Two years ago, lawmakers in Austin wanted to make one thing perfectly clear: When it comes to the oil and gas industry, the state is in charge.
House Bill 40, better known as the “Denton fracking bill” after that city became the first to ban hydraulic fracturing, drastically cut back on what cities could do to control urban drilling.
But a bill filed by a South Texas lawmaker in Austin would reinstate some of that local control. House Bill 3403 would allow cities to prevent a new oil or gas well from being drilled 1,500 feet from the property line of a school or child-care facility that has at least 100 students.
I know the importance of the oil and gas industry for Texas, but as big an advocate as I am, I’m a parent first.
State Rep. Terry Canales, D-Edinburg
“I know the importance of the oil and gas industry for Texas, but as big an advocate as I am, I’m a parent first,” said state Rep. Terry Canales, D-Edinburg. “This may sound cliche, but our children are our future and we need to protect them, be it from industry or anyone else.
“The technology that exists today allows industry to be miles away — horizontally, diagonally, laterally — and it is no secret that drilling for oil is not the safest thing to do,” he added.
Tammi Vajda, a community activist who opposed urban drilling in Flower Mound, said the regulation is necessary because she does not trust state regulators or the oil and gas industry to always do the right thing.
“I’d like to see it go all the way and I’d like to see more done [to restore] authority to the cities,” Vajda said. “It’s going to be an uphill battle, but we have to start somewhere, don’t we?”
HB 3403 is a departure from the regulatory approach in Texas that is working to promote consistency in oil and natural gas regulation and responsible oil and natural gas production.
Todd Staples, president of the Texas Oil & Gas Association
Environmentalists also support the bill, which they’ve dubbed the “Protect Our Children Act.” Their research shows that in Texas more than 221,000 children are enrolled at 927 schools and day-cares within 1,500 feet of an active oil or gas well, posing a potential health threat from emissions, among other things.
“You can’t learn your ABCs while you wheeze,” said Earthworks Gulf regional organizer Sharon Wilson in a prepared statement. “It’s just common sense that cities should be able to put a tighter rein on oil and gas facilities that are most likely to pollute and disrupt our kids’ schools.”
In 2015, the energy sector fought hard for HB 40’s passage, saying it wanted to end the patchwork of regulations across the state. They argue that HB 40 allows cities to address residents’ concerns when it comes to such issues as noise, traffic and lighting. But the law says those controls must be “economically reasonable” and can’t hinder or prohibit the work of a “prudent operator.”
The proposed bill would be a departure from that regulatory approach, they said.
“HB 3403 has zero scientific basis and does not acknowledge wells’ existing safety features or the fact that many structures are built and are safe much closer to existing oil and natural gas facilities,” said Todd Staples, president of the Texas Oil & Gas Association.
Canales’ bill is the first to try to reclaim local control over urban drilling. State Sen. Judith Zaffirini, D-Laredo, has filed a similar bill calling for a 1,500-foot setback, but her bill calls for a hearing to be conducted by the Texas Railroad Commission, which regulates the oil and gas industry in the state.
“I think there should have been a more thoughtful blend of local control and state law,” Canales said of HB 40.
Both bills aren’t necessarily a push-back against HB 40 but an effort to fill in the regulatory gaps created when the bill was adopted, said Jim Bradbury, a Fort Worth attorney who helped write Fort Worth’s drilling ordinance. The argument has been made that the railroad commission should have been writing its own regulations.
“The state should have been establishing regulations,” Bradbury said. “What is a setback if a city doesn’t have an ordinance? ... It [HB 40] was a classic setting of the big lines but the details were left unsaid.”
HB 40 did provide some comfort to cities like Fort Worth and Arlington, which had established urban drilling ordinances that exerted some control while still allowing drilling to occur. This “safe harbor” provision allows any ordinance or other measure in effect for five years to continue.
But Canales’ bill would more than double the drilling setback near a school in Fort Worth, said Tom Edwards, the city’s senior gas well inspector. Currently, the city requires a 600-foot setback from the property line, unless a waiver has been granted, and then a well could be within 300 feet of a building.
“That is a pretty big setback. At that point it’s about a quarter of a mile,” Edwards said. It would be a tough requirement to meet since many schools are in densely populated areas, he said.
Cities with established ordinances may be reluctant to change them out of fear that it would remove the safe harbor protection. He said there is a “real fear of even tweaking it.”
“The best thing is not to change anything,” Edwards said.
Canales admits his bill faces a tough fight.
“To say that the bill has a steep hill to climb, I think that’s a gentle way of putting it,” Canales said. But he said now is the time to re-examine HB 40, as the oil and gas industry recovers in Texas. “There has never been a better time to address it and protect our children,” he said.