Since the Water Pollution Control Act (Clean Water Act or “CWA”) inception in 1972, a key issue has been: Which waters of the United States (“WOTUS”) are regulated under the CWA and which are left to the states to regulate. The answer to this question definition of WOTUS touches everything from farming to homebuilding, mining, […]
ARTICLE EXCERPT: The Unsettled Definition of Waters of the United States
Podcast: Interpreting Oil-and-Gas Contracts, The Rule of Capture and Mineral Trespass, and Class Action Developments for Operators
In the latest episode of our energy law podcast, we discuss recent guidance from the Texas Supreme Court on interpreting oil-and-gas contracts; cross-jurisdictional differences surrounding the rule of capture and subsurface mineral trespass; and troubling class action developments for operators and other industry participants.
Sixth Circuit Fans the Flames of Class Certification Against Operators
I have written previously about class certification in the oil patch. Frequently the emphasis is around whether the putative class can satisfy Rule 23’s commonality and predominance requirements. The recent trend has been toward troubling developments for operators, including courts that focus on ostensibly “common” facts that are irrelevant to the claims asserted or, worse […]
Rule-of-Capture Showdown: Pennsylvania v. Texas
Last year, I wrote about Pennsylvania’s departure from Texas on the law surrounding trespass by hydraulic fracturing. As first stated in Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008), trespass claims for drainage by hydraulic fracturing are barred in Texas by the venerable “rule of capture”—shorthand for the theory […]
SCOTX Issues Another Key Decision for Interpreting Oil-and-Gas Contracts
The Texas Supreme Court, beginning in 2017, began issuing a number of decisions altering the analysis for the interpretation of oil-and-gas agreements, principally mineral leases and conveyances. I wrote about many of these opinions as they were released: “Texas High Court Ruling Sows Confusion On Mineral Deeds” (Wenske v. Ealy) (Law360, subscription required)—chipping away at […]
Podcast: Royalty Underpayment Class Actions; Duties of the Mineral Executive; and Anti-Pooling Clauses
In the latest episode of our energy law podcast, we discuss troubling developments at the intersection of class actions and consumer protection laws in royalty underpayment cases; the Texas Supreme Court’s latest pronouncements on the duties of executive mineral rights owners to non-executives; and a new appellate court decision that addresses when the acceptance of […]
Failure to Launch: Eminent Domain Breaks Down in the Texas Legislature
Eminent domain proceedings in Texas are a complex process governed by multiple constitutions, laws, and regulations.[1] Through this process the Texas government, its agencies, and authorized private entities acquire land to advance initiatives relating to economic development, energy, transportation, public works, and utilities. However, eminent domain proceedings can leave private landowners feeling harassed or ripped […]
Energy-Related Bankruptcies on the Rise: Protecting Oil & Gas Royalty Interests
With the recent uptick in energy-related bankruptcies expected to continue for the foreseeable future (in one prominent example, industry giant Weatherford has just filed for Chapter 11 protection), oil and gas royalty owners need to be on alert. Because companies in financial distress usually fall behind on royalty payments, royalty owners, usually one of the […]
Goodbye Steel and Aluminum Tariffs! (For Mexico and Canada Metals)
In a recent KRCL Energy Practice Group seminar, I discussed the genesis and impact of metal tariffs imposed by the Trump administration. These Trump Tariffs have had a tremendous impact on energy infrastructure construction and midstream activities throughout the United States, prompting companies to seek relief (in the form of product exclusions) with the Department […]
SCOTX Hands Down Decision on Mineral Executive’s Obligations to Non-Executives
Last month, the Texas Supreme Court issued a decision that addresses the vexing situation in which the owner of the executive rights also owns the surface, but none (or virtually none) of the minerals. What is the duty of the executive rights holder in this situation?