marriage. The vote wasn’t even close: 76 percent to 24 percent. Of Texas’ 254 counties, the only one with a majority voting “no” was Travis County. Good old Republic of Austin.

Still, the special constitutional election hardly represented the permanent, conclusive “will of our citizens.” Turnout was only 17 percent and almost certainly skewed older, white and conservative relative to the state’s population. (Leaving aside, of course, the wisdom of putting rights to a vote.)

And in sociopolitical terms 2005 is a long, long time ago.

In 2005, only 29 Democrats in the Texas House voted against the proposed same-sex marriage ban—and many of those said they were only doing so for technical reasons. Here’s what former state Rep. Jim Dunnam, who was Democratic caucus chair at the time, and state Rep. Pete Gallego (now a congressman) had to say at the time:

“I fully agree that the institution of marriage should be limited to one man and one woman. I supported the Defense of Marriage Act, which is current Texas law. If that were the issue before us today, I would vote the same way again.”

Just in the past few years, there has been a seismic shift in public opinion on same-sex marriage. Texas has not been immune to this trend. Roughly 70 percent of Texans now support either same-sex marriage or civil unions (39 percent and 30 percent, respectively) and pro-marriage equality is the plurality view among Texans. While that’s still not a majority expressing support for allowing gays and lesbians to marry, the trend is pushing inexorably in that direction, as the courts have clearly recognized.

Even if the Supreme Court leaves this decision up to states, would Rick Perry be willing to put same-sex marriage to a vote again today? Should we test the will of the people again? How about in five years? Or 10?

Ted Nugent
facebook.com/tednugent

We thought maybe we’d write this week about Cornyn challenger Dwayne Stovall’s TV ad attacking someone he’s not running against as a “box turtle.” (Hey, I thought Phil Gramm had rights to that name!) We thought maybe we’d call attention to the Democrat running for Harris County DA on a stop-prosecuting-domestic-violence-so-much platform.

We thought we’d write this week about David Dewhurst welcoming the spawn of Andrew Breitbart to Texas with a letter praising Breitbart Texas for “applying the time-tested techniques of investigative reporting.” (Nothing screams “investigative reporting” like putting anarchist-turned-FBI-informant-turned-tea-partier Brandon Darby in charge of your publication and running articles like “7 Amazing Reagan Quotes that Capture America’s Current Condition.”) But, really, this week belongs to one man.

Ted Nugent wasn’t born in Texas but he got here just as soon as he was tired of chasing underage girls, shitting his pants to avoid the draft (allegedly!) and establishing his intellectual bona fides with such classic rocks hits as “Wang Dang Sweet Poontang.”

With those accomplishments on his resume, naturally he became a sought-after public figure.

Although he promised in 2011 to “either be dead or in jail” if Obama was re-elected, instead Uncle Ted has put his heart and soul patch into politicking for Texas Republicans and drawing clicks for media outlets. (Here he is on “Texas Monthly Talks”; here he is trying to justify the Trayvon Martin killing to the Texas Tribune.)

He’s called Hillary Clinton a “two-bit whore” and Barack Obama a “chimpanzee,” “a piece of shit” and “a subhuman mongrel” (a term employed by Nazis and Klansmen). He’s been known to use the n-word and has basically been saying things like this for decades.
If he’s not a racist and a misogynist, then no one is… So what does it say about the politicians he pals around with?

He’s the treasurer for former state Rep. Sid Miller’s bid for agriculture commissioner. (By the way, aren’t Ted and Sid just the picture of the GOP’s outreach to women and minorities?)
Sid Miller and Ted Nugent
He and Rick Perry go hunting together and the Nuge played at Perry’s inauguration in 2007.

Congressman Steve Stockman (still sounds weird putting those three words together) can’t get enough of the guy.

And then there’s Greg Abbott, who invited Nugent to appear with him at campaign events in Wichita Falls and Denton this week. The Nuge didn’t say anything WTF-worthy on the campaign trail—though he did call Greg Abbott his “blood brother”—but his labeling of Obama as a “Chicago communist-raised, communist-educated, communist-nurtured subhuman mongrel” had even Rick Perry, Rand Paul and Ted Cruz (sort of) condemning the remarks and distancing themselves from Uncle Ted. Good rule of thumb: If those guys are uncomfortable with your rhetoric, you might have gone too far. And late update: Even Ted Nugent is uncomfortable with Ted Nugent’s remarks.

But what about Greg Abbott? Why did he invite Ted Nugent to join him onstage after the Wendy Davis campaign and the media pondered whether that was such a good idea? What did he think of Nugent’s ugly comments? Other than running away from a CNN reporter, he’s really not said much. Per the AP:

“I can’t comment on them, because I don’t know what he said.”

In a courtroom, pleading the Fifth might work. In politics, not so much.

BarnettShaleDrilling-9323

Three national media groups—the Center for Public Integrity, InsideClimate News and The Weather Channel—published the results this week of an eight-month investigation into air pollution problems in South Texas’ Eagle Ford Shale. Much of what they found won’t be shocking to Texans. We call it bidness as usual: regulators and legislators captive to industry; citizens either comfortable with the downsides of massive oil and gas production or too afraid to protest; and an alarming lack of attention paid to those suffering from fracking-related toxic emissions. After spending so much time here, the reporters probably didn’t need a Texas Tech political scientist to tell them that “the health issues faced by people who live in drilling areas… simply don’t carry enough weight to counterbalance the financial benefits derived from oil and gas development.”

I spoke with David Hasemyer of InsideClimate News and he said his big takeaway for the rest of the country is in a word: “beware.”

“There are so many unanswered questions,” he said. “We took on the issue of emissions, of air pollution. And it’s cautionary because there’s so very little known about either the short-term or the long-term consequences of these emissions. … Somebody needs to start developing a baseline now of human health and then studying what’s happening with these emissions.”

In an accompanying piece, the reporters recount the many ways that government, industry and even ordinary citizens made reporting the story difficult. Railroad Commissioner David Porter agreeing to an on-camera interview with The Weather Channel then bailing at the last second. Operators refusing to offer on-the-ground tours of facilities or even refusing to answer questions.

My favorite example, though, is the description of dealing with the Texas Commission on Environmental Quality, an agency that has all the public and media relations finesse of a Soviet politburo.

The agency responsible for regulating air emissions—the TCEQ—refused to make any of its commissioners, officials or investigators available for interviews. Instead, we had to submit questions via emails that were routed through agency spokespeople. It’s unclear if the spokespeople passed our questions along to the agency’s experts.

[…]

*When a reporter called TCEQ field inspectors at their homes—a commonly used reporting technique—TCEQ spokeswoman Andrea Morrow left the reporter a message saying, “Under no circumstances are you to call our people and harass them at home.” Morrow also blocked the reporter from approaching the agency’s chairman, Bryan Shaw, at a public meeting in Austin.

David Hasemayer, of InsideClimate News, told me he found the approach unusual.

“They would not talk to us, even their media people would not talk to us,” he said. “They were wholly unresponsive to talking to us and engaging in a give-and-take type of conversation.”

Indeed the whole story is riddled with “declined to comment” breadcrumbs that lead, for me at least, to the conclusion that our out-of-state friends were probably a bit dumbfounded at how little the industry, and its servants in government, care about engaging with pressing public health questions.

Hyde, now the TCEQ’s executive director, through an agency spokeswoman declined to comment.

[...]

Asked how the agency dealt with the polluters, Clawson did not respond.

[...]

Granado did not respond when asked why the plant had so many emission events last year.

[...]

Covert did not respond to interview requests.

The reporters wrote that the Eagle Ford Shale, which stretches from near Laredo on the border northeast for 400 miles into the eastern fringe of East Texas, “has yet to become part of the national conversation on hydraulic fracturing—fracking—in contrast to, say, Pennsylvania’s Marcellus Shale or North Dakota’s Bakken.”

Wells permitted and completed in the Eagle Ford Shale, Feb. 2014
Texas Railroad Commission
Wells permitted and completed in the Eagle Ford Shale, Feb. 2014

Indeed, many Texans, I’d wager, know little about the Brush Country counties—DeWitt, Karnes and Webb among them—that form the epicenter of the shale. They’re sort of neither here nor there. I grew up in DeWitt County. People from the Valley don’t consider it South Texas. It’s too far from the coast to be part of that world. And it’s remote enough from a big city—San Antonio is closest—to be pulled into an urban orbit. This forgotten slice of Texas, until recently at least, was sparsely populated, lightly developed and insular. The Barnett Shale, underlying in part the affluent, relatively dense suburbs of Fort Worth, has received much more attention, even as drilling and production in the Eagle Ford Shale has soared to staggering levels.

The whole piece is worth reading but some parts stood out for me:

  • While it’s widely known that the Eagle Ford Shale isn’t comprehensively monitored for toxic emissions from fracking activity, the story reveals that TCEQ knows just how inadequate its monitoring system is. The reporting team obtained a memo from January 2011 that’s quite candid: “The executive director has extensive records of underestimated or previously undetected emissions from oil and gas sites. These are not isolated instances but have occurred statewide and indicate a pattern.” The agency runs just five permanent air monitors in the vast region—and those are geared for quantifying emissions that could impact San Antonio’s air quality—and has no plans to add more.
  • The Railroad Commission and TCEQ rarely issue penalties. Of the 217 fines levied by the Railroad Commission in 2012, the average was less than $9,000.
  • The Texas Legislature has increased the maximum penalty that TCEQ can levy from $10,000 per violation to $25,000, the agency hasn’t exactly seized its new authority. Of the 117 fines issued between January 2012 and October 2013 related to oil and gas production, operators paid less than $25,000 in more than three quarters of the cases.
  • A significant number of the complaints from folks living in the Eagle Ford Shale are probably related to hydrogen sulfide, or H2S, a dangerous oilfield gas that’s particularly prevalent in some sour spots of the shale.
  • The Texas Legislature, led by Rep. Tom Craddick (R-Midland) and Sen. Glenn Hegar (R-Katy), hamstrung a modest TCEQ program that would’ve imposed more stringent pollution control rules on oil and gas operators. The legislators effectively made it difficult, though not impossible, for TCEQ to apply its own rules to the Eagle Ford Shale in the same way the agency had in the Barnett Shale.

Welcome to Texas, y’all.

Texas Barnett Shale gas drilling rig near Alvarado, Texas
Barnett Shale drilling rig

A newly-published study of fracking-related water use in North Texas’ Barnett Shale provides new insights into what has been a murky topic. Authored by researchers at the University of Texas’ Bureau of Economic Geology and published in Environmental Science and Technology, the paper describes the Barnett Shale as an “ideal case” to try to get a better understanding of how much water is being used in fracking, the source of the water, how much is actually recycled and how much of the wastewater ends up in injection wells—pressing questions in drought-stricken Texas. “This is the first paper, I think, to take a comprehensive look at water use in one play,” said lead author, JP Nicot.

While researchers, journalists and regulators have slowly developed better estimates of how much water fracking consumes, especially at a regional or state level, less attention has been paid to where the water comes from and whether the industry is following through on promises to recycle and reuse water that returns to the surface after a frack job. What jumps out at me in this study is how little the industry has accomplished in using less water since the Barnett Shale took off in the middle of the last decade—even in the face of crippling drought.

Nicot found that the vast majority of water, about 92 percent, used to frack Barnett Shale wells in 2011 was “consumed”—never to return to the aquifer or reservoir again. Only around 5 percent of all the water has been reused or recycled “for the past few years.” The remainder, about 3 percent, came from brackish water sources. The figures suggest that the industry is making very little progress in conserving water, despite a push from regulators and lawmakers to encourage the practice.

At one time, Nicot said, companies were doing more to recycle.

“They started doing it even at a monetary loss,” he said. “Then they realized well it doesn’t seem like we are going anywhere with that recycling thing so let’s cut our losses and let’s not recycle anymore.”

“I know a lot of recycling companies,” he added. “They are kind of disappointed. A lot of people thought it would be the next big thing, the El Dorado. … The overall feel is that it’s not working as well as it could have.”

But so far, the industry does not seem too concerned about the drought. “Periodic droughts, characteristic of Texas climate, do not seem to control [hydraulic fracturing] water use in the Barnett play, which is more sensitive to the price of gas and economic activity,” Nicot wrote.

Indeed, the correlation between gas production and water use in fracking is nearly perfect. The more gas produced, the more water used, with little to no increase in efficiency.

Cumulative gas production and water use track each other.
JP Nicot
Cumulative gas production and water use track each other.

 

Other interesting findings from the study:

  • We know very little about the source of water used in Barnett Shale fracking. Nicot reports that data is “sparse” because “the industry is fragmented” and “water contracts are signed and expire in a very dynamic business environment.” Groundwater regulation in Texas is notoriously scattershot, spread over more than a 100 locally-run groundwater conservation districts, many of which don’t collect information on fracking-related water use. There is nothing in state law requiring that the industry report the source of its water.
  • Nonetheless, Nicot is able to estimate that the Barnett Shale play relies roughly half on groundwater and half on surface water.
  • Most of the groundwater comes from the Trinity Aquifer, one of the most depleted in the state.
  • The potential for recycling in the Barnett Shale is much greater than in the Eagle Ford Shale or other shale plays. In many Barnett Shale wells, more water comes back to the surface than is injected in the fracking process. Such abundant “produced water” can be recycled or reused.

For now it appears to be business as usual, despite the hype about recycling and reuse.