Texas Agency Sued For Easing Enviro Regs During COVID-19

By Morgan Conley
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Law360 (July 24, 2020, 3:10 PM EDT) -- The Railroad Commission of Texas has been accused of overstepping its authority by relaxing rules for operators "under the guise" of providing some relief from the financial toll of the novel coronavirus pandemic.

Two ranch owners and a consumer advocacy group accused the agency, which regulates oil and gas in Texas, of unlawfully passing emergency orders that suspended environmental protections for oil and gas operators in the state. The ranchers asked a Travis County District Court to block the orders, saying in a lawsuit filed Wednesday they were issued illegally. 

The exceptions extend deadlines for operators to plug abandoned wells and clean up waste pits and temporarily allow operators to store oil and gas underground outside of a salt formation. The plaintiffs argue the exemptions went beyond the regulatory agency's authority, saying only the state legislature has the power to suspend laws, which is essentially what the regulators have done.

The two landowners bringing the suit, Molly Rooke and Hugh Fitzsimons, say even temporarily easing environmental regulations for operators puts their property at risk of irreparable harm from an oil and gas accident.

"The Texas Railroad Commission ignored the public's interest in transparency and fundamental fairness and trampled on landowners' rights," the plaintiffs' attorney, Jennifer Riggs of Riggs and Ray PC, said in a statement Thursday. "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."

The landowners and group additionally allege that nothing in a notice sent out prior to a meeting in early May, wherein the regulators passed the exemptions, indicated a vote would be held on suspending environmental rules.

By not providing adequate notice to the public, the regulators violated the Texas Open Meetings Act and the Administrative Procedure Act, the suit says.

The regulatory agency also suspended some filing fees and other charges to operators when filing documents with the commission. The plaintiffs additionally took issue with that action, saying the fees along with other fines collected by the agency can be used to finance the plugging of abandoned wells on property like their own.

"The Railroad Commission does not comment on pending litigation, but all actions taken at the open meeting on May 5, 2020, were approved in accordance with the open meetings act, state and federal law, and commission rules," a spokesperson for the agency, R. J. DeSilva, said in a statement sent to Law360 on Friday.

Wayne Christian, the chairman of the three-member commission, defended the emergency actions and said the environment remains protected.

"This complaint is no more than a proxy for fringe extremists to advance their goal of eliminating the domestic production of fossil fuels, a move that would kill 3.2 million jobs, increase energy and gasoline costs by $2,500 a year for American families and cost Texas $1.5 trillion in GDP between 2021-2025," Christian said in a statement.

The plaintiffs are represented by Jennifer Scott Riggs of Riggs and Ray PC.

Counsel information for the agency wasn't immediately available.

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

--Editing by Alyssa Miller.

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

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