Last month I wrote about the Texas legislature’s efforts to limit cities’ authority to regulate drilling within their jurisdictions, after the City of Denton passed a ban on hydraulic fracturing. The bill that has emerged is House Bill 40, sponsored by Drew Darby, chairman of the House Energy Resources Committee. It passed out of committee, but yesterday was returned to committee on a technicality. A companion bill in the Senate, Senate Bill 1165, has also passed out of its Natural Resources committee.
The bill would greatly limit cities’ ability to regulate drilling. It provides that cities may only regulate “aboveground activity related to an oil and gas operation that occurs at or above the surface of the ground, including a regulation governing fire and emergency response, traffic, lights, or noise, or imposing notice or reasonable setback requirements.” Any ordinance must be “commercially reasonable,” defined as “a condition that would allow a reasonably prudent operator to produce, process and transport oil and gas, as determined based on the objective standard of a reasonably prudent operator and not on an individualized assessment of an actual operator’s capacity to act.”
The bill leaves may questions unanswered. For example, Fort Worth has an ordinance that regulates saltwater pipelines. Are pipelines an “aboveground activity” that cities can regulate?
Last weekend, about 50 residents living close to a well being completed by Vantage Energy were evacuated because of a mechanical failure in the well during the fracing operation. Well blow-out experts were called in to regain control of the well. The incident is being cited by opponents of House Bill 40 to argue against restrictions on municipal regulation. A Dallas Morning News editorial yesterday said that “Homeowners and cities should have the right to see events like what happened over the weekend in Arlington and determine for themselves whether drilling is in the best interests of their community.” Protesters planned an all-night vigil on the Capitol steps in opposition to the bill. And last week, the Environmental Defense Fund filed applications for rulemakings with the Texas Railroad Commission, requesting that it adopt rules replacing municipal regulations for pipeline, truck traffic and special safety measures needed in case of a natural disaster. The EDF applications were undoubtedly intended to impress the legislature on the lack of RRC regulation of drilling in urban areas.