The Trans Pecos region of West Texas is a state treasure. It is in the Chihuahuan Desert, the most biologically diverse desert ecosystem in the Western Hemisphere, home to hundreds of species of birds, mammals, reptiles, amphibians, and plants. Its vast, dramatic landscapes define Texas for Texas residents and visitors alike: the majestic mountains of the state’s two national parks, the immense, dark skies over the open plains, and the miles and miles of unfenced, undeveloped wild spaces.
Historically, the region has been mostly untouched by the intense energy development occurring in other parts of Texas like the Eagle Ford shale formation in South Texas and the Permian Basin to the north of the Trans Pecos region.
The area west of the Pecos River, however, is changing.
Wind turbines and utility-scale solar plants are being installed. Transmission lines and pipelines are being expanded. Moreover, oil and gas drilling is moving south in a hurried fashion. The question is whether the essence of the Trans Pecos (that means so much to Texans) can be protected from the potential impacts of these developments.
Energy development is an essential part of the Texas economy, and often a boon to local communities, landowners, and citizens. The shale “revolution” that started in the Barnett Shale in Texas circa 2008 has revitalized and transformed the oil and gas industry in the United States and resulted in a range of economic, environmental, and national security benefits.
However, there is a downside, one that is often felt at the local level.
Data has shown that communities in the midst of an active shale play experience a rapid influx of workers, over-crowding of their schools, wear and tear on their roads, housing shortages, price inflation, air and water pollution, and other problems associated with energy development in and around their area.
Despite the very real impact on local communities, residents often have little say in decisions related to energy development.
In Texas, counties have no land use authority, so they lack the legal means to regulate the siting of energy facilities. Cities’ power to regulate oil and gas drilling is also minimal. After the City of Denton passed a ban on hydraulic fracturing in 2014, the Texas Legislature enacted a law referred to as H.B. 40, which significantly constrained cities’ authority to regulate oil and gas development. The policy reason given was that it is the role of the state, through the Texas Railroad Commission, to regulate oil and gas; the state has preempted local regulation.
However, apart from regulations designed to protect mineral rights owners from drainage caused by pumping on a neighbor’s land, the Railroad Commission has enacted no rules that give local communities or landowners an opportunity to weigh in on decisions about where drilling should be allowed. Proximity to schools, homes, businesses, and beautiful vistas is not regulated.
Concerning oil and gas development, mineral rights are a severable interest in real estate property that can be reserved or conveyed to third parties. Ownership of the mineral estate is accompanied by an implied right to enter and use the surface of the property as much as is reasonably necessary for the extraction of minerals from the tract. When an owner of the surface also owns at least a portion of the mineral rights, she has the leverage to negotiate with an operator on issues like the siting of the wells, procedures that will be used to minimize pollution and traffic, and the reclamation process after drilling is complete. Similarly, landowners who contract with wind companies and/or solar firms have the power to negotiate the terms of development.
For surface landowners who do not own any of the mineral estates, however, options are more limited. Texas is the only major shale-producing state not to have a law in place to protect surface owners from damages caused by oil and gas drilling. Passing a surface damage act would be a significant step forward for landowners and environmental protection.
Even without an apparent legal hammer, local landowners and communities have an opportunity to shape the contours of energy development in the Trans-Pecos.
Through a locally-led, community-based planning initiative, residents have a chance to weigh in with their views about responsible energy development, including identifying resources that are precious to the residents, as well as environmentally-sensitive areas. They will exchange ideas and information with representatives of the energy industry and state regulators, and discuss strategies for protecting the amazing Trans- Pecos landscape. The idea is to be proactive and thoughtful, to minimize impacts on the land and protect the characteristics of the Trans-Pecos that make it unique.
The energy industry is a critical part of the Texas economy today and will be for decades to come. It has a vested interest in West Texas, with an incentive for ensuring that its operations don’t destroy the aspects of the Trans-Pecos that make it special.
Melinda E. Taylor is a Senior Lecturer and Executive Director of the Kay Bailey Hutchison Center for Energy, Law, and Business at the University of Texas at Austin. Taylor joined the faculty of the Law School in January 2006. Prior to joining the faculty, she was the director of the Ecosystem Restoration Program of Environmental Defense Fund where she managed a staff of attorneys, scientists and economists engaged in projects to protect endangered species and water resources across the United States. Taylor has also served as deputy general counsel of the National Audubon Society in Washington, D.C. and was an associate at Bracewell & Patterson in Washington. Melinda earned her B.A. from the University of Texas at Austin and a J.D. at the University of Texas at Austin School of Law.
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