What is the true intent of HB40?
Dear, Dear Readers,
Please pay attention because there will be a test at the end over the true intent of HB40.
Industry spent $21.3 million to buy Texas politicians during the 2014 election. These legal bribes were necessary to get legislators on board with stripping away from their constituents a 100-year Texas tradition of concurrent regulation of oil and gas by cities and state. Industry said HB40 was necessary because they needed statewide regulatory consistency and no patchwork quilt regulations. There is a record of legislative intent of HB40 in abundant quotes:
However, the parties contend that recently adopted municipal regulations create a patchwork of inconsistent regulation that undermines the safe and efficient production of oil and gas. H.B. 40 seeks to ensure consistent statewide regulation of the oil and gas industry. HB40 AUTHOR’S / SPONSOR’S STATEMENT OF INTENT of HB40
Darby said his bill would do away with the “patchwork of inconsistent regulation that undermines” the future economic potential of the state’s most valuable natural resource.
“In the absence of this bill, a statewide patchwork of oil and gas regulation is likely,” Darby said. Source
HB 40 promotes consistency, fairness and lawful use of local ordinances by clarifying the responsibilities of cities and the state for regulating the oil and gas industry. Todd Staples, TXOGA
“I think that it’s going to provide more certainty and consistent behavior by operators,” said Burleson, managing partner in Burleson in Houston. “We think it’s a very good bill.” Texas Lawyer
This law ensures that Texas avoids a patchwork quilt of regulations that differ from region to region, differ from county to county or city to city,” said Governor Abbott. Source
The Texas Oil and Gas Association praised the bill, saying it would prevent cities from adopting a patchwork of local regulations that could slow down the state’s drilling boom and threaten its energy-reliant economy. EnergyWire
However, the parties contend that recently adopted municipal regulations create a patchwork of inconsistent regulation that undermines the safe and efficient production of oil and gas. C.S.H.B. 40 seeks to ensure consistent statewide regulation of the oil and gas industry. HB40 Bill Analysis
Through hours of hearings, Drew Darby (the author of HB 40) and other legislators honed a message about the purpose of HB 40: We need regulatory certainty! Oh, how horribly the industry would suffer if it were subjected to a patchwork quilt of local laws! Frack Free Denton
“This law ensures that Texas avoids a patchwork quilt of regulations that differ from region to region, differ from county to county or city to city,” said Governor Abbott. “HB 40 strikes a meaningful and correct balance between local control and preserving the state’s authority to ensure that regulations are even-handed and do not hamper job creation.” At bill signing.
Update to add another statement about intent:
“We have to have orderly regulation, and that can be done if the industry, the citizens, and local governments work together and not against each other,” said Mills. “We certainly understand that you can’t go in and start drilling next to homes and churches and schools — there has to be set-back provisions.” Alex Mills, president of The Texas Alliance of Energy for Houston Business Journal, Oct 1, 2015, 2:58pm
Recent social media exchanges between Steve Everley and me hinted that consistency is not what industry is after in HB40. When asked for an acceptable setback distance, he said that it depends on geology. When pressed further for a specific setback distance in the Barnett Shale geology, he said it would depend on where in the Barnett Shale. And so the conversation continued.
Therefore last night’s testimony at the Denton City Council meeting by Ed Ireland was not a total surprise to me.
The video is here. Ed Ireland starts at 7:35:17. But you don’t have to watch it because I transcribed the pertinent part.
Gregory: Is it accurate that commercially reasonable might change based on what your able to sell it [oil and gas] for?
Ireland: I think that’s one component but there are a lot of components of that calculation and it’s going to vary, not only by that but, by municipality. So what might be commercially reasonable in one municipality may be totally different from another. So there is not going to be a statewide standard about commercially reasonable.
Gregory: Wha, explain that please.
Ireland: Well, for example, a setback requirement in one city might, in a court, be deemed to be commercially reasonable but that same setback could be different in another municipality, or a commercially reasonable setback could be different in another municipality.
Gregory: …Simply because of the opinion of the court? Or because of the…
Ireland: …Because of the entire situation. I mean, everything that will be considered to go into that calculation for that particular area. That’s why HB40 did not specify any kind of a statewide standard because it can vary.
Gregory: One of the other things imposed upon us by the state … that it’s commercially reasonable by a reputable and prudent operator. Is that an acknowledgement that all operators aren’t necessarily prudent and good players?
Ireland: (Defers answer to attorneys. Note: he is paid by operators regardless of their standard for operating.)
joking about deflection and laughter
Hawkins: I’m trying to understand what you just said. If it’s found that Fort Worth’s [ordinance] is commercially viable, and let’s say Denton had the exact same ordinance, are you saying that it could possibly be found that it wouldn’t be found commercially viable here just because it’s in a different place?
Ireland: Well there again, I would defer to the attorneys on that because, but that’s my understanding, is that it’s not necessarily one standard that would apply in south Texas or in Denton or anywhere else. It’s the total circumstance of a situation is going to have to be considered and that’s going to be litigated or adjudicated or whatever the proper term is.
Hawkins: I don’t know how that makes sense to me. Thank you though.
Briggs: My sentiments, exactly. I don’t really understand that too much. So you’re saying that most of these definitions are more than likely going to have to be determined in court. And that could mean something different for each city. Is that what I’m hearing?
Ireland: That’s my understanding but, again, I think that entire argument is the legal side of it and I’m really not qualified to …
This is a multiple choice test on the intent of HB40:
What is the true intent of HB40?
- HB40 because patchwork quilt fracking ordinances are too hard.
- HB40 because we demand patchwork quilt fracking ordinances.
- HB40 because we will frack where and how we want.
- HB40 because we will sue you for everything.
- HB40 because trial attorneys need more work.
- HB40 because all of the above.
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This analysis, although valid, will not stop fracking and accomplishes only one objective: It takes time. The gas industry is only too happy to see these tedious exercises as every minute spent in this pursuit is a minute away from stopping the greedy insanity. There is more than enough data to confirm the obvious. Fracking is seriously harmful to the environment and to all life forms. The issue you need to be addressing exclusively is that fracking is not only allowed but it is encouraged because it generates tremendous profits without regard to the cost in environmental damage and loss of life. The only applicable formula is Profits equal Income less acceptable losses. Both profits and income are easy enough to define while acceptable losses are carefully obscured. No reasonable person would allow fracking if they knew the real losses. If anyone intends to stop fracking they need to get way past these time consuming mind games and get to the truth. Fracking kills and must be stopped.
You do understand that we got past the mind games but the Texas Legislators forced us, all Texans, in this crazy mind game again. This is the mind game our legislators forced on us.
Yeah, we know. Now tell us your plan…
Of course, the answer is 6. However, notice that 1. and 2. are mutually inconsistent. Both cannot be true. Yet that is what Ed Ireland claims.
Let’s look at this bill from another perspective. It says that municipalities cannot have home rule when the issue is oil & gas. Yet apparently home rule is a good idea for other issues, for example, zoning to keep residential areas free of…oh, I don’t know…let’s say, stockyards and meat packing plants, or fireworks factories and their warehouses. Home rule is an ancient concept based on the fact that public safety, nuisances, and public health issues are best decided by the local government, because they answer to the people whose lives are affected by these issues. The state government does not answer to any municipal residents, and that is the reason why oil & gas wants HB40. That was the reason why railroads wanted their ROW issues decided at the state level. And they got their wishes. It’s deja vu all over again.
You realize that the technical name for the type of quilt displayed above is actually a “crazy quilt,” right? So apparently what we have done is exchange a “patchwork quilt” of regulations for a “crazy quilt.” I got that right away.
Good ole Ed. He made it clear how industry plans to use HB40 and that doesn’t match the legislative intent that Darby loudly proclaimed in the hearing. Did Todd Staples fool Darby or was Darby a willing participant in fooling his colleagues and the public? Staples knew exactly what this bill would do.
“They tried to bury us, they didn’t know we were seeds.” -Mexican Proverb
This is the conversation via Twitter I had with EnergyInDepth’s Steve Everley:
Me: “In feet, how much is a ‘reasonable setback”?
Everley: “The question is absurd; Has to be determined where the operations occur. Geology isn’t uniform”.
Me: “Sounds like the operator gets to decide-since it’s all about the ‘geology’ and not common sense.”
Everley: Operators work together with residents and city-that was a goal of HB40-encourage more negotiation/compromise locally”.
I was out of town during the Denton City Council Meeting, but watched it through the live feed.
Devon wants to install some 500 wells in Denton, which seems like a major investment-so they send some kid who struggled to read his pre-prepared script. He knew nothing, other than he wanted everyone to know how Devon really wants to drill those wells. Responsibly, of course. I think it was Briggs who asked him how much a tanker truck weighs. He didn’t know-but would find out and let her know. She’s probably still waiting. Just goes to show this Devon kid has never set foot on a drill site. If he did, he would see these trucks are clearly marked with their weight and capacity. I know how much tanker trucks weigh because I watched dozens and dozens of them daily for weeks at time rumbling around on my property. 80,000 lbs. Maybe I should text her.
Then Ed Ireland got up. Ed has mastered the art of saying the same bullshit 99 different ways- which is why I was only half listening, and it being one of the only times being happy that the mike time was 3 minutes. Then I started to get mad because Council started asking him questions-and my immediate reaction was, WHY are you asking him anything? Maybe you can’t stop him from speaking, but you don’t have to listen to anything he says. You’ve already heard it. At every city council meeting. Forth Worth, Denton, Mansfield, Arlington, same bullshit, different city.
In a matter of two sentences, Ireland managed to single handedly confuse everyone-to the point where the council admitted to still not understanding what the hell he was talking about-but decided to stop asking him questions.
Here’s my take on what Ed said, though: His employers are going to do exactly what they want to do, where and when and how much they want to, and they’ll threaten lawsuits and file actual ones if you or anyone get in their way. Remember, when he answered, he stated, “…. a setback requirement in one city might, in a COURT, be deemed to be commercially reasonable…” followed by, “… I would defer to the attorneys on that…” THE attorneys. The ones just waiting to file suit, probably have a number of them ready to go, just fill in the date. Starting to see what I’m seeing? Ireland is paid handsomely to do Industry’s bidding, but he revealed, in my opinion, the strategy most of us already knew-While Industry attorneys tie up either individuals or an entire city in court, they will be fracking away.
It’s always entertaining but your take makes it even more so.
I asked Everley what an acceptable setback for Denton would be and he said that depends on where in Denton. So much bullshit in that man you could plant him and grow another one.
These guys are being deliberately vague; They know every operator wants as much flexibility as possible with little hassle as possible all the while playing the Good Neighbor song.
Here’s a scenario I see happening soon: An operator applies for the permit, and Craddick can’t stamp her approval fast enough. Then the operator requests one or more variances, one of them being the setback. The City says ‘No’ because in granting the variance, the drill site will be 300 feet from some homes. The operator reminds the city that they will be in violation of HB40, specifically, violating one of the four requirements: “Must not effectively prevent an oil and gas operation from occurring”. The operator will claim that without the variance, they cannot effectively ‘operate’. Don’t make us sue you. Again.
Once again I must mention that this banter although entertaining is a waste of time and is exactly what the gas giants want. The fact is fracking is very productive but is not safe. Fracking has not been done safely and can not be done safely. We must get past this exchange and accept that we must defy HB40 and return home rule so communities like Denton can protect their citizens like the State of New York and several foreign companies have already done. Get past this crap and get to the fight. There is not other choice. Every minute you avoid the fight is another minute the gas guys win, more land, air and water are permanently poisoned and more lives are seriously affected.
Once again, we are completely and absolutely engaged, in that endeavor.
But that doesn’t stop us from multitasking, Sharing information and enjoying interaction with each other.
This will illustrate the kind of people you are dealing with and is my personal experience. Today I am thinking of my friend Frank and his three legged wolf Fallon who were my neighbors on Porcupine Creek in Rifle, Colorado. Frank was 73 years of age and we saw him and Fallon almost every day when Frank came by while taking Fallon out for a run in rain, shine or snow. Frank would pack their breakfast or lunch and off they would go to explore the valley or visit a favorite spot to watch the deer and elk. Frank had a bad back and arthritic knees earned during his years as a paratrooper with the famous 101st Airborne Screaming Eagles. In Frank’s words he spent his younger years jumping out of perfectly good aircraft and landing in places where everyone there wanted to kill him. Frank and Fallon lived in a small trailer on a neighbor’s property where he planned to live out his life enjoying the mountains in peace and quiet. One day Frank encountered a WPX Energy truck driver urinating on the roadside instead of using the porta can at one of the well sites. Frank confronted the guy explaining that there were wives and children using that road and asking that he use the facilities at the well sites. The driver was more than rude and even threatening so Frank called the WPX office where he was assured the issues would be resolved. Then Frank witnessed the same guy doing the same thing again so he climbed the WPX corporate ladder and submitted another report. Again he was assured the issue would be resolved. The issue continued. Then the WPX drivers began harassing Frank and they were joined by Encana drivers as they all shared a gas well access road that passed Frank’s trailer. The drivers would bang on their truck doors when they passed Frank’s place at all hours of the night and day. Fallon was 160 pounds of friendly, playfulness but he was also a wolf and quite territorial when he felt threatened. When Fallon began barking and growling at the loud drivers WPX reported Fallon to the animal control officer as a dangerous animal. WPX also warned the property owner where Frank lived that if Fallon attacked one of their workers they would file civil action against her. They told Frank he would be jailed and Fallon would be shot by the Sheriff’s department. The property owner told Frank he had to move. Frank lived simply and had no money to move and could not find anywhere else to go. When WPX convinced Frank that he would be made homeless and Fallon would be killed he took Fallon to the vet for his annual checkup and made arrangements for his son to pick up Fallon the next day. Then my friend Frank went to his trailer and killed himself. Free Fallin’ Frankie was an American hero who survived many armed conflicts but he did not survive WPX and Encana.
That doesn’t sound like something your friend Frank would do, is that the point?
Let’s remember that oil and gas keeps our war machines going. When wars are going on, oil and gas can act as a third party, but without seizing land of citizens to drill there would be no way to support these international conflicts. And the conflicts are spiced up in some way by the media to gain public support and distract from the fact that we can’t get off oil because maybe we can make a solar or water powered car, but good luck making a solar or water powered tank. Just a thought..
What? Does not sound like something my friend Frank would do. What are you talking about? I related the story of how Encana and WPX pushed my friend Frank to suicide because he reported their drivers for urinating on the county road and you ask a question that makes no sense. Then you say oil and gas fuels our war machines. Of course I know we need oil and gas and must maintain our energy independence but do we need to do it at all cost? Fracking may be the answer to increased production but it can not be done safely so the point is stop fracking until the industry proves they can do it safely. I begin to doubt your motives. What affiliation do you have with the oil and gas industry?
I don’t understand your reply, “koch.”
Let us not forget the ” reasonably prudent operator”
reasonable
adjective
1. showing reason or sound judgment
having the ability to reason
Careful or wise in handling practical matters; exercising good judgment or common sense:
pru·dentA
adj.
1. Careful or wise in handling practical matters; exercising good judgment or common sense
This my friends is how and why we are going to fight HB 40 at a grassroots level until it is repealed or drastically changed. Never underestimate the will of the people of Texas. Big government can not just come in and pass a law that overturns a democratic vote, de-centralize our state government and take local control away and give it to a greedy self serving industry. Reasonable and prudent does not mean putting a heavy industrial use 180 ft from a child’s bedroom