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  1. Proposed Waters of the U.S. Rule Changes the Question for Adjacent Wetlands

    Monday, April 7, 2014 12:55 pm by

    Prairie Pothole Wetlands
    Last week we discussed various elements of the U.S. EPA’s and Army Corps of Engineers’ proposed rule redefining Waters of the United States.  Today, we note a potentially wide-ranging impact of the rule regarding the identification of wetlands.

    Wetlands can be difficult for laypersons to identify, as some are wet for as little as 5-12% of the growing season. In mountainous areas of northern states, that can be as little as 4 days, so for much of the year they can be completely dry.  But wetlands are regulated like other waters and require a permit before they can be disturbed.  As a result, the greater the acreage of jurisdictional wetlands there are on a particular property, the more complex the permitting process will be. (more…)


  2. Texas One Step Closer to Obtaining Authority to Issue GHG Air Permits

    Monday, March 31, 2014 11:27 am by , and

    As anticipated, on March 26, 2014, the Texas Commission on Environmental Quality (TCEQ) adopted rules to implement House Bill 788, which required the Commission to establish greenhouse gas (GHG) emissions rules.  The new rules will become effective on April 17, 2014.

    This action is one more step in the process of transitioning GHG Prevention of Significant Deterioration (PSD) permitting authority from EPA to TCEQ.  These regulations come on the heels of EPA publishing a proposal to approve the Texas GHG PSD revisions to the Texas State Implementation Plan (SIP) in 79 Fed. Reg. 9,123 (Feb. 18, 2014).  Two more steps remain: (1) EPA needs to approve TCEQ’s rules and (2) EPA must rescind the Federal Implementation Plan (FIP), the federal rules that currently authorize EPA to issue GHG permits for projects located in Texas. (more…)


  3. Recent Legal Developments in the Roaring Utica Shale

    Friday, March 28, 2014 3:14 pm by

    Ohio’s Utica Shale has been one of the hottest shale plays in the nation over the past six to nine months and in the midst of the impressive amount of activity (both from a transactional and operational standpoint) practitioners (and their clients) are dealing with several recent court decisions that have had and will continue to have impacts on the development of this play.  

    American Energy Partners LP, (“AEP”) the company led by Aubrey McClendon, the former Chesapeake Energy Corp. Chief Executive Officer, has led the way in acquiring acreage in the Utica over this period.  With purchases from Hess Corp. (“Hess”) (74,000 acres) and Exxon Mobil Corp. / Paloma Partners LLC (56,000 acres), it is estimated that AEP has close to 300,000 acres in the region.[1]  These acquisitions are just the latest in a series of purchases AEP has making in the area over the past two years.  (more…)


  4. Oklahoma Enters the Fray of Endangered Species Sue-and-Settle

    Monday, March 24, 2014 4:14 pm by and

    On March 17, 2014, the State of Oklahoma sued the U.S. Department of the Interior, taking aim at the U.S. Fish and Wildlife Service’s habit of settling large Endangered Species Act cases with Environmental Non-Governmental Organizations. The lawsuit signals an important escalation in the fight against such settlements. ESA lawsuits have become a key tool to prevent or delay project development activities, including in the oil and gas industry.

    Over the last several years, FWS has repeatedly settled NGO lawsuits with consent agreements in which FWS commits to prioritize the NGOs’ chosen species for potential listing – and on a fixed timetable. The largest settlement resulted in FWS agreeing to examine 455 different species over the course of five years.

    lawsuithighlights several additional concerns with these settlements, including: (more…)


  5. Hydraulic Fracturing Trade Secrets at Risk in Wyoming

    Monday, March 17, 2014 3:28 pm by and

    One of the more hotly debated issues since the shale gas boom started in the U.S. has been the requirement for mandatory disclosure of the chemical mixture used in the hydraulic fracturing process. In crafting chemical disclosure regulations, states have had the difficult job of determining the appropriate balance between public disclosure of the chemicals used in hydraulic fracturing fluids and protection of a company’s intellectual property rights associated with the proprietary formulas.

    On March 12, 2014, the Wyoming Supreme Court issued a decision that could make it difficult for oil and gas operators in that state to protect proprietary information regarding hydraulic fracturing chemicals from disclosure to the public and their competitors. At issue is whether information regarding the type, chemical compound name, and/or Chemical Abstract Services (“CAS”) number of chemicals or other constituents injected through hydraulic fracturing or other well stimulation operations in Wyoming are “trade secrets” subject to protection from disclosure under the Wyoming Public Records Act (“WPRA”). (more…)


  6. Supreme Court Upholds Arbitration Award in Favor of British Natural Gas Investor in Argentina

    Friday, March 7, 2014 4:11 pm by and

    On March 5, 2014, the United States Supreme Court upheld a $185 million arbitration award obtained by the United Kingdom’s BG Group PLC against the Republic of Argentina, pursuant to a bilateral investment treaty.  The Court reversed the finding of the Court of Appeals for the District Court of Columbia that the arbitration panel lacked jurisdiction over the dispute, finding that the arbitrators, and not a court, properly determined whether the treaty’s conditions to arbitration had been satisfied.

    In BG Group PLC v. Republic of Argentina, 572 U.S. __ (2014), the Supreme Court interpreted the dispute resolution provision contained in an investment treaty between the United Kingdom and Argentina (the “Treaty”), requiring each nation to afford the others’ investors “fair and equitable treatment” and forbidding the “expropriation of investments” by either nation.  The Treaty permits investors to submit disputes to a local court in the country where the investment is made, and permits arbitration “where, after a period of eighteen months has elapsed from the moment when the dispute was submitted to [that] tribunal . . ., the said tribunal has not given its final decision.” (more…)


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