Roughly six months after Denton, Texas, voters overwhelming approved a ban on hydraulic fracturing within the city limits, Gov. Greg Abbott is poised to sign legislation that wipes away the vote— and perhaps a great deal more.

Abbott is expected to sign HB 40, known as the Denton Fracking Bill, which bars and preempts cities and other political subdivisions from regulation of oil and gas activity.

Supporters and opponents of the law expect lawsuits to challenge the legislation. Supporters say the law rightly gives the Texas Railroad Commission (RRC) the ability to regulate oil and gas activity.

Opponents say the law may have gone too far, and that years of work among oil and gas companies and cities could unravel. For instance, environmentalists argue that in Midland, the law effectively nullifies more than a dozen subsurface provisions.

HB 40, filled in March by Rep. Drew Darby, chairman of the House Energy Resources Ways & Means Committee, kills Denton’s fracking ban outright.

But ordinances or other limits to oil and gas operations, particularly underground, may also be history. Cities can still enforce certain ordinances if they meet a four-prong test. Ordinances must regulate operations at or above the surface of activity; be commercially reasonable, allowing the operator to effectively and economically develop and transport oil and gas; not effectively prohibit an oil and gas operation; and not be otherwise preempted by state and federal law.

Dianne Edmonson, chairman of the Denton County Republican Party, said while she supports local control, the state constitution gives the RRC responsibility for oil and gas activities. She supports the bill because it still offers safeguards for cities.

“It still protects the roles of the city to regulate to a certain extent oil and gas activities but does not allow them to totally ban drilling, which is what that ban was doing,” she said. However, Edmonson said the fight is far from over. She said outside influences, including environmentalist groups, led to the ban in the first place.

“While I think the legislation was a good compromise on local control and constitutionally, ultimately this issue is going to be decided in the court,” she said.

In November, 59% of Denton residents voted to prohibit hydraulic fracturing within the city. Immediately afterward, the Texas Land Commissioner and the Texas Oil & Gas Association filed suits challenging the ordinance.

Leading up to the bill’s passage, Texas mayors and city officials from North Texas to Victoria sent an opposition letter to the Legislature. They noted that 300 Texas cities had adopted ordinances to limit drilling within their borders that could be undone.

Opponents say state regulations are “notoriously weak” and that fines for some violations date back 30 years and haven’t kept up with inflation. Supporters argued that ordinances preempted by the bill are mostly duplicative of state agency regulations.

But Scott Anderson, senior policy director for the Environmental Defense Fund, said the law would unspool years of work between the municipalities and operators. “The bigger news behind the bill, in addition to banning bans, is that this bill also takes away a huge portion of the authority that Texas cities have had for almost 100 years to regulate oil and gas operations.”

Municipal ordinances, whether zoning or specific to oil and gas, are “just gone” if they regulate subsurface operations, Anderson said. He served as an oil lobbyist for 25 years and general counsel and executive vice president at the Texas Independent Producers and Royalty Owners Association and helped cities draft drilling ordinances.

He said the new law will drive closer collaboration between city governments and the RRC as well as collaboration between cities and environmental advocacy groups. Cities also may consider new alternatives of achieving their goals to make up for their loss in jurisdiction.

“You might see an increased use of negotiated contracts and memorandum of understanding with companies as a condition of doing business inside of city limits,” he said.

Even some conservatives with an environmental tilt are concerned about repercussions. Republican Trammel S. Crow, who founded Earth Day Dallas and is son of the Trammell Crow Co. founder, wrote to the Legislature in April to voice concerns.

He said local government oversight and oil and gas development have coexisted side by side for decades. “HB 40 drastically shifts this balance of power away from local government,” he said. “Undermining reasonable local regulations will also ultimately undermine support for the oil and gas industry.”

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