Articles Posted in Oil and Gas Law

Although I am primarily a Texas oil and gas attorney, I am interested in all energy sources, and I am especially interested in the ongoing national discussion about what are called alternative energy sources. One of the hottest topics in the world of energy is the discussion of alternatives to fossil fuels. While the definition of “alternative energy” has changed over time, the discussions today center on energy sources other than oil, gas and coal, and include such energy sources as solar, wind, biomass, hydrogen, and geothermal energy. These discussions are presumably driven by concerns over America’s dependence on imported oil and the effects of allegedly manmade climate change. Often, advocates of alternative energy sources make extravagant claims when touting their alleged benefits when compared to fossil fuels. One alternative energy website says that alternative energy sources “have no undesired consequences”; in fact, some people claim that alternative energy sources “are renewable and are ‘free’ energy sources.” The move from traditional to alternative energy sources is not only touted as the solution to a whole host of environmental problems, but the Obama administration says the “green jobs” resulting from this shift are a key to economic recovery and the basis of a strong middle class.

Alternative energy sources seem to offer the world a future environment free of the deleterious effects of obtaining and burning fossil fuels and an economy growing rapidly and unfettered on the back of unlimited and free (e.g. no cost) energy and a green jobs revolution. It sounds almost too good to be true.

The question is: is it? Is alternative energy a “no cost” solution to all our environmental, energy, and economic problems? Well, as Robert Heinlein popularized in his classic science fiction novel, The Moon is a Harsh Mistress, TANSTAAFL (“there ain’t no such thing as a free lunch.”). Everything comes with a cost-even in the Brave New World of alternative energy. These costs seem to get lost in the hype.
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As the price of oil creeps back up, the pace of oil and gas leasing has picked up as well. As a Texas oil and gas attorney, I regularly get calls from folks who ask me why they should go to the expense of having an attorney review their oil and gas lease. Here are the reasons I hear for not consulting an attorney, and my response to each, explaining why consulting an attorney is important:

1. “The landman told me that the lease was just a standard form”. Watch my lips on this one: there is no such thing as a standard oil and gas lease. The landman may have meant that the lease they offered was standard for that particular landman, or for the particular oil company the landman was representing. However, there is simply no such thing these days as a standard, industry-wide form.

2. “The lease did not look that complicated”. If you are not an oil and gas lawyer, do you really know what the terms in that lease mean? Do you know when words in the lease have one meaning in ordinary use and another meaning in the oil and gas industry? Even more important: do you know what’s missing?

As a Texas oil and gas lawyer, I have followed with interest the proposals to add new regulations for onshore, as well as offshore, drilling in the wake of the Gulf of Mexico oil spill. Several initiatives to tighten federal regulation of offshore drilling are making their way through the halls of Congress. These bills are perhaps inevitable, considering the magnitude of the spill, the confused federal and BP response to the spill and the adverse public reaction to both the spill and the subsequent mitigation and clean up efforts. At the same time, however, environmental groups and some in Congress are using the push for new offshore drilling regulations to call for tighter federal rules for onshore oil and gas drilling. These new regulations are designed to make it more difficult for oil and gas companies to start drilling in the first place, and to more closely monitor their post-drilling operations for alleged threats to public health and the environment.

It’s perhaps a little too simplistic to blame the BP spill for the new regulatory push onshore. Given the Obama administration’s stated goals of favoring alternative energy and the environment over the pro-drilling energy policies of the Bush administration, perhaps new regulations were inevitable. But the debate appears to have taken on greater urgency in some quarters. As Kevin Book of Clear View Energy Partners says (referring to shale drilling), “the perception of risk has changed, and the reason for it can be summed up in one word-Macondo.”

The first signal of new regulations to come surfaced in May, when Interior Secretary Ken Salazar announced tighter regulations for oil and gas drilling on public lands. These new rules make it much more difficult for oil and gas companies to obtain drilling approval, and drilling on certain public lands would require a period of public comment. While environmental groups praised the regulations as reversing the allegedly destructive Bush administration drilling policies, the Independent Petroleum Association of the Mountain States (now the Western Energy Alliance) stated in a press release that the new rules would “delay the development of clean, domestic natural gas on Western federal lands.”The desire for tighter regulations focused Congress’ attention on two bills introduced over a year ago. One, the Consolidated Land, Energy, and Aquatic Resources Act (the CLEAR Act), passed the House on July 30, 2010 and went to the Senate. Among other things, the bill requires oil and gas companies engaged in drilling on federal lands to adopt “best management practices” designed to minimize threats to health and the environment; requires public disclosure of the chemicals used in drilling or hydraulic fracturing (often referred to as “fracing” in the oil industry or “fracking” by the media); and repeals 2005 legislation allowing companies to drill on public lands without a full environmental review process. Another bill, the Fracturing Responsibility and Awareness of Chemicals Act (the FRAC Act), originally introduced last summer, specifically targets the practice of hydraulic fracturing by removing the exemption of the practice from regulation by the EPA under the Safe Drinking Water Act. This bill and a companion bill introduced at the same time in the Senate have never come up for a vote. Similar language was stripped from the CLEAR Act, but the Clean Energy Jobs and Oil Company Accountability Act, introduced in the the Senate by Majority Leader Harry Reid (D-Nev.) would require companies to make their fracing formulas public on the Internet.

As a Texas oil and gas attorney, I have had occasion from time to time to observe the environmental, administrative and legal ramifications of an onshore oil spill, usually caused by vandalism or malfunctioning equipment. Along with everyone else in the world, I am horrified as the tragedy in the Gulf of Mexico unfolds, and along with everyone along the Gulf, I am intensely frustrated that the spill has not been stopped yet.Something else, besides the damage to persons, property and the environment, concerns me. Specifically, there is a lynch mob mentality about BP that has this country in its grip. They have been tried and found guilty in the court of public opinion, and the tar and feathers await.

I am not going to defend BP. They have a long history of regulatory problems. Moreover, from what we know so far, it appears that a couple of very stupid and very negligent decisions by BP may have caused this disaster. However, as John Adams famously said in the Novanglus Essay No. 7, we are “a government of laws, not of men.” We also live under state and federal constitutions that promise that we are innocent until proven guilty. Nothing about the cause of this spill or who is responsible has been proven yet. We would be better served by focussing our attention on stopping the spill at this point, rather than flogging BP.

As a Texas oil and gas attorney, I regularly get calls from folks who, long after they have signed an oil and gas lease, are upset with an oil and gas company for something the company is doing or not doing. In most cases, once we review the oil and gas lease, it becomes obvious that they have already given permission for the oil company to do what they are doing in the language of the lease they signed.

I customarily ask these folks why they did not have an attorney look at the lease before they signed it. I have been making a list of the reasons they give. Here are the reasons I hear most often, and my response to each one:

1. “The landman told me that the lease was just a standard form”. Watch my lips on this one: there is no such thing as a standard oil and gas lease. The landman may have meant that the lease they offered was standard for that particular landman, or for the particular oil company the landman was representing. However, there is simply no such thing these days as a standard, industry-wide form.

As a Texas oil and gas attorney, I have viewed the “global warming” debate with growing alarm. When the United Nations International Panel on Climate Change (“IPCC”) initially issued its fourth report, I was concerned because the IPCC is made up primarily of politicians, not scientists. Next, I read the report thoroughly and then did my own research. My independent research led me to the conclusion that the IPCC’s findings were in large part: 1) based on no research at all; 2) were based on non-peer-reviewed research; or 3) illogical, tenuous or unjustified extrapolations from unrelated research. Despite these problems with the report, large numbers of people wanted to join the IPCC and Al Gore in proclaiming that global warming was caused by manmade greenhouse gases. It is even more alarming at how many people continue to chant this mantra, even after the flawed science (or lack of science) behind the IPCC’s report has been revealed.Recent news has demonstrated to an even greater degree just how ill-conceived, biased and misguided the IPCC’s report was. Notwithstanding the evidence of how flawed the IPCC’s report is, the EPA, at the direction of the Obama Administration, has sought to treat greenhouse gases as toxic, and to regulate them.

Major industries in Texas, including agriculture and oil and gas production, unquestionably produce some carbon dioxide. The idea of regulating the greenhouse gases, and in particular, the CO2, produced by these industries as a toxic substance is irresponsible, however. Not only is this kind of regulation misguided and politically motivated, the economic costs of regulation could be staggering, especially in this recession. Why would the federal government want to beat on us when we’re down??

It is especially heartening to see the Texas Governor, Rick Perry, take on the EPA by bringing suit to stop EPA from regulating greenhouse gases in Texas. Many of us are cheering for him!

Texas oil and gas attorneys and mineral owners may see more leasing activity in 2010 in the Eagle Ford Shale, a field in southern Texas that oil and gas companies have known about for some time, but that is just now being explored. The field is named after the city of Eagle Ford, Texas, hometown of Bonnie Parker of “Bonnie and Clyde” notoriety. (The city of Eagle Ford was incorporated into the City of Dallas in 1956).

Several oil and gas operators, beginning with Petrohawk Energy Corporation, and including many of the larger companies (Anadarko Petroleum Corporation, XTO Energy Inc., Chesapeake Energy Corporation and several others), are quietly signing up leases and drilling exploratory wells. The “word on the street” is that the cost of drilling a gas well in the Eagle Ford Shale may be substantially less than in the Barnett Shale or the Haynesville Shale, although drilling in the heavy clay present in portions of the Eagle Ford shale presents its own challenges.

The Eagle Ford Shale underlies large portions of Texas, but it doesn’t always contain gas. Currently, leasing appears to be limited to Colorado, Dewitt and Karnes Counties. Other counties that may see leasing activity include Bee, Dimmit, Goliad, LaSalle, Lavaca, Live Oak, McMullen, and Webb Counties. An increase in the price of gas (which, given the large amount of current reserves, probably won’t happen for a while) would certainly accelerate activity in this play.

As a Texas oil and gas attorney, I have observed that it has been a slow year so far for leasing and drilling activity. But some experts are predicting a change on the horizon for 2010. An article this morning by Jamaal O’Neal in the Longview-Journal.com quotes Professor Ken Morgan, Texas Christian University geology professor and director of the TCU Energy Institute, as saying that higher oil and gas prices may be ahead for 2010. The article quotes research by Baker Hughes that natural gas, which was selling for $10.00 per thousand cubic feet or more in mid 2008, is currently selling for as low as $3.60 per thousand cubic feet. A barrel of crude oil that sells for about $69.00 currently, was bringing $150.00 a barrel during the summer of 2008. Professor Morgan opines that the large amount of natural gas reserves, as well as the world-wide recession, has kept prices for oil and gas low.

Basic economics dictates that when prices are low, oil and gas companies are reluctant to expend the large sums necessary to drill new wells. They are not going to make the investment if they can’t get a return. As the world economy recovers, demand for oil and gas will increase, the price of oil and gas will increase and the drilling of new wells will once again generate sufficient returns to support the cost of drilling. Once oil and gas companies begin to drill again, mineral owners will begin to get calls from landmen working for the oil and gas companies, seeking new leases. I may be a bit optimistic, but I see leasing and drilling activity in Texas picking up by March and April 2010.

As a Texas oil and gas attorney for many years, I have seen many booms come and go. During a “boom” period, prices for oil and gas increase. The increase in prices encourages exploration of new sources of oil and gas and development of existing sources. Mineral owners tend to see much more leasing activity during boom periods, and oil and gas companies are much more amenable to entering into leases that are fair to both mineral owner and operator. Conversely, when prices of oil and gas are low, exploration and development sags, leasing activity falls off and when a mineral owner is offered a lease, it is usually a very one-sided lease that favors the oil and gas operator and is very unfair to the mineral owner.We are just coming off a very down period for oil and gas exploration and development in many areas of Texas. I have counseled many mineral owners over the years during these down periods who were offered leases that were, frankly, onerous. In most cases, my client decided to decline the oil and gas company’s offer, and await a better offer. So far, each of these owners was ultimately offered a better deal, a fairer lease, and a lease with better compensation for their minerals because they waited.

As in life, there are no guarantees in the oilpatch. For example, there is no guarantee that you will be offered another lease, although it is certainly likely that you will. There are some cases in which even a poor lease might be better than no lease at all, especially if you are faced with a situation where your minerals may be drained without compensation if you don’t execute a lease. It is also important to realize that even in boom markets, you don’t always get everything you want in a lease. It is always a matter of give and take. Frankly, only someone experienced in this area can give you the input to help you make an informed judgment about whether to lease or not, and if you do lease, on what terms.

Any Texas oil and gas attorney who has practiced for any length of time has been through the cycle many times: oil prices go up, and leasing and drilling activity increases. Oil and gas prices decline, and many oil and gas companies pull back on their leasing and drilling efforts. The past year has seen an especially extreme example of this cycle. Last summer, according to WTRG Economics, the price the operator received for oil in some areas of Texas reached $150.00 per barrel or more. According to the Energy Information Administration (a division of the Department of Energy), gas was going for $8.00 per mcf at the wellhead in some places. Leasing was going on at a frantic, almost giddy, pace and substantial primary term payments and royalty percentages were the norm. Then prices declined sharply, to less than $30.00 per barrel of oil and $3.00 per mcf for gas at the wellhead in many areas of Texas. Most operators pulled way back, some walking away from signed leases and others signing leases only at substantially reduced bonus and royalty levels.

Now the price of oil and gas is increasing, and phoenix-like, the Texas energy industry begins to rise from the ashes. This time, there are some dark clouds on the horizon, coming in from our nation’s capitol, that do not bode well for the energy industry. President Obama, while proclaiming that he wants to achieve independence from foreign oil sources, is considering two things that would cripple our domestic oil and gas industry. Specifically, he wants to eliminate intangible drilling costs and depletion allowance as deductions for oil and gas operators on their federal income tax. He wrongly calls these “subsidies”, in an attempt to gain support for this policy.The deduction for intangible drilling costs allows oil and gas companies to deduct the cost of exploring for oil and gas from later oil and gas income. These costs include such things as seismic tests, surveys, engineering fees, wages, etc. The intangible drilling cost deduction encourages oil and gas companies to explore for new energy sources. The depletion allowance allows oil and gas companies to deduct a portion of the value of their mineral deposits as those deposits are used up, just as the owner of a machine used to produce goods is allowed to depreciate his machine.

It took decades for the domestic energy industry to recover from the ill-conceived, poorly timed and wrongly executed policies of Jimmy Carter. President Carter’s policies drove many smaller companies out of business, and encouraged other producers and refiners to move outside of the United States. When we experience those times of high gasoline prices in the United States, it is primarily Carter that we have to thank. Unfortunately, we now seem to have another President headed down this same irresponsible path.The announced policies of Obama are bad policy policy for at least four reasons: 1) most energy production in this country comes from small, independent companies, not “big guys” like Exxon or Mobil, and these small companies are going to be hurt badly by this policy; 2) these policies will result in much higher prices at the pump for consumers, who are having a hard enough time already; 3) Carter’s policies drove the “big guys” overseas, and now Obama’s policy would diminish the remaining independents; and 4) the higher energy prices will contribute in a big way to inflation. Is this really the way to achieve energy independence? I think not!