For all intents and purposes, House Bill 40, recently signed by Gov. Greg Abbot, appeared to be the state of Texas snatching control from towns and cities in the ways they’re able to govern themselves. Stipulating that cities can’t ban fracking, HB 40 has met with some pretty severe backlash in the media about “big government” stepping in for “local control” in a way that feels oh-so-very anti-Texan. But even though it appears that Texas is selling out, it may not be the case, and it all depends on how you look at it, a San Antonio lawyer or someone else familiar with the limitations and abilities of HB 40 would point out. “It’s useful to take a deep breath and assess what the law does—and what it doesn’t,” in other words.
While the Star-Telegram opinion isn’t a San Antonio lawyer himself, he is the executive director of the Barnett Shale Energy Education Council, so for him to tell us to hold our horses before we get our panties in a knot (Texas-isms all around), it might be worth stopping to hear what he has to say. Which is that “HB 40 actually strengthens local control.” Before HB 40 was signed into law, there were no protections in court for cities wanting to regulate many of the issues dealing with fracking they’d already started to –noise, traffic, etc. All those regulations put into place by local governments could have been challenged in court and overturned.
A San Antonio lawyer would agree—now with HB 40 “explicitly granting many of the regulatory authorities” like emergency response and surface activities can be clearly defined by municipalities…As long as the set of regulations aren’t “so costly and duplicative that they ban drilling.” Which is basically all about transparency anyway, Ed Ireland points out. “HB 40 prevents local governments from misleading their own residents” while letting them stay in charge (and even codify) the regulatory powers around city-wide activities.
And interestingly for a San Antonio lawyer with an Eagle Ford Shale client-base and oil and gas attorneys everywhere in Texas, one thing HB 40 certainly does is “introduce certainty, which will prevent costly legal challenges that would have otherwise arisen.” With big energy corporations taking municipalities to court across the Lone Star State over their commercial zoning rights, citizen tax-payers would certainly be footing the bill for the defense of their town’s regulations, which may or may not have held up in court before a judge.
Ed Ireland wants to remind us that “energy development is good for cities across Texas, as it supports 40 percent of the Texas economy.” Which is a lot. Almost 2 million jobs. Layoffs in the oil fields can be devastating to entire communities built up around the industry, and fluctuations in the market can be hugely impactful. HB 40 provides some stability against that. Maybe it’s not so anti-Texan a measure after all….