54:2 Bringing a Gun to a Knife Fight: Texas H.B. 40 and Local Regulation of Oil and Gas Operations

Abstract

In late 2014, the citizens of Denton, TX voted to pass a complete ban on hydraulic fracturing within the city limits. The following spring, the Texas Legislature passed H.B. 40, which expressly prohibits cities like Denton and other political subdivisions from banning hydraulic fracturing within their jurisdictions. However, H.B. 40 goes well beyond simply prohibiting cities from banning hydraulic fracturing. Rather than being a measured and proportionate response to the Denton ordinance banning hydraulic fracturing, H.B. 40 potentially completely alters Texas cities’ powers to regulate the oil and gas industry although Texas cities have exercised these powers for over one hundred years of successful oil and gas exploration.

This Comment explores the legal landscape regarding the regulation of the oil and gas industry before and after the passage of H.B. 40. It discusses the history of the Denton ordinance banning hydraulic fracturing, the legal framework that arguably provided cities authority to pass and enforce such bans, as well as the legal challenges to Denton’s ordinance raised by Texas General Land Office and the Texas Oil and Gas Association. Next, this Comment analyzes the immediate and future effects of H.B. 40, concluding that H.B. 40 creates several legal uncertainties which will eventually need to be resolved through extensive litigation or further legislation.