By Billy Howe
TFB State Legislative Director
Sometimes it seems people believe the legislature’s power is unlimited; that the legislature has no constraints on determining our state’s public policy, or the regulatory authority they can grant to state and local agencies.
However, it’s simply not true when it comes to private property rights.
Private property ownership and rights don’t come from the legislature. The courts determine if a landowner has a property right. Once that right is recognized, it is protected by the Takings Clause of both the Texas and U.S. constitutions. Both the court and the constitution provide the checks and balance to the legislature’s power.
Stakeholders with an agenda forget this basic truth. In their quest for what they believe is good public policy, these stakeholders forget that first you need to understand the constitutional constraints under which you must operate.
Regulatory power is not unlimited. It can only restrict private property rights for a PUBLIC PURPOSE. It cannot be used to restrict the rights of one property owner for the sole purpose of benefitting another private property owner. If the regulation is for a legitimate public purpose, but it causes significant economic harm to a property owner, then they must be compensated.
These restrictions on the power of government are not optional. They are protections guaranteed to private property owners under the constitution.
The current debate regarding groundwater regulation highlights this disconnect between what stakeholders want our state’s groundwater policy to be and what is legal under the common law and the constitution. The Texas Supreme Court recognized that landowners have “absolute ownership” of the water under their land, and regulation of this property must afford each landowner a fair share of the groundwater.
However, some stakeholders continue to believe they can advocate for the legislature to enact policies that will discriminate between landowners, or that do not require a landowner to be compensated for their water.
Almost 100 years of regulating the absolute ownership of oil and gas shows us this is simply not true. Railroad Commission regulations of this private property right were overturned many times by the Texas Supreme Court because they did not allow each mineral owner over a common reservoir to receive a fair share. Today, the Railroad Commission has very few cases that reach the Texas Supreme Court because they understand the constraints on their power to regulate the right to a fair share. The Railroad Commission had to learn the hard way that private property rights are not optional.
Oil and gas regulation had to forge a new trail of property rights law. Now that trail is there for us to follow with our state’s groundwater policy. We don’t have to repeat the same mistakes that will result in years of litigation and expensive court costs for landowners and other stakeholders.
Landowners and other groundwater users need the legislature to pass laws that are consistent with the private property right recognized by the Texas Supreme Court.
The best policy for our state is one that protects private property rights and ensures the development of groundwater respects this private property right.
Otherwise, the only thing future groundwater policy will ensure is a lot of time in the courthouse, while groundwater projects are on hold waiting for court decisions.
Why? Because private property rights are not optional.