Articles Posted in Energy and the Environment

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The environmental group Ceres has released a map showing the overlap between shale plays and water-stressed areas of the U.S. You can view it here.  It is based on a study of 110,000 wells fracked over the past five years. Read Ceres’ summary of findings here. Its report is an update of an earlier 2014 report on fracking and water use.

In Texas, operators rely almost exclusively on groundwater to frac wells. Operators in the Eagle Ford play rely on the Carrizo Wilcox aquifer, a huge fresh water resource that extends across South Texas – and an aquifer that is being rapidly depleted by pumping for agricultural and municipal uses. Oil and gas operators are exempt from laws in Texas that allow local groundwater districts to regulate and limit pumping.

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The EPA has issued a report evaluating the Texas Railroad Commission’s regulation of injection wells: EPAreviewRRC The report criticizes the RRC in three areas, discussed below.

Injection wells, permitted by the RRC, are used to dispose of oilfield waste – produced water, frac water, and other fluids. These liquid wastes are injected into underground reservoirs determined to have no useable groundwater or producible hydrocarbons. Called Class II injection wells, Texas has more than 56,000 such wells – a third of all Class II injection wells in the U.S.

Injection of waste underground is governed by the Safe Drinking Water Act passed by Congress in 1974. That act allows states to take responsibility for permitting and regulation of injection wells if the state’s program meets the requirements of the SDW Act and the EPA. Texas has been regulating injection wells under authority delegated by the EPA since 1982. As part of that delegation, the EPA evaluates Texas’ performance each year and issues an annual report with its findings.

By and large, the EPA report finds that the RRC’s regulation of injection wells meets or exceeds the requirements of the Act. But the RRC is criticized in three respects. Continue reading →

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The third issue identified by the Sunset Commission in its draft report on review of Texas Railroad Commission operations was the RRC’s monitoring and enforcement of its regulations. As in previous Sunset reports on the RRC, the Sunset Commission criticized the Commission’s enforcement practices and policies.

RRC field inspections and enforcement are the areas where landowners most often come into contact with RRC operations. The RRC is responsible for enforcing rules related to oil and gas spills and contamination, including contamination of groundwater.


The RRC employs 151 oil and gas field inspectors. In FY 2015, the RRC reported that those inspectors conducted 134,484 inspections and cited 61,189 violations. When it finds a rule violation, the RRC can fine the operator, and it can issue a “severance order,” requiring suspension of oil and gas production until the violation is remedied. In FY 2015, the RRC assessed 1,878 administrative penalties and issued 7,936 severance orders.

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I have generally tried to avoid using this platform to promote or brag on my law firm. But every rule should have its exceptions, and I want to brag about Graves Dougherty’s representation of the Friends of Lydia Ann Channel. Lydia Ann Channel is a feature on the Texas Gulf Coast near Port Aransas, a fishing and recreation community dear to many Texans’ hearts.  Below is a shot from Google Earth showing the channel. (click to enlarge)

Lydia Ann Channel
The Friends of Lydia Ann Channel are a group of environmentally conscious citizens who are seeking to cancel a permit granted by the Corps of Engineers for installation of a facility allowing barges to be moored in the channel. With our firm as counsel, the Friends sued  to require the Corps to revoke the permit, remove the barge moorings and restore the affected habitat along the channel. The facility is essentially a mile and a half parking lot for mooring of up to 200 barges that carry oil, chemicals and hazardous cargo.

Lydia Ann Channel 2
The Friends allege that the permit was granted without the necessary environmental reviews, and that the facility risks harm to the environmental, recreational, historical and archeological environment of the channel. The area is home to eight federally listed threatened or endangered species, including the whooping crane and sea turtles.

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During my vacation I read The Quartet: Orchestrating the Second American Revolution, 1783-1789, by Joseph J. Ellis. Ellis tells the story of the writing and passage of the US Constitution, orchestrated, he asserts, by George Washington, Alexander Hamilton, John Jay and James Madison (the quartet).

Before the adoption of the Constitution, the thirteen states were essentially independent countries who had won their independence but failed to found a new country. The “United States” were always referred to in the plural. The genius of the quartet, says Ellis, was the compromise they crafted in the Constitution in the debate over federal vs. state power. States were understandably reluctant to relinquish their sovereignty, but the quartet knew that the new nation, to survive, had to have federal power – to levy taxes, provide for common defense, and regulate commerce among the states. The Constitution enumerates the powers of the federal government. The Bill of Rights – the first ten amendments to the Constitution, passed simultaneously — enumerates the rights retained by the states and the people, limitations on federal power. The tenth amendment provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The contours of this compromise are still being debated in courts across the land. “States rights” were fighting words in the civil war, and today are the battle cry of states seeking to curb the federal government’s regulation of health care, water quality, voting rights, and abortion.

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In January, the El Paso Court of Appeals decided the appeal of Lazy R. Ranch, LP, et al. vs. ExxonMobil Corporation. The court reversed a summary judgment in favor of Exxon and remanded the case to the trial court for a trial on the merits. Exxon has asked the Texas Supreme Court to review the El Paso Court’s decision. Exxon argues that it has conclusively proven that Lazy R’s claims are barred by limitations.

The Lazy R Ranch is 20,000 acres in Ector, Crane, Ward and Winkler Counties. Exxon had operations on the ranch for many years. In 2009, the Ranch hired an environmental firm to investigate several sites on the property for oil-related contamination. The environmental firm found substantial hydrocarbon contamination at five sites, and found that at one of the sites the contamination had percolated down into the groundwater and that contamination at the other sites also posed a risk of leaching down into the groundwater. Lazy R sued Exxon for an injunction to require Exxon to take sufficient steps to prevent further spread of the contamination into the subsurface and groundwater.

The trial court ruled that the Ranch had waited too long to sue and dismissed its claims. The El Paso Court of Appeals reversed, holding that the statute of limitations does not apply because the Ranch is only suing for an injunction to require Exxon to abate a continuing nuisance, the spread of hydrocarbon contamination into the subsurface.

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Big news this week about the Environmental Protection Agency’s new proposed regulations to limit emissions of methane and volatile organic compounds (VOCs) from oil and gas drilling, operating, compression and processing facilities. EPA’s proposed new rules can be viewed here. Among other things, the proposed regs would require operators to use “green completion” technology in drilling and completing wells, to reduce emissions of natural gas during those operations. The proposed rules would apply only to “new sources” of emissions, not existing facilities.

Representative Lamar Smith, R-San Antonio, called the proposed rules “yet another example of the Obama administration’s war on American energy jobs.”  Barry Russell, CEO of the Independent Petroleum Association of America, said the proposed rules would cause “unnecessary costs and added uncertainty” that would “inflict more pain on the men and women who work in the oil and gas industry at a time when market forces are already creating economic challenges.” Environmentalists praised the proposed regulations, but said that EPA needs to begin regulating emissions from existing facilities.

VOCs are carbon-based molecules that evaporate at ordinary temperatures and pressures, and are emitted into the air during oil and gas production, gathering, transportation and processing activities. They include  benzene, ethylbenzene, and n-hexane, which are harmful to human health. VOCs and methane are also powerful greenhouse gases, contributing to global warming according to scientific consensus.

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The EPA this week published a “proposed framework” for a new voluntary program for the oil and gas sector to reduce methane emissions – the “Natural Gas STAR Methane Challenge Program.” It is part of the administration’s continuing effort to reduce emissions of methane, a powerful greenhouse gas. The proposal can be found here.

I’m no expert on air emissions standards. As a citizen reading the proposal, I was struck by the increasing intensity of efforts to address emissions of methane and volatile organic compounds in the oil and gas sector.

In 1993, EPA created its Natural Gas STAR Program, a voluntary program in which oil and gas companies could commit to identify opportunities in their companies to reduce methane emissions and report on their progress. According to the EPA, Gas STAR partner companies have reported methane emission reductions of more than one trillion cubic feet through 2013.

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Here is an excellent article by Michael Levy, senior fellow for energy and the environment at the Council on Foreign Relations: “Fracking and the Climate Debate,” published in the journal Democracy. A well-reasoned and balanced summary of the debates over the role of natural gas in our energy future and its potential impact on our climate. Lengthy, but well worth reading.

Levy gives a good history of recent remarkable changes in the roles of coal and natural gas in US energy:

Between 1999 and 2005, the United States had added the equivalent of 200 nuclear power plants’ worth of natural gas-fueled electricity plants, even as U.S. coal-fired capacity actually fell. But by 2007, with natural gas prices rising, the U.S. government predicted a reversal: Over the next two decades, coal-fired power plants would be built at a furious pace, while natural gas would stagnate. This would be disastrous for U.S. greenhouse gas emissions: By 2030, it was predicted, the fleet of coal-fired power plants would belch three billion tons of carbon dioxide into the atmosphere each year, massively raising U.S. greenhouse gas emissions. …

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Residents of DISH, Texas were awarded a victory by the Amarillo Court of Appeals in their long-running fight with pipeline companies. Sciscoe et al. v. Enbridge Gathering (North Texas), L.P., et al., No. 07-13-00391-CV. In an opinion issued on June 1, the court held that the plaintiffs are entitled to a trial on their claims that the pipelines’ gathering and compression facilities caused damages to their properties from noise and emissions that constituted trespass and nuisance.

DISH residents have fought the pipeline companies for years. The companies constructed several compressors and a metering station just outside the town between 2005 and 2009. Residents began to complain of excessive noise and offensive odors and said they suffered adverse health effects. In 2008, the residents complained to the Texas Commission on Environmental Quality, which conducted monitoring in 2009 and 2010 and concluded that emissions from the compressors “would not be expected to cause short-term adverse health effects, adverse vegetative effects, or odors.” The Texas Department of State Health Services performed medical tests on 28 DISH residents for exposure to chemicals, and tested tap water; it found no evidence of exposure to chemicals. Those findings were contradicted by tests conducted by Plaintiffs’ expert, Wolf Eagle Environmental, which found that Plaintiffs were exposed to harmful emissions of benzene, xylene, ethyl benzene, toluene and other harmful chemicals.

Finally, 18  DISH residents sued the pipelines in 2001 for damages, alleging nuisance and trespass. The town of DISH also filed suit, seeking damages for the loss of tax revenue resulting from reduced property values caused by the compressor station.

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