Five months ago, conservative lawmakers had high hopes of loosening environmental regulations, especially those enacted by progressive-minded cities like Austin.
In the 2015 legislative session, lawmakers passed a measure overriding the city of Denton’s voter-approved ban on hydraulic fracturing, a type of gas drilling. This year, conservative Republicans had bag bans and tree ordinances in their sights.
But as the Legislature wrapped up its biennial confab on Monday, the committee room floors were littered with conservative-minded bills that never made it anywhere. Two bills that would have targeted Austin and some other Central Texas cities were:
Senate Bill 103, which would have barred a city from regulating bags offered at retail checkout counters. The measure, filed by Sen. Bob Hall, R-Rockwall, who won election as part of a tea party wave in 2014, authorizes a business to provide a bag “made from any material” at the point of sale. It never came up for a vote in committee.
SB 782, by Sen. Donna Campbell, R-New Braunfels, would have limited the mitigation fee that a local government can impose on a landowner for removing trees greater than 10 inches in girth. Testimony was not taken, let alone a committee vote.
It could be that the action taken on fracking in 2015 left lawmakers less likely to take action this time around. That activity “sucked up most of the air and energy around pre-emption,” said Robin Schneider of Texas Campaign for the Environment.
In a modest victory for environmentalists, House Bill 3482, by Rep. Gina Hinojosa, D-Austin, a bill that clarifies that local governments can pass single-use bag ordinances, was approved by the House Urban Affairs Committee. It didn’t progress further, however.
Legislation targeting bag bans failed to gain traction for at least the third session in a row, suggesting lawmakers are more likely to tackle local control issues if deep-pocketed industries are involved — such as oil and gas or ride-hailing service companies Uber and Lyft — or if it’s a hot-button issue — such as transgender bathroom use or “sanctuary city” policies.
Here’s a roundup of other environmental bills and their fates:
A measure that would have protected ExxonMobil in an ongoing dispute about whether it had misled investors on the dangers of climate change wasn’t given a committee hearing. HB 420, by Rep. James White, R-Hillister, would have barred a defendant’s theories on climate change from being used as evidence in a fraud or deceptive practice case.
A series of bills that appeared designed to water down oversight on groundwater pumping in the Hill Country — and to help a politically connected property owner — were essentially shelved after the American-Statesman shed light on them.
HB 2802 would have repealed a law subjecting the Lower Colorado River Authority and a host of other river authorities to sunset review. River authorities said the reviews are costly; critics of the authorities said the reviews are necessary for the purpose of transparency. It passed the House but died in the Senate.
HB 3451 by Rep. Lynn Stucky, R-Sanger, would have required a study on the impact of poison proposed for use on feral hogs before its use is allowed. The bill was prompted by a backlash to Texas Agriculture Commissioner Sid Miller’s pronouncement in February that a new bait would hasten the “feral hog apocalypse.” An unusual coalition of hunters and environmentalists coalesced, worried the bait, which was laced with warfarin — used as rat poison and as a blood thinner in humans — could jeopardize wildlife. The measure passed the House but was left pending in a Senate committee.
The Texas legislative session is officially over. Since tens of thousands of our supporters took the time to take action in support of HB 1874, the battery recycling bill, we wanted to provide an update.
The battery bill made a big splash at the State Capitol, and we secured 10 co-authors from both parties, including both very conservative Republicans and some very progressive Democrats.
The bill’s author Rep. Rodney Anderson (R – Grand Prairie) set up a battery recycling box in his office. Many Texans sent batteries with their letters in support of HB 1874 which could then be taken to Rep. Anderson’s office for recycling.
It had a great hearing and stakeholders were forced to seriously discuss the bill for the first time in Texas. We brought together city officials from Ft. Worth, El Paso, Dallas, and Pearland who would like a more sustainable battery recycling program in their cities, the Texas chapter of the North American Hazardous Materials Management Association, Call2Recycle, the largest battery collector for recycling, and others to support HB 1874.
In the end, a couple key corporate lobbies sadly decided not to work with the bill’s author to find workable solutions so that all Texans could have convenient access to recycle their batteries. They focused their effort on preventing our bill from being voted out of the Environmental Regulation Committee, and unfortunately managed to get the Chair of the Committee on their side.
When it became clear that the Chair, Joe Pickett, a Democrat from El Paso, refused to bring HB 1874 up for a vote, we started generating letters to him from our supporters at the door from all over the state, including his district. He was invited to tour a household hazardous waste facility in El Paso to show the impact and need for battery recycling – he refused.The Texas Democratic Party platform supports producer responsibility recycling laws just like HB 1874 – even so, Rep. Joe Pickett killed the bill single-handedly.
We are proud of the bi-partisan support for the battery recycling bill – a direct result of the outstanding volume of correspondence and visible public support for better recycling in Texas to keep toxic materials and valuable metals out of landfills.
The inventor of the lithium ion battery wrote an opinion piece for the Austin American Statesman in support of HB 1874. Dr. John Goodenough wrote, “Texas has led on developing these products; now it’s time that we lead on recycling them when they are spent.” We agree: the bill may not have passed this year, but it makes sense in the long run.
We plan to work with stakeholders in the interim, and Rep. Rodney Anderson – the bill author – has committed to keep working on it. We hope we can recycle HB 1874 into a successful piece of legislation in 2019.
Thanks for everything you have done to support our Battery Takeback campaign.
AUSTIN – Environmentalists are declaring victory at the Texas Capitol in the fight to give cities the right to ban single-use plastic bags at stores, one of the few victories this legislative session for local governments in their fight against state pre-emption.
Those who track the issue say 16 cities, from Austin to tiny Kermit to Dallas, have bag bans. Senate Bill 103 was one of the earliest bills filed in the 2015 session, by Sen. Bob Hall, R-Rockwall, who said the choice of which types of bags to offer customers belong with local businesses.
SB 103, which hadn’t moved in two months, officially died May 20 in a Senate committee. The Senate deadline to consider bills is two weeks longer than the House, giving some the chance to revive bills that have died awaiting approval.
“Together, we changed the dynamic of the discussion on the issue at the State Capitol, bringing in the voices of ranchers, small business owners, technical experts, wildlife advocates and others who know the real impacts of single-use bag pollution,” Robin Schneider of Texas Campaign for the Environment wrote in a message to supporters. “The public hearing on SB 103 made clear to state lawmakers that this issue is not about environmentalists versus business, but rather a few business lobbyists versus costly and damaging pollution.”
Ultimately, the bag ban issue will not be left to lawmakers. A case on the bag ban issue has been appealed to the Texas Supreme Court. Attorney General Ken Paxton recently challenged the bag ban in Laredo, protesting the use of a fee to pay for bags.
Other than plastic bags, the scorecard for the Texas Legislature’s attempts to remove issues from local control has been mixed this session: the so-called “bathroom bill” is now city-less and a bill to ban local regulation of short-term rentals made it out of the Senate but was never heard in the House Urban Affairs Committee.
Bennett Sandlin, executive director of the Texas Municipal League, said it has been a rough session for cities, not only for stopping cities from passing ordinances but also pre-empting the regulation of network nodes by local government.
The 85th Texas legislative session is drawing to a close! Since roughly ten thousand of our supporters took the time to write letters, sign petitions, and check emails regarding single-use bag pollution issues, we wanted to provide an update!
The good news: we were able to stop SB 103 which would have prohibited local governments from passing ordinances to address pollution from single-use bags. SB 103 officially died in committee on Saturday, May 20.
Together, we changed the dynamic of the discussion on the issue at the State Capitol, bringing in the voices of ranchers, small business owners, technical experts, wildlife advocates, and others who know the real impacts of single-use bag pollution. The public hearing on SB 103 made clear to state lawmakers that this issue is not about environmentalists versus business, but some rather a few business lobbyists versus costly and damaging pollution.
Leading the charge were two fifth-grade girls from Houston who started a petition last year and secured more than 2,000 signatures from Houston residents ready for a bag ordinance. Lila and Caolin’s leadership and advocacy made a big difference at the Capitol.
For the first time ever, a statewide coalition of advocates proactively introduced a bill to protect local rights to ban bags: HB 3482. The bill passed out of its committee with a “yes” vote from one of the House’s most conservative Republicans, and then passed out of the Calendars Committee and was scheduled for a floor vote! Unfortunately, HB 3482 was one of hundreds of bills that did not get a chance to be voted on before the deadline due to an effort by a small group of legislators to delay the entire calendar at whatever cost.
The story is not over yet, however. The Texas Supreme Court has decided to hear a case on the legality of local bag bans, and our coalition is working to secure a variety of amicus briefs from business and community interests to clarify for the Court the diverse benefits of these local policies.
We’re up against powerful opponents such as the Attorney General, Ken Paxton. Paxton reached a settlement with the City of Brownsville recently over their bag fee option for retailers, and his office has filed an amicus brief with the Texas Supreme Court that we think is poorly reasoned and inaccurate.
We’ll need lots of help from business owners, ranchers, and conservationists to secure the right for local governments to pass single-use bag ordinances, like Fort Stockton, Freer, South Padre Island, Austin, and six other cities have done. We look forward to hearing from you if you have ideas to help this campaign!
In the meantime, will you share this update through social media?
At dawn last August 22, five North Texans piled into a Honda Civic and headed south to the Capitol in Austin for a public hearing on the state’s energy agency. They were one carload among many from across Texas. Residents had waited six years for the Sunset Advisory Commission to successfully review the powerful, misnamed Texas Railroad Commission (TRC), whose official yet glaringly contradictory mission is to both promote and regulate the oil-and-gas industry. Gas utility rates, surface uranium and coal mining, and pipeline safety are also under the agency’s purview.
That August morning, it was the third time since 2010 to review the TRC’s performance. The previous two were proven unsuccessful for a variety of reasons.
More than 130 Texas agencies are reviewed by the Sunset commission, usually every 12 years. The goal is to identify and eliminate waste, duplication, and inefficiency. Commission staffers independently research the agency and write their findings in a draft Sunset Report. This is followed by public comment and a hearing before the 12 Sunset commissioners. The 10 political appointees from the Legislature and two from the public decide which recommendations make it into the final Sunset Report, a document that advises the Legislature on improvements to and reauthorization of the agency — or its expiration, hence “sunset.” These recommendations potentially become new law. Or not.
In 2011 and 2013, state legislators failed to vote the TRC recommendations into law. Sunset staff had advised major reforms.
“2011, that was a good Sunset review,” said former Rep. Lon Burnam wistfully in a recent interview.
In it, the Sunset staff called for: changing the TRC leadership from elected-commissioner positions to appointees, changing its name, and shifting the agency’s reliance for half its funding from the state’s General Revenue to the industry itself, as other agencies are financed. The agenda also included tougher enforcement of violations, published online and better tracked. That bill failed to pass. A separate bill, for only the agency’s continuation to 2013 and a second Sunset review, succeeded.
In 2013, a set of even more thorough improvements from the Sunset Advisory Commission bit the dust.
“The Senate passed this bill intact, but ultimately the bill was left pending in the House Energy Resources Committee,” as Sunset staff reported.
“Left pending” means allowed to expire without action.
This time, only two measures passed: the continuation of the agency until 2017 and a bill requiring that a Railroad Commissioner running for another elected office resign –– which the governor vetoed.
The 2015 Legislature directed a full review for 2017. Sunset staffers analyzed the agency’s performance and completed their draft Sunset Report, posting it for comment, in April 2016. All interested parties finally got a new chance to weigh in
Now the Sunset Commissioners have had their say, and as of May 8, legislators have only 20 days left to reauthorize the agency to operate and finally make changes stick. What about the recommended improvements?
As those traveling to the assembly knew, residents of the Barnett Shale had experienced not only an oil-and-gas boom ushered in by modern hydraulic fracture drilling but also the undesired fallout. Shale dwellers lived with the glare, noise, fumes, and heavy truck traffic of heavy industry. Flares burning off excess gas, explosions, spills, and leaks occurred in backyards and close to schools, churches, and hospitals, into the air, the soil, and sometimes the water.
City dwellers were alarmed by the poor air quality. In 2015, Fort Worth-Dallas had passed Houston for the highest lung-damaging ozone levels in the state. The emissions that form ozone measured higher near oil-and-gas facilities, as found by research scientists at the University of North Texas using the state’s own monitoring data.
Rural people were also distraught over leaks into their family water wells. Texas municipalities had for 125 years possessed the power to address potential hazards within their boundaries by setting ordinances. In late 2015, this had been slashed by House Bill 40. Now the TRC was residents’ only resort.
Concerned whether the agency was doing its job, a public health nurse from Fort Worth, two Sierra Club members, a reporter, and the director of a clean elections watchdog group had woken up at 4 a.m. to trek to Austin. Conversation ranged from earthquakes and 1,000-year floods to campaign funding and pipelines.
Oil-and-gas operators, industry-group leaders and lobbyists, mineral rights owners, and ranchers were also making the trip. Written industry comment from the oil-and-gas industry so far opposed six of nine provisions within the report’s proposals.
For industry, summer of 2016 had shown improvement after two bust years. The year before had been sharply downhill for oil prices, continuing a long fall for shale gas since its roaring 2008 peak. By mid-April 2016, the Barnett Shale that in October 2008 had fielded 200 drilling rigs had lost its last one, according to the weekly industry report RigData.com. In the Permian Basin, oil production in the summer of ’16 was on its way to “exploding” upward, as a Forbes contributor put it, and gas was rebounding, with rig counts up and prices higher than in the spring.
The Eagle Ford Shale of South Texas was still in an oil slump but next behind the Permian in gas production. However, in 2106, bankruptcy filings from the 2014-2015 bust hit hard. By June, 43 Texas companies showed up on the bankruptcy filings list of Haynes and Boone, a law firm serving the industry.
“We’d had explosive production and extraordinary success at extracting oil and gas from tight rock formations, and we flooded the market with oil and gas,” said Karr Ingham, petroleum economist for the Texas Alliance of Energy Producers, an association of some 3,000 independent producers. “Texas tripled its crude oil production in five years. With the glut, prices fell from July 2014 to February 2016 [by] roughly 80 percent. It killed everybody –– hard on large companies the same as small, having to cut expenses and laying off people.”
The industry bristled at any changes that might cost money. Operators, industry associations, and lobbyists came to Austin to argue mostly for the Railroad Commission’s status quo.
The biggest oil-and-gas industry in the United States carried a lot of weight. It had contributed $2.02 trillion to the Texas economy in 2014, which was 14 percent of the gross state product, according to Texas A&M research economist Luis Torres. What else that kind of money might buy was an unacknowledged undercurrent at the hearing.
What would happen to the regulatory agency over the world’s sixth-largest oil-and-gas economy when it went in for an overhaul? Or would it just get a new license to operate?
That’s still unfolding now, with the 85th Texas Legislature roaring to a close. Public health and safety as well as water and air quality are at high risk, said Burnam, who is now president of the Tarrant Coalition for Environmental Awareness, an umbrella organization for enviro groups in Fort Worth. After 20-plus years in the lege as an unabashed, in-your-face liberal, Burnam ran for Railroad Commissioner in 2014-2015, lost, and re-emerged, working for grassroots democracy and environmental health and safety, the same as if he were still in office. In a state whose environmental agencies historically falter in compliance with the Clean Air Act, Clean Water Act, and other environmental laws unless pressured by the feds, President Trump’s policy reversals alarm scientists, environmentalists, and affected communities. Massive cuts to the Environmental Protection Agency, wholesale regulation removal across industries, and Trump’s choice for EPA director, Jeff Pruitt, the Oklahoma attorney general who made a career of suing the agency, all raise alarm.
“It’s a bad situation,” Burnam said. “For the last eight years, we depended on the federal government to defend us from the negligence of state government. Now we’re ‘fracked.’ ”
Entering the Capitol, travelers to the hearing found themselves in a Victorian splendor of bright spaces finished in native materials: terrazzo-floored, white-walled corridors lined with hand-carved oak doors and wainscoting and historic art. Standing in the four-story Italianate rotunda with its circular viewing mezzanine and ornate dome far above was like being inside a Faberge egg. The Capitol was completed in 1888, three years before the Legislature created the Railroad Commission of Texas to regulate railroads, such as the one that brought the building’s pink granite from Llano to Austin. Railroads were dropped from the agency’s purview in 1984, but the name is still defended like the Alamo.
In a waiting room, a crowd of 60 or more hearing attendees mulled over the Sunset Report’s findings and prepared their testimony. Stocky, kindly faced Tom “Smitty” Smith, Texas director of the public advocacy group Public Citizen, announced the room numbers of both a sandwich buffet and the hearing. Smith, easily mistaken for a Texas rancher in jeans and boots most days, had put on a dark suit to testify.
The Sunset Report went down harder than the catered sandwiches. Attendees learned that there were 433,000 wells in Texas at the end of 2015, 78 percent of them actively operating but with only 158 field inspectors. That meant the well-to-inspector ratio for active wells alone was more than 2,100 to one. Two-thirds of leases, including oil leases with thousands of wells, had not been inspected in more than two years.
“My neighbor has oil wells,” a West Texan said later. “He checks them every day to make sure nothing’s leaking. How are 158 inspectors going to check a third of a million wells even once a month?”
Five of eight other producing states show more frequent and/or more thorough inspection than Texas, reported a study of oil-and-gas regulations by Public Citizen, submitted as a written comment.
The Sunset Report identified seven issues, five of which directly affect residents in unpalatable ways, and urged solutions.
1.) Transparency was “lacking.” “The agency’s outdated name misleads the public and continues to impede the agency’s efforts to be more transparent,” the report said, adding that “Texas Energy Resources Commission” would better reflect what the agency actually does.
2.) Fairness and independence of hearings were “clouded” by “ongoing ex parte concerns,” that is, one party speaking informally to the judge outside the hearing, and by “the commission’s in-house judges’ lack of independence.” Recommended: TRC’s hearings of contested oil-and-gas permit cases should be moved to the State Office of Administrative Hearings (SOAH), which administers hearings for 60 other agencies. Contested gas utility rate cases should go to the Public Utility Commission, regulator for every utility other than natural gas.
3.) Oil-and-gas monitoring, enforcement, and reporting “fall short.” The agency “continues to struggle to provide reliable data” to show its effectiveness, including number of severe violations, the percentage of repeats, and the number of operators whose severe violations meet no enforcement. The limited information showed “commission actions have little deterrent effect,” and the main enforcement tool, severing a mineral lease to shut down production, isn’t adequately checked for compliance. Recommended: Develop a strategic plan to correct this and annually report violation numbers and repeat violations on TRC’s website.
4.) Insufficient bonding contributed to a funding shortfall to close Texas’ 9,715 abandoned wells. Financial bonds from operators to help cover well-plugging and site remediation in case of bankruptcy are required by law. In 2015, bond revenue covered just 15.9 percent of the annual cost. Recommended: Raise the bond requirements.
5.) Texas’ pipelines, both interstate and intrastate, need oversight. Neither the federal government nor the Railroad Commission enforces damage prevention rules for interstate pipelines that stretch 46,000 miles in Texas, the report said. Recommended: Authorize the TRC to do so.
To be clear: The official draft report is not the voice of the commission as a whole. It’s the staff’s recommendations. Sunset’s full-time staffers do their due diligence in evaluating an agency. The politically appointed Sunset Commissioners can choose to overrule most or all of the recommendations or leave them as is.
Two other issue items were to include alternative dispute resolution in agency law and continue requiring the agency to report to the Legislature on its Oil and Gas Regulation and Cleanup Fund, a resource that was to come up in the hearing.
People gathered outside the main hearing room: regular folks in business-casual clothes, sleekly attired legislative aides, environmental leaders and industry lobbyists in obligatory suits and ties, and boots-and-jeans-wearing operators and cattlemen and -women. A dozen wore “I Am Texas Oil” t-shirts from a PR campaign rolled out that morning by the Texas Alliance of Energy Producers. The crowd, including some 80 people signed up to speak, spilled across three chambers.
A large bronze seal of Texas dominated the main hearing room, centered on the back wall above a heavy, curved wooden dais with two tiers of some 20 seats. Sunset Advisory Commission Chairman, Rep. Larry Gonzales, sat in the top tier under the Texas star with his fellow commissioners, looking down on the witness table and across at the waiting speakers and public.
As soon as the Sunset Report was presented by its project manager and the Sunset commission director, Railroad Commissioners Christi Craddick, Ryan Sitton, and outgoing Chair David Porter were called. Dressed in her trademark red, Craddick, the daughter of powerful and controversial past Speaker of the House Tom Craddick, led off. Speaking to Sunset’s Issue No. 3, better monitoring and enforcement, she confirmed the value of accurately tracking and annually reporting the number of oil-and-gas violations as well as repeat violations, but she pleaded lack of funds to comply. To upgrade IT capabilities, she said, so that more of their enforcement data are “brought online where the public can see [them] … we estimate would cost $15 to $20 million.”
She appealed for appropriations from the Legislature.
“We want to go further than that,” testified Laura Buchanan of the Texas Land and Minerals Association, a nonprofit that advocates for rights of land and mineral owners. “We want to see online complaint tracking. Now landowners are left in the dark on the disposition of their issues. We want noncompliance by operators to be reported.”
A rancher soon seconded this, saying she could get no follow-up information on her complaint to TRC. “It just went down a dark hole.”
Pointed questioning arose around Issue No. 2, hearing fairness, and Sunset’s recommendation to transfer hearings to independent agencies. These include hearings of contested permit cases, when operators request a variance from the rules or residents contest a drilling permit. This was the third attempt in six years to move contested cases to SOAH.
The president of Texas Oil and Gas Association, a trade association of 5,000 members, including small independents and major producers, argued against the recommendation. “Moving contested case hearings to SOAH and away from the commission provides no enhanced consumer protections of any kind, whatsoever,” Todd Staples said. “Moving the hearings totally dismantles the current regulatory structure that is protecting the environment and has made Texas the best state to do business.”
Sunset Report project manager Amy Trost was hard put to answer Sunset Commissioners’ questions on hearing efficiency and the number of TRC judgments appealed to district court. “There’s no data from the Railroad Commission to show their hearings are efficient because they keep so little data,” she replied.
The three Railroad Commissioners did not comment. Craddick later cited a numeric breakdown of 2016 cases, protested and not, evidently not previously available to Sunset staff or the public.
“What keeps the Railroad Commission from doing [site] remediation over the years,” said Sunset Commissioner Juan “Chuy” Hinojosa, “is, they reverse orders by their own administrative law judges without any supporting documentation. The issue I got from the general public, in perception at least, is hearings aren’t impartial.”
“I don’t know that we overturn many [administrative law judge] decisions,” Craddick ventured.
Current law, it turned out, restricts campaign contributions toRailroad Commissioners only for the period from 30 days before a legislative session convenes until the 20th day after final adjournment. Counting the five-month legislative sessions that convene every other year, contributions are banned for less than seven months out of 24.
At the Sunset hearing, when David Jones said, “Let’s talk about our biggest problem, conflict of interest and campaign finance,” the audience fell silent. The director of campaign-finance nonprofit Clean Elections Texas continued, “regulation is supposed to be impartial. We’ve seen oil-and-gas very pleased with Railroad Commission performance. But lots of people in Texas don’t own wells or work for oil and gas. Christi Craddick received 81 percent of her  campaign funds from the oil-and-gas industry. This commission should be concerned.”
Craddick’s 2012 donations cited by Jones amounted to more than $2.8 million, according to Texas Ethics Commission records cited by Texans for Public Justice. The three sitting commissioners received a total of $6.7 million. Industry contributed the majority of all Railroad Commissioners’ campaign monies in the 2012 campaign and continued to do so through 2016, according to studies by both Public Citizen and Texans for Public Justice (TPJ), an Austin nonprofit that tracks money and corporate influence on Texas politics.
More came to light after the Sunset hearing. From late 2010 to 2016, commissioners had taken tens of thousands of dollars from energy interests with utility rate cases before the agency, as revealed in a March 2017 study by TPJ. Of all the rate cases contested during that period, TPJ tracked six cases involving Atmos Energy, the Houston-based company ClearPoint Energy, the Austin law firm representing both companies, Parsley Coffin Renner, and the cities whose residents would pay any requested rate increases.
TPJ found that the seven commissioners who served between December 2010 and 2016 took contributions, either after they were elected or while in office, from involved parties. They “took a total of $390,904 from the three entities that had a keen interest in the … six major rate cases pending before the commission” during that time. TPJ goes on to say that $58,968 of that amount was given while cases were pending. The study was co-authored by Public Citizen Texas and the Sierra Club Lone Star Chapter.
Commissioner Craddick received some of those funds. In response to an email and a phone call, Craddick’s director of public affairs, Lauren Spreen, replied that Craddick preferred not to comment.
In last August’s Sunset hearing, Rep. Senfronia Thompson of Houston broke into the long discussion over moving TRC hearings to ask about the 9,700 abandoned wells.
“What about wells that may have been leaking and got into the water table and caused health concerns to the community? Have you seen cases like that, and if you have … what has been your remedy?”
Craddick replied, “So when we have a well come on [the inactive well list] that is considered abandoned, we … inspect all those wells. We have today about 9,500 on our book. That sounds like a big number, but it’s smaller than it sounds. … We have five wells that are leaking or we know have environmental concern.”
“If you find that a well has contaminated the drinking water of a community, do you notify that community?”
“We work with the operator to remediate that,” Craddick said, “and they are penalized … if there’s a community, and I’m not aware of any at this time. … We would also potentially work with that community.”
Commissioner Sitton said, “I don’t think we have actually found any … that have actually shown a contaminated ground water source.”
In listeners’ hands, though, was the Sunset Report. Looking at the numbers and later at the TRC’s website, it appeared the abandoned well count might actually be more than it sounds. An afternoon’s worth of research uncovered, in North Texas alone, more than five documented cases of leaking wells investigated by the TRC; the Texas Commission on Environmental Quality (TCEQ); the EPA; and/or Earthworks, a national nonprofit that protects communities and the environment from adverse effects of mineral and energy development.
Emails and phone requests to Craddick’s office and TRC’s media office for the locations of Craddick’s five leaking wells and changes in well count rules yielded no information. TRC spokesperson Ramona Nye emailed back, saying, “We do not have anything to add to the testimony provided by the commissioners.”
Nonetheless, waiting to speak some four hours later at the hearing were 13 elderly African American residents of the Chasewood community southwest of Houston who are still living with abandoned wells, contaminated water wells, and a 36-percent cancer rate.
“One-third of the community is lost,” resident Roy Griffin said. “In 401 houses, everyone was touched by cancer over 10 years.”
For the next half-hour in a funereal hush, his neighbors one by one voiced their grief, outrage, and desperation. They have asked for help from the mayor of Houston and the local water utilitybut have been abandoned.
The Sunset Commissioners, to their credit, dropped their notes and side conversations with one another and their staff and listened closely.
Also waiting to speak was Lee Perry, a retired oil-and-gas analyst with a sheaf of documents showing that in 1999 and 2009, two oil wells near Chasewood were cited by the TRC. Ultimately, they had been designated Priority 1, the federal category of “serious threat to public safety and a health hazard,” which is a felony, Perry said. The agency ordered the operator to close the wells and remediate the site. Perry, who had pursued the case since 2014, testified that remediation was not done and that no enforcement action by the commission is on record.
Later that fall, the community sought options for new water tests and a full investigation.
Issues absent from the report were raised. “Action to address inadequate well inspections wasn’t included in the staff report,” pointed out Corey Troiani, North Texas director of Texas Campaign for the Environment. “The agency doesn’t have the manpower to do their jobs.”
Funding the plugging of abandoned wells, should operators go bankrupt, was a discussion overshadowed by hazards and liabilities. Sunset staff and numerous speakers cautioned of the possibility of well leaks, contamination, and massive financial and safety burdens ultimately to fall on the public if they were left unaddressed. Staff had calculated the 2015 cost to plug the current backlog at $27 million. Eighty percent of those wells predate the 1991 bonding law, according to Commissioner Sitton. This was the one issue that roused operators’ representatives, Sunset Commissioners, and the chairman of the powerful House Energy Resources Committee, Rep. Drew Darby.
Raising the bond rates operators pay to insure for well plugging if their businesses fail was a hot potato. Leaders of two independent producers’ groups, Permian Basin Petroleum Association (PBPA) and Texas Independent Producers and Royalty Owners (TIPRO), asserted that 92 percent of wells are plugged by operators. They cited 20 sources of well-plugging funds other than bonding. They pled that requiring bonds sufficient to cover wells when operators go bankrupt would be a hardship “to those at the lower end of the economic spectrum,” as Ben Shepperd of PBPA put it. No one asked whether operators without funds to post bond should be allowed to operate at public risk.
Energy Resources Chair Darby questioned if money from the Oil and Gas Regulatory and Cleanup Fund was not getting to plugging.
When the hearing ended at 8:30 that night, 76 people from all over the state had testified, including three TRC officials and two Sunset staff members. Sixty-four residents spoke in favor of the official Sunset reform recommendations and additional ones. Seven were opposed or spoke for unrelated issues.
For 60 days after the August hearing, public comment on the Sunset recommendations flowed to the Sunset Advisory Commission. Had the staff’s draft of the Sunset Report been a bushel basket of proposed actions, the public’s concerns and proposals would have filled two more.
These were to be reviewed by Sunset Commissioners before they finalized the report. On November 10, they took that vote.
At the Sunset Commissioners’ decision meeting November 10, 2016, three of five Sunset staff recommendations tracked in this article were dropped without discussion.
Evidently, this is SOP.
“What the chairman does not think there will be votes for, he doesn’t bring up,” explained Andrew Dobbs of Texas Campaign for the Environment.
Sunset Chairman Gonzales punted off the field measures to rename the agency, to move its contested permit cases and gas utility rate cases to independent agencies, and to raise bonding requirements to fund the plugging of abandoned wells.
Those weren’t in the final Sunset Report to the Legislature.
Issue 5, pipeline safety provisions, was. So was most of Issue 3, a strategic plan for monitoring and enforcement with annual reports of total numbers of violations and repeat violations.
Of seven original Sunset Report issue recommendations, only three made it through the Sunset Commissioners’ vote to the Legislature, a half-bushel.
Neither Rep. Gonzales nor staff replied to multiple emails and phone requests for comment on meeting procedure.
Now May 1, there were about 20 days for bills to cross the last hurdles in the Texas legislative process to get to a vote.
In January, when the 85th Legislature opened, an intricate, tightly timed process of hearings and votes began. Bills to reform the Railroad Commission would have to navigate successfully through a committee hearing and vote, get put on the calendar to be heard in the House or Senate and if approved there, complete steps to be scheduled and heard in the other chamber’s appropriate committee and then heard for votes on its floor.
Fifteen bills on TRC issues had been filed in House and Senate. Rep. Rafael Anchia of Dallas put back in play the agency name change and addressed three other issues brought by citizens that the Sunset Commissioners did not.
HB 464 would ban political contributions to Railroad Commissioners outside election season and contributions by individuals with issues in adjudication before TRC’s administrative court.
HB 237 would change the agency’s name to Texas Energy Resources Commission. Two other name change bills were filed.
HB 247 would expand TRC’s posting of enforcement information for public access, making data trackable and fully searchable by violation, operator, penalty, and enforcement.
HB 2932 would raise maximum fines for oil-and-gas violations.
The latter three had Senate companion bills by Sen. Jose R. Rodriguez.
The goal of bill sponsors, Cyrus Reed, Sierra Club conservation director, and others who lobby for public interest bills, was to model amendments on these bills. If they didn’t pass, perhaps the amendments would get accepted on a bill that would pass, like the Sunset Bill.
The first TRC measure to get a hearing was that official Sunset Bill (HB 1818), to reauthorize the agency, by Sunset Commission Chair Gonzales, who spoke for it before the House Energy Resources Committee March 6.
“This is the first bill we’re rolling out,” he announced to the committee and other witnesses. Reauthorization of the TRC was his one concern.
Oil-and-gas is “a commodity on the global market, where we sell our products,” he said. “That’s why it’s critically important we get this done. This is a good, solid bill void of things that kept Sunset bills bogged down. … We told stakeholders, ‘If you want those [other] issues, file a bill. File a bill because of what this means to our economy … .’ It’s important the rest of the world knows that we’ve got an agency that is doing their job.”
Of the three measures that Gonzales’ Sunset panel had approved, only pipeline safety and a strategic plan for tracking and measuring enforcement effectiveness were in the Sunset Bill.
House Energy Resources is presided over by Rep. Drew Darby, the same Drew Darby who authored HB 40 overturning local ordinances for oil-and-gas safety. Scheduling a bill to be heard in committee and the vote to potentially pass it to either chamber, the next step in the process, happen at the pleasure of the committee chair. He called for a vote, and the Sunset Bill was voted favorably and scheduled for a March 29 hearing in the House, the first legislation on Railroad Commission matters.
On May 9, the Sunset Bill passed the House. Sen. Van Taylor, a Sunset Commissioner over the TRC review, offered it for the vote. One lone Democrat, Sen. José Rodriguez, proposed an amendment to post oil and gas violations and enforcement information for public access. Taylor refused it.
The TRC campaign contribution bill, HB 464, finally got voted out of committee May 4, but it reached the House Calendars Committee too late to be scheduled for a vote by May 11, the final deadline. The bill had been held in Rep. Sarah Davis’ House Ethics and Investigations Committee for six weeks.
All the other related House bills were left pending in committees as of May 8, not reported out in time to complete the process.
In the Senate, Rodriguez’ SB 568 requiring TRC to post enforcement information finally passed out of committee. On May 16 was put on the “intent calendar” for a Senate hearing. The other four Senate bills to improve the Railroad Commission died in committee.
If SB 568 comes to a vote, it will be the only TRC reform bill to do so, of 15 that survived until May.
“For all practical purposes, all hope of meaningful reform died” with the Sunset Bill’s passage, said Burnam. “HB 1818, that was the occasion when amendments could have been offered.”
One vision of the Railroad Commission Sunset process and Texas’ future had come from the lips of newly elected Railroad Commissioner Wayne Christian when he testified on Gonzales’ bill. It showed his stance on TRC’s dual mandate to protect the environment and promote oil-and-gas. Euphoric, Christian declared, “I believe we’re on the brink of the greatest energy boom in our history! For that the Railroad Commission must have regulatory certainty.
“In the last year alone, 15 oilfields and eight gas fields were discovered in Texas. Among these was the largest oil-and-gas deposit discovered in U.S. history: 20 billion barrels of oil and 16 trillion cubic feet of natural gas, with an estimated value of $900 billion in the Permian Basin alone.
“It’s a new day in Texas,” he continued. “We have a federal administration that looks upon fossil fuel production favorably, with our former Governor Rick Perry as Energy Secretary, former Oklahoma Attorney General Jeff Pruitt as EPA director, and Texas oilman Rex Tillerson as Secretary of State.”
Christian described a golden boom with job creation for Texas families and money pouring into communities for roads and schools, if only the Sunset Bill would pass.
This is not the new day that the carload of travelers to last year’s public hearing wanted. Nor the 64 speakers who testified on behalf of communities from the Eagle Ford to the Gulf, the Big Bend and North Texas. With the agency continued for 12 more years, Texans’ hope for effective reform of the Texas Railroad Commission may have to wait until 2029.
Reed, Burnam, and others had put their hopes on and their efforts behind a principle distilled from long experience by their colleague, Public Citizen’s Tom Smith. To a woeful volunteer who asked Smitty “What do we do now?” after the passage of House Bill 40 slammed the door on frustrated shale dwellers and made the Texas Railroad Commission their sole recourse for regulatory aid, he replied, “The only thing that speaks louder to Texas legislators than oil-and-gas money is the voices of upset constituents.”
Upset constituents were vocal during the Railroad Commission Sunset process. On April 25, carloads of voters had again wended their way to the capitol. This time they came as citizen lobbyists, along with Alliance for a Clean Texas, to get face-to-face with their elected representatives or aides and make the case for action in their interest and their neighbors’. On May 9, the House Calendars Committee was flooded with emails.
“Calendars complained they got thousands of emails asking for House Bill 464 to be scheduled for a vote,” Burnam said.
The power they brought was not money, just eyeballs and their votes.
At best, a single bill for public posting of current enforcement information may pass. Efforts to get better oversight, stronger enforcement, and accountability from the regulator fell short, yet again.
Maybe people built political muscle, though, working on the Texas Railroad Commission.
Editor’s note: This story has been updated to reflect current information.
AUSTIN – Water systems in Texas have the nation’s worst record for violations of the Safe Drinking Water Act, a new report says.
Researchers for the Natural Resources Defense Council looked at Environmental Protection Agency data from 2015 and found almost 14,000 violations in more than 5,000 water systems that together, serve 7 million Texans. The report also found that no penalties were assessed for 8-in-10 of those violations.
Robin Schneider, executive director at the Texas Campaign for the Environment, said she believes a weak state environmental agency is the main reason Texas topped the list.
“We’re the state that has the second-largest number of people and, compared to California, we have so much less of a priority when it comes to environmental protection,” Schneider said. “Unfortunately, it’s the health of Texans that is at stake.”
The report said the U.S. needs to invest $380 billion to bring water systems across the country into compliance. However, President Trump’s recent budget proposal called for a 30 percent cut to the EPA’s budget to reduce regulations. The report said that would mean less staff to enforce the law and less money for water system improvements.
Erik Olson, report coauthor and director of the NRDC’s Health Program, said the solution is for federal and state officials to enforce current clean water regulations, and to fund improvements for aging water systems.
“We’re living off our great grandparents’ investments. A lot of these water systems are 100 years old or older and really need to be updated,” Olson said. “So, we need to make those investments, we need to strengthen the rules and we need to fix our enforcement system.”
He pointed out that failures in the reporting system can often hide major health problems, as they did in Flint, Mich. Nationally, the report said 77 million people get their water from systems that have experienced safety violations.