In ETC Tiger Pipeline LLC v. DT Midstream Inc. et al. it was not as exclusive as the servitude owner wanted it to be.   

Pursuant to a Servitude Of Use For Pipeline, ETC operates a 42-inch, high pressure, high volume natural gas pipeline in DeSoto Parish, Louisiana, that runs from Panola County, Texas, to Richland Parish (east of DeSoto). ETC rejected DTM’s request to be allowed to route a smaller pipeline across ETC’s servitude beneath and perpendicular to ETC’s pipeline. The stated reason was that DTM could not fulfill ETC’s necessary safety and operational requirements.

ETC sought a TRO, alleged that DTM’s actions exposed ETC to immediate and ongoing damages, infringed upon its servitude rights, and constituted trespass, and that its exclusive servitude does not allow any other pipelines to cross the ETC servitude.

DTM responded that at the location in question it planned to cross four different pipelines, including ETCs. The DTM pipeline would run approximately 19 feet below the largest pipeline and 25 feet below the ETC pipeline. DTM had a servitude from the landowner and cleared the crossing with other pipeline operators. DTM claimed it would suffer $18 million in damages and potential loss of its anchor shipper if the project could not be completed. 

Testimony came from several witnesses (10 by my count) covering issues and topics too numerous to discuss here. The trial court granted ETCs preliminary injunction and denied DTMs, preventing DTM from constructing its pipeline. The trial court saw ETCs exclusive servitude as granting the right to prevent DTM’s crossing. DTM appealed.

The court of appeal’s reasoning

The court of appeal reversed, first concluding that ETC had a personal servitude of right of use conferring in favor of a person a specified use of an estate less than full enjoyment. It was not a predial servitude.  

The court observed that the Civil Code anticipates multiple servitudes burdening a servient estate and states that servitudes should be interpreted in favor of the servient estate, which in this case was the owner of the land.

“Exclusive”? No.

ETC argued that its servitude grants the right to use of an unlimited depth and right to prevent other pipelines from crossing under ETCs pipeline. The court did not agree. The one-time use of the word “exclusive” does not mean that ETCs servitude includes all depths and that ETC can subjectively block the crossing of another pipeline. The word “exclusive” does not convey any intent to specifically retain an exclusive depth when the servitude is silent as to depth. The depth was made certain at the time the pipeline was completed. Once that happened, the depth became defined. The servitude granted a broad array of rights inherent in a pipeline servitude, but once the pipeline was completed ETC’s rights are limited to operating and maintenance activities.

The servitude grants ETC the right to lay only one pipeline. A depth separation provision means that the servitude anticipates the possibility of future underground crossings. ETC was not granted the right to prohibit underground crossings; it only prevents any use that may unreasonably damage, injure or interfere with ETC’s use.

The trial court found that safety was not an issue. ETC did not prove that safety was an actual concern and that DTM could not meet ETCs requirements for crossing under its pipeline.

The court saw the record as reflecting that ETC’s concern was to gain a “commercial” benefit from the crossing.

Lagniappe – How will this decision be applied?

While this dispute is between dueling gas pipelines; with increasing competition among pipeline, solar, wind and other servitudes, expect this ruling to have wider implications. 

Your musical interlude

Co-author Gunner West

Itching to sue the government for taking your property? Treme v. St. John the Baptist Parish Council is a reminder that you must have a property interest subject to being taken in order to have standing to sue for a regulatory taking.

Louisiana law recognizes that leases are property interests, and any “substantial interference” with such rights may constitute a taking within the meaning of the state and federal constitutions. But there is the pesky question of standing to sue.

The facts

Treme and his partners (or joint venturers, or not; that was an unanswered question) entered into a mineral lease with Montegut to mine clay from property in St, Bernard Parish to be used in a Lake Pontchartrain flood control project. The lease’s primary term was for three years “from the date Lessee procures approval to commence operations from local, state, and federal authorities, as needed”.  

In order to mine for clay the property had to be rezoned to “rural”. After neighbors complained, Treme et al’s several applications to rezone the property were denied. Treme et al sued the Parish and the Parish Council alleging that denial of the applications was a regulatory taking without compensation in violation of state and federal constitutions and that the denials violated the due process an equal protection clauses of the 14th Amendment. The United States Fifth Circuit affirmed a district court summary judgment for the Parish and the Council dismissing the suit. 

The suspensive condition

Both courts held that under Louisiana law, the lease’s habendum clause constituted a suspensive condition that was required to be fulfilled for primary term of lease to begin. Under Louisiana law, a suspensive condition prevents enforcement of an obligation until the uncertain event occurs. Think “condition precedent” in the common law. Consider a top lease that becomes effective if and when the existing lease expires or terminated.

Treme failed to satisfy the suspensive condition, and therefore the Treme-Montegut lease terminated automatically. Treme had no property interest that was taken from them. Even if the Council prevented the lessees from fulfilling the condition, this did not mean that the condition could be considered fulfilled based on fault of a party. Treme had no standing to sue.

A difference between the district and appellate courts’ rulings was the appellate court dismissed without prejudice, giving the plaintiffs another opportunity if something were to change (what that would be, we don’t know).

Your musical interlude

Recent Texas royalty cases seem to feature litigants on the fixed royalty side trying, more often than not in vain, to escape the clutches of Van Dyke v. Navigator and Hysaw v. Dawkins. See those decisions for the history of how the Supreme Court got to where it is. (Regardless of which side you’re on, recall the admonition that each instrument must be examined according to its own language; arbitrary rules of construction are history.)

Which brings us to Powder River Mineral Partners v. Cimarex Energy et al.  A 1947 Royalty Deed from Chapman to May contained these operative provisions:  

  • Chapman conveyed “ … an undivided … 3/16 of oil, gas and other minerals …” in 120 acres in Reeves County.
  • The intention was that Grantee receive a “3/16 royalty interest … which interest shall not be chargeable with any production costs or expense.”
  • “In the event that the above land should be loaned for the mining of oil, gas and other minerals, Grantees shall be entitled to receive under this conveyance … 3/16th of 1/8th of all the oil, gas or other minerals produced therefrom under such lease.”

The land is under lease to Cimarex for a 25% royalty. The May successors argued that Cimarex should be paying 3/16th of the 1/4 lease royalty, not the 3/128 (3/16 of 1/8) they were being paid.  This post focuses on the Chapman successors’ failed effort to avoid Van Dyke and Hysaw.

The Chapman successors (winners at the trial court, losers on appeal) argued that Hysaw’s presumption against a mathematical approach to deed interpretation should not be applied for two reasons:

  • There is no expressly defined date when the 1/8 confusion would have been effectively cleared up. Would, for example, a 1960 instrument with double fractions present the same presumption that would apply to a similar instrument in the 1920s. The Supreme Court in Hysaw was confronted with a will from the same year as the Chapman-May Deed.
  • A 1942 article by Professor A. W. Walker, Jr. explained when double fractions were used what such words meant. The court rejected this characterization of Prof. Walker’s article for two reasons. First, the article more pointedly discussed oil payments which are form of bonus payment belonging to the executive right owner. Second, an excerpt of the article advocated for the use of a single fraction, not a double fraction, when the intent is to create a fixed royalty interest.

Other unsuccessful arguments invoked the language of the Deed itself:

  • The granting clause in the Deed did not use a double fraction. Rejected, said the court; the broad language in the grant could not be harmonized with the double fraction found in the second paragraph if the intent of the double fraction were only to convey a fixed 3/128 royalty.
  • The Van Dyke presumption is rebutted because that instrument was a conveyance of the minerals with a royalty reservation whereas the Chapman-May Deed conveyed a royalty interest. That distinction made no difference to the court.
  • The royalty conveyance was effective only in the event the subject property was leased. The court disagreed. The Deed conveyed an interest in all future royalties that was effective upon execution.
  • The double fraction language itself rebutted the presumption because the double fraction unequivocally conveyed a fixed royalty. But Hysaw and Van Dyke stand for the completely opposite outcome. This argument was denied as being circular.

Not discussed in this post is the court’s discussion of why the Deed conveyed a royalty interest and not a mineral interest.

Your musical interlude, just in time for Easter.

Coauthor Gunner West *

“Every unnecessary law helps fashion the noose we will ultimately be hung by.”
― A.E. Samaan

If you deny the administrative state’s need to dominate the most mundane aspects of your everyday life, consider Louisiana, et al  v. U.S. Department of Energy. It’s more gradual than the noose but just as inevitable. They’ve come for the washers and dryers. Are the gas stoves next?

The Repeal Rule

The DOE in 2020 released Final Rules creating classes of clothes washers and dryers and dishwashers with short cycle times. This was in response to a petition by the Competitive Enterprise Institute to relieve those machines from burdensome regulations that impeded performance.

On the day of his inauguration President Biden ordered the DOE to repeal the appliance classes created by the 2020 rules.

Standing

Louisiana and 10 other states sued to invalidate the so-called “Repeal Rule”. In response to the DOE’s challenge to the states’ standing, the states were able to show an injury in fact that was fairly traceable to the defendant’s action and was likely to be redressed by a favorable decision.

The injury? The states lost the opportunity to purchase products precluded by the regulation, which constituted an injury in fact. Market participants are injured when their product choices are constrained by regulation. The states had lost the opportunity to purchase faster and more efficacious appliances.

Arbitrary and capricious

The Repeal Rule was arbitrary and capricious for two reasons. First, the agency failed to articulate a rational connection between the facts it found and the decision it made. Then, the agency’s reasoning failed to account for relevant factors or events, which was a clear error of judgment. In short, the DOE did it because it could.

An agency is not precluded from revising policy, but changes require careful comparison of the agency’s statements to ensure that the agency has recognized the change, reasoned through it without factual or legal error, and balanced all relevant interests affected by the change.

In the Repeal Rule the DOE stated that its energy conservation program must promote water conservation and regulate water use, but the court did not see how the DOE believed it had statutory authority to regulate water use in dishwashers and washing machines. An agency has no power to act unless and until Congress confers power upon it. The DOE’s assertion of regulatory jurisdiction over water usage in these appliances was not in accordance with law and exceeded its statutory authority.

The regulations did the opposite of what they intended

Even if the DOE could consider the appliances, the DOE did not dispute that the 2020 efficiency standards were likely to make Americans use more energy and more water for the simple reason that, said the court, purportedly energy-efficient appliances don’t work. In 2020 the DOE said that efficiency standards increased dishwasher cycle time from around one hour to around 2 1/2 hours. In 2011 the DOE said that handwashing that would be required because of the inefficiencies in the regulated appliances uses 350% more water and 104% more energy than machine washing.

Conclusory statements are not enough

The DOE supported its position with conclusory statements that did not constitute adequate agency consideration of important aspects of the problem. The DOE failed to account for relevant data and articulate a satisfactory explanation for its action, including a rational connection between facts found and the choice made. 

The DOE’s belief in 2022 that the 2020 rules violated the EPCA was an insufficient reason to justify the Repeal Rule and DOE failed to consider alternatives. That was arbitrary and capricious.

Your musical interlude.

* Gunner is a soon-to-graduate student at South Texas College of Law and soon-to-be associate at Gray Reed.

This post is a summary of a more detailed Client Alert prepared by Gray Reed’s labor and employment practice group.

Recall our recent post on the Department of Labor’s new “Economic Realities Test” for classifying specialized contractors and consultants as either employees or independent contractors. The new rules make the compliance minefield much riskier. The DOL has now provided guidance on how it will apply the Test.

The prior post discussed the six factors to assess if a worker is economically dependent on the company (an employee) or truly in business for themselves (a contractor).

The most critical clarifications from the DOL involve analyzing:

  • the nature of the investments made,
  • the degree of control exerted, and
  • whether the worker’s skills involve entrepreneurial initiative.

Investments: The DOL will look at qualitative similarity rather than just dollar amounts. For example, a company man providing his own specialized tools and equipment could be viewed as making a similar investment in the company, even if the company’s investment is higher.

Degree of Control:  The DOL acknowledges operators, material and equipment providers, landmen and others may need to exert certain control to comply with industry regulations without making the worker more likely to be classified as an employee. But exceeding what regulations require, such as excessive monitoring or approval processes, could signal an employment relationship.

Skill and Initiative: The DOL focuses on whether contractors market their skills to different businesses. An expert deployed to work solely for one company wouldn’t indicate contracting, while those marketing their skills more broadly would.

Ultimately: The test analyzes overall economic dependence. Contractors must be truly in business for themselves rather than relying on and being controlled by one company as their main revenue source.

Employer: Take a close look at your contractor relationships and honestly assess their entrepreneurial independence. Are they building their own business and client base, or are they economically reliant on the company?

Worker: You should do the same.

Your musical interlude

Frontier Drilling, LLC v. XTO Energy, Inc. has the indicia of an inequitable result, but as I remind my wife every time she objects to what she deems to be an outrageous jury verdict, we don’t know all the facts and the court’s gotta follow the law, so let’s not judge.

The facts

Drilling contractor Frontier and operator XTO were parties to a drilling contract that was amended several times by negotiations via oral and/or email communications and then written agreements memorializing the discussions.  Frontier’s Rig 27 was moved to a site where a certain blowout preventer was required. Frontier offered to install the BOP in exchange for a one-year contract extension. XTO emailed Frontier, “ … XTO will need the 10000 BOP stack immediately. Can we just do an amendment on the stack and another separate amendment later?”

Frontier said yes and sent the amendment to be executed. The contract stated that XTO’s execution would serve as the amendment. Having not received the XTO-signed copy, Frontier emailed XTO, stating that they are in the process of taking the BOP to the rig and asked for the signed agreement. XTO responded, “Please consider this email as authorization to execute the swap … Management is traveling and is in the process of approval.”  Six months later XTO said it would not execute the amendment and would not pay the costs associated with the installation.

Frontier sued. XTO asserted that the parties never reached an agreement and in any event, such an agreement would violate the Statute of Frauds. XTO’s motion for summary judgment was granted and the case was dismissed.

The SOF applies to any agreement in which performance cannot be completed within one year. The court said it did not have to decide if the parties reached an agreement because if they did, the SOF would render the agreement unenforceable. The agreement would be effective in February 2020 and it would not be completed until December 2021. The SOF applied and barred enforcability.

Was the contract signed?

The parties disputed whether the agreement was signed by the person to be charged. XTO’s “Please consider this email as authorization … ” email did not satisfy the signature requirement. Under the Texas Uniform Electronic Transactions Act, if a law requires a signature an electronic signature satisfies the law if the transaction is between parties who have both agreed to conduct the transaction by electronic means.

Whether the parties had such an agreement is determined from in the context and surrounding circumstances, including the parties’ conduct. The court concluded that every prior contract and amendment consisted of a written agreement signed by both parties. Their conduct did not demonstrate an agreement to conduct transactions via email. In fact, it demonstrated the opposite.

Performance?

Performance can constitute an exception to the SOF. Under the full performance exception, the SOF does not apply “where one party has fully performed under the contract and the only thing remaining is performance by the other party.” Although Frontier installed the BOP, it did not provide Rig 27 for XTO’s use through December 2021. Frontier did not fully perform.

The partial performance exception allows for equitable enforcement of a contract that otherwise fails to comply with the SOF when the contract is partially performed and denial of enforcement would amount to virtual fraud. But the partial performance must be unequivocally referable to the agreement and corroborative of the fact that a contract actually was made. Frontier’s installation was not unequivocally referable to the alleged agreement because Frontier had previously installed a BOP on a different rig free of charge.

That the court was “sympathetic to Frontier’s predicament” didn’t alter the result.  

Your musical interlude

Landowner and mineral owner (that includes you, lessee): Under ETC Texas Pipeline, Ltd. v. Ageron Energy, LLC, your right to sue for damages for tort or trespass could pass into history before you even know you have a claim. Here’s why:

Under the legal-injury rule (more on that later), a property claim based on trespass or tort accrues even if the claimant:

  1. Does not yet know a legal injury occurred,
  2. Has not yet experienced or gained knowledge of the full extent of the injury,
  3. Does not yet know the specific cause of the injury or the party responsible,
  4. Later suffers additional injuries. or
  5. Has not yet suffered or cannot yet ascertain any or all of the resulting damages.

The background

In 2012 mineral lessee Swift and landowners the Quintanilla Ranch and the Dickinson Ranch sued Regency Field Services (now ETC) for tort and trespass in connection with Regency’s H2S disposal well. See our previous posts for a history of that case.

The Supreme Court ruling reversing the

Court of Appeals ruling

The new dispute

In 2021 Ageron obtained a permit to drill an Eagle Ford Shale well on mineral leases on the Dickinson Ranch. The well was located near ETC’s H2S disposal well. Ageron’s permit application included a 40-page H2S contingency plan.

Despite extensive safety precautions, H2S ate through Ageron’s drill pipe, severing it at 61 feet into ETC’s injection zone in the Wilcox formation. The well was abandoned and Ageron’s leases expired. Ageron sued ETC for negligence, nuisance, and trespass, assessing its damages at $197 million.

ETC moved to dismiss based on Ageron’s lack of standing, arguing that the H2S claims accrued in 2012 to the Dickinson Ranch owners. The trial court denied the motion. The court of appeals reversed and dismissed Ageron’s suit.

The legal-injury rule.

For a court to have subject matter jurisdiction over a case the plaintiff must have standing to sue.  The right to sue belongs to the person who owns the land when the injury occurs and does not pass to a subsequent owner without an express assignment.

A claim for trespass to a mineral lessee’s rights accrues when unauthorized conduct first invades or interferes with the claimant’s legal rights. Hence, the admonition at the beginning of this post.  This results in accrual of not only claims arising from this injurious event but also all other claims the owner might have had arising from the same allegedly wrongful conduct, whether ripe or not.

The single-action rule

A trespass or tort committed against an undivided estate involves only a single, indivisible action for all co-owners. If Jeffrey Dickinson’s present and future mineral interest claims arising from the injection operation accrued no later than November 2012, when his cows died from escaping H2S similar claims of all other Dickinson Ranch owners, including the Dickinson lessor on whose tract Ageron’s well sat, also accrued then.

Ageron did not have standing as a mineral lessee because it did not have assigned claims from a prior landowner or lessee.

Note: The court declined to decide whether a mineral-development claim accrues only after a drilling attempt fails. Regardless, Argeron’s claim failed because of the single-action rule.

The dissent

The dissent reasoned that, per the Supreme Court in Lightning Oil, an unauthorized interference with the place where the minerals are located is a trespass as to the mineral estate only if it infringes on the mineral lessee’s ability to exercise its rights.

Argeron’s petition should be construed as intending a “trespass on the case” for its claimed injury to its right to develop the leasehold. As pleaded, Ageron’s injury is concrete and particularized, not hypothetical.

The Dickinson family’s claims in the prior suit were different from Ageron’s, and any claim the Dickinsons would have had for injury to their right to develop their minerals would be premature. The Dickinson family’s pleading failed to allege any such injury.

Relying on the single-action rule requires future operators to bring causes of action when damages are impossibly speculative and premature. The majority’s conclusion conflates a surface owner’s trespass-to-possessory-rights cause of action with a trespass cause of action belonging to a mineral lessee who sustains an injury while developing its mineral interests.

Your musical interlude.

According to Darkhorse Water LP v. Birch Operations Inc. et al., the form of an instrument affecting real property in Texas does not affect the interest conveyed by the instrument. It’s what the document says about the transaction, not what the document calls itself. And you are reminded (because you know should this) that, other than for good reasons in limited occasions, nothing good comes from failing to promptly record an agreement affecting real property in the public records.

The dueling agreements

When Billie Pat McCaskle signed a Saltwater Reclamation, Treatment, Water Purchase and Saltwater Disposal Agreement with Darkhorse on his (or hers, not sure, don’t make me say “their”, there’s only one of ’em) 20 percent interest in a tract of land. The agreement was promptly recorded in the Public Records of Martin County, Texas.  Three weeks before the Darkhorse agreement, Billie Pat and the other McCaskles signed a Surface Lease Agreement with two Birch entities. That agreement was not recorded until 19 months later.

The Darkhorse Agreement granted to Darkhorse the exclusive right to

  • Drill for, produce, treat and transport water for sale to third parties;
  • Utilize the property for disposal of saltwater and other waste produced from oil and gas leases;
  • Drill and equip brine wells and freshwater wells, or saltwater disposal wells;
  • Use and operate the facilities to reclaim or treat wastewater, produced brine water and fresh water.
  • Construct pipelines and flow lines to transport produced water;
  • Construct roads and facilities convenient for Darkhorse’s enjoyment of the conferred rights.

Billie Pat would be paid royalties of a percentage of the amounts received by Darkhorse from its operations. There was a habendum clause (“… for as long thereafter, … ) similar to that found in an oil and gas lease.

It was a sale of reservoir storage space

Did the Darkhorse agreement grant an ownership interest in the property sufficient to allow Darkhorse to assert a claim to quiet title against Birch? To answer that question the court had to determine if the Darkhorse agreement was a sale of an ownership interest in real property or a merely a traditional occupancy lease.

The Darkhorse Agreement was a grant of a determinable fee interest in the subsurface reservoir storage space, or the subsurface matrix, of the property. The exclusive ownership of Billie Pat’s undivided interest in the reservoir storage space was conveyed to Darkhorse during the life of the agreement for the purpose of saltwater disposal. Accordingly, Darkhorse had a sufficient property interest under its agreement with Billie Pat to bring an action to quiet title against Birch.

Was Darkhorse a bona fide purchaser?

Time, and a trial after remand, will tell. The court declined to render judgment on Darkhorse’s suit to quiet title. Such a claim is based on Darkhorse not having prior notice of the Surface Lease Agreement. It seems like Birch could have avoided this entire mess by timely recording its agreement in the Official Public Records of the county.

A bona fide purchaser is one who acquires property in good faith, for value, without notice, constructive or actual, of any third-party claims or interests. A bona fide purchaser prevails over a holder of a prior unrecorded deed or other unrecorded interest in the same property. Darkhorse had not met its burden at the trial court to establish that it was a bona fide purchaser. The court of appeals remanded to determine Darkhorse’s claim to quiet title and for an accounting.

Your musical interlude

Antero Resources Corp. v. C & R Downhole Drilling, Inc. et al, proves again the extreme risk when one bites the hand that feeds him. Shoutout to Greek poet Sappho, 600 BCE.He She (oops) probably had a Dalmation. Antero sued former employee Kawsak and his accomplices Robertson and his companies for breach of fiduciary duty, fraud, and unjust enrichment. The jury award Antero $11.1 million against Kawsak in actual damages, $775,000 as recoupment for the value Kawcak received as a result of the breach, ad forfeiture of 130,000 shares of stock in Antero Midstream. It could have been worse. The district court had denied Antero’s request that Kawcak disgorge $12 million in salary and vested stock, reasoning that Antero was made whole with the damage award.

Why is it a big deal?

A “fiduciary duty” apples to a person who occupies a position of particular confidence towards another and requires a higher standard of behavior than in just about any other relationship. Employees owe the duty to their employers.

The bad acts

Kawcak was Antero’s Marsellus Shale operations supervisor. From 2011 to 2015 he arranged to hire companies owned by his close friend Robertson to perform post-frac drillout operations. Kawsak and Robertson were “dealing under the table”, as the court described it. Kawcak gave Robertson confidential information on Antero’s other drillout vendors so that Robertson could underbid the competition. As if winning the contracts wasn’t enough, Robertson’s companies deliberately took longer than necessary to conduct operations, and employees dropped tools down the well, brought faulty equipment to well sites, and allowed other equipment to freeze.  All of this resulted in costly delays.

During the five-year period Kawcak received $2.6 million in salary and bonuses and unrestricted stock grants from Antero. during the same time, Kawcak received a private jet and $729,000 in cash payments from Robertson.

Damages – close enough

On appeal Kawcak challenged the calculation of Antero’s damages. Antero’s expert Taylor determined that Robertson’s companies took longer to carry out operations than other drill-out vendors beginning in similar working conditions, accounting for uncontrollable delays and site-specific conditions.  He opined that Antero’s loss caused by the inefficiencies was $11.1 million.

Kawcak claimed that there was uncertainty as to the fact of Antero’s out-of-pocket damages, which in Texas is fatal to recovery. The court concluded that Kawcak’s argument really went to the amount of damages, not the fact of them. Kawcak was arguing that Taylor failed to prove $11.1 million of overbilling, not that he failed to prove overbilling at all.

According to Kawcak Taylor should also have done an invoice-by-invoice analysis. But it didn’t follow that Taylor’s testimony was no evidence at all. Perhaps Antero could have offered a more precise estimation of how the Robertson companies overbilled it, said the court, but all that was required was an estimate of damages with a reasonable degree of certainty. Taylor’s method was a “perfectly rational way” of approximating overbilling.

Competitors’ rates don’t matter

Kawcak alleged that Taylor’s testimony was faulty in that he didn’t consider what rates competing drillout contractors charged. Evidence of a competitor’s rate is not necessary to prove out-of-pocket damages. Plus, Kawcak’s testimony was found to be not reliable and not credible.

Potential offset for Robertson settlement

All wasn’t lost for Kawsak. The court concluded that the district court should have allowed him an opportunity to conduct discovery on how much Antero received in settlement from Robertson and to ask for an offset from the award. The case was remanded for that purpose.

Your musical interlude, Mardi Gras edition.

A lot, it turns out. The Biden Administration, bending the knee to the progressive wing of the Democratic Party, has paused approval of new LNG export facilities. (In terms of influence on the President, this “wing” is looking more like the breasts, the thighs and drumsticks, the other wing, and the piece that went over the fence last. No news from the giblets).  

What would a permanent ban, which could result after the government conducts its “robust” examination of LNG exports, look like? In NR Capital Matters, Andrew Follett refers to it as a “strategic crippling that would cost already wavering American allies to reconsider cozying up to the Kremlin, cut the heart out of the booming American natural gas industry, and likely increase American energy prices in the long term.” What other choices would our allies have? Europe’s already dwindling economic output will diminish even further, and the US will forego the opportunity to reduce our trade deficit. Other perils abound: increasing use of CO2-emitting coal is an obvious one and losing market share in Asia to ambitious Qatar and Iran is another.

The move was not popular everywhere. It will immediately shut down four pending projects at enormous cost to investors and lost jobs.

“Here’s reality: LNG is going to be produced. It is going to be sold on the global market. It is going to be used. Those things will happen whether new export terminals are built or not,” says Andrew Stuttaford in National Review’s Capital Matters. A ban will not impact global warming.

Virtue abounds

The mayor of London has signed on to a treaty sponsored by the World Economic Forum requiring London to ban meat, dairy and private car ownership by 2030, says Timothy Gardner of Planet Today. It’s the initiative from the C40 Cities (C40Cities,org). The proposals include “climate action plans” that include “consumption interventions” such as prohibiting citizens from purchasing no more than three items of clothing a year and flying more than once every three years. I want to be there when they tell Leonardo DiCaprio, John Kerry, and their fellow climate warriors. The details are vague and inisidously non-threatening.

Speaking of Davos, the new exquisitely coiffed president of Argentina, Javier Milie, presented the argument for a capitalist alternative to the socialist leaning group-think of the global elite attendees.

… and of governments. Here is a cute story about two governors, a coyote and a dog.

Are you being told the truth?

“Falsehood flies, and truth comes limping after it so that when men come to be undeceived, it is too late; the jest is over, and the tale hath had its effect.” Jonathan Swift.

… which leads to the myriad untruths your government is telling you about the journey to “Net Zero”, says James Varney in RealClearInvestigations. How much land is required for a windmill? Orders of magnitude more than you are being told.

And dissent is stifled says John Murawski in RealClearInvestigations. He cites the critics’ reasoning, banned from the official discourse, behind why there should not be concern about a “crisis”. Remember, the ones who control the data control the debate.

Your musical interlude.