A Shift in Power: Why Increased Urban Drilling Necessitates a Change in Regulatory Authority Comment.

Historically, Texas has boasted a very lucrative oil and gas industry, which has been vital to the state’s successful economy. Due to increased drilling in urban areas, particularly the Barnett Shale, the number of affected surface owners multiplied overnight, attracting attention to oil and gas issues. Legislation has been purported to remedy the longtime conflict in Texas property law caused by the dominance of the mineral estate over the surface estate. But no bill has passed having major policy-change implications. Currently, local governments freely adopt and enforce oil and gas regulations. These ordinances vary from city-to-city, creating inconsistencies for operators attempting to adhere to the prescribed rules. To resolve these problems, the legislature should increase the authority of the Railroad Commission of Texas to regulate the operation of oil and gas industries in urban areas of the state. With years of experience, the Commission is in the best position to protect the competing interests of producers, citizens, and local governments. Moreover, a significant likelihood exists that the legislature will grant the Commission more authority over urban drilling. The current system cannot support safe and efficient exploration, production, and transportation of oil, and gas in urban areas. Thus, the legislature should consider amending existing law to clarify the extent of, and perhaps increase, the Commission’s jurisdictional authority in areas of conflict. The legislature should also consider granting the Commission authority to adopt a mandatory model ordinance to be enforced by local governments. A model ordinance would not only dispose of confusion resulting from inconsistent local ordinances but would also provide the protections sought by cities and residents. These changes would by no means represent a radical shift in power but would resolve arguments as to local ordinance preemption by state law