City ordinances regarding liquefied petroleum gas (LPG) are all pre-empted and superseded and therefore of no force and effect, according to a new advisory opinion by Texas Attorney General Ken Paxton. Only the Texas Railroad Commission has the authority to regulate the LPG industry, Paxton ruled.
The advisory opinion addresses the effect of a 2011 amendment to the Texas Natural Resources Code on city and other political subdivisions in the state. Section 113.054 of Chapter 113 of the code gave the Texas Railroad Commission regulatory control over the LPG industry, including the propane and butane industries. It also issues container size, storage requirements and other building and safety ordinances dealing with LPG containers.
The advisory opinion was issued in response to an inquiry by the cities of Houston and Sherman, which had hoped their restrictive ordinances — passed before the 2011 statute — would be grandfathered and so survive the pre-emption.
The attorney general rejected the argument that pre-emption should not apply to ordinances that were in place before the law was passed. The 2011 law, Paxton wrote, extinguished “local provisions … regardless of when the local provisions may have originally been enacted.” To hold otherwise, he stated, would “frustrate the intent of the Legislature to achieve uniformity in the regulation of the LPG industry, as political subdivisions could simply leave their local ordinances in place.”
The opinion will have far-reaching effects because the 2011 law pre-empts all local regulations and ordinances. It pre-empts those local ordinances that preceded the law and those that were promulgated after the law. It also pre-empts those local ordinances that are stricter than the regulations issued by the Texas Railroad Commission as well as those that are less restrictive.
The pre-emption also applies in those areas where the railroad commission has not passed any regulations. Where the railroad commission has not acted, any local ordinance would — by definition — be more restrictive than no regulation, and so would be pre-empted.
The only way out of the pre-emption is for a city or municipality to petition the railroad commission for permission to promulgate rules that are more restrictive; however, it must prove the more restrictive rules and standards enhance public safety.
Also, according to the Paxton’s opinion, it is impossible for any city to petition the railroad commission for less restrictive standards. The regulations promulgated and adopted by the railroad commission set the absolute minimum standards for all cities and municipalities in Texas.
Andrew Greenwell is a lawyer with a civil trial and appellate practice with a focus on commercial litigation. He was listed as a Super Lawyer in 2011-12 and 2014-15 and a Best Lawyer since 2005.