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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 worded
attempt to disarm municipal land use ordinances. Approximately 80% testified against,
almost all the proponents were oil and gas lobbyist or camp followers.
What became clear during the hearing was how much little the Energy Committee knew
about land use law as it relates to oil and gas. Or how much they pretended to not know.
Some of the committee members seemed to be genuinely clueless in this regard, others
appeared merely to feign stupidity. We should give them the benefit of the doubt in this
regard and assume that they were simply acting dumb by way of being disingenuous.
The bill is based on a fundamental legal misconception. Several committee members
stated that mineral rights dominate (sic) surface rights. That is the mantra of HB 40.
They would preface leading questions to friendly witnesses with that assertion: You will
agree with me that mineral rights dominate surface rights. . . . And they would look at
each other and nod knowingly.
Mineral rights have been held by the courts to be superior to surface rights if there is a
conflict in a split estate where the ownership of mineral and surface rights are held
separately. Mineral rights do not trump surface regulations (zoning). Not under Texas
constitutional or case law. Several 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.
If mineral rights are superior to surface regulations, then there would be no need for HB
40. Since they are not, HB 40 lays out a mechanism to accomplish that by making the
state, the Railroad Commission, the final arbiter of all local land use regulations.
The second Big Legal Misconception tediously advanced by the representatives is that
HB 40 would not effectively gut local zoning ordinances. If removes land use districts
zones right off the top. HB 40 would preempt any land use law that prohibits oil and
gas drilling anywhere in municipality or its ETJ. That means that heavy industrial oil and
gas activities could not be prohibited in any zoning district such as a residential,
commercial or business district - exactly where they have been prohibited and should be
prohibited. Quite literally Frack Anywhere.
As if that was not sufficient, the bill gives the Railroad Commission final say over
virtually any local land use law pertaining to oil and gas. HB requires that any local land
use oil and gas operations ordinances meet a new legal test of commercial viability.
Meaning the ordinance could be challenged by a fracker if they thought the ordinance
might render their operations unprofitable. Ostensibly, regardless of the price of oil or
gas, the cost of capital, or the geology of a wildcat well.

If the fracker and the municipality disagree on the commercial viability of the impact,
the Railroad Commission will settle the matter. The net effect is that this would make the
Railroad Commission, the State, the final arbiter of any and all local land use ordinances
in the State of Texas that pertain to oil and gas.
Unlike other states notably Colorado, California, New York, and Pennsylvania - Texas
has no state oil and gas well setbacks nor any land use protections. The Railroad
Commission has no land use rules and regulations whatsoever. Nor does the TCEQ. The
state setback of a gas well from a daycare center is zero. From a hospital, zero. From a
school yard, nothing. The State of Texas has no objective 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 activities.
No such commercial viability test has ever been applied in land use law. A noxious
heavy industrial activity such as smelters or fracking - can be limited or prohibited
under a comprehensive land use law in order to protect the health, safety and welfare of
the local residents. The ordinances impact on an activitys commercial viability cannot
be an additional consideration in zoning law.
If that were not the case, every non-conforming use every liquor store, topless bar, or
rendering plant - would sue the municipality based on the commercial viability test.
In order to rationalize the commercial viability test for oil and gas operations in
particular, the bills sponsors asserted that mineral rights dominate surface rights confabulating that into mineral rights should trump surface regulations.
If mineral rights are superior to surface regulations, then there would not
much point in having municipal ordinances. Which is the transparent intent
and clear effect of HB 40.
James Northrup
Dallas

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