Last November, residents of the North Texas town of Denton overwhelmingly voted to ban fracking within their city limits. This did not sit well with Texas lawmakers, and they have made it a top priority of this spring’s legislative session to make sure it doesn’t happen again.
On Monday, the Texas House Natural Resources Committee voted 10–1 to approve House Bill 40, which drastically curtails local governments’ abilities to say no to fracking within their communities. The Senate Natural Resources and Economic Development Committee passed a companion bill last week, SB 1165. Both bills will now head to the full House and Senate for votes.
This effort is the latest take on a style of preemption legislation that has been used across the country to bar cities from regulating everything from landlords to the minimum wage. As the New York Times recently reported, these preemption laws invoke “a paradox for conservatives who have long extolled the virtues of local control in some areas, like education, but now say uniform standards are necessary in others.”
In Texas, this hypocrisy is on full display when it comes to banning local control over fracking.
“These bills absolutely conflict with longstanding conservative principles of local control and self-determination,” Luke Metzger, the founder and director of Environment Texas, told ThinkProgress. “Many of these legislators are speaking out of both sides of their mouths, decrying federal preemption of state sovereignty on the one hand, while pushing one-size fits all mandates from Austin overriding local ordinances.”
Metzer said that the bills were primarily driven by Denton’s vote to ban drilling, and that while the House Bill was changed to be less severe, it could “still could undermine many city ordinances.”
The House bill would only allow ordinances that regulate aboveground activity related to oil and gas operations, such as things relating to traffic, noise, lights, or “reasonable setback requirements,” which dictate how far away drilling must be from buildings.
Currently, Fort Worth has a 600-foot drilling setback and Dallas has a 1500-foot drilling setback. Denton, a city of about 125,000 residents, is located 35 miles northwest of Dallas. All three of these cities sit atop the Barnett shale, a 5,000-square-mile geologic formation that is one of the largest natural gas fields in the U.S. It is unclear which setback rules would be considered “reasonable. “
Lon Burnam, who served as the Fort Worth Congressman for 18 years until this January, and who is now working with Public Citizen to advocate for better environmental and ethical lawmaking, thinks the Dallas-Forth Worth setback ordinances are the other primary reason for the legislation. Burnam told ThinkProgress that these preemption bills are “crafted by an industry that doesn’t care about public health or welfare, only about maximizing profits.”
He said it sets a dangerous precedent not just for oil and gas extraction, but also for local control over other issues like plastic bag bans, maintaining trees of a certain size, and other local priorities that could now be pushed under the rug in the Texas Capitol. Having been affiliated with the Texas Legislature since 1973, Burnam said this session is the worst he’s seen for the environment and for anything that has to do with the public interest.
Burnam said that while he understands the need for drilling standards, after several terms in the Legislature trying to pass laws to protect local health and safety, he found it basically impossible.
“I would say it’s better to leave it up to local and municipal governments,” he said.
In Texas, surface rights and mineral rights have always been clearly delineated, which is why legislation separating who can regulate them is not surprising. Nor is the fact that it would give preference to mineral rights: the state has a long history of allowing mineral rights to supersede surface rights. When it comes to places where these two overlap, such as wastewater pits, the authority becomes murky. Currently there are no state regulations for these “frack ponds.”
Texas is the country’s biggest oil and gas producer, and what happens in the state can in many ways direct the national conversation. The Texas Oil & Gas Association supports the new legislation, with Todd Staples, president of the Texas Oil & Gas Association saying the organization supports HB 40 and SB 1165 because local ordinances violate the Texas Constitution.
“Local ordinances that stop oil and gas production exceed the authority delegated to cities by the Legislature and result in the taking of property without compensation,” he said in a statement. “If cities are concerned about health and safety issues, why are they allowing houses right next to wells? … Extreme regulations are clearly unwarranted and undermine our state’s biggest job creating sector –- the oil and gas industry.”
The House bill basically sets up a four-level test cities must pass in order to impose a drilling ordinance: it must control only surface activity; it must be “commercially reasonable”; it can’t “effectively prohibit an oil and gas operation” by a “reasonable prudent operator;” and the ordinance can’t be already preempted by state or federal law.
According to the group Frack Free Denton, the legislation goes far beyond the bounds of reasonableness.
“HB 40 expressly preempts local control over oil and gas, effectively making the Railroad Commission the City Council of Texas,” states the group. “Armed with this new standard, the industry will be able to challenge a wide range of local protections, claiming now that they are illegal because they are not ‘commercially reasonable.’”
If the bills make it to Governor Abbott’s desk, they are all but certain to be signed into law. While local communities are worried about air and water pollution, earthquakes, noise, and fire dangers, Abbot is worried about that “Texas is being Californianized.”
“Texas is being Californianized and you may not even be noticing it,” Abbott said while speaking at the right-wing think tank the Texas Public Policy Foundation in January. “It’s being done at the city level with bag bans, fracking bans, tree-cutting bans. We’re forming a patchwork quilt of bans and rules and regulations that is eroding the Texas model.”