State bill prohibiting local fracking bans one step closer to enactment

After Denton, Texas adopted a ban against hydraulic fracturing, many commentators predicted that the anti-fracking measure would be short-lived. While the lawsuits challenging the local fracking ban are still in the early stages, the Texas Legislature is quickly taking steps to block local fracking bans. On Friday, the Texas House of Representatives passed H.B. 40—one of several bills recently proposed to address anti-fracking measures similar to Denton’s fracking ban.

Under H.B. 40, localities are expressly preempted from adopting legislation concerning oil and gas operations. Localities would, however, have the authority to adopt ordinances that regulate “surface activity that is incident to an oil and gas operation, is commercially reasonable, does not effectively prohibit an oil and gas operation, and is not otherwise preempted by state or federal law.” The bill was proposed by Representative Drew Darby.

H.B. 40 was criticized by some members of the House of Representatives. Approximately ten amendments to the bill were proposed, but they were all rejected. If accepted, the amendments would have ensured that localities retained the authority to regulate some aspects of oil and gas operations. One of the proposed amendments would have created a grandfather clause that local ordinances that have been enacted for at least ten years are not preempted. Now, H.B. 40 advances to the Texas Senate.

Read H.B. 40.

This post was written by Barclay Nicholson ( or 713 651 3662) and Johnjerica Hodge ( or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.