Texas Legislature Moves to Expressly Preempt Local Bans on Fracking

Contributed by Caroline Toole

Across the country litigation has sprung up over whether regulation of hydraulic fracturing (“fracking”) should take place on a federal, state, or local level.  Several state courts have addressed whether local municipalities have the power to regulate fracking, reaching different results based on individual state law.  New York’s highest court ruled that local municipalities have the power to regulate fracking under their “home rule” authority, while a Colorado court found that local regulation was preempted by Colorado’s oil and gas law.  On the other side of the equation, North Dakota, Wyoming, and Colorado recently brought suit over the federal Bureau of Land Management’s new rules on fracking, arguing that the power to regulate fracking rested with the states.

The Texas legislature recently moved to end the dispute within the state over municipal versus state regulation of fracking–not via litigation but by statute.  Earlier this month, the state House and the Senate passed a bill that would allow local municipalities to regulate above-ground aspects of oil and gas operations such as noise, traffic, and light involved, but would prohibit them from regulating the activity that takes place below ground. If the governor signs the bill as expected, the law would put an end to local bans on fracking such as that adopted by the city of Denton, Texas.  It remains to be seen whether other state legislatures will follow Texas’ lead and resolve the issue outside of the courtroom.