Lawsuits against Flower Mound & Haltom City challenge denials for gas pipelines

By WENDY HUNDLEY / The Dallas Morning News
whundley@dallasnews.com

Two local lawsuits are pitting municipalities against natural gas companies, and the outcomes of these legal battles could have far-reaching effects on urban drilling in the Barnett Shale.

The issue: whether gas pipeline companies can use the power of eminent domain to acquire easements on public property.

"This will be a landmark decision in Texas," said Tom Hayden, a member of the Flower Mound Town Council. "It will decide whether a municipality trumps a utility or vice versa."

Both Flower Mound and Haltom City have been sued because they have failed to approve requests to run gas pipelines on municipal property.

In Flower Mound, Mockingbird Pipeline wants to run 500 feet of pipe through a 30-foot pipeline easement behind a fire station.

In Haltom City, Enterprise Texas Pipeline LLC wants to transport processed gas to market by running a pipeline through the city, cutting across parkland, several streets and acreage that may be a future nature area.

Haltom City Attorney Steven Wood said a pipeline would restrict use of the public land. "You can't build on top of a pipeline," he said. "And you can't imagine how many trees they'd have to tear down to get that pipeline in."

While the power of eminent domain is usually associated with government bodies, other entities – such as electric and telephone companies – have also been granted this authority because they provide a service for the public.

In Texas, many pipeline companies are considered public utilities with eminent domain power. Of the 34 pipeline companies in the Texas Pipeline Association, more than half are public utilities and all have some public utility assets, said executive director Patrick Nugent.

While condemnation lawsuits involving private property owners are not uncommon, "I'm not familiar with any litigation filed between a pipeline and a municipality," said Nugent.

He said he had not heard about the Flower Mound and Haltom City cases but speculated that they would be closely watched by the gas industry.

For municipalities, the legal battle is over sovereign immunity and the right to protect public property from unwanted encroachment.

Flower Mound lost the first round in its argument that municipalities have immunity from lawsuits when Denton County Probate Judge Don Windle ruled Feb. 25 that the court had jurisdiction. He said the pipeline company had no alternative, except to move the pipe and take private land.

"Governments have no purpose to own and hold land except for the public trust and benefit," Windle said, according to a court transcript.

Robert Brown, who is representing the town, is appealing to the Texas Court of Appeals.

The case "could have far-reaching consequences around Texas, particularly for those municipalities that do not agree with pipeline companies that want to locate and install natural gas pipelines in parks, across fire station properties, in front of city halls and at other municipal properties," Brown said in a written statement.

Hayden agreed.

"We need to defend our town," he said. "If we didn't do that, it would set a dangerous precedent."

In Flower Mound, Hayden said granting the right of way could open the door to other pipelines, including ones that could transport wastewater from gas drilling sites to a centralized collection facility.

"That doesn't mean it's going to happen," he said. "But I don't want to have the possibility that town land could be used for that."

Williams Production, which has been at the center of an ongoing debate over natural gas drilling in Flower Mound, has not filed an application for a collection facility and has limited its request to pipelines.

"We're talking about a short stretch of land that the city previously condemned to obtain," said Kelly Swan, a spokesman for Williams, which is affiliated with Mockingbird Pipeline.

"Today, that right of way on the edge of the fire station property is an existing utility corridor that has another natural gas pipeline and a sewage line," he said. "Our short stretch of pipe would fall between them."

He said pipelines are needed to transport natural gas and bring new supplies to consumers.

"The gas from the wells in the area needs to get to other pipelines to carry the gas into the marketplace," Swan said. "If gas lines are needed, it's really a question about locating an appropriate route, which is why our project makes sense."

Steve Lyda: Leadership You Can Believe In

Steve Lyda for Town Council, Place 4

Steve will work to:

Stop the industrialization of Flower Mound – Steve is concerned that the focus of the Town Council has been to increase the number of industrial projects instead of projects that will benefit the entire community.   He believes strongly that oil and gas drilling is not the kind of development we need to bring to Flower Mound.   Our residents want new, sustainable businesses in Flower Mound.  The Town Council should seek to attract the retail that people want.

Keep Gas Drilling Out of Our Neighborhoods – Steve supports the rights of mineral owners to access their minerals and develop their property.  However, development must be done in a responsible manner so as not to affect the health of residents, especially our children; our property values; and the Town’s tax base.  Steve will work to protect residents’ health, safety, and property values by doing everything he can to keep industrial facilities away from our neighborhoods.

Restrain Spending to Maintain a Low Tax Rate – Flower Mound has worked hard to keep taxes low.  In this recovering economy, Steve believes that we must remain vigilant about our Town’s expenses.  The Council must follow a conservative approach to the budget so taxes will not have to be raised nor Town services cut.

Support SMARTGrowth and the Master Plan – The Master Plan of the Town is the guide to how we want Flower Mound to grow in the future.  SMARTGrowth provides the means for assuring that we have adequate infrastructure to support future growth.  Steve is adamant that we must continue to follow and protect this vital plan that helps maintain our Town’s excellent quality of life.

Listen to Residents and Respect Their Opinions – The Town Council must continue to focus on the residents – they are the essence of our community and what makes Flower Mound one of the best places to live in the nation.  People have a right to stand up and have a say about what happens in their Town.  Their opinions should not be taken lightly.   The majority on Council has let the lobbying of out-of -town businesses drown out the voices of our own residents.  As your councilmember, Steve will be open, honest, and fair.  He will also seek to improve communications between the Council and you, the people that Council represents.

Focus on Transportation – Flower Mound has taken a direct approach to transportation issues with the creation of the Transportation Commission.  Steve is honored to have been elected Chair of the commission by his peers.  Steve knows that maintaining our infrastructure is key to the well-being of our community and brings people and businesses to Flower Mound.  With the roadway expansion projects to the south of Town, traveling in and out of Flower Mound will become more congested in the future.  Steve supports expanding the role of the Transportation Commission to address this issue and to develop our transportation options.

Visit Steve Lyda's Campaign Website: http://stevelyda.com
Become a Fan on Facebook: Elect Steve Lyda 

Melissa Northern: A New Direction for Flower Mound

Elect Melissa Northern For Mayor
Vision for Flower Mound – Healthy City USA Lead Flower Mound’s transformation as the destination for those seeking the highest quality of life in North Texas World class medical services Clean air and water Green space, Tree City USA, parks and trails Community activities that promote a healthy lifestyle Environmentally sustainable practices “Complete streets” for cyclists in strategic areas of our community Strong Oil & Gas Ordinance – Citizens First Create a layered approach to responsible mineral exploration that puts Citizens First. Local  - Restore and strengthen gas development ordinances State – Team with other communities, organizations, and our representatives to implement Best Practices that guard against weakening of local control Federal – Advocate and support new legislation that requires compliance with protective health statutes and removes exemptions that are harmful to urban areas Sound Fiscal Management - Today and Tomorrow Incorporate long-term fiscal thinking into our decision-making Practice fiscal restraint during economic uncertainty Cultivate sustainable revenue growth Stop pursuit of short-term development that results in long-term loss of tax revenue SMARTGrowth and Master Plan – Grow the Right Way Focus on sustainable balanced growth Restore protective measures that have been eroded or removed Support development that fits within the scope and complies with the process Drive growth, but not at the expense of environmental quality, community character, and quality of life Resident/Town  Partnership– Leverage our Town’s Talents Promote a true partnership between the residents and the Town Sponsor monthly roundtables with residents and neighborhood leaders Keep residents more informed and involved in local and state issues Support non-profit organizations that give back to the community Overall, be respectful of differing opinions and transparent in decision making Visit Melissa Northern's Campaign Page: http://www.melissanorthern.com Become a Fan on Facebook: Melissa Northern for Mayor

Al Filidoro Open Letter To Flower Mound

An Open Letter to the Residents of Flower Mound
By Al Filidoro

Dear Friends and Neighbors,

I have had the honor and pleasure of serving as your Town Council Member – Place 2. I am seeking re-election and once again, asking for your support. Please consider these issues:

Gas Drilling. I have a consistent record of opposing urban drilling in our neighborhoods. As your representative on Town Council, I supported the gas permit moratorium and opposed the zoning that will allow a Central Collection Facility close to schools and neighborhoods.

Unfortunately, the majority on Town Council disagreed with Council Member Hayden and me. They rejected the moratorium and passed the zoning for the Central Collection Facility. I am hopeful as you consider re-electing me that you will also consider candidates for other positions on Town Council who share our  community’s collective values. Breaking up the majority on Town Council that has abdicated its responsibility to the residents will be critical to our future.

Over time we’ve seen drillers asking for variances on virtually every gas well. Variances originally put into the ordinance for unique exceptions are now the rule. We need to reexamine our Oil and Gas Ordinances and strengthen them.

When it comes to air quality, I’m reminded of this quote from quality improvement pioneer, W. Edwards Deming, “In God we trust. All others must bring data.” Air quality testing from TCEQ or the gas companies is welcome, but Flower Mound must control its own destiny. I led the push on Town Council for Flower Mound to hire an independent testing firm to do our own tests at the well heads and within our neighborhoods. This testing has just begun. I intend to continue pushing for resources in this area until we have independent, ongoing monitoring that will produce the data we need to hold gas drillers accountable.

Our focus needs to extend beyond Flower Mound. When the state legislature was considering laws that would strip our community of local control over gas drilling, I went to Austin and lobbied hard to get our representatives to oppose those measures. We won that round, but we can expect them to be back at it during the next state legislative session. I pledge to you I will be continually vigilant anytime gas drillers or any special interests are trying to persuade the state to take away our town’s rights to self-governance.

Creating a Medical Community. I am proud to say that I helped bring the new THR Flower Mound Hospital to town. It will open in April, 2010 and bring with it over 400 new high paying jobs. I was also instrumental in bringing a rehabilitation hospital to our community that will employ an additional 110 people. Lewisville Hospital also opened a free-standing Emergency Room close to the new hospital. I am working with our town’s Economic Development team to leverage those facilities to create a “Medical Community.” Through targeted solicitation and enticement of healthcare service providers, equipment, insurance, and supply organizations to locate in our community we can strategically develop Flower Mound in a way that will produce jobs, tax revenue and valuable services for our residents.

Your Tax Dollars. So far during this economic downturn, Flower Mound has been able to keep town services at the same level and avoid the layoffs and furloughs that have hit surrounding communities. I am concerned, however, that we have not yet felt the impact of the downturn as we can see our tax revenue is on a concerning downward trend. This year it will be down 12%. Now is the time for strong financial leadership to maximize our tax revenue and make sure that wasteful spending does not creep into our town government.

My experience as Director of Finance for a major state agency and over 10 years of governmental auditing and accounting experience will serve our community well as we face these challenging financial times.

SMARTGROWTH and the Master Plan. I have worked to protect both SMARTGrowth and our Master Plan. When Town Council created a Central Business District for the River Walk project exempt from SMARTGrowth criteria, I insisted that we consider the SMARTGrowth criteria in designing this project anyway. While I recognize there are unique instances where it may make sense to deviate from the Master Plan, adding high density apartments to our community is not one of them. I do not support increasing residential density nor do I support rezoning our valuable tax-generating commercial property to allow developers to turn a quick profit with apartments.

Standing Up for What Is Right. I’ve had enough of gas drillers and developers threatening to sue in the hopes that our elected officials will be intimidated into not fighting for our residents. While some members of Town Council may let their fear of lawsuits paralyze them, I will stand up for what is right. If that causes a gas driller to sue our town – I say, “Bring it on.” We cannot govern without conviction. I am an attorney by training and occupation but in my capacity on Town Council I am a lawmaker. I am uniquely qualified to caution that when avoidance of lawsuits becomes our singular objective, we have lost our ability to adequately
govern.

This Election. This election comes down to who you believe will protect your family’s health and financial well-being. My record demonstrates that you can trust me to not only say the right thing, but to do the right thing. Allow me to continue to serve you as your Town Council Member – Place 2.

Visit Al Filidoro's campaign website at http://alfilidoro.com/

Flower Mound Town Council Must Enact a Moratorium

Below is a reprint of a story from Earthworks that I felt relevant to Flower Mound considering the recent air quality test conducted by the town that showing elevated levels of carbon disulfide and methane.

It is important that we voice our concerns to our town representatives.

Councilmen Al Filidoro and Tom Hayden support a moratorium.  However, in order for a moratorium to be passed we need a Minimum of 3 Town Council members to support. Steve Dixon and Mike Wallace are our best chance to have a majority vote for a Moratorium.

I urge you to send emails to our each of our council members and Mayor and urge them to enact a moratorium and stricter guidelines on gas drilling, and produced water management.

Here are email addresses to our town council & mayor:

Jody Smith: mayor@flower-mound.com
Steve Dixon: place1@flower-mound.com
Al Filidoro: place2@flower-mound.com
Mike Wallace: place3@flower-mound.com
Jean Levenick: place4@flower-mound.com
Tom Hayden: place5@flower-mound.com

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A struggle with toxics in the Barnett Shale -- the story of Megan Collins

A house in the country
I had always hoped for a nice, quiet, country setting where we could raise our children. Little did I know it would be the cause of unexplained illnesses and heartache.
In 2004, my husband Mike and I found this quiet little cul de sac in the small town of Clarke, Texas now known as DISH. At the time there were only two homes built, so we met with the builder and picked what we thought was the perfect lot. Just beyond the back fence there stood a single natural gas compressor station.
Mike and I never really gave it any thought. We just assumed the trees would block any unsightly compressors. We never thought about any emissions. After our home was built in 2005 it seemed just perfect, we couldn't be happier. After a few months, though, it seemed that every time we turned around they were building another compressor station to move the natural gas locked beneath us in the Barnett Shale.
The noise became a nuisance. And the smell of natural gas was always in the air. The gas companies sent out notices that they wanted to be "good neighbors." They said they would work on the noise levels. They told us not to worry about any natural gas smells.
Little did we know, they would be the worst neighbors ever.
I started noticing issues with what I thought were allergies: watery eyes, itchy throat, and sneezing were a daily problem. Then in late 2006 I noticed that I was having trouble with my balance, sometimes staggering around and unable to stand with my feet together. My "allergy" and sinus issues were also increasing, so I just thought it was an equilibrium problem.
I began seeing an ear, nose and throat specialist. After months and months of tests, medications, and a sinus surgery, he recommended seeing a neurologist for my balance. I thought he had lost his mind, I surly did not have any neurological issues, and I was only 30 years old. Then out of nowhere I woke up one night sweating, nauseated, with a headache. I got out of bed to go into the restroom and blacked out.
After seeing several neurologists, I never received a clear diagnosis. We kept trying to figure out what in the world was going on. Then it seemed that my legs were always hurting, sore like I had been working out. It progressively got worse and the next thing I knew my whole body felt this way. I would wake up some nights and my neck would be in a spasm off to the right side, it was terribly painful. My neurologist diagnosed me with dystonia and ataxia, but where did this come from and why, he could not tell me.
I started multiple medications and physical therapy, which I still do twice a week. I honestly felt like I was going crazy. In June I woke up with blurry vision, went to work and experienced the worst headache. I couldn't stand and I couldn't speak even though I knew what I wanted to say. I was taken to the ER and admitted to the hospital. Again, I never had a clear diagnosis. The doctors suggested that it could be migraine or even a stroke.

One day last spring, out of the blue, I told my husband that I wanted to sell the house and move back to Fort Worth. I think the overwhelming medical problems just made me want to be closer to friends and family. So we put the house up for sale and about a month and a half later it sold. All I can say is we were so very lucky that the house sold when it did.
Poisoned by a neurotoxin?
In September, my boss gave me an article from the Fort Worth Star Telegram about Ambient Air Monitoring results. The article said that our Mayor of DISH hired an environmental consultant and they found a toxic soup of carcinogens and neurotoxins that were being emitted from the compressors. I had Mike contact the Mayor while I began researching the chemicals found. I was shocked when I discovered that Carbon Disulfide was a known neurotoxin.
It has been almost six months since we moved away. I am noticing that my balance is coming back. I am now able to stand with my feet together and walk in a straight-line heel to toe. I have not been able to do those tasks in over 2 and a half years. I recently had an appointment with a movement disorder neurologist scheduled, and she was amazed. It seems that all of the ataxia symptoms are gone, just not the dystonia.
Health is more important than gas
I am hoping to raise awareness about the dangerous health effects of these toxins. These gas companies need to clean up their acts. The health of citizens is much more important than natural gas being extracted from the Barnett Shale.