As environmental groups held a mock funeral to mourn the death of local control, the Texas Senate on Monday approved limiting municipal control over oil and gas drilling and prohibiting any city from banning hydraulic fracturing.
Without any substantive discussion, the Senate voted 24-7 for House Bill 40 that reasserts state control over drilling while spelling out some limited powers that cities have in regulating surface operations.
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.
The bill will now go to Gov. Greg Abbott’s desk for his signature. The governor has 10 days to sign it or veto it, but because it passed by large margins in both chambers, it would become effective immediately after Abbott signs it.
The oil and gas industry has been on a crusade to get rid of the Denton ban, criticizing the patchwork municipal regulatory landscape that has grown across the state as urban drilling flourished. Officials in cities said they were simply protecting the health and safety of their residents with their detailed ordinances.
Sen. Troy Fraser, chairman of the Senate Natural Resources and Economic Development Committee, campaigned against any attempt to amend the bill in committee last week and again Monday on the Senate floor. The bill underwent a contentious rewrite in the House before being adopted there 122-18.
“This is a carefully crafted compromise,” Frasier, R-Horshoe Bay, said in an interview on the Senate floor shortly after the vote. “Neither side is totally comfortable, but that’s what happens in a compromise. We tend to find a place in the middle where we can co-exist.”
The Texas Oil and Gas Association President Todd Staples, praised the passage of HB40, calling it “important legislation to keep Texas communities safe and our economy strong.”
“House Bill 40 enjoys widespread support because the legislation provides cities with authority to reasonably regulate surface level oil and gas activities, while affirming that regulation of oil and gas operations like fracking and production is under the exclusive jurisdiction of the state,” Staples said.
City officials, grassroots activists and environmentalist are not happy with the legislation, saying simply that the bill goes too far and robs municipalities of local control that polls show the public believes they should have.
‘A sad day for Texas’
Opponents of the bill gathered in the outdoor rotunda of the Capitol extension at the same time the Senate was voting on the bill. Many of them were wearing black and standing near a fake tombstone and coffin.
“I think this is a sad day for Texas, a sad day,” said Andrew Dobbs, program director for the Texas Campaign for the Environment. “I think a lot of local governments are going to have a rude awakening over the next few years. … This is a power grab [by the industry] that is going to be difficult to roll back.”
Lawmakers have said that the bill was necessary to clarify state and local regulations and prevent a statewide patchwork of unreasonable ordinances that would threaten oil and gas production.
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.
HB40 emerged as the major drilling bill moving through the Legislature. It was written by state Rep. Drew Darby, R- San Angelo, chairman of the House Energy Resources Committee,as an attempt to give the industry regulatory certainty amid the myriad 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.”
The bill includes 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 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 to take place should be considered commercially reasonable.
City officials said the bill was too ambiguous and would create problems, not solve them. Still, TXOGA and the Texas Municipal League, which had initially spoken out strongly against the bill, eventually agreed “to support or be neutral” on this version and not provide amendments unless both parties agree.
For opponents, that took the wind out of any effort to stop the legislation from passing. From Fraser’s vantage point, he said “as the issue matured,” language was inserted in the bill that eventually gave TML’s leadership “a comfort level” that convinced them to go along.
Still, after the compromise city officials complained that the measure eroded municipal powers and added 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.
“I am outraged by this assault on local control, public health and safety,” said Luke Metzger, director of Environment Texas. “Local ordinances are often the last line of defense for Texans beleaguered by dirty drilling.”
Jim Bradbury, an environmental lawyer who helped write the Fort Worth ordinance that was so loudly praised during the earlier debates, said he doesn’t think a lot will change initially. He thinks the larger cities, such as Fort Worth, Arlington and Mansfield, will continue to enforce their ordinances.
“It’s going to take an operator who is ready to go to war,” to challenge those ordinances, Bradbury said.
Still, he thinks HB40 is “a mess.” Bradbury is disappointed that the TML backed down in its fight.
Political price to pay?
Cathy McMullen, the Denton home health nurse who lead the grassroots fight for the Denton fracking ban, said she was not surprised with what happened. She said they had trouble getting House and Senate members, Democrats and Republicans, to meet with them about the bill.
“We could tell from the beginning of this session what was going to happen,” McMullen said. “They are all accountable for what happens when industry has unfettered access to our neighborhoods, our schools.”
“Now we go back to the basics, our grassroots eduction of what your rights are. That is where we started so that is what we’ll do,” she said.
That, and campaign against those who voted for the bill.
“My job is to make sure that everyone who voted for this is not re-elected,” McMullen said.
Max Baker, 817-390-7714