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A recent editorial in the Houston Chronicle makes a good point: we should no longer think of “oil and gas” together. Their paths have diverged, at least in the US.

The prices of oil and gas used to be roughly equivalent, based on their energy value – their Btu content. But since the shale revolution in the US, this is no longer the case. Today, gas is much cheaper than oil on an energy-equivalent basis. Today, most exploration companies have moved from gas shale plays to oil shale plays, chasing the higher oil price. But gas prices have recently risen, and wells are still being drilled profitably in the Marcellus. If gas returns to $5-6/mcf, shale gas plays will return, and gas will still be much cheaper than oil.

Second, gas is a clean-buring fuel, unlike oil or coal. US emissions of greenhouse gases have declined substantially since utilities have gradually switched from coal to gas. Vehicles powered by gas have much lower emissions than those fueled by gasoline. Gas is touted as a “bridge fuel” in the transition from hydrocarbon to renewable sources of energy, because of its lighter environmental footprint.

So why are we still using so much oil? Principally because of the transportation sector. It is expensive to convert vehicles to burn natural gas, and there is a dearth of refueling stations in the US for natural gas. If the price of natural gas remains cheap, more and more vehicles will burn it instead of gasoline.

As the public begins to better understand the differences between oil and natural gas, and as the market’s confidence grows in the US supply of gas, the stability of its relatively low price, and its more benign environmental impact, gas should make inroads into the transportation industry.

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Information below passed on to me by a client, from a friend of a friend:

 

Following are charts and photos of a tour of Cline Shale exploration and operations yesterday afternoon. I remember the boom in the 50s and the late 70s. Those are minimal compared to the massive and very expensive boom taking place right now. I never imagined anything like this.

For instance, there are no small operators involved. Everyone leasing, building, drilling and operating has to be a major with very deep pockets. The road you will see in the first photo cost over $1 million to build. The wells are hitting 9,000 feet in this area and much deeper in other places. Each hydraulic fracturing operation (fracking) uses more than 5 million gallons of water. In just this area, railroad sidings have been built in Miles, San Angelo and Barnhart to unload sand and load oil. The railroad trains in San Angelo used to consist of a few dozen cars a week and now consist of 500 cars a day. And, really, this is just getting started.

The Cline Shale is nearly 150 miles from north to south and nearly 60 miles from east to west. Reservoir engineers still think it will be the largest oil field ever discovered in the USA. The impact on cities and towns is profound. Colorado City has 4,200 residents and there are four hotels and two supermarkets under construction. At all times of the day and night, the traffic in Snyder seems like rush hour in Dallas. Motel rooms in many towns are being rented for 12 hour shifts. Nobody knows where people will live, how water will be available to drink or how to maintain roads that are being torn up by the heavy truck traffic. For now, everyone’s attitude is to sack the money while you can and kick the can down the road to solve problems some day.

In San Angelo, one of the most important events is the rodeo. This year there were no hotel rooms for the rodeo cowboys and tourists because the rooms were full of oil field workers. That used to be the biggest tourist draw in town. I guess the cowboys slept in their horse trailers with their horses since some have very nice sleeping places. The Chamber of Commerce and the hotel owners never said a word of apology. There is a brand new apartment complex west of San Angelo with hundreds of apartments and the whole thing has been leased indefinitely to Halliburton. In Midland, restaurants are closing early because they do not have the workers to stay open and are running out of food. In Big Lake, convenience stores are closing early in the day because they are out of food and fuel. I stopped at the Dairy Queen in Big Lake and the typical order being called in was for 36 hamburger baskets to go. And there is order after order like that. Every day, people with food trailers leave San Angelo and drive to Barnhart and Big Lake to feed people. I talked to a banker in Big Lake who said the best food in town is now a food trailer. I have heard that there is such a demand for truck drivers that they are receiving $10,000 signing bonuses and making $80,000 a year.

Chart of Oil Bearing Formations and Approximate Depth in Irion and Reagan Counties. The depths will vary from one part of the Permian Basin to another.
 

 Cline.JPG

 

The Million Dollar Caliche Road – must be 10-15 miles long – the blue pipes are transporting water for miles from to and from holding ponds for the wells.
 

Cline 1.jpg

 

Entire hills of limestone are excavated, crushed and screened for rock to make roads and drilling pads. Look at the man standing beside the portable rock crusher. As soon as this hill is gone, then another will be crushed. The landscape is changing. On the other side of the crushed rock pile were several loaders and dump trucks which were hauling the material off almost as fast as it could be produced.
 

Cline 2.jpg

Long view, about 2 miles, showing 5 pads in a row. Each pad will contain 3-4 wells. Pads are huge (several acres) to accommodate the multiple wells and the fracking operations.
 

Cline 3.jpg

Three active drilling rigs. A few days ago there were five lined up. Notice the old pump jack on left. This ranch already had hundreds, if not thousands, of old wells. By old, I mean 30 years old. Notice red pumps and red pipes piping water to fracking operations. In some cases, the recovered frack fluids are being cleaned up and used for water flooding the old wells to stimulate secondary production.
 

Cline 4.jpg

A fracking operation in progress. The crane holds a manifold over the drilled well. There were several heavy-walled pipes connected to the manifold, through which pass the fracking fluids, gels and propants. Each operation requires about 5,000,000 gallons of water. That’s a problem in a part of the world with very little water to start with. It’s hard to imagine the value of all the trailers, trucks, storage facilities, pumps and other equipment at each site. The cheapest thing in the photo are the porta-potties.
 

Cline 5.jpg

Several wells are drilled on each pad. These are two wellheads only a few feet apart. Once the rig completes one hole, a couple of bulldozers are used to skid the rig over about 30′ where it starts another well. We saw as many as four wells per pad. Each well probably has multiple horizontal legs 9,000 feet down in the Cline Shale. Most of the horizontal legs are 1.5 miles in horizontal length. In this particular location, all the horizontal legs are north-south because the production is better than any other orientation. This type of information is determined by drilling and testing “Science Wells” which usually cost over $2,000,000 each. These “science wells” are never meant to be produced. How can you kiss off $2 million? That’s what I mean when I say that only the big boys are playing this game.
 

 Cline 6.jpg

 

Looking at a large storage tank. There are dozens of these tanks. They are so big that you can see them with Google Earth. At each tank, the water surface is roughly 5 acres and the depth is approximately 15 feet. Each tank  contains about 26,000,000 gallons or 624,000 barrels of water. The reason much much is stored is because the water must be readily available (guaranteed) to begin and maintain hydraulic fracturing operation.

Cline 7.jpg

 

 

 

 

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The drought in Texas, along with improved recyclying technology, has driven efforts to increase recycling of water used in hydraulic fracturing of wells. According to one estimate, the fracing of wells in 2011 consumed on the order of 135 billion gallons of water – about 0.3 percent of total U.S. freswater consumption. (Golf courses in the U.S. consume about 0.5 percent of all freswater used in the country.) But if you own land in the Eagle Ford field, those numbers don’t mean much. Water use in some counties is lowering the water table in the Carrizo-Wilcox aquifer, the principal source of frac water for the Eagle Ford, causing some existing wells to dry up. In West Texas, the lack of available groundwater has forced companies to look at recyclying their frac water to extend the useful life of the water they can find for fracing.

Two bills now pending in the Texas legislature – House Bills 3537 and 2992 – would require the Texas Railroad Commission to develp rules to require rthe recycling and reuse of frac water returned from wells. The Commission has recently adopted rules to make it easier for operators to recycle water. And another bill, House Bill 379, would impose a 1-cent-per-barrel fee on wastewater disposed of in commercial injection wells.

Devon Energy, a leader in recycling of frac water in the Barnett Shale, testified to Texas lawmakers that recycling is 50 to 75 percent more expensive than sending frac water to injection wells. There are now about 50,000 injection wells in Texas, and the number is growing rapidly. Recyling is much more common in the Marcellus, where injection wells are not available and water must be hauled long distances for disposal.

The talk about recyling of frac water has raised an interesting legal question: whose water is it?

Groundwater is part of the surface estate in Texas. The owner of the mineral estate has the right to use so much of the surface estate – including groundwater – as is reasonably necessary to explore for and produce the minerals. Typically, an oil and gas lease grants the lessee the right to use groundwater, just as it grants the lessee the right to use the surface of the land, to explore for and develop the oil and gas under the leased property. Unless the lease provides otherwise, the lessee has no obligation to compensate the surface owner for the groundwater used. The operator may drill a water well and use that water for drilling and fracing wells on the lease, without compensation to the surface owner.

If the owner of the mineral estate also owns the surface of the land, the lease may require the lessee to compensate the lessor for use of the surface estate. In such instances in Texas, leases now often require the lessee to pay for groundwater used, at up to 50 cents per barrell or more.

Landowners in Texas also have sometimes contracted to sell their groundwater to operators for use in fracing wells. The operator, after contracting with one surface owner to obtain a groundwater supply, may build a large holding pond to store and use water for fracing of wells located on several leases in the vicinity of the pond, piping the water to its wells.

In those instances where the groundwater is sold to the operator, the operator has title to the water and should be able to recycle and use it as it pleases. But where the operator has taken groundwater under its general right to use the surface estate pursuant to its lease, the issue is less clear. The operator has the right to use the water, but may not acquire title to the water. Until recycling technology came about, the used frac water was just a waste product of the drilling operation that had to be properly disposed of. Once water is recycled, it has an economic value, and the surface owner of the property may claim that the water still belongs to it.

This is just one of the many interesting new legal issues raised by new technology in the oil field.

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Range Resources

Range Resources’ battle with the Lipskys and Alisa Rich continues, now in a confusing appeal of the trial court’s order denying the Lipskys’ and Rich’s motion to throw out Range’s counterclaim under the Texas law prohibiting so-called Strategic Lawsuits Against Public Participation, or SLAPPs.  http://www.star-telegram.com/2013/04/02/4745433/appeals-judges-return-range-suit.html

Earthquakes and Disposal Wells

Earthquakes caused by disposal wells continue to make the news.

http://www.fool.com/investing/general/2013/04/02/1-big-risk-that-has-energy-companies-quaking.aspx 

http://news.yahoo.com/oil-addiction-not-fracking-caused-2011-oklahoma-earthquakes-172400184.html 

http://www.bloomberg.com/news/2013-03-26/oklahoma-earthquake-in-2011-tied-to-wastewater-wells-in-fracking.html 

RRC figures show that wastewater pumped into disposal wells in Texas increased from 46 mllion barrels in 2005 to nearly 3.5 billion barrels in 2011.

http://www.bizjournals.com/dallas/news/2013/03/27/company-that-recycles-fracking-water.html?ana=twt

Oil Spill Trial

The huge trial to determine liability for the 2010 Gulf of Mexico oil spill continues. The judge threw out all claims against Cameron, the maker of the blowout preventer on the well, finding no evidence to support any claim against it. http://fuelfix.com/blog/2013/04/03/gulf-oil-spill-judge-throws-out-remaining-claims-against-cameron/

Keystone Pipeline

Here is a good article from the Washington Post explaining the facts and politics of the Keystone Pipeline.  http://www.washingtonpost.com/blogs/the-fix/wp/2013/04/03/the-keystone-xl-pipeline-and-its-politics-explained/

CSSD Performance Standards

A coalition of exploration companies and environmental organizations has created a new orgainzation and published performance standards for drilling and fracturing horizontal wells in the Marcellus. The new organization, the Center for Sustainable Shale Development, includs as partners the Environmental Defense Fund, Chevron, the Clean Air Task Force, Consol Energy, Shell, the Pennsylvania Environmental Council, and others. The Center’s website is http://037186e.netsolhost.com/site/.  Its new performance standards are here:  http://037186e.netsolhost.com/site/wp-content/uploads/2013/03/CSSD-Performance-Standards-3-27-GPX.pdf  They include best practices for protecting water resources and eliminating use of fresh groundwater and surface waters in hydraulic fracturing; recycling of flowback and produced water; use of closed-loop systems for drilling fluids; best practices for casing and cementing of wells; reduction of venting or flaring of gases in the drilling process; emissions standards for pumps and motors used in drilling. Other companies are being encouraged to sign onto the goals of the standards.  See http://www.forbes.com/sites/raphaelbostic/2013/04/04/the-marcellus-agreement-please-frack-responsibly/ 

In West Texas, companies are increasingly using brackish water for fracing.

http://www.texastribune.org/2013/03/28/brackish-water-fracking-rising-amid-challenges/?utm_source=texastribune.org&utm_medium=alerts&utm_campaign=News%20Alert:%20Subscriptions 

There are increasing complaints about air quality in the Eagle Ford.

http://sacurrent.com/news/the-sour-side-of-life-in-south-texas-39-eagle-ford-shale-1.1463271?pgno=5 

And confusion reigns among Texas groundwater districts about if and how to regulate groundwater pumping for frac water. 

http://www.texastribune.org/2013/03/13/fracking-groundwater-rules-reflect-legal-ambiguiti/

Meanwhile the Obama administration has issued new proposed rules for hydraulic fracturing on public lands:

http://www.nytimes.com/2012/05/05/us/new-fracking-rule-is-issued-by-obama-administration.html?_r=0 

http://www.forbes.com/sites/christopherhelman/2012/05/04/new-federal-fracking-rules-look-reasonable-enviros-not-satisfied/

The Top Five Facts Everyone Should Know About Oil Exploration

Another good article from Forbes:  http://www.forbes.com/sites/quora/2013/04/03/what-are-the-top-five-facts-everyone-should-know-about-oil-exploration/  Did you know that about 40% of all seaborne cargo is oil? Also see http://www.instituteforenergyresearch.org/2010/02/16/a-primer-on-energy-and-the-economy-energys-large-share-of-the-economy-requires-caution-in-determining-policies-that-affect-it/

Exxon Oil Spill in Arkansas

A reminder that oil pipelines sometimes break: 

http://www.pennenergy.com/articles/pennenergy/2013/04/pipeline-rupture-spills-crude-oil-into-arkansas-neighborhood.html?cmpid=EnlDailyPetroApril22013

ExxonMobil%20pipeline%20spill.jpg

 

Basses Sue Chesapeake for Unpaid Royalties

Chesapeake seems to be trying to get out of its debt problem by refusing to pay royalty owners what they are owed. 

http://www.star-telegram.com/2013/03/14/4703401/ed-bass-other-plaintiffs-sue-chesapeake.html?storylink=addthis#.UUNicT-hTqs.twitter;

http://media.star-telegram.com/smedia/2013/03/14/16/22/epxLU.So.58.pdf

Texas Railroad Commission

Commissioners at the Texas Railroad Commission seem to have problems getting along with each other. http://stateimpact.npr.org/texas/2013/03/26/bickering-erupts-among-texas-oil-regulators/ But they did pass new rules intended to make it easier for companies to recycle frac water. http://www.bizjournals.com/dallas/news/2013/03/27/company-that-recycles-fracking-water.html?ana=twt 

 

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State Representative Harold Dutton, Jr. has introduced a bill in the Texas Legislature to amend Texas’ Open Beaches Act. What does this have to do with oil and gas, you may ask? Read on.

Last year, the Texas Supreme Court decided a case interpreting the Open Beaches Act, Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012). The case arose because of Hurricane Rita. Carol Severance owned two beachfront houses on Galveston Island, as rental properties. Because of Hurricane Rita, erosion shifted the beach vegetation line farther landward, causing both homes to be located on the dry beach facing the Gulf of Mexico. As a result, under the Open Beaches Act, the Commissioner of the General Land Office informed Severance that she would have to remove the houses and offered her $40,000 assistance to relocate or demolish them. Severance then sued the Commissioner in US District Court claiming that the Commissioner’s action constituted a taking of her property without compensation under the Fifth Amendment of the US Constitution. Her case was dismissed, and she appealed to the 5th Circuit Court of Appeals. That court, after analyzing the case, concluded that Texas law was unclear on the matter, and it submitted “certified questions” to the Texas Supreme Court.

To understand the significance of Severance v. Patterson, it is necessary to go back a ways, to the Texas Supreme Court case of Luttes v. State, 324 S.W.2d 167 (1958). In that case, Mr. Luttes was claiming to own about 3,400 acres of “mud flats” lying on the edge of the Laguna Madre in Cameron County. The State of Texas holds title to all submerged lands along the coast, including lands within the Laguna Madre, the long, shallow lagoon that runs between the mainland and Padre Island along much of the Texas Gulf Coast. Mr. Luttes contended that these mud flats were part of his “dry land”, and not “submerged land” belonging to the State.

The original grant within which Mr. Luttes’ land lay was, like much of the land along the Texas Gulf Coast, originally granted by the King of Spain when Texas was a Spanish possession. When Texas gained its independence, it recognized the validity of land grants previously made by Spain and Mexico within its territory. Issues regarding title to original grants in Texas are decided based on the law in effect at the time the grants were made – in Mr. Luttes’ case, the law of Spain. So, in deciding Mr. Luttes’ case, the Court had to determine how the boundary between land and the sea should be determined under Spanish law in effect at the time of the original grant. The case was the first time the Texas Supreme Court had addressed this question.

The Spanish law addressing this question, as recognized by the Court, is known as Las Siete Partidas, or “The Seven Parts,” compiled in the 13th century. Spanish law declared the shore of the sea to be public property, available for all to use. A part of that law says: “and all that place is called shore of the sea insomuch as it is covered by the water of the latter, however most it grows in all the year, be it in time of winter or of summer.”  Because of its Spanish heritage, Texas has long considered its beaches public property — unlike many states whose antecedent law is the common law adopted from England, which holds that the dry beach above the ordinary reach of the tide is private land.

The Court in Luttes decided to adopt a “scientific” approach to mark the boundary between the sea and the land, borrowing from a US Supreme Court case decided in 1935 that addressed the question of the location of the shore boundary in California. The Court held that the boundary was “the line of mean higher high tide,” determined by the average of the reach of the tide each day during a seven-year tidal cycle.

The Luttes decision caused a huge controversy when it was decided, because it meant that the “dry beach,” the area between the “wet beach” and the line of vegetation — what the public understood to be its public beach — was in fact private property. If the public wanted to use the beach, it would have to wade in the water. As a result, the Legislature passed the Open Beaches Act. That Act declares that the public has an easement over the dry beach for its public use. And, since it was well known that beaches often erode, leaving homes and other structures originally built behind the line of vegation out on the beach, the Act created a mechanism for requiring removal of those structures. Private owners are never happy when this occurs, and there have been numerous cases involving the application of the act since it was passed, but until last year it was generally believed that the Open Beaches Act had solved the problem created by Luttes, at least as far as the public’s use of the beaches was concerned. That is, until Severance v. Patterson.

But what, you ask, does this have to do with oil and gas? Be patient.

So, in Severance v. Patterson, the 5th Circuit Court of Appeals asked the Texas Supreme Court three questions. The first question was

“Does Texas recognize a “rolling” public beachfront access easement, i.e., an easement in favor of the public that allows access to and use of the beaches on the Gulf of Mexico, the boundary of which easement migrates solely according to naturally caused changes in the vegetation line, without proof of prescription, dedication or customary rights in the property so occupied?”

In other words, does the public’s easement along the beach move whenever the vegetation line changes, whether by gradual erosion or sudden changes caused by storm events? The Court’s answer: No. In the Court’s majority opinion the court, clothing its opinion in the language of “private property rights,” held that “[a]lthough existing public easements in the dry beach of Galveston’s West Beach are dynamic, as natural forces cause the vegetation and the mean high tide lines to move gradually and imperceptibly, these easements do not spring or roll landward to encumber other parts of the parcel or new parcels as a result of avulsive events.” In other words, if an owner’s house becomes stranded on the beach because of an “avulsive” event — a storm — the public has no easement over the newly created beach and cannot force the owner to remove the house.  Three justices dissented from the majority opinion, arguing that:

Texas beaches have always been open to the public. The public has used Texas beaches for transportation, commerce, and recreation continuously for nearly 200 years. The Texas shoreline is an expansive yet diminishing public resource, and we have the most comprehensive public beach access laws in the nation. Since its enactment in 1959, the Texas Open Beaches Act (“OBA”) has provided an enforcement mechanism for the public’s common law right to access and to use Texas beaches. The OBA enforces a reasoned balance between private property rights and the public’s right to free and unrestricted use of the beach. Today, the Court’s holding disturbs this balance and jeopardizes the public’s right to free and open beaches.

Because of continued erosion along the Texas shore and gradually rising water levels, it is feared that the public’s right to use Texas beaches will continue to be eroded — a direct result of the Texas Supreme Court’s rulings in Luttes and Severance.

Representative Dutton’s House Bill 325 is an attempt to overturn Severance by declaring that the “public beach” is “any beach area, whether publicly or privately owned, extending inland from the line of mean low tide to the line of vegetation bordering on the Gulf of Mexico, as the line of vegetation may shift over time as a result of avulsive events or other forces of nature.” It is not clear whether his bill has any chance of passage, or whether, if passed, the Court would be willing to recognize the public beach as the bill re-defines it.

So, what does all of this have to do with oil and gas?

The boundary between the sea and the land marks not only the line between the State’s ownership of the seabed and private upland, but also the line of the State’s ownership of minerals under submerged land. Texas owns title to minerals under the Gulf of Mexico extending three marine leagues from the shore. But a large portion of Texas’ submerged lands lie within the Laguna Madre, which stretches from Brownsville to Matagorda Bay.

laguna madre.jpg

 

Laguna Madre is in most places very shallow, two feet or less in depth. Wind-driven tides cause huge areas of the laguna to be sometimes dry, sometimes inundated. The Intracoastal Waterway, constructed by the US Army Corps of Engineers in the 1930’s, runs the length of the laguna and allows for navigation.

There is one area of the laguna, called the “land cut,” located in Kenedy County, which is often totally exposed, from the mainland to Padre Island. It serves to separate the northern and southern segments of the Laguna Madre. In some seasons of the year it is covered with water – in other seasons it is dry mud flats. Below is an image from Google Earth of the land cut. The entire area encompasses about 35,000 acres of land.

land cut.JPG

 

 Beginning in about 1996, our firm represented the Texas General Land Office in a dispute with the John G. and Marie Stella Kenedy Memorial Foundation over title to the land cut. The Kenedy Foundation owns the lands to the west of the land cut, given to the Foundation by Sarita Kenedy East. The Ranch encompasses some 235,000 acres, one of the largest ranches in Texas. The Foundation argued that the land cut, under the rules for location of the shore boundary established by the Texas Supreme Court in Luttes, was dry land and part of the original Spanish and Mexican grants making up the Kenedy Ranch. The State argued that the land cut – sometimes dry, sometimes inundated – was part of the bed of the Laguna Madre, owned by the State. The fight, of course, was not over the land, a vast mud flat wasteland, but over the mineral rights to 35,000 acres along the Texas Gulf Coast.

After a jury trial, the trial court entered judgment holding that the State owned the disputed land. That judgment was upheld by the Austin Court of Appeals.  In December 2000, the Texas Supreme Court affirmed. But the Kenedy Foundation asked the Court to reconsider, and in 2001 the Court agreed to rehear the case. During the interim, several supreme court seats on the court changed hands. Finally, on August 29, 2002, the Court withdrew its prior opinion and issued an opinion reversing the courts below and holding that the entire disputed area belongs to the Foundation. Three justices dissented.

As a result of the Kenedy case the map of the Kenedy Ranch as now shown on its website now looks like this:

Kenedy Ranch.gif

In effect, the Court ruled that the “shore” of the Laguna Madre adjacent to the Kenedy Ranch lies along the edge of the Intracoastal Waterway, a man-made channel.

I’m sure that the Court in 1958, when it decided Luttes, had no idea that it was giving away thousands of acres of submerged land in the Laguna Madre, or allowing the public’s access to beaches to disappear. Nevertheless, this has been the result. With the introduction of House Bill 325, the fight over the coastal lands and beaches along the Texas shore continues.

A footnote: The author of the Luttes opinion was Justice St. John Garwood. He was the father of Will Garwood, at one time a member of our firm and later a judge on the 5th Circuit Court of Appeals. St. John Garwood was of counsel to our firm after he left the court, and he was still coming to the office when I joined our firm in 1978. Justice Garwood’s most notable opinion during his time on the court was Luttes. His wife, Ellen Clayton Garwood, was a member of the prominent Clayton family of Houston and was known for having donated $2.5 million to conservative groups backing the Nicaraguan contras during Ronald Reagan’s presidency.  She testified in support of Lt. Col. Oliver North in the contra hearings before Congress. Her father was William L. Clayton, who served as Under Secretary of State in the Truman administration.

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Production allocation wells continue to be a simmering issue in Texas. Last Friday I attended the Ernest E. Smith Institute on Oil, Gas and Mineral Law sponsored by the University of Texas School of Law, and one of the topics presented was a paper titled “Drafting Production Sharing Agreements.” The paper included information about allocation wells.

I’ve written about allocation wells before, here and here. The Texas Railroad Commission uses that term to refer to a horizontal well that is drilled across the boundary line of two leases or units without pooling the two leases or units. Up until recently, it was assumed that the Commission would not grant a permit for such a well. Several years ago, operators began applying for permits to drill “production sharing agreement” wells. Those are wells drilled across the boundary line of two existing leases or pooled units, where the operator has obtained a “production sharing agreement” from some or all of the royalty owners to drill such a well. The production sharing agreement with the royalty owners provides that production from the well is allocated between or among the tracts crossed by the well lateral, for purposes of calculating royalties due, based on the number of feet of well lateral on each tract compared to the total lateral length of the well. In 2008, the Commissioners agreed that they would grant permits for production sharing agreement wells if at least 65% in interest of the royalty owners in all tracts on which the well would be located had signed production sharing agreements.

According to the paper submitted to the seminar, to date some 700 production sharing agreement – or “PSA” – well permits have been granted by the Commission. More than 600 of those were granted to Devon Energy.

More recently, operators have convinced the Commission staff to grant drilling permits for wells crossing two or more leases or units even if the operator has no pooling or production sharing agreements with the royalty owners. The Commission refers to such wells as “allocation wells.” According to the seminar paper, permits have been granted for 98 allocation wells. The Commission is granting such permits even though it has no rule authorizing the granting of the permits.

As I have earlier written, our firm represents a landowner who has protested a permit EOG applied for to drill an allocation well. A hearing has been conducted on that protested permit, and the parties are awaiting a proposal for decision from the hearings examiners.

The seminar paper, written by Mickey Olmstead of the McElroy Sullivan firm here in Austin, and Robert Jowers of the Shannon Gracey firm in Houston, is in large part a brief arguing that allocation wells should be permitted by the Commission. The paper does not mention the EOG protested permit application.

I have learned since the EOG permit hearing that there is at least one pending lawsuit by a mineral owner against EOG for drilling an allocation well. I have also seen a permit granted for an allocation well based on the operator’s misrepresentation to the Commission that the well will be drilled on a pooled unit, even though the operator has no authority to pool the two leases across which the horizontal well will be drilled. I have also been told that operators are applying for permits for allocation wells without disclosing to the Commission that the well will be an allocation well. So it is difficult if not impossible to determine how many allocation wells have in fact been drilled.

The right to agree – or not agree – to the pooling of one’s royalty interest has been long-recognized by Texas courts, and is a significant right for all royalty and mineral owners in Texas. Texas has no forced-pooling statute like those in Oklahoma and Lousiana that force mineral owners into pooled units against their will. (Texas’ Mineral Interest Pooling Act does allow forced pooling under limited circumstances.) Recently there was substantial opposition to a bill pending in the Texas legislature, HB 100, that arguably grants operators the right to force-pool royalty interests. In my opinion, if operators are granted permits to drill allocation wells, despite having no pooling agreements with the royalty owners, the rights of royalty owners to negotiate pooling provisions in their leases will be seriously eroded.

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I recently read this astounding report from the Texas Tribune:

“In 2011, Texas used a greater number of barrels of water for oil and natural gas fracking (about 632 million) than the number of barrels of oil it produced (about 441 million), according to figures from the Texas Water Development Board and the Railroad Commission of Texas, the state’s oil and gas regulator.”

Of course wells use all of the water in the fracing process, at the beginning of the well’s life, and continue to produce oil for many years, so oil production will eventually catch up with water use. But this is nevertheless a remarkable statistic.

The Tribune article reports that a study by the UT Bureau of Economic Geology published in January “found that the amount of water used statewide for fracking more than doubled between 2008 and 2011. The amount is expected to increase before leveling off in the 2020s. The study’s lead author, Jean-Philippe Nicot of the University of Texas, has calculated that in 2011, nearly a quarter of the water used in Dimmit County went toward fracking. He projects that the figure will rise to about a third in a few years.”

The Tribune has also published a good article on the uneven responses of Texas groundwater districts to operators’ use of groundwater, that you can read here.

Fracing continues to make news elsewhere:

The California Department of OIl Gas and Geothermal Resources is considering regulations covering fracing that are being criticized by the industry and environmentalists:

http://www.conservation.ca.gov/Index/Pages/Index.aspx

http://www.huffingtonpost.com/2013/03/12/california-fracking_n_2864147.html

http://www.huffingtonpost.com/2012/12/19/california-fracking_n_2327165.html

r-CALIFORNIA-FRACKING-MAIN-large570.jpg

 

In New York, which has had a moratorium on fracing since 2008, the governor is still considering whether to lift the ban. The state’s health commissioner is preparing to issue his recommendation, which the governor said will be key to his decision. The New York State Assembly recently voted to extend the moratorium through 2015.

http://newyork.cbslocal.com/2013/03/11/n-y-state-health-commissioner-wont-wait-for-studies-on-fracking/

A group of artists and actors led by Yoko Ono and Sean Lennon have started up their own campaign to ban fracing in New York, called Artists Against Fracking. Several of them have produced a music video of Sean Lennon’s song “Don’t Frack My Mother:”  “Don’t frack my mother, cos I ain’t got no other. You can do anything that you want to do, but please don’t frack my mother.” Yoko Ono then pitches in: “Don’t frack me, don’t frack me.”

Only in America.

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UT’s Bureau of Economic Geology has issued a comprehensive report on the estimated reserves in the Barnett Shale Field. The study, funded by the Alfred P. Sloan Foundation, looked at 16,000 wells in the field. It has been submitted for peer review before publication, but a summary of the report can be found on the BEG website.

The BEG created a model with data from 15,000 wells drilled through 2010. Assuming a $4 constant gas price, the model predicts another 13,000 wells through 2030. It predicts total field production of 44 Tcf of gas through 2050. Here are two images showing results of the study:

BEG Barnett Shale 1.JPG

BEG Barnett Shale 2.JPG

 

The BEG plans to complete similar studies of the Marcellus, Haynesville and Fayetteville Shales by the end of 2013.

 

 

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The US Environmental Protection Agency has recently issued its report on greenhouse gas emissions under its Greenhouse Gas Reporting Program, which for the first time includes comprehensive reported emissions from the petroleum industry. The report covers 8,000 facilities in nine industry sectors for 2011, and total reported emissions were 3.3 billion metric tons of carbon dioxide equivalent (CO2e). Total reported emissions of CO2e from petroleum and natural gas systems were 225 million metric tons CO2e.

“CO2e” is a way to compare the global-warming potential of different greenhouse gases – their potential to trap heat in the atmosphere — by converting their emissions to the equivalent global-warming potential of carbon dioxide. Greenhouse gasses include carbon dioxide, methane (natural gas), nitrous oxide, and flourinated gases. Each of those gases has a CO2e. The CO2e of carbon dioxide is “1”. The CO2e of methane, the principal greenhouse gas emitted by the petroleum industry, is 19.1, meaning that one ton of methane has the same global-warming potential of 19.1 tons of CO2. (One ton of methane equals about 48,700 cubic feet.) The debate over whether natural gas is actually less harmful to the environment than coal involves, in part, the question whether the global-warming potential of methane leaked into the atmosphere offsets the fact that burning methane emits less carbon dioxide than burning coal. Because leaking one ton of methane has the same effect as emitting 19.1 tons of carbon dioxide, the facts concerning leaks of methane are important to that debate.

By far the largest industry sector accounting for total CO2e emissions is the power generation industry, which accounted for 67% of the total reported emissions in 2011. By contrast, the petroleum and natural gas system sector accounted for less than 7% of total emissions:

US CO2e emissions pie chart.JPG

EPA’s estimate of total U.S. greenhouse gas emissions from all sources (including, for example, vehicles and house furnaces) for 2011 is 6.822 billion metric tons CO2e.

Here is EPA’s summary of greenhouse gases from petroleum and natural gas systems in the U.S.:

EPA GHG Report Summary.JPG

Here is a breakdown by percentage of total:

GHG pie chart.JPG

 

“Petroleum and Natural Gas Systems” includes the entire path of oil and gas from production through distribution:

NG Systems illustration.JPG

 

 

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The Texas Supreme Court denied the LaSalle Pipeline’s petition for review in LaSalle Pipeline v. Donnell Lands, leaving the San Antonio Court of Appeals’ original opinion intact. See my discussion of the case here. The trial court awarded $468 per rod $28.36/foot) for an easement for a 16-inch pipeline. The Court of Appeals affirmed, finding sufficient evidence to support the award.

The Texas Railroad Commission denied the Texas Land and Mineral Owners’ Association’s petition for a rulemaking on the Commission’s policy regarding permits for “allocation wells.” See my prior posts here and here. In their discussion concerning the petition, the Commissioners agreed that allocation wells should be addressed by rule, but they concluded that there are presently too many pending rulemakings for the Commission staff to take on more at this time. The Klotzmans’ protest of EOG’s allocation well permit remains pending, awaiting a proposal for decision from the hearings examiners.

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