Texas Oil Regulator Can't Enforce COVID-19 Enviro Rules

By Katie Buehler
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Law360 (December 10, 2020, 7:47 PM EST) -- The Texas Railroad Commission improperly suspended environmental protections for oil and gas operators in light of the COVID-19 pandemic, a state judge has held, finding the commission violated open meetings laws by not properly notifying the public of its planned vote.

Travis County District Court Judge Jan Soifer on Tuesday prohibited the commission, which regulates Texas' oil and gas industry, from enforcing three rules it adopted at its May 5 meeting. She found the meeting's notice only used general terms to describe an agenda item that included "possible action" about unspecified rules.

Two ranch owners, Molly Rooke and Hugh Fitzsimons, and consumer advocacy group Public Citizen Inc. challenged the rules in court in July, accusing the commission of overstepping its authority by voting to extend deadlines for plugging abandoned wells and allowing operators to temporarily store oil and gas underground outside of a salt formation "under the guise" of providing financial relief during the pandemic.

The commission notified the court Wednesday that it would be appealing Tuesday's decision, according to court records.

In Tuesday's order, Judge Soifer found the commission's meeting notice violated the Texas Open Meetings Act, which requires a governmental body to give written notice of the "date, hour, place, and subject of each meeting" it holds. The judge found that the commission provided insufficient notice by using general terms and not naming the specific rules it planned to vote on.

Adrian Shelley, director of Public Citizen's Texas office, applauded Judge Soifer's ruling in a statement Thursday.

"Just as the pandemic began to batter the Texas economy, Public Citizen and other advocates suggested the Railroad Commission address the falling demand for oil by curtailing waste and limiting production," Shelley said. "Instead, it gave a handout to the oil and gas industry, and it did so without following the law."

The third rule the commission suspended at its May meeting related to filing fees and other charges to operators when filing documents with the commission. Shelley criticized that move as depriving the state budget of fees ahead of a difficult legislative session that is already set to be challenged by a budget shortfall of almost $5 million.

Rooke and Fitzsimons also praised the judge's Tuesday decision.

"I'm grateful that the court has prevented the Railroad Commission from using the COVID health crisis to waive the oil and gas industry's responsibility [to] protect our health," Rooke said in a Thursday statement. "These old wells are ticking time bombs and they get much more likely by the day to blow or leak, putting not only our health and safety at risk but that of the community."

Fitzsimons said in a statement that the regulations the commission voted to suspend are needed now more than ever as the oil and gas industry is plagued with bankruptcies that will lead to companies leaving behind messes they can't clean up.

Rooke, Fitzsimons and Public Citizen filed suit against the commission and its three members on July 22, arguing that even temporarily easing environmental regulations for operators puts their property at risk of irreparable harm from an oil and gas accident.

The commission, which denies any wrongdoing, attempted to toss the lawsuit in August by arguing that Judge Soifer didn't have subject-matter jurisdiction over the case and attempted to delay Tuesday's decision with a motion to abate entry of the order filed Dec. 1, according to court records.

In its motion to abate, the commission asked the judge to refrain from entering an order until it had the "opportunity to reply to a point inherent to the court's stated basis for the upcoming order (what type of proceeding was being noticed), which has not yet been addressed by defendants because it goes to the merits of plaintiff's Texas Open Meetings Act claim."

Rooke, Fitzsimons and Public Citizens pushed back against the commission's claim that it hadn't had adequate time to brief the case. In a Dec. 2 response to the commission's motion to abate, they said their request for a temporary injunction under the Texas Open Meetings Act shouldn't come as a surprise to the commission.

Andrew Keese, spokesperson for the commission, reiterated previous declarations that the commission followed the Texas Open Meetings Act. 

"As previously stated, all actions taken by the commissioners at the open meeting on May 5, 2020, were approved in accordance with the open meetings act, state and federal law, and commission rules," Keese said in an email statement to Law360 on Thursday.

The ranch owners and Public Citizen are represented by Jennifer Scott Riggs of Riggs and Ray PC.

The commission is represented by Sara J. Ferris, H. Carl Myers and Linda B. Secord of the Office of the Texas Attorney General.

The case is Public Citizens Inc. et al. v. Railroad Commission of Texas et al., case number D-1-GN-20-003795, in the 53rd District Court of Travis County, Texas.

--Additional reporting by Morgan Conley. Editing by Orlando Lorenzo.

For a reprint of this article, please contact reprints@law360.com.

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