Citizens for Local Control - Repeal HB 40

Citizens for Local Control - Repeal HB 40 seeks to nullify HB 40 of the Texas Legislature of 2015 and restore Home Rule Authority allowing local municipalities to regulate oil and gas exploration and production activities within their jurisdictions for the protection of citizens, their quality of life, their health and safety, their property values and their environment according to established community standards and in accordance with the protections afforded all citizens by the Texas State Constitution and the United States Constitution.

On May 18, 2015, Texas Governor Greg Abbott signed into law HB 40, an insidious bill written by attorneys Shannon Ratliff (ExxonMobil) and Tom Phillips (Texas Oil and Gas Association) which strips away local control over oil and gas operations and gives full authority of regulation to the State of Texas. HB 40 was written by the oil and gas industry for the oil and gas industry and was passed into law by Texas legislators who received an average of more than $58,000 each in the last election cycle from the oil and gas industry in blatant disregard for community standards or the health and safety of citizens. The bill comes on the heels of strict drilling ordinances in Dallas, Flower Mound and Southlake and a ban on hydraulic fracturing within Denton City Limits, all of which have now been rendered illegal and unenforceable by the passage of HB 40.

Read the text of HB 40 HERE.

Support Organizations

FracDallas - Citizens Opposed to Urban Oil and Gas Drilling
Food and Water Watch
Environment Texas - Environmental Data Collection
Fish Creek Monitor
Westchester Gasette
Fort Worth Can Do
North Central Texas Communities Alliance

City of Arlington Dog and Pony Show August 1, 2015
City of Arlington, RRC and TCEQ Deceive Citizens About HB 40

On Saturday, August 1, 2015, the City of Arlington, Texas hosted a forum featuring city staffers and representatives from the Railroad Commission of Texas (RRC) and Texas Commission on Environmental Quality (TCEQ), both of which are known for deceiving citizens on matters of health and safety, for the purposes of presenting a "transparent" program explaining "the roles and responsibilities of the local and state regulating authorities in urban drilling" under the newly-enacted HB 40. As expected for 9:00 AM on a Saturday morning, the meeting room was nearly empty. In fact, there were only 9 people in the audience before our group walked in, and those consisted of at least four others who support our position and three elected officials from Denton and Arlington who cared enough to attend (we do not know the other two people.) Our presence raised the audience total to 29.

In announcing the "transparent" meeting City of Arlington officials made it clear there would not be a microphone allowing attendees to directly ask questions of the panelists, which consisted of Arlington Fire Chief Don Crowson, Arlington Gas Well Coordinator Collin Gregory, RRC Communications and Outreach Representative Gaye McElwain and TCEQ Air Section Manager Elizabeth Smith. Instead, the attendees were instructed to write questions on cards and submit them to be read by a representative from the City of Arlington who would then direct each question or comment to the panelist he thought best able to respond. Unfortunately, most of the responses were "political" in that they did not directly address the questions asked, and in the case of Gaye McElwain from RCT there was not even an attempt to pretend to be answering the questions. On numerous occasions attendees reacted with demands for direct, honest answers, but were shut out by the moderator and no follow up ever occurred in this "transparent" forum.

What was truly amazing was to hear TCEQ and RCT representatives blame the legislature for everything when agencies of government have a clear right and obligation to pass appropriate rules and regulations to govern activities under their auspices. Somehow, TCEQ and RCT seem not to understand that fact and blame the legislature for their own failures to act to protect citizens, their property and the environment. Perhaps if our state agencies were not funded by the oil and gas industry they would have a more objective perspective on their role in government. Our only recourse is to replace existing state legislators with others who will put the health and safety of citizens as the highest priority and demand that corporations operate in the public's best interest. Repealing HB 40 and returning Home Rule Authority to cities would be a great place for the next legislature to start.
HB 40 Protest at Arlington Forum on Gas Drilling, August 1, 2015
HB 40 Protest at Arlington Forum on Gas Drilling, August 1, 2015

1.1 Million Wells, 158 Inspectors - What could possibly go wrong?

Fish Creek Monitor has an excellent expose of statements made by Railroad Commission of Texas (RRC) Communications and Public Outreach Director Gaye McElwain during an Arlington forum to explain "the roles and responsibilities of the local and state regulating authorities in urban drilling." And, the true facts are even worse than stated on Fish Creek Monitor because the cited reports on wells did not include wells that are capped and abandoned or water wells, all of which are also under the perview of RRC inspectors.

It is estimated that there are a total of over 1.1 million wells that have been drilled into the Texas earth, a very many of which nobody even knows where they are because they were drilled at a time when permitting and registration of well locations was not required by law. Each of these wells opens potential migration pathways for frac fluid chemicals and naturally-occuring contaminants found deep in the ground to find their way into drinking water aquifers, drinking water wells, springs, creeks, rivers and lakes. Cross-contamination can occur anytime any well intersects pathways created by other wells. Dr. Anthony Ingraffea, the Professor of Fracture Mechanics at Cornell Unversity, who spent over 20 years as a geological engineer with Schlumberger (the second largest frac'ing and oil/gas well drilling company in the world), has stated that 5% of all well casings fail immediately, and that 50% of well casings will fail within 15 years due to corrosion and abrasion from the harsh chemicals used in the hydraulic fracturing process affectionately referred to as "frac'ing."

Considering that each of these frac'ed wells expands existing fractures in shale and surrounding sediment layers, as well as creating many more such fractures during the frac'ing process, that means there are literally hundreds of millions of potential migration pathways under the earth by which carcinogenic, toxic and neurotoxic chemicals and normally-occurring radioactive materials (NORM) can find their way into the water we drink, use for hygiene, water our crops we eat and water our animals, both domestic and wild, resulting in potentially harmful health effects and premature death for every living thing on the planet. Yet, our Legislature does not see it as reasonable to properly fund enough inspectors and properly train them to sufficiently monitor the wells the RRC allows to be drilling into our Texas earth so that the public is properly protected from the ravages of oil and gas production. Further, knowing full well that they lack enough inspectors to properly protect us, the RRC continues issuing new well permits under the false claim that state law requires them to be issued - nothing could be further from the truth!

McElwain was asked a direct question - "How many wells have been drilled in Texas and how many inspectors does RRC have to monitor those wells?" According to RRC's McElwain, she does not know how many wells RRC regulates, but the agency only employs 158 inspectors, and many of them are fresh out of college, or still in college working as interns, without the sufficient skills and experience to properly inspect wells. To make matters worse, assuming ONLY the number of currently producing oil and gas wells, shut-in wells and injection (disposal) wells, and assuming a standard 240-day work year, each inspector would have to inspect 11.23 wells per day just to inspect each well one time each year. But, the reality is even worse than that. Using the estimate of 1.1 million active and inactive wells of all types that have been drilled in Texas each inspector would actually have to inspect about 29 wells per day just to inspect each well a single time in one year.

1.1 Million wells - 158 Inspectors - what could possibly go wrong?

The truth is, most of those wells need to be inspected monthly, or at the very least quarterly, to properly protect citizens and our water supply. Of course, RRC Commissioners, all being oil and gas industry people and their election campaigns being 70% or more funded by the oil and gas industry, sees no need for more frequent inspection because their oil and gas industry masters tell them that oil and gas wells never leak and never cause any health or safety problems. We all know those are lies, but then the oil and gas industry has never been known for its honesty, especially when honesty gets in the way of making money for themselves.

It would be impossible for the inspectors to properly and thoroughly inspect 11.23 wells per day, and it is most certainly impossible for them to properly and thoroughly inspect 29 wells per day, even if all 29 were located on a single padsite. Proper testing would involve soil sample testing, downhole pressure testing of casing pipes, air monitoring, electrical circuit inspections, infrastructure security inspections and numerous other inspections that could require an hour or more per well every time they were inspected. The truth is, most wells in Texas are NEVER inspected and inspection reports are often just the data provided by the oil and gas producers rather than independently obtained data from well inspectors and independent testing results from certified testing laboratories that have no vested interest in the oil and gas production operations.

So, whenever Gaye McElawin appears in public and is asked direct questions by concerned citizens she has an obligation to come prepared with truthful facts and information and give factual answers instead of just lying through her teeth and covering up for the incompetency of the RRC. What is really galling about McElwain is how when she is asked straightforward questions she acts like a politician and gives answers that have absolutely nothing to do with the question asked, and then pretends that she answered a citizen's question. This behavior is the direct result of a person devoid of integrity and honesty, which makes her perfectly suited to the position she holds at the RRC. If the Peter Principle is applied, then someday soon McElwain should rise to the very top of the RRC, or possibly even become Governor. Texas has a long track record of electing the most incompetent people to the highest state offices and then entrusting those people to act to protect citizens from the harms of industries. Remember West, Texas! It can (and will) happen again and again because our state government does not believe in regulation. After all, regulation drives businesses to other states with less regulation, which is probably why Texas has so many companies moving here from other states.

HB 40: Bigger than Denton; About Fracking and Local Control Statewide
By Todd Ellis

This past November, the will of Denton residents came across loud and clear when we voted overwhelmingly to protect our health, our environment and our community by passing the first-in-Texas ban on the dangerous gas and oil drilling process known as fracking. Dentonites breathed easier knowing they would enjoy peace and quiet from polluting and noisy fracking rigs. But, last June, our voting rights were stolen away when six out of seven members of the City Council, supposedly exhausted by bullying by the profit-at-all-costs fracking industry, decided to repeal our voter-enacted ban.

The Council had initially promised to stand strong against threats to the ban: On November 5, Mayor Chris Watts told The Dallas Morning News, "The City Council is committed to defending the ordinance and will exercise the legal remedies that are available to us should the ordinance be challenged."

And challenged it was: The Texas Oil and Gas Association (TXOGA) sued the city the day after the election. Then the Texas General Land Office (TGLO), in a wild waste of state funds, also took legal action against the City.

For a little while, the City Council did uphold our fracking ban. But then Texas Governor Greg Abbott, who campaigned to close loopholes that allow state legislators to vote on bills in which they have financial interests - even though he took over $1.5 million in campaign contributions from the oil and gas industry - signed HB 40. Itís a regressive and undemocratic bill that blocks Texans from protecting our communities from the harms of oil and gas development. And sadly, instead of standing even taller in the face of unethical bullying of Abbott and industry and challenging HB 40, the Denton City Council hoisted the white flag.

The decision to repeal Dentonís voter-enacted fracking ban has already been made. Many, myself included, are saying: It would have been better if the Council and residents banded together and fought tooth and nail to protect our hard-won fracking ban. Now we must build popular support and generate outrage from all the people of Texas - conservatives and liberals, democrats and republicans and libertarians - who are sick and tired of the hypocrisy of our elected officials and their willingness to strip away the rights and hopes of citizens to benefit their industry friends and their own bank accounts. Even if we have go to court, through appeals and all the way up to the state supreme court. This must be done!

The fight is bigger now. Itís about joining forces with other cities in Texas to regain local control of our communities. Now itís an issue that needs to be addressed by other groups. Itís going to take the community coming together and then reaching out across the state to others who still stand strong for the democratic process, to other community leaders, real estate developers, educators, and public health professionals, to those who still care about the sanctity of the vote and the right to protect our homes and families.

We have to build the political power we need to wrest Texas from the grip of the oil and gas industry. Texans arenít afraid of hard work. Letís roll up our sleeves and come back stronger than ever. We can protect local control of our communities. If we let the oil & gas industry force fracking where we donít want it, thatís the beginning of the end of home rule. Denton is the best place to begin this fight.

Todd Ellis is a resident of Denton, and the founder of the Denton Tour de Fracks bicycle event.

Don't Frac Your Mother

North Texas Residents Sue Drillers Ovewr Polluted Water Wells

Two families in rural North Texas have sued oil and gas drilling companies, claiming hazardous chemicals from hydraulic fracturing seeped into their water wells.

Richard and Stella Singleton said their water well was fine until the summer of 2013, when Fairway Resources fracked an oil and gas well a few hundred yards from their house.

Read the full story HERE.

Home Rule Authority under attack by oil and gas industry

With the passage of HB 40 in the last session of the Texas Legislature a full frontal assault on Home Rule Authority was launched by the oil and gas industry through its puppets in the Texas House and Senate. But, Texas is not the only state where the grip of the oil and gas industry on elected officials is causing a loss of democracy and the right to control our neighborhoods. Recent actions in other states are having a profound effect on local control issues related to permitting of oil and gas operations in close proximity to where citizens live, work and go to school.

The South Florida town of Bonita Springs has officially banned fracking. The city council voted early Wednesday to ban all types of well stimulation techniques to extract fossil fuels, which includes fracking, within the city limits.

Read the full story HERE.

With the oil and gas industry already reveling in a recent Ohio Supreme Court decision stripping local control on fracking and other extraction activities away from communities, the Secretary of State has now handed the industry another victory, opening the door for fracking infrastructure projects to spread even faster across Ohio.

In a decision issued August 13, Ohio Secretary of State Jon Husted blocked citizens from voting on Home Rule Charter initiatives which include provisions on fracking infrastructure development.

Read the full story HERE.

There may be extensive legal precedent for overturning HB 40 as an unconstitutional overreach by the state legislature. In a reading of settled case law in Texas and elsewhere it is clear that courts have routinely upheld the rights of cities to protect citizens, public and private property, quality of life and the environment through implementation of zoning laws that restrict or prohibit industrial activities in residential neighborhoods or other areas. Below is a link to some interesting legal cases that may have profound influence on the dispostion of HB 40.

Read the full story HERE.

Additional citation may be found HERE.

 Florida Home Rule Authority under attack by oil and gas industry

Like Texas, the oil and gas industry is now trying to pre-emp local control over their activities by buying the Florida State Legislature and securing passage of bills that give all regulatory authority to the state government. About 20 Florida counties have passed local restrictions on drilling activities within their jurisdictions and officials in those counties are now opposing attempts to strip them of local control in favor of state control because, well, it is cheaper for the oil and gas industry to buy a legislature than to buy multiple city and county governments. And, like Texas, local officials believe they are the ones who should make local decisions over local matters.

A recent article in the Tennessee Democrat, titled Counties oppose bills to pre-empt fracking bans highlights the issues in Florida where citizens and their elected representatives are feeling the pressure of the oil and gas industry to force itself upon them regardless of their opposition to pre-emption of their local control rights under Home Rule Authority. This action by the industry is a part of a nationwide effort to thwart citizens control by buying legislators who will cede authority to themselves at the expense of local citizens.

Quoting from the article, "About 20 counties, from Leon to Miami-Dade, and nearly 40 cities, including Tallahassee, have passed resolutions or ordinances banning fracking, an unconventional drilling technique thatís generated controversy over environmental and health concerns. As of late October, the bans were in place in cities and counties representing roughly 8 million people or about 43 percent of the stateís population.

"But legislation (HB 191 and SB 318) designed to set up a regulatory framework for fracking would pre-empt the measures. The bills, sponsored by Rep. Ray Rodrigues, R-Estero, and Sen. Garrett Richter, R-Naples, would pre-empt to the state the regulation of oil and gas exploration, development, production, processing, storage and transportation. Only local zoning ordinances adopted before 2015 would remain enforceable under the legislation.

"Earlier this month, the Florida Association of Countiesí general membership voted unanimously to oppose the pre-emption measures along with provisions in the bills that would exempt chemicals used in the process from public disclosure if theyíre considered trade secrets. FAC also voted to support a moratorium until "independent and comprehensive" studies on fracking are completed and peer-reviewed."

Across the nation the oil and gas industry is trying to usurp the will of local citizens for the benefit of the industry and the legislators it owns and controls through campaign donations and support activities. This is about as un-American as it gets, and it demonstrates the will of corporate America to put its own financial interests ahead of the health and safety, quality of life, property values and the Constitutionally guaranteed rights of citizens for the benefit of a select few who privatize profits and socialize costs.

Texas Administrative Code, Title 30, Part 1, Chapter 101, Subchapter A, Rule 101.4, Environmental Quality, Nuisance

No person shall discharge from any source whatsoever one or more air contaminants or combinations thereof, in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property, or as to interfere with the normal use and enjoyment of animal life, vegetation, or property.

TEX LG. CODE ANN. Aß 253.005 : Texas Statutes - Section 253.005: LEASE OF OIL, GAS, OR MINERAL LAND

(a) Except as provided by Subsection (b), a municipality may lease oil, gas, or mineral land that it owns, in the manner and on the terms that the governing body of the municipality determines, for the benefit of the municipality. A lease under this section is not a sale under the law governing the sale of municipal land.
(b) A municipality may not lease under this section a street, alley, or public square in the municipality.
(c) A well may not be drilled in the thickly settled part of the municipality or within 200 feet of a private residence.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.

33 U.S.C. ß 408 : US Code - Section 408: Taking possession of, use of, or injury to harbor or river improvements

It shall not be lawful for any person or persons to take possession of or make use of for any purpose, or build upon, alter, deface, destroy, move, injure, obstruct by fastening vessels thereto or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, or any piece of plant, floating or otherwise, used in the construction of such work under the control of the United States, in whole or in part, for the preservation and improvement of any of its navigable waters or to prevent floods, or as boundary marks, tide gauges, surveying stations, buoys, or other established marks, nor remove for ballast or other purposes any stone or other material composing such works...

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Last updated January 26, 2016