Grinding Down Local Control for Oil and Gas

This past weekend, one of the 11 natural gas wells on the property of the Lake Arlington Baptist Church started spewing mud as crews began using hydraulic fracturing (fracking) at the site to extract natural gas. As a precaution, residents of 50 homes were evacuated, although there was no sign that an explosion was imminent.

“It honestly never had concerned to us at all up until last night,” nearby resident Jim English told The Dallas Morning News. English, who built his home in 1998, said up until this weekend the gas wells were mostly just a nuisance because of the service trucks. “It’s just an eyesore to me, and I don’t get any royalties off it, so it might as well go away. It was fine when it started, but it just keeps getting to be more and more.”

For Arlington Fire Chief Don Crowson, the leak was evidence that the Legislature is about to take public safety out of the hands of local officials through bills to keep cities from regulating the drilling of oil and gas wells in their communities.

“I’m concerned there is a potential that local control may be lessened. It is exactly local control that keeps the local community safe,” Crowson said.

Arlington has 56 pad sites with 306 gas wells, Crowson said. While the Fire Department has responded to gas releases and other incidents at pad sites in the past, Crowson said this was the first time an emergency well control team had to be called in.

The above map from the Texas Railroad Commission goes a long way toward explaining why Denton voters last year approved a ban on the drilling of gas wells within the city limits—despite a $1.1 million public relations campaign against the initiative financed by the oil and gas industry.

The ban immediately was met with lawsuits by the Texas General Land Office and the Texas Oil and Gas Association. In a speech shortly before he took office, Governor Greg Abbott made a determined call for the Legislature to over-rule the voters of Denton. “The truth is, Texas is being California-ized with bag bans, fracking bans, tree-cutting bans,” Abbott said. “We’re forming a patchwork quilt of bans and rules and regulations that is eroding the Texas model.” The Texas House was prepared to take up just such a measure yesterday – HB 40 by Drew Darby – but it was delayed because of a potential procedural point of order. The bill likely will be back before the House by Friday.

For the moment, forget all the concerns about fracking and groundwater pollution or possible earthquakes that are shaking Oklahoma and Dallas. And let’s face it, over the past several years fracking has been good for the Texas economy, even if it is slowing down now. In fact, that expected $11 billion balance in the so-called Rainy Day Fund is almost completely due to revenues from the Oil Production and Natural Gas Production tax. If the politicians were being honest about returning some of the surplus to taxpayers, the state’s oil companies and royalty owners would get a huge refund. Instead, the politicians are going to give the drillers something almost as good: the ability to drill for oil and gas in your neighborhood.

The core argument against bans such as the one in Denton is that they take away the property rights of the drillers, the people and companies that buy or lease land to exploit it for mineral production; i.e., frack it for gas. But what about the property rights of people driven out of their homes because of a potential explosion, or who have the value of their homes driven down by a nearby well? And, ultimately, what about the hypocrisy of attacking local control? The state of Texas has been fighting against the federal government over unwanted laws and regulations, so is the Legislature going to grind down local voters in a similar fashion? Denton and Arlington are not cities filled with tree-hugging environmentalists; they typically vote about 60 percent Republican.

If you think Not In My Backyard gas drilling is just a Denton problem, take a look at this map I pulled down from the Railroad Commission on wells in the Fort Worth area. If you want to check out your own area, click on the GIS Viewer at the RRC and under Visibility click Well Logs and then choose your county and click on Identify Wells. Zoom in some and wait, and wait some more, while the map populates. (Note: If there’s been no drilling where you’re looking, nothing will appear.)

Fort Worth area wells.

Here’s another map for the Katy area in Harris County.

Opposing HB 40, the Texas Municipal League in one of its flyers declares, “It’s not just about Denton anymore. The oil and gas industry is using the voter initiated and approved fracking ban in Denton as an opportunity to attack the drilling ordinances in every Texas city.” The TML claims ordinances in “hundreds of cities” that would be endangered by HB 40 include: Restrictions in Eastland, San Angelo and Midland on drilling in close proximity to an occupied residence of building. Eastland also restricts construction and well servicing to occur between 6 a.m. and 7 p.m. Corpus Christi prohibits drilling within 400 feet of a residence, school or hospital and prohibits drilling on the bay front.

In another piece, the TML claims the oil and gas industry “goes nuclear against homeowners.”

The League suspected that the industry would not be satisfied with legislation prohibiting fracking bans, like the one that voters approved in Denton. And now it’s clear they have gotten greedy and see an opportunity to pursue a “scorched earth” strategy to wipe out nearly every city regulation.

Texas Oil & Gas Association President Todd Staples says those fears are unfounded. All the industry wants, he says, is legislation that keeps cities from blocking drilling entirely.

“The Texas Oil & Gas Association supports HB 40 and SB 1165 because they provide cities with authority to reasonably regulate how surface activity related to oil and gas activities will be conducted in their jurisdiction, while affirming that regulation of oil and gas operations like fracking and production is under the exclusive jurisdiction of the state. The oil and gas industry supports city ordinances that may include reasonable setbacks and noise, traffic and landscaping provisions that are intended to address local issues and are not intended to stop production. Reasonable local regulations like this are authorized under HB 40 and SB 1165.

Local ordinances that stop oil and gas production exceed the authority delegated to cities by the Legislature and result in the taking of property without compensation, in violation of the Texas Constitution. Inappropriate use of local ordinances to stop oil and gas production also threatens resources for public schools, universities, roads, and essential services that are directly funded by production taxes paid by the oil and gas industry. HB 40 promotes consistency, fairness and lawful use of local ordinances by clarifying the responsibilities of cities and the state for regulating the oil and gas industry.

On the one hand, I’m sympathetic to the oil industry’s desire to drill on land it has owned or leased, but isn’t it also a “taking” if a homeowner cannot sell a house or loses value on a home because of its proximity to an oil or gas well? These are not wells down a caliche road a quarter-mile from a farm house. These are wells in residential neighborhoods. It looks like the legislative leadership is putting jingoism and campaign contributions from the oil and gas industry ahead of the very real concerns of Texas voters and communities.

When this legislation was heard in committee last month, more than 300 Texans turned out to testify against it. The hearing lasted nine hours. The Fort Worth Star-Telegram has editorialized against HB 40.

The Texas Municipal League says more than 300 Texas cities have ordinances regulating oil and gas drilling.

That’s an awful lot of grassroots effort to toss aside or let the oil and gas industry declare not “commercially reasonable.”

Darby should get back to the world where people like to have reasonable control over what happens in their neighborhoods.

 Perhaps Texas should just follow Oklahoma’s example and allow drilling on the Capitol grounds; after all, if the oil and gas industry hasn’t bought the Texas Legislature, the industry certainly is renting it for 140 days.