Significant cases on oil and gas issues in 2019:
In Texas Outfitters v. Nicholson, the Texas Supreme Court again addressed the duty of the older of executive rights to minerals owned by another.
In Trial v. Dragon, the Supreme Court delved into the arcane theories of the Duhig rule and estoppel by deed.
Happy New Year.
The decade now ending was the decade of the Permian Basin. Its rise in production changed the US to a net oil exporter.
Permian gas production, a byproduct of the search for oil, drove down gas prices and resulted in a frenzied effort to build pipelines to move the gas to the coast.
The Cynthia and George Mitchell Foundation has funded research resulting in a report, “Emissions in the Stream: Estimating the Greenhouse Gas Impacts of an Oil and Gas Boom,” by to professors at UT Austin. The report focuses on downstream sources of methane emissions, and will be followed by a report examining policy and technology solutions to reduce emissions.
Here’s the abstract of the report:
The Shale Revolution has stimulated a large and rapid buildout of oil and gas infrastructure in the Gulf and Southwest regions of the United States (US), expected to unfold over decades. Therefore, it is critical to develop a clearer understanding of the scale and composition of the likely greenhouse gas (GHG) emissions associated with this activity. We compile a detailed inventory of projected upstream oil and gas production expansions as well as recently and soon-to-be built midstream and downstream facilities within the region. Using data from emissions permits, emissions factors, and facility capacities, we estimate expected GHG emissions at the facility level for facilities that have recently been constructed or are soon to be constructed. Our central estimate suggests that the total annual emissions impact of the regional oil and gas infrastructure buildout may reach 541 million tons of CO2 equivalent (CO2e) by 2030, which is more than 8% of total US GHG emissions in 2017 and roughly equivalent to the emissions of 131 coal-fired power plants. A substantial fraction of the projected emissions come from petrochemical facilities (38%) and liquefied natural gas (LNG) terminals (19%). Researchers have largely focused on upstream emissions such as fugitive methane (CH4) associated with new US production; our findings reveal the potentially greater prominence of midstream and downstream sources in the studied region.
The full report can be found here.
Plaintiffs Kenneth Lyle and Linda Morrison have appealed the dismissal of their suit against Midway Solar to the El Paso Court of Appeals, No. 08-19-00216-CV. Lyle and Morrison own the minerals under 315 acres in Pecos County. Midway Solar has constructed a solar farm on 215 of those acres. 
Typically, a solar developer will obtain surface-use waivers from mineral owners before building a facility. Midway did not do that. Instead, it set aside portions of the 315 acres, on the north and south ends of the property, to allow for development of the minerals by directional drilling.
Lyle and Morrison contend their minerals are not susceptible to development by directional or horizontal drilling, because of the subsurface geology. They say 70% of their tract cannot be developed for minerals. Their minerals are not now leased and there are no plans to drill wells. There has been production from wells in the vicinity.
The Texas Tribune has published an article describing a remarkable settlement in San Antonio Bay Estuarine Waterkeeper and S. Diane Wilson v. Formosa Plastics Corp, a suit claiming environmental damages for Formosa’s plastics pollution discharges into Lavaca Bay. The judge in the US District Court for the Southern District of Texas, Kenneth Hoyt, approved a $50 million settlement – the largest ever for a citizen’s suit against an industrial polluter under the Clean Air Act and Clean Water Act.
Formosa argued that the $121,875 fine imposed by the Texas Commission on Environmental Quality made the suit moot. In an earlier ruling, Judge Hoyt disagreed, calling the company a “serial offender” and saying that “the TCEQ’s findings and assessment merely shows the difficulty or inability of the TCEQ to bring Formosa into compliance with its permit restrictions.” I cited this case in an earlier post about the inadequacy of Texas agencies’ enforcement of environmental laws and the complexities of administrative enforcement actions.
Diane Wilson, a retired shrimper and environmental activist, was represented by Texas Rio Grande Legal Aid and others. Congratulations to Ms. Wilson.
Rice University’s Baker Institute for Public Policy recently published an Issue Brief, “Reducing Oilfield Methane Emissions Can Create New US Gas Export Opportunities,” written by Gabriel Collins, Baker Botts Fellow in Energy & Environmental Regulatory Affairs at the Institute. Collins argues that instead of flaring gas, it should be liquefied and sold in the international market.
Actions that improve environmental well-being are most effective and sustainable when the yield a bona fide economic benefit. This certainly would be the case with policies to reduce flaring and venting of natural gas in the US, as doing so would free up gas molecules for export to customers worldwide seeking cleaner, more secure gas supplies.
Some statistics from Collins’ brief: Continue reading →
The fight between Williams and Exco over whether Exco can continue to flare gas from its wells has moved to District Court in Travis County.
Exco filed an application with the Texas Railroad Commission for permission to flare gas from more than 130 Eagle Ford oil wells on the Briscoe Ranch. Exco bought the wells from Chesapeake. Williams protested Exco’s application. It owns the gathering system, which it purchased from Mockingbird Midstream, at that time an affiliate of Chesapeake. Under RRC Rule 32, a company must obtain a permit to flare gas. After a hearing, the administrative law judge recommended that the permit be granted, and the RRC granted the permit.
Exco’s wells had been connected to the Williams gathering system and dedicated to the gathering contract between Chesapeake and Mockinbird Midstream when the two companies were affiliated. Exco and Williams disputed whether the Exco wells were still under that contract. Exco was in bankruptcy, and that dispute was in the bankruptcy court.
A friend recently told me about two great websites: www.oilystuffblog.com, and www.shaleprofile.com. The first is a fun read authored by Mike Shelman, “Oily Humor & Short Stories About a Very Long, Oily Life.” Here’s a post about “BOE,” or “barrels of oil equivalent.”
Shale Profile is a subscription site, but it has a lot of free information about shale plays in the U.S. A remarkable interactive use of big data. Here’s an example, a snapshot of all production in the Permian Basin:
Interesting graphics in article from Bloomberg, “After Decades of Fracking, We Finally Know How the Fluid Spreads Underground.”
Excellent investigative reporting by Texas Tribune on how the Texas Railroad Commission fails to enforce state and federal laws requiring restoration of coal mines. “Texas coal companies are leaving behind contaminated land. The state is letting them.” Mirrors my experience with trying to get the RRC to force E&P companies to clean up their messes. Also echoes similar problems with abandoned coal mines in West Virginia.
