The Texas Supreme Court ruled that a pipeline company could take private property by eminent domain, answering the question of whether or not the pipeline qualified as a “common carrier” under the Texas Natural Resource Code, reports Snell & Wilmer L.L.P. in its S&W Environmental & Natural Resources law blog.

In the article, Rachel M. Lynn explains that, typically, the power of eminent domain is granted to governmental entities rather than private institutions. Under Texas law, however, a common carrier has the right and power of eminent domain.

“The test utilized by the court to determine [the pipeline company’s] common carrier status was whether or not the pipeline would serve the needs of the public, not only those of the builder,” Lynn writes. “To pass this test, the court noted, the pipeline would need to provide reasonable proof of a future customer.”

Read the article.

Join Our LinkedIn Group

As with any energy project,utility-scale battery storage projects present land use, permitting and environmental and health and safety issues, and developers need to anticipate and address these issues to successfully meet project development timelines and goals, according to an article published by Farella Braun + Martell LLP.

“Development-related concerns for utility-scale BESS projects include site consistency with land use and zoning laws, worker safety, security and community safety measures, hazardous waste management and disposal, potential impacts on species and habitat, visual impacts, storm water management, and coordination with generation and transmission facilities,” write David J. Lazerwitz, Chris Locke and Brennan Quinn Bentley. “As with any new project-based technology, the myriad of issues relating to BESS projects are still evolving.”

Read the article.

Join Our LinkedIn Group

Hunton & Williams LLP announces the formation of a global cross-disciplinary legal team to advise corporations and investors on issues related to sustainability and efforts to increase utilization of renewable energy.

In a news release, the firm said this move, which reflects increased client demand for Hunton’s capabilities in these areas, brings together lawyers with global experience in transactional, finance (including “green bonds” and similar programs), corporate, securities, tax, environmental and real estate law to counsel clients on the complex legal issues arising out of participation in the market for renewable energy and related transactions. This initiative also centralizes the firm’s knowledge and experience with data center development and financing.

The release continues:

“Retailers, manufacturers and technology companies are either entering the renewable energy arena for the first time or are significantly bolstering their current positions,” said partner Eric R. Pogue, who heads the firm’s efforts in this space. “This multidisciplinary initiative will focus on the unique legal issues that companies face in meeting their sustainability and clean power procurement goals.”

As part of the firm’s renewable energy practice group, the sustainability and corporate clean power team will counsel corporations and investors on matters related to

– clean power procurement;
– green bonds and similar clean power financing and investment transactions;
– development of sustainable facilities, including data centers;
– tax equity investments;
– joint ventures with renewable energy companies;
– securities law compliance;
– renewable energy certificate (REC) trading;
– project permitting and real estate; and
– environmental law compliance.

The Hunton & Williams global energy practice dates back to the firm’s founding in 1901, and the firm’s experience in the area of renewable energy and clean power started decades before the current global focus on renewable and clean sources of energy. Since these beginnings, the firm’s renewable energy and clean power practice has grown and evolved to meet the changing needs of clients in this dynamic sector of the energy market.

Nuclear plants, which today provide 20 percent of U.S. electric power and 62 percent of U.S. carbon-free electric power, are disappearing – through closures and early retirement – at a faster rate than the EPA forecasted due to a variety of economic, regulatory and political factors, according to an article published by FTI Consulting Inc.

Compliance with the federal Clean Power Plan would require increased reliance on new natural gas, wind and solar capacity will need to be installed to replace the dwindling nuclear power capacity, resulting in higher electricity prices.

A study by FTI Consulting found that current nuclear capacity would need to be preserved for the CPP’s goals to be achieved without a significant rise in wholesale electric prices, especially in the Eastern Interconnection.

Read the article.

As oil prices remain volatile, trade secret and intellectual property protection continues to be a key component of ensuring profitability, according to Orrick’s Trade Secrets Watch. But the law in this area may be evolving quicker than industry insiders would like.

The article discusses a Pennsylvania case, Robinson Township v. Commonwealth, that may make it more difficult for some energy companies to protect the trade secret status of some of their most valuable information. In that case, the Pennsylvania Supreme Court struck down several remaining provisions of the state’s controversial P.L. 87 legislation, the Pennsylvania General Assembly’s short-lived and controversial attempt in 2012 to provide uniform laws and regulations governing oil and gas development in the Commonwealth.

“At the national level, the story is consistent with Pennsylvania’s — in the sense that the law and its direction remains variable,” the article says.

Read the article.

Skadden, Arps, Slate, Meagher & Flom’s Energy Regulation and Litigation Group has produced the fourth edition of the Skadden Energy Law Handbook, which includes a summary of recent developments.

On its website, the firm says the handbook contains 16 chapters covering a broad range of issues arising in the context of FERC, CFTC and antitrust regulation of the energy sector (e.g., market manipulation, merger review, electric reliability and open access transmission tariffs, among others).

The updates cover such topics as compliance programs, audits and investigations, criminal and civil penalties, FERC market manipulation enforcement, CFTC regulation, antitrust enforcement, reliability, affiliate rules, natural gas, false statements, and more.

Download the handbook.

Mining giant Rio Tinto PLC said it fired one of its most senior operational executives and its head of legal and regulatory affairs based on the findings from a continuing internal probe into $10.5 million in payments to a consultant who helped acquire mining rights in Guinea, reports The Wall Street Journal.

The two executives are  energy and minerals chief executive Alan Davies and legal and regulatory affairs group executive Debra Valentine.

The company is reported to be investigating emails related to payments to a consultant who helped to acquire rights to mine the prized Simandou iron-ore deposit. Rio Tinto has notified law enforcement officials and regulators, including the U.S. Justice Department, the U.S. Securities and Exchange Commission and the U.K.’s Serious Fraud Office, writes Rhiannon Hoyle.

Read the WSJ article.

S&P Global Platts has posted a free on-demand webinar taking a look at the potential impact the recent presidential election could have on petroleum, natural gas, power and metals.

The webinar covers:

• Impact on oil and gas markets
  • Arctic and Atlantic Coast production
  • The future of fracking
  • Pipeline projects – will they get built?
  • Supply/demand implications
• Impact on metals markets
  • US infrastructure impact on steel
  • What to do about “steel dumping”?
  • Economic uncertainty and gold
• Impact on renewables and environmental regulations
  • Is the War on coal over?
  • Buildout of renewable power generation
  • The future of biofuels

View the on-demand webinar.

Two new opinions, one from the San Antonio Court of Appeals and one from the El Paso Court of Appeals, again tackle the task of construing mineral and royalty conveyances and reservations, reports John McFarland in his Oil and Gas Lawyer Blog.

He explains that many such cases have arisen as a result of recent shale plays, where lands never before productive have suddenly become valuable, leaving courts have to clear up muddy deed language.

In his blog post, he discusses Laborde Properties, L.P. v. U.S. Shale Energy II, LLC and Greer v. Shook.

Read the article.

ScottMadden, Inc., an energy consulting firm, recently released its Fall Energy Industry Update.

On its website, ScottMadden says this issue focuses on strategic drivers that are propelling the industry like nuclear challenges, changing energy supply and demand patterns, and federal-state policy friction:

• Nuclear Challenges and Responses: Low natural gas prices, challenging capacity markets, continuing investment needs, and weak carbon price signals are putting pressure on existing nuclear plants, especially in competitive markets. What are the risks and implications?
• The Duck Curve: Everyone talks about the duck curve, but what really drives it? Our analysis confirms the duck curve is real and growing faster than expected. In addition, we found some interesting, unexpected, and important nuances. It turns out that the conventional wisdom is not supported by the data.
• Emerging Federal-State Policy Friction: Historically, the boundary between federal and state jurisdiction in the wholesale and retail energy markets has been called “a bright line.” Was it? Is it? How is this unfolding, and what does it mean?

Download the update.

Attorneys representing oil and gas royalty owners with interests in the Texas Eagle Ford Shale have filed a federal lawsuit against Talisman Energy USA Inc. based on claims that the company manipulated oil and gas production volumes by as much as 20 to 30 percent and consistently shorted royalty payments, according to a news release posted by Androvett Legal Media and Marketing.

Attorneys from Texas-based Provost Umphrey Law Firm, L.L.P., are representing Eugene and Kimberly Cran of DeWitt County in their claims against Warrendale, Pennsylvania-based Talisman.

The article explains how a change in the operating agreement between Talisman and  Norway-based energy company Statoil in the Eagle Ford joint venture resulted in the Crans receiving monthly checks from both companies. But the production numbers accompanying the checks didn’t match — with Talisman reporting smaller total production.

Read the news release.

Image by Mike Mozart

New York Attorney General Eric Schneiderman is investigating why Exxon Mobil Corp. hasn’t written down the value of its assets, two years into a pronounced crash in oil prices, reports The Wall Street Journal.

Schneiderman’s office already is looking into Exxon’s past knowledge of the impact of climate change and how it could affect its future business.

“Since 2014, oil producers world-wide have been forced to recognize that wells they plan to drill in the future are worth $200 billion less than they once thought, according to consultancy Rystad Energy,” reports Bradley Olson. “Because the fall in prices means billions of barrels cannot be economically tapped, such revisions have become a staple of oil-patch earnings, helping to push losses to record levels in recent years.”

But Exxon is the only major oil producer not to take any write-downs, leading some analysts to question its accounting practices,” Olson writes.

Read the article.

Dozens of law professors banded together to assail a federal court’s recent decision striking down the Obama administration’s hydraulic fracturing rule, according to a report in E&E Publishing’s EnergyWire.

The report says 36 energy, public lands and environmental law experts filed a friend-of-the-court brief with the 10th Circuit, arguing that the U.S. District Court for the District of Wyoming got it wrong when it found fracking to be beyond the authority of the Interior Department and its Bureau of Land Management.

“The lower court’s decision has no basis in legal precedent or relevant statutes and violates basic canons of statutory interpretation,” the professors told the 10th U.S. Circuit Court of Appeals, which is reviewing the decision. “It reads a sweeping government-wide exclusion into a surgical amendment explicitly tied to one statute. As a result of this decision, the BLM cannot fulfill its statutory mandate to serve as the chief steward of our public lands.”

“In particular, the professors take issue with the lower court’s interpretation of the Safe Drinking Water Act, as amended by the Energy Policy Act of 2005,” writes E&E Publishing reporter Ellen M. Gilmer.

Read the article.

Horizontal wells drilled across lease lines were clearly not contemplated in a typical oil and gas lease, and lessors should not be forced to accept a formula for royalty payment to which they have not agreed, advises John McFarland of Graves Dougherty Hearon & Moody in an article published in Oil and Gas Lawyer Blog.

His article discusses some recent articles published on the subject of allocation wells. He describes an allocation well as one “that crosses one or more lease lines and that produces from more than one lease without pooling those leases and without any agreement with the royalty owners as to how production will be allocated among the leases crossed by the well.”

“Whether or not one calls it pooling, allocation of production from a well drilled across multiple tracts is a method of sharing production among the owners of those tracts. In Texas, that cannot be done without the lessors’ agreement,” he continues.

Read the article.

“While each crisis is unique, proper preparation can stabilize the situation and mitigate potential liability and damages,” the firm says. “A particular area of focus should be the preparation of an incident investigation report – when to prepare a report, who should prepare a report, how the report should be prepared and what may happen with the report in subsequent litigation.”

Watch the on-demand video.

BP Plc faces more than $20 million in penalties and surrendered profits after a U.S. regulator found that the energy giant manipulated commodity markets in Texas, according to a report by Bloomberg and published by The Business Times.

The case dates back to 2008, when — according to the Federal Energy Regulatory Commission — BP rigged prices at a Texas natural gas hub.

The order upholds an earlier ruling by the agency’s judge. BP had denied the allegations, Bloomberg reports.

“We find the violation here to have been very serious,” the commission said. “BP manipulated the market to profit from a natural disaster, and it did not stop after a trade or two but rather kept the scheme going for nearly three months.”

Read the article.

With U.S. crude almost doubling in price since February and natural gas gaining about 38 percent just since May 26, stakeholders in at least three bankrupt energy companies are contending that corporate assets have risen so much in value that they deserve a bigger payout, reports Bloomberg News.

The news service, citing a letter by its reporter, says that “Sabine Oil & Gas Corp.’s unsecured creditors and note holders of Forest Oil Co., which merged with Sabine in 2014, filed a report last week seeking a jump in recoveries. Shareholders of bankrupt driller Penn Virginia Corp. questioned current valuations, while Ultra Petroleum Corp. shareholders, who are the first to be wiped out in a bankruptcy, said earlier this month that they are “very likely ‘in the money.’”

Sabine creditors creditors are claiming the company is ignoring the recent increase in oil and gas prices to inflate the amount paid to the secured lenders at the expense of junior ones.

Read the article.

Photo by NY Photographic

It is estimated that roughly 300 upstream energy companies will file for bankruptcy in 2016, and many management teams are curious about hedging alternatives during the restructuring and bankruptcy process, write Ryan Bouley & Shane Randolph, Managing Directors at Opportune LLP.

“There are various alternatives management teams can take with their hedging programs, ranging from full liquidation to actually increasing hedge coverage,” they write.

In an article posted on Opportune’s website, they discuss the purpose of an effective risk management program, what typically happens to hedges during the bankruptcy process, and the hedging alternatives for a distressed company.

Read the article.

A coalition of U.S. state attorneys general received guidance from well-known climate scientists and environmental lawyers in March as some of them opened investigations into Exxon Mobil for allegedly misleading the public about climate change risks, documents seen by Reuters showed, Reuters is reporting.

The report says Peter Frumhoff of the Union of Concerned Scientists, which has urged action on climate change, and Matt Pawa, who litigated against Exxon in a global warming case, were listed as presenters at a March 29 meeting of more than a dozen state prosecutors. That information came from emails between the offices of attorneys general in New York and Vermont.

Environmental groups are pushing in court, at the U.S. Securities and Exchange Commission and in the offices of pension funds to demand more accountability on climate issues from big oil companies,” the report says.

Read the article.

Twenty-four states are suing to block the Obama administration from implementing its new clean power regulations — the cornerstone of a promise that the United States will reduce greenhouse gas emissions to limit global warming, but some Texas energy companies are not as unanimous in their opposition. That’s because Texas’ energy sector is transforming rapidly, reports Mose Buchele for NPR.

“We really see what we are promoting as a very Texas way to do this,” says Brett Kerr, a lobbyist and spokesperson for Houston-based Calpine Energy, the largest independent power producer in the country. Kerr says Calpine consumes 15 percent of the gas produced in Texas.

Read the article.