Curbing Local Control, Abbott Signs "Denton Fracking Bill"

Saying Texas needs to avoid a “patchwork of local regulations” that threaten oil and gas production, Gov. Greg Abbott on Monday signed legislation that would pre-empt local efforts to regulate a wide variety of drilling-related activities.

“This bill is so incredibly important,” the Republican said at a state Capitol ceremony. Flanked by the measure's sponsors, he said House Bill 40 does a “profound job of protecting private property rights.”

Intended to clarify where local control ends and Texas law begins, the bill is the most prominent of the flurry of measures filed in response to Denton’s November vote to ban hydraulic fracturing within city limits.

The legislation has outraged officials in some towns that have sought to blunt the effects of drilling close to homes, schools and businesses. But in Austin, it sailed through the Republican-dominated Legislature. 

The law – championed by Rep. Drew Darby, R-San Angelo – took effect immediately, because both chambers approved it by a more than two-thirds margin.

Energy companies and industry groups support the bill, whose preamble states that the act “expressly pre-empts regulation of oil and gas operations by municipalities and other political subdivisions.”

“House Bill 40 represents balanced legislation that will build upon a 100-year history of cooperation between Texans, their communities, and oil and natural gas operators,” Todd Staples, the former agriculture commissioner and current president of the Texas Oil and Gas Association, said in a statement Monday.

But environmentalists and some local officials worry that the legislation will erode authority cities have long tapped to ensure local health and safety.

“By advocating for and signing this bill, Gov. Abbott has succeeded in seizing power away from local governments working to protect us from the real dangers of dirty drilling,” Luke Metzger, director of Environment Texas, said in a statement.

Critics also claim the bill could add to confusion about what municipalities can regulate, partly because of the bill's broad definition of the “oil and gas operations” in which Texas law trumps local law.

Rep. Sylvester Turner, D-Houston, has called the bill “a gold mine for lawyers."

The Texas Municipal League, which counts 1,145 Texas cities among its members, was initially among the bill’s fiercest critics — saying it could invalidate local drilling ordinances across Texas.

The league softened that message after Darby’s committee added language listing areas cities could still regulate, including fire and emergency response, traffic, lights and noise – but only if such rules were “commercially reasonable.” The language also allows cities to enact some setbacks between drilling sites and certain buildings.

Darby also added what he calls a “safe harbor" provision, protecting cities from legal challenges if their ordinances have not triggered litigation in the past five years – another change that the Municipal League found more palatable.

Citing the negotiations that spurred those additions, Abbott said the law “strikes a meaningful balance" between private property and local control.

City officials, however, remain plenty upset.

In a recent letter to the bill’s backers, 15 local elected officials called the proposal a “fundamentally flawed” effort that would jeopardize public health and safety in drilling communities.

Asked Monday whether the state was being hypocritical in limiting city power in an era where state officials routinely blast – and sue – the federal government over its uniform standards for various industries, Abbot said no.

“We have sued the federal government multiple times because of the heavy hand of regulation from the federal government – trying to run individuals’ lives, encroaching upon individual liberty,” he said. “At the same time, we are ensuring that people and officials at the local level are not going to be encroaching upon individual liberty or individual rights.”

HB 40 may not be the Legislature’s final response to Denton’s fracking ban.

Earlier this month the House approved legislation – Rep. Jim Keffer's HB 2595 – that would bar local governments from putting measures on their ballots that would “restrict the right of any person to use or access the person’s private property" for economic gain.

Voter referendum was the weapon of choice for opponents of fracking in Denton, where 59 percent of voters there supported the ban. Supporters called it a last-ditch effort to address noise and toxic fumes that spew from wells just beyond their backyards, after loopholes and previous zoning decisions rendered changes to the city’s drilling ordinance unenforceable.

Opponents say the policy effectively halted all drilling inside Denton, keeping mineral owners from using their property.

The Denton vote came as oil and gas companies face increased pushback in other cities where the industry’s footprint has spread – particularly in North Texas’ 5,000-square-mile Barnett Shale. In some cases, neighborhoods are expanding closer to longtime drilling sites.

Disclosure: The Texas Municipal League is a corporate sponsor of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.