HB40 Switcheroo

On Monday, May 18, Governor Greg Abbott signed into law a bill that eliminates many local restrictions on gas drilling and fracking in the state. Called the Denton Fracking Law by many of its critics, HB40 says that if an ordinance is not “commercially reasonable” –– defined as “a condition that would allow a reasonably prudent operator to fully, effectively, and economically exploit, develop, produce, process, and transport oil and gas” –– then it can be overridden by oil and gas companies. Authored primarily by Texas House Representative Drew Darby from San Angelo, the law preempts local gas ordinances by giving exclusive jurisdiction to the state to regulate oil and gas operations. Specifically, the law makes the Texas Railroad Commission the arbiter when questions of whether or not an ordinance is commercially reasonable for drillers arise.

Abbott, when signing the bill, said that having a patchwork of local regulations threatened gas production and that the new law will do a “profound job of protecting property rights.”

The critics were stunned.

“A lot of us are still laughing at that,” said Tim Rugiero, co-founder of  ShaleTest , a nonprofit that conducts air, water, and soil testing for people affected by gas drilling. “That’s more a political statement than a statement of reality. Drillers have been drilling for more than 100 years and complying with the patchwork of drilling ordinances, so that’s not the issue. What this law is really about is the gas companies virtually guaranteeing that there will not be another fight like the fight in Denton in the future of Texas.”

Last year, Denton enacted an ordinance that prohibited further drilling within the city limits, and gas well operators feared that other cities would follow suit. Beyond the Denton ban, Flower Mound and Dallas have ordinances that prohibit drilling within 1,500 feet of a protected area (a home, a school, a commercial space), making drilling extremely difficult.

In all, the new law could affect ordinances in more than 300 cities.

While the 1,500-foot setbacks in Flower Mound and Dallas are expected to be challenged by gas operators, the outright ban in Denton is already under fire. The day after the new law was enacted, Vantage Energy, a Colorado outfit, announced that it would be fracking several wells that have been in limbo since the ban went into effect in November 2014. The eight wells were drilled last summer, but the fracking moratorium prevented them from being finished. Vantage could not be reached for comment.

“Since this bill has been moving through the legal channels, there have been three major events that were largely ignored,” said Sharon Wilson, Texas representative of the Oil and Gas Accountability Project, a national nonprofit. “There was a blowout in an Arlington neighborhood where poisonous flowback fluid was released and made its way into the storm drains, creeks, and backyards — an extremely dangerous event. Then there was the SMU study showing that the Azle earthquakes were caused by a combination of injection wells and extraction. And then, just 11 days prior to Abbott signing the bill, lightning stuck separator tanks and a well-head in Denton, causing a massive gas fire that raged for several hours. That was a terrifying incident. But none of those things mattered when considering this bill.”

The Denton fire occurred on a Vantage-owned well.

“They have a fire on one of their wells, and yet less than two weeks later, Vantage is right back at it in Denton,” Ruggiero said. “What Governor Abbott refuses to see is that a lot of us are not opposed to drilling. We’re just not in favor of having it happen in our backyards, schools, parks, and playgrounds. And this new law undermines the local protections to those areas.”