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Forrest for the Trees

March in favor of a non-discrimination ordinance outside San Antonio City Council meeting.
Forrest Wilder
March outside San Antonio City Council meeting in favor of non-discrimination ordinance

UPDATE, 2:43 pm: The non-discrimination ordinance passed 8-3 and goes into effect immediately. Although religious right organizations have promised to sue, the lopsided vote brings to a close what became an unexpectedly heated debate over a rather innocuous local measure that’s already on the books in Austin, Dallas, Fort Worth, Houston, El Paso and more than 170 other cities nationwide.

Mayor Julian Castro gave the final word before the vote.

“Whether you are white or black, Christian or Jew, whether you are straight or gay, San Antonio belongs to you too,” he said. “This is a city that belongs to everyone. This ordinance is about saying there are no second class citizens in San Antonio.”

LGBT groups declared the vote a victory for equality but some expressed dismay at the rancorous tone adopted by some opponents. “Today’s vote is a victory, but the attacks we saw from our opposition in the run-up to this—particularly the transphobic messaging—remind us of the ruthless tactics they use to promote discrimination against LGBT people,” said Human Rights Campaign President Chad Griffin in a statement.

Councilwoman Elisa Chan, who earned notoriety after a secret recording revealed her unvarnished views on homosexuality, gave a defiant speech before the vote.

“I’m disappointed that the power of political correctness has prevailed over the freedom of speech,” Chan said. Those expecting her to apologize for her “it’s disgusting” remarks might’ve been disappointed too.

“Just because I disagree with the lifestyle choice of LGBT community doesn’t meant that I dislike them,” she said. “Similarly just because one opposes this ordinance, that doesn’t mean one is for discrimination.”

At the end of the day, though, the question before the City Council was simple: whether to continue to make it legal for people to be discriminated against on the basis of sexual orientation and gender identity in the city of San Antonio. Everything else was either an invented issue (men in the women’s restroom!) or a side issue (the precise wording of the ordinance). In the end, a majority decided that LGBT people are deserving of the same protection as other protected groups.

You got the sense from listening to the NDO opponents that they know neither time nor momentum is on their side—even in Texas, where just about every Republican running for statewide office weighed in against the ordinance. (My favorite was state Sen. Donna Campbell worrying that “Tolerance is going too far in this instance.”) They had about them an air of desperation and a hint of the self-pitying righteousness that comes when your point of view falls from favor.

Although same-sex marriage or civil unions or a statewide anti-discrimination law isn’t coming anytime soon to Texas, it’s unlikely that the future holds any more rollbacks for the LGBT community. The vote on the San Antonio ordinance wasn’t even close, 8-3. And barring the wrath of God that some predicted would be unleashed upon the city, the ordinance is unlikely to change much of anything. But it is a fight that the LGBT equality movement won and the other side lost. It’s just strange that they came to die on a molehill.

UPDATE, 12:25 pm: After taking citizen testimony for several hours, the Council is on a lunch break. Business is expected to reconvene around 1 pm and Mayor Julian Castro plans to take a vote by 2 pm. The NDO measure is expected to pass 8-3 or 7-4.

Testimony this morning was mostly a redux of last night, with the opponents looking a bit more glum. Generally, I don’t think the blue shirts helped their cause a lot by threatening to unseat anyone who votes for the ordinance or by the bizarre and at times blatantly homophobic ramblings of several of that side’s speakers.

Several speakers told the Council that gay people do not suffer any discrimination.
“This [ordinance] is for something that doesn’t exist,” said Pete Ortega. “There is no history of discrimination against the gay, lesbian community.” He went to explain that LGBT folks won’t be discriminated against as long as they don’t act gay.

“I cannot detect homosexuals,” he said. “Unless they make it a point to identify themselves through their dress, I cannot tell. They can go through society undetectable which means they do not have to be discriminated. They can blend in.”

Another man, Patrick Von Dohlen, indulged in some good old-fashioned gay shaming. “God forgives, but nature doesn’t,” he warned, after briefly citing the much-maligned UT-Austin Regnerus study. Von Dohlen then gave an anatomical lesson involving anuses, penises and “toxic waste.”

It was instructive that in this final hour—after all the talk of sexual predators in the restroom and other red herrings—that so many opposed to the ordinance laid their cards on the table.

“I love the person but I hate the sin,” said a third man. “Homosexuality is a sin, it’s a filthy lifestyle.”

Ted Cruz, Greg Abbott, Dan Patrick, Donna Campbell, Barry Smitherman and many other high-ranking GOP elected officials have registered their opposition to the non-discrimination ordinance.

ORIGINAL STORY: Last night, the San Antonio City Council chamber was a house divided between red and blue as hundreds lined up for and against a proposed non-discrimination ordinance.

Opponents of the measure—which would add sexual orientation, gender identity and veteran status to the city’s list of groups protected from discrimination—wore blue and sat on the right. They carried bibles and claimed the ordinance would stifle free speech and persecute Christians. On the other side of the chamber, proponents wore red and urged the City Council, led by Mayor Julian Castro, to stand up for equality and the rights of the LGBT community. This being San Antonio, both sides sounded themes of family, Christian charity and pleaded the case for veterans. With more than 700 signed up to speak, citizen testimony lasted until 1 a.m. City Council reconvenes at  9 a.m. and the measure is expected to pass later today.

The religious right groups opposing the non-discrimination ordinance have picked an odd fight. San Antonio is proposing updates to its ordinance that would bring it in line with every other major city in Texas—Austin, Dallas, Fort Worth, Houston and El Paso—and some 180 cities around the nation. Some states, not Texas of course, have laws prohibiting discrimination on the basis of sexual orientation and gender identity in the areas of housing, public accommodations and the like. Constitutional and other legal challenges to such laws have long ago been exhausted. The author of the proposed changes, San Antonio City Councilman Diego Bernal, has repeatedly pointed out that he’s doing little more than adding sexual orientation, gender identity and veteran status to race, color, sex, religion, national origin, age and disability.

IMG_9776[1]

But opponents insist that it’s they—Christians who oppose homosexuality—who will be discriminated against. They’ve cloaked their position in the language of human rights and free speech. One of their groups is called the San Antonio Human Rights Coalition.

Last night, the blue shirts quoted Scripture, warned of God’s wrath, compared the ordinance to Nazism and slavery, and railed against what one speaker, Pastor Charles Flowers, called the “homosexual, lesbian and gender-confused community.”

“[The ordinance] seeks to legitimatize behavior that God calls an abomination,” one man told the Council. “It discriminates against God’s people. Thou shall not lie with mankind as womankind.”

 Jon Kaplan of San Antonio warned that he could imagine the Council “charging and convicting [Councilwoman Elisa Chan] to quash her point of view.” (Chan was caught on tape calling gay people “disgusting.”)

Many intimated that God would punish the city if the ordinance passes. “History clearly shows us that any culture that turns away from God will fall into decline and it will be cut off from God’s blessings,” said Jay Braymer. “This ordinance would bring condemnation on the city of San Antonio. Ultimately you’ll have to answer to God for how you vote tomorrow.”

Kelli Farris, wearing red, summed up the feeling on her side of the room when she said, “If anyone made the case for why this ordinance is needed every time you speak you’ve made that case.”

One of the points of contention has been which side can lay claim to the civil rights movement. Flowers, who preaches “Holy Ghost healthcare” at his San Antonio church, complained last night that the “homosexual, lesbian and gender-confused community” is seeking “to piggyback on the civil rights movement.” Sexual orientation, unlike race, is a choice and a perversion at that, he said. (Of course, one’s personal faith cannot be compelled and is therefore a choice, but is nonetheless covered by the local non-discrimination ordinance.)

But Nettie Hinton, a 74-year-old woman who was at the March on Washington in 1963, told me that Flowers “clearly has a warped view of what civil rights means.”

“This is about civil rights and human rights,” she said. “It’s not a choice. It is how God has created people, just as I was born black and I have not chosen to be black. God creates people and he does not make mistakes.”

Check back here or follow me on Twitter (@forrest4trees) for updates from today’s City Council vote.

Four candidates for lt. gov.
Clockwise from top-left: Texas Agriculture Commissioner Todd Staples, Texas Land Commissioner Jerry Patterson, Lt. Gov. David Dewhurst, and Sen. Dan Patrick.

You can be forgiven if you haven’t been following the nascent race for lieutenant governor. The only entrants so far are four Republicans—all white, all conservative, all male—and the only people sampling these different flavors of vanilla are political insiders with a taste for right-wing buffoonery.

But it’s time to tune in, dear reader. Come now, let us join Dan, David, Jerry and Todd as they give life to what Freud called the “narcissism of small differences.” Marvel as they claw at each other to decide who’s next in line in an unbroken succession of white men in the state’s most powerful elected office. Look a little closer, and you’ll detect some differences among the men that, while seemingly small, could mean big differences in governing styles.

I think the race will come down to a runoff between Houston state Sen. Dan Patrick and incumbent Lt. Gov. David Dewhurst—and that Dewhurst will learn, again, that GOP grassroots activists can spot a faker.

But first let’s meet the candidates, in ascending order of likelihood to win:

The long shot is Todd Staples, Texas Agriculture Commissioner. If Mitt Romney was the first clip-art candidate, Staples is surely the first bobblehead candidate. His chiseled but weirdly disproportionate visage would prove a challenge for sidewalk caricaturists. He’s already caricature. In 2006, the then state senator was easily elected ag commissioner. Since then, he’s been trying to get an increasingly urban and suburban state to notice him by hollering about narco-terrorists lurking among the Rio Grande Valley’s rutabagas.

Second, we have Jerry Patterson, Texas Land Commissioner. Patterson has assets the rest of the pack seem to lack: iconoclasm and a sense of humor. In a 2008 interview, he was asked whether wind turbines posed a threat to birds. Wind farms in the Gulf of Mexico, he allowed, “would be the first line of defense against avian flu.” I like Jerry Patterson, even if he makes a habit of referring to the Civil War as the “War of Northern Aggression.” Jerry’s problem is that he’s a little too single-issue-focused (guns, guns, guns) and too open-minded on immigration. He goes his own way and that may be too much for the GOP base to handle.

Third, we have David Henry Dewhurst, self-described “Defender of the Preborn.” If Dewhurst weren’t super rich, is there a chance he’d be lite guv? He isn’t a skilled politician. Insincere, distant, bumbling, awkward with the hoi polloi. He spent $8 million to become land commissioner in 1998. Watching Dewhurst pander to the far right since his loss to Ted Cruz in the 2012 U.S. Senate race has been painful. Even in ramrodding a sweeping anti-abortion bill through the Legislature this summer, Dewhurst managed to bungle it. He dragged things almost literally to the last minute, affording Wendy Davis and a gallery of rowdy protesters the opportunity to filibuster the bill and launch a movement.

And so that’s how we come to Sen. Dan Patrick, perhaps the favorite to win the lieutenant governorship. Patrick, who was born Daniel Goeb in Baltimore, Maryland, is a familiar American type: the snake-oil salesman who’s come to believe his own sales job. Where Dewhurst is unsure, Patrick possesses the certainty of a zealot. He’s an amalgam of the drive-time pablum of right-wing talk radio, the radical but platitudinous theology of the exurban mega-church, and the blinkered orthodoxy of the tea party. He gives political speeches in church, religious sermons in the Legislature, and a medley of both on his Houston AM radio station.

“There is no such thing as separation of church and state,” he told a Baptist church in Conroe in late June, just a few days after Wendy Davis’ filibuster.
A year earlier, he’d told the same congregation, “When I vote—and I’ve cast 13,000 votes in three sessions—the lobbyist I listen to more than any is Jesus Christ.”

Jesus tells him to ban abortion. Jesus tells him that private school vouchers are the “new civil rights movement.” Jesus probably even gives him marching orders on redistricting, tort reform and the boundaries of that new municipal utility district in Cypress-Fairbanks.

Dan Patrick as lieutenant governor is a frightening thought. You could say goodbye to the two-thirds rule, which requires a two-thirds vote to debate a bill and encourages compromise and comity in the Senate. Imagine the anti-abortion bill but without all the drama—many times over. All that stands in the way is David, Jerry and Todd.

water

A major decision came down in the arcane, but important world of Texas water law last week—opening the door to more lawsuits against local groundwater boards for regulating water use across the state.

In Edwards Aquifer Authority vs. Bragg Pecan Farm, the Texas Fourth Court of Appeals ruled on Wednesday that the Edwards Aquifer Authority owes landowners money for “taking” their groundwater by limiting pumping.

Groundwater regulators and environmental groups have long worried that such “takings” claims could imperil the state’s complicated and patchwork system of managing aquifers, many of which are increasingly stressed by drought and booming demand. Bragg is the first such “takings” case in Texas—and thus is being closely scrutinized by water interests across the state.

“What makes this case so important and potentially scary, certainly from the standpoint of the survival of the Edwards Aquifer Authority and therefore the survival of all the people who depend on that water, is that this is the first benchmark,” said Amy Hardberger, a professor at St. Mary’s University School of Law in San Antonio. Another environmental law professor wrote that it was a “deeply flawed and harmful decision.”

However, Russell Johnson, an Austin attorney who represents landowners, says the case simply establishes a balance. “It clarifies that the government’s good reasons for regulation don’t trump the property rights of landowners who have made those investment-backed expectations,” he said.

Although he shrugs off the notion that Bragg could make it impossible to sensibly regulate groundwater, he argues that groundwater districts will have to evolve.

“I believe most of the groundwater conservation districts in Texas want to preserve the status quo and that’s going to be hard to do and simultaneously respect groundwater rights. They’re just going to have to adjust to the fact that they can’t say no, they can’t just say this resource is already stressed .”

JoLynn and Glenn Bragg sued the Edwards Aquifer Authority after it denied them the full amount of water they claimed to need to irrigate two pecan orchards in Medina County, west of San Antonio. The couple argued that the allocated amount was insufficient for mature pecan trees, diminishing their crop and economically wrecking their livelihood.

In May 2010, a district judge ruled in favor of the Braggs, writing in his decision that the couple’s “life plan has been undermined, and their investment severely devalued.” He calculated their loss—based largely on the market price of Edwards Aquifer water—at $867,000. Both the Edwards Aquifer Authority and the Braggs appealed the decision. The appellate court, while upholding the “takings” claim, decided the compensation should be calculated in a different way.

“We conclude the ‘property’ actually taken is the unlimited use of water to irrigate a commercial-grade pecan orchard, and that property’ should be valued with reference to the value of the commercial-grade pecan orchards immediately before and immediately after” the permits to pump were issued. That amount is almost certain to be less than the trial court awarded. And you can imagine the inventive arguments each side will come up with to calculate such an award.

The appellate court decision comes on the heels of a landmark Texas Supreme Court ruling last year. In that case—Edwards Aquifer Authority vs. Day—the Supreme Court leaned heavily on oil and gas law to define for the first time the precise nature of groundwater ownership in Texas. The Supreme Court held that the landowner has an absolute vested property right to groundwater in place, just like oil and gas. The court also ruled that “landowners do have a constitutionally compensable interest in groundwater.” In other words, landowners could make a case that groundwater districts could owe them money when they limited or denied permits to pump.

Bragg was the first instance in which the Day decision was applied. All three attorneys I spoke to agreed that the Bragg decision, if it stands, is likely to open the door to more lawsuits. Johnson said takings claims will be most ripe in areas where groundwater districts are imposing pumping limits. He points to the Panhandle in particular, where groundwater managers are trying to slow the depletion rate of the dwindling Ogallala Aquifer.

Greg Ellis, an attorney and formal general manager for the Edwards Aquifer Authority, argues that the Bragg decision “completes a Catch-22″ by perversely opening the door to lawsuits from landowners who end up being punished for conserving their water. Landowner Jane and landowner Bill live next to each other over a stressed aquifer. Landowner Jane chooses to leave her groundwater alone for future generations. Landowner Bill, rationally assuming that he’d better get his before the whole thing drains away, pumps like crazy to water a corn crop or livestock or to fill a tank. The local groundwater district, trying to avoid a takings claim in the wake of Bragg, has very lax rules and allows Bill to proceed. But given the “secret, occult, and concealed” nature of groundwater, Bill ends up draining the water beneath Jane’s land too. In such a scenario, Ellis argues, Jane herself would have a takings claim.

Johnson says he “doesn’t think much” of Ellis’ argument because the grandaddy of Texas water principles—the Rule of Capture, aka May the Biggest Pump Win—protects against just such a scenario. “Under the Rule of Capture, you have no protection whatsoever, none, zero. So how can a district that’s attempted to apply some protection be held responsible for not preventing a, quote, taking when the landowner had no right to protect that in the first place?”

(If you’re confused about Rule of Capture, allow Daniel Day-Lewis to explain:)

 

Both fascinating and tendentious, these arabesque legal arguments may ultimately succumb to a more fundamental problem: Namely, Texas is in a deepening water crisis. The court largely skirted this issue, though it acknowledged that the Bragg farms are in a “semi-arid” part of “drought-ridden Texas.”

What good is a property right or carefully-calibrated regulation when the resource is gone? Should the government really have to pay people for not taking an action that, taken by others similarly-situated, would destroy a resource? Robin Kundis Craig, a law prof at the University of Utah, puts it aptly:

[T]he Texas Court of Appeals both has attempted to elevate historical water rights over new ecological realities and created a major legal impediment for any government entity trying to rationally address changing–especially declining–water resources. Endangered species or not, government regulation or not, overpumping the Edwards Aquifer and increasing droughts in Texas will eventually destroy the value of all private property claims to water (and maybe the value of all private property, period) in many parts of Texas. Instead of encouraging the Texas Legislature and the EAA to deal rationally with these new realities–including the reality that there just isn’t enough water for everyone to do everything they want for the rest of their lives–the Texas courts have effectively forced the EAA to assume all costs of attempting to ameliorate the shortage.

Should the State of Texas or EAA callously let the Edwards Aquifer go dry? I’d like to argue “no”–but I don’t think it should have to pay landowners who rush headlong into that disastrous result, either. Constitutional “takings” clauses need to accommodate changing ecological realities and the tragedy of the commons, or they will just make those tragedies worse.

Sens. Rodney Ellis (D-Houston), Jose Rodriguez (D-El Paso) and Sylvia Garcia (D-Houston)
Sens. Rodney Ellis (D-Houston), Jose Rodriguez (D-El Paso) and Sylvia Garcia (D-Houston).

Environment Texas just released its biennial legislative scorecard, with the usual results: Democrats scored relatively well (some with perfect scores), most Republicans not so much and some GOP-ers struggled to stay in the double digits.

Environment Texas scored lawmakers on 17 key votes—eight in the Senate and nine in the House—involving a range of environmental legislation from requiring frackers to get a local water permit to boosting incentives for solar energy projects.

The Greenest

In the Senate, three senators—all Democrats—earned a perfect score:  Sens. Rodney Ellis (D-Houston), Jose Rodriguez (D-El Paso) and Sylvia Garcia (D-Houston).

In the House, twenty reps voted for major environmental bills, according to Environment Texas, 100 percent of the time:

Alma Allen (D-Houston)
Senfronia Thompson (D-Houston)
Hubert Vo (D-Houston)
Ron Reynolds (D-Houston)

Lon Burnam (D-Fort Worth)
Nicole Collier (D-Fort Worth)

Dawnna Dukes (D-Austin)
Elliott Naishtat (D-Austin)
Eddie Rodriguez (D-Austin)

Helen Giddings (D-Dallas)

Mary Gonzalez (D-El Paso)
Naomi Gonzalez (D-El Paso)
Marisa Marquez (D-El Paso)
Joe Moody (D-El Paso)

Roland Gutierrez (D-San Antonio)
Trey Martinez Fischer (D-San Antonio)
Justin Rodriguez (D-San Antonio)

Abel Herrero (D-Corpus Christi)
Poncho Nevarez (D-Del Rio)
Rene Olveira (D-Brownsville)

The (Least) Greenest

The lowest-scoring Democrats in the Senate were John Whitmire (D-Houston) and Chuy Hinojosa (D-McAllen), each scoring 63 percent. The two had an identical voting record on the eight Senate votes that Environment Texas scored. They cast ‘yes’ votes on three bills that would’ve, in Environment Texas’ words, “eliminated funding for home weatherization,” “tied [the] hands of environmental regulators” and “limited rights of citizens to contest [uranium] mining permits.”

The lowest-scoring Democrat in the House was Rep. Tracy King, one of the few white Democrats left representing a largely rural district.

The competition for least green in the Legislature was an all-Republican affair. In the Senate, the extremely conservative incoming freshmen did not disappoint. Sens. Kelly Hancock (R-North Richland Hills) and Donna Campbell (R-New Braunfels) each scored 25 percent.

In the House, straight-shootin’ gun-slinger and freshman Rep. Jonathan Stickland (R-Bedford) scored a whopping 13 percent. But he had stiff competition. Sixteen other GOP representatives voted against for the environment, according to Environment Texas’ rubric, just 22 percent of the time.

The Capitol rotunda's ground floor full of state troopers
Patrick Michels
The Capitol rotunda's ground floor full of state troopers after the Senate passed sweeping new abortion restrictions last month.

Updated below at 4:50 pm:

Today, the Texas Department of Public Safety released 144 pages of documents—emails and text messages primarily—related to the ongoing #Poopgate controversy. DPS initially resisted attempts from the media and others to access the information under the Texas Public Information Act but later relented. DPS claims that this is the entirety of the relevant information. The agency has redacted some personal information.

You can read the documents here—chime in with whatever catches your eye in the comments.

What the documents show is that DPS collected and shared information, including rumors and off-hand Twitter remarks as well as Facebook postings, about pro-choice protesters during the showdown in the Senate in July. “Per Lt. Esquivel, rumors are out there saying that the orange women will be taking off their clothes, urinating and defecating in the Senate gallery today,” wrote Susan Fafrak, an analyst in the Intelligence and Counterterrorism Division of the Texas Fusion Center, in an email on Friday, July 12. “I am still searching form [sic] some sort of confirmation of this.”

Based on the documents released by DPS today, their hottest sources of intel are tweets from pro-life activists or Republican legislative staffers, or pro-choice protesters joking about the rumors’ absurdity. The documents suggest a law enforcement agency joining in the echo chamber. We’re waiting for a response from DPS on what advantage closely monitoring social media accounts provided the agency, and other questions.

Three bricks photographed by Texas DPS
Texas Department of Public Safety
A photo of bricks included in the Department of Public Safety’s Poopgate documents released monday.

The documents also demonstrate that DPS director Steve McCraw was upset about press coverage questioning the lack of evidence that protesters had tried to bring jars of feces and urine into the Senate. Internally, DPS was able to find just three photos of prohibited items—apparently of paint and bricks—but none of those suspected jars.

Text messages also circulated among DPS personnel on July 15th, three days after the explosive end to the debate over new abortion restrictions. “Were any of you aware of urine or feces take during our shakedowns?” asked a text message from an unknown sender.

The responses: “Just what DPS put out on Email” and “I never observed any.” And, “I was inside the Senate Gallery and did not see or hear of any of the above being taken.”

A Gerardo Gonzalez also passed along information to an APD officer from pro-life activist Abby Johnson, quoting Johnson’s Facebook page, which warned that activists “are planning on getting arrested and being aggressive with prolifer.” Gonzalez wrote to Leverenz that “[Pro-choicers] are very angry, hurting people.”

A “Summary of Open Source Activity” offers a timeline of anonymous tips related to possible “threats” at the Capitol from June 27 through July 13.

It’s not immediately apparent from the documents where the “intelligence” came from regarding the jars of feces and urine. The source of the rumors about the jars of feces and menstrual blood appear to come from a July 11th conversation on the Last Stand with Texas Women Facebook event page. Elliott Weeks in DPS’ media and communications department emailed screen grabs of that page to otherDPS personnel on July 15th, three days after the explosive Capitol showdown.

Update: A DPS spokesman responded to questions from the Observer. Here are the question we posed and the agency’s response in its entirety.

1)      What advantage did closely monitoring social media accounts provide DPS?

We do not discuss security measures or methods.

2) How did DPS gather intelligence on the meetings of activist groups? Were there undercover law enforcement personnel present at the meetings?

We do not discuss security measures or methods.

3) The documents still do not show any evidence of those “suspected” jars of feces and urine despite Director McCraw’s requests to produce any photos showing potential disruptive objects. Was DPS definitively unable to locate any photographic (or other) of these items?

We have no additional information to provide you.

4) Is it routine for DPS to monitor the social media accounts of private citizens?

We do not discuss security measures or methods.

DPS’ Crap Story

The Capitol rotunda during the abortion debate.
Patrick Michels
The Capitol rotunda during the abortion debate.

Few people expected Poop-gate—perhaps the dumbest scandal to ever earn the “gate” honorific—to drag on quite so long. But Lt. Gov. David Dewhurst and the higher-ups at the Texas Department of Public Safety have only themselves to blame.

It all started on Friday, July 12, when the Texas Senate prepared to vote on the sweeping anti-abortion measure that Wendy Davis had filibustered 10 days before. Tampongate had already roiled the Capitol that day after DPS decided to confiscate women’s hygiene products, among many other items, from citizens entering the Senate gallery.

At 4:49 p.m., DPS issued a press release claiming that state troopers guarding the Capitol had confiscated from protesters “one jar suspected to contain urine” and “18 jars suspected to contain feces.” That’s when the shit hit the fan. DPS had stepped in it. The scatological allegation set off plenty of bullshit detectors—we could go on like this all day, but we’ll spare you any more—and spawned Poop-gate.

Almost immediately, citizens and the media began questioning the claims. Where was the proof? The Texas Tribune dispatched a reporter to talk to a number of DPS troopers, none of whom had personally seen the “suspected” jars. No eyewitnesses among the legions of camera-wielding protestors, both pro-choice and anti-abortion, packed into the Capitol had seen the jars. Later, DPS Director Steve McCraw, responding to questions from a state Democratic lawmaker, defended the agency’s claims but said that the offending items had been discarded and no information about the individuals was taken down.

But the lack of evidence didn’t discourage Republicans, including some elected officials, from smearing the pro-choice protestors. Republican Congressman Steve Stockman tweeted, “Democrats planned to throw feces at senators to demonstrate the sanitary standards they support for women’s clinics.”

Poop-gate might have fizzled out at this point but for David Dewhurst. In mid-July, Dewhurst told a tea party radio talk show in Waco that he “saw” DPS troopers smelling bottles of water containing urine and “bags” of feces at Capitol security checkpoints. “Just despicable,” Dewhurst said. “Despicable.”

It was a startling claim. Dewhurst is 6-foot-5 and the subject of considerable media attention. If he happened to leave the Senate and visit one of the Capitol’s crowded security checkpoints, choked with protestors, wouldn’t somebody have seen him? Dewhurst’s office refused to answer questions from prying reporters for almost a week; his spokesman dismissed the whole thing as “silly.”

Finally, cornered by reporters in late July in the Capitol, Dewhurst said he hadn’t actually seen the feces or urine but had been told about them by DPS personnel while visiting a checkpoint. “It’s not a question of what I saw or didn’t see,” Dewhurst said. Well, yes, actually, it is.

Meanwhile, six media organizations, including the Observer, filed public information requests with DPS seeking any records of the confiscated jars. Initially, DPS said it wouldn’t release any information and was seeking a ruling from the Texas attorney general. It’s not unusual for government agencies to withhold information they claim isn’t public or to ask the AG for a ruling. However, DPS’ letter to Attorney General Greg Abbott was unusually broad, citing every exception contained in the Texas Public Information Act, including ones that apply specifically to library records, appraisal districts and no-call lists.

But then in early August, DPS backtracked, withdrawing its request to the attorney general and promising to produce information by August 23. It remains unclear if there ever were any jars or if the state’s law-enforcement agency fabricated the whole thing to embarrass pro-choice protesters. (UPDATE: DPS did release the documents.)

What we do know is that the whole affair has been pretty entertaining. You just can’t make this shit up … but Dewhurst and DPS might have.

An oil field south of Odessa, TX.
An oilfield south of Odessa, Texas

The West Texas town of Barnhart has become a hot spot not only for fracking activity but also the debate over how much of a threat the process poses for groundwater supplies. Barnhart is featured in a provocative article that ran in the Guardian (following pieces in the Wall Street Journal, the Texas Tribune, and the Observer) and received a tremendous amount of attention.

Across the south-west, residents of small communities like Barnhart are confronting the reality that something as basic as running water, as unthinking as turning on a tap, can no longer be taken for granted.

Three years of drought, decades of overuse and now the oil industry’s outsize demands on water for fracking are running down reservoirs and underground aquifers. And climate change is making things worse.

I think the second paragraph is basically indisputable. The only question is how the blame gets apportioned. Not surprisingly, the oil and gas industry would like to cast itself as a bit player in the water drama.

David Blackmon, a Houston-based veteran of the oil and gas industry, writes a blog for Forbes that is always an interesting read because Blackmon is a skilled communicator and does an able job representing the industry perspective. This week, he took major issue with the Guardian piece. His main complaint, if I may try to sum it up, is that fracking is being scapegoated for water shortages in Texas and that the real culprits are uncontrollable natural factors like drought and other water users, especially agriculture (he completely ignores climate change). He writes:

This article, which unfortunately has led to a series of follow-up pieces in other media outlets, spends its first 500 words or so placing full blame for chronic water shortages in and near Barnhart, Texas on the very recent boom in the oil and gas industry.  While it finally does get around to at least indirectly admitting the real, far more complex crux of the matter in its final few paragraphs, the writer achieves her obviously intended effect of drumming up alarm about the Texas oil and gas boom.

What is the real crux of the matter?  First, take a look at a map and see where Barnhardt [sic] is actually located:  southwest of San Angelo, east of Fort Stockton, in the middle of the West Texas desert.  This area has always, since human beings began settling it, experienced water shortages and wells periodically running dry.

Not to nitpick but the town’s name is Barnhart, not Barnhardt. And it is indeed located in an area with low rainfall, about 20 inches a year. That is of course what makes water such a precious resource. In areas with abundant rainfall and groundwater resources, fracking’s impact on water supply is limited. Fracking also appears to not be a major factor when looking at its water consumption as a fraction of total use across the state or region. But that belies the precise situation in places like Barnhart or the southwestern portion of the Eagle Ford Shale, areas that suffer from the trifecta of drought (likely enhanced by climate change), historical over-pumping and the new phenomenon of heavy fracking-related water withdrawals from local aquifers.

The folks in Barnhart get this. Keith Stout, a local who services water wells in the area, told me earlier this summer he’d never seen so many wells go dry before. “We’ve never had this problem,” he said. “We’ve never run into this.” He attributed it mostly to drought but the area’s had droughts before. The kicker, he thinks, is the sudden proliferation of hydraulic fracturing in the area. “It’s like having a savings account—if you keep with drawing from it, it’s eventually gonna run out.”

Fifth, the area in and around Barnhardt, Texas is an area that is home to very heavy agricultural water usage that may well not be sustainable in the long run in such an arid part of the state.  That’s not an attack on the ag industry (which my own family has been involved in for more than 100 years), that’s just a fact that water experts all over the state have long expressed concern about.

Barnhart is in Irion County, which is sheep and goat country, not “home to very heavy agricultural water usage.” In 2011, farmers used just 315 acre-feet of groundwater for irrigation, according to the Texas Water Development Board—that’s the equivalent of just 20 or so frack jobs (assuming 5 million gallons per hydraulic fracturing treatment). There are other parts of the state where ag and oil and gas compete for the same water resources, parts of the Eagle Ford Shale, for example. Blackmon is correct that irrigated agriculture’s contribution to groundwater depletion historically far outstrips that of fracking, though I’m not sure that obviates the immediate concerns.

Finally, many of the oil and gas operators in the Barnhardt [sic] area aren’t even taking water from the shallow underground reservoirs discussed in the first 3/4ths of the Guardian piece.  They are instead drilling deeper wells, often into semi-brackish or brackish formations that are unsuitable for drinking or agricultural uses.  Nowhere does the Guardian mention that reality.

This is a valid point and I really wish we had better data on the source of water used in fracking. The best estimates come from a 2011-2012 UT-Austin study. For the sector of the Permian Basin around Midland the authors estimated that roughly 30 percent of the water used in fracking was brackish. About 68 percent was freshwater. They project that brackish water use will grow alongside a ramp-up in production but freshwater use will remain “fairly stable” at 10-15,000 acre-feet per year.

Blackmon is certainly cognizant that the status quo is not going to fly and is likely an invitation for more regulation.

So in order to maintain the public’s confidence and ultimately its license to operate, the industry is obligated to continue to find ways to conserve and recycle water, along with creative ways to source it.

Fortunately, a lot of very smart people at many of the industry’s most innovative companies are involved in doing exactly that.

Trust us—we shall see if that cuts it.

The Lessons from West

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Gov. Rick Perry visits with first responders in West, TX.

More than three months have passed since the West fertilizer plant caught fire and exploded, killing 15 and injuring more than 200. Since then, we’ve learned a lot about how the tragedy occurred and the regulatory failings that contributed to the disaster.

The revelations have come in dribs and drabs, from media reports to hearings at the Legislature and Congress. It’s difficult to pinpoint one thing that could have prevented the disaster, but that’s in part because there were so many holes in the system and so much blame to go around at the local, state and federal level. But given the evidence, I think it’s clear that West wasn’t an unavoidable act of God. It was a man-made industrial crime. A few examples:

• The West Fertilizer Company didn’t tell local emergency responders until 2012 that it was holding hazardous chemicals, six years after it started handling large quantities of ammonium nitrate.

• But even after the company told a local emergency-planning committee about the ammonium nitrate, the first responders in McLennan County never trained for a fertilizer explosion. The West Volunteer Fire Department never received the federally required report from the company about the contents of the plant.

• Without training or knowledge of the risks, the firefighters—many of them volunteers who died in the blast—were unprepared.

• Like 70 percent of Texas’ 254 counties, McLennan County was prohibited until 2010 from adopting a fire code that would set standards for buildings and provide for inspections.

• Texas allows fertilizer plants to operate without any liability insurance.

• The federal Occupational Safety and Health Administration (OSHA) hadn’t inspected the plant since 1985; the Texas Commission on Environmental Quality had inspected it once, in 2006, for odor complaints; and the Office of the State Chemist had inspected the plant four times in 2012 but only to see if the fertilizer was secure from thieves or vandals.

• For more than a decade, the Environmental Protection Agency ignored a recommendation from the U.S. Chemical Safety Board to classify ammonium nitrate as an “extremely hazardous” chemical, which would require the company to have a detailed disaster-prevention and emergency-response plan.

Imagine for a second that the West fertilizer plant had regular inspections backed up by steep fines; that state or federal agencies had made sure the paperwork had gotten to the local firefighters; that the community had been informed of the risks of the plant. Isn’t it reasonable to assume that the loss of life could’ve been diminished, maybe prevented altogether? That’s the conclusion reached by the Waco Tribune-Herald.

“What blew a huge hole in the lives of West residents was probably preventable,” the paper editorialized in June. “As much as we all hate regulation in Texas, there are times when it’s appropriate. The lives lost and the damage left behind are surely evidence of that.”

But the response from Texas Republican leaders has been quite different. Their attitude from the get-go has been, basically, “Meh.”

Gov. Rick Perry: “[People] through their elected officials clearly send the message of their comfort with the amount of oversight.”

Bryan Shaw, chairman of the Texas Commission on Environmental Quality: “We have hundreds of facilities like this across the state and fortunately they don’t explode very often.”

State Sen. Donna Campbell (R-New Braunfels): “I think we’re doing a good job. Just periodically something happens that’s not predictable.”

This isn’t even the usual linguistic dodge of “mistakes were made.” Some Texas leaders have responded to the West tragedy with an attitude of, essentially, “shit happens.” So far, elected leaders in Austin and Washington have done nothing to prevent future West-type disasters. The only regulatory change? The State Fire Marshal’s Office has said it might create an online database of chemical plants in Texas. Not a bad idea, but both Greenpeace and The Texas Tribune have already constructed similar sites. By leaving the obvious errors in the oversight system unaddressed, our elected leaders are accepting that such a disaster will happen again.

Regulation can be burdensome or excessive. But when dozens of lives can be saved through common-sense changes felt almost exclusively by a small number of companies, it’s worth the cost.

San Antonio City Councilwoman Elisa Chan Describes LGBT Community as “Disgusting”

The Observer talks to the Chan staffer who secretly recorded her homophobic remarks.
Elisa Chan
San Antonio City Councilwoman Elisa Chan

San Antonio is hosting a full-on freak-out over proposed changes to the city’s non-discrimination policies that would cover sexual orientation and gender identity. Christian conservatives are claiming that the revised ordinance would allow men into the women’s restroom, ban Christians from city government and infringe on their religious freedoms to be intolerant of gay people. Proponents have countered by pointing out that it does no such thing and that the current draft is similar to ordinances in Austin, Dallas, Houston and other major cities.

The pot was stirred a bit more today when a secret tape of Councilwoman Elisa Chan’s unvarnished views surfaced. In the recording, Chan describes LGBTQ people as “disgusting,” saying they shouldn’t be allowed to adopt and that homosexuality is “against nature.” Former Chan staffer James Stevens surreptitiously recorded Chan’s comments on his iPhone during a May meeting on the proposed ordinance. Stevens provided the recording to San Antonio Express-News columnist Brian Chasnoff, who published a damning article today.

At one point in the recording, amid a tittering exchange about pansexual people, Chan interjects her opinion on the nature of homosexuality.

“You know, to be quite honest, I know this is not politically correct,” she said. “I never bought in that you are born, that you are born gay. I can’t imagine it.”

As the talk shifted back to pansexual people, whose sexual orientations encompass all gender identities, Chan asks, “How can that be?”

“I will say, ‘Strip down! What equipment do you have?’” she continued. “I’m telling you. Crazy. We’re getting to crazy realm.”

Stevens agrees that it’s “politically incorrect in some circles” to claim that people choose to be gay. “The newspaper will get to you,” he warned.

Chan was evidently aware that her homophobic remarks could get her in trouble politically, and vowed to keep them under wraps in public.

“That’s why I never would say that outside because they kill me,” Chan said. “When I say that it’s … behavioral preference, they say that, ‘No, you’re born with it.’ But I never bought into that.”

I spoke with Stevens earlier today about why he decided to come forward with the recording and what he hopes to see come of it.

Stevens, who is straight but has gay friends, began working as an intern in Chan’s office in the fall of 2012 and was hired full-time on May 13. Slightly more than a week later, on May 21, the 28 year old sat in on his first staff meeting. He was in for a surprise.

“I didn’t go into it thinking I was going to record anything,” Stevens said. “What I was expecting was to discuss policy and to really get into maybe the nuanced arguments on both sides of the debate. … After a few minutes of the conversation really going toward just talking about how disgusting the [LGBTQ] community is I decided that this is something the people of San Antonio should know about, that this is what’s going on behind closed doors.”

Stevens said the conversation began with Chan asking her staff to explain what the “T” stands for in LGBT. (It stands for “transgender.”)

“Her reaction of disgust is what sparked everyone to join and talk about how disgusting it is,” Stevens said, who he was “uncomfortable” during the conversation.

“If I could say one thing to the LGBT community, I wish I could’ve been stronger during that meeting and made more of the points that in hindsight I’d like to make. But being there and especially being my first staff meting and not knowing if this is normal, I didn’t know how to behave.”

He sat on the tape for months, hoping that there would be another chance to discuss the ordinance “in a more mature way. But that never happened.”

What pushed him to finally release the audio was Chan’s unwillingness to consider that gay people might be born that way. “It’s one thing to be ignorant,” Steven saids, “and I can forgive ignorance. But willful ignorance is inexcusable, especially from a representative.”

Stevens doesn’t think Chan will vote for the ordinance now, but he hopes that it might persuade other council members to distance themselves from Chan and her position. He also hopes that the LGBT community will be heartened to know they have straight allies in government who are willing to stand up for equality.

“There are people out there that believe in equality who are going to support you and are going to make sacrifices to do the right thing. There aren’t many of us, but I felt like I was in a position to help and so I did.”

Texas Attorney General Greg Abbott
Patrick Michels

Today in your dog-bites-man news: Texas Attorney General and governor hair apparent Greg Abbott appeared at an Austin business today to complain about Obamacare. The event was sponsored by Americans for Prosperity-Texas, a corporate-funded conservative group that’s taking on Enroll America, a non-profit group that’s going door to door to coax uninsured people to sign up for insurance under Obamacare. In an email yesterday, Peggy Venable of AFP-Texas described Enroll America as “a new group that’s includes [sic] several health insurance industry executives on its board along with former Obama operatives.”

Like every other Texas GOP politician running for statewide office, Abbott has enlisted Obama as a campaign opponent in the absence of a Democratic opponent. On the “issues” page of his campaign site, he puts “end[ing] Obamacare” at the top of the list. Today, he said, “We need to do all we can to get rid of Obamacare and replace it with a better law,” according to San Antonio Express-News reporter Peggy Fikac, but dodged a question about whether he approves of Ted Cruz’s plan to shut down the government to defund the health care law.

Abbott spoke at Texas Mailhouse, a bulk-mailing firm that, just coincidentally I’m sure, does a brisk business in sending out mailers for Republican politicians, including Abbott. Since 2000, Texas Mailhouse has been paid nearly $538,000 by politicians—almost exclusively Republican—and business PACs, according to Texans for Public Justice. Texas Mailhouse owner Bob Thomas also runs Thomas Graphics, a Republican direct-mail firm that has collected more than $458,000 from Abbott’s campaigns since 2000, according to the Texas Tribune.

Meanwhile, Health and Human Services Secretary Kathleen Sebelius was at Austin City Hall drumming up support for the Affordable Care Act. She hinted that the Obama administration is open to working out a compromise on Medicaid expansion, which Rick Perry, Greg Abbott and most GOP-ers in Texas have rejected, leaving an estimated 1.5 million Texans uninsured.

“We are eager to have discussions with Texas about a program that could look uniquely Texan,” the Texas Tribune quoted her as saying. “But as far as I know, those conversations, at least with the state officials, are not taking place right now.”

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