Bill Would Eliminate Municipal Authority Over Gas Transmission Pipelines and Facilities
House Bill 2828 (Dale, R – Cedar Park), a bill that would eliminate municipal land use authority over gas and other transmission pipelines and facilities, was heard in the House Energy Resources Committee on April 10. The bill would overturn a 2010 Fifth Circuit Court of Appeals opinion (City of Grand Prairie v. Texas Midstream Gas) that allowed the City of Grand Prairie to enforce various land use regulations against a Texas Midstream Gas Services (TMGS) compressor station.
The Grand Prairie city code required a specific use permit, and various other permits, for the construction of a compressor station in certain zoning districts. The code also established conditions for the issuance of the permits, including minimum setbacks, roof pitch, building material requirements, architectural design compatibility with surrounding development, noise limitations, and a “security fence” of at least eight feet in height to enclose the area.
TMGS sued the city, claiming that the federal Pipeline Safety Act (PSA) and state law preempt the city’s requirements. The PSA prescribes safety standards not only for pipelines, but also for related structures, including compressor stations.
The court concluded that, with the exception of the “security fence” requirement, the city code does not address compressor station “safety.” Rather, it relates to general aesthetics and community enhancement and was designed to protect property values:
Our decision today is the first to consider whether the PSA preempts a setback requirement for a compressor station. However, our decision is consistent with PSA preemption jurisprudence from our court and elsewhere…Cases decided under the PSA’s predecessor statutes have uniformly invalidated parochial safety provisions…[but] [n]one of these cases foreclose laws primarily related to aesthetics or non-safety police powers. The PSA preempts safety standards for natural gas pipeline facilities. Grand Prairie’s setback requirement is not a safety standard in letter, purpose, or effect. It may remain in force.
The opinion was a good one for those cities that regulate natural gas compressor stations and other equipment. The author of H.B. 2828 explained his bill at the hearing as merely requiring uniform “safety standards.” Current law already provides for that, however. The bill would clearly preempt municipal land use regulations like those at issue in the court’s opinion.
City officials who wish to continue to enforce their gas ordinances should contact their legislators, and the members of the House Committee on Energy Resources, to express their opposition to the bill.