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Public Citizen, Landowners Sue Texas Railroad Commission Over Illegally Suspending Environmental Protections

Suspended Rules Provide Handout to Oil Giants, Damage Environment, Leave Texans With Clean-Up Bills

AUSTIN, Texas. – Public Citizen and two Texas landowners sued the Railroad Commission of Texas in state district court on Thursday for illegally suspending state rules that protect public health and the environment from the oil and gas industry.

During a May 5 hearing, the Railroad Commission of Texas – without public notice and using the COVID-19 pandemic as cover – suspended four important oil and gas industry rules based on statutes imposed by the Texas Legislature. The rules require industry to plug oil wells and remediate oil and gas waste pits within a year of ceasing operations. The rules also require fees and surcharges on certain industry practices and allow for storage of oil and gas only in underground salt formations.

Because of the commission’s illegal action, these rules are now effectively repealed, resulting in untold harm to the environment and public health in Texas.

“Why is giving handouts to polluters a priority during a pandemic?” said Adrian Shelley, director of Public Citizen’s Texas office. “While Texans are preoccupied with COVID-19, the Railroad Commission waived rules for oil and gas drillers. Low demand for oil and gas has some experts predicting bankruptcies. This is the wrong time to waive requirements to clean up waste pits and inactive wells. If companies are let off the hook and don’t clean up their messes, taxpayers will.”

Under the Texas Constitution only the legislature can suspend laws, the suit claims. The commission is effectively suspending the Texas Open Meetings Act, the Texas Administrative Procedure Act, and the Texas Natural Resources Code.

The commission’s notice of the meeting was inadequate and did not allow the public an opportunity to understand the proposed rule changes, which is required under Texas Open Meetings Act and the Administrative Procedure Act. This notice did not provide sufficient notice to the public or the regulated industry that major environmental protections would be suspended. Public Citizen’s lawsuit seeks to reverse the suspensions of the rules and law, repost the proposed action, solicit and accept public comments, and hold public hearings on the impact of these changes.

The commission also failed to comply with sections of the law providing requirements for emergency rulemaking. Emergency rules may only be established for 120 days, with one renewal of 60 days. The commission attempted to circumvent those limits. The reasons for the emergency rule and the validity of rules are subject to judicial review which may include injunctive relief.

“The Texas Railroad Commission ignored the public’s interest in transparency and fundamental fairness and trampled on landowners’ rights,” said Jennifer Riggs, an Austin attorney with Riggs and Ray, P.C. who is suing the commission on behalf of Public Citizen and two Texas landowners. “In short, they think they are above the law. The harm threatened here is serious and irreparable.  Once groundwater is contaminated, the harm cannot be undone. The land will never be the same.”

Public Citizen is seeking injunctive relief from the Commission’s actions.

Molly Rooke, one of the plaintiffs, is an owner of an old family ranch near Refugio in coastal Texas. Rooke has tried – without success – to get the commission to cap and fully remediate the area around a blown-out oil well on the ranch that was spewing volatile chemicals into the air and onto nearby wetlands. This is one of 30 abandoned wells the Railroad Commission has failed to plug and clean up on the Rooke Ranch after repeated requests by the Rooke family.

“When I saw the blowout I tried to stand upwind because the cloud spewing from the well smelled like volatile chemicals,” Rooke said. “We called the Railroad Commission, but until the media got involved, they did nothing. They finally came out and did a temporary shut-in, but that was before the suspension orders in May. Now, I wonder if they will do anything more at all.”

Hugh Fitzsimons is another plantiff whose land could be degraded by the commission’s hasty and illegal violation of the Open Meetings Act, Administrative Procedure Act and resulting rules suspensions. Fitzsimons is part-owner of a buffalo ranch in Dimmit County on the Texas border, and a member of the local groundwater conservation board. Currently, more than 100 inactive oil and gas wells on Fitzsimon’s ranch need to be plugged. In 2011, Dimmit County had a “breakout,” the common term for when carcinogenic fracking fluid from an injection well migrates to an abandoned oil well. The sludge had the consistency of chocolate pudding and came within a hair’s breadth of contaminating the Carrizo Aquifer.

“The suspension of well plugging by the Texas Railroad Commission is reckless and irresponsible,” Fitzsimons said. “It is a simple and irrefutable fact that once your water is contaminated you have no ranch.”

Public Citizen’s lawsuit seeks vindication for the rule of law, transparency, accountability of state agencies and for landowners’ rights.

“We hope this lawsuit will lead to a full and open debate of these issues at the Railroad Commission,” Shelley said. “If the Commission is exceeding its authority, that’s something the public should know before the 2021 session of the Texas Legislature.”