A few years ago, Flower Mound established a gas well drilling ordinance that addressed safety, noise levels, setbacks and environmental impacts. It was considered one of the strictest in the state and was soon viewed as an example of how town councils can provide sensible protection for its residents against many of the dangers imposed by fracking. Last November, Denton residents went even further, overwhelmingly voting to ban fracking within their city limits. Evidently, that upset some Texas lawmakers, so they have decided to enact legislation that would rob municipalities of their right to govern themselves.
Texas, being a Home Rule state, has traditionally allowed citizens to manage their own affairs with minimum interference from on high. Home Rule assumes that government problems should be solved at the lowest possible level, closest to the people. Not anymore!
The state has been regulating how oil and gas wells are drilled, while municipalities have been able to regulate where they can be drilled, or not drilled. There are no state regulated standards for well pad setbacks from schools, hospitals, restaurants, apartments, houses, nursing homes, daycare centers or water wells. Only the cities and towns can regulate those standards within the context of their comprehensive land use plans. Nevertheless, if the Texas Legislature has their way, that is going to change!
Recently, the Texas House Natural Resources Committee voted 10-1 to approve House Bill 40, which drastically curtails local governments’ abilities to say no to fracking within their communities. Soon thereafter, the Senate Natural Resources and Economic Development Committee passed a companion bill, SB 1165. Both bills have been forwarded to the full House and Senate for votes. This is the latest effort on the state’s part to side with the Texas oil and gas industry, which spent hundreds of thousands of dollars to fight off the Denton frack ban, but lost the battle, as concerned voters went to the polls in huge numbers to protect the future of their families. What makes this particularly unusual is the fact that Texas is considered to be one of the most conservative states when it comes to less government intrusion, more local control and more freedom to the individual. Wouldn’t these new laws be the epitome of hypocrisy? What happened?
Essentially, HB 40 “allows” cities to regulate surface activities, such as truck traffic, lights and noise. However, the most significant issue for residents in cities and suburbs is setbacks. That is, how close can the well site be to homes, schools and businesses? HB 40 “allows” municipalities to set “commercially reasonable” setbacks, but, when the state puts that type of definition into the law, it’s a sure bet that their idea of “reasonable” will be vastly different from those who reside in the affected communities. Basically, this bill disarms the citizenry (a definite no-no in the Lone Star State), making residents vulnerable to the whims of the politicians and those who are the largest contributors to their election campaigns.
This latest “frack anywhere” bill was introduced by State Rep. Drew Darby (R-San Angelo), Chairman of the Texas House Energy Resources Committee. The bill seeks to amend Chapter 81 of the Texas Natural Resources Code and expressly preempts the authority of “a municipality or other political subdivision” to regulate an “oil and gas operation” and gives exclusive jurisdiction to regulate an “oil and gas operation” to the state of Texas, specifically the Railroad Commission. Under the terms of HB 40, a municipality or other political subdivision would not be able to “enforce an ordinance or other measure, or an amendment or revision of an existing ordinance or other measure, that bans, limits, or otherwise regulates an oil and gas operation within its boundaries or extraterritorial jurisdiction.” In other words, we, the taxpayers have nothing to say about the health and safety of the communities in which we reside and fund with our hard-earned money. Instead, the state government, which we also pay for, will tell us how to live.
On Monday, April 6, the Flower Mound Town Council will introduce a resolution opposing “The legislative curtailment of municipal regulatory authority over mineral production, exploration and development within the Town corporate limits pursuant to House Bill 40 and Senate Bill 1165.” If the resolution passes it will be a valiant effort to persuade our local state reps to vote against this highly intrusive legislation and keep the local power with the local people. We have some of the finest leaders in the state right here in our town. I’ll be reaching out to Texas State Rep. Tan Parker, who was recently elected Chairman of the House Republican Caucus, and State Senator Jane Nelson, the highest ranking Republican in the State Senate, to ask for their help in stopping this bill from being passed. They have always been there for their constituents, and I feel confident that they’ll be there for us now.
Bob Weir is a long-time Flower Mound resident and former local newspaper editor.