Oil and Gas Lawyer Blog

WSJ Weighs In On Fracing Controversy

The Wall Street Journal gives its opinion on the dangers of hydraulic fracturing, siding with the industry: "The shale gas and oil boom is the result of U.S. business innovation and risk-taking. If we let the fear of undocumented pollution kill this boom, we will deserve our fate as a second-class industrial power."

Powell Shale Digest Issues Report on Eagle Ford

The Digest reported on wells drilled so far in Eagle Ford fields in Texas. Enough information is now publicly available to begin to see where the play is headed, and where it's most successful.

The counties with highest oil and gas production are Dimmit, Karnes, Webb and La Salle. The counties with the best results per well are Karnes and DeWitt:

Baker Hughes' oil rig count reached 1,000 for the first time since it began tracking oil and gas rigs separately in 1987. 843 oil and gas rigs are currently located in Texas. 

 

Continue reading "Recent News: EPA Fracing Study, Report on Eagle Ford, Frac Water Recycling, Range v. EPA, " »

Two recent articles by a New York Times reporter, Ian Urbina, have caused strong reactions among the industry and those following shale plays in the U.S. Urbina's articles may be found here and here. Urbina's basic theme is that the new reserves of natural gas attributed to shale plays are not real, but are a "Ponzi scheme" created by overestimates of reserves by companies desiring to pump up their stock prices. Urbina bases his conclusions on emails from different industry players and analysts, including the Energy Information Administration, PNC Wealth Management and IHS Drilling Data, and anonymous sources in the industry, including Chesapeake and Enron. Links to these emails are in the articles. Many of them date back to 2009. "In the e-mails, energy executives, industry lawyers, state geologists and market analysts voice skepticism about lofty forecasts and question whether companies are intentionally, and even illegally, overstating the productivity of their wells and the size of their reserves. Many of these e-mails also suggest a view that is in stark contrast to more bullish public comments made by the industry, in much the same way that insiders have raised doubts about previous financial bubbles," says Urbina.

Urbina's articles have provoked strong responses.

• ExxonMobil responded with a post on its "Perspective" blog page:   

"It is unfortunate that the words "rigorous" and "methodical" can't be applied to the New York Times' recent articles. Understanding the facts surrounding the potential for development of our nation's energy resources is every American's business.  Our economic recovery, environmental progress and energy security depends in part on a sound, stable and sensible policy and regulatory framework informed by honest, fact-filled debate.  The Times' current campaign undermines this debate and is a disservice to its readers."

• The Energy Information Administration issued a press release defending its estimates of shale gas reserves.

 

• Chesapeake weighed in with its criticism of the NYT articles:

"The Times story was obviously motivated by an anti-natural gas agenda. It is telling that the reporter chose not to interview a single reliable source and instead selectively quoted emails from unnamed sources or well-known industry critics dating back to as early as 2007 to invent a series of inaccurate and misleading allegations. If the Times was interested in reporting the facts and advancing the debate about the prospective benefits of natural gas usage to energy consumers, it could easily have contacted respected independent reservoir evaluation and consulting firms that annually provide reserve certifications to the U.S. Securities and Exchange Commission or contacted experts at the U.S. Energy Information Administration, the Colorado School of Mines' Potential Gas Committee, the Massachusetts Institute of Technology, Navigant Consulting and others who would gladly have gone on record to confirm the abundant resources that have been made available thanks to the horizontal drilling and hydraulic fracturing techniques that Chesapeake and other industry peers have pioneered in deep shale formations across the U.S."

• IHS CERA responded to the Times that

"Emails referenced in the article were written in 2008 and 2009, early in the understanding of the performance metrics for shale gas and have been proven completely wrong by events. One of the emails that was referenced in the article as from IHS was apparently written by someone misidentified as an IHS employee when in fact that person had not been employed by IHS for more than a year.

 

"Unconventional technologies and resources have moved with great speed. There is much more information about the performance and potential of shale resources available today than in the past. Shale gas supplies have built up very rapidly and now are 25 percent of total U.S. gas supply, as costs have come down dramatically and experience and knowledge have progressed.

 

"In February 2009, the IHS CERA report, "The Shale Gale," stated that the "recent revolution in the production of unconventional shale gas" would result in "a substantial increase in shale production and reserves"' and "a rapid growth of shale gas supply."  Also in February 2009, IHS CERA's study Rising to the Challenge said: "Unconventional gas will drive growth."  

 

"That was the IHS position then and it continues to be our position today.  Both of these reports were released well before the 2009 email cited in the NY Times story."

 

• ProPublica published its own article alleging that the SEC revised its rules on how reserves are calculated, allowing companies to greatly increase their reserve estimates, relying heavily on the Times articles and research.

 

• Forbes Magazine published a blog post calling the Times "all hot air on shale gas." 

The best and most thoughtful response to the Times articles is from this post by Michael Levi of the Council on Foreign Relations: "I can't say that I've read through all of the hundreds of pages of documents that the Times has posted on its site. But I've gone through a good enough slice of them (including all the emails that the Times references in its articles) to get a feel for how Urbina went about using them in his stories. There's a pattern: Urbina was clearly looking for negative views of shale gas, and had no problem finding them." Levi goes on to write that Urbina did raise some significant issues about how shale gas reserves should be assessed, but he did so without really understanding the economics of the E&P industry.

This is not the first criticism of industry estimates of shale gas reserves. In 2009, Arthur Berman, a geologist and then consultant with World Oil, published a gloomy analysis of Barnett Shale economics and reserves in 2009. See my earlier post about Berman here.

Bills of Interest from the Texas Legislature's now-completed session:

• SB 652 - re-authorized the Texas Railroad Commission for two more years. The Lege was unable to agree on changes recommended by the Sunset Commission to reform the RRC. See my discussion of Sunset recommendations here and here. Legislators could not agree on a provision changing the terms of the three commissioners from 6 to 4 years, and could not agree on a provision transferring hearings involving enforcement and gas utility rates to the State Office of Administrative Hearings.  See story here.
• HB 3134 - Revises earlier legislation (HB 2259, passed in the previous session) that made it more difficult for an operator to renew its operating license if it had unplugged wells not in compliance with rules. The revision gives the operators more time to achieve compliance, and will make it more difficult to require operators to plug inactive wells. See my description of HB 2259 here.
• HB 3328 - mandates public disclosure of chemicals used in hydraulic fracturing treatments in Texas. The oil and gas industry supported the measure. Environmental groups called the legislation a mixed bag.  EDF advisor Scott Anderson said that the bill doesn't allow for a "simple, statewide list of what chemicals are used by whom and in what quantities." Also, the bill may not be fully implemented until 2013.  Railroad Commissioner David Porter said he would push the RRC to complete its rulemaking on the bill by July 1, 2012, a full year before the deadline set out in the bill.
• SB 875 - prohibits nuisance suits against gas companies as long as they have a valid permit and are in compliance. The bill was pushed by the industry to prevent nuisance lawsuits related to emissions and noise from gas compressor facilities and other installations near populated areas.
• SB 332 - provides that a landowner "owns the groundwater beneath the surface of the landowner's land as real property," and entitles the landowner to drill for and produce the groundwater, subject to reasonable regulation. This bill as originally filed provided that a landowner "has a vested ownership interest in and right to produce groundwater below the surface of the landowner's property." The bill is likely to give rise to litigation about the ability of groundwater districts to regulate water wells.

Other legislation of interest that did not pass:

• HB 2087 - would have allowed operators to force-pool non-participating royalty interests. The bill was opposed by landowners, including the Texas Land and Mineral Owners' Association.
• HB 2939- would have required operators to submit an annual report of groundwater used to the RRC, the TCEQ and the TWDB.
• HB 3586 - would have allowed for compulsory unitization for purposes of enhanced oil recovery and CO2 storage.

Counsel for the plaintiffs in BP v. Marshall filed unusual motions for rehearing after the Texas Supreme Court reversed the judgments of the courts below awarding substantial damages for fraud. See my discussion of the Supreme Court's decision here. The Marshalls' attorneys' motion for rehearing accuses the court of engaging in "de novo review of a jury finding," exceeding the court's constitutional authority, violating the Marshalls' constitutional right to a jury trial, ignoring uncontradicted expert testimony, and ignoring its own prior precedent. The motion calls the court's reasoning "disingenuous." The Vaquillas attorneys' motion for rehearing says that "the decisional process has gone awry," and the court "has not decided, or even recognized, the main issue in the Vaquillas-Wagner case." From the Vaquillas motion for rehearing:

"The Opinion resolves the BP-Marshall dispute on a legal insufficiency point, but the Opinion never uses the phrase 'standard of review,' never alludes to the standard of review, and never undertakes to apply one."

"Perhaps the Court has in mind an explanation -- maybe even a devastating explanation -- for making the evidence that supports the verdict all vanish. Very well, then, but the Opinion ought to opine on these things, rather than leaving the world wondering."

"Again, any fair observer will acknowledge the Court's heavy workload, with many administravie duties and 900 cases a year clamoring for review. The torrent of cases means that not every Justice can read every record. A system of triage is inevitable. Still, when an Opinion can miss the main issue in one half of the case, forget the standard of review in the other, and speak of an 'adverse possession cause of action' -- while still going out the door unanimously -- something would seem to be wrong."

"The Opinion analyzes the accrual issue in terms of 'Wagner's adverse possession cause of action.' But Wagner has no 'adverse possession cause of action.' Nobody does. Adverse possesssion is not a cause of action, and this Court has never before uttered the phrase 'adverse possession cause of action.'"

"These issues need attention. For one thing, the Court has built a reputation as a leading American tribunal, perhaps the leading American tribunal, for oil and gas cases. Mistakes that might matter little if made by the Supreme Court of Vermont may have more far-reaching effects if made by the Supreme Court of Texas. Further, the Court faults the Marshalls for not acting as a 'sophisticated lessor' should. Under those circumstances, it is in the Court's interest to ensure that its Opinion displays the kind of precision that has historically characterized the Court's oil and gas cases."

"The Court should vacate its decision and start over."

Not your usual motions for rehearing.

 

A study group sponsored by the Massachusetts Institute of Technology has issued a report, The Future of Natural Gas, the fourth in a series of MIT multidisciplinary reports examinging the role of various energy sources and the effects of carbon dioxide emissions restraints.  The full 170-page report can be found here. The report analyzes the relative carbon footprint of natural gas compared to other fuels and the environmental impact of the development of shale gas reserves, among other topics. Here are some excerpts:

Major conclusions of the report:

• "There are abundant supplies of natural gas in the world, and many of these supplies can be developed and produced at relatively low cost."
• "The role of natural gas in the world is likely to continue to expand under almost all circumstances, as a result of its availability, its utility and its comparatively low cost."
• Natural gas is "one of the most cost-effective means by which to maintain energy supplies while reducing CO2 emissions."

Regarding gas's carbon footprint, the report concludes that "Among the fossil fuels, it has the lowest carbon intensity, emitting less CO2 per unit of energy generated than other fossil fuels. It burns cleanly and efficiently, with very few non-carbon emissions. Unlike oil, natural gas generally requires limited processing to prepare it for end use."

Regarding potential natural gas supply:

• "The mean projection of [worldwide] remaining recoverable resource [of natural gas] in this report is 16,200 Tcf, 150 times current annual global natural gas consumption .... Of the mean projection, approximately 9,000 Tcf could be developed economically with a natural gas price at or below $4/Million British Thermal units (MMBtu) at the export point."
• "The mean projection of recoverable shale gas resource in this report is approximately 640 Tcf, with low and high projections of 420 Tcf and 870 Tcf, respectively. Of the mean projection, approximately 400 Tcf could be economically developed with a natural gas price at or below $6/MMBtu at the wellhead."

Continue reading "New MIT Study, "The Future of Natural Gas," Touts the Future of Natural Gas Shale Development" »

Fracking has become more and more a topic in the general media and part of the state and federal environmental energy agenda, with new stories appearing daily. A sample:

Secretary of Energy Steveb Chu has appointed an advisory panel, officially called the Secretary of Energy Advisory Board's subcommittee on natural gas, to study the environmental issues around hydraulic fracturing and shale gas production.  Members of the subcommittee are John Deutch, former head of the CIA during the Clinton administration, in the Department of Energy during the Carter administration, now a professor at MIT, and former board member of Schlumberger, Ltd.; Daniel Yergin, IHS Cambridge Energy Research Associates Chairman; Susan Tierney, Chair of the board of the Energy Foundation; Stephen Holditch, chair of the Department of Petroleum Engineering at Texas A&M; Fred Krupp, President of Environmental Defense Fund; Kathleen McGinty, former head of Pennsylvania's Department of Environmental Protection; and Mark Zoback, geophysics professor at Stanford University. Steven Chu, Secretary of Energy, has charged the subcommittee to make recommendations on ways to improve safety of fracking in 90 days, and offer advice to other agencies within six months on how they can better protect the environment from shale gas drilling.  http://thehill.com/blogs/e2-wire/677-e2-wire/164057-overnight-energy-fracking . Beginnings of the subcommittee's work have not shown promise: at the first meeting of the committee, Dusty Horwitt of the Environmental Working Group said its chairman John Deutch should resign because of his former ties to Schlumberger and Cheniere Energy. On the other side, Republicans including Darrel Issa (R-Calif), chair of the House Oversight and Government Reform Committee, have said that Chu's subcommittee is composed primarily of Democratic appointees hostile to drilling interests. 

Continue reading "Discussion and Debate Increase on Environmental Hazards of Fracking" »

The Texas Supreme Court has once again overturned a jury verdict in favor of royalty owners, finding "no evidence" to support the jury's finding. The court's opinion in the case, BP America Production Company, Atlantic Richfield Company and Vastar Resources, Inc. v. Stanley G. Marshall, Jr., et al., No. 09-0399, was issued last week. The case evidences the Court's continued hostility to royalty owners' claims of lease termination.

The important facts are as follows:

Continue reading "Texas Supreme Court Again Reverses Jury Verdict Favoring Royalty Owners" »

Researchers at the Nicholas School of the Environment at Duke University have written an article published in the Proceedings of the National Academy of Sciences titled "Methane contamination of drinking water accompanying gas-well drilling and hydraulic fracturing," which finds "systematic evidence for methane contamination of drinking water associated with shale-gas extraction" in the Marcellus Shale in Pennsylvania and New York. The article has already elicited a strong response from the industry. To my knowledge, this is the first scientifically based study finding a correllation between the drilling of shale wells and the contamination of aquifers.

 

Continue reading "Duke University Researchers Find Correlation Between Marcellus Shale Drilling and Methane-Contaminated Drinking Water" »

Other than the oil and gas lease itself, the division order is undoubtedly the most common legal instrument mineral owners are asked to sign. Mineral owners should know the purpose of a division order, what rights and obligations it imposes on them, and the division order's relation to the oil and gas lease.

First, I should say that the law and practice regarding division orders varies from state to state. I practice in Texas, so what follows relates only to the use of division orders in Texas.

Historically, there has been much controversy and litigation in Texas about division orders and their effect. As a result, in 1991 the Legislature passed a statute governing the use of division orders. The statute was amended in 1995, 1997 and 1999. It is now Chapter 91, subchapter J of the Texas Natural Resources Code, commonly called the Division Order Statute. So the law applicable to division orders in Texas is the court-made law plus the division order statute.

The main purpose of a division order is to protect the payor of the proceeds of production from double liability. The company issuing the division order is requiring the royalty owner to (1) verify that the royalty owner's decimal interest set out on the division order is correct and (2) agree that the company can make payments based on that decimal interest until notified by the royalty owner that the ownership has been changed. By the division order, the royalty owner indemnifies the payor against liability to third parties who claim to own the interest being paid to the royalty owner.

Continue reading "DIVISION ORDERS: WHAT YOU NEED TO KNOW" »

The April issue of Discover, published by Kalmbach Publishing Co., contains an article on the potential environmental effects of hydraulic fracturing in gas shales, "Fracking Nation," by Linda Marsa. Much of the article simply repeats allegations being made by environmental groups and landowners of alleged groundwater contamination by shale wells. But the article mentions four newer topics and recent allegations being made by opponents of shale gas development:

 

Continue reading "Hydraulic Fracturing Controversy Makes Discover Magazine" »

Items of interest recently in the news:

On March 25, the Texas Railroad Commission adopted its examiners' recommended decision finding that Range Resources was not responsible for water-well contamination in Parker County, Texas.  (For my previous posts on this controversy, go here and here.)  The U.S. Environmental Protection Agency, which had previously entered a cease-and-desist order against Range based on its investigation of the water well contamination, issued a statement standing by its findings:  "The decision by the Texas Railroad Commission is not supported by EPA's independent, scientific investigation, which concluded that Range Rsources Corporation and Range Production Company have contributed to the contamination of homeowners' drinking water wells."  EPA has posted the full record of its investigation of Range on its website.  EPA has filed a federal suit against Range to enforce its order. "EPA stands by the order issued to Range Resources and seeks to secure Range's full compliance," said EPA's statement.  Range has filed a motion in that suit to dismiss the case, based on the Railroad Commission's findings. Railroad Commissioner Michael Williams said that "I see this as sort of a cavalier attempt by the federal government to reach its arms into our state's jurisdictions." Commissioner Elizabeth Jones said after the RRC hearing that Range's operations "have not contaminated and will not contaminate" the water wells in question. Steven Lipsky, one of the water well owners who believes that Range is responsible for the contamination, said: "It's a corrupt system. It's kind of sad."

Chesapeake Energy has entered into two more agreements to shed part of its acreage positions, one in Texas and one in Arkansas.  Chesapeake agreed to sell all of its Fayetteville Shale leases in Arkansas to mining giant BHP Billiton for $4.75 billion cash. Chesapeake entered into an agreement with Clayton Williams Energy to transfer 75% of its 75,000 acres of leases in the Wolfbone play in Reeves County to Williams, in exchange for Williams' agreement to drill at least 20 wells in the first year, with an option to drill 20 more earning wells every year over the next four years.

Investment firm Harrington Investments, Inc., a firm specializing in socially responsible investing, announced that it is divesting its entire holding in Chesapeake Energy because of (1) 109 citations against Chesapeake by the Pennsylvanie Environmenta Protection Department for "environmental health and safety" violations, and (2) The poor record of Chesapeake in executive compensation.  In 2008, Chesapeake CEO Aubrey McClendon was paid a $77 million bonus in a year when the stock price fell 60 percent. Harrington also noted that "McClendon funneled $450,000 to [Pennsylvania] gubernatorial candidate Tom Corbett via the State Republican Leadership Committee. Since Corbett's victory, Chesapeake has obtained 839 Marcellus Shale drilling permits in Pennsylvania, more than any other company, and has drilled at 126 sites, making it the second-biggest operator in the region."

A report issued by the Bipartisan Policy Center and the American Clean Skies Foundation has recommended that electric utilities enter into more long-term contracts for the purchase of natural gas.  Prior to natural gas shortages in the 1980's, utilities traditionally entered into long-term gas purchase contracts with producers with fixed prices, or prices that were adjusted periodically. Because of gas price volatility, state regulators of electric utilities discouraged the utilities from entering into such long-term contracts and encouraged purchases on month-to-month contracts based on market or spot prices. Today, most gas is sold on mont-to-month contracts. The report, from a task force including executives from Dow Chemical, The Willliams Companies, Spectra Energy, the American Gas Association, the Natural Resources Defense Council, Southern Company, ConocoPhillips, and Pacific Gas & Electric Company, concludes that because of a near 50% increase in gas reserves and and an increase of nearly 700 billion cubic feet of new gas storage capacity in the past decade, utilities are shifting their emphasis to gas-fired generation instead of building new coal-fired generation or retrofitting coal plants to cut emissions.  The reports says that utilities should include long-term gas contracts in their portfolio of energy supplies, and it encourages state utility regulators to emplement policies that encourage such long-term contracts. "Realizing and maximizing these benefits [of greater gas supply], however, will require that investors have confidence in the mid- to long-term stability of natural gas prices," says the report.  The complete report can be found here.

The Texas Supreme Court has reversed a decision of the Austin Court of Appeals holding that the Texas Railroad Commission must consider traffic issues in deciding whether to issue a permit for an injection well to Pioneer Exploration, Ltd. in Wise County. In its decision, the Court held that, in considering whether issuance of the permit was "in the public interest," the RRC need not consider the adverse impact on roads and traffic caused by truck traffic to and from the injection well.

Continue reading "Texas Supreme Court Rules Against Citizens Complaining of Injection Well" »

The EPA has issued its draft plan to study the impacts of hydraulic fracturing on drinking water in the U.S. Two state regulatory authorities have absolved frac'ed wells from responsibility for contaminating drinking water in Colorado and Texas. Maryland's top einvornmental regulator urged lawmakers to impose a two-year moratorium on frac'ing, as Maryland's legislature considers additional laws to regulate the practice. Meanwhile, the boom in shale gas drilling continues.

 

Continue reading "More About Hydraulic Fracturing in the News" »

Recently some of my clients have received notices of class action settlements in Coll v. Abaco Operating, LLC, et al., in the U.S. District Court for the Eastern District of Texas, Marshall Division, C.A. No. 2:08-CV-345 TJW. The case reveals a little-known aspect of royalty payments: many companies never reimburse their royalty owners for refunds of severance taxes.

Most royalty owners know little about severance taxes except that they are a deduction that regularly appears on their royalty check stubs. Texas imposes a tax on the value of all oil and gas produced in the state: 7.5% for gas and 4.6% for oil. Most producing states impose similar severance taxes. Pennsylvania has been debating whether to pass a severance tax in light of its budget problems and recent development of the Marcellus Shale in that state. Texas' severance taxes are paid into its "rainy day fund" that has been much in the news of late.

Continue reading "Class Action to Force Companies to Reimburse Royalty Owners for Severance Tax Refunds - Coll v. Abaco" »

Here is the closing statement of Range Resources filed with the Texas Railroad Commission after its hearing on complaints that Range's Barnett Shale wells in Parker County have contaminated groundwater.  It provides a good summary of the events to date and the evidence produced at the hearing.  Range Production Company Closing Statement.pdf

Here is a link to a summary of the Range dispute prepared by Gene Powell, Editor of the Powell Barnett Shale Newsletter.