With the recent technological advancements in hydraulic fracturing (i.e. ‘fracking’), additional oil and gas activities have led some cities, such as Denton, to approve bans on the activity within city limits. Such bans however, run afoul of state law, which dictates state control of regulations concerning mineral rights’ and the rights of property owners. With lawsuits to overrule such regulations being threatened by the Texas Railroad Commission and oil and gas companies, the Texas Legislature moved to reassert state control of oil and gas activities.
They did so last month by passing HB 40, a compromise between the Texas Oil and Gas Association and the Texas Municipal League. Sponsored by State Rep. Drew Darby (R-San Angelo) and State Sen. Troy Fraser (R-Horseshoe Bay), the law clarifies the limitations of local authorities in limiting activity.
“This strikes a fine balance,” said Darby. “We tried to use a rifle shot to accommodate the needs of this growing state and the needs to develop the oil and gas resources, and yet protect the citizens of this great state.”
Under the bill, municipalities could enact ordinances to regulate above-ground oil and gas activity, such as traffic, lights, noise and drilling setbacks—provided they are “commercially reasonable,” and do not “effectively prohibit oil and gas operations.” Additionally, regulations that have been in place for over five years without complaint would be granted a “safe harbor” provision. The measure would provide a degree of legal support in the event of a challenge, but ultimate regulatory power would remain with the state.
On Monday, the House further reinforced property rights by passing HB 2595. Authored by State Reps. Jim Keffer (R-Eastland) and Pat Fallon (R-Frisco), the legislation would prohibit local governments from entertaining ballot initiatives that “restrict the right of any person to use or access the person’s private property” for economic gain. However, the bill does not restrict such measures from being passed by the governing authority of the locality itself.