Earthjustice, HB40, Texas, Texas Commission of Environmental Quality, Texas Railroad Commission
Another domino falls in the anti-fossil fuel movement’s crusade
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Throughout the United States, especially in communities with existing or potential oil-and-gas development, outside groups have moved in with a vengeance and agitated the population—resulting in bans against all exploration for hydrocarbons and/or the use of hydraulic fracturing. Expensive lawsuits have been filed and courts have repeatedly declared such bans as “unconstitutional.” The newest domino to fall is in Texas where Governor Greg Abbott, on May 18, signed House Bill 40 (HB40)—also known as the Denton Fracking Bill—which clarifies that an “oil and gas operation is subject to the exclusive jurisdiction of the state.”
As was the case in Mora County, New Mexico, the Pennsylvania-based Community Environmental Legal Defense Fund participated in pushing Denton, Texas’ fracking ban—passed in November by 59 percent of the voters. In Mora County, a federal judge declared its drilling ban “unconstitutional.” Courts have handed down similar decisions against attempts to ban fracking in Colorado and Ohio. But the Texas legislature didn’t wait for the courts to decide in the challenges to the Denton ban.
Lawmakers introduced a total of 11 bills aimed at confirming that regulating oil-and-gas activity is the province of the Texas Commission of Environmental Quality and the Texas Railroad Commission. HB40 emerged as the final word—making Texas the first state to pass specific legislation limiting, not eliminating, local control. The Oklahoma legislature has passed a similar bill and Governor Mary Fallin is expected to sign it. In New Mexico, the House passed a pre-emption bill, but it was never brought up for a vote in the Senate.
The Texas law allows communities to impose commercially reasonable ordinances that regulate above ground oil-and-gas activity such as traffic noise, lights, and setbacks—but do not “effectively” prohibit resource extraction. In response to the new law, Ed Longanecker, President of the Texas Independent Producers and Royalty Owners Association said: “This is a balanced approach that protects the ability of municipalities to reasonably regulate surface activity related to oil and gas development, while offering the regulatory certainty necessary for our industry operations.”
HB40 was crafted with input from the Texas Municipal League—which, the Texas Tribune reports, “counts 1145 Texas cities among its members.” The Texas Municipal League was “initially among the bill’s fiercest critics,” but its involvement “added language listing areas cities could still regulate” and other changes that “the Municipal League found more palatable.”
David Holt, president of the Consumer Energy Alliance, which actively campaigned against the ban, believes “This bill struck the right approach. While local government should have some control over growth, energy development is a statewide issue. Tax revenues go to the entire state. The state agencies have been regulating production for almost 100 years. An open robust discussion on the proper balance seems to be leading to good results in most local areas. Once folks have all the facts they can and do make good decisions. But those who simply say no energy production anytime or anywhere are doing a disservice to their neighbors and the nation.”
Denton, Texas, sits on top of one of Texas’ biggest natural gas reserves: the rich Barnett Shale— producing $1 billion in mineral wealth, according to the Associated Press, and pumping more than $30 million into city bank accounts. The Texas Tribune reports: “In some cases, neighborhoods are expanding closer to longtime drilling sites.”
The idea of fracking, like the Keystone pipeline, is less of a problem itself than what it represents: more fossil fuels.
In Texas, thanks to fracking, according to the Wall Street Journal (WSJ), oil production has tripled in the past five years. The increase benefits Texas by providing the state with almost $6 billion worth of revenue in fiscal year 2014 through severance taxes. But it is not just fracking—which has been done safely and successfully for the past 65 years—that has created the new American energy abundance. It is fracking combined with horizontal drilling. But horizontal drilling doesn’t sound bad and fracking does. Plus, the general population doesn’t know what fracking, short for hydraulic fracturing, really is—making it easy to use fear, uncertainty, and doubt to scare the public.
In a 2013 report called Fracking by the Numbers, a group called Environment America redefines fracking. In a box on page 6, it states: “In this report, when we refer to the impacts of ‘fracking,’ we include impacts resulting from all of the activities needed to bring a shale gas or oil well into production using high-volume hydraulic fracturing (fracturing operations that use at least 100,000 gallons of water), to operate that well, and to deliver the gas or oil produced from that well to market. The oil and gas industry often uses a more restrictive definition of ‘fracking’ that includes only the actual moment in the extraction process when rock is fractured—a definition that obscures the broad changes to environmental, health and community conditions that result from the use of fracking in oil and gas extraction.”
This inaccurate definition allows for the recent spate of minor tremors to be blamed on “fracking,” when, in fact, if they are the result of oil-and-gas activity, they are reportedly caused by injection wells—which “inject” water that comes up as part of the drilling process, into wells miles below the surface. Injection wells, which may be far from the drilling site, can be used whether or not the well is stimulated using hydraulic fracturing. The U.S. Geological Survey study states: “Hydraulic fracturing, commonly known as ‘fracking,’ does not appear to be linked to the increased rate of magnitude 3 and larger earthquakes.” Yet, anti-fossil fuel groups continue to scare the public with such claims.
Ed Ireland, Executive Director of Barnett Shale Energy Education Council, told me his organization sent out five different mailings to 36,000 households to counter the misinformation spread by drilling opponents.
Supporters of the ban try to claim that it is not a drilling ban, just a fracking ban. However, since the natural resource underneath Denton is shale gas—meaning natural gas is trapped in tight little pockets within the rock—the shale must be fractured to allow the gas to flow out. Conventional drilling methods don’t work with shale. A ban on fracking is a ban on drilling.
While the Legislature has acted and the Governor has signed HB40, with it apt to be a pilot for the national issue and a template moving forward, we likely haven’t heard the last of municipal fracking bans—despite courts repeatedly shooting them down.
Earthjustice attorney Deborah Goldberg, in a CommonDreams.org story on the Texas legislation, says the people of Denton are not ready to give up yet: “We have been proud to represent the proponents of Denton’s ban and we know they will regroup and fight back against this legislative over-reach.”
Ireland says he won’t be surprised if drilling opponents engage in protests of some sorts because they have strongly suggested that they will.
One day after HB40 was signed, Colorado-based Vantage Energy announced: “that they were preparing for ‘frac work’ starting May 27.” According to the Denton Record-Chronicle (DRC), “neighbors reported seeing production equipment being moved to the company’s well site.”
In response, Adam Briggle, president of Frack Free Denton, which campaigned for the ban, told the DRC, he expects Denton residents to continue to fight. In a statement, Briggle said: “We cannot say how this story will unfold, but we do know this dark chapter shall not be the last one written.” The DRC reports, in an interview regarding Vantage’s planned drilling, that Briggle added he: “couldn’t confirm whether people would stage protests at the site. But it wouldn’t be a stretch to imagine it.”
Perhaps it is a good thing, for now, that lower oil prices are providing what WSJ calls “a natural cooling off period.”
When Oklahoma Governor Mary Fallin signs its “preemption” bill into law, it will be the next domino to fall.