New Texas Law Bans Cities From Banning Fracking, Drilling

NBC DFW ^ | 5/18

[Team Cuda]

While I agree that most cities WANT to expand their tax base, there are quality of life issues involved as well. This is the whole basis of zoning laws. Virtually every city has limitations on what you can do with your property. Just as you would not want your neighbor to replace his house with a hog-rendering plant, even if he truly believes this is the best use of his property (and he can experience the highest $ return from that), many people do not want to live next to a fracking operation.

In any case, the issue we’re discussing is local control vs. state preemption of laws. If this is a big issue to the electorate of Denton, they can recall the City Council, and elect a Council that will reverse this law. In no case should the Big Brother government in Austin tell the people of Denton what they should do within the city limits of Denton.

[snarkybob]

“First, let me say that I loathe inconsistency above all. We should be consistent in our beliefs.”

Sadly lots of conservatives are perfectly fine with big government as long as it’s putting the boot to something they disagree with.
Big Government is great when it does what I like.
If you wonder why conservatism can’t seem to keep a foot hold in mainstream politics anymore it’s because of positions like this.

[Milton Miteybad]

In no case should the Big Brother government in Austin tell the people of Denton what they should do within the city limits of Denton.

And in no event, under any circumstances, should the City of Denton (or any similarly situated municipal entity) be permitted to disenfranchise mineral owners from the enjoyment of their estates within its corporate limits in contravention of the mineral dominance doctrine. So the Legislature wisely concluded.

As a practical matter, of course, drilling and completion operations, including hydraulic fracturing, are temporary inconveniences, the effects of which can be ameliorated, if not completely eliminated. Operators can drill directionally from offsetting tracts, erect sound barriers to dampen noise, and employ dust reduction measures during operations. They go in, drill and complete the well, remove their equipment and leave a tidy fenced production site behind. No muss, no fuss, no problem. They usually go out of their way to minimize these issues in areas where residential neighborhoods have brazenly encroached upon the open countryside.

So, while Denton cannot have its ham-fisted, confiscatory no-drilling ordinance, it will still benefit from the "accommodation doctrine" where oil and gas operators must accommodate existing surface uses where it is reasonable to do so. Maintaining sufficient setbacks from a residential subdivision and practicing good industrial hygiene during operations should serve to safeguard the surface interests of the citizens of the City of Denton.

[Team Cuda]

I have to admit, I was not familiar with the mineral dominance doctrine in Texas law. Upon researching it, I am forced to conclude that Denton’s ordinance limiting fracking was in opposition to state law, and should have been overturned. While I still think that the Texas legislature was heavy handed, not being a resident of Denton or Texas, I guess my opinion really doesn’t matter.

[Milton Miteybad]

That's it exactly. The Legislature decided that it couldn't have this municipality or that one enacting ordinances that could, in effect, render mineral estates within their corporate limits completely valueless for lack of access.

When most of the mineral interests in question were reserved (perhaps 50 to 100 years ago), of course, there was no way of knowing that the City of Denton and its subdivisions would come to occupy the surface above them. The mineral interests were there first; the suburban dwellers are the "Johnny-Come-Latelies" in this scenario, although many of these folks think, incorrectly, that they were there first, simply because they moved in one year, and the next a drilling rig shows up nearby.

This is a pretty common issue, really...what used to be open pasture/prairie where you could conduct drilling operations without fear of disturbing anybody or anything is now Subdivision City, USA. A lot of the development in the Barnett Shale has been in urban/suburban areas. Fort Worth didn't see the need for such an ordinance; neither did Arlington, Irving, Grapevine, White Settlement, Benbrook, Keller, Saginaw, Westlake, etc. All of them had the usual restrictions on drilling you might expect, but no outright prohibition. The list of municipalities that were able to adequately regulate oil and gas operations within their jurisdictions is a lot longer than the list of cities where they thought they had to ban drilling altogether (namely, Denton and nobody else.)

So the Legislature is looking at this and saying, "What's Denton's problem? Why is every other city able to find a way to permit and regulate drilling within their city limits, EXCEPT for Denton? What does everybody else know that Denton doesn't?"

Now, as to the Fort Stockton plastic bag ban, I can see where somebody might say that is a case of legislative overreach. Then again, in the past six months I've driven through Fort Stockton a fair number of times, and I didn't notice that there was an inordinate number of abandoned plastic grocery bags floating around. (They might have some big plastic bag problem for all I know, but if so, I didn't notice it on a "just passing through" basis.