You may recall our report that the Supreme Court of Texas was to take up the question of  whether an insurance policy required indemnification of over $100 million in defense costs related to the Macondo well blowout. The court has ruled in Anadarko Petroleum Corp. v. Houston Casualty Company. Anadarko, the insured, prevailed on the coverage question and the case was remanded to the trial court.

Rather than try to explain it myself, I direct your attention to this definitive summary of the opinion from Gray Reed’s insurance practice group:

Darin Brooks
Kristin Kelly
Brian Waters

I invite you to contact one of them for a more detailed explanation of the opinion.

Litigants and young lawyers, never been to federal court? Here is all you need to know.

 

Co-author Niloufar Hafizi

The Colorado oil and gas industry breathed a collective sigh of relief when the state Supreme Court announced its unanimous decision in Colorado Oil and Gas Conservation Commission v. Martinez. The court sided with the Commission in rejecting a proposed rule by a group of teenage plaintiffs that would have precluded the Commission from issuing oil and gas drilling permits “unless the best available science demonstrates, and an independent, third-party conforms, that drilling can occur in a manner that does not cumulatively … impair Colorado’s atmosphere, water, wildlife, and water resources, does not adversely impact human health, and does not contribute to climate change” (Notice the skillful use of “and” and not “or”).

After denying the request the Commission prevailed at the district court. The plaintiffs won a split court of appeals decision in which the majority concluded that the enabling statute – the Colorado Oil and Gas Conservation Act – authorized the Commission to condition a drilling permit on a finding of no adverse cumulative impacts to public health and the environment, and that the Commission had improperly refused to make a rule that was within its power.

The Supreme Court

The Supreme Court upheld the Commission’s ruling, focusing on the Commission’s primary reason for refusing the proposal: It did not have the statutory authority to impose the condition of “no cumulative adverse impacts” on a drilling permit application. The enabling statute identified multiple policy goals for the agency and contained a declaration of purpose stating how it was “in the public interest to…[f]oster the responsible, balanced development, production, and utilization of the natural resources of oil and gas in the state of Colorado in a manner consistent with protection of public health, safety, and welfare, including protection of the environment and wildlife resources.” [emphasis added] The Commission interpreted that language as a requirement to balance oil and gas production with the other concerns. The plaintiffs argued that “in a manner consistent with” is the equivalent of “subject to”.

The Court looked at legislative history, legislators’ comments, and the entire statute to conclude that the Commission “is required…to foster the development of oil and gas resources, protecting and enforcing the rights of owners and producers” while taking steps to, as the statue puts it, “ … to prevent and mitigate significant adverse environmental impacts to the extent necessary to protect public health, safety, and welfare, but only after taking into consideration cost-effectiveness and technical feasibility.”

After analyzing the Act, the court found that the Commission had been correct in determining that the proposed rule was outside its statutory authority.

Takeaways

  • In light of this suit and Proposition 112, one can conclude that a large and dedicated group of environmentalists is out to put an end to the Colorado oil and gas industry.
  • This was a statutory construction case, not a referendum on what the Supreme Court thinks about oil and gas drilling.
  • The battle at the Commission isn’t over. One reason for denying the proposed rule was that the commission is working with the Colorado Department of Health to address the plaintiffs’ concerns.
  • The youthful antagonists were represented by the same group of actors who are behind Juliana v. U. S., now on an appeal by the government in the Ninth Circuit Court of Appeals. That’s the case asserting that the federal government’s failure to reduce carbon emissions violates plaintiffs’ constitutional rights and the government’s obligations as a public trustee.

We will have a more in-depth report on Martinez soon.

In the meantime, let us despair over the Debacle in the Dome.

Co-author Niloufar  “Nikki” Hafizi

The 2012 Macondo Well blowout and Deepwater Horizon rig explosion gave rise to a slew of lawsuits. Our subject today is one of them. In Houston Casualty Company v. Anadarko Petroleum Corp. the Beaumont court of appeals construed an insurance policy’s excess liability coverage provision. At stake was whether Underwriters had to indemnify Anadarko for over $100 million in defense costs. In an opinion much-decried by energy companies, the court thought not.

The Texas Supreme Court will review the decision, so let’s look at what the court of appeals said.  Continue Reading Texas Supreme Court to Consider Macondo Blowout Insurance Dispute

Occasionally we visit issues larger than one-off courthouse decisions. Here are a few selected stories on the extent to which fracking contributes to rising levels of methane and, maybe, to climate change. There are conflicting facts and opinions, so decide for yourself. If you find a tilt in one direction, we’re just levelling the field. See the last entry. Continue Reading What’s New in the Methane Debate?

UPDATED

In light of the adverse effects the storm, floods and tornadoes will have on oil and gas production, transportation and processing operations, we offer several bits of advice:

Force majeure

Winds and floods are among the very reasons for the seldom-invoked force majeure provisions of your oil and gas leases, operating agreements, transportation agreements and other contracts. If your operations are affected by the storm, study your contracts and be mindful of what you will need to do and when in order to invoke the protections force majeure clauses offer. Continue Reading Hurricane Harvey and Oil and Gas Operations – What To Do

A Black Rhino running towards the camera, Kruger National Park

Forest Oil Corporation v. El Rucio Land and Cattle Inc. et al deserves your attention for four reasons:

  • You won’t see another one involving damage to a rhinoceros pen.
  • It confirms that the Texas Railroad Commission does not have exclusive or primary jurisdiction over private claims for environmental contamination. Welcome to the courthouse.
  • The South Texas redistributionist approach to civil justice includes arbitrations.
  • For once, the Texas Supreme Court declined to eviscerate a multi-million dollar plaintiff victory.

Continue Reading Oil Field Contamination Award Upheld

bad-dayIt was a bad day for the Parrs in Aruba Petroleum v. Parr. The trial court judgment was against the operator for intentional nuisance. The Parrs recovered $2.9 million for pain and suffering and mental anguish and for loss of market value of their home caused by Aruba’s gas wells in Wise County, Texas. (See our erudite discussions of this case at the trial court here, here and here.)

This, along with Cerny v Marathon Oil, makes one wonder what it might take for a Texas plaintiff with a nuisance claim arising out of oil and gas activities to recover personal injury damages, especially if there are operations in the area by non-defendants (there were no wells on the Parrs’ property and 87 other wells in the area).  As you will see, litigation by ambush is not likely to work.

The Parr’s claim was for “environmental contamination and polluting events” on their property by way of, among others, air contamination, light pollution and offensive noises and odors.

Recall Crosstex v. Gardiner, in which the Supreme Court described what is required to prove an intentional nuisance:

The actor desires to cause the consequences of his act or believes that the consequences are substantially certain to result from it. It is a subjective standard. It is not enough to conclude that the defendant intentionally engaged in the conduct that caused the injury.

The Parrs relied on three categories of evidence:

  • complaints by a neighbor to Aruba,
  • complaints to the Texas Commission on Environmental Quality,
  • complaints by the Parrs to Aruba.

Generalized, anonymous grievances fall short

For all their complaints, the Parrs never identified themselves or their specific problems to anyone in particular at Aruba. They failed to identify evidence that Aruba knew that the Parrs were complaining to the TCEQ or that complaints were about the Parr’s property.

The jury didn’t believe Aruba’s conduct was abnormal and out of place in its surroundings. Recall that after Crosstex that is an improper jury question anyway.

My guess is that the jury was persuaded by testimony of an Aruba witness that well sites are noisy, dusty, emitted odors, and result in underground vibrations and significant lights at night, that the Parrs “probably “ had complaints, that he considers smoke plumes a health hazard and a nuisance. That all might be true, but to the court that wasn’t the issue.

It’s all about the evidence

There was no evidence to support the jury’s finding that Aruba intentionally created or maintained a condition that substantially interfered with the Parrs’ use and enjoyment of their land. The Parrs couldn’t cite any evidence that Aruba knew who placed phone calls to Aruba and complained to the TCEQ, or that complaints were specific to the Parr’s property.

For our musical interlude, happy Valentine’s Day.

wolfLast week we discussed why the EPA’s plan to limit methane emissions from existing oil and gas facilities is good. Now we will consider reasons why the plan is not prudent.

Will the rules be good or bad for America?

The President says good. Will it be as “good” as the ACA?  While you decide for yourself, consider these facts:

Methane is down

From 2005 to 2014 natural gas production increased by 33 percent and methane emissions from natural gas systems decreased 11 percent.  The EPA places the natural gas industry in third place on the list of methane emitters behind landfills and “enteric fermentation” (It’s Blazing Saddles, but with cows).

What’s wrong with the free market?

EPA’s last greenhouse gas inventory in April 2015 specifically credited a 38 percent drop in methane emissions since 2005 to voluntary efforts by producers.  Where is Friedrich Hayek when we need him?

Is it worth the cost?

Methane emissions from natural gas systems represent 3.4 percent of all the greenhouse gases emitted in the United States.  EID has done the math: Assume methane emissions every year from 2025 to 2100 are kept at the target of 45 percent reduction from 2013; that would impact global temperature by .004 degrees Celsius. Some would call that benefit de minimis compared to the cost.

Close enough for government work

In justifying new methane rules the EPA assumed substantially higher natural gas prices than did the EIA. Result: Faulty cost-benefit analysis. How has the agency has fared in other regulations? It estimated its new CAFE standards would save consumers a few thousand dollars on gas and add $948 to the cost of a new car. Three different groups have gauged the additional cost to be more like $3,800 even after fuel savings.

Crazies debunked

EID reports on the debunking of Bill McKibben’s fracking “facts”  Highlights (details in the links):

  • Several of his claims have even been rebuked by the IPCC, the international global-warming alarmist enterprise.
  • The IPCC considers the rapid deployment of hydraulic fracturing as an important reason for the reduction of greenhouse gas emissions.
  • The Harvard study allegedly showing the nation is leaking methane in “massive quantities” doesn’t point to shale gas production as its source.
  • The greatest methane increases have been in areas where there is no shale development.
  • Even the EDF agrees: Study after study shows that emissions are far lower than Ingraffea claims.
  • Gasland has proven to be a fraud.

A contrary look at the EDF study 

Several observations about last week’s EDF’s study:

  • Alex Trembath of the Breakthrough Institute explains that methane leakage is a minor factor in determining the benefit of coal-to-gas transition; such levels are within acceptable ranges.
  • Even after targeting the “super emitters”, the EDF study shows an overall very low methane leakage rate.

Mother’s Day is coming up.  How about a musical interlude for Mom!

dodgeballYou might recall previous entries discussing Parr v. Aruba (here is one) – a suit for personal injuries from oilfield pollution (and a $2.9MM verdict for the plaintiffs). Not all similar suits have the same result.

You could liken Cerny v. Marathon Oil and Plains Exploration & Production to a game of legal dodgeball.  The “ball ” that the plaintiffs could not avoid  was causation, thanks to Merrell Dow Pharmaceuticals, Inc. v. Havner. 

Gray Reed attorneys Jim Ormiston and Mitch Ackal represented Plains. The summary judgment at the trial court was upheld by the court of appeal.

The claims  

The petition alleged, among other claims: 

  • continuous release of “ … strong odors and noxious chemicals into the environment, including the plaintiffs’ property, causing injury and harm to the plaintiffs’ property and to their persons … ” from Marathon wells and Plains facilities, and
  • health problems, including headaches, rashes, chest pain, “strange nerve sensations,” high blood pressure, nausea, difficulty breathing, nosebleeds, anxiety and depression.

The causes of action were private nuisance, negligence, and negligence per se.

The problem for the plaintiffs

To dodge Havner, the plaintiffs had to satisfy these requirements:

  • Prove with scientifically reliable expert testimony that their exposure to the defendant’s product more than doubled the plaintiff’s risk of contracting the disease.
  • Where multiple sources of exposure exist, prove substantial factor causation. “Some” or “any” exposure won’t get it done.
  • There must be defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, along with evidence that the dose was a substantial factor in causing the disease.
  • Present reliable epidemiological and scientific evidence.

Ducking the problem

In an effort to satisfy the requirements, the plaintiffs:

  • Disclaimed specific diseases, instead alleging symptoms,
  • Disclaimed “personal injury damages” (which would require expert testimony under Havner),
  • Sought recovery for “discomfort”, rather than disease,
  • Submitted affidavits and reports from an air quality expert, a forensic meteorologist, a toxicologist, the Cernys themselves, and a lay witness who collected air samples at the Cernys’ home and at a Plains facility several miles away.

The result

When considering the following conclusions, think “causation”:

  • The trial court struck virtually all of the plaintiffs’ evidence, expert and otherwise.  Thus, the plaintiffs had no proof. The evidence was speculative, hearsay, unreliable, and unqualified lay opinions.
  • The plaintiffs failed to establish that the pollution came from the defendants’ operations and facilities, and not from dozens of other oilfield operations in the area.
  • The court did not accept plaintiffs’ assertion that claims for symptoms, rather than disease, sidestepped Havner. It was still a toxic tort case.
  • There was no direct, scientifically reliable proof of actual causation.
  • Other potential causes of the Cernys’ illnesses were not addressed.
  • The Cernys had plenty of symptoms before the events they sued on.

Free advice

I submit that the plaintiffs had the wrong kind of expert.