In Texas, no. Read on to learn why. In Nortex Minerals LP v. Blackbeard Operating LLC et al, the question was the meaning of this limited assignment provision in the “Alliance Leases”, oil and gas leases covering 27,000 acres of the Alliance Airport in Tarrant County:

Except as provided herein, Lessee may not assign or otherwise transfer an interest in this Lease without prior written consent of Lessor, which consent may be granted or denied in the sole and absolute discretion [,] and without such consent, any instrument purporting to assign or otherwise transfer of this Lease shall be void. Lessee shall have the right to transfer this Lease in its entirety without obtaining consent of lessor if such transfer of the Lease is (i) part of a merger, sale of membership interests or combination of Lessee and other entity [,] or a sale of all or substantially all of Lessee’s assets or (ii) as part of a transaction in which the transferee is a publicly traded energy company with a market capitalization in excess of $1 billion.[ ] Items (i) and (ii) are referred to herein as “Permitted Transfers[.”]  

This diagram depicts the transactions leading to the litigation. The opinion provides details that I’m assuming you don’t need to know and don’t have time for.

The Court said that its sole task was to ascertain whether the limited assignment provision required Blackbeard and co-defendant Bluestone Natural Resources II to obtain Nortex’s consent before “transferring ownership” to co-defendant Diversified Production. The Court agreed with the trial court that the sale of equity in Bluestone did not constitute a transfer of an interest in the leases and did not trigger Nortex’s consent rights.

How did the court get there?

In reaching its conclusion the Court relied on the plain language of the unambiguous limited assignment provision. The framework to be used to answer the question would be:

  1. Determine if a transfer occurred. If yes;
  2. Determine whether it was a “Permitted Transfer”. If not;
  3. Was the provision an unenforceable restraint on alienation?

The linchpin: No “transfer”

The Court ended its analysis after the first step because the equity sale did not constitute a transfer by a lessee. Blackbeard’s sale of the equity in Bluestone occurred through a series of mergers, with Bluestone retaining its interest in the leases after the mergers were completed.

According to Business Organization Code §10.008(a)(2)(C), the effect of a merger is not a transfer of title. To agree with Nortex would rewrite the provision so as to require a change of control. The leases contained no change of control provision and the Court refused to add one.

Nortex focused on the carveout for Permitted Transfers. Because there was no transfer, there was no Permitted Transfer.

Nortex’s argument emphasizing the merger portion of the limited assignment provision was unsuccessful because for there to be a carveout there must be a transfer of the lease and that did not happen.

Nortex focused on “an interest in this lease” but, again, ignored that there must be a transfer, which did not occur.

An evidentiary point

The limited assignment provision was unambiguous. Because the final, amended version superseded all prior versions the Court saw no need to consider the history and context of the provision.

Your musical interlude.

We haven’t presented 2023’s Bad Guys in Energy, but we have SEC v. Bowen, Baker, Cannon Operating and others as an example of garden variety securities fraud. The opinion addresses a defendant’s effort to defeat the SEC’s fraud claim by attacking the complaint. The “bad guys” are only alleged at this point. 

Bowen, Baker and others raised $2.1MM from 140 investors for Cannon Operating. Bowen solicited investors directly and he and others, none of whom are registered brokers, received commissions. Bowen reviewed and edited offering materials written by Baker which included a private placement memorandum and a “Prospect Book”.

SEC’s allegations (among others)

  • The materials contained misleading information; for example, production from one of Canon’s prior wells was continuing at “massive rates”;
  •  Subsequent actions of the defendants did not comport with statements in the materials;
  • Defendants failed to correct misstatements and omissions in the materials;
  • Investor funds were misused by payment of sales commissions;
  • A promised segregated bank account was never opened;
  • 85% of the funds promised for program costs did not happen;
  • Bowen’s name as Cannon’s CEO was omitted from the materials. Due to prior securities violations he was barred from selling securities;
  • The materials failed to disclose negative information about Cannon and Baker;
  • Cannon never drilled one of the wells.

Alleged violations

  • §10(b) of the Securities Exchange Act of 1934 and Rule10b-5 by engaging in fraud in the offer and sale of securities;
  • §17(a), 5(a), and 5(c) of the Securities Act of 1933 by engaging in the unregistered offer and sale of securities and offering and selling securities as unregistered brokers.

The result

Bowen moved to dismiss the fraud claims. Here is the analysis (with omissions):

  • The SEC’s pleadings must meet a “facial plausibility standard”;
  • The SEC cannot allege malice, intent, knowledge and other conditions of Bowen’s mind generally. The “who, what, when, where, and how” standard was not met;    
  • To be liable for a misstatement or omission Bowen must be the maker of the statement. The SEC did not plausibly allege that Bowen made the statements. Mere knowledge of another’s violation of Section 10b-5, or even aiding and abetting a violation, is not sufficient to establish primary liability under the Exchange Act;
  • The Securities Act does not require that the defendant make the statement. Obtaining money by means of an untrue statement encompasses a broader range of conduct than making a statement. The SEC plausibly alleged that Bowen obtained money by means of untrue or misleading statements; 
  • The SEC met its burden to plausibly allege material misstatements or omissions. Materially requires the substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information made available; 
  • The allegation that Bowen’s name was not mentioned in the materials was sufficient because it alleged that the materials concealed the fact that Bowen previously had been sanctioned by the SEC;
  • Failing to allege when Bowen helped prepare the documents did not adequately allege fraud based on the omission of Bowen’s identity;
  • The SEC failed to allege scienter –  the mental state that embraces an intent to deceive and manipulate or defraud which includes severe recklessness. Fraud cannot be predicated on incentive compensation, on one’s title or position, or paying commissions as directed by one’s employer.

The court granted Bowen’s motion to dismiss but gave the SEC a mulligan. Bowen has not escaped the clutches of the SEC.

Your musical interlude.

Contacted at his seaside villa, Captain Renault exclaimed his shock that Elsie and Adrian Opiela are asking the Texas Supreme Court to review questions surrounding the Railroad Commission’s approval of a drilling permit for a Production Sharing Agreement well.

The Commission’s “65% Rule” for multi-tract horizontal wells is invalid because the Commission does not have the authority to make such a rule. There must be either valid pooling authority or compliance with the Mineral Interest Pooling Act, neither of which were present here. The Commission adopted the ad hoc 65% Rule for issuing horizontal well permits without following formal rulemaking procedures required by the Administrative Procedure Act.  

You might recall that the Austin Court of Appeals confirmed the Commission’s decision to approve a permit without considering the anti-pooling provision in the Opiela’s oil and gas lease. The court also found that the Commission was wrong in concluding that the permit applicant Magnolia Oil & Gas Operating had shown a good faith claim of right to drill the well. We discussed the court of appeals opinion here and the district court ruling here.

The Opielas challenge the court of appeals ruling on several grounds. Here is our (oversimplified?) summary of Opiela’s assertions in their petition for review:

The 65% Rule

In permit applications for horizontal wells across multiple tracts, the operator represents that it will allocate production according to a formula that the mineral interest owners have not agreed to. The Commission may not issue such permits when the mineral and royalty owners have not consented to pooling or how to allocate production.

The Commission routinely approves permits for wells across tracts without determining whether it has authority to develop its approval policies and without notice to the mineral and royalty owners of property rights that are affected by the Commission’s actions.

The anti-pooling clause

The Court of Appeals incorrectly held that pooling authority was not necessary to drill the PSA well because pooling of tracts is not expressly required by Texas statutes or regulations for horizontal drilling for a wellbore that crosses property lines.

The Court of Appeals incorrectly held that even if the Commission did consider the anti-pooling clause, the clause was not implicated because a permit for horizontal drilling under a PSA is not pooling under Texas law. There is no functional distinction between pooling and PSA/allocation wells.

In determining whether Magnolia had a good-faith claim to drill a horizontal well across Opiela’s tract the Commission ignored a clause in Opiela’s lease that prohibits pooling “in any manner whatsoever”. With this clause in place, Magnolia cannot have a good-faith claim to drill a well.

Determination of parties’ property and contract rights

The Court of Appeals incorrectly concluded that the Commission was not required to consider the anti-pooling clause because the Commission has no power to adjudicate parties’ rights under a lease or other title documents.

The anti-pooling clause in the lease is relevant because, while the Commission lacks authority to make the binding determination of property rights it does have the authority and duty to examine property rights in the performance of its regulatory responsibilities to determine whether an applicant has a good-faith claim.

The Commission’s APA-compliant rules recognize that a good-faith claim for creating a pooled unit requires appropriate contractual authority and such authority is not present here.

There’s more to come on this.

Your musical interlude

In re Luminant Generation Company LLC et al is a bitter pill to consumers in the litigation hangover after Winter Storm Uri. Takeaway: Texas does not recognize a legal duty owed by wholesale power generators to retail customers to provide continuous electricity to the electric grid and ultimately to the customers.

The claims

Hundreds of retail electricity customers sued hundreds of entities involved in virtually every aspect of the Texas electricity market. This decision is about wholesale power generators.

The generators moved for early dismissal of negligence, gross negligence and negligent undertaking causes of action (there were others) on the ground that the causes of action had no basis in law or fact.

No basis in law: The allegations, taken as true together with any inferences reasonably drawn from them, do not entitle the claimant to the relief they seek.

No basis in fact: No reasonable person could believe the facts as pleaded.

No legal duty

The plaintiffs claimed that the generators violated duties owed to retail customers by failing to:

  • winterize and maintain equipment,
  • supply electricity to the grid by not securing adequate supplies of reserve energy,
  • properly supervise and train workers,
  • ensure that the facilities and equipment would be exempted from ERCOT ordered blackouts by filing appropriate forms, and
  • avoid blackouts by not enrolling in ERCOT’s emergency loan-shedding program.

As a result of statutes enacted in 2002 implementing a fully competitive retail market for electricity, wholesale power generators cannot own or operate transmission and distribution facilities that carry electricity to retail customers and cannot enter into agreements with retail customers. All they do is generate electricity and sell it at wholesale. Under Texas law, they have no legal duty to retail customers.

Should a new duty be created?

No, said the court. Imposing any new duty on the generators to retail customers is for the legislature.

In deciding whether to impose a new duty the court must weigh the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against injury, and the consequences of placing that burden on the defendant.

Texas courts must be specific in determining the existence, scope, and elements of new legal duties. Vague pronouncements won’t do. Even if the generators had perfect maintenance and complete control over production, it is ERCOT that manages the delivery of that electricity by scheduling and managing how electricity flows through the network. Once electricity leaves a generator’s facility, the generator has no control over how transmission utilities and ERCOT conduct their business.

Foreseeability is a dominant consideration in deciding if there is a duty. Foreseeability does not necessarily equate to predictability. It means that the actor should have reasonably anticipated the dangers that his negligent conduct created for others. That means considering the specific danger at hand.

The court weighed these factors against the social utility of the generators’ conduct and the magnitude of the burden of guarding against injury that creation of a new duty on the defendants would create. A new duty would upend the framework the legislature has implemented.

Negligent undertaking.

Plaintiffs pleaded their negligent undertaking allegations also as negligent omissions and thus admitted that the complained of undertakings were not affirmative causes of action. Artful pleading could not recast those alleged omissions to be otherwise. No Texas law exists that transforms contractual duties owed to retail electricity providers into duties owed to third-party retail customers.

Who was Caledonia, anyway? Everybody knew her: Taj Mahal, Muddy Waters, BB King.

About the same as what happened at COP27.

The 70,000+ fabulists, opportunists, and assorted acolytes comprising the congregation of the Church of Our Holy Mother of the Suffering Planet celebrated another high mass in, of all places, Dubai UAE (producer of 4 million barrels of oil per day).The worshipers heard righteous condemnation of the sin of carbon. Its been said that abandoning fossil fuels without delay, with no realistic present-day alternatives, is a moral imperative.

This piece is not to argue about global warming or the eventual energy transition; it’s to decry how and when and for what motivations the true believers address the questions.

Read the UNPCC’s summary of the report. Among other highlights,

  • It’s aspirational toothless, as any document would be whose every word must be approved by a committee of 130.
  • It’s a bureaucrat’s dream, a gumbo of Actions, Initiatives, Councils, and Committees, spiced up with platitudes and bad syntax.
  • China agreed, with fingers crossed (see below).

Climate czar John Kerry and Bill Gates each arrived on his private jet; VP Harris arrived aboard Air Force 2; other world leaders arrived in theirs. Why not hitch a ride, if for no other reason than to show what honest climate-saving action might look like?

Imagine Gandhi promising nonviolence to the British Parliament while pistol-whipping a tied-up Winston Churchill under the table.

Sultan Ahmed al-Jaber, head of UAE’s national oil company, host and president of the whole shebang, mortified the holiest of the congregation by claiming there is no science that says phasing out fossil fuels is necessary to keep global warming under a critical threshold. He was not bothered by claims that he has an Upper Zakum-sized conflict of interest.

COP 28 ended by calling for a “transition from” rather than a “phase out of” fossil fuels, perhaps in humbling recognition that oil, gas and coal aren’t going anywhere anytime soon. Vaclav Smil in How the World Really Works, The Science Behind How We Got Here and Where We’re Going explains why in seven edifying chapters.

Al Gore objected to the conventiclers of the oil and gas industry who were there, ignoring the possibility that they might have contributed scientific and economic facts to the debate.

What are we doing in the US?

The US wants to hang with the cool kids in the class. VP Harris committed $3 Billion to the Green Climate Fund. And here are but a few examples of the heavy load being imposed on the American economy:

This is at a time when domestic producers are doing their part. US methane emissions from oil and gas production declined from 2005 to 2019 while production increased, says Energy in Depth.

… while China, with its 1142 coal fired power plants, is building two a week in its quest for world economic domination, while emitting more CO2 by far than any other country.    According to Prof. Smil, the single most significant factor in increased anthropogenic CO2 emissions since 1980 is, by far, China.

  • The EPA iintends to ban a class of furnaces in a way that exceeds its authority under the 1975 legislation on which it is based and that will result in higher costs and fewer choices for Americans, in particular the poor, says Jack Spencer of the Heritage Foundation.
  • California’s Advanced Green Fleet Act regulations , beginning in 2024, will require that truck operators buy only Zero Emissions Vehicle trucks for medium-duty and heavy-duty trucking operations. This will raise costs to truckers to unaffordable levels and threaten access by consumers in many states to imports from three of the busiest ports in the US, says Steve Goreham of the Heartland Institute. Nineteen states are suing to prevent the Act from going into effect.

The question is whether the costs and other burdens outweigh the benefits. We should not let this administration make that decision for us.

To celebrate the season, we have two musical interludes: Christmas and Advent.

Parkman v. W&T Offshore, Inc., et al features two contractors playing hot potato over liability for a company man’s alleged negligence. The takeaway: Write your Master Service Agreement to address your liability concerns, and then pay attention to what really happens on the location, regardless of what the MSA says. (And good luck monitoring that second factor!)

Brubaker was a drilling consultant and payroll employee of defendant AGR, assigned to work as a company man for W&T pursuant to a MSA. Helmrich & Payne was drilling a well for W&T offshore Louisiana. Brubaker’s job was to monitor H&P’s drilling operations on behalf of W&T.

Plaintiff Parkman was a floorhand/roughneck employed by H&P who suffered a serious accident resulting in paraplegia.

The borrowed employee under Louisiana law

Were W&T and/or AGR vicariously liable for Brubaker’s negligence? AGR contended that Brubaker was a borrowed employee of W&T and as a result no AGR employee was involved in the incident and thus AGR was not vicariously liable.

As a matter of law, whether Brubaker was a borrowed employee of W&T and or a dual employee of AGR and W&T depended on nine so-called Ruiz factors:

  1. Who had control over the employee and the work he was performing beyond mere suggestion of details or cooperation?
  2. Whose work was being performed?
  3. Was there an agreement, understanding, or meeting of the minds between the original employer and the borrowing employer?
  4. Did the employee acquiesce in the new work situation?
  5. Did the original employer terminate his relationship with the employee?
  6. Who furnished tools and place for performance?
  7. Was the new employment over a considerable length of time?
  8. Who had the right to discharge the employee?
  9. Who had the obligation to pay the employee?

No single factor is decisive but the first is the most critical.

You can’t rely only on the MSA

The parties cannot rely only on the terms of the MSA to answer the question. Regardless of contract language favoring one result or another, the reality at the worksite and the parties’ actions in carrying out a contract can impliedly modify, alter, or waive express contract provisions. The terms of the agreement alone are not dispositive and can be overcome for summary judgment purposes by other factors.

In deciding a motion for summary judgment from AGR, the court concluded that the non-contract record evidence (ie, what was really happening on the platform), in addition to the MSA language, clearly and overwhelmingly pointed to Brubaker’s status as a borrowed employee of W&T. The details of the fact-intensive opinion are less important than the principals involved and won’t be discussed here.

The dual employer doctrine

Under Louisiana’s dual employer doctrine even if Brubaker was W&T’s borrowed employee, a general/lending employer (AGR) that is in the business of lending employees to its customers is solidarily liable for the employee’s torts committed upon third persons.

Parkman’s position was that both the lending and borrowing employers were vicariously liable. The court determined that Louisiana’s dual employer rule applies, AGR would be vicariously liable for Brubaker’s torts regardless of Brubaker’s status as a borrowed employee of W&T.

The federal issue

The court also determined that there was no federal law which was inconsistent with the Louisiana rule such that Louisiana’s dual employer rule did not apply. The Louisiana rule applied.

Your musical interludes, the Christmas kind and the Advent kind.

The outcome of a multimillion-dollar suit was in the hands of a jury of 12 good and honorable citizens. The question: Was a certain party an agent, consultant, contractor, or none of the above? One side wanted the jury to be instructed on the legal definitions of those terms. The other wanted the words to be interpreted in their “ordinary and popular sense”. The legalists prevailed.

The facts
In Tite Water Energy LLC v. Wild Willy’s Welding LLC, a Texas case governed by Oklahoma law, Tite Water was Devon’s contractor under a Master Service and Supply Agreement. Bigbey was injured and sued. Under the MSSA, Tite Water was required to defend and indemnify members of the “Company Group”. As in many, probably most, MSA’s, that included (among others) Devon’s “agents, contractors and consultants”.

Tite Water and Bedrock were Devon’s contractors. Willy’s was a Bedrock subcontractor in the capacity of an independent contractor. Their agreement stated that Willy’s was not considered Bedrock’s employee, agent, servant, or representative.

In the Bigbey suit Willy’s cross-claimed against Tite Water for breach of contract and a judgment that Tite Water owed Willy’s defense and indemnity under the MSSA. As Devon’s agent, consultant, or contractor, said Willy’s, it was a member of the Company Group entitled to defense and indemnification.

Tite Water stipulated that Bigbey was a member of the Contractor Group. Willy’s conceded it was not Devon’s contractor.

The testimony of Willy’s owner Davidson was confusing but he testified that Willy’s was not a consultant after his attorney defined the term for him. 

The jury instructions

Was Willy’s Devon’s agent, consultant, or contractor and therefore a member of the Company Group under the MSSA?

The jury was instructed to use these definitions based on dictionaries and Oklahoma case law:

  • An agent is “one who is authorized to act for or in place of another, a representative”.
  • A consultant is “someone who advises people on a particular subject”.
  • A contractor “is one who covenants to do anything for another; one who contracts to perform work on a rather large scale at a certain price or rate; one who undertakes to do work for a company or corporation on a large scale at a certain fixed price.”

Tite Water argued that the jury should, “on their own” and “using their common sense”, interpret the terms “in their ordinary or popular sense.” Otherwise, complained Tite Water, the instructions would steer the jury to an award for Willy’s. Tite Water argued that Willy’s was not a consultant because Davidson repeatedly denied being a consultant.   

The result

The jury concluded that Willy’s was Devon’s agent and consultant. Tite Water owed Willy’s defense and indemnity under the MSSA and breached the agreement by failing to do so.

The court of appeals affirmed the jury verdict and judgment. The definitions were not incorrect or misleading. The court rejected Tite Water’s argument that Davidson was not Devon’s consultant because Davidson repeatedly denied being a consultant and he was not Devon’s agent because Willy’s was hired as Bedrock’s, not Devon’s, consultant and independent contractor.

The court said that Tite Water should have developed those arguments at the trial but didn’t.  It appears from afar that Tite Water feared that it would forever be pushing the evidentiary rock up the hill if the jury used the court’s definitions. It was counting on Davidson’s denials based on his understanding of the terms.

Your musical interludes: One for Christmas and one for Advent.

See yesterday’s post on Iskandia Operating, LLC v. SWEPI, LP

SWEPI’s motion for summary judgment alleged that Iskandia presented no evidence of one or more elements of its trespass claim, noting that the Supreme Court of Texas has never recognized a cause of action for trespass based on deep subsurface water migration (to which some might respond, not yet).

The court observed that the parties disagreed on the elements required for a plaintiff to prevail on a trespass claim.

The court noted that in Coastal Oil & Gas Corp. v. Garza Energy Trust, the Supreme Court made several pronouncements that could affect Iskandia’s claim: a trespass against a possessory interest does not require actual injury to be actionable, and the rules for trespass on the surface of the earth are different from those that apply above or below it.

The court concluded that a trespass claim based on unauthorized interference with a lessee’s right to develop minerals was recognized in Lightning Oil v. Anadarko E&P Onshore, and Regency Field Services v. Swift Energy Operating as long as the injury is not outweighed by competing interests in the oil and gas context. The parties did not address that issue in this appeal.


The court discussed causation-in-fact as an element of Iskandia’s claim. To establish that an event is the cause-in-fact of damages the plaintiff must establish that the defendant’s act or omission was a substantial factor in bringing about the injuries and without it the harm would not have occurred.

The court determined that in order to survive summary judgment on the element of causation Iskandia had to demonstrate exposure of its wells to water originating from SWEPI at levels sufficient to cause the loss claimed by its pleading. Iskandia presented evidence of exposure to excessive amounts of saltwater by several means established by its experts.  

An expert’s failure to rule out other causes of the damage could render his opinion little more than speculation; however, alternative causes need not necessarily be ruled out entirely. The expert’s analysis of alternative causes must be sufficient for the factfinder to reasonably conclude that the defendant’s conduct was a substantial factor in causing the injury. Dr. Meehan considered and accounted for plausible alternatives before reaching his conclusions.


Meehan applied the income approach to calculate damages. Using the discounted cash flow method to determine the fair market value of Iskandia’s property he calculated the net present value of future cash flows and ultimately calculated Iskandia’s damages by comparing the fair market value of the leases in question before and after SWEPI’s alleged trespass.  His opinion on damages was $29.9 million.

The result

Iskandia’s only burden at summary judgment was to present more than a scintilla of evidence creating material fact issues. The testimony of Meehan and Bintu was more than a scintilla of evidence creating a material fact issue that SWEPI’s wastewater damaged Iskandia’s wells.

The trial court erred in granting SWEPI’s no evidence motion. Is it time for the Supreme Court to weigh in? Otherwise, its back to the trial court.

Your musical interlude.

Iskandia Operating Inc. v. SWEPI, LP d/b/a Shell Western E & P reversed summary judgment for the defendant in a subsurface trespass claim involving injection of large amounts of produced water.

The facts

Iskandia produces oil from 100 wells across 5,000 acres from a shallow zone of the Delaware Mountain Group in the Dimmitt Field in Loving County. SWEPI produces from the deeper Bone Springs and Wolfcamp formations.

Iskandia sued SWEPI for trespass, alleging that Iskandia produces and disposes less than 6,000 barrels of salt water per day, maintaining equilibrium in the DMG, while SWEPI produces more than 110,000 barrels per day, injecting exponentially more saltwater than the area would accommodate without adverse effects and injecting saltwater into Iskandia’s producing zone, “swamping” Iskandia’s oil reserves and rendering the reserves economically unrecoverable.

The analysis

In considering SWEPI’s no-evidence motion for summary judgment the trial court excluded two of Iskandia’s expert witnesses, Meehan and Bintu, granted the motion and dismissed Iskandia’s suit.

Iskandia’s experts, using reservoir simulation system FracMod, testified that high-pressure high-volume saltwater injected into the DMG migrated onto Iskandia’s leases and adversely affected the production potential of Iskandia’s wells, damaging 15 wells beyond repair and others to varying degrees.  

SWEPI argued that Meehan was not qualified, his testimony was based on unreliable foundational data and flawed methodology, and he failed to rule out possible alternative causes of damage. The court of appeals discussed each challenge in turn and reversed the trial court. (At this time, feel free to forward this post to your engineering geek colleagues so that they may delight in the magic of Petrel geo-modeling software, the “Nance paper”, facies models, the “Stone Model” and the like.)  

The court accepted Meehan as qualified by education, experience and training (see the opinion for details) and applied the Supreme Court’s six factors under Rule of Evidence 702 for determining the reliability of scientific expert testimony:

  • The extent to which the theory has been or can be tested;
  • The extent to which the technique relies upon the subjective interpretation of the expert;
  • Whether the theory has been subjected to peer review and all publication;
  • The technique’s potential rate of error;
  • Whether the theory or technique has been generally accepted as valid by the relevant scientific community; and
  • Non-judicial uses which have been made of the theory or technique.

The court recognized that reservoir simulations have been used in the industry and litigation for decades and are generally accepted as valid in the relevant scientific community.  The court accepted the data underlying the opinions as sufficiently reliable for Meehan to form an opinion.


Your musical interlude, a query from the appellant.

A quiz: What do Big Oil and Galileo, and maybe you, have in common? Answer is below.

Here is news and opinions about climate change that counters climate-alarm truthiness emanating from some quarters. These facts and opinions are being said by those who know what they are talking about. Decide for yourself if you accept it.

For example, fires are not getting worse, storms are not getting worse, and the polar bears are doing fine, says economist Bjorn Lomborg. Incidentally, he believes the climate is getting warmer and offers realistic solutions.

Climate-change dissent is muffled. Or worse, the dissenters are scorned. Idealogues rule the debate.

Alex Epstein deflates several “facts” he deems to be climate myths (e.g. 2023 is not the hottest year on record) and shows how climate data is manipulated by climate catastrophists.

Speaking of one-sided scenarios, the Dallas Morning News warns that the summer of 2023 was the hottest ever. The source is the Associated Press.  See the link above; Mr. Epstein says it is a myth. What matters is that there is legitimate disagreement on the topic. The Morning News and others in the mainstream media rely on sources who act as if the purpose of news reporting is to advocate a position rather than actually report and let the reader decide. Fatuous politicians, bureaucrats lacking expertise (says Francis Fenton of The Manhattan Contrarian , feckless government policy, and children who can’t sleep at night and the parents who terrify them, are the results.

See this link for a debate about climate sensitivity, that is, the sensitivity of the earth’s climate to increases in atmospheric CO2 concentrations. You have both sides to consider.

Storms are getting worse!!! says the AP. No, they aren’t, says David Legates at the Heartland Institute.

Answer to the quiz:  Both have been condemned by the current “science” … and the Catholic Church. Lately it’s from the Vatican’s chief meteorologist, who has a cool side-hustle. 

Answered correctly? You won an hour of scorn from Greta Thunburg.

Your musical interludes: One for the mighty Ra … and one for what comes next.