Barnett Shale

Urban-drilling bills called a ‘scorched earth’ approach to regulation

Three bills giving the state more control over urban oil and gas drilling are being criticized for stripping cities of their ability to protect the health, safety and property rights of their residents.
Three bills giving the state more control over urban oil and gas drilling are being criticized for stripping cities of their ability to protect the health, safety and property rights of their residents. Star-Telegram archives

Three bills restating the state’s authority over urban oil and gas drilling are being criticized for stripping cities of much of their local control, with one group calling the effort a “scorched earth” strategy by the energy industry.

State Rep. Drew Darby, chairman of the powerful House Energy Resources Committee, filed two bills this week outlining the role the state should play in regulating the industry after the passage of a ban on hydraulic fracturing in Denton last year.

One bill filed by the San Angelo Republican, HB40, would not allow local governments to ban or limit an oil and gas operation and would require that any other regulation be limited to surface activity that is considered to be “commercially reasonable.” A companion bill, SB1165, was filed by Sen. Troy Fraser, R-Horseshoe Bay, chairman of the Senate Natural Resources and Economic Development Committee.

House Bill 2855 would force a city, when it wants to adopt an ordinance on drilling, to go to the Texas Railroad Commission for review. The commission would decide if the regulation goes too far, and its ruling could not be appealed.

The Texas Municipal League reacted loudly to the legislation, saying it would pre-empt most regulation of oil and gas operations by cities and all other political subdivisions.

“We always feared the industry would not be satisfied with legislation that just prohibits fracking bans like the one in Denton,” said Bennett Sandlin, executive director of the municipal league. “And now it’s clear they have gotten greedy and see an opportunity to pursue a scorched earth strategy to wipe out everything in their path.”

“If this bill is passed, you could have a drilling rig operating right beside your back fence, your child’s day care center, your church or a hospital with all of the around-the-clock noise, hazardous materials, emissions and truck traffic that accompany drilling activity,” he said.

Jason Modglin, Darby’s chief of staff, defended the legislation, saying it was the representative’s attempt to “establish some regulatory certainty on oil and gas activity in urban areas.” He said cities would still be able to regulate standard-of-living issues like traffic, lights and noise.

The Texas Oil and Gas Association, which backs the bills, also fired back against the municipal league’s characterizations, saying the bills simply affirm the state’s role in regulating oil and gas activities like drilling, fracking and production. The association said it supports reasonable regulation to protect the environment while also growing the economy.

“The legislation strikes the right balance by recognizing the right of cities to enforce reasonable restrictions on surface activities during oil and gas operations, and the responsibilities and expertise of state agencies for oil and gas regulation,” said association President Todd Staples.

War of words

The legislation, and the war of words, are the latest chapter in the fight over urban drilling since Denton voters adopted a ban on hydraulic fracturing, or fracking, in November.

While fracking’s widespread use has greatly boosted domestic oil and gas production, it has also sparked controversy and growing opposition over concerns about air and water pollution, noise and truck traffic. Fort Worth, Arlington and Mansfield have all passed detailed ordinances to regulate urban drilling made possible by horizontal drilling techniques.

The Denton ban is being challenged in court by the state and the oil and gas industry. In court documents, they argue that the ordinance exceeds the limited power of home-rule cities and intrudes on the authority of state agencies like the Railroad Commission.

Other lawmakers, including Sen. Konni Burton, R-Colleyville, and Rep. Phil King, R-Weatherford, have offered their own legislation designed to prevent further bans.

Giving drillers ‘a stick’

But Darby’s bills, filed by the lawmaker who controls the flow of energy legislation that makes it to the House floor for debate, have drawn the strongest reaction. Both bills, if supported by the two-thirds vote, would go into effect immediately. Otherwise, they would go into effect Sept. 1.

While Modglin, of Darby’s staff, says the bills are not meant to “strike down any existing” regulations, the municipal league and others contend they can be applied retroactively, undoing the Denton ban and unraveling ordinances adopted by Fort Worth, Arlington and Mansfield, among others. That would turn local land-use decisions over to the state, some said.

Denton Mayor Chris Watts said that the city’s lawyers are still studying the bills but that they may prevent the city from enforcing the drilling ban and other provisions in its ordinances, which city officials are rewriting. “It is pretty inclusive of what they want the state to regulate,” he said.

Fort Worth Mayor Betsy Price said that she has not had a chance to study the legislation but that she is wary of bills that strip local control from cities.

“We would be very reluctant to support something that would hinder or change what we have already done on our ordinances,” Price said. “The Railroad Commission has control over the drilling piece, but the city has to be able to work on things like noise abatement and setbacks for the quality of life of our citizens if we are going to have urban drilling.”

Jim Bradbury, an environmental lawyer who helped write Fort Worth’s ordinance, said an energy company could use Darby’s bills to challenge existing ordinances.

“It is an argument to undo everything,” Bradbury said. “It is so far beyond Denton, it is hard to grasp.”

Staff writer Caty Hirst contributed to this report.

Max B. Baker, 817-390-7714

Twitter: @MaxBBaker