Oil and Gas Lawyer Blog

Published on: June 3, 2015

Texas Legislature – Bills of Interest to Mineral Owners

The Texas legislative session has now ended. I followed 44 bills identified as potentially affecting the interests of mineral owners. Only two of those bills passed.

HB 40

The bill that produced the most controversy was HB 40, introduced by Rep. Darby, chair of the House Energy Resources Committee. It restricts the ability of municipalities to regulate oil and gas operations within their jurisdictions. This bill and several other bills were introduced in response to the referendum passed by the City of Denton barring hydraulic fracturing. The bill allows cities to adopt ordinances related to oil and gas activity only if the ordinance regulates “aboveground activity … at or above the surface of the ground, including … fire and emergency response, traffic, lights, or noise, or imposing notice or reasonable setback requirements,” is “commercially reasonable,” and “does not effectively prohibit an oil and gas operation conducted by a reasonably prudent operator.” The bill defines “commercially reasonable” as:

a condition that would allow a reasonably prudent operator to fully, effectively, and economically exploit, develop, produce, process, and transport oil and gas, as determined based on the objective standard of a reasonably prudent operator and not on an individualized assessment of an actual operator’s capacity to act.

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Published on: June 1, 2015

Texas Legislature Funds Earthquake Study

By John McFarland

The Texas Legislature has passed a supplemental appropriation of $4.471 million to fund a study of the cause of recent earthquakes in the Dallas-Fort Worth area. The money will be used to fund the purchase and use of seismic monitoring equipment and modeling of reservoir behavior, testing any connection between oil and gas activity and the recent swarms of quakes in the region.

The Bureau of Economic Geology at the University of Texas will lead the study in collaboration with other Texas universities, including the Texas A&M Engineering Experiment Station. The legislation requires formation of a nine-member technical advisory committee to direct the study. Members of the committee must include two members from universities who have seismic or reservoir expertise, to experts from the oil and gas industry, and the Texas Railroad Commission seismologist, Craig Pearson. A report must be provided to the Legislature by December 2016.

It is notable that the Legislature chose not to entrust the study to the Texas Railroad Commission, even though industry representatives favored that position. The Commission’s three elected commissioners rely heavily on contributions from the industry to fund their campaigns, and until the recent seismic activity in the DFW region, the commissioners refused to recognize the connection between earthquakes and oil and gas production in the Azle area of the Barnett Shale. Last month, a team of scientists published a paper concluding that the Azle seismic activity was more than likely linked to salt water injection wells in the vicinity. Those scientists testified before a legislative committee about their findings.

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Published on: May 21, 2015

New York vs. Texas

By John McFarland

Two recent articles brought to mind the trade-offs in the debate over hydraulic fracturing.

First, the Department of Environmental Conservation of New York State issued its Final Supplemental Generic Environmental Impact Statement, on the environmental impacts of allowing hydraulic fracturing in New York. New York has had a moratorium on fracking for the last several years, even though a substantial portion of the Marcellus formation underlies the state. It appears that New York is headed for a permanent ban on the practice.

I haven’t studied the EIS, which runs to several hundred pages. But it is a thorough catalogue and discussion of the environmental impacts of the drilling boom from fracking and horizontal drilling, most of which we know well by now: water use, surface spills, groundwater impacts, waste disposal, air quality, greenhouse gas emissions, health risks, visual impacts on the landscape, truck traffic, seismicity — all are discussed in great detail.

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Published on: May 15, 2015

Google and Pipeline Leaks

By John McFarland

Google has teamed up with the Environmental Defense Fund to detect leaks in gas lines in the Los Angeles Area, Boston, Indianapolis, Staten Island, Syracuse, and Burlington, Vermont. Google attached methane detectors to the cars it uses to create its street map images and has mapped the locations where it found levels of methane high enough to indicate pipeline methane leaks. A great use of new technology for a public purpose. View Google’s maps here. EDF has teamed up with industry and scientists to attack methane emissions, part of EDF’s efforts to combat global warming.

Published on: May 13, 2015

Oil and Gas Lease Extensions

By John McFarland

An excellent article by Judon Fambrough of the Real Estate Center at Texas A&M University, about how oil and gas leases can be extended beyond there primary term, can be found here. Great tips about how to avoid pitfalls in lease terms. Mr. Fambrough has written many good articles about negotiating oil and gas leases.

Published on: May 4, 2015

Restrictions on Assignment

By John McFarland

Modern oil and gas leases often contain restrictions on the right of the lessee to assign the lease to third parties. The lease may require the consent of the lessor to any assignment, or it may impose conditions on the right to assign — for example, that the lessee retain an interest in the lease and/or remain operator.

Recently I received a draft of an article that will be published next year in the Buffalo Law Review addressing the validity of restrictions on assignments in oil and gas leases, and the authors asked that I make it available on this blog. It is titled “The Validity of Restraints on Alienation in an Oil and Gas Lease,” and it is authored by Luke Myer and Rory Ryan, professors at Baylor Law School. There are actually two draft articles, one explaining the issue in layman’s terms and a second providing a more scholarly legal analysis with citations. The second article is titled “Aggregate Alienability.” The articles I think give a good analysis of the issue. There is actually little authority on whether restrictions on assignment, or “restraints on alienability,” in an oil and gas lease are valid. The authors make a good argument that such restrictions are valid. Good information for oil and gas lawyers, including tips on how to draft restrictions that are more likely to be upheld and enforced. The draft articles can be viewed here and here.

Published on: April 28, 2015

Backlog of Drilled but Uncompleted Wells Skyrockets

By John McFarland

This graphic from Bloomberg article, US Fracklog Triples as Drillers Keep Oil from Market (click to enlarge):

Bloomberg says that these uncompleted wells, if completed (that is, hydraulically fractured), would produce 322,000 bbls/day, equivalent to the current production of Libya. Total drilled but uncompleted wells, according to Bloomberg: 4,731.

Published on: April 27, 2015

Report of the Texas Unclaimed Mineral Proceeds Commission

By John McFarland

In 2013, the Texas Legislature passed House Bill 724, creating the Texas Unclaimed Mineral Proceeds Commission, and charged the commission to study and provide recommendations regarding distribution of unclaimed mineral proceeds held by the Texas Comptroller of Public Accounts. The bill was sponsored by State Representative Ryan Guillen. The Commission met eight times during 2014, took voluminous testimony, and produced a 100-page report last December that is fascinating reading, at least for an oil and gas attorney in Texas. Most Texans know that large portions of South Texas were settled during the 17^th and 18^th centuries when the territory was governed by the King of Spain and later the government of Mexico. Those governments granted lands to their citizens (including Stephen F. Austin), and many subjects settled in South Texas on the lands granted to them. When Texas gained its independence, it recognized the validity of land grants made by Spain and Mexico. But immigration of settlers from the United States into these territories, prior to and after Texas’ independence, produced social and economic disruption and displacement of some of the Spanish and Mexican settlers and uncertainty regarding their land titles.

Anglo-American newcomers, with clear advantages in their knowledge of the new legal system, its procedures and language, now competed for the natural resources of the region, pressing their legal and economic advantages – supplemented at times by extralegal means – to acquire ownership of the land. In addition, loss of records, the difficulty of locating original boundary lines, the clouds on many of the titles, and complications of collective family ownership were potential sources of disputes and acrimony among competing parties of all stripes. The resulting resentment, sense of dispossession and injustice, suspicion, and bitterness flared into open conflict at times in South Texas in the nineteenth century and, justified or not, lingers even today.

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Published on: April 24, 2015

House Science and Technology Committee in Washington Hears from RRC Chairman Craddick on Fracking and Earthquakes

By John McFarland

Christi Craddick, Chairman of the Texas Railroad Commission, testified in Washington yesterday before the House Science and Technology Committee, chaired by Lamar Smith, as part of a panel addressing environmental effects of hydraulic fracturing and wastewater disposal. Introductory remarks and testimony can be viewed here. The testimony reflects, I think, the political polarization in Washington. Because of recent reports about earthquakes in North Texas and Oklahoma, a lot of the testimony related to those issues, as well as the ability of local municipalities to regulate drilling in their jurisdictions – an issue now before the Texas Legislature.

Published on: April 22, 2015

When It Comes to Earthquakes, Oklahoma is Ahead of Texas

By John McFarland

Oklahoma regulators have finally awakened to the seismic activity caused by water well injection in their state. Take a look a this new website unveiled this week by the Oklahoma Corporation Commission. And look at their interactive map showing seismic events and injection wells. Oklahoma now surpasses California in seismic activity. Railroad Commission, where are you? Don’t let the Sooners show you up.