In this episode of the Emerging Tech Podcast Series, Justine Kasznica and Ashleigh Krick of Babst Calland’s Emerging Technologies Group talk to Jonathan Kersting of the Pittsburgh Technology Council about the latest investment trend in energy as reported from the 2021 Babst Calland Energy Report.
Kasznica and Krick discuss how public government funding is driving investment in emerging energy technologies like energy storage and hydrogen. They will also detail how VC and private equity investments are at a record high and what’s driving the growth.
Listen to the podcast here.
A Recent Conversation with U.S. Senator Joe Manchin Featured in this Report
Law firm Babst Calland today published its 11th annual energy industry report: The 2021 Babst Calland Report – Legal & Regulatory Perspectives for the U.S. Energy Industry. Each of our nation’s energy sectors is impacted by local, state and federal policies, many of which are addressed in this inclusive report on legal and regulatory developments for the energy industry in the United States.
The Babst Calland Report represents the timely collective perspectives of more than 45 energy attorneys on the current state of the U.S. natural gas and oil, coal, and renewable energy sectors. For the first time, this Report is presented as an easy-to-navigate digital site featuring 12 sections, addressing the following key topics:
- Business Outlook for the U.S. Energy Industry
- Climate Change Initiatives from the Biden Administration
- Pipeline & Hazardous Materials Safety Administration Priorities
- Environmental Law Developments
- Environmental Justice Issues
- Appalachian Basin Regional Developments
- Coal Mining Regulatory Changes
- Expansion of the U.S. Renewable Energy Market
- Real Estate & Land Use Developments
- Litigation Trends
- Changes in Employment & Labor Law
- Emerging Technologies Affecting the Energy Industry
Joseph K. Reinhart, shareholder and co-chair of Babst Calland’s Energy and Natural Resources Group, said, “The energy industry, once again, is at an inflection point and a moment of resiliency as it experiences a rebound in pricing and recovers from the impact of the global pandemic. Evidenced by the signing of several Executive Orders, President Biden has made climate change a focal point of U.S. energy policy. The full impact of the new administration’s “government-wide” approach to regulatory and social environmental policies will be unclear for months.
“This transformational time promises to bring significant changes for the U.S. energy industry. It is vital for any energy organization to consider the forewarnings, the risks, and the legal and regulatory implications to its business.”
Report Features Video Commentary from U.S. Senator Joe Manchin
This edition features commentary from Senator Joe Manchin (D-WV), Chairman of the U.S. Senate Energy and Natural Resources Committee, who spoke with Babst Calland energy clients at a special briefing on June 25, 2021. A link to the webinar recording is available in this Report.
To request a copy of The 2021 Babst Calland Report, click here.
Updates on key developments in energy and natural resources law beyond this Report are available directly by the attorneys who represent clients in a wide spectrum of industry sectors and legal practice areas.
Tags: Appalachian Basin
, Gas drilling
, Marcellus Shale
, Natural gas
, Oil and gas
, Utica Shale
, West Virginia
The law firm of Babst Calland published its 10th annual energy industry report: The 2020 Babst Calland Report – The U.S. Oil & Gas Industry: Federal, State, Local Challenges & Opportunities; Legal and Regulatory Perspective for Producers and Midstream Operators.
In this Report more than 50 energy attorneys provide perspective on the current state of the U.S. natural gas and oil production industry and its growth to historic highs due to more than a decade of advances in on-shore horizontal drilling and high-volume hydraulic fracturing. It asserts that despite current challenges, a maturing shale industry is poised for future growth as natural gas and oil producers have driven down the costs of production. Transportation options for moving these natural resources from growing areas of production to customers continue to be built, even with new hurdles from regulators and other stakeholders.
Joseph K. Reinhart, shareholder and co-chair of Babst Calland’s Energy and Natural Resources Group, said, “The U.S. natural gas and oil industry has experienced tremendous growth and change since we first published this Report in 2011. Fast forward to an unprecedented 2020 with a pandemic, a corresponding economic slow-down and oversupply of natural gas and crude oil. With increased public and government pressure, sustained low prices, and less-reliable financing options, resiliency will continue to be the driving force of a dynamic energy market that continues to evolve.”
The Babst Calland Report is an annual review of the issues and trends at the federal, state and local level in the oil and gas industry over the past year. The 102-page Report covers a range of topics from the industry’s business outlook, regulatory enforcement and rulemaking to developments in pipeline safety and litigation trends. The Firm’s collective legal experience and perspectives on these and related business developments are highlighted in this Report, including those summarized below:
- Long-term, U.S. energy production appears poised to continue to outstrip domestic consumption due in some measure to increased consumption efficiency, along with the obvious ramifications from the natural gas revolution.
- The regulatory environment is focused on climate change, reducing emissions, water quality developments, and enforcement. Increased volumes of written agency guidance, enforcement, and penalties continue to challenge the industry.
- Citizens groups continue to actively challenge federal and state initiatives designed to expand natural gas and oil development, creating delays and uncertainties.
- Land use and zoning challenges continue at the local level. Increasing industry headwinds have resulted in a slowdown of new permitting activity amid ongoing challenges and ordinance restrictions.
- Public interest in pipeline safety has grown amid opposition and new rules from the Pipeline and Hazardous Materials Safety Administration in response to increased public and congressional pressure to initiate and finalize new or revised pipeline safety regulations. Operators seek to install new or replace existing pipelines throughout the U.S. while advocacy groups aggressively oppose many pipeline projects.
- Title legislation and court decisions vary by state and basin. In Pennsylvania, for example, Act 85 took effect in January 2020 and defines the conditions in which oil and gas producers may drill a lateral wellbore that crosses between two or more pooled units.
- Although 2019 saw renewed claims of adverse health effects allegedly related to oil and gas development, support for such claims continues to be limited, as now noted by numerous publications.
- Unmanned aircraft systems take hold in the energy sector. Despite the pandemic and its impacts, unmanned aircraft systems (UAS) have emerged as essential tools for the energy industry for conducting complex inspection and monitoring of difficult to access infrastructure and locations.
- From a workforce standpoint, COVID-19 conditions and other wage and hour regulations, amendments to the Family Medical Leave Act, and expanded unemployment benefits under the CARES Act have had an impact on companies across the country.
The natural gas and oil industry continues to expand its reach and impact on U.S. energy supply and independence. Each company has its own set of opportunities and challenges to navigate based on its financing, debt, shareholder goals, and operations and infrastructure footprint. Nonetheless, the United States’ plentiful supply of natural gas and oil is expected to continue to fuel the country’s economic future and support national security.
Request a copy of the Report
Babst Calland’s Energy and Natural Resources attorneys support clients operating in multiple locations throughout the nation’s shale plays. To request a copy of the Report, contact email@example.com.
Tags: Appalachian Basin
, Gas drilling
, Marcellus Shale
, Natural gas
, Oil and gas
, Utica Shale
, West Virginia
The Pennsylvania Supreme Court recently accepted the appeal of Mitch-Well Energy, Inc. (“Mitch-Well”) in SLT Holdings, LLC v. Mitch-Well Energy, Inc. on the issue of whether Mitch-Well effectively abandoned its leases by failing either to produce oil or gas or pay required minimum rental payments to the landowners. In 2019, the Pennsylvania Superior Court affirmed the trial court’s determination that Mitch-Well abandoned its leases due to the lack of production and payments.
The leases, executed in 1985, cover two tracts in Warren County, Pennsylvania, and contain provisions requiring Mitch-Well to drill a certain number of wells on the parcels and make yearly minimum payments to the lessors. The leases also contain a provision stating that the leases will continue for so long as Mitch-Well determines that oil and gas can be produced in paying quantities. From 1996 through 2013, wells drilled under the leases failed to produce in paying quantities and Mitch-Well neglected to make the minimum payments are required by the leases, prompting the landowners to seek judicial determination that Mitch-Well abandoned the leases.
On appeal, the Supreme Court will consider Mitch-Well’s argument that in its good faith determination, the wells were productive even though the trial court failed to take testimony on this issue. The Supreme Court asked Mitch-Well and the landowners to address Aye v. Philadelphia Co. and Jacobs v. CNG Transmission Corp., indicating that the Court may consider whether the leases survive both the automatic termination due to the non-payment of royalties and whether Mitch-Well abandoned the leases during the 16 years of non-production. This is an opportunity for the Court to provide additional clarity on Pennsylvania law relating to cessation of production and lease abandonment and termination.
Tags: Cessation of Production
, Land and Leasing
, Lease Abandonment
, Lease Termination
, Marcellus Shale
, Natural gas
, Oil and gas drilling
, Payment of Royalties
, Shale gas
A bill establishing the West Virginia Critical Infrastructure Protection Act is now awaiting Governor Jim Justice’s signature after completing legislative action. If signed by West Virginia’s Governor, the bill will be effective June 5, 2020. The bill creates a criminal offense of trespass upon property containing a critical infrastructure facility, trespass upon property containing a critical infrastructure facility with intent to damage equipment or impede the operations of the critical infrastructure facility, and for willfully causing damage to a critical infrastructure facility.
“Critical infrastructure facility” is defined to include, but is not limited to, the following facilities if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders, or if clearly marked with a sign or signs that are posted on the property that are reasonably likely to come to the attention of intruders and indicate that entry is forbidden without site authorization: (1) A natural gas compressor station; (2) A liquid natural gas terminal or storage facility; (3) A gas processing plant, including a plant used in the processing, treatment or fractionation of natural gas or natural gas liquids; (4) A natural gas distribution utility facility including, but not limited to, pipeline interconnections, a city gate or town border station, metering station, below- or above-ground pipeline or piping and truck loading or offloading facility, a natural gas storage facility, a natural gas transmission facility, or a natural gas utility distribution facility; (5) A crude oil or refined products storage and distribution facility including, but not limited to, valve sites, pipeline interconnections, pump station, metering station, below- or above-ground pipeline or piping and truck loading or offloading facility; (6) Any above-ground portion of an oil, gas, hazardous liquid or chemical pipeline, tank, or other storage facility that is enclosed by a fence, other physical barrier or is clearly marked with signs prohibiting trespassing, that are obviously designed to exclude intruders; (7) A petroleum or alumina refinery; (8) A chemical, polymer or rubber manufacturing facility; and (9) A water intake structure, water treatment facility, wastewater treatment plant or pump station.
Additionally, the bill establishes a criminal offense of conspiracy to commit trespass against a critical infrastructure. Finally, the bill establishes criminal penalties and civil liability for violations of the West Virginia Critical Infrastructure Protection Act and preserves the right to lawfully assemble and petition for redress of grievances.
Tags: compressor station
, critical infrastructure facility
, gas processing plant
, LNG terminal
, Natural gas
, Oil and gas
, West Virginia
On February 17, 2020, West Virginia Governor Jim Justice signed into law House Bill 4091, allowing for expedited oil and gas well permitting for horizontal wells. Under the bill, which amends W. Va. Code § 22-6A-7, operators may pay an additional fee to enter into an expedited permit application process for drilling certain horizontal wells. The additional expedited permit fee is $20,000 for the initial horizontal well and $10,000 for each additional well drilled on a single well pad at the same location. Within 45 days of the applicant’s submission of the permit application, the Secretary of Environmental Protection must issue or deny the permit. If there is no decision within 45 days, the Secretary is required to refund the applicant a pro-rated amount of the expedited application fee for each day with no decision, up to the 60th day, at which point the expedited fee would be fully refunded.
The bill also provides for an expedited permit modification process, allowing the operator to pay an expedited application fee of $5,000 for a modification to an existing permit. The Secretary must issue a decision on the modification within 20 days or refund the applicant a daily, pro-rated amount.
Half of the funds collected from the expedited applications will be used by the Department of Environmental Protection to cover the administrative costs of processing the applications. The remaining balance will be used for reclamation and plugging of orphaned oil and gas wells throughout the State.
The expedited permitting processes under the law do not apply to deep wells, so operators could only utilize these expedited processes for horizontal wells with target formations of the Marcellus Shale or shallower formations. The bill is effective ninety days from passage, on May 5, 2020.
The Ohio Supreme Court accepted the appeal of the owners of a severed royalty interest in West v. Bode, Case No. No. 18 MO 0017, 2019-Ohio-4092. The sole issue before the Court is whether the Ohio Dormant Mineral Act supersedes and controls over the Ohio Marketable Title Act for disputes involving severed oil and gas interests. The Seventh District had ruled that both the Ohio Marketable Title Act (MTA) and the Ohio Dormant Mineral Act (DMA) are available to surface owners seeking to reclaim previously severed oil and gas interests; rejecting the royalty owners’ argument that the DMA is the sole remedy for these disputes. The Ohio Supreme Court’s decision should bring clarity to ownership of oil and gas rights in Ohio.
Ohio recently passed HB 166, effective October 17, 2019, amending Section §1509.28 of Ohio’s statutory unitization statute. The prior version of Section §1509.28 did not specify whether all mineral owners in a tract must be leased to be included in the accounting for the minimum 65% operator ownership interest, which is the threshold required in order to apply for statutory unitization. The Section also did not address whether an operator could count partial net-acreage interests in a tract. For example, under the prior version of Section §1509.28, if a 10 acre tract was owned jointly by five owners, two of which had leased their oil and gas interests, it was unclear whether the operator was required to represent the leased interest as only four net acres or whether the operator was required to represent the tract as wholly unleased until all owners in the tract had entered into oil and gas leases. The new amendment added the following clarification to the Code: “In calculating the sixty-five per cent, an owner’s entire interest in each tract in the proposed unit area, including any divided, undivided, partial, fee, or other interest in the tract, shall be included to the fullest extent of that interest.” The amendment makes clear that for tracts with multiple owners, any type of interest held by the applicant-operator in a unitized tract counts towards the minimum 65% threshold required to apply for an order permitting forced unitization from the chief of the division of oil and gas resources management.
The Ohio Supreme Court accepted mineral owner Timothy Gerrity’s appeal in Gerrity v. Chervenak, a Dormant Mineral Act (“DMA”) case from Ohio’s Fifth District Court of Appeals. The Fifth District upheld the summary judgment granted by the Guernsey County trial court in ruling that the surface owner had successfully served notice by publication under the DMA process and abandoned Gerrity’s interest in the oil and gas. Following a search of the Guernsey County records (the property’s location) and a search of the Cuyahoga County records (location of Gerrity’s predecessor’s last known address), the surface owner served notice by certified mail to Gerrity’s predecessor at an address that the predecessor had not lived at since 1967. Following failure of service as “Vacant – Unable to Forward,” the surface owner published notice in a newspaper as proscribed in the DMA and completed the remainder of the DMA process, thereby acquiring Gerrity’s oil and gas interest. Gerrity’s appeal alleges that the surface owner failed to exercise reasonable diligence in attempting to locate Gerrity by not conducting an online internet search.
The level of diligence required by the surface owner in a DMA process in attempting to locate and serve notice by certified mail on the holders of the mineral interest is now squarely before the Ohio Supreme Court. The Ohio Supreme Court will decide whether a search of the county records where the property is located satisfies the reasonableness standard under the DMA or whether serving notice under the DMA requires a more comprehensive search, such as including the internet.
Since the Ohio Supreme Court’s decision in Corban v. Chesapeake Exploration, L.L.C., et al, 149 Ohio St.3d 512, 2016-Ohio-5796, many have questioned the interplay and availability of the Ohio Marketable Title Act (“MTA”) and the Ohio Dormant Mineral Act (“DMA”) for surface owners claiming previously severed oil and gas interests. The Ohio Seventh District Court of Appeals recently answered many of those questions and illustrated the power of the MTA for surface owners. In Senterra Ltd. v. Winland, Case No. 18 BE 0051 (Ct. App. Oct. 11, 2019), the Seventh District again confirmed that both the MTA and the DMA are available to surface owners claiming ownership of severed oil and gas interests. That court held that the MTA remains available for surface owners even after availing themselves to the DMA process. The court also determined that the reference, “excepting all the oil and gas rights underlying said described premises” is considered a general reference under the Blackstone inquiry due to the reference failing to identify the party reserving the interest.
In addition to expanding on whether a reference is specific or general, the Seventh District’s analysis rendered the date determining marketability under the MTA as irrelevant. That date controls what instrument operates as the root of title, being the most recent instrument of record at least 40 years prior. Because the MTA statute (O.R.C. 5301.47, et. seq.) fails to define which date should be used to determine marketability, courts have previously used the following dates to begin its MTA analysis: (1) trial/summary judgment; (2) summons; or (3) a severed mineral holder filing a notice of preservation. In Senterra, the Seventh District determined that regardless of using the date of summons or the date of the trial court’s determination, a 1971 deed in the chain of title operated as the root of title for a portion of the land at issue. However, in looking at the time period between 1971 and 2011 (the 40-year period required by the MTA), the record indicated an unspecified event occurred on July 14, 2000, which may have preserved the interest for its holder. Therefore, the court looked to the previous deed in the chain of title, being a 1954 deed, and conducted its analysis using this deed as the root of title. In determining that the surface owner had an unbroken chain of title from 1954 through 1994 with the mineral owner failing to preserve their interest during that time, the court held that the 1954 deed qualified as the root of title purporting to create the interest claimed by the surface owner and extinguished the interest of the mineral owner. Therefore, regardless of what initial date is used in determining marketability, a proper analysis will step through each deed in order to determine if a 40-year unbroken chain of title has occurred.
The Senterra decision continues a series of victories for surface owners and establishes the MTA as an invaluable tool to claim severed oil and gas interests. However, it remains to be seen if the case will be reviewed by the Ohio Supreme Court.