TX Cities About to Lose Right to Ban Hydrofracturing

Per the Dallas Morning News (amongst other myriad news outlets), it appears that a measure to ban hydrofracturing bans is only a matter of time and ceremony, as Texas Governor Greg Abbott is expected to sign off on the bill that has been paraded through the State Capitol and easily passed both legislative houses. The subject has been one of much contention and has come to a head in recent months, as Denton, Texas residents had voted to authorize a hydrofracturing/”fracking” ban within municipal limits. The article points out that this legislation would also put a kibosh on ordinances addressing underground activity, such as wastewater disposal wells.

Without getting too political, it is certainly interesting to watch a state whose citizenry and politicians largely oppose the federal style of government and would profess states’ rights (or a small-c confederacy) bend over backward to bend their true political beliefs to accommodate the oil industry, but that is for political scientists and pundits to dissect and debate. The move has been made to protect the oil and gas industry in the state, clearly; but, it also preserves the exploration and mineral rights of those interest owners who believe that they have the right to harvest those resources.

It is no surprise, then, that the standard upon which potential and enacted municipal ordinances will be measured under this forthcoming law is not only one of reasonability, but “commercial reasonab[ility’.” This gives courts immense discretion in determining whether or not a town’s ordinance impinges on oil and gas industry activities. One would imagine that barring a devastatingly damning congruence of facts, that Texas courts will be hesitant to impose great burdens onto the industry.

Tangentially, it is interesting that a more liberal and federal-leaning state such as New York has used the process of cramming a ban on high-volume hydrofracturing down the throats of all state citizens, yet Texas, which is arguably diametric on many political issues, is about to use the same process to cram its own version of a ban, which itself bans any fracking bans. The juxtaposition is certainly interesting.

Expect much litigation in this space, with courts being highly reluctant to bring the hammer against the industry at large. I dare say that any decisions against the oil and gas companies and/or operators will be disclaimed as to that particular entity too, unless either 1) the transgression is severe enough to warrant industry-wide change, or 2) altering the action or behavior that caused the transgression would not be financially or logistically onerous.