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This report from the Environmental Integrity Project, an organization of former EPA enforcement attorneys, provides a detailed account of the Texas Commission on Environmental Quality’s failure to enforce its rules against repeated failures by the production, midstream and refining industry to limit harmful emissions.

From the report:

In Texas, a relatively small number of polluters are responsible for most of the 21,769 illegal air pollution events reported over a six–year period. More than 1,600 of these events took
place for more than a week, in many cases releasing thousands of pounds of pollution into the air, worsening regional air quality and harming public health. Despite this, the TCEQ
only designated 119 of these events as “excessive” during this time, a designation that would be necessary to sufficiently penalize polluters for egregious or repeated emission events.

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Today the Texas Supreme Court issued its opinion in Devon v. Sheppard, No. 20-0904, again addressing post-production cost deductions from royalties. The Court affirmed the court of appeals’ ruling in favor of the royalty owners.

Sheppard leased minerals in the Eagle Ford Shale in 2007, before the first successful well in the Eagle Ford. Sheppard is a lawyer in Cuero, Texas. His lease required payment of royalties on gross proceeds of sale, without deduction of post-production costs. The lease also contained this provision:

If any disposition, contract or sale of oil or gas shall include any reduction or charge for the expenses or costs of production, treatment, transportation, manufacturing, processing or marketing of the oil or gas, then such deduction, expense or costs shall be added to … gross proceeds so that Lessor’s royalty shall never be chargeable directly or indirectly with any costs or expenses other than its pro rata share of severance or production taxes.

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Recently the US Supreme Court heard argument in Biden v. Nebraska, in which several states challenge the President’s authority to forgive student loans. Lost in much of the coverage was the administration’s challenge to the states’ standing to bring the case. “Standing” is a difficult concept to get your arms around. Courts cannot issue advisory opinions. Under Article III of the US Constitution, courts can decide only a “case or controversy.” That means the plaintiff must have a stake in the outcome different from the general public. To have standing, a plaintiff must have sustained or be threatened with an injury different from or in addition to the general public. The Biden administration argued that the states who sued would not suffer any injury because of Biden’s forgiveness of student loans, and therefore do not have standing to sue.

The concept of standing is important to the separation of powers in our federal and state judicial systems. It is a check on the power of courts. Nebraska could not simply ask the court to declare Biden’s loan forgiveness an unconstitutional exercise of executive power without first showing how the state would be injured by Biden’s action. Such an opinion would be an “advisory opinion.”

What does this have to do with Railroad Commission v. Apache?

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Occasionally I run across interesting stories that have nothing to do with oil and gas, and I am somewhat of a Texas history buff. I came across this story in the most recent issue of the Journal of the Texas Supreme Court Historical Society. My summary below is from the articles by John Browning, its Editor in Chief, and John Moretta, author of “William Pitt Ballinger: Texas Lawyer, Southern Statesman, 1825-1888” (Tex. State Hist. Ass’n 2000), and from Jason A. Gillmer, “Lawyers and Slaves: A Remarkable Case of Representation for the Antebellum South, published in the University of Miami Race & Social Justice Law Review.

David Webster was a prominent citizen of Galveston in the years after Texas joined the union, accumulating substantial real estate holdings across the new state, including some 5,000 acres across East Texas. He never married, and he was a slave owner. Betsy, one of the slaves he first purchased when he lived as a young man in Mobile, Alabama, became his lifelong companion.

By 1840 David had moved to Florida and was listed in the census as owning 84 slaves. But he then lost most of his investments, including all of his slaves except Betsy, and in 1846 he moved with her to Galveston. David’s relationship with Betsy was described as “of the most intimate character.” David was an extraordinary character; he played the guitar and lute, was a ship’s carpenter in his early life, and was a leading Galveston businessman, a city then one of the most populous in the state and a growing seaport.

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Today the Texas Supreme Court handed down its opinion in Van Dyke v. The Navigator Group, resolving a ten-year dispute over the ownership of royalty interests and $44 million in royalties.

In 1924, the Mulkeys conveyed their ranch to White and Tom, with the following reservation:

It is understood and agreed that one-half of one-eighth of all minerals and mineral rights in said land are reserved in grantors … and are not conveyed herein.

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Last year the 14th Court of Appeals in Houston issue an opinion that should serve as a warning to mineral owners, Thistle Creek Ranch v. Ironroc Energy Partners, No. 14-20-00347-CV.

Thistle Creek sued IronRoc to terminate an oil and gas lease it claimed had expired for lack of production in paying quantities. The lease is on a form I have seen before. The habendum clause provides:

Unless sooner terminated or longer kept in force under other provisions hereof, this lease shall remain in force for a term of three (3) years from the date hereof, hereinafter called “primary term,” and as long thereafter as operations, as hereinafter defined, are conducted upon said land with no cessation for more than ninety (90) consecutive days.

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Last month the El Paso Court of Appeals issued its opinion in a long-running dispute over royalties on a section of land in Upton County. Davis et al. v. COG Operating, LLC, et al., No. 08-20-00205-CV. The court addressed several issues, one of which was the construction of a 1939 deed that reserved a royalty interest described as “one-fourth of the 1/8 royalty usually reserved by and to be paid to the land owner in event of execution of oil and gas leases, so that 1/4 of the 1/8 royalty to be paid to us, our heirs or assigns, if, as and when produced from the above described land ….” The court concluded that this was a “floating” royalty equal to 1/4th of the royalty reserved in the lease, not a fixed 1/4 of 1/8 royalty. This appears to be the correct result based on other recent cases construing similar language.

I have a bone to pick, however, with the language in the opinion describing the royalty reserved. To be fair, other courts have made the same error, and the same error was made by the appellants in their brief. The court concluded that the grantors reserved “a floating, 1/4 NPRI in Section 45.” A 1/4 NPRI is a 1/4th royalty interest, not 1/4th of the royalty reserved in the lease. A 1/4th royalty is equivalent to one out of every four barrels produced. One-fourth of the royalty under a lease reserving a 1/4th royalty is 1/4 of 1/4, or 1/16 royalty interest, not a 1/4th NPRI. Clearly, in using the term “floating, 1/4 NPRI” the court meant to conclude that the deed reserved 1/4th of the royalty reserved in any future lease. But referring to it as a 1/4 NPRI is confusing.

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Winter Storm Uri

The fallout from the Texas Freeze in February 2021 continues. A year later, UT’s Austin Energy Institute concluded that multiple failures of power plants, gas processing plants, gas storage and distribution facilities, and gas production all contributed to the system failures. ERCOT management was fired; natural gas prices spiked to more than $400/MMBtu; politicians blamed wind and solar generation; the legislature passed legislation requiring the Public Utility Commission and the Railroad Commission to strengthen weatherization requirements for production, processing and generation facilities and has since criticized those agencies for failing to fix the problem. ERCOT drastically raised electricity prices during the storm, resulting in multiple bankruptcies. The legislature provided for securitization of about $7 billion in private losses caused by the storm, so those losses are spread over the next twenty years in customer rate increases. Expect new legislation in the upcoming session.

Mitchell v. Map Resources, 649 S.W.3d 180 (Tex. 2022)

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John McFarland
 Graves, Dougherty, Hearon & Moody, P.C.
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