The Texas Legislature tells inconvenient truth!
An alert about H.B. 40 came in my inbox yesterday. It told an inconvenient truth about the bill authored by the oil & gas industry and filed by Rep. Drew Darby.
ApplicationsAdministrator@tlc.state.tx.us ApplicationsAdministrator@tlc.state.tx.us>Mon, Mar 30, 2015 at 5:31 PM
Texas Legislature Online
84(R) HB 40
Relating to the express preemption of regulation of oil and gas operations and the exclusive jurisdiction of those operations by the state.
3/30/2015 H Reported favorably as substituted
Darby-preempt most regulation of oil and gas operations by cities and all other political subdivisions
That’s a clear summary of the bill and it’s not telling us anything we didn’t know by reading the bill. Like I told Darby at the hearing, we are experts at spotting fracking loopholes.
Darby said he does not intend to keep cities from using setbacks or tampering with ordinances already on the books.
“This is not a nuclear option. It’s an attempt to bring some common sense to this issue,” he said. “There’s plenty of opportunity to address those concerns.” Texas Tribune
Someone smarter than I am wrote this:
The pre-amble of HB 40 should be removed or altered to make the legislative intent more balanced towards cities. As written, it:
- It creates a standard of pre-emption that is not founded in Texas law. It’s full of terms like “exclusive jurisdiction” “occupies the field” and “expressly pre-empts.” In fact, there’s a long history of case law that describes the relationship between state RRC and local rules. This preamble would VASTLY deviate from that caselaw.
- Instead, Section 1 cobbles together the most stringent legal tests for preemption in a string of legalese that is stacked heavily in favor of industry.
- Because it establishes legislative intent, any close questions are virtually certain to be determined in favor of allowing the oil and gas activity.
- There are going to be a LOT of close questions. Any city rule, even things like zoning and especially Dallas’ extensive noise ordinances, would have to pass a series of tests to determine whether the ordinance is “commercially reasonable.” Any litigation over this determination would use the legislative intent- as expressed in this pre-amble – to make the final call.