Does the Texas Railroad Commission have to address oil and gas equipment noise, like compressor station noise, in its annual plan?

Plain-English summary

The Freestone County Attorney, Brian Evans, brought the Attorney General a complaint his constituents had been raising. People living near oil and gas infrastructure said the low-frequency noise from compressor stations, gas treating facilities, and pipelines was severely harmful, and they noticed that the Railroad Commission's annual oil-and-gas plan said nothing about that noise. The county attorney asked a narrow legal question: does Natural Resources Code section 81.066, which requires the Commission to publish an annual plan, force the Commission to address noise control in that plan.

The AG worked through the text of section 81.066. The statute tells the Commission's oil and gas division to develop and publish an annual plan that uses the agency's monitoring and enforcement resources strategically to ensure public safety and protect the environment. Subsections (c) and (d) then say what the plan "must include": information showing the division's monitoring and enforcement activities, and data on violations of oil-and-gas statutes or Commission rules, broken down by number, type, severity, and repeat major violations. The AG observed that Texas courts treat "must" as mandatory language, so the listed items genuinely have to be in the plan. But the AG read the same mandatory list as setting the boundary of the requirement: the statute identifies the information the Legislature directs the Commission to consider, and information not identified in section 81.066 need not be included.

That turned the question into whether anything in the Commission's authority connects to noise. The county attorney had not pointed to any Commission monitoring or enforcement activity involving noise control, nor to any statute or Commission rule about controlling noise in oil and gas operations. The AG looked and found none: no express provision in the Natural Resources Code's oil-and-gas title requires the Commission to enforce noise controls, and no Commission rule in its oil-and-gas chapter of the Administrative Code addresses noise. The AG noted in passing that the Federal Energy Regulatory Commission has a compressor-station noise standard, but that is a federal standard the Texas Railroad Commission does not enforce. With no monitoring activity, statute, or rule tying the Commission to noise, the AG concluded that section 81.066 does not require the Commission to include noise-control information in its annual plan.

What this means for you

This is a narrow opinion about what one statute requires in one agency report. It is the AG's 2021 reading, and statutes and agency rules can change, so confirm current law before relying on it.

Residents and county officials concerned about oil and gas noise

The opinion holds that section 81.066 does not, by itself, make the Railroad Commission put noise control in its annual plan, because the statute's mandatory contents are tied to the Commission's existing monitoring and enforcement activities and to violations of oil-and-gas statutes and rules, none of which currently address noise. It does not say noise is harmless or that no remedy exists elsewhere; it answers only what section 81.066 requires.

The Railroad Commission

The opinion reads the "must include" list in subsections (c) and (d) as both a floor and a ceiling for the annual plan's required contents, so the Commission need not add categories the statute does not name.

Anyone watching where noise authority sits

The opinion points out that the federal compressor-station noise standard (a FERC rule) is not one the Texas Railroad Commission enforces, which underscores that the Commission's oil-and-gas authority, as the AG read it, does not presently include noise control.

Common questions

Q: Does the Railroad Commission have to regulate oil and gas noise?
A: This opinion does not decide general regulatory authority. It answers a narrower question, holding that section 81.066 does not require the Commission to include noise-control information in its annual oil-and-gas plan.

Q: Why not, if the noise is harmful?
A: The AG read section 81.066 as requiring only the information it lists, which is tied to the Commission's monitoring and enforcement activities and to violations of oil-and-gas statutes and rules. The AG found no statute or Commission rule connecting the agency to noise control.

Q: Isn't there a federal noise standard for compressor stations?
A: Yes. The AG noted that the Federal Energy Regulatory Commission set a compressor-station noise standard, but it is a federal standard the Texas Railroad Commission does not enforce.

Q: Could the Commission still choose to address noise?
A: The opinion answers only what the statute requires, not what the Commission may voluntarily study. It concludes section 81.066 does not compel noise-control information in the plan.

Background and statutory framework

Section 81.066 of the Natural Resources Code directs the Railroad Commission's oil and gas division to publish an annual plan for each state fiscal year to use the agency's monitoring and enforcement resources strategically. Subsection (b) requires stakeholder input, subsection (e) requires publication on the Commission's website, and subsections (c) and (d) set out the required contents: information on the division's monitoring and enforcement activities and detailed violation data. The AG relied on Helena Chem. Co. v. Wilkins and Wright v. Ector Cnty. Indep. Sch. Dist. for the mandatory force of "must," and on AC Interests, L.P. v. Tex. Comm'n on Env't Quality for the point that such requirements are not mere suggestions. The AG surveyed the oil-and-gas title of the Natural Resources Code (sections 81.001–123.005) and the Commission's oil-and-gas rules (16 Texas Administrative Code sections 3.1–.107) and found no provision addressing noise control. A footnote noted the FERC compressor-station standard at 18 C.F.R. section 157.206(b)(5)(i), which the Texas Railroad Commission does not enforce.

Citations and references

Statutes and regulations:

• Tex. Nat. Res. Code § 81.066 (annual oil-and-gas monitoring and enforcement plan; required contents), and §§ 81.001–123.005 (Title 3, Oil and Gas)
• 16 Tex. Admin. Code §§ 3.1–.107 (Railroad Commission, Oil & Gas Division rules)
• 18 C.F.R. § 157.206(b)(5)(i) (FERC compressor-station noise standard)

Key cases:

• Helena Chem. Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001); Wright v. Ector Cnty. Indep. Sch. Dist., 867 S.W.2d 863 (Tex. App.—El Paso 1993, no writ) ("must" is mandatory)
• AC Interests, L.P. v. Tex. Comm'n on Env't Quality, 543 S.W.3d 703 (Tex. 2018) (mandatory terms are not mere suggestions)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0371
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0371.pdf

Original opinion text

May 7, 2021

The Honorable M. Brian Evans
Freestone County Attorney
110 South Keechi
Fairfield, Texas 75840

Opinion No. KP-0371

Re: Whether section 81.066 of the Natural Resources Code authorizes the Railroad Commission to address noise generated from oil and gas equipment as part of its annual plan (RQ-0388-KP)

Dear Mr. Evans:

You ask about section 81.066 of the Natural Resources Code, which requires the oil and gas division of the Railroad Commission ("Commission") to develop and publish an annual plan regarding the Commission's use of monitoring and enforcement resources to ensure public safety and protect the environment ("Annual Plan").¹ You state that the Annual Plan² "does not address the noise generated by the oil and gas equipment and facilities" such as compressor stations, which you explain that "citizens believe is severely harmful." Request Letter at 1. You inquire whether the control of noise generated from oil and gas equipment and systems must be included in the Annual Plan to ensure public safety. Id.

Section 81.066 requires the Commission's oil and gas division to "develop and publish an [A]nnual [P]lan for each state fiscal year to use the oil and gas monitoring and enforcement resources of the [C]ommission strategically to ensure public safety and protect the environment." TEX. NAT. RES. CODE § 81.066(a); see also id. § 81.066(b) (requiring the Commission to seek input from stakeholders when developing each annual plan); id. § 81.066(e) (requiring the Commission to publish the plan on its website).

The Commission "shall collect and maintain information that accurately shows the [C]ommission's oil and gas monitoring and enforcement activities." Id. § 81.066(c). The Annual Plan "must include a report of the information collected by the [C]ommission that shows the [C]ommission's oil and gas monitoring enforcement activities." Id. § 81.066(c). Subsection 81.066(d) then requires that the information collected and maintained under subsection 81.006(c)

must include data regarding violations of statutes or [C]ommission rules that relate to oil and gas, including:

(1) the number, type, and severity of:

(A) violations the [C]ommission found to have occurred;

(B) violations the [C]ommission referred for enforcement to the section of the [C]ommission responsible for enforcement; and

(C) violations for which the [C]ommission imposed a penalty or took other enforcement action;

(2) the number of major violations for which the [C]ommission imposed a penalty or took other enforcement action; and

(3) the number of repeat major violations, categorized by individual oil or gas lease, if applicable.

Id. § 81.066(d).

With respect to the contents of the Annual Plan, subsections (c) and (d) use the phrase "must include." Id. § 81.066 (c), (d). Texas courts often characterize the word "must" as having a mandatory effect. See, e.g., Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (citing Wright v. Ector Cnty. Indep. Sch. Dist., 867 S.W.2d 863, 868 (Tex. App.—El Paso 1993, no writ)). Subsections (c) and (d) are not "mere suggestion[s] that can be disregarded at will." AC Interests, L.P. v. Tex. Comm'n on Env't Quality, 543 S.W.3d 703, 714 (Tex. 2018). These two subsections identify the information the Legislature directs the Commission to consider as it examines the strategic use of its resources and develops the Annual Plan. See TEX. NAT. RES. CODE § 81.066(a), (c), (d). Accordingly, the Commission must include in the Annual Plan information relating to the Commission's oil and gas division's monitoring and enforcement activities. Id. § 81.066(c). Similarly, it must include information relating to a violation of a statute or Commission rule that relates to oil and gas, particularly information relating to the enumerated violation data. Id. § 81.066(d). Conversely, the Commission is not required to include information not identified in section 81.066.

You ask whether the Commission must include information related to the control of noise generated from oil and gas equipment in the plan. See Request Letter at 1. You describe the noise as low frequency noise generated from compressor stations, gas treating facilities, and pipelines, but you do not identify any monitoring and enforcement activities of the Commission's oil and gas division that involve the control of such noise. See id. Nor do you identify a specific statute or Commission rule that concerns the control of noise, the violation of which would be required to be included in the Annual Plan.³ See id. We find no express provision in the statutes governing the Railroad Commission that requires the Commission to enforce noise controls in oil and gas operations. See generally TEX. NAT. RES. CODE §§ 81.001–123.005 (Natural Resources Code, Title 3, Oil and Gas). And we find no Commission rule that specifically relates to the control of noise in oil and gas operations. See generally 16 TEX. ADMIN. CODE §§ 3.1–.107 (R.R. Comm'n of Tex., Oil & Gas Div.). Absent such, section 81.066 does not require the Commission to include information on noise control in the Annual Plan produced.

¹ See Letter from Honorable M. Brian Evans, Freestone Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 18, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0388KP.pdf ("Request Letter").

² R.R. COMM'N OF TEX., OIL & GAS MONITORING & ENFORCEMENT PLAN, FISCAL YEAR 2021 at 31 (2020), https://rrc.state.tx.us/media/k1sdgewz/og-s-plan-fy-2021.pdf ("The following examples of complaints are usually not under the Commission's jurisdiction, with some exceptions: . . .. noise . . . .").

³ Though the Federal Energy Regulatory Commission has set a standard with respect to compressor station noise, it is a not a standard enforced by the Texas Railroad Commission. See 18 C.F.R. § 157.206(b)(5)(i).

S U M M A R Y

Natural Resources Code section 81.066 requires the Railroad Commission's oil and gas division to develop and publish an Annual Strategic Plan concerning its oil and gas division's monitoring and enforcement activities. Section 81.066 identifies specific information that the Commission's oil and gas division must include in the Annual Plan. Information not identified in section 81.066 need not be included in the Annual Plan.

Under the plain language of section 81.066, absent any monitoring and enforcement activities of the Commission's oil and gas division relating to the control of noise, or any statute or Commission rule concerning the Commission's control of noise, the Commission is not required to include information on noise control in its Annual Plan.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee