By Matt Smith
Opportune LLP

Lower natural gas prices are causing exploration and production companies to get creative with their hedging strategies to lock in near-term cash flows above the dismal levels the market is currently offering. When hedging with options, it’s not uncommon for oil and gas producers to sell options and roll the premium value of the sold option into another hedging instrument.

An example of this is a costless collar. With a costless collar, a company buys a put option to establish a floor price they’ll receive for the sale of their commodity. Rather than pay the premium for buying the put option, the company sells a call option with an equal premium to offset the purchased put premium. The sold call option establishes a ceiling price they’ll receive for the sale of their commodity. The result allows a company to participate in commodity prices above the floor price and below the ceiling price.

With calendar 2020 natural gas swap prices below $2.25/MMBtu, traditional swaps and costless collars aren’t appealing to many companies. This, combined with the fact that the NYMEX natural gas futures prices are in contango—where future prices are higher than the spot prices—has led some companies to sell options in future periods and roll the premium into near-term swaps. A strategy that’s gaining popularity is selling swaptions and rolling the premium into near-term swaps.

For example, let’s assume the current NYMEX swap prices are $2.25/MMBtu and $2.45/MMBtu for calendar years 2020 and 2021, respectively. Rather than hedge with swaps at these prices, a company may decide that it would rather sell an option giving the counterparty the right to enter into a swap for 2021 at $2.50/MMBtu (this is commonly referred to as a swaption as it’s the option to enter into a swap). When this option expires in December 2020 (or whichever expiry date is negotiated), if the swap price is above $2.50/MMBtu, the bank will execute their right to swap at $2.50/MMBtu, and if the prices are below $2.50/MMBtu, the bank will not.

A company is able to take the premium from selling the swaption and roll this value into a swap to get an above-market 2020 swap price. In this example, let’s assume the premium was $0.25/MMBtu, and the company would roll the $0.25/MMBtu premium into their 2020 swap to get an above-market swap price of $2.50/MMBtu, rather than $2.25/MMBtu. The downside is that the swaption doesn’t provide any price protection in 2021 if natural gas prices continue to go down and it limits upside potential if natural gas prices increase. However, it has become a viable alternative for many in this tough energy market.

Swaptions can create financial reporting complexities when it comes to determining the appropriate fair value to record in financial statements. Implied volatility inputs for NYMEX options are generally readily available. However, implied volatilities for swaptions are not. Determining appropriate volatility is calculation-intensive and requires consideration of various inputs.

The uniqueness of these trades often leads to a significant amount of attention from auditors, the need for valuation specialists and generally requires additional financial statement disclosures. Opportune’s professionals offer the unique understanding of hedging and financial reporting processes that allow us to add value to clients and meet their fair value reporting needs.

About the Author:
Matt Smith is a director in Opportune LLP’s financial instruments group. He assists companies with their accounting for complex financial instruments under both U.S. GAAP and IFRS. He has experience in derivative valuation and hedge accounting, stock-based compensation, debt and equity financing activities, embedded derivative assessments, Dodd-Frank compliance and SEC reporting. Smith has an undergraduate degree in accounting from Oral Roberts University. He is also a member of the American Institute of Certified Public Accountants.

Schiff Hardin’s Environmental Group took a look prospects for renewable energy in 2020 and determined that development is expected to continue through 2020 and beyond.

Authors of the post in the Energy & Environmental Law Adviser blog are Alex Garel-Frantzen, Amy Antoniolli and Brett Cooper.

They discuss three key issues facing the industry for the coming year: waning federal government incentives; siting renewable energy projects at such locations as retired power plants and landfills can lower costs; and local communities can be slow to get on board with renewable energy initiatives.

See the article.

The Oil and Gas Lawyer Blog of Graves Dougherty Hearon & Moody takes a look at a recently published issue brief titled “Reducing Oilfield Methane Emissions Can Create New US Gas Export Opportunities.”

Rice University’s Baker Institute for Public Policy published the brief by Gabriel Collins.

Collins argues that instead of flaring gas, it should be liquefied and sold in the international market.

Read the article.

John B. McFarland, writing in the Graves Dougherty Hearon & Moody Oil and Gas Lawyer Blog, updates a legal fight over whether a producer can continue to flare gas from its wells.

The dispute, between Williams MLP Operating and Exco Operating Co., has moved to district court in Travis County in Austin.

McFarland describes the background of the case, which involves the purchase of wells, a gathering system and gathering contract, bankruptcy, and a potential net loss of $146 million if the permit to flare gas is not granted.

Read the article.

The law firm of Thompson & Knight LLP advised Oilfield Water Logistics, LLC (OWL) in connection with the sale of its midstream water infrastructure and services business to InstarAGF Asset Management Inc. and its Canadian and international co-investors.

The Thompson & Knight team representing and advising OWL was led by Jesse E. Betts and J. Holt Foster, III, with assistance from Partners Debra J. Villarreal, William M. Katz, Jr., Anthony J. Campiti, Shad E. Sumrow, Todd D. Keator, Jason Patrick Loden, Elizabeth A. Schartz, Gregg C. Davis, Kurt Summers, and James C. Morriss III; and Associates Courtney J. Roane, James Bedotto, John B. Phair, Timothy J. Johnston, Jana Benson Wight, Aaron C. Powell, Craig Carpenter, Lindsay Kirton, and Leslie Reynolds.

The Indiana Department of Environmental Protection is seeking the dismissal of a township’s challenge to a permit to a shale gas wastewater injection well to operate in the community, reports the Pittsburgh Post-Gazette.

“The long-running legal battle, which is being watched statewide for its potentially precedent-setting outcome, pits [Grant Township], which wants to protect water wells from contamination, against the DEP, which approved a permit for the injection well in 2014 and again in 2017,” explains the Post-Gazette‘s Don Hopey.

The town passed a community bill of rights ordinance in 2014 in an attempt to block Pennsylvania General Energy Co. from converting one of its former shale gas production wells to a 7,500-foot deep injection well for disposal of fracking waste.

Read the Post-Gazette article.

By Shane Randolph and Jeff Nicholson
Opportune LLP

With over $370 trillion of global financial contracts referencing LIBOR (London Inter-bank Offered Rate), many oil and gas companies are curious about how the phase-out of LIBOR by 2021 could impact their organization. Many companies are beginning to ask how this transition will impact their organization and what steps can be taken now. The following is a discussion of:

• why LIBOR is being phased out;
• the transition plan for the phase-out;
• items companies should consider; and
• the steps that can be taken now.

Why is LIBOR Being Phased Out?
LIBOR has been the default local and international benchmark interest rate for a diverse range of financial products for decades. The rate is based on various banks’ proprietary observations rather than robust market transactions. This has left the rate vulnerable to manipulation and major rate-fixing scandals came to light starting in 2007. As a result, the U.K.’s Financial Conduct Authority (FCA) decided that it will no longer compel banks to submit LIBOR estimates by the end of 2021.

What is the Transition Plan?
As a response to the issue in the U.S., the U.S. Federal Reserve Board (the “Fed”) convened the Alternative Reference Rates Committee (ARRC) in 2014 to establish a viable alternative to the U.S. dollar LIBOR. The ARRC determined in 2017 that the overnight indexed swap (OIS) rate based on the Secured Overnight Financing Rate (SOFR), a broad treasury repurchase agreement financing rate used when banks borrow or loan treasuries overnight, would be its preferred alternative reference rate. Accordingly, the Fed began publishing the SOFR daily rate on April 3, 2018 to prepare for its use as a benchmark rate.

The current transition timeline proposed by AARC has SOFR being the primary replacement for LIBOR in the U.S. by the end of 2021. The table below shows the ARRC’s anticipated completion dates and milestones to be achieved by those dates.

There are concerns about utilizing SOFR as a benchmark rate, and it will take time for enough liquidity to develop in the SOFR market to alleviate concerns regarding its viability as a benchmark. One issue is that SOFR is a spot rate from the median of overnight transactions, and it is likely to vary materially from day-to-day. Another issue is that SOFR has only a one-day tenor, whereas LIBOR has many different tenors.

What Should Companies Consider?
Companies should inventory all agreements that reference LIBOR. Also, when executing new agreements, management should carefully consider language addressing alternative or fallback rates if LIBOR is unable to be determined. If contracts are not amended to include alternative rates or fallback provisions in the absence of LIBOR before the relevant LIBOR index is discontinued, it could cause settlement issues or render contracts invalid.

From an accounting and financial reporting standpoint, the impact could be substantial. The primary areas affected include hedge accounting and accounting for debt modifications. In addition, discount rates for impairment testing, lease accounting, asset retirement obligations and fair value estimates will need to be assessed. Fortunately, both the U.S. and international accounting regulatory bodies, FASB and IASB, appear to be aligned and will provide significant relief for the transition, particularly in the areas of hedge accounting and debt modifications. As of now, the actions by the FASB and IASB are tentative proposals, but additional guidance should be provided by the end of 2019.

What Steps Can Be Taken Now?
At this stage in the process, companies should increase organizational awareness, carefully monitor the execution of new agreements referencing LIBOR and create an inventory of existing agreements and valuation models.

Increasing organizational awareness will be key for the transition away from LIBOR. While some may be aware of the impending LIBOR replacement, there may be a lack of appreciation of how broadly the event will impact the organization beyond hedging and debt activities. Increasing awareness throughout the organization will also assist in monitoring the execution of new agreements referencing LIBOR.

In summary, the replacement of LIBOR will have a significant impact globally. Oil and gas companies are encouraged to consider the impact to their organization and take steps to assess existing agreements and carefully monitor the execution of new agreements.

As a Managing Director at Opportune, Shane Randolph assists companies and financial institutions throughout North America, South America, Europe and Asia-Pacific in their understanding of what is possible as they deal with the challenges of implementing risk management programs and highly technical accounting pronouncements. He oversees the risk management, derivatives, stock-based compensation and complex securities service offerings of Opportune. He assists clients with the entire risk management life cycle, including strategy, execution, compliance, valuation and hedge accounting. He has undergraduate and graduate degrees in accounting from Oklahoma State University. He also is a member of the American Institute of Certified Public Accountants and maintains a Series 3 Securities License.

Jeff Nicholson is a Senior Consultant in the complex securities, hedging and stock-based compensation practice of Opportune LLP. He holds a Bachelor’s degree in Business Administration and Management from the University of Colorado, Boulder and a Graduate degree in Finance from the University of Colorado, Denver.

Thompson & Knight LLP advised the Conflicts Committee of American Midstream Partners, LP in its merger with an affiliate of ArcLight Energy Partners Fund V, L.P.

The partnership has announced the closing of the transactions contemplated by that certain Agreement and Plan of Merger, dated March 17, 2019, by and among the partnership, American Midstream GP, LLC, and affiliates of ArcLight, pursuant to which an affiliate of ArcLight has taken the Partnership private by acquiring all of the outstanding common units of the partnership not already held by affiliates of ArcLight, at a price of $5.25 per common unit.

The firm’s cross-practice deal team was led by the corporate team of Alan P. Baden, Jeremiah M. Mayfield, and Stephen W. Grant Jr., with assistance from J. Dean Hinderliter, Dasha K. Hodge, Timothy J. Johnston, Catharine A. Hansard, Tonya Maksimenko, and Nicolas Adrian McTyre.

The Associated Press reports that federal, North Carolina and Virginia governments asked a court Thursday to declare the country’s largest electricity company liable for environmental damage from a leak five years ago that left miles of a river shared by the two states coated in hazardous coal ash.

The AP’s Emery P. Dalesio writes: “Government lawyers sought to have Charlotte-based Duke Energy declared responsible for harming fish, birds, amphibians and the Dan River bottom. Hazardous substances like arsenic and selenium poured into the river at levels high enough to harm aquatic life, according to a complaint filed in the North Carolina federal court district near the site of the 2014 disaster.”

Duke Energy pleaded guilty to federal environmental crimes in 2015 and agreed to pay $102 million.

Read the AP article.

The Houston Chronicle reports that a Houston oil executive was sentenced to state prison for defrauding investors who thought they were paying for the drilling and testing of wells — but instead paid the executive’s mortgage.

Daniel Walsh, a Galveston oilman, was sentenced to 18 years in state prison on Friday in Wichita County, according to the Chronicle‘s Erin Douglas.

The former CEO of Houston-based Western Capital Inc. had pleaded  guilty to money laundering Wednesday after raising money for the drilling and testing of oil wells in Galveston between 2007 and 2009, but spent the money on his personal expenses instead.

Read the article.

The Texas Utilities Code was recently modified by House Bill 2845 to now require any person who leases land for a wind power facility (grantee) to be responsible for removing its wind power facility at the end of the lease, writes John Clardy, a summer associate at Holland & Knight.

“As part of this obligation, grantees must obtain financial assurance to secure the performance of the grantee’s wind power facility removal,” he explains in the firm’s Energy and Natural Resources Blog. “The new law specifies that land leases for a wind power facility must include particular provisions and voids any waiver that purports to exempt a grantee from the statute. The new law goes into effect on Sept. 1, 2019.”

Clardy added that the “decommissioning process entails clearing, cleaning and removing from the property each wind turbine generator (including towers and pad-mount transformers), each substation, each overhead power and communications line installed by the grantee, and all liquids, greases, or similar substances contained in wind turbine generators and substations.”

Read the article.

The Energy Law Blog of Liskow & Lewis discusses a recent U.S. Supreme Court ruling that could have far-reaching implications concerning wage-and-hour laws for workers on oil and gas platforms located in open water on the Outer Continental Shelf.

Authors Jackie E. Hickman and Thomas J.McGoey II explain the background of the case:

“The plaintiffs in Parker Drilling Management Services, Ltd. v. Newton, were offshore rig workers who filed a class action asserting that their employer violated California’s minimum wage and overtime laws by failing to pay them for stand-by time while they were on the drilling platform. Both parties agreed that the platforms were governed by the Outer Continental Shelf Lands Act (“OCSLA”), but they disagreed regarding whether the California’s wage-and-hour laws were incorporated into OCSLA and therefore applicable to workers on the platform.”

The Supreme Court found that federal law is exclusive and state law only applies where there “is a gap in federal law’s coverage.”

Read the article.

A week after the West Virginia Supreme Court unanimously upheld the property rights of landowners battling one natural gas giant, the same court tossed out a challenge filed by another group of landowners against a different natural gas company, reports Ken Ward Jr. of the Charleston Gazette-Mail.

The article, published on the website of the ABA Journal, is the product of a partnership with the Gazette-Mail, a member of the ProPublica Local Reporting Network.

The court on Monday upheld a lower court ruling that threw out a collection of lawsuits alleging dust, traffic and noise from gas operations were creating a nuisance for nearby landowners.

“In the property rights case last week, the justices set a clear legal standard that natural gas companies can’t trespass on a person’s land, without permission, to tap into gas reserves from neighboring tracts,” writes Ward. “In Monday’s case, the justices didn’t articulate a new legal precedent.”

Read the ABA Journal article.

Seeking bankruptcy and scrambling to complete a $1.3 billion state-mandated wildfire prevention plan, Pacific Gas & Electric will now have to prove that its newly hired directors are fit to transform the mega-utility blamed for starting the 2018 Camp Fire in Northern California, reports Courthouse News Service.

While the new members have “impressive resumes,” said Commission president Michael Picker, it’s not clear they have the safety experience or time to manage the overhaul of a publicly traded utility facing an estimated $30 billion in wildfire liabilities.

Courthouse News Service reporter Nick Cahill writes that many state lawmakers and Gov. Gavin Newsom have been skeptical of the additions, citing the new members’ ties to Wall Street.

Read the Courthouse News article.

Stephen Cooney of Gray Reed, in a post on the firm’s website, provides some analysis of the state of groundwater law in Texas and discusses some of the effects of a Texas Supreme Court case that should now be a concern to land purchasers in every transaction.

In Coyote Lake Ranch, LLC v. City of Lubbock, the court found  that a severed groundwater right would be worthless if the groundwater owner could not enter upon the land in order to extract the groundwater

Under the law now, a petroleum development company can set up a pad, build roads, lay pipeline and start drilling for water, even though the holder of the mineral rights waived the right to come on the property to drill for oil and gas.

Read the article.

A federal judge on Tuesday ordered Pacific Gas and Electric Co.’s board to tour the Butte County community where the company’s equipment is suspected of starting a historically devastating California wildfire last year.

The San Francisco Chronicle reports that “U.S. District Judge William Alsup made the decision at a sentencing hearing he held for the utility regarding a violation of its probation arising from the 2010 San Bruno pipeline explosion. Alsup previously found the utility did not properly report a settlement it reached over a small 2017 fire.”

Alsup said he wanted the energy company executives to “see the gravity of what happened up there” and indicated he likely will join the tour.

Read the SF Chronicle article.

The term “net royalty acre” is used by mineral and royalty buyers to price a mineral or royalty interest that is subject to an oil and gas lease. It is related to, but different from, a “net mineral acre,” explains John McFarland of Graves, Dougherty, Hearon & Moody in the firm’s Oil and Gas Lawyer Blog.

“Mineral buyers often make offers in terms of dollars per net royalty acre. If the recipient of the offer does not know for sure what she owns, it can be difficult to evaluate the offer,” he writes.

In the article, McFarland explains the difference between the two terms and provides formulas that can be used to calculate each one.

Read the article.

Recent court decisions are making it easier for private litigants who believe they have been underpaid royalties under an oil-and-gas lease to ratchet up the pressure on operators by styling their complaints as putative class actions, writes Thomas G. Ciarlone Jr. for Kane Russell Coleman Logan’s Energy Law Today.

“This has the obvious potential to transform nuisance-value lawsuits into headline-making disputes that can involve thousands of lessors seeking a bigger piece of the pie from the working interest,” he explains.

“There could be trouble ahead for operators if the future of royalty disputes lies increasingly within the province of states’ attorneys (with broad powers and vast resources) operating under the auspices of consumer protection laws,” Ciarlone concludes.

Read the article.

A federal judge in North Dakota has dismissed a $900 million defamation and racketeering suit against Greenpeace filed by Energy Transfer Partners, operator of the Dakota Access Pipeline.

Greenpeace was represented in the matter by Lance Koonce, Laura Handman, Lisa Zycherman, and Thomas R. Burke of Davis Wright Tremaine, the law firm said in a release.

District Judge Billy Roy Wilson wrote in his order dismissing the case that, “Posting articles written by people with similar beliefs does not create a RICO enterprise,” and that, “Donating to people whose cause you support does not create a RICO enterprise.”

Last month, the same Davis Wright Tremaine team won dismissal of similar RICO claims lodged against Greenpeace by Resolute Forest Products. That case was heard in the Northern District of California.

“The dismissal of these cases is of enormous importance not just to our clients but to watchdog and advocacy groups of all stripes,” said Koonce. “Because if companies criticized by such organizations were able to bring claims under the guise of RICO, with its treble damage provision, that are really designed to chill speech, it would put critical discourse on issues of public significance at great risk.”

The Environmental Defense Fund has signed contracts with two aerospace companies that will compete for the opportunity to construct the organization’s planned satellite project to quantify and map heat-trapping methane emissions from oil and gas facilities and other man-made sources around the globe.

A post on the Mitchell, Williams, Selig, Gates & Woodyard website quotes Mark Brownstein, Senior Vice President of the EDF energy program:

“Significant reductions in oil and gas methane emissions now can materially lower the rate of global temperature rise in our lifetime. MethaneSAT will give us the data we need to seize this moment.”

Walter G. Wright of Mitchell, Williams describes MethaneSAT “as using the latest scientific and technological innovations in sensor design, spectroscopy, data retrieval algorithms and flux inversions, a state-of-the-art modeling technique to distinguish emissions from ambient methane and trace them back to their source.”

Read the article.