Despite public sentiment to the contrary, a key state Senate committee approved a bill Thursday limiting municipal control over oil and gas drilling and prohibiting any city from banning fracking.
The Senate Natural Resources and Economic Development Committee voted 9-0 for House Bill 40 — also known as the Denton fracking bill. It reasserts state control over drilling while spelling out some of the limited powers that cities have in regulating surface operations. The Senate is now scheduled to debate the bill on Monday.
The push for the bill came after Denton residents approved a ban on hydraulic fracturing in November. A University of Texas energy poll released this week said more than 50 percent of Americans and Texans support such a power for cities.
Sen. Troy Fraser, chairman of the powerful committee, avoided attempts to amend the bill, which underwent a careful and sometimes contentious rewrite in the House before being adopted 122-18. Fraser said a lot of people were trying to put “belts and suspenders on it.”
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After the vote, Fraser, R-Horseshoe Bay, declined to answer questions from the Star-Telegram. In a statement, he said the bill is designed to clarify state and local regulations “to prevent a statewide patchwork of unreasonable ordinances that would threaten oil and gas production.”
But 15 public officials signed a letter saying that they have “deep concerns” about the bill and that they “firmly opposed any roll back of our authority to protect the health and safety of our constituents.”
Among those signing the letter were Azle Mayor Alan Brundrett, Arlington Councilman Robert Rivera, and Dallas City Council members Phillip Kingston and Adam Medrano.
“We urge you to withdraw, adjust, or amend your bill to allow local governments the authority to prevent and limit impacts from fracking operations on public health, infrastructure, social services and the environment,” the letter says.
Luke Metzger, founder and director of Environment Texas, was not surprised that the committee approved the bill: It had approved an earlier version on a similar unanimous vote. He was, however, disappointed that Fraser and the other committee members would not even consider tweaking the measure.
“He refuses to make any amendments to the bill even when he admits there could be unintended consequences,” Metzger said.
Denton Mayor Chris Watts told the committee Thursday that this version is a “vast improvement” over the original but that he still has concerns.
Todd Staples, president of the Texas Oil and Gas Association, praised the committee’s vote and said the bill “clarifies the responsibilities of cities and the state for regulating the oil and gas industry.”
“HB40 is a fair bill that balances local control and property rights,” Staples said.
The fight over who controls urban drilling began after Denton residents approved a ban, not on all drilling but simply on hydraulic fracturing. A grassroots group felt that the city and the Texas Railroad Commission, which regulates the industry, were not doing enough to protect them.
That vote followed difficulties in other cities, including Fort Worth, Arlington and Mansfield, related to urban drilling.
The Denton ban is being challenged in court, but lawmakers have made it clear in a number of bills that they don’t want to allow any city to ban a drilling process. Beyond that, the question was how far the state would go in imposing control.
HB40 emerged as the major drilling bill moving through the Legislature. It was written by Rep. Drew Darby, chairman of the House Natural Resources Committee, as an attempt to give the industry regulatory certainty amid a “patchwork” of regulations adopted by cities.
At the top, HB40 makes it clear that state agencies such as the Railroad Commission and the Texas Commission on Environmental Quality are in charge, saying the law would “expressly preempt the regulation of oil and gas operations by municipalities and other political subdivisions.”
Darby, R-San Angelo, added a four-part test for allowing cities to regulate operations above the ground, such as fire and emergency response, noise and setbacks. But the bill says those controls must be “economically reasonable” and can’t hinder or “effectively prohibit” the work of a “prudent operator.”
To provide some comfort to cities with long-standing 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 to take place should be considered commercially reasonable.
City officials still complained that the measure eroded municipal powers and created ambiguity. For example, rules banning saltwater injection wells might not survive, they say. Blowout prevention measures may be gone, they add, and requirements for the capturing of well site emissions could be compromised.
But the Texas Oil and Gas Association and the Texas Municipal League, which had spoken out strongly against the bill, agreed “to support or be neutral” on this version and not provide amendments unless both parties agree.
‘Boots on the ground’
On Thursday, critics of the bill pointed to an April 11 incident in Arlington in which thousands of gallons of salty, pressurized frack water began back-flowing out of a well.
Numerous homes were evacuated. An investigation found that a malfunction with a frack adapter flange was to blame, officials said. Arlington Fire Chief Don Crowson said passage of HB40 would make it hard to respond to such incidents.
Cyrus Reed, conservation director for the Lone Star chapter of the Sierra Club, recommended that the bill be amended to allow city inspectors to enforce state regulations. “They are the boots on the ground,” he said.
Oddly, Watts said, HB40 doesn’t address the situation in Denton that led residents to seek the ban. In Denton, a driller said current ordinances didn’t apply to his situation because the permit had been issued years ago. HB40 would not address that “vested rights” situation.
“I think that is a big gap there,” Watts said.
Andrew Dobbs, program director for the Texas Campaign for the Environment, echoed the sentiments of grassroots leaders and city officials who have testified that the bill goes too far. Dobbs said it will strip away hundreds of carefully crafted local regulations statewide.
“It’s a bad idea,” Dobbs said.
Snapper Carr, a lobbyist for the Texas Municipal League, Fort Worth and Denton, said the bill, if adopted as written, will lead to a lot of rulemaking by the Railroad Commission to settle all the questions.
“It will be settlement by statute,” he said.
Max B. Baker, 817-390-7714