With the stroke of his pen, Gov. Greg Abbott may have just made Denton not only the first but also the last city in Texas to ban fracking.
Abbott signed House Bill 40 Monday, which reasserts the state’s control over oil and gas drilling. It prohibits cities from banning hydraulic fracturing, giving them only limited control over the oil and gas process within their city limits.
The push for the bill came after Denton residents approved a ban on hydraulic fracturing in November. It was the first Texas city to do so.
Abbott’s stamp of approval on the bill came as no surprise. At the beginning of the legislative session, the governor bemoaned the growing patchwork of local ordinances in Texas on issues from drilling practices to plastic shopping bags, saying that Texas was being “Californiaized.”
Abbott said that HB40 does a “profound job of helping to protect private property rights,” ensuring that “those who own their own property will not have the heavy hand of local government deprive them of their rights.
“HB 40 strikes a meaningful and correct balance between local control and preserving the state’s authority to ensure that regulations are even-handed and do not hamper job creation,” Abbott said in a prepared statement.
Because HB40 passed by such wide margins in the Texas House and Senate, the law goes into effect immediately. He signed the bill two days after students on the Denton campus of the University of North Texas protested his appearance at their commencement, partially because of his support for the bill.
The oil and gas industry pushed hard to not only get rid of the Denton ban but to prevent it from being repeated elsewhere. City officials, especially those in the 5,000-square-mile Barnett Shale in North Texas, said they were simply protecting the health and safety of their residents with their detailed ordinances.
“This is a balanced approach that protects the ability of municipalities to reasonably regulate surface activity related to oil and gas development, while offering the regulatory certainty necessary for our industry operations,” said Ed Longanecker, president of the Texas Independent Producers & Royalty Owners Association.
The city of Denton was sued by the Texas Oil and Gas Association and the Texas General Land Office over the ban. Attorneys monitoring the two court cases in Denton County civil court said it is likely that the lawsuits will now be dismissed.
Denton Mayor Chris Watts in an interview last week would only say that the city, because of the litigation, is looking at its options before deciding on the ordinance’s future.
“We’re waiting to see how things settle out and what the next course of action is,” Watts said.
The new state law includes a four-part test for allowing cities to regulate drilling operations above ground, such as emergency response, noise and setbacks. But the law says those controls must be “economically reasonable” and can’t hinder or prohibit the work of a “prudent operator.”
To provide some comfort to cities with longstanding ordinances, such as Fort Worth, the bill contains a “safe harbor” provision that says any ordinance or other measure in effect for five years that has allowed drilling should be considered commercially reasonable.
City officials have complained that the law erodes municipal powers and is too ambiguous. For example, rules banning saltwater injection wells might not survive. Blowout prevention measures may be gone, they add, and requirements for capturing well site emissions could be compromised.
Some of the issues, ultimately, may be decided by court challenges, city attorneys said.
Business as usual
Cities with longstanding ordinances are expected, at least in the beginning, to continue enforcing them. Fort Worth’s ordinance, on the books for 14 years, was praised as a model for the state during legislative hearings. For Cowtown inspectors, it’s business as usual.
“We are going to press on and see what happens,” said Tom Edwards, Fort Worth’s senior gas well inspector. Fort Worth has more than 2,000 producing wells. “I haven’t been told any direction any way or the other, so we’re going to keep doing what we’re doing.”
Randle Harwood, Fort Worth’s planning and development director, said: “We’ll use all our resources to protect the healthy and safety of the citizens of Fort Worth within the context of the bill and in partnership with the state.”
Activists in Denton said they sought the ban out of desperation. A grassroots movement called the Denton Drilling Awareness Group emerged after residents became frustrated with the city when a company was allowed to search for natural gas within a few hundred feet of homes. They also felt the state was not responsive to their complaints.
The group was concerned about the effects on public health, welfare and safety including the injection of water, gels and acids into aquifers, as well as the venting of gas, noise issues and site security.
The group collected nearly 2,000 signatures to put a referendum on the ballot. The ordinance did not ban all drilling, just hydraulic fracturing, but industry representatives said it effectively banned drilling since it is not cost-effective to drill conventional wells that aren’t fracked.
The council was required to hold a public hearing and vote on the proposed ordinance. In the end, on two procedural votes, council members decided not to vote on the ban themselves but to put the referendum on the ballot.
Randy Sorrells, leader of a group opposed to the ban called Denton Taxpayers for a Strong Economy, said the entire debate over the local ordinance and HB40 has made everyone more aware of the crucial issues involved.
“Everyone is more aware so that everybody works together a little better,” Sorrells said.
‘Gutting local control’
There is also a bill in Austin that would prevent local governments from putting any measure on their ballot that would “restrict the right of a person to use or access” their private property for economic gain.
The bill, House Bill 2595, authored by State Rep. Jim Keffer, R-Eastland, was approved by the House last week and has been sent to the Senate. The city of Fort Worth testified against the bill, along with several environmental groups.
“It seem the 84th Legislature can’t go far enough in gutting local control,” said David Weinberg, executive director of the Texas League of Conservation Voters.
In another odd twist, Watts also said that there is nothing to prevent a driller from coming into Denton and creating the kind of situation that forced residents to seek a ban. In that instance, a driller said current ordinances didn’t apply because the permit had been issued years ago.
“What keeps that from happening in the future, even if we have a commercially reasonable ordinance?” Watts said.
Luke Metzger, director of Environment Texas, said HB40 keeps local governments from adopting many health and safety protections to limit the impacts of oil and gas operations. The group said it will undermine ordinances in 300 communities.
“Gov. Abbott has succeeded in seizing power away from local governments working to protect us from the real dangers of dirty drilling,” Metzger said.
Every city will be trying to figure out what comes next, said Mansfield Public Safety Director Bill Lane, who is also an attorney.
“I think everyone is going to have to take a deep breath and figure out what all this means,” Lane said. “We are going to continue to monitor the wells, even if we don’t have the authority.”
A legal challenge to a city’s authority may not come until the price of natural gas goes up and sparks a rebound in drilling, he said.
Max B. Baker, 817-390-7714