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Bill would allow property owners to sue over drilling ordinances

The latest bill to be filed after Denton banned hydraulic fracturing would make cities that adopt restrictive drilling regulations pay mineral owners for their loss of property.

State Sen. Van Taylor, R-Plano, filed legislation last week that he says would set up a mechanism allowing a qualified group of property owners with a state-issued drilling permit to seek payment if they believe that ordinances make it impossible to profit from the oil or gas underneath their land.

“Taking someone’s property without paying for it is wrong. You can’t take people’s property without compensation,” Taylor said. A city can implement any ban it wants and set any distance regulations it like, but should just be prepared to compensate for it, Taylor said.

Jim Bradbury, a Fort Worth environmental lawyer who helped craft the city’s gas drilling ordinance, said Taylor’s bill will simply put another “arrow in the quiver” of oil and gas operators who oppose any regulation that makes their life more difficult.

“My overall impression is that it creates an unnecessary hook that oil and gas drillers, or their mineral owners, could use to sue the city for enacting ordinances,” Bradbury said.

Denton voters approved the first municipal fracking ban in Texas in November. A grassroots group pushed the ban after pleading for years with the city and state for help to stop drilling that they said was too close to homes, schools and hospitals.

While the Denton ordinance does not ban conventional wells, energy industry leaders say it effectively shuts down all drilling in the city because hydraulic fracturing is needed to tap into shale gas reserves. The ban is being challenged in court.

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Taylor’s legislation joins at least two other bills that have been filed after the ban passed. While widespread use of fracking has boosted domestic oil and gas production, it has also sparked controversy and opposition over concerns about potential air and water pollution, noise and truck traffic.

State Sen. Konni Burton, R-Colleyville, is pushing a bill that would prevent cities from banning hydraulic fracturing, saying it infringes on private property rights.

State Rep. Phil King, R-Weatherford, proposed a law that would require any city seeking to regulate oil and gas activities to get a fiscal note prepared by the state budget board that details how much the proposed action would cut taxes for schools and other government entities. If a ban cuts the funding, the city would be required to make up the difference.

Taylor’s proposed legislation, Senate Bill 809, would amend parts of the state government code, also known as the Private Real Property Rights Preservation Act, that is used when a government entity takes property under eminent domain.

Taylor’s bill adds interest in an oil or gas well to the definition of private real property covered by the law and then includes a provision that says it covers any action by a political subdivision that “imposes or enforces” a limitation on the development of oil and gas wells as permitted by the Texas Railroad Commission, the agency that regulates the industry in the state.

It then carves out as “acceptable regulation” such things as visual aesthetics, noise abatement or hours of operation, as long as they are reasonable.

If adopted, the bill would keep individual property and mineral owners from challenging an ordinance. They would have to be part of a pool recognized by the state for a permit. But enough of them are involved, there would be a way for them to be paid for what they lost, he said.

Taylor wrote a similar bill in the last session, but it stalled in committee. But he said his argument has gained credence after a federal judge tossed out as unconstitutional a ban on oil and gas drilling in Mora County, N.M., for many of the same reasons.

Bradbury, the environmental lawyer, said the broad approach used by Taylor and others simply doesn’t work. Fort Worth, Arlington and Mansfield have all passed detailed ordinances to regulate urban drilling made possible by horizontal drilling.

“The placing of a gas well is highly complex and requires a highly refined set of regulations and there is no need for this wholesale approach to paring back a city’s ability to set balanced regulations,” Bradbury said.

 

This article was written by Max B. Baker from Fort Worth Star-Telegram and was legally licensed through the NewsCred publisher network.

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