Bill Overturning Fracking Bans Sent to Abbott

The Texas Senate ran over the voters of Denton today by sending Governor Greg Abbott a bill to prohibit local governments from adopting bans on oil and gas drilling within a city limits. The bill was in response to Denton voters last year passing a ban on hydraulic fracturing.

Overturning the ban has been a key issue for Abbott, who called local restrictions on drilling, plastic grocery bags and limits on tree cutting a “patchwork quilt” of ordinances. Abbott said Texas is being “California-ized.”

While overturning the drilling ban has essentially sailed through the Legislature with the support of the Texas Oil & Gas Association, similar legislation to halt city ordinances banning plastic bags or regulating tree cutting have generally stalled in House and Senate committees.

But the Texas Municipal League has warned its members that another piece of legislation—SB 1806 by Senator Craig Estes, R-Wichita Falls – is a surprise piece of legislation to bar cities from regulating an activity performed under a license issued by the state. According to TML:

The bill is nothing less than a “stealth super-preemption bill.” In addition to making dramatic changes to the way that city ordinances interplay with state law, it is difficult to envision how many city ordinances would be voided should this bill pass. That’s because there are easily more than 400 state licensed activities or occupations. Here are just a few examples:

1. Payday and auto title lenders are licensed by the state’s Office of Consumer Credit Commissioner. Thus, any city regulation of payday lending would be void.

2. Oil and gas operators receive permits from the Texas Railroad Commission. Thus, any city regulation of oil and gas drilling in the city limits would be void.

3. Bars and restaurants receive licenses/permits to operate from the Texas Alcoholic Beverage Commission and the Texas Department of State Health Services. Thus, any city public health or sanitation regulation that would apply to these entities would be void.

4. Fireworks stands receive a permit from the Texas Department of Insurance. Thus, any city prohibition against fireworks would be preempted.

5. Thousands of businesses receive licenses/permits from the Texas Commission on Environmental Quality. Thus, any city ordinance, including building codes or even zoning ordinances, wouldn’t apply to those businesses.

The bottom line is that S.B. 1806 could essentially exempt any licensee from any type of city regulation.

Estes told me that his bill is not intended to have any of those consequences. He said he took the bill from Abbott’s office, and he removed plastic bags to have a broader bill. Estes said a city will be able to regulate anything not specifically regulated by state law.

“Some of the fears they are raising are unfounded,” Estes said. “The bill is not an attempt to stifle their (TML) constituencies.”

TML initially had objected to HB40 to overturn local drilling bans, but agreed to drop its opposition when the bill was amended in the House to allow cities to continue regulating setbacks and the surface activity of drilling. But the bill prohibits outright bans on drilling. Many people in North Texas have objected to having wells drilled near residential neighborhoods, and some scientific evidence points to the drilling activity as being a cause of minor earthquakes.