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Energy & the Law

Are Oil and Gas Producers Protecting the Environment?

Posted in Energy Policy, Environmental Policy

In their search for Utopia, some opponents of oil and gas drilling ignore innovation … What’s harmful now will forever be that way.

The Question

That isn’t true, but it raises a question for producers: What are you doing to reduce the negative effects of your activities on the communities where you operate?

The Answers

Here are examples of the industry investing considerable time, money and effort to reduce its impact on the environment:

  • In Colorado, Anadarko is concentrating hydraulic fracturing operations in “Stim Centers”, locating those operations in a single location, thereby reducing truck traffic, and time and money otherwise spent on setting up.
  • and using pipelines instead of trucks to carry frac water.
  • Noble Energy is using “integrated development plans” to centralize facilities, reducing truck traffic and costs.
  • Marcellus shale producers are recycling 90% of their flowback water, according to Ben Seifer of Energy in Depth.
  • Statoil is reducing flaring and air emissions in the Bakken shale by testing a mobile system that converts associated gas into CNG at the well site.  The gas is then used on the well as a power source.
  • According to the Environmental Defense Fund (not the ”Utopians” referred to above) there are cost-effective options to control methane, such as lower-emitting valves and other mechanical improvements.
  • Patrick Kiger in his National Geographic blog tells a similar story. I include his entry for the comments from the “Utopians”.
  • State regulators are focusing on leaking methane.

There is no doubt that many of these efforts are a response to the looming presence of regulators and regulations. That is to be expected. Industries tend to believe they are doing “enough” to satisfy their critics and would prefer to be left alone to run their business. That is not going to happen. Regulators exist to regulate, opponents live to oppose, and no industry can ever do enough to satisfy those two constituencies, even if it means more costs and burdens.

Why Does it Matter?

Why do I speak of this? “The wages of sin …” Oops, wrong venue. “The downside of rapacious destruction of Mother Earth … “ Too shrill, and generally not even true. Here you go: “Powerful forces are against you and if you don’t meet them somewhere in the middle you could be squeezed out of the process.  The result will be excessive and unreasonable regulation.”

What Would Nanook Do?

The risks of pollution could not be portrayed more forcefully than in this musical interlude.

Perils of “Other Provisions” in the Model Form JOA

Posted in Operating Agreements, Purchase and Sale Agreements

Scriveners, when you add those “Other Provisions” in Article XVI of your model from JOA’s, are you sure that the document remains internally consistent, that no “Other Provision” conflicts with the form?

… Are you mindful of which of two related contracts will govern if there is a conflict in provisions? Did you choose the correct one?

Purchasers under a Purchase and Sale Agreement, do you fully understand the effect of the prevailing-contract provision in the underlying agreements?

In XH LLC v. Cabot Oil & Gas Corp., a PSA and a joint operating agreement between the parties’ predecessors were executed at the same time, for the same purpose, and in the course of the same transaction. One can tell from the language quoted by the court that the JOA was an AAPL Model Form 610. The question was whether Cabot’s acquisition of an overriding royalty interest was governed by the AMI provisions in the JOA.

Under the PSA, any lease subsequently acquired by either party within any of five separately-designated AMI’s established in the JOA would be subject to the AMI provision of the JOA.

The JOA’s subsequently-created-interest provision said, in effect:

III.C: Any override (and other interests not important here) created after the date of the agreement would be deemed a Subsequently Created Interest and the burden would be borne by the creating party alone.

JOA Article XVI, Other Provisions, said, in effect:

XVI.A: The JOA will be subject to the terms of the Purchase Agreement. In the event of any conflict between the two, the Purchase Agreement shall prevail.

XVI.G: Subsequently Created Interests shall be subject to this Agreement to the effect that:

If any party were to create an overriding royalty interest (and other interests not important here) after the effective date, such Subsequently Created Interest would be specifically subject to the terms and provisions of the JOA. Three scenarios were described, under all of which the party creating the interest would be responsible for it alone.

XVI.H: Article XVI trumps any other term of the JOA.

XVI.N established the five AMI’s, and gave each non-acquiring party the right to acquire their proportionate interest in any override (and other interests not important here) acquired by any other party.

XH’s View

Article XVI.N obligated Cabot to offer XH the right to purchase a proportionate share of the override. The two provisions were harmonious. The override was not subject to the JOA when Cabot acquired it and as a result was subject to the AMI provisions of the JOA.

Cabot’s View

Jane, you ignorant slut, the Purchase Agreement AMI conflicted with the JOA AMI provision and the Purchase Agreement trumped.

The Result

Cabot wins. The two provisions could not be harmonized. The PSA AMI was limited in scope to subsequently acquired leases, whereas the JOA AMI was broader and included overrides and other interests. Nothing in either agreement said that the JOA was to supplement the PSA. Thus, the override was not governed by the JOA’s AMI.

Musical Analogue

In the case of a song, which should prevail, the original or the cover? Here, you can choose between West Baton Rouge Parish’s own Slim Harpo or The World’s Greatest Rock ‘n Roll Band. The original trumps.

Operator Wins JOA Fight

Posted in Contract Disputes, Operating Agreements

MDU Barnett Ltd. P’ship v. Chesapeake Exploration Ltd. P’ship is at least three things:

  • The culmination of an unhappy relationship between an operator and non-operators.
  • What happens when joint owners’ interests are not aligned.
  • Predictable, given Texas law and the relationship of parties under the model form JOA.

In 2005 Chesapeake and Conglomerate Gas entered into an Exploration and Development Agreement involving Barnett Shale properties. A separate 1982 AAPL Model Form 610 Operating Agreement governed each exploration and development area.

Chesapeake was designated as the  operator, which gave it exclusive control over leasing, drilling and operations. Under the E&D Agreement, Chesapeake was to provide drilling reports, logs, cores, tests and all information gathered from the wellbore. After termination of the E&D Agreement  – on March 1, 2008 – each separate operating agreement governed.

Conglomerate assigned wellbore interests to Oro in June 2008. Oro then conveyed the interests to the plaintiffs, who bought with the intent to sell. In order to do so, the plaintiffs sought development information and acreage maps, which Chesapeake wouldn’t give.  Plaintiffs sued. The claims and their fate:

Negligence and Negligent Misrepresentation - Dismissed 

Plaintiffs claimed that Chesapeake negligently deprived them of well information and financial payments. If the injury flowed from the economic loss to the subject of the contract itself, rather than as a result of the breach of a duty created by law (a tort, for example), the action sounds in contract alone. Here, the alleged economic damages arose from the defendant’s failure to perform under the contract.  This is the economic loss rule in action.

There were allegations of misrepresentation of the viability of the E&D agreement. The complaint stated that they justifiably relied on the representations, which led to damages. This conclusory allegation was insufficient to support a claim for negligent representation.

Fraud – Dismissed

The claim was that Chesapeake fraudulently provided inaccurate or incomplete data wellbore data. The plaintiffs failed to allege fraudulent intent, and the pleading did not meet the heightened pleading requirement in federal court for fraud. The plaintiffs must do more than state that the statements were knowingly false when made or made with reckless disregard of the truth. The allegation in the complaint was not enough to show that the discrepancy was intentional or reckless.

Breach of Fiduciary Duties - Dismissed

  • Trustee/agency relationship: Texas law does not recognize trustee type relationships in operating agreements.
  • Joint venture: An operating agreement giving mutual right of control to both parties may create a joint venture. However, these agreements gave sole operating rights to Chesapeake.
  • Informal fiduciary relationship: Such a claim requires a preexisting relationship between the parties. There was none in this case.

Equitable Accounting - Dismissed

The plaintiffs pled no facts showing that the revenue calculations under the contractual accounting mechanisms were of sufficient complexity to merit equitable relief.

Gross Negligence and Willful Misconduct - Dismissed

This was made, no doubt, to avoid the model form’s exculpatory clause. I’ve reported twice before on the difference between the 1982 and 1989 forms. The exculpatory clause is more favorable to the operator in the 1982 form.

Breach of Contract - The Plaintiff Stays Alive

The assertion was that Chesapeake violated several provisions of the E&D Agreement and the operating agreements, which caused the plaintiffs to suffer out-of-pocket, expectation, and impairment of vendibility damages. The E&D Agreement had terminated by the time MDU bought the properties. The court did not agree with plaintiff’s argument that the operating agreement’s incorporation language preserved the E&D Agreement. The operating agreements incorporated all of the E&D Agreement, including its March 1, 2008 termination date. Under the operating agreements, Chesapeake owed no duty to disclose development plans and acreage maps.

Unlike General Custer, the plaintiffs were not totally poured out. They stated a plausible claim for breach of contract relating to delayed look-back elections, erroneous JIBs, underpayments of proceeds, and improper production charges. These claims survived. Damages would be limited to expectancy damages in the form of financial underpayments of monies owed and overcharges of production costs.

Special thanks to Alexandria Moore, Baylor Law 2L and Gray Reed summer intern.

Our musical interlude is about the Barnett Shale, kind of.

What’s Up at the Department of Energy?

Posted in Energy Policy

Who is that man on the right?

 

 

 

 

 

a.  Lineal descendant of  Wolfgang Amadeus Mozart,

 

b.  Reincarnation of Froederick Fronkensteen,

 

 

c.  Tootsie … in the later years,

 

 

 

d.  Ernest Moniz, Secretary of the U.S Department of Energy

Other than Solyndra, what comes to mind when you consider the DOE (assuming that’s on your mind when an alternative is the NCAA baseball postseason)?

Many view the DOE as does the CATO Institute. Hear the video describing the DOE’s misguided programs over the years.  Let me summarize their point: Off-load regulation of nuclear energy to another federal agency, let private enterprise handle the rest, and save $25 billion every fiscal year.

If that isn’t enough, here is the agency, like the uninvited relatives who make themselves at home in your guest room and won’t leave, imposing your money and mine on a New Jersey wind farm project that state regulators rejected.

But if you like solar you’ll like this news of a solar power grant to the City of Chicago.

What has the DOE accomplished since 1978?  If its original purpose was to reduce U. S. dependence on imported oil? Not much, if I read between the lines of this recent Time Magazine article, which credits factors other than the DOE for recent progress.

But Let’s Not Jump the Gun 

Oil and gas people, before you get too smug, maybe you‘ve heard that the DOE was responsible for, or at least contributed to, the early research of hydraulic fracturing and horizontal drilling that led to the revolution in shale formation production? The report, complete with testimonials, sounds true.

If you think private enterprise can do most things better than government, you probably still say DOE needs to go, but perhaps you will also admit that it has done some good. Maybe you mean to say we need smarter government, not no government.

Musical Interlude

Let’s acknowledge this Administration’s double-talk on energy policy by considering the two-step. There is Jimmy Dale Gilmore‘s Texas dancehall version, which is nothing like the Eunice Two-Step, this one by Robert Bertrand.  (I chose it because  it has the translation.) These two places are separated by more than  just a narrow river.

Special thanks to cousin Paul Provenza for the inspiration for this post.

North Dakota Court Dismisses Flaring Cases

Posted in Regulations, Royalty Disputes

Co-author Katie English

You might recall that North Dakota achieved nationwide notoriety when photos of flaring Bakken wells visible from space circulated around the news. According to the U. S. Department of Energy, at times North Dakota has flared 33% of its gas production, compared to the 1% average nationwide.

You will not be surprised to know that mineral owners whose royalties are going up in flames are beginning to look to the civil justice system for redress. At least in North Dakota, the courthouse isn’t the place to start. A federal judge has dismissed 13 of 14 lawsuits filed against operators in North Dakota by mineral owners seeking damages for illegally flared gas.

The Statute

Under North Dakota law, flaring is generally permitted for one year from first production. Thereafter flaring must cease unless the producer obtains an exemption, which could be for reasons such as economic infeasibility. Producers must pay royalties and taxes on gas flared in violation of the statute.

The Cases

One case was Lawyer v. EOG Resources, Inc., in which the plaintiffs claimed royalties for illegally flared gas, waste and conversion, and claims under the Environmental Law Enforcement Act. The plaintiffs sought to certify a class consisting of similarly situated royalty owners.

The court granted EOG’s motion to dismiss. Plaintiffs failed to exhaust their administrative remedies.  Before making a federal case out of it, they should have petitioned the North Dakota Industrial Commission for relief, and no private right of action exists under the state flaring statute.  The court also found that the ELEA, which allows private lawsuits for violations of environmental statutes, could not be used to circumvent exhaustion of administrative remedies and that the flaring statute preempts common law conversion and waste claims and also precludes claims under North Dakota’s general waste statute.

Chapter 38-08 of the North Dakota Century Code sets forth comprehensive remedies and procedures in order to obtain relief for flaring violations. Interested parties may petition the North Dakota Industrial Commission for a determination of whether gas is being flared in violation of the flaring statute and seek judicial review of any adverse order. These plaintiffs did not fall within any recognized exception to the exhaustion doctrine, such as matters of purely statutory construction, or where exhaustion of administrative remedies would be futile.

I admit it. Today’s musical interlude is too clever, as obvious as a middle-school joke.

Coming Soon

Why is there flaring and what is the industry doing about it?

Maybe someone can explain why it called is the ”Century Code”.

To Conclude

Today is the 70th anniversary of D-Day. The link is to last year’s post about my uncle and his WW II vet comrades. Be proud … and thankful!

 

 

Plugging the Wrong Well is Likely to Impact Your Pocketbook

Posted in Contract Disputes

Thanks to Alexandria Moore – Baylor 2L  and Gray Reed summer clerk – for help on this post.

The Texas Railroad Commission’s contractor, Superior, plugged the 708S-5 well on behalf of the Commission. Oops! The contractor plugged the wrong well. Gulf and the Commission had entered into an agreement that if Gulf, who had a lease from the Commission on the land where the well was located, would make a cash deposit of $400,000 to satisfy the eventual cost of plugging the 708S-5 well, and apply for rescission of the RRC’s plug order for the well, the Commission would postpone plugging. The Commission had a contract with Superior to plug other wells on the same tract, but not the 708S-5.

In Railroad Commission v. Gulf  Energy Exploration Corporation, the jury awarded Gulf damages in the amount of $7 million, which was the cost of drilling a replacement well and the value of lost reserves. The Commission appealed.

The appeal dealt mostly with whether the Commission could complain about the jury questions. Before we get into those “inside baseball”, trial lawyer issues, some lessons can be learned:

Takeaways

  • A governmental agency sometimes must pay for its mistakes at a place other than the ballot box.
  • Operators: Know whether your standard agreements with your contractors addresses this situation. Maybe you are willing to contract away your right to recover from your contractor, maybe not, but at least you will have thought about it.
  • If you lose the jury, you will have a tough time on an appeal for insufficiency of evidence.
  • Lawyers: Always be mindful about whether you are preserving error.  Trial judges aren’t perfect. Sometimes they are even out to get you.
  • Clients: That is sometimes more difficult than it looks.

The Jury Questions

The Commission complained about two jury questions:

No. 1: Did the Railroad Commission fail to comply with its agreement to postpone plugging and abandoning the 708S-5 and

No 8: Did the negligence, if any, of the Commission proximately cause the occurrence in question?”

Error was not preserved. To preserve a complaint of jury charge error a party must

  1. present to the trial court a timely request, motion, or objection;
  2. State the specific ground for the relief requested; and
  3. Obtain a ruling.

At the charge conference at the end of the trial the judge, after listening to the lawyers, decides what questions will be put to the jury. Without a reporter’s record, the appellate court can’t determine if there was reversible error.

The Commission didn’t preserve error because it didn’t object to the charge. In Question One it assumed a contract had been created. A request for a directed verdict did not preserve the error and neither did the Commission’s objection to the admissibility of evidence.

The Commission argued that there was not enough evidence to establish an enforceable agreement, and complained about Gulf’s standing to sue. The court found evidence in the record that the trial court could have relied on to support these findings.

But it didn’t matter. These arguments, and several others, weren’t preserved either.

What’s the EPA Been Up To Lately?

Posted in Climate Change, Environmental Policy

Our wardens at the EPA are “racing to turn out new regulations before the clock runs out on President Obama’s term”, says The Hill.

The EPA is revising its Mercury and Air Toxics Standards for coal fired power plants. According to the US Energy Information Administration, owners of U.S. operators are facing choices:

  • 20% must decide whether to upgrade their coal fired plants at the end of 2012 or retire them,
  • 9.5% intend to retire plants,
  • 5.8% plan to add environmental control equipment,
  • 64% already have appropriate control equipment.

The EPA is also looking to cut greenhouse gas emissions by reaching beyond the plants themselves. The reductions could be met by encouraging power plant owners to expand renewable energy, improve the efficiency of their grids, or encourage customers to use less power. This rule would also allow states to reach their goals by using existing emission-cutting schemes, such as state-controlled and regional cap-and-trade plans.

Questions

 Is this authority is allowable under the Clean Air Act? The complaint is that the EPA has gone ”way beyond the original intent of the Clean Air Act … ”, said Sen. John Barrasso (R. Wyo.). The administration’s response is the EPA is just doing what Congress allowed under the CAA, and we Americans, and thus the EPA, must do more to prevent global warming.

Is this a passing thing or are we in an eternal regulatory vice grip?  Some say the EPA has been winning at the courthouse lately.   Not to worry.  Nothing in politics lasts forever … unless Edwin Edwards wins his congressional election.

Been-There-Done-That

Actor-activists like Mark Ruffalo remain committed to the untruths about contaminated drinking water in places you’ve heard of before: Pavilion, Wy; Dimock, PA; and Parker County, Tx. He has lent his name to a request by fringe group Food and Water Watch and the Natural Resources Defense Council to the EPA to re-open investigations of these alleged contamination sites. Those claims have repeatedly proven to be false.

The Takeaway

“Low Information Voters” are those who, it’s been said, don’t know what they think they know. Those who can be motivated by Hollywood personalities to actually vote can be a threat to progress and common sense. Witness the fracing bans in college towns in Colorado and even in our own Denton County, Texas.

Who’s Next?

The U.S. Chamber of Commerce is concerned that the. EPA’s plans will result in increased energy costs, which will diminish hU.S. competitiveness in the world economy and kill jobs. Coal is “dirty”, you say, and it competes with natural gas, so you might not care. But will the regulatory stampede stop short of sending us all hurtling over the economic cliff? Time will tell. And to be fair, not all regulations cost as much as originally feared.

This musical interlude is dedicated to the EPA and its Administrator Gina McCarthy.

The Fracing Verdict – What Didn’t Get To The Jury?

Posted in Hydraulic Fracturing

As we know, the Parrs won a $2.9 million jury verdict against Aruba Petroleum for a nuisance created by gas wells near the Parrs’ home in Wise County, Texas. Let’s see what claims didn’t make their way to the jury.  (See the court’s web site for the motions  discussed below and other filings in the case).

The Pre-Trial Motions

Halliburton argued in a motion for summary judgment that there was no evidence on these claims:

  • Assault, intentional infliction of emotional distress, negligence, gross negligence, negligence per se,
  • private nuisance,
  • trespass and subsurface trespass to real property.

The court granted Halliburton’s motion on all counts.

Motions for summary judgment were filed by producer defendants asserting there was no evidence for these claims:

  • Intentional infliction of emotional distress,
  • Negligence, gross negligence, or negligence per se,
  • Civil conspiracy,
  • Causation between any alleged act or omission by the defendants and the plaintiffs’ injuries.

The court dismissed all plaintiffs’ causes of action except for nuisance and trespass.

Encana then filed a motion for summary judgment on nuisance and trespass, alleging:

  • Of its 42 wells in close proximity of the home, all but three were drilled and completed prior to the time the plaintiffs said they first experienced health symptoms. Twenty other wells were drilled by operators other than EnCana,
  • Air emissions that comply with the federal and Texas Clean Air Acts cannot be unreasonable as a matter of law with respect to a nuisance claim and cannot constitute a trespass,
  • Migratory particles do not constitute trespass as a matter of law,
  • The common law claims were preempted by the Texas and federal Clean Air Acts. Those statutes and their regulations establish permissible levels for emissions and potential contaminants. Activity that comports with those standards could not be the subject of a civil suit for compliant activity.

This motion was denied, and Encana settled before trial. Those of us who weren’t there don’t know what effect, if any, Encana’s motion had on the settlement. It’s possible that the plaintiffs saw a better target in Aruba and didn’t want to confuse the jury. EnCana was a good operator and there was evidence that Aruba had TCEQ compliance problems.

Somewhere in all this were defendants’ unsuccessful motions that the claims were barred by limitations.

Aruba challenged the damage claims in a pre-trial brief:

  • Future property damages are not recoverable for permanent damage to real property,
  • A plaintiff cannot recover for loss market value of property and costs of repair.

What does it mean?

In the end, the court allowed only nuisance and trespass to be considered by the jury. Defendants might think: We’ll still beat ”fracing plaintiffs” on the traditional causes of action. We’ll see what the trial judge and, if not him the court of appeals, does with trespass and nuisance.

Plaintiffs, without studying the evidence and legal arguments in detail, can’t tell if future cases are likely to end up like Parr, with dismissal of the traditional claims. They no-doubt see the case generally as a victory, in that the nuisance claim got to the jury.

This post doesn’t address the plaintiffs’ personal injury claims. We’ll save that for another time.

Today’s musical interlude reflects a simpler time.  Remember when you could classify a person by whether he was “Ford“ or ”Chevy“.  Giddyup.

Condition Precedent Sinks Chesapeake

Posted in Contract Disputes

A condition precedent was the issue in Preston Exploration Company, et al v. Chesapeake Energy Corporation. This opinion was the result of the parties’ second visit to the federal Fifth Circuit Court of Appeals. In the first trip, the issue was whether the Purchase and Sale Agreement between the parties in a $110 million transaction satisfied the statute of frauds. The court ruled in that opinion that it did.  (See this post discussing that opinion.)

Condition precedent: An event or condition that must be performed by one party before he can require the other party to perform. (Looking to get righteous? Check out Matthew 7:3.)

Before closing, Chesapeake objected that Preston did not have good title to certain properties. Preston responded that it would give marketable title at closing.  Cheasapeake refused to attend the closing and litigation ensued.  The court, referring to its 2012 opinion for details, determined that the condition precedent – to have marketable title, that is, title that a reasonable and prudent person in the industry would accept - had been satisfied. The trial court’s judgment for Preston was affirmed, and the parties were put out of their litigation misery.

Takeaways 

  • Let’s skip the legalities and head straight for the place where business people live. It is a truism among those of us who trade in disputes for a living that your contract is only as good as the intentions of the party you have contracted with. If your counterparty has pockets that are deep enough and a desire to avoid his obligation that is strong enough, he can delay your payday for a long, long time, maybe forever.
  • Current Chesapeake management can be consoled by the fact that this problem was caused by the last, deposed regime.

For our musical interlude – unrelated to the issues in the post – let’s evaluate tawdry, guilt-driven extra-marital escapades.  We have two choices:

A different take on an old favorite of mine  and

a country standard.

 

Barnett Shale Drilling Increased North Texas Ozone – Fact or Fiction?

Posted in Environmental Policy, Hydraulic Fracturing

It’s been said that if you torture numbers, they will confess to anything. Perhaps we should call in a UN peacekeeping force to address the treatment of hydraulic fracturing in North Texas.

A University of North Texas study presented to the North Central Texas Council of Governments by student Mahdi Ahmadi, working with his advisor Dr. Kuruvilla John, concludes:

  • The study relied on 6 million data points from 16 monitors and divided the area into a “Fracking Region” and a ”Non-Fracking Region”,
  • there are 17,494 gas wells over a 5,000 square-mile area in 24 counties in North Texas
  • 11,774 gas wells were drilled from 2007 to 2013, 
  • those wells contributed to an increase in ozone, and therefore in smog and adverse health effects, in North Texas,
  • There were higher ozone levels in the “Fracking Region” than in the “Non-Fracking”. 

The report doesn’t characterize all the wells as producing from the Barnett Shale, but one would assume that comprises the majority. 

If you don’t want to read the report itself (entitled ” An evaluation of the spatio-temporal characteristics of meteorogically-adjusted ozone trends in North Texas”) here is a news report, and another one.

The UNT report seems to contradict a 2012 report by the Texas Commission on Environmental Quality, which found no deleterious effect on the atmosphere caused by Barnett Shale drilling activities. I’m not aware of a TCEQ response to the UNT study.

David Blackmon of Energy in Depth concludes otherwise after analyzing the study’s methodology. Blackmon contends that the raw data shows:

  • An overall reduction in ozone across the region, 
  • the difference in ozone levels between the “Fracking Region” and the “Non-Fracking Region” were not meaningful, and
  • the study failed to take into several important factors, such as ozone levels associated with airport activities, which generate lots of ozone (three airports in the “Fracking Region” and one in the “Non-Fracking”), and the effect of heavier-than-usual snow on the ground in the more rural and more westerly “Fracking Region” during the last several winters (which tends to cause a spike in wintertime ozone levels).

I’m not automatically siding with Mr. Blackmon, and I’m not accusing the UNT reserchers of doing an Abu Ghraib on the data. Sounds like more analysis is in order.

Until then, maybe we should all lighten up and do as the Denton (home of UNT) band Brave Combo recommends.