High Court sides with Railroad Commission, allows fracking disposal permit

By Steve Korris | Mar 18, 2011

Fracking well site

AUSTIN – Trucks hauling salty water from fracture drilling operations to a waste well won't trample on the public interest, the Supreme Court of Texas ruled on March 11.

All nine Justices upheld the Railroad Commission of Texas in approving a disposal permit over objections of neighbors about traffic and noise from the trucks and equipment hauling away the wastewater.

They reversed Third District appeals judges in Austin, who ruled in favor of Texas Citizens for a Safe Future and Clean Water.

Justice Eva Guzman wrote, "Given the Commission's institutional focus on matters concerning oil and gas production, it is reasonable for the commission to decline to consider matters beyond its administrative expertise."

"The Commission has declined to consider public safety evidence in its public interest analysis for almost 50 years, and Texas Citizens provides no authority to the contrary."

She wrote that Texas Citizens argued for the commission to examine any factor that might touch on a broad definition of public interest.

"In opposition to an injection well, a creative opponent could assert any number of concerns impacting the public interest entirely unrelated to the commission's express legislative directives," she wrote.

Though she found ambiguity in the phrase, "public interest," she deferred to the Commission's expertise in deciding what it means.

Justices Nathan Hecht, Dale Wainwright, David Medina, Paul Green and Phil Johnson agreed.

The six closed a door on foes of fracking, and three others would have locked the door.

Fracking, or hydraulic fracturing, is a means of natural gas extraction used in deep natural gas well drilling. Once a well is drilled, millions of gallons of water, sand and proprietary chemicals are injected, under high pressure, into a well. The pressure fractures the shale and props open fissures that enable natural gas to flow more freely out of the well.

The gas comes up wet in produced water and has to be separated from the wastewater on the surface. This wastewater can be toxic. Trucks and other equipment are used to haul away the waste materials, which are often then injected into a dead well and stored there.

"I believe the statute unambiguously makes clear that, in this context, 'public interest' cannot include traffic safety factors," Chief Justice Wallace Jefferson wrote in a concurring opinion.

Justices Don Willett and Debra Lehrmann joined him.

The applicant for the permit, Pioneer Exploration, sought to inject water into a converted well in Wise County, in the Barnett Shale region of north Texas.

"As in other shale formations, wells in the Barnett Shale require fracture stimulation in order to produce," Guzman wrote.

"Most companies do so by injecting the waste into subsurface zones which are naturally saline environments, usually in old wells converted to injection wells," she wrote.

Before the Commission can issue a permit, it must find that an injection won't injure oil or gas formations, and it must identify safeguards for protection from pollution.

The Commission must also find that "the use or installation of the well is in the public interest."

When Pioneer Exploration applied for a permit, Texas Citizens opposed it and brought the dispute to a hearing.

"Texas Citizens argued that large trucks used to haul waste water to the well would damage nearby roads and pose a threat to area residents who use the roads," Guzman wrote.

"Pioneer did not rebut this traffic safety evidence," she wrote. "Instead, Pioneer essentially argued that the production of natural gas is in the public interest."

The examiners recommended approval.

"Use of the proposed disposal well is in the public interest because it will provide needed additional disposal capacity and an economical means of disposing of produced salt water from completed wells in the rapidly expanding Barnett Shale Field Area, thereby increasing ultimate recovery from these wells and preventing waste," they wrote.

The Commission approved, Texas Citizens appealed, and Third District judges remanded the case to the commission with directions to take a broader view of public interest.

At the Supreme Court, the broad view didn't appeal to anyone.

"As the Supreme Court has explained, governmental agencies have a unique understanding of the statutes they administer," Guzman wrote.

"In a complex regulatory scheme like the Act and with a phrase as amorphous as 'public interest,' this deference is particularly important," she wrote.

"Under the plain terms of the Act, we conclude the Commission's construction of 'public interest' as a narrow term that does not include traffic safety considerations is reasonable and in alignment with the statute's meaning."

Deference didn't suit Jefferson.

"We do not defer to agency interpretations of unambiguous statutes," he wrote.

He wrote that the majority would require deference to a future commission that denied a permit based on traffic safety factors.

"I believe, to the contrary, that the statute's language and context preclude such an interpretation as a matter of law," Jefferson wrote.

George Bohl represented the Railroad Commission.

David Gross represented Pioneer Exploration.

David Frederick and Marisa Perales represented Texas Citizens for a Safe Future and Clean Water.

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