Texas Governor signs HB40 into law, guts community rights, Faced with widespread municipal opposition, oil and gas industry backs big government power grab Press Release by Earthworks | Denton Drilling Awareness Group | Earthjustice | Natural Resources Defense Council, May 18, 2015
Austin, TX – Today Texas Governor Abbott signed HB 40 into law. Written by former ExxonMobil lawyer Shannon Ratliff, the statute forces every Texas municipality wanting common sense limits on oil and gas development to demonstrate its rules are “commercially reasonable”. It effectively overturns a Denton ballot initiative banning fracking that passed last November.
“HB 40 was written by the oil and gas industry, for the oil and gas industry, to prevent voters from holding the oil and gas industry accountable for its impacts,” said Earthworks’ Texas organizer Sharon Wilson. Wilson, who played a key role in the Denton ballot initiative, continued, “It was the oil and gas industry’s contempt for impacted residents that pushed Denton voters to ban fracking in the first place. And now the oil and gas industry, through state lawmakers, has doubled down by showing every city in Texas that same contempt.”
By a 59-41% vote, including 70% of straight ticket Republican voters, the residents of Denton banned hydraulic fracturing within city limits. The ban was a last resort after more than five years of fruitlessly petitioning oil and gas companies, the city, and the state for help.
“By signing HB40 into law, Governor Abbott just declared that industry profits are more important than our health, our homes and our kids,” said Adam Briggle, President of the Denton Drilling Awareness Group and a leader in the Frack Free Denton effort. He continued, “The letter of Texas law now says no city can ‘effectively prevent an oil and gas operation from occurring’, no matter the threat to families’ health and safety or damage to private property.“
The City of Denton is fighting a lawsuit brought against it by the oil and gas industry over its ordinance. Until HB40, attorneys for the city felt fairly confident their ordinance would stand. The Denton Drilling Awareness Group and Earthworks have intervened in the case in support of the city. They are represented by Earthjustice, attorneys from the Natural Resources Defense Counsel, and the Texas law firm Brown & Hofmeister, LLP.
“The Texas courts have upheld a long tradition of local control, so the Governor and the Legislature took matters into their own hands. Now, they have capitulated to the greedy but powerful oil and gas industry at the expense of their own constituents’ health, well-being, and property rights,” said Earthjustice attorney Deborah Goldberg, who is co-counsel for the citizen groups and successfully defended the town of Dryden, NY, in a similar court case. “We have been proud to represent the proponents of Denton’s ban, and we know they will regroup and fight back against this legislative over-reach.”
“The people of Denton exercised their democratic right to keep a nasty industrial process out of their community–and now big oil and their friends in high places are steamrolling them, along with everyone else in Texas,” said NRDC attorney Dan Raichel, co-counsel for the citizen’s groups. “The interests of a powerful industry should never take priority over the health and safety of American families. Texans should be able to keep dangerous activities and chemicals away from their homes, schools, and hospitals–just as hundreds of other communities across the country have already done.”
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Abbott’s stamp of approval on the bill comes as no surprise. At the beginning of the legislative session, the governor bemoaned the growing patchwork of local ordinances in Texas on issues from drilling practices to plastic shopping bags, saying that Texas was being “Californiaized.”
Because HB40 passed by such wide margins in the Texas House and Senate, the law goes into effect immediately.
The oil and gas industry pushed hard to not only get rid of the Denton ban but to prevent it from being repeated elsewhere. City officials, especially those in the 5,000-square-mile Barnett Shale in North Texas, said they were simply protecting the health and safety of their residents with their detailed ordinances.
The city of Denton was sued by the Texas Oil and Gas Association and the Texas General Land Office over the ban. Attorneys monitoring the two court cases in Denton County civil court said it is likely that the lawsuits will now be dismissed.
Denton Mayor Chris Watts would only say that the city, because of the litigation, is looking at its options before deciding on the ordinance’s future. “We’re waiting to see how things settle out and what the next course of action is,” Watts said.
The new state law includes a four-part test for allowing cities to regulate drilling operations above ground, such as emergency response, noise and setbacks. But the law says those controls must be “economically reasonable” and can’t hinder or 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 should be considered commercially reasonable.
City officials have complained that the law erodes municipal powers and is too ambiguous. For example, rules banning saltwater injection wells might not survive. Blowout prevention measures may be gone, they add, and requirements for capturing well site emissions could be compromised.
Some of the issues, ultimately, may be decided by court challenges, city attorneys said.
Business as usual
Cities with longstanding ordinances are expected, at least in the beginning, to continue enforcing them. Fort Worth’s ordinance, on the books for 14 years, was praised as a model for the state during legislative hearings. For Cowtown inspectors, it’s business as usual.
“We are going to press on and see what happens,” said Tom Edwards, Fort Worth’s senior gas well inspector. Fort Worth has more than 2,000 producing wells. “I haven’t been told any direction any way or the other, so we’re going to keep doing what we’re doing.”
Randle Harwood, Fort Worth’s planning and development director, said: “We’ll use all our resources to protect the healthy and safety of the citizens of Fort Worth within the context of the bill and in partnership with the state.”
Activists in Denton said they sought the ban out of desperation. A grassroots movement called the Denton Drilling Awareness Group emerged after residents became frustrated with the city when a company was allowed to search for natural gas within a few hundred feet of homes. They also felt the state was not responsive to their complaints.
The group was concerned about the effects on public health, welfare and safety including the injection of water, gels and acids into aquifers, as well as the venting of gas, noise issues and site security.
The group collected nearly 2,000 signatures to put a referendum on the ballot. The ordinance did not ban all drilling, just hydraulic fracturing, but industry representatives said it effectively banned drilling since it is not cost-effective to drill conventional wells that aren’t fracked.
“Gutting local control”
There is also a bill in Austin that would prevent local governments from putting any measure on their ballot that would “restrict the right of a person to use or access” their private property for economic gain.
The bill, House Bill 2595, authored by State Rep. Jim Keffer, R-Eastland, was approved by the House last week and has been sent to the Senate. The city of Fort Worth testified against the bill, along with several environmental groups.
“It seem the 84th Legislature can’t go far enough in gutting local control,” said David Weinberg, executive director of the Texas League of Conservation Voters.
Every city will be trying to figure out what comes next, said Mansfield Public Safety Director Bill Lane, who is also an attorney.
“I think everyone is going to have to take a deep breath and figure out what all this means,” Lane said. “We are going to continue to monitor the wells, even if we don’t have the authority.” [Emphasis added]
Texas cities can no longer pass fracking bans or any other type of oil and gas regulations.
As expected, Gov. Greg Abbott on Monday signed a bill that prohibits local governments to pass oil and gas ordinances, like the fracking ban Denton voters approved in November. “This bill is so incredibly important,” Abbott said at the signing ceremony for House Bill 40, the so-called “Denton fracking 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 Environment of Texas, said in a statement.
“In the past, the state has failed to stop Big Oil from polluting our air and water, causing earthquakes and putting our families at risk from leaks, spills and explosions,” Metzger said. “Regrettably, with millions spent by oil and gas in campaign contributions to influence state officials, I don’t think they’re going to start now.” [Emphasis added]
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“By any responsible account,” Chief Justice Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”