Or How to Frack Texas Cities Without Really Trying.
Joined The Calvin, The Sharon and The Marc in Austin yesterday to testify against Texas House Bill 40 Frack Anywhere. About 100 people turned out to testify, 80% against, the rest were the usual assortment of fracking lobbyists, Man Camp followers and some Judas Goat mayors.
Calvin was polite, Sharon was mad, and Marc was ballistic. I spoke at 8 and there were 70 people left to testify.
To their credit, most of the committee members sat through it all, and listened. To their discredit they prevaricated shamelessly as to the crudely worded intent of the bill: to gut local zoning ordinances and replace them with frack all.
As proposed, a city could not “limit” or “prohibit” oil and gas surface use anywhere – meaning in residential zoning districts.
Why is this important for all state and all municipalities ? Because the premise of Texas Frack Anywhere is the same in other Frack Anywhere legislation – a fundamental misinterpretation of mineral rights law as it pertains to surface uses. Simply stated, “mineral rights trump surface rights” in a split estate; the frackers try to confabulate that into “mineral rights trump surface regulations” ie. local land use ordinances.
They do not in Texas. They do not in New York. They do not in Pennsylvania. They do not in Ohio. They do not in Colorado. Surface regulations regulate surface uses – including the extraction of oil and gas. State agencies regulate how oil and gas operations are conducted. Municipalities regulate where they are conducted. And where they are prohibited according to land use plans.
In Texas, the state has no land use or environmental protections – no drilling setbacks, no nothing. Only the municipalities regulate land use. Only the municipalities protect the health, safety, and welfare of the citizens and quiet enjoyment of their property.
The bill’s sponsors want all municipal well setback ordinances to meet a “commercially reasonable” test. Since the average lateral is over 2,000 feet in the Barnett Shale, that means that Dallas’s 1,500 foot setback not only qualifies as “commercial”, but may be too short. And Midland’s well setback at 500′ is way to short for the “commercial feasibility” test. There are no 500′ shale laterals in Texas. Whoever wrote this bill clearly spent some time at Texas A&M – but could not have passed freshman English or math.