Texas house committee on energy resources approves bill to preempt local fracking bans

Denton, Texas garnered national attention when it enacted a local measure banning hydraulic fracturing within the city limits. At the time, many spectators suggested that the measure would be short-lived because of legal challenges in the court system and potential legislation from the Texas Legislature. Soon after the enactment of the ban, several members of the Texas Legislature proposed bills aimed at restricting the ability of local governments to enact anti-fracking bills similar to the measure adopted by the city of Denton. One of those bills—H.B. 40—took one step closer to being passed this week.

On Monday, the Texas House Committee on Energy Resources (Committee) approved H.B. 40. Of the twelve members on the Committee, one member abstained (Representative Gene Wu) and one member dissented (Representative Rafael Anchia). Now that H.B. 40 has been approved by the Committee, the Texas Legislature will vote on whether to pass the bill.

Under H.B. 40, local measures purporting to regulate hydraulic fracturing would be expressly preempted if the local measures are “already impliedly preempted by state law.” H.B. 40 explicitly forbids localities from enacting legislation banning hydraulic fracturing. H.B. 40 would, however, permit a locality to enact legislation that “regulates only surface activity that is incident to an oil and gas operation.” To fall within the range of permissible local legislation, the local measure must be commercially reasonable and not otherwise preempted by state or federal law. In addition, the local measure must “not effectively prohibit an oil and gas operation.” H.B. 40 is sponsored by Representative Drew Darby.

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.