Texas bills would set state against federal oil and gas regulation, renewables

A Texas bill would bar state officials from helping enforce any federal oil and gas law that contradicts the state’s own laws.

If signed into law, the bipartisan bill would potentially hamstring attempts by the Environmental Protection Agency (EPA) to regulate pollution by the oil and gas industry, putting the state — by far the nation’s largest source of planet-warming emissions from fossil fuels — on a collision course with both the Biden administration and future attempts to slow climate change.

The bill would prohibit state agencies and officials from “providing assistance to any federal agency or official regarding the enforcement of the federal statute, order, rule or regulation, regulating oil and gas operations — if the regulation is not already existing in state law,” state Rep. Brooks Landgraf (R) told the Texas House Energy Resources committee on Monday.

The bill is part of a larger series of proposed legislation aimed at growing the Texas oil and gas industry while weakening the federal government’s ability to regulate it — despite attempts to do so currently remaining hypothetical.

Other legislation proposed this session would outlaw prospective bans on gas hookups or petroleum-powered lawn equipment, create new fees for electric and hybrid vehicles and tax all new electric generators that aren’t powered by natural gas.

Another cluster of bills in the state Senate — a body dominated by hardline conservatives after years of purges led by Lieutenant Governor Dan Patrick (R) — would build a fleet of new gas plants while raising taxes on Texas’ wind and solar industry, which is the largest in the nation. 

Yet another Senate bill would require all wind and solar projects in Texas to go through stringent environmental and permitting regulations — including notifying all property owners within 25 miles — that the oil and gas industry remains exempt from. (That bill would require all existing renewable generation to go through the same process retroactively.)

HB33, proposed by Landgraf — chair of the state House Environmental Regulation Committee — is at least as far reaching as that Senate bill, and rides the same wave of GOP backlash to federal environmental regulation.

“The Biden Administration has Texas energy in its crosshairs, and we need to make sure that we aren’t supplying them with ammunition,” Landgraf said in a statement last year. 

Landgraf did not respond to multiple requests for comment, but he told the Energy Resources committee on Monday that the bill “mirrors” a 2021 executive order signed by Gov. Greg Abbott (R).

That order lambasted the Biden administration for what Abbott called “extreme hostility toward the energy industry,” pointing to the president’s reentry to the “job-killing” Paris climate accords, revocation of the Keystone XL pipeline and intention to regulate the potent greenhouse gas methane.

It directed state agencies to use all powers to contest any federal action that “threatens the continued strength, vitality and independence of the energy industry.” (While Abbott’s order did not explicitly identify the “energy industry” with oil and gas, none of his complaints addressed threats to wind, solar or nuclear energy.)

Republicans have complained for much of the Biden administration about a “war” on fossil fuels. 

If such a conflict exists, Landgraf hails from its front lines. He represents Odessa, Texas — childhood home of former President George W. Bush, and economic hub of the Permian Basin, a network of subterranean oil and gas deposits whose once dwindling production surged with the advent of fracking to supply 40 percent of U.S. oil and gas production.

That production has come at a steep climate and environmental cost. “Natural gas” is almost entirely composed of methane, a climate-warming chemical that is dozens of times more potent than carbon dioxide.

Methane gas often leaks from pipelines and storage tanks. And with production often greater than pipeline infrastructure can transport, gas producers often burn it off — a process called “flaring” — or simply let the raw gas escape into the atmosphere. 

Rising production has also led to surging levels of ozone — an air pollutant that can inflame airways, cause or worsen asthma, and raise the risk of “an early death from heart or lung disease,” according to the EPA. 

Last year, the Biden administration EPA considered a new rule which would have required state regulators in certain heavily polluted Basin counties to prepare ozone reduction plans, The Texas Tribune reported.

That state-level ozone-reduction planning never went into effect. After heavy pushback from the oil and gas industry, the Biden administration quietly shelved the potential rule in January, the Tribune reported.

And if Landgraf’s bill passes, such collaboration between state and local officials would become illegal under state law — unless the Texas legislature has consented to such legislation. 

Whether that will happen is still up in the air. Thousands of bills are proposed each biannual session of the Texas legislature, and most go nowhere. (Many are not even intended to: They are “messaging bills,” aimed at burnishing a member’s partisan credentials with their base.) 

A 2021 iteration of the bill failed in part because the city of Austin insisted it would be forced to close its beloved Barton Springs Pool if it passed — because keeping it open required the city to comply with a federal oil and gas law in order to maintain access to a crucial grant. 

Landgraf argued at the time that his bill would not have had those effects. He offered a similar defense this week, emphasizing to committee members on Monday that state agencies would still be allowed to offer comment to federal agencies — though his bill makes clear they would be prohibited from complying if the resulting laws were more stringent than Texas’s own. 

“Nothing prohibits a state agency from providing feedback,” he said. 

This year’s version of the bill is narrower than the one that previously failed, and as a committee chair, Landgraf is powerful enough to give his bill a solid chance of passage.

Political context may help boost the bill’s chances, as well. The legislation strikes a precise chord between Republican rhetoric around an ostensible Biden attack on fossil fuels — also seen in the federal, GOP-controlled House’s attempts to pass a energy bill boosting production of petroleum — and state leadership’s desire to expand the state oil and gas industry. 

The timing may also be auspicious for other reasons: The bill enters the committee as EPA enforcement of methane pollution in the Permian Basin is getting more aggressive. 

On Monday, for example, the EPA announced that Permian Basin gas producer Matador Energy would have to pay $6.2 million in fines and upgrades after illegally dumping thousands of tons of methane and ozone-producing chemicals into the atmosphere.

The agency is also considering a new rule that would strengthen its ability to regulate methane released by the oil and gas sector. 

As currently conceived, that rule would bring new scrutiny to the loosely regulated sector, requiring routine inspection of oil and gas wells to prevent leaks, setting new standards for aerial monitoring (the method which uncovered the Matador leaks) and ensuring that flares are working properly.

But while Clean Air Act standards are federal, enforcement is designed to be local: Once new guidelines are set, it is up to the states to come up with their own plans for how to meet them. (In the Matador case, for example, the complaint from the federal EPA was filed alongside one from the state of New Mexico.)

Water standards work the same way — and are another area where Texas may face increased EPA enforcement amid concerns about pollution resulting from fracking. 

Fracking a well produces far more toxic wastewater than it does oil. West Texas ranchers worry such wastewater is poisoning local aquifers. A recent study found that thousands of pounds of cancer- and birth defect-causing “forever chemicals” have been pumped into Texas oil and gas wells, along with billions of pounds of additional secret chemicals.

While a 2005 law exempts most fracking chemicals from regulation under the Safe Drinking Water Act, the EPA has proposed several rules regulating PFAS production and use. The agency is investigating whether state regulators have been too lax in enforcing clean water standards.

That investigation suggests a way in which the bill could potentially backfire, said Luke Metzger of the nonprofit Environment Texas.

If Texas is sufficiently intransigent, it could provoke the EPA to cut the state out of environmental enforcement entirely — which ironically would lead to the administration wielding more power to regulate Texas oil and gas, rather than less. Environmental advocates have long called for the agency to take such action.

The EPA’s delegation of enforcement to Texas is a privilege, not a right, Metzger said — and it’s a privilege the EPA has the power to pull. 

Earlier this month, for example, the agency fined a Texas-based Permian basin driller $610,000. Unlike the New Mexico enforcement action, it took that step solo.

If HB33 passes and Democrats retain federal control, future federal enforcement could look similar.

“I don’t think the EPA would be excited about that. They would have to hire a bunch of staff,” Metzger said. “But if the state of Texas is just blackballing federal government, the EPA may have no other choice.”