7/26/2019 Texas Frack Anywhere Bill HB 40

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Texas Frack Anywhere Bill HB 40

Over a hundred people testified at the hearing on Texas House Bill 40, a crudely wordedattempt to disarm municipal land use ordinances. Approximately 0! testified against,

almost all the proponents were oil and gas lo""yist or camp followers.

#hat "ecame clear during the hearing was how much little the $nergy %ommittee &new

a"out land use law as it relates to oil and gas. Or how much they pretended to not &now.

'ome of the committee mem"ers seemed to "e genuinely clueless in this regard, othersappeared merely to feign stupidity. #e should give them the "enefit of the dou"t in this

regard and assume that they were simply acting dum" "y way of "eing disingenuous.

The "ill is "ased on a fundamental legal misconception. 'everal committee mem"ersstated that (mineral rights dominate )sic* surface rights.+ That is the mantra of HB 40.

They would preface leading uestions to friendly witnesses with that assertion- (ou will

agree with me that mineral rights dominate surface rights. . . .+ And they would loo& at

each other and nod &nowingly.

/ineral rights have "een held "y the courts to "e superior to surface rights if there is aconflict in a split estate where the ownership of mineral and surface rights are held

separately. Mineral rights do not trump surface regulations )1oning*. 2ot under Texas

constitutional or case law. 'everal municipal attorneys made that clear in their testimony.

The sponsors of the bill repeatedly asserted that mineral rights trump

surface land use laws They do not

3f mineral rights are superior to surface regulations, then there would "e no need for HB

40. 'ince they are not, HB 40 lays out a mechanism to accomplish that "y ma&ing thestate, the ailroad %ommission, the final ar"iter of all local land use regulations.

The second Big 5egal /isconception tediously advanced "y the representatives is that

HB 40 would not effectively gut local 1oning ordinances. 3f removes land use districts 1ones right off the top. HB 40 would preempt any land use law that (prohi"its+ oil and

gas drilling anywhere in municipality or its $T6. That means that heavy industrial oil and

gas activities could not "e prohi"ited in any 1oning district such as a residential,

commercial or "usiness district 7 exactly where they have "een prohi"ited and should "e prohi"ited. 8uite literally Frack Anywhere.

As if that was not sufficient, the "ill gives the ailroad %ommission final say overvirtually any local land use law pertaining to oil and gas. HB reuires that any local land

use oil and gas operations ordinances meet a new legal test of (commercial via"ility.+

/eaning the ordinance could "e challenged "y a frac&er if they thought the ordinancemight render their operations unprofitable. Ostensi"ly, regardless of the price of oil or

gas, the cost of capital, or the geology of a wildcat well.

7/26/2019 Texas Frack Anywhere Bill HB 40

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3f the frac&er and the municipality disagree on the (commercial via"ility+ of the impact,

the ailroad %ommission will settle the matter. The net effect is that this would ma&e the

ailroad %ommission, the 'tate, the final ar"iter of any and all local land use ordinancesin the 'tate of Texas that pertain to oil and gas.

9nli&e other states nota"ly %olorado, %alifornia, 2ew or&, and :ennsylvania 7 Texashas no state oil and gas well set"ac&s nor any land use protections. The ailroad

%ommission has no land use rules and regulations whatsoever. 2or does the T%$8. The

state set"ac& of a gas well from a daycare center is 1ero. ;rom a hospital, 1ero. ;rom aschool yard, nothing. The !tate of Texas has no ob"ecti#e standards to apply to any

local land use laws

This complete lack of land use protections by the state is the reason why most

Texas municipalities apply land use laws to oil and gas acti#ities

 2o such (commercial via"ility+ test has ever "een applied in land use law. A noxious

heavy industrial activity such as smelters or frac&ing 7 can "e limited or prohi"itedunder a comprehensive land use law in order to protect the health, safety and welfare of

the local residents. The ordinance<s impact on an activity<s (commercial via"ility+ cannot "e an additional consideration in 1oning law.

3f that were not the case, every non7conforming use every liuor store, topless "ar, or

rendering plant 7 would sue the municipality "ased on the (commercial via"ility+ test.

3n order to rationali1e the (commercial via"ility+ test for oil and gas operations in

 particular, the "ill<s sponsors asserted that (mineral rights dominate surface rights+ 7confa"ulating that into (mineral rights should trump surface regulations.+

$f mineral rights are superior to surface regulations% then there would not

much point in ha#ing municipal ordinances &hich is the transparent intent

and clear effect of HB 40

6ames 2orthrup

=allas