Environmental & Energy Litigation

Articles

In-depth looks into topics relevant to you. Find all of the Environmental & Energy Litigation Committee’s articles in this archive.

2020

Price-Anderson Act Removal of Litigation Involving a “Nuclear Incident”
By David B. Weinstein, Christopher Torres, and Christopher R. White – July 7, 2020
Evaluating and seizing the terrain where a legal battle will be waged is the Tao of the litigator.

Passaic River Litigation Spawns Decision in CERCLA 107/113 Debate
By James P. Ray – July 7, 2020
The issue of whether and when a potentially responsible party can bring a claim under section 107 of CERCLA continues to get attention in the courts.

EPA Issues Temporary COVID-19 Policy on Enforcement
By Karen Aldridge Crawford – July 7, 2020
The EPA set forth a temporary policy regarding enforcement of environmental legal obligations as regulated entities respond to the COVID-19 pandemic.

Remediation Life Cycle and Environmental Class Actions
By Orell Anderson – July 7, 2020
Valuing properties in the assessment stage and repair stage presents challenges.

Interview with In-House Attorney Tyler Adkins
By Nick Preservati – July 7, 2020
Adkins’s experience in both private practice and in-house capacities provides him with a holistic view of the challenges facing attorneys on both sides of the attorney-client relationship.

2019

Measuring the Geographic Extent of Contamination Impacts in Class Action Litigation
By Orell C. Anderson and Alexander Wohl – September 27, 2019
Determining geographic extent can often be a challenging task.

RCRA Citizen Suits: Climate Change Risk and Expanding Endangerment
By Edward C. Lewis and H. Joseph Drapalski – September 17, 2019
RCRA endangerment suits are a powerful tool for environmental groups and private citizens seeking to fill the absence of federal environmental enforcement and regulation.

Supreme Court Spares but Limits Auer Deference
By Douglas Hastings and Brendan J. Anderson – September 17, 2019
Courts will be less likely to defer to agencies' regulatory interpretations.

Transfer-Based Exclusion Upheld: Court Discards "Discard" Argument
By Karen Aldridge Crawford – September 17, 2019
A thoughtful, practical opinion seems to provide the EPA with a tutorial on promulgating a defensible regulation.

In Limine Motions: Set the Battlefield for Success
By Jeffrey M. Pollock – September 17, 2019
Use in limine motions to shape your theme during discovery.

Regulatory Emissions Standards: Unreliable Proof of Causation
By David Weinstein, Christopher Torres, and Ryan Hopper – June 14, 2019
Regulatory standards are intentionally overprotective and thus "unreliable predictors" of when exposures to regulated substances become harmful.

Contamination and Condemnation
By Orell C. Anderson and Alexander R. Wohl – June 14, 2019
When contamination is discovered during condemnation of a property through eminent domain, many legal questions arise.

Putting the Habitat Back in Critical Habitat
By Nicole Blevins – June 14, 2019
SCOTUS recently clarified that only the habitat of an endangered species is eligible for designation as "critical habitat" under the Endangered Species Act.

Eight Ways In-House Lawyers Can Make You a Better Trial Lawyer
By Michael S. LeBoff – June 14, 2019
Taking the initiative to tap in-house counsel's unique experience and knowledge base can be the difference between winning and losing at trial.

PFAS Litigation: Just Getting Started?
By James P. Ray – March 1, 2019
There is no indication that PFAS-related litigation will slow down anytime soon.

Extending Demand Response to the Natural Gas Industry
By Laura T. W. Olive – March 1, 2019
Demand response programs promote better pricing signals to consumers of the resource costs of energy consumption.

Oil and Gas Development and the Environment: A Balance of Interests
By Andrew Glenn – March 1, 2019
The Colorado Oil and Gas Conservation Commission, according to the Martinez court, must balance the interests of oil and gas development and environmental protection.

When Your Expert Becomes Their Expert
By Robert L. Byman and Nathaniel K.S. Wackman – March 1, 2019
The professional you've hired for your case has an opinion to support the other side. What to do?

2018

The Boundaries of State Assumption of Wetland Permitting Authority Get Tested
By Ted Warpinski and Chris Meuler – December 4, 2018
There are demonstrated pros and cons to a delegation program authorized by section 404(g).

So, You Live under a Rock? Does the Clean Water Act Apply to Your Water Down There?
By Karen Aldridge Crawford – December 4, 2018
The circuits are split on whether the reach of the CWA extends to groundwater.

Aux Sable: EPA's Continued Focus on Leak Detection and Repair in Energy Industry
By Charles Wehland and Will Taylor – December 4, 2018
The Aux Sable action may indicate an enforcement trend throughout the industry.

ND Supreme Court Clarifies How to Interpret Fractional Interests, Establishes Quiet-Title Mineral Lessee Rights
By Andrew Glenn – December 4, 2018
The necessity of joining a mineral lessee remains unsettled in many oil and gas jurisdictions.

Motions to Intervene at FERC: Engagement or Obstruction?
By Jehmal T. Hudson – August 29, 2018
Many contend that intervening is an aggressive tactic to increase the costs of and ultimately stall or defeat projects.

Value Assurance Programs and Environmental Contamination: Assessing the Impact
By Orell C. Anderson, Louis Wilde, and Alexander R. Wohl – August 29, 2018
Compared to costly, drawn-out litigation, VAPs may in certain cases be the most efficient option.

NJDEP Settlement Precludes Contribution Claim
By Duke K. McCall III and Conrad W. Bolston – August 29, 2018
A cautionary tale that could limit the ability of nonsettling parties to obtain contribution from parties that enter into a settlement with a single agency that does not purport to address the full scope of response costs incurred at a site.

Your First Filing as a Litigation Associate
By Bethany Gullman and Ann Prouty – August 29, 2018
Litigation associates may face a steep learning curve, especially in terms of their first filing.

Discharges Through Groundwater: Fourth Circuit Expands CWA Jurisdiction
By Sarah Peterman Bell, David Lazerwitz, and Brian Wantz – June 14, 2018
Unpermitted point source discharges that reach navigable waters indirectly, via groundwater, may lead to CWA liability.

Litigation Update: Repeal of the Obama Fracking Rule
By Charles T. Wehland, Will Taylor, and Diane Myers – June 14, 2018
The fracking regulations were subjected to multiple legal challenges; the repeal of those regulations has been no different.

Understanding the Uncertainty with Unregulated Contaminants
By Catherine Boston and Adam H. Love – June 14, 2018
Human health risk is the most important factor but is often the most difficult to understand and time-consuming to establish.

Executive Order Rolls Back WOTUS Rule
By Rudy Perrino – February 28, 2018
The Supreme Court complicates the Trump administration’s efforts to repeal and replace the rule.

Superfund Reform on the Horizon
By Megan Baroni – February 28, 2018
The Superfund Task Force released a list of 42 recommendations on how to restructure and improve the Superfund cleanup process.

Navigating Recent Court Decisions on Coal By-Products in Groundwater
By Katherine Walton – February 28, 2018
Several recent cases involving the definition of the term "point source" could prove important in determining CWA jurisdiction.

Production of Underwriting and Claims Manuals in Postloss Underwriting Litigation
By Kenneth Anspach and Paul Walker-Bright – February 28, 2018
An insurer cannot ignore information that it obtains during underwriting and later claim that it was misled by the insured.

Emerging Contaminants: Valuation Issues Linked to Perfluorinated Chemicals (PFOS/PFOA, C8, GenX)
By Orell Anderson, Steve Figgins, Rudy Perrino, Alex Wohl, and Steve Valdez – February 28, 2018
The EPA has not yet formally regulated PFCs, but states are doing so and lawsuits are already being filed.

Law Firms and Companies Must Combat Growing Cybersecurity Threats
By Robert E. Anderson – January 30, 2018
Basic protective steps to take now.

2017

Now What? Key Assumptions Underlying Centredale Manor Remedy Found Arbitrary and Capricious
By James P. Ray – November 17, 2017
The Rhode Island District Court deals a blow to the government.

Texas Supreme Court Examines Pass-Through Drilling and Ownership Rights
By Joshua Fuchs, Laurens Wilkes, Will Taylor, and Viddy Harris – November 17, 2017
The court set forth the mineral lessee’s bundle of rights and how those rights relate to those of the surface owner.

Where to Regulate Electricity? Energy Secretary Rick Perry’s Proposed Rulemaking
By Jeff D. Makholm, Ph.D – November 17, 2017
The FERC attempts to avoid "blowing the market up."

Beyond WOTUS in SCOTUS: Environmental and Energy Litigation in the Supreme Court
By Charles M. Denton – November 17, 2017
WOTUS is not the only environmental or energy litigation appeal that will be, or might be, decided by the Court.

The New Wave of Citizen Suits: The RCRA, Endangerment, and Climate Change
By Edward C. Lewis and H. Joseph Drapalski – August 28, 2017
New lawsuits involve legal theories that seek to stretch the boundaries of the RCRA's endangerment citizen suit provision.

Limits on State Courts' Jurisdictional Reach
By Sandra A. Edwards – August 28, 2017
The U.S. Supreme Court found that the California Supreme Court's sliding scale approach did not square with precedent.

Emerging Trends in Perfluorinated Chemical Regulation and Litigation
By Allan Kanner – August 28, 2017
Inaction by the federal government and some state regulators should not be misinterpreted to mean that the current federal guideline is sufficiently protective.

Can Environmental Claims in Bankruptcy Proceedings Cripple Best-Laid Plans?
By Maria G. Carr – August 28, 2017
Bankruptcy is by no means a "quick fix" to stop enforcement of environmental issues.

Hedonics, Litigation, and Property Value Diminution
By Jack Williamson, Orell C. Anderson, and Alexander R. Wohl – August 28, 2017
An explanation of the theoretical basis for hedonic regression and its three most frequent uses in contaminated-property litigation.

EPA Farm Reporting Exemption Final Rule Vacated
By Karen Aldridge Crawford – August 28, 2017
The court agreed that the emissions reports aren't nearly as useless as EPA made them out to be.

Work-Product Protection for Draft Expert Reports and Attorney-Expert Communications
By John M. Barkett – May 30, 2017
A collection of recent cases under Rules 26(a)(4)(B) and (C).

Villainy: The ExxonMobil Story
By Jane E. Montgomery – May 25, 2017
How does one create a compelling storyline to galvanize the masses? To change behavior? Why, create a villain.

EPA Proposes Financial Assurance Rule for Hard-Rock Mining
By Irvin M. Freilich and David J. Miller – May 25, 2017
The proposed rule provides that the amount of financial assurance must be sufficient to pay for estimated environmental remediation actions as well as natural resources damages.

“Take-Home Toxins” Expand Duty of Care
By Diana E. Neeves – May 25, 2017
A federal district court in Pennsylvania recently held that a ceramics manufacturer could be liable under New Jersey law for chemical exposure injuries to the girlfriend and roommate of two of its employees.

Superfund Sites and Property Value Diminution
By Orell C. Anderson and Alexander R. Wohl – May 25, 2017
Chemicals may impact the waterways, but people and their purchasing decisions determine the markets.

Spoliation Complicates Remediation: Consider the Duty to Preserve
By H. Joseph Drapalski – February 28, 2017
The point at which the duty to preserve attaches should now be of greater concern to prospective plaintiffs who engage in remediation prior to filing an environmental contamination lawsuit.

All Charged Up: Energy Storage Project Development
By Brennan Bentley, David Lazerwitz, and Chris Locke – February 28, 2017
Variable renewable energy sources remain limited from a grid integration standpoint due to intermittency when the sun is not shining or the wind is not blowing.

The Sixth Circuit—Again!—Falls Down the Rabbit Hole of NSR Interpretation
By Seth Jaffe – February 28, 2017
As Alice in Lewis Carroll’s Alice in Wonderland would have said, the DTE Energy case only gets curiouser and curiouser.

Denbury: Property Owners, Pipeline Companies, and Eminent Domain Authority
By J. Laurens Wilkes, William R. Taylor, and Sean B. Solis – February 28, 2017
Courts struggle to find a balance between protecting landowners’ property rights and encouraging pipeline development.

Decommissioning Oil and Gas Facilities: Challenges in (and out of) Bankruptcy
By Andrew J. Gallo and Duke K. McCall III – February 28, 2017
The convergence of the financial challenges presented by lower oil prices and an increase in decommissioning obligations has forced some companies into bankruptcy.

Dismissing Environmental Claims in Bankruptcy
By Sean Malloy and Rion Vaughan – January 10, 2017
Jevic adds one more layer of complexity to the already jumbled intersection of bankruptcy and environmental law.

2016

Ohio Adopts New Oil and Gas Emergency Response Rule
By William Beckley and Beth Gillin – December 16, 2016
The state’s incident-notification requirements are now more in line with rules adopted in fellow oil and gas producing states.

Which Came First, the Incident or the Oil? The BP Moratorium and OPA Causation
By Allan Kanner – November 18, 2016
The inequitable application of the OPA as is seen in the moratorium claims contradicts public policy and should not stand as binding precedent.

Waters of the United States: Clarifying the Clean Water Act’s Murky Boundaries
By Jane E. Montgomery and Ryan C. Granholm – November 18, 2016
Will the matter of WOTUS ever be definitively resolved?

Federal Law Requires Facilities to Fortify Against Climate-Change Risks
By Allan Kanner, Elizabeth B. Petersen, and Allison S. Brouk – November 18, 2016
Federal law provides a mechanism to act to ensure adequate protection for vulnerable communities before a catastrophic spill occurs.

Dakota Access Pipeline Fight Shines Light on Historic Preservation and Energy Projects
By Courtney Scobie – October 19, 2016
A company developing a pipeline project should always consider that it will need to work closely with tribal leaders and historic-preservation officers.

How to Speak and Not Speak When the Feds Come Calling
By Solomon L. Wisenberg – August 30, 2016
A primer for lawyers and their clients on how to handle verbal interactions with law enforcement during a white-collar investigation.

In Chemical Litigation, Toxicology Fundamentals Matter
By Lucy Fraiser – August 30, 2016
Toxicologists can help build a chemical exposure case by linking the plaintiff to the released chemical and determining the dose incurred.

2016 Updates to the Oil and Gas NSPS Finalized, Immediately Challenged
By Karen Aldridge Crawford – August 30, 2016
North Dakota filed a petition for review of the EPA's new source performance standards for reducing methane emissions.

Eighth Circuit Rejects Class Certification in Environmental Contamination Case
By Aphrodite Kokolis and Alex Garel-Frantzen – August 30, 2016
Class action requirements can be difficult to establish in the environmental context because issues of liability, causation, and damages are individualized.

After-Acquired Title in Oil and Gas Leases and Estoppel by Deed
By Ryan van Steenis – August 30, 2016
The Pennsylvania Supreme Court applied estoppel by deed to an oil and gas lease where the owners had record notice of a reservation of mineral rights.

Nuisance Is a Legal Injury, Not a Cause of Action
By Jeff Civins, Michael J. Mazzone, and Michael Stewart – August 30, 2016
The Texas Supreme Court recently clarified its nuisance law.

The Courts Move at Lightning Speed Toward a Decision on the EPA's Clean Power Plan
By Aaron M. Flynn – June 7, 2016
An update on the litigation in the D.C. Circuit and the U.S. Supreme Court.

Who Can Rule on the Clean Water Rule?
By Tavo True-Alcala and Megan Baroni – June 7, 2016
A three-judge panel of the Sixth Circuit issued an opinion, a concurrence, and a dissent.

New Jersey Appellate Division Declines to Impose Personal Liability for Cleanup Costs
By John J. DiChello – June 7, 2016
A mere assumption, the Appellate Division emphasized, is entirely insufficient to justify piercing a corporate veil.

Court of Appeals Upholds Maryland's Flexible Approach to Stormwater Permitting
By Rafe Petersen and Andrew H. "Andy" Emerson – June 7, 2016
The ruling paves the way for counties to seek innovative private sector solutions.

New York Bankruptcy Judge Sends Shudders Through Midstream Market
By Stephen A. Roberts – June 7, 2016
Sabine Oil and Gas Corp. wins bankruptcy court approval to enter into a new facilities agreement after the court allowed it to reject existing facilities agreements.

In-House Spotlight: Raymond A. Hafner IV of Linn Energy
By Will Taylor – June 7, 2016
An interview covering his career path, his role as an in-house attorney, and the challenges facing the industry.

Trying the High-Risk Case for a Corporate Energy Client
By Stephen M. Fernelius – May 19, 2016
Recommendations for both inside and outside counsel.

Key Tips for Junior Lawyers Practicing Before State Administrative Agencies
By Mark DeMonte – February 26, 2016
Differences and similarities between litigating before a state administrative agency and litigating before a court.

Who Is Responsible for Decommissioning Costs for Oil and Gas Assets Abandoned or Sold in Bankruptcy?
By Ronald Oran Jr. and David Reiner – February 26, 2016
Two legal questions are often faced by many lessors, joint-interest holders, and predecessors in interest confronted with abandonment.

In-House Spotlight: Gregory V. Brown of Beusa Energy
By Will Taylor – February 26, 2016
From the courtroom to the boardroom.

Pennsylvania Companies Are Allowed to Seek Pre-Enforcement Declaratory Relief
By Kenneth S. Komoroski, Matthew H. Sepp, and Daniel Carmeli – February 11, 2016
The state supreme court's decision potentially changes the legislative and rulemaking processes in the state and materially changes the settlement negotiation posture for businesses.

The Responsible Corporate Officer Killed the LLC
By John R. Bashaw and Mary Mintel Miller – February 11, 2016
A look at the RCO doctrine through the case law of Connecticut and other states that have adopted similar legal theories.

Measure of Damages for Real Property
By Kenneth Anspach – February 11, 2016
Exploring how these measures were developed and the circumstances under which they apply.

Eighth Circuit Divided on Scope of Arranger Liability
By Irvin M. Freilich and Shawn M. LaTourette – February 11, 2016
Why it is important that companies create a record clarifying the commercial value of the material being sold.

No Safe Harbor: Can New Jersey Face Liability under State Spill Act?
By Paul M. Hauge – February 11, 2016
There is considerable irony in the courts' unequivocal rejection of the positions advanced by the state.

2015

The Impact of Crude Oil and Natural Gas Market Trends on Litigation
By Bob Broxson, Sonya Kwon, and Julie Carey – November 20, 2015
The environment of low crude oil prices and other dynamics in unconventional oil and gas plays have increased litigation in this industry.

Litigating Borrowing Base Redeterminations
By Scott Fletcher, Stephen Olson, Omar Samji, Tom Howley, and Will Taylor – November 20, 2015
The case law to date suggests that borrowers may have a difficult time finding success in the courtroom.

An Uptick in Recent Electric Utility-Gas Utility Mergers: Expect More
By Jim McMahon and Justin Fong – November 20, 2015
The recent surge in natural gas utility acquisitions by electrics is not simply a coincidence.

EPA's Clean Power Plan Sets the Stage for a Return to the Supreme Court
By Aaron M. Flynn – November 11, 2015
It is hard to imagine the High Court deciding not to weigh in.

New Life for Underground Storage Tank Regulation
By Charles M. Denton, Tammy L. Helminski, Amy E. Smith, Michael T. Scanlon, and Kenneth W. Vermeulen – November 11, 2015
Changes to the federal regulations applicable to USTs may have significant impacts on owners and operators.

Emhart v. United States: Another Failed Attempt to Prove Divisibility under CERCLA
By James P. Ray and Megan E. Baroni – November 11, 2015
Add the Centredale Manor Restoration Project in North Providence, Rhode Island, to the list of sites where a court has denied a CERCLA divisibility defense.

New Jersey's Appellate Division Opens Door to Spill Act Claims Against the State
By John J. DiChello – November 11, 2015
Responsible parties now have a second, often ignored, possible avenue of recovery of cleanup costs under the Spill Act.

FERC and D.C. Circuit Reject Recent Challenges to Gas Pipeline Development
By Erica E. Youngstrom – August 27, 2015
Gunpowder Riverkeeper shows that pipeline opponents continue to face both procedural and substantive hurdles that may be difficult to anticipate.

The Legal Cybersecurity Landscape for Pipeline Companies
By Jay Johnson – August 25, 2015
The potential coalescence of legal standards and best practices into an applicable standard of care.

Texas High Court Rules Overriding Royalty Not Subject to Postproduction Expenses
By Jack Edwards – August 25, 2015
A synopsis of the case and an interview with counsel for the leaseholder.

The Latest Development in Arranger Liability Law
By John J. DiChello – July 23, 2015
The Fourth Circuit held that an electric utility lacked the requisite intent to "arrange for disposal" of hazardous substances.

The Law by Circuit on Arranger Liability
By John J. DiChello – July 23, 2015
Recent decisions from the First, Second, Third, Fourth, Fifth, Seventh, and Ninth Circuits.

How to Minimize the Risk of Arranger Liability
By John J. DiChello – July 23, 2015
Lessons learned from recent cases.

Nutrient Trading as Clean Water Strategy in the Interstate Context
By Sarah T. Babcock – July 23, 2015
The public at large is unlikely to rank nutrient pollution among the top threats to water, but excess nutrient levels in national watersheds are a serious concern.

Sediment Update: A Summary of the Procedural Status of a Collection of Sites
By Mark Myers, Drew Pearsall, Brian Freeman, and Megan Baroni – July 23, 2015
These sites bear close watching in the new frontier of CERCLA activity.

Local Fracking Bans: Recent Federal and State-Law Considerations
By Elizabeth Rutledge – June 22, 2015
Local fracking restrictions cannot be reconciled with the U.S. Constitution and principles of state-law preemption.

Federal Court Rules in Favor of Volumetric Approach to Divisibility
By Shawn M. LaTourette and Irvin M. Freilich – June 1, 2015
The Eastern District of Wisconsin ruled in favor of a volumetric approach to CERCLA divisibility in the Fox River sediment cleanup case.

What Oil and Gas Companies Can Do to Mitigate Unpaid Wage Claims
By Basheer Ghorayeb – May 27, 2015
An interview with Brian Jorgensen and Joanne Bush of Jones Day.

Contracts Requiring "Best Efforts" and "Commercially Reasonable Efforts"
By Will Taylor, Laurens Wilkes, Joshua Fuchs, Basheer Ghorayeb, and Roy Powell – May 27, 2015
Exploring how such contracts are treated in Texas and other jurisdictions.

Did the Earth Move? Induced Seismicity in Oil and Gas Operations
By Julie Shemeta – May 27, 2015
Regulations requiring permit holders to collect earthquake data may lead to a better understanding of the issue.

A Look at Underground Trespass under Texas Law
By Donald D. Jackson – February 27, 2015
Courts are still wrestling with the issue of subsurface trespass.

What Energy Lawyers Need to Know about the Endangered Species Act
By Michael A. Oropallo – February 27, 2015
The ESA is a potent tool for environmentalists seeking to derail energy projects.

Litigation Update on Select Oil and Gas Contract Disputes
By Mark D. Christiansen – February 27, 2015
A rundown of several cases impacting the industry.

Environmental Whistleblowers' Rights
By Allan Kanner – February 18, 2015
An introduction to the federal laws protecting the rights of whistleblowers, prohibiting retaliation, and giving the right to monetary and other relief.

Fracking Debate: The Importance of Pre-Drill Water-Quality Testing
By Teodoro Bosquez IV, Daniel Carmeli, Jeremy Esterkin, Mae Kieng Hau, Kenneth Komoroski, Camarin Madigan, and Matthew Sepp – February 18, 2015
Baseline data are invaluable for oil and gas operators, the public, and regulatory officials.

Mass Tort Claims Administration and Handling: Lessons from Deepwater Horizon
By Peter Knight and Alex Judd – February 18, 2015
A process intended to control costs and limit exposure has resulted in an unintended surplus of both.

District Court Holds Utah Prairie Dog Protection Unconstitutional
By Damien M. Schiff and Paul J. Beard – February 18, 2015
The court reasoned that the regulation of prairie dog takes does not have a substantial effect on interstate commerce.

2014

Expanding Definition of "Waters of the United States": The New Proposed Rule
By Karen Aldridge Crawford and Stacy Kirk Taylor – November 19, 2014
Assessing and comparing the proposed CWA rule with respect to the current regulations.

Rail-Yard Emissions Held Outside the Scope of Federal Regulation
By Raghav Murali – November 19, 2014
The Ninth Circuit determined that emissions of diesel particulate matter from a rail yard could not be enjoined under the RCRA.

Shipping Hazardous Materials: Offeror Liability for Noncompliant Acts of Third Parties
By David M. Loring – November 19, 2014
Offerors may choose to over-prepare materials for transport to minimize the potential for liability.

Lawyers Can't Be Luddites
By Bill Kammer – November 19, 2014
Times have changed, and lawyers must adapt their technology practices.

Disputes in the Unconventional Oil and Gas Sector: A Historic Overview
By Michael P. Emmert – November 13, 2014
Royalty, leasehold, and land-rights disputes continue to develop across a wide range of issues.

Operations under Ohio Oil and Gas Leases
By Stephanie Burt – November 13, 2014
The exact contours of what constitutes operations and what an implied covenant to develop looks like in Ohio are not clear.

Interview with Reagan Bradford of Chesapeake Energy
By Basheer Ghorayeb – November 13, 2014
From the courtroom to the boardroom.

Allocating Royalties Between Separate Tracts
By Christopher L. Halgren – October 14, 2014
Lessees should be cognizant of the dangers and uncertainty accompanying allocation wells.

Fracking in Illinois: The Uncertainty Continues
By Shannon L. Haney – September 3, 2014
Uncertainty, doubt, and insecurity have returned about whether the New Albany Shale formation in the Illinois basin will be developed by fracking.

Five Things You Should Know about the Ohio Dormant Mineral Act
By Ariel Forbes – August 25, 2014
A guide to the law and court opinions surrounding mineral interests in the state of Ohio.

Pipeline Emergency Management: A Canadian Context
By Allison Wong – August 25, 2014
Minimizing the consequences of pipeline spills that occur along cross-border pipelines requires effective emergency management in both Canada and the United States.

New York Municipal Bans on Oil and Gas Drilling: Authorized by Home Rule or Preempted by State Law?
By Cindy M. Monaco – August 25, 2014
Oil and gas development may be banned by municipalities, but all is not yet lost.

Apportionment of CERCLA Liability Post-Burlington
By Bina Joshi – June 5, 2014
Courts have interpreted the decision narrowly and have set a high standard for ?reasonableness? when it comes to apportionment.

Parko Provides Guidance on Contamination Class Actions
By Meaghan Boyd and Geoff Rathgeber – June 5, 2014
Lessons from the quintessential environmental putative class action.

John Crane Explodes the Pro Rata Myth
By Kenneth Anspach – June 5, 2014
The holding is applicable to any pollution or toxic-tort case involving a continuous trigger of coverage over a period of years.

2013 EPA Enforcement Statistics: Trying to Do More with Less
By Peter Knight – June 5, 2014
Last year saw an overall decrease in the number of enforcement actions by about 20 percent.

Major Accident Response: Managing the First 96 Hours
By Mark L. Farley – May 19, 2014
What to do in the aftermath of a disaster.

Mexican Oil and Gas Reform: Getting It Right This Time
By John Cogan and Carlos Moran – May 19, 2014
Mexico opens up its state-run oil industry to private and foreign companies.

Serious Procedural Barriers to Fracking Litigation
By Carter F. Thurman and Onika K. Williams – May 19, 2014
Lone Pine orders, Daubert challenges, and Rule 11 sanctions may stand in the way.

Is New York's Fracking Review Subject to Judicial Oversight?
By Matthew D. Wagoner and Cindy Monaco – May 19, 2014
This case could decide whether New York's environmental review of fracking can be accelerated by judicial order.

The Accommodation Doctrine in Texas (and Elsewhere)
By Brandy R. Manning and Daniel B. Mathis – March 11, 2014
It's not just a question of which came first.

How to Speak Offshore Oil and Gas
By Dana E. Dupre – March 11, 2014
What I wish I knew when I started practicing.

The Risks of Lurking Fiduciary Duties in Upstream Oil and Gas Deals
By Will Taylor – March 11, 2014
Those operating in the oil patch should be mindful of potential allegations that fiduciary obligations are owed.

Enforcement Shifts Energy-Trading Strategies
By Julie Carey, Cliff Hamal, and Ben Ullman – March 11, 2014
Finding the sweet spot between maximizing profits and mitigating risks will be more challenging.

2013

Sackett v. EPA: Shifting the Administrative Calculus
By Kenneth Anspach – December 3, 2013
Comparing the U.S. EPA's and Illinois EPA's approaches to judicial review of compliance orders.

Airborne CAFO Emissions: Beyond the Outer Limits of CWA Jurisdiction?
By Stewart D. Fried and John G. Dillard – December 3, 2013
The EPA hits another roadblock in requiring NPDES permits for poultry and livestock operations.

How Water Connectivity May Be Used to Expand CWA Jurisdiction
By Megan E. Baroni – December 3, 2013
A basic scientific premise could turn the tide of this controversial issue.

Residential PACE Programs Struggle, Commercial Programs Thrive
By Ashley L. Thompson – December 3, 2013
Push-back from the mortgage industry has stymied private homeowners.

Three Ways to Boost Your Energy-Law Practice
By Basheer Ghorayeb – November 20, 2013
Involvement with the committee can work wonders for your career.

FERC's Capacity-Release Program: Financial Indifference and Reasonableness
By John Hutchings and Bret Reich – November 20, 2013
Increasing pipeline efficiency by allowing shippers to use interstate capacity that would otherwise sit idle.

Inside, Looking Out: In-House in the Energy Industry
By Jonathan D. Morris – November 20, 2013
One attorney opines on the pros and cons of working in-house.

The Keystone XL Pipeline Faces a New Challenge
By Courtney Scobie – October 22, 2013
A lawsuit pending in Lincoln, Nebraska, could force TransCanada to postpone pipeline construction even further.

The Contamination of the World's Largest Pollution Judgment
By L. Mark Walker – September 9, 2013
The $19 billion judgment against Chevron is unraveling.

Trends Emerging from Domestic Unconventional Oil-and-Gas Resources
By Robert Lang and Rob Wentland – September 9, 2013
Recent data suggest that litigation activity will continue.

Fear-Based Damage Claims in Electric-Transmission Condemnation Trials
By Sam Meziani – September 9, 2013
Trial strategies for addressing claims based on public fear of high-voltage lines.

Kiobel: Have We Answered the Question of Corporate Liability After All?
By Laura E. Carlisle – August 12, 2013
The Supreme Court missed an opportunity to settle the question of whether corporations can be subject to liability under the Alien Tort Statute.

Regulators Must Give Fair Warning of Forbidden Conduct or Requirements
By Kenneth Anspach – August 5, 2013
Industry may find itself subject to enforcement actions for engaging in conduct it believed to be acceptable.

Clean Air Act's Boiler MACT and Area-Source Rules Now in Force
By Lauren E. Godshall – August 5, 2013
Make a plan now to comply with the new regulations.

Pitfalls in the "Third Party" and BFPP Defenses to CERCLA Liability
By Peter Klock – August 5, 2013
CERCLA liability is difficult to shake, and these two defenses don't make it any easier.

Supreme Court Grants Certiorari in CSAPR Case
By David F. Williams and Sohair A. Aguirre – August 5, 2013
It remains to be seen how this unpredictable Court will ultimately rule on the merits of the Transport Rule.

Business Groups Assert Conflict with SEC's Conflict Minerals Rule
By Reagan E. Bradford – June 3, 2013
A significant segment of U.S. business anxiously awaits the D.C. Circuit's decision.

History and Current Status of Federal Fracing Regulation
By Bruce M. Kramer – June 3, 2013
In part, the LEAF decisions initiated a governmental reaction that has led to numerous studies, legislative fixes, and administrative regulations over the past 10 years.

The 2012 Election's Effect on the Energy Industry and Energy Litigation
By James E. Smith – June 3, 2013
Major new legislation is unlikely during President Obama's second term.

The Applicability of the Securities Laws to Energy-Related Investments
By David S. Siegel – June 3, 2013
Investment fraud is on the rise.

A Bird's Eye View of the Nation's Oilfield Anti-Indemnity Acts
By James Collura and Teia Moore Kelly – April 3, 2013
A brief overview and comparison of the major oilfield-services anti-indemnity acts.

Clean Water Act Math: When Addition Is Not Addition
By Kenneth Anspach – March 21, 2013
The Supreme Court weighs in what constitutes "addition of any pollutant to navigable waters."

Bernstein v. Bankert: CERCLA Claims by Settling Parties
By Bina Joshi – March 21, 2013
The decision potentially leads to even greater confusion than before.

CERCLA vs. New Jersey's Spill Act
By Irvin M. Freilich and Adam C. Arnold – March 21, 2013
What's the difference and when does it matter?

Pre-Tender Costs Should Be Recoverable Absent Prejudice
By George M. Plews and Ryan T. Leagre – March 21, 2013
Fairness and efficiency demand a more careful allocation of harm.

Additional-Insured Provisions: What You Don't Know Can Hurt You
By Jack G. Carnegie – March 18, 2013
Done incorrectly, they can result in massive unanticipated losses.

BSEE's Assertion of Authority over Oilfield Contractors Questionable
By Laurie D. Clark and Christopher M. Hannan – February 4, 2013
Offshore oilfield-service companies need to be reminded that they are now regulated differently than ever before.

Oil and Gas Operator Liability in Texas—”What's in Your Contract?
By Jack G. Carnegie – January 30, 2013
Reeder v. Wood County Energy, LLC demonstrates the importance of seemingly minor differences in the language of exculpatory clauses. What does your contract say?

Five Things New Oil and Gas Attorneys Should Know
By Rebecca L. Phillips – January 30, 2013
The expansion of oil and gas production will require new legal regimes to be developed--as well as a new kind of attorney.

Oil and Gas Class Actions in Texas
By Thomas G. Ciarlone Jr. – January 30, 2013
Forum selection and other tactics for defeating class certification.

Recent Changes to the Louisiana Risk-Fee Statute: Selected Issues
By Dana E. Dupre and Sara E. Mouledoux – January 30, 2013
The Louisiana legislature recently amended the drilling statute to include several key changes.

2012

Fracking and NEPA's Categorical Exclusions
By Shell J. Bleiweiss and Jamie Davidson – December 19, 2012
Should CEs apply to federal loans on rural homes with hydraulic-fracturing leases?

Environmental Organizations Seek to Curtail Shale Development
By Margaret Anne Hill and Mary Ann Mullaney – December 19, 2012
A new litigation strategy is emerging in actions against oil and gas producers.

How EISs Are and Are Not Analyzing Climate Change
By Patrick Woolsey – December 19, 2012
The lack of a centralized repository for environmental impact statements has made them difficult to systematically track.

Climate Change Litigation: An Overview
By M. Camila Tobon – December 19, 2012
Four cases reveal courts' reluctance to weigh in on the debate.

Supreme Court: Agencies Must Give Notice Before Enforcing Regulations
By J. Elizabeth Poole – December 19, 2012
Two recent decisions have affirmed regulated industries' right to fair notice of federal agencies' interpretations of the laws they implement.

The Expansion of OCSLA to Offshore Indemnity Agreements
By Emile J. Dreuil III – September 26, 2012
Grand Isle Shipyard changes the game for offshore contractual disputes.

BOEMRE's SEMS II: Key Compliance Points for the New Rules
By Anthony C. Marino – September 26, 2012
New requirements enhance worker safety on offshore facilities.

Leasing the Mineral Owner Who's Gone AWOL
By Thomas G. Ciarlone Jr. – September 26, 2012
When an owner cannot be identified, a receivership may be the solution.

New Texas Anti-Indemnity Law May Affect More Than the Obvious
By Kara Stauffer Philbin – September 20, 2012
Under the new law, construction contracts are prohibited from requiring a subcontractor to defend or indemnify an owner or general contractor for the latter's own negligence.

Good-Bye to Joint and Several Liability in Private CERCLA Actions
By Kenneth Kilbert – September 10, 2012
Who is responsible for paying orphan shares?

Extending Oil and Gas Leases to Their Secondary Term
By Kevin K. Douglass and Christopher M. Buell – September 10, 2012
Recent activity in the Marcellus Shale has revived interest in this issue.

E-Discovery Costs: The Loser Pays for What, Exactly?
By Jennifer M. Williams and Tara S. Lawler – September 10, 2012
A very important question may be awaiting you at the end of litigation.

Lone Pine Procedure Successful in Fracking Case
By Daniel J. Dunn, Anna K. Edgar, and Andrew C. Lillie – June 28, 2012
An unconventional case-management strategy resulted in the complete dismissal of a case.

Sackett at the Supreme Court: A Win for Agency-Regulated Entities
By J. Elizabeth Poole – June 28, 2012
The EPA loses a battle on enforcement actions under the Clean Water Act.

NEPA and Renewable Energy Practices: Streamlining Sustainability
By Katherine Kennedy and Eric Andreas – June 28, 2012
The DOI moves quickly to comply with Obama administration policy.

Remaining Risks of Open Communications with Experts in Federal Court
By Deborah A. Vennos – June 28, 2012
The new federal rules significantly narrow the scope of expert discovery, but not without some notable exceptions.

Defense of Foreclosure of Statutory Liens for User-Charge Fees
By Kenneth Anspach – June 28, 2012
An Illinois water reclamation district ordinance highlights the means to defend against statutory foreclosure.

Protecting Against an FCPA Violation Through a Third-Party Agent
By Courtney Scobie – June 28, 2012
Because of their extensive operations overseas and in countries with high rates of corruption, energy companies often find themselves at risk of an FCPA violation.

The Rise of Fracking and Associated Litigation
By James Eimers and Liz Klingensmith – June 5, 2012
Production companies hoping to avoid lengthy and costly discovery proceedings must understand plaintiffs' pleading requirements to survive motions to dismiss.

Fracking's Alleged Links to Water Contamination and Earthquakes
By Barclay Nicholson, Kadian Blanson, and Andrea Fair – May 9, 2012
The jury is still out on the environmental effects of hydraulic fracturing.

Interview with Shell Oil Associate Counsel for International Litigation
By John Clay – May 9, 2012
A specialist offers advice on representing a multinational energy corporation in a U.S. proceeding.

Reemergence of the Falkland Islands Territorial Dispute
By M. Imad Khan – May 9, 2012
The centuries-old controversy intensifies over the rights to oil exploration.

The Long, Winding Journey of Boiler MACT and CISWI Rules
By Karen Aldridge Crawford and Stacy Kirk Taylor – March 14, 2012
The development of these regulations has much in common with cross-country vacations in the family station wagon.

A Litigator's Guide to Working with E-Discovery Consultants
By Matthew Prewitt – March 14, 2012
Several years after the FRCP amendments, the words “electronic discovery” still inspire both fear and loathing for many in-house counsel.

ERAs and NRDAs: When Policy Masquerades as Science
By Daniel W. Smith, Ph.D., and Steven M. Jones, Ph.D. – March 14, 2012
Scientists and lawyers do not always see eye to eye about what constitutes good science.

U.S. Supreme Court Relieves Power Companies in Unanimous Opinion
By Brian R. Smith, Sorell E. Negro, and Evan J. Seeman – March 1, 2012
The journals of Lewis and Clark helped support a Montana power company's contention that the Great Falls reach is not navigable.

EPA Issues Draft Report on Well Water Contamination in Wyoming
By Robert Carlton and Liz Klingensmith – January 4, 2012
The EPA postulates that the well water contamination might be caused, at least in part, by hydraulic fracturing.

2011

Spent Nuclear Fuel and the U.S. Response to Fukushima
By Kimbery Reome and Krista Haley – November 21, 2011
The United States has a long history of political, regulatory, and legal challenges in dealing with spent nuclear fuel.

Government Studies May Determine the Future of Fracking Regulation
By John S. "Jack" Edwards Jr. and Travis Oliver IV – November 21, 2011
Concerns that fracking may cause environmental and health problems have led to governmental studies into its safety.

Compliance Issues on the OCS Post-Macondo
By Anthony C. Marino – November 21, 2011
The 2010 Gulf oil spill has generated an extraordinary body of new environmental regulations aimed at overseeing offshore drilling.

Permitted Trespass in FPL Farming Ltd. v. Environmental Processing Systems, L.C.
By Sara E. Mouledoux – November 21, 2011
The Texas Supreme Court held that a regulatory permit to drill a wastewater injection well does not absolve the permit holder from civil tort liability.

Large Cases at a Smaller Firm: A Young Litigator's Perspective
By Jeff Goldman – November 21, 2011
At a small firm, a young litigator can get a better and closer grasp of the factual issues in the case.

Social-Welfare Implications of Liability Rules in Major Damages Cases
By Dr. Debra J. Aron and Dr. Francis X. Pampush – November 3, 2011
Economic insights and social-welfare implications can guide where we draw the boundaries for liability in major environmental damages cases.

For Young Lawyers: "Preservation" in the Constant Litigation Environment
By Meaghan G. Boyd – November 3, 2011
In essence, the duty to preserve evidence turns on case-specific, fact-intensive inquiries of "when" and "what."

Mediating Environmental Property Matters
By Doug Simpson – November 3, 2011
Environmental matters often are exceedingly complex scientifically or technically—challenging parties, attorneys, and mediators.

Justice Scalia Uses "Foreign Sources" to Support Judicial Takings
By Joseph Z. Fleming – November 3, 2011
The plurality opinion in Stop the Beach Renourishment references woodchucks, the Queen of Hearts, and Orwell.

Overview of Litigation Challenging EPA's Greenhouse Gas Regulations
By Jeremy C. Marwell – September 19, 2011
The author provides an in-depth review of the ongoing trial and appellate litigation challenging the EPA's widening regulatory authority over greenhouse gas emitters.

Pain at the Pump Prompts Political Action
By Sarah Casey – September 19, 2011
The Department of Justice has formed a working group in response to President Obama's request to the attorney general to monitor oil and gas markets for potential fraud and wrongdoing.

Mexican Oil Law: Protecting Foreign Investors Through International Arbitration Agreements
By Manuel Moctezuma – September 19, 2011
The federal government's reluctance to issue new permits for offshore exploration in the Gulf of Mexico has sharply decreased offshore exploration north of the Mexican border.

Proper Recovery of "Compelled" Costs of Response under CERCLA
By M. Camila Tobon – July 27, 2011
The question of "compelled" costs that are neither incurred voluntarily nor incurred by reimbursing another party was left open by the Supreme Court. It has now been answered.

Value Assurance Programs: A Case Study in the Model City
By Christina M. McLean and Jerry M. Dent II – July 27, 2011
Absent health claims, property owners are primarily concerned with protecting the value of their home. A VAP is a direct means to address fears of property-value diminution.

The Bermuda Form, Environmental Pollution, and Property-Damage Claims
By Julian Miller, Stephen Turner, and Jeffrey M. Pollock – July 27, 2011
The Bermuda Form may be important in certain environmental cases where insurance coverage is in play.

Insurers' Duty to Settle in the Context of a Continuous-Trigger Case
By Kenneth Anspach – July 27, 2011
What is the scope of the insurers’ duty to settle in a case involving a continuous trigger of coverage? Is it pro rata, as the carriers would argue, or is it joint and several, which the insureds would assert?

Climate-Change Tort Thrown Out of Court
By Christina M. Landgraf and Joel T. Bowers – June 23, 2011
The Supreme Court decided that federal common-law public-nuisance claims could not be maintained against carbon-dioxide and GHG-emitting entities.

The Intersection of Eminent Domain and Environmental Contamination
By Orell Anderson, Jerry English, Keith Mccullough, John Schepisi, and Stephen Valdez – May 19, 2011
One of the most problematic issues in the area of eminent domain has to do with environmental contamination, either real or perceived, found during expropriation.

EPA Stays New Boiler MACT Standards
By Karen Aldridge Crawford and Stacy Kirk Taylor – May 18, 2011
The EPA announced that it was staying indefinitely the effective dates for the new emission standards for boilers (MACT standards) that the EPA issued in February of this year.

The Historian's Valuable Role in Environmental Litigation
By Michael C. Reis and W. David Wiseman Jr. – April 28, 2011
Retaining a professional historian as an expert witness can be useful in avoiding the limited perspective and fading memories of eyewitnesses and the perception of bias.

The Importance of Pro Bono Work in Professional Development
By Brian J. Murray – April 20, 2011
During this poor economy, pro bono work provides an excellent means to develop one’s craft.

The Effects of the Deepwater Horizon Final Report
By Jonathan K. Waldron – April 4, 2011
The article highlights the major recommendations of the National Commission's report and potential impacts on future legislation and the oil and gas industry.

Idaho District Court Holds Government Liable as an Arranger
By Jacy T. Rock – April 4, 2011
It is another in a long line of post-Burlington Northern cases interpreting the scope of arranger liability and may have important implications for cleanup on federal lands.

Texas Surface Damages Law Basics
By Eugene M. Nettles – March 30, 2011
Part of practicing energy litigation is understanding the delicate balance between the rights of mineral owners and surface owners.

Joint Defense Agreements: Balancing Risk and Reward
By Mark R. Robeck and Louis E. Layrisson III – March 30, 2011
Joint defense agreements can pose material risks to both clients and lawyers if not handled with proper care.

RCRA Hazardous Waste Regulations—A Cautionary Tale
By Charles M. Denton and Barbara A. Magel – January 27, 2011
Two recent decisions have reminded all counsel working with the RCRA of the limitations and risks inherent in proceeding pursuant to informal agency interpretations.