Republicans Aim to Preempt Local Democracy, Target Fracking Bans

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Planet or Profit

The Texas Senate — in lockstep with the oil and gas industry — approved legislation this week that would make the city of Denton’s fracking ban unenforceable and preempt the ability of local communities to regulate oil and gas operations within their city limits.

Last fall, Denton passed Texas’s first outright ban on fracking within city limits in a landslide victory in which 59 percent of Dentonites voted for the ban. Since then, state lawmakers connected to the oil and gas industry and to the American Legislative Exchange Council (ALEC) have introduced a number of bills aimed at undermining local democracy, ostensibly to prevent other cities from following Denton’s lead.

The sweeping bill approved this week, known as House Bill 40, eviscerates more than 100 years of Texas’s proudly held tradition of local control, known as home rule authority, and awaits Gov. Greg Abbott’s signature.

The measure easily sailed through the Senate chambers Monday, passing in a 24-7 vote, with almost no debate and no additional amendments. The bill passed with a similar landslide vote in the House last month, though lawmakers debated the measure for more than three hours before passing it without amendments.

The bill not only keeps the city of Denton (where this reporter is a resident) from enforcing its fracking ban — referred to by some as one of the most important fracking bans in the nation — it preempts longstanding municipal ordinances that have become a last-resort means for city governments to protect the health and safety of citizens from drilling operations. These operations have occurred as close as 200 feet from homes in various places in Texas.

Governor Abbott is expected to sign the bill, and if he does, the new law will require future city regulations — as well as those already on the books — to pass a four-part test to be viable. Under the test, a city ordinance regulating oil and gas operations must: not apply to subsurface activity, be determined by the industry to be “commercially reasonable,” not prevent oil and gas activity from happening, and not already be preempted by another state or federal law.

Texas’s HB 40 is part of a wider strategy emerging in Republican-dominated state legislatures to curtail municipalities’ regulatory authority, including cities’ ability to pass local ordinances and citizen-led ballot referendums. The legislation often comes at the behest of industries that stand to lose potential profits because of regulations initiated in the cities where they operate.

Eight states led by Republicans have prohibited municipalities from passing paid sick day legislation in just the past two years. Other such preemption laws have barred cities from raising the minimum wage and regulating the activities of landlords. This year, Arkansas passed a law that blocks a city’s ability to pass anti-discrimination laws that would protect LGBT people, and similar bills have been introduced in at least six states this session.

Many industries, including, most prominently, the restaurant industry and oil and gas interests, are working together through ALEC, which generates model legislation that advances the interests of its corporate members throughout state legislatures.

Texas State Rep. Phil King is serving as ALEC’s national chair this year. King is a co-author of HB 40 and introduced two other preemption bills this session, telling Truthout he did so in response to Denton’s fracking ban. One of the bills would allow the state to reject a municipal ordinance and the other would require a city to assess the tax revenue cost of any attempt to regulate oil and gas.

When previously asked by Truthout whether his bills were model legislation, King denied that his role in ALEC had anything to do with his introduction of the bills. According to Texans for Public Justice, King has received $41,501 in contributions from the oil and gas industry in the 2014 election cycle. State Rep. Drew Darby, HB 40’s primary author, received $64,251 from the industry in the same cycle.

State lawmakers and the oil and gas industry aren’t only responding to the blow delivered to fracking interests in Texas, but also seem to be aiming to beat back frack bans nationally. Bans on fracking were passed in local municipalities across the nation during midterms elections. Those bans — and in particular, Denton’s ban — have provoked a backlash from the oil and gas industry and conservative statehouses across the country.

The Oklahoma House passed two preemption bills last month curtailing the ability of localities to regulate oil and gas operations within city limits, even as the state acknowledged that a recent spike in earthquakes was directly related to some fracking wastewater injection well activity in that state.

The passage of oil and gas preemption bills in Texas and Oklahoma also comes on the heels of a nationwide poll released last Wednesday showing that a majority of the U.S. public who understand fracking favor allowing cities to ban the process within city limits. A national poll conducted by the University of Texas found that 58 percent of the 2,078 respondents said cities should have the authority to ban fracking.

As preemption bills continue to be filed in statehouses across the U.S., legal experts who have defended home rule cases, including one expert currently working on lawsuits filed against the city of Denton, point to legal challenges to preemption laws that have been successful in New York, Pennsylvania and Colorado.

Deborah Goldberg, a New York-based attorney with the environmental law firm EarthJustice, is currently representing Denton residents in two lawsuits filed against the city by the Texas Oil & Gas Association and the state’s General Land Office — lawsuits that may soon be rendered moot by Governor Abbott’s signing of HB 40, since the bill would make Denton’s ban unenforceable anyway.

Goldberg told Truthout she’s still conducting research on case law to see if Denton could possibly challenge preemption, but said that HB 40 could potentially pose a substantive due process claim under the Texas Constitution. The bill is expected to make sweeping changes to the state Constitution’s provisions protecting private property under municipal zoning authority.

Goldberg said similar private property provisions in Pennsylvania were used successfully to challenge preemption statutes in 2012, when Pennsylvania’s Commonwealth Court struck down portions of a state law preempting cities from writing oil and gas regulations under their zoning authority. The court ruled parts of the law violated the constitutional property rights of landowners who would be impacted by the law’s preemption of municipal zoning authority because residential areas could be zoned for industrial activity.

After several appeals, the Pennsylvania Supreme Court agreed with that ruling, though the high court did so based on different reasoning relating to Pennsylvania’s Environmental Rights Amendment, as opposed to property rights.

“High courts in other states have recognized that zoning is quintessentially a local issue, and a number of them have recognized the right of localities to use that power in the context of oil and gas development,” Goldberg said. “[HB 40] is so far reaching that it could wipe out all of the zoning that has been used to protect people’s private property and their home.”

Goldberg successfully defended a fracking ban in Dryden, New York, before the state’s Supreme Court after the Anschutz Exploration Corporation sued the town over a change in its zoning ordinance, effectively banning fracking as an “accepted use” of Dryden’s land. Goldberg said New York’s high court agreed that while the town could not regulate the technical operations of the oil and gas industry, it can regulate land use under its zoning authority.

Not all fracking bans come under a city’s zoning authority. Denton’s ordinance, which prohibits fracking under the city’s policing powers rather than zoning, makes fracking within city limits a criminal offense. Most oil and gas preemption bills, however, are designed to eliminate a city’s authority to zone for oil and gas operations.

“When you change the zoning to allow industrial development in a place that isn’t zoned for industrial development, you’re disrupting property owners’ reasonable expectations, and you’re making the whole local zoning irrational,” said Jordan Yeager, a Pennsylvania-based attorney who worked on the preemption case in that state. “The people who are developing their mineral interests are always advocating their property rights, but the reality is, the neighboring property owners have property rights too.”

In contrast, Ohio’s high court struck down a city ordinance regulating oil and gas operations, but according to Goldberg, the decision was a narrow ruling and did not address the issue of a city’s zoning authority. “[Ohio justices] could have read the Ohio law much more broadly, and they chose not to do so, and it’s possible the Texas Supreme Court would do the same thing,” she said.

However, another Pennsylvania-based attorney, Thomas Linzey, who is executive director of the nonprofit legal firm Community Environmental Legal Defense Fund, argued that it’s “not enough” to simply carve out exceptions to the preemption doctrine on issues such as zoning authority.

Linzey recently filed a brief in another Pennsylvania case PGE v. Grant Township, arguing that communities have a fundamental right to local, self-government that can be exercised to protect residents’ rights. The Legal Defense Fund has made the argument in other cases, hoping to establish case law that flips preemption on its head but admitted the theory has not yet been recognized in the courts.

Linzey told Truthout that the Defense Fund doesn’t necessarily trust the courts to understand and embrace the legal theory of the right of local, community self-government, so the Defense Fund is also working with states like Colorado to push state constitutional amendments that would withdraw the ability of states to preempt certain issues at the local level.

“The schlock that most lawyers talk about saying, ‘Oh yeah, we can get around [preemption] by doing this and this,’ doesn’t matter because the corporate boys control the state legislative process, and can preempt you on anything,” Linzey told Truthout. “So unless you get rid of the doctrine itself and toss it as being an anti-democratic control lever over the municipalities, then we’re all cooked.”

He said he’s doubtful that challenges to preemption can be successful in the long term, absent a constitutional provision that specifically limits a state’s legislative authority to preempt a municipality.

Goldberg maintained that the community rights ordinances advocated by the Defense Fund can’t stand up to constitutional challenges.

“[Those arguments] are designed to make a political statement about our court system and our legal system,” she said. “In my view, it’s a really bad model if what you want to do is get enforceable protections for people.”

Beyond working toward enforceable protections, Goldberg said she hopes Texans and other people facing preemption laws and bills look to options outside the legal system to protect their local democracy, adding, “I really hope that people in the communities around Texas who are going to be really severely injured by the law will work collectively to fight back.”