Overview of Legal Issues and Litigation Arising from Shale Gas Development and Fracking

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1 S T R A T E G I C L I T I G A T I O N F O R A C O M P L E X W O R L D SM Houston Dallas Austin New Orleans San Antonio Overview of Legal Issues and Litigation Arising from Shale Gas Development and Fracking Presented by John K. Broussard & James E. Rogers Copyright 2011 Beirne, Maynard & Parsons, L.L.P. All Rights Reserved.

2 Outline / Summary Importance of development Issues unique to fracking Legal Claims being made Future Legal Concerns Legislation 2

3 Importance of Development: Meeting demand Source: U.S. Energy Information Administration; AEO2011 Executive Summary 3

4 Edit Slide Importance Headingof Development : Where 4

5 Outline / Summary Importance of development Recurring / Unique Issues in Shale Gas development 5

6 Issues Presented by Shale Gas / Fracking Real and Perceived Issues Water Use / Disposal Environmental Issues: Politicians speak out New technology New areas of use 6

7 Water Use / Disposal

8 Water Use / Disposal

9 Water Use / Disposal

10 NY State Senator Kevin Parker (D) 10

11 Outline / Summary Importance of development Issues unique to fracking Legal Claims being made 11

12 Who is involved? Repeat players Allen Stewart, P.C. (Dallas, Personal Injury) Arnold & Itkin, LLP (Houston, Personal Injury and General Litigation) Claunch Law Firm (Fort Worth, Personal Injury) North Texas Litigation Group (Dallas, Texas) (consists of Petroff & Associates, Riddle & Williams, P.C., and Mathis & Donheiser, P.C.) Turley Law Firm Dallas, Texas (Personal Injury) 12

13 Current / Recent Texas cases Trio of Barnett Shale contamination cases Plaintiffs counsel in all three is the Turley Law Firm. 1. Scoma v. Chesapeake Energy Corp.; Plaintiffs (husband and wife homeowners) claim orange/yellow coloring of the water, bad taste, and foul odor. Plaintiffs allege increase in the concentration of benzene, toluene, ethylbenzene, xylene, barium, and iron in their water. 2. Mitchell v. Encana Oil & Gas (USA), Inc. Plaintiff alleges that her well water began to feel slick to the touch and give off an oily, gasoline-like odor in May Harris v. Devon Energy Production Company, L.P. Plaintiffs allege water from two wells on plaintiff s property became contaminated in April 2008 with a gray sediment. Plaintiffs claim to have testing results showing water contamination with high levels of metals. 13

14 Current / Recent Texas cases Range Resources / EPA litigation Dec. 7, 2010: the EPA issued to Range Resources an emergency administrative order pursuant to Safe Water Drinking Act ( 1431) finding an imminent and substantial endangerment to public health. January 18, 2011: EPA sued Range in Federal Court to enforce its order. March 7, 2011: TRRC issued a proposal for decision (PFD) finding that Range s operations have not caused or contributed to the contamination of the domestic water wells. June 20, 2011: the District Court stayed the case until the Fifth Circuit made a ruling on the Range s Petition, which presents similar issues of fact and law. October 3, 2011: Fifth Circuit held oral argument (Judges Reavley, Elrod, and Graves). 14

15 Current / Recent Texas cases Costal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d. 1 (Tex. 2008) Holding: Rule of capture prevents royalty interest owners from recovering damages against well operator based upon trespass claim under Texas law. The court, however, did not rule out the possibility of a breach of implied lease or breach of implied covenant to produce claim--only ruling that there was no evidence on the record to support such a finding. The court did not make clear exactly what evidence would be required to make such a claim. 15

16 Current / Recent Texas cases FPL Farming Ltd. v. Environmental Processing Sys., No (Tex. Aug. 26, 2011) The Injection Well Act and Texas Administrative Code do not shield permit holders from civil tort liability resulting from actions governed by the permit. Merely having a permit is not a shield from trespass claims. (Overturned a Court of Appeals opinion on this issue.) The court avoided the issue of whether subsurface wastewater migration can constitute a trespass and whether it did so in this case. 16

17 Other Legal Claims Across U.S. Northeast Natural Energy, LLC v. Morgantown (Monangalia County, West Virginia) City of Morgantown s ban on hydraulic fracturing overturned Cabot case Federal Court (Middle District of Pennsylvania) Plaintiffs (63 individuals) reside in Dimock and Montrose, PA. Anschutz case -- New York state court, Chemung County Plaintiffs (9 families in the Elmira, New York area) claim that fracking operations contaminated drinking water 17

18 Outline / Summary Importance of development Issues unique to fracking Legal Claims being made Future Legal Concerns 18

19 Edit Slide Future Heading Legal Claims

20 Edit Slide Future Heading Legal Concerns Water Contamination / Pollution Claims Eminent Domain Actions Local Government Lawsuits & Ordinances Federal State & Citizen Group Action Water Contamination Claims Toxic Exposure Injury Claims Plaintiffs attorneys have made it clear that they intend to exploit this niche market particularly given the recent press regarding the documentary Gasland. Contract & Business Tort Suits among Producers, Operators, Service Companies, Transporters, Contractors & Purchasers Person Injury & Property Damage Claims from Operations Lease & Mineral Rights Contract & Fraud Claims

21 Edit Slide Future Heading Legal Concerns Lease and Mineral Rights Contract and Fraud Claims Water Contamination Claims Toxic Exposure Injury Claims Federal State & Citizen Group Action Person Injury & Property Damage Claims from Operations Lease & Mineral Rights Contract & Fraud Claims Contract & Business Tort Suits among Producers, Operators, Service Companies, Transporters, Contractors & Purchasers Eminent Domain Actions The Texas and Oklahoma courts have not completely ruled out the possibility that improper actions in fractioning natural gas wells could lead to claims for breach of a covenant for damages other courts may follow suit. Most of the existing shale gas lawsuits are traditional oil & gas lease disputes (cancellations, underpayment of royalties, cancellation / loss of drilling rights) Local Government Lawsuits & Ordinances

22 Edit Slide Future Heading Legal Concerns Contract and Business Tort Suits Person Injury & Property Damage Claims from Operations Toxic Exposure Injury Claims Lease & Mineral Rights Contract & Fraud Claims Contract & Business Tort Suits among Producers, Operators, Service Companies, Transporters, Contractors & Purchasers Eminent Domain Actions Disputes regarding: A. Oil and gas field service contracts B. Construction contracts C. Joint venture agreements D. Transportation agreements E. Oil, gas and liquids purchase and sale agreements Water Contamination Claims Federal State & Citizen Group Action Local Government Lawsuits & Ordinances Every manner of contract and business tort dispute should be anticipated.

23 Edit Slide Future Heading Legal Concerns Local Government Lawsuits & Ordinances Local Government Lawsuits and Ordinances Continued Political and Legal Efforts from Environmental Activists (i.e. Nofracking.com) Eminent Domain Actions Contract & Business Tort Suits among Producers, Operators, Service Companies, Transporters, Contractors & Purchasers Federal State & Citizen Group Action Water Contamination Claims Barnett Shale examples: A. Titan Operating sues the City of Flower Mound for denial of setback variances. B. DFW area cities tighten drilling ordinances. Lease & Mineral Rights Contract & Fraud Claims Person Injury & Property Damage Claims from Operations Toxic Exposure Injury Claims Another Range Resources situation

24 Outline / Summary Importance of development Issues unique to fracing Legal Claims being made Future Legal Concerns Legislation 24

25 Federal Legislation Congress and EPA recently have suggested that federal oversight of hydraulic fracturing operations might be warranted. i. Proposed FRAC Act ii. The Clean Energy Jobs & Oil Accountability Act 2010: Requires disclosure of chemical constituents similar to the disclosure required by the proposed FRAC Act. iii. Continued / Threatened EPA Action EPA studying relationship between hydraulic fracturing and drinking water contamination; final report in

26 State Legislation Colorado Wyoming Arkansas New York Pennsylvania West Virginia Louisiana Texas 26

27 FracFocus.org

28 Proposed Texas form

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