Energy and the Environment

Published on: July 15, 2019

Administrative Hearings in Texas: Three Recent Cases

Three recent cases illustrate a little known aspect of Texas law – administrative law and how it works, and doesn’t work. Although the cases don’t directly affect mineral owners, they show how different the Texas Railroad Commission’s administrative process is from other agencies’.

Many disputes in Texas are resolved not in trial courts but by administrative hearings. In many cases, the law that governs those hearings is the Administrative Procedure Act, found at Chapter 2001 of Texas’ Government Code. The hearings are held before an administrative law judge (ALJ) who works for the State Office of Administrative Hearings (SOAH). If two parties get into a dispute in which the law requires adjudication by an administrative hearing, an evidentiary hearing is held before an ALJ who hears testimony, takes evidence, and prepares a Proposal for Decision (PFD). The PFD then goes before the board of the responsible agency, which either adopts the PFD or makes changes, and issues a final order. That order can then be appealed to a state district court in Travis County. The district court acts as an appellate body, and must uphold the decision if it is supported by “substantial evidence” in the record from the administrative hearing and otherwise complies with the governing law.

The APA limits the grounds on which an agency can change a PFD and requires the agency to explain its reasons for doing so. APA section 2001.058(e) provides:

A state agency may change a finding of fact or conclusion of law made by the administrative law judge, or may vacate or modify an order issued by the administrative judge, only if the agency determines:

(1) that the administrative law judge did not properly apply or interpret applicable law, agency rules, written policies provided under Subsection (c), or prior administrative decisions;

(2) that a prior administrative decision on which the administrative law judge relied is incorrect or should be changed; or

(3) that a technical error in a finding of fact should be changed.

The agency shall state in writing the specific reason and legal basis for a change made under this subsection.

Two cases, both from the Austin Court of Appeals, are appeals of orders by administrative agencies. Hyundai Motor America v. New World Car Imports San Antonio, Inc., No. 03-17-00761-CV, is an appeal of a decision by the Board of the Texas Department of Motor Vehicles. The case involves the obscure laws that govern the relationships between car manufacturers and their dealers. Continue reading →

Published on: February 21, 2019

Gas Flaring in the Permian

By John McFarland

Last month the Environmental Defense Fund released an analysis of NOAA satellite data estimating volumes of gas flared in the Permian Basin in 2017. Its findings: operators report half of the amount of gas actually flared.

104 Bcf of gas is enough to serve all needs of Texas’ seven largest cities – $322 million worth of gas. The State also does not collect severance tax on that gas.

Operators must obtain permits to flare gas and report volumes flared. The RRC has not denied any permits. Between 2016 and May 2018, the RRC issued more than 6,300 flaring permits in the Permian. Between 2008 and 2010, the RRC issued fewer than 600 flaring permits for all of the state.

EDF’s analysis also compared the top 15 oil producers in the Permian (click on image to enlarge):

Continue reading →

Published on: October 30, 2018

Dr. Scott Tinker’s New Project

By John McFarland

Dr. Scott Tinker, the Director of the Bureau of Economic Geology, University of Texas, and the Texas’ State Geologist, produced and starred in a film a couple of years ago called Switch. It provides an overview of how we use energy in the world and the opportunities and challenges facing our future in trying to reduce our reliance on hydrocarbons. A great film. He also created a great resource for educators about the many facets of energy, found at www.switchenergyproject.com, with multiple videos explaining every facet of energy production and use, from biofuels to environmental impacts to fracking to coal.

Dr. Tinker has released a new set of educational videos at http://www.switchenergyproject.com/education/energy-lab, on topics such as How We Make and Use Energy, How Batteries Work, Unconventional Sources of Oil, Risks of Fracking, How Solar Works, and many others, all free on his website.

Now Scott is making a sequel to Switch, called Switch On, which focuses on energy poverty. Scott emailed friends:

Continue reading →

Published on: July 30, 2018

Diverting Flared Gas for Atmospheric Water Harvesting

By John McFarland

An article in yesterday’s Austin American-Statesman – “How gas flare-offs could bring water” – caught my attention. It was written by Vaibhav Bahadur, an Assistant Professor of Mechanical Engineering at UT Austin. He posits that natural gas could be used to harvest water from the atmosphere (“atmospheric water harvesting”), enough to supply a significant part of the water needed for hydraulic fracturing.

I remember reading about atmospheric water harvesting using solar power, for drinking water. Scientists have developed crystalline powders called metal organic frameworks, or MOFs, that suck water from the air. Omar Yaghi, a chemist at the University of California, and Evelyn Wang, a mechanical engineer at MIT, designed a system using an MOF that uses solar energy to condense 2.8 liters of water per day from the air, even in the desert.

Bahadur’s proposal is to use conventional gas-powered engines to run compressors that condense water from the air. He says that a cubic meter of gas would capture up to 2.3 gallons of water. He estimates that 2 billion gallons of water could be harvested annually from gas flared in the Eagle Ford, which would meet 11% of the annual water consumption in the Eagle Ford. In the Bakken, he estimates that 4 billion gallons of water could be harvested in a year, supplying 65% of the annual water consumption there.

Continue reading →

Published on: March 5, 2018

Has the Oil Market Fundamentally Changed?

By John McFarland

An article in the Harvard Business Review, Oil’s Boom-and-Bust Cycle May Be Over. Here’s Why, provides an excellent overview of how the global oil market has been changed fundamentally by development of shale oil resources. Excerpts:

U.S. shale producers “now represent half of U.S. oil production, up from a mere 10% just seven years ago in 2011. In fact, 2018 may mark the first year shale producers will be able to fund future expansions of drilling programs through their own cash flow.”
” Oil companies will need to develop both new conventional and unconventional crude oil resources to keep up with current demand for roughly one million more barrels of oil every year in addition to replacing the approximately four million barrels lost annually as reservoirs are naturally depleted. In total, we estimate that the oil and gas industry will have to replace about 40% of today’s oil production over the next seven to nine years.”

Continue reading →

Published on: November 16, 2017

Flaring in the Permian

By John McFarland

My clients regularly complain of flares from wells on their property. Most leases don’t require royalty payments on flared gas, so their royalty is going up in smoke. Flares often don’t function properly, resulting in emissions of toxic gases. Flares make noise.

The Environmental Defense Fund recently released an excellent report on flaring in the Permian Basin, Permian-Flaring-Report-2017. EDF analyzed flaring and venting by 15 major producers in the Permian for the years 2014-2015. Here’s what they found (click on image to enlarge):

On average, these operators flared at a rate of 3 to 4 percent of their production in these years, more than 80 Bcf of gas. At $3/mcf, that’s $240 million of gas.

Continue reading →

Published on: October 9, 2017

Courts Reject Trump Administration Efforts to Delay Implementation of Obama Methane Emission Rules

By John McFarland

The DC Court of Appeals and the US District Court for the Northern District of California have struck down orders of the EPA and the Bureau of Land Management postponing compliance dates for the Obama administration’s rules requiring the oil and gas industry to monitor and reduce methane emissions. Both courts held that the agency’s orders were “arbitrary and capricious” and in violation of the Administrative Procedure Act. Clean Air Council, et al. v. E. Scott Pruitt, Administrator, Environmental Protection Agency and Environmental Protection Agency, No. 17-1145, opinion July 3, 2017; State of California, et al. v. U.S. Bureau of Land Management, et al., Case Nos. 17-cv-03804-EDL, 17-cv-388-EDL, opinion Oct. 4, 2017.

Methane is a powerful greenhouse gas contributing to human-caused global warming. The EPA’s rules, aimed at reducing emissions of methane from oil and gas facilities, were adopted in May 2016. They impose “new source performance standards” for finding and fixing leaks of methane in oil and gas production facilities. Those rules require operators to implement a leak monitoring plan using optical gas imaging to find and fix leaks from valves, connectors, pressure-relief devices, flanges, compressors and thief hatches on storage tanks. The BLM issued similar rules in November 2016 to reduce waste of natural gas from venting, flaring and leaks during oil and gas production activities on Federal and Indian lands.

President Trump appointed Scott Pruitt as Administrator of EPA. Pruitt, as Attorney General of Oklahoma, sued the EPA at fourteen times on behalf of his state, attacking the EPA’s authority to regulate various industries. Pruitt rejects the scientific consensus that human activities contribute to climate change. Continue reading →

Published on: July 31, 2017

New Report Criticizes TCEQ Enforcement Policies

By John McFarland

A recent report by the Environmental Integrity Project and Environment Texas, reviewing results of state records reporting illegal air releases from oil and gas facilities between 2011 through 2016, finds that the Texas Commission on Environmental Quality imposed fines for less than three percent of 24,839 “upset” events, even though more than 500 million pounds of pollutants were released. EIP has also sued the Environmental Protection Administration for EPA’s alleged failure to prevent the TCEQ from issuing air permits that don’t comply with the Clean Air Act. EIP claims the TCEQ issues “unenforceable permits with illegal loopholes that render useless some of the most basic pollution control requirements of federal and state law.”

EIP and TCEQ debated EIP’s report, “Breakdowns in Enforcement,” in an article in the Midland Reporter Telegram. EIP found that the Midland area had 2,000 upset incidents in the study period, releasing 34 million pounds of pollution, more than the Houston area. EIP’s report recommended that TCEQ should determine whether an upset event was preventable before deciding whether to pursue enforcement actions, and should consider repeat violators in determining enforcement actions. TCEQ agreed with both recommendations.

The three largest violators, according to the report, were Hess, ConocoPhillips, and DCP Midstream. Spokesmen for those companies told the Midland Reporter Telegram that they take pollution concerns seriously and were working to reduce emissions.

Published on: July 11, 2017

End of the Road for DISH

By John McFarland

The Texas Supreme Court has refused to allow DISH, a small town in Denton County north of Fort Worth, and several of its residents, to proceed with its suit against four companies who operate gas compressor stations near the town. The plaintiffs alleged that they were harmed by the noise, odors, light and chemicals from the compressors. The Court held that their claims were barred by limitations, reversing an opinion by the Amarillo Court of Appeals that would have allowed the case to proceed.

DISH caused quite a stir beginning in 2010, out of proportion to its size (it had a population of 201 in the 2010 census). Originally named Clark, the town changed its name to DISH as part of a deal with Dish Network in which all residents received free basic television service for ten years. Continue reading →

Published on: May 23, 2017

Railroad Commission: Follow Pennsylvania’s Lead

By John McFarland

One of the complaints made against the Texas Railroad Commission in the current legislative session was that it provides very little information about its environmental compliance efforts in the oil field. The Commission provides little information about the number of violations, how they were resolved, the identity of the violators, the type of violations, or the location of the violations.

The Pennsylvania Department of Environmental Protection has issued its 2016 Oil and Gas Annual Report, an interactive report that provides detailed information about its regulation of the industry. Pennsylvania now produces more natural gas than any state except Texas, since development of the Marcellus Shale. The report provides is in electronic format, with geolocated data in GIS maps and in real time, based on the DEP’s daily electronic compliance tracking system. An interactive Report Viewer allows searching for violations by company, type, county, and date. Detailed information about each violation is provided.

In Texas, if a landowner files a complaint against an operator and wants to know what the RRC has done about it, the landowner must file an open records request with the RRC.