If three bills making their way through the legislative process in Austin become law, home rule in Texas would effectively be gutted.
Identical House and Senate bills that would exempt the gas and oil industry from home rule ordinances are passing easily through their respective legislative branches. A third bill, one that would allow the state to create rules and regulations that could retroactively gut all city and municipality ordinances, is also in legislative play. Critics, who believe home rule is important because it allows local governments to craft laws specifically designed by and for the cities’ residents, have called the bills the biggest power grab in the state’s recent history and claim the wording of the bills came straight from the gas and oil industries.
“This is a fascist takeover of public interest by corporate interests,” said Lon Burnam, former long-time Fort Worth state house representative. “This has never been attempted in Texas prior to this.”
Sharon Wilson, outspoken critic of the gas industry and the Texas representative of Earthworks’ Oil and Gas Accountability Project, said the bills “are coming straight out of ALEC,” the American Legislative Exchange Council, a conservative organization that writes bills for state legislators that will benefit its members.
State Rep. Phil King, a Republican from Weatherford, is ALEC’s chairman and the author or co-author of several bills that would limit or eliminate local home rule authority. Among the bills that he has co-authored is HB40, which would turn all regulation of gas drilling, fracking, transportation, and storage over to the state-run Texas Railroad Commission, pre-empting more than 300 local gas-drilling ordinances in home rule cities and municipalities.
That bill, and its identically worded companion, SB1165, are seen as a response to the ban on new fracking in Denton. Passed in November 2014, Denton’s ban –– along with the 1,500-foot setbacks from inhabited buildings for drilling, enacted by local ordinance in Dallas and elsewhere –– could be eliminated by new rules put in place by the railroad commission, which oversees gas and oil drilling in Texas. Giving the commission unilateral power to develop rules and regulations regarding setback distances, the number of wells considered reasonable, and other gas and oil-related issues would dramatically change the balance of power that currently exists between home rule cities and gas and oil companies.
The bills appear to have the backing of both the legislature and governor’s office.
Both bills specify that “the authority of a municipality or other political subdivision to regulate a gas and oil operation is expressly pre-empted” unless those regulations are “commercially reasonable,” which the bills define as “a condition that permits a reasonably prudent operator to fully, effectively, and economically exploit, develop, produce, process, and transport oil and gas.”
Wilson is not amused.
“They talk about reasonable,” she said, “but what they mean is that every city in Texas will now be forced to allow gas drilling. If your ordinance doesn’t permit fracking, that’s not going to be considered reasonable. This is simply a way for corporations to push their gas and oil wants on cities with no consideration for the health and safety of the people who live in those cities.”
Home rule cities would still be permitted to pass or keep ordinances on noise levels, hours of drilling operations, and well pad landscaping, provided those things do not interfere with gas and oil drilling.
King did not return phone calls for this story.
Railroad commission spokesperson Ramona Nye suggested that as the bills are still in process, questions as to what sort of regulations might be implemented ought to be addressed to the lawmakers.
“Of course,” she added, “the railroad commission will carry out the will of the Texas Legislature on this issue.”
First-term State Sen. Don Huffines’ bill takes a broader swipe at home rule than either of the other two bills by allowing the state to override any and all city ordinances retroactively. Section B of SB343 reads, “Unless expressly authorized by state statute, a local government shall not implement an ordinance, rule, or regulation that conflicts with or is more stringent than a state statute or rule regardless of when the state statute or rule takes place.”
What makes the Dallas Republican’s bill so ominous, critics say, is its retroactivity.
“On first glance, you wonder why the bill is even needed,” said Carol Birch, an attorney with Public Citizen, a nonprofit organization that lobbies and litigates on behalf of the public interest in Washington, D.C., and Texas. “The bill is suspicious because state law already trumps local law if there are conflicts. The thing is, when the bill states, ‘Regardless of when the state statute or rule takes effect,’ you are certainly intending it to be retroactive.”
Birch, a former administrative law judge with the State Office of Administrative Hearings, said that wording would allow the bill to cover any local ordinance that the state wanted to remove.
“We call the Huffines bill the ‘super-pre-emption bill,’ ” said Bennett Sandlin, executive director of the Texas Municipal League, which represents member cities before state and federal legislatures on many local issues. “This bill sweeps all local ordinances in the state off the table. Right now, home rule cities regulate all kinds of areas that are not covered by state law, but this would strip those cities of home rule power.”
Sandlin sees the potential power grab as dangerous. “Cities have distance regulations from schools and playgrounds for sex offenders, for instance, but the state could wipe that out because they have a different rule. Austin’s ban on the use of plastic bags in supermarkets could [also] be tossed, along with a host of other ordinances.”
Among them, LBGT protections against employment discrimination in several large cities, including Fort Worth, Austin, Dallas, and Houston, could be eliminated. Local ordinances regarding paid sick days or the location of payday lenders or basic zoning regulations could be overruled by new state regulations.
“This is a very dangerous bill,” Sandlin said.
Huffines did not respond to requests to discuss the bill’s ramifications.
“Let’s face it,” Burnam said. “The Huffines bill is the work of overzealous right-wing nuts. It’s the last gasp of the dinosaurs to keep Texas from moving into the 21st century. The same people who screamed about local control over civil rights against the federal government want to do the same thing to local governments now. This is absolutely about taking away the rights of local people to run their own municipalities.”
Sharon Wilson agrees.
“These bills,” she said, “are about taking away local control so that corporations can do what they want with less regulation and control.”