Oil companies win protections from Texas Legislature ahead of selling fracking water

Subscribe to The Y’all — a weekly dispatch about the people, places and policies defining Texas, produced by Texas Tribune journalists living in communities across the state.

---

The Texas Legislature has given oil and gas companies legal cover to sell wastewater to be treated and released into the state’s rivers, lakes and streams.

State Rep. Drew Darby’s House Bill 49 — on its way to Gov. Greg Abbott — marks a step the oil and gas industry has said is a key barrier to expanding the treatment of the brine it generates, known as produced water, and making it available for reuse.

The bill protects landowners, oil, treatment and transportation companies from liability should consequences arise after they sell or treat the liquid.

In Texas, record oil and gas production is only outmatched by the backwash that surfaces with the fossil fuels. There are five barrels of produced water for every barrel of oil. Texas oil companies are increasingly using this liquid, which is trapped in the rock where drilling and fracking occur, to frack more.

Now, companies believe the water can help replenish the state’s water supply, which is under strain due to a larger population, withering infrastructure and climate change. Four treatment companies applied for state permission to release the water into the state’s waterways.

“I think this will really free up some water transactions to start happening, where people will more freely exchange water,” said Laura Capper, a produced water expert and oil and gas consultant.

Under Darby’s bill, companies that sell the water can’t be held responsible for the consequences if someone else uses the water. Treatment and transportation companies and landowners also qualify for protection, including in cases of personal injury, death, or property damage.

Companies and landowners can only be sued when they are grossly negligent, commit intentional, wrongful acts of omission, break state or federal laws, or fail to satisfy standards set by the Texas Commission on Environmental Quality, which sets and enforces the state’s environmental rules.

The bill directs the environmental quality commission to write rules around produced water research and reuse.

Darby’s bill also prohibits courts from issuing what are known as exemplary damages, or additional punitive measures, to deter companies from committing the same mistake.

Cyrus Reed, a legislative and conservation director for the Sierra Club, an environmental advocacy organization, said the state is moving too fast. He said scientists and regulators should continue experimenting with treatment methods until they can be sure the water can be treated continuously.

In 2021, lawmakers began to fund treatment research, putting $10 million toward the effort, called the Texas Produced Water Consortium. The environmental quality commission has said the consortium’s findings will help decide whether to let companies release water into the environment.

But Reed said the consortium should spend more years on pilot projects, experimenting on soil, before laws are introduced, adding that the water, even when treated, could still contain contaminants the environmental quality commission has not accounted for.

“I understand why (lawmakers) want this,” Reed said. “They're trying to make it work so that this water can be reused, but who's going to ultimately pay the price? It's going to be the public.”

Capper, the water consultant, said the law places the responsibility on the state’s regulatory agencies to make sure the water is safe, which also gives the industry security to sell it. She said there is enough research through Texas and New Mexico, which has also funded produced water treatment research, to make the water safe to discharge.

“We've studied this water to death,” she said.

---

First round of TribFest speakers announced! Pulitzer Prize-winning columnist Maureen Dowd; U.S. Rep. Tony Gonzales, R-San Antonio; Fort Worth Mayor Mattie Parker; U.S. Sen. Adam Schiff, D-California; and U.S. Rep. Jasmine Crockett, D-Dallas are taking the stage Nov. 13–15 in Austin. Get your tickets today!