By Jim Reed and David Leonard

The Fifth Circuit has taken steps to fine-tune the interpretation and implementation of the agreement BP negotiated to settle its massive liabilities arising from the April 2010 oil spill following the explosion of the Deepwater Horizon. Interpretation of the 1,000- plus-page settlement agreement—which the court described as one of the “largest and most novel class actions in American history”—has led to several disputes between BP and the plaintiffs’ class counsel. This recent activity should not impact the ability of businesses that employ accrual accounting systems to recover qualified business economic losses under the settlement agreement.

The Issue

Business economic loss claimants must satisfy a complex causation standard established by the settlement agreement in order to recover economic losses. Determining whether a business passes causation requires an analysis of financial performance before and after the April 2010 spill. The financial data required for this causation analysis will rely on different accounting assumptions depending on which accounting system a business employs.

BP has taken specific issue with the treatment of claims submitted by businesses that employ cash (as opposed to accrual) accounting systems. BP argues that financial data generated by cash accounting systems may generate inflated business economic loss awards. BP therefore sought to enjoin the Settlement Administrator from paying business economic loss claims in order to give the court a chance to address these concerns regarding the interpretation and implementation of the settlement agreement with regards to cash accounting systems.

The Solution

Responding to BP’s concerns, the Fifth Circuit ordered the federal district court to ensure the Claims Administrator “is not applying the cash-in, cash-out interpretation to claims that are presented with matched revenues and expenses.” The Fifth Circuit also directed the federal district court to “expeditiously craft a narrowly-tailored injunction that allows the time necessary for deliberate reconsideration of these significant issues on remand.”

To this end, last Friday the federal district court in New Orleans targeted claimants employing cash accounting systems.  The court  ordered the Claims Administrator to immediately suspend payments with respect to those business economic loss claims in which the Claims Administrator determines that the matching of revenues and expenses is an issue. Although this order may jeopardize the ability of businesses employing cash accounting systems to recover under the settlement agreement, it should not endanger the viability of claims supported by accrual accounting systems.

Consider this while celebrating the resurrection of Big Tex: When a lease prohibits post-production cost deductions, can a lessee deduct those costs from a lessor’s royalty? Yes, says Potts v. Chesapeake Exploration, L.L.C. In a market value lease, where lessee sells the gas “at the well” and the court applies the netback approach to calculating market value, the lessee is entitled to deduct post-production costs incurred after the point of sale.

That might make more sense when you know the facts. 

The lease had a “no deduct” provision:

Royalties on gas were ” … the market value at the point of sale of 1/4 of the gas so sold or used. … , [a]ll royalty paid to Lessor shall be free of all costs and expenses related to the exploration, production and marketing of oil and gas production from the lease including, but not limited to, costs of compression, dehydration, treatment and transportation.”

Chesapeake sold the gas “at the well”, and deducted no expenses attributable to Potts’ royalty payments from the time the gas was produced at the well until its first sale. To arrive at the value of the gas at this point Chesapeake took the value of the downstream market-based sale and subtracted costs and expenses incurred between the point of sale and the downstream resale point.

Potts contended that Chesapeake breached the express provisions of the no-deduct clause.

The difference in the parties’ positions arose out of how post-production marketing costs are treated in the calculation. Potts contended that Chesapeake deducted post-production costs to calculate the royalty. Chesapeake, on the other hand, contended that when applying the netback approach, post-production costs may be used to determine the market value of the gas.

The “point of sale” is the point where there is a transfer of title in an arms-length transaction in exchange for compensation.  Potts contended that “point of sale” must be read together with the no-deduct language to ascertain its meaning and when doing so, point of sale means the point where the gas is ultimately sold off of the premises. The court didn’t agree.

According to the court, ” … the netback method requires ascertaining the market value of the gas where available downstream and then subtracting reasonable post-production costs from that point to the point where it is agreed to calculate the market value for royalty purposes. In this case it was the point of sale.

The court distinguished Heritage Resources v. NationsBank, even though the royalty clauses were similar. The factual difference was that the sale in Heritage took place off-premises. Had the royalty in Heritage been calculated at the off-premises point of sale, the no-deduct clause would have prevented deducting post-production costs incurred from the point of production at the well to the point of the off-premises sale.

In this case, the sale was at the well. Therefore, the no deduct provision is consistent with Heritage.

Takeaways – the best-laid plans … 

Potts said their argument had to be correct because they wrote the no-deduct provision to comply with Heritage. But what they didn’t, and perhaps couldn’t, count on was the way Chesapeake sold its gas. Did Chesapeake plan it this way?. That seems unlikely, because at one point prior to litigation it agreed that it couldn’t deduct post-production costs.

Chesapeake’s sale was to an affiliate, about which Potts didn’t  complain. With 20-20 hindsight, maybe he should have.

The court told Potts to give it up or turn it loose (their claim, that is), but not quite in this way.

Co-author Brooke Sizer

The “tradition” of stealing a prospect generator’s maps – and getting caught at it – is alive and well. Lamont et al v. Vaquillas Energy Lopeno Ltd et al is the second recent Texas case on theft of trade secrets and, like the first, resulted in a large judgment against the alleged thieves.

The Players

Ricochet, owned by Hamblin and Lamont, entered into Prospect Generation Agreements with Vaquillas and JOB.

In September 2004, Ricochet’s geologist Maier identified the Lopeno Prospect beneath two contiguous tracts — Worley and El Milagro. Maier created a seismic map of the prospect that became known among the parties as the “Treasure Map”. Vaquillas and JOB agreed to participate as working-interest owners. Ricochet obtained a lease over the Worley property but not El Milagro because it was in litigation over a previous lease. The meetings among Ricochet, Vaquillas and JOB were considered by everyone to be confidential, and the seismic information was to be kept secret.

In August 2006, Lamont notified Hamblin that he wished to separate from Ricochet. In February 2007, agreements dividing Ricochet’s oil and gas prospects and a separating Lamont from Ricochet were signed, and Lamont tendered his resignation as director, officer and chief operating officer, all retroactive to December 31, 2006. Lamont signed a Joint Operating Agreement for the Lopeno Prospect as a 29% working-interest owner. Thereafter Maier sent Lamont a copy of the Treasure Map without requiring him to sign a confidentiality agreement.  The parties drilled the Worley well.

In January 2007 Lamont met Carranco and in February provided Carranco with seismic maps of four different prospects, including Lopeno. In February, Lamont received a copy of the Worley well log and he and Carranco immediately began efforts to lease the El Milagro property under the name of Montecristo. In March, Lamont informed Ricochet that Crazy Horse, a company of Carranco’s, had purchased 10% of Lamont’s 29% working-interest.

Lamont and Carranco, using Montecristo, were successful in leasing the El Milagro property by outbidding Ricochet. They paid a bonus of over $1 million. During the next six months, L.O.G. drilled a well on El Milagro and depleted the Lopeno Prospect reservoir, thereby depriving Vaquillas of the ability to produce from the Worley.

The Incriminating Evidence

Lamont and Carranco did not conduct any independent research of the gas reservoir. It was only after viewing the seismic data and the well log that Lamont and Carranco sought to lease the El Milagro property. Also, in order to secure a bank loan to pay the lease bonus, Lamont submitted a letter containing information that was drawn directly from the seismic data and Treasure Map. Lamont and Carranco claimed the well-log led them to pursue the El Milagro property; however, the log only provided information regarding the Worley well, and Lamont and Carranco began drilling the El Milagro without attempting to obtain any seismic data on that property.

The Questions for the Court

Did the Treasure Map lose its trade secret status in light of Ricochet’s failure to require confidentiality agreements and by showing the map to potential investors? Lamont claims that he owed no duty to Ricochet after the effective date of his resignation.

No. The map did not lose its status as a trade secret. In Texas, employees are forbidden from using trade secrets acquired during employment, and this obligation survives termination. Furthermore, disclosure of a trade secret is not destroyed by limited communication and furtherance of the owner’s economic interests, such as showing protected items to prospective buyers or customers.

Were Lamont and Carranco liable for using a trade secret if the trade secret was discovered by “improper means”?

Yes. Obtaining knowledge of a trade secret without spending time and resources to discover it independently is improper unless the secret is voluntarily disclosed or reasonable precautions to ensure its secrecy are not taken.

 

Before we talk about global warming, which of these statements most matches your view of  politics and policy:

“In all things the mean is praiseworthy, and the extremes neither praiseworthy nor right, but worthy of blame.” Aristotle.

“There’s Nothing in the Middle of the Road but Yellow Stripes and Dead Armadillos.” Title of a book  by Texas populist and former Land Commissioner Jim Hightower.

 Mr. Hightower would be right at home in the latest clusterfukushima that is the disagreement over global warming. The Intergovernmental Panel on Climate Change – the UN sponsored organization that has been reporting for years on the impending doom caused by anthropogenic global warming – is about to issue its fifth report on climate change. The report will reveal (it seems everybody but you and me has read it) that the IPCC has been underestimating global warming for all these years, and climate change could have double the impact previously thought. That’s what Nafeez Ahmed in EarthInsight says.

That’s not at all what the report will say. The IPCC will tone down its climate-change alarmism and substantially reduce its dire predictions about the future rising of global temperatures. So there’s not so much to worry about. That’s what they say in The Spectator.

That’s a lie like all the other lies. The climate change deniers are “industry puppets spewing obscene lies while people drown”. And the recent Colorado floods are all because of climate change.  That’s what David Sirota says, rather emotionallly, in Salon.

That’s slanderous. The “tell” of the “climateers” reflects their bad hand.  Their warnings of catastrophe now say it will happen “some decades from now” rather than “before the Texas Rangers fall totally out of contention for the MLB playoffs”, as was projected. That’s what Powerline says. That deadline was mine, of course. Theirs is “soon”.  

B*#$+ S#*<!  Global warming is every bit as bad as it ever was and anyone who is against it has been writing articles characterized by misinformation. (To wit, a purportedly “humiliating” piece in The Daily Mail). That’s what Bob Ward of the Grantham Institute, associated with the London School of Economics, says.

And to pile on:  Rush Limbaugh is a corpulent, bloviating idiot. So thinks Media Matters.

Talk about bad motives!  The IPCC bureaucrats are all in it for the huge government subsidies and other perks, says Powerline. The NIPCC , a cleverly-named private group, uses its own studies to portray a view of climate change that is “realistic”. 

But NIPCC is a front for former tobacco lobbyists and current fossil-fuel industry stooges, and their conclusions are “absurd”, says desmog.

Trust me; there’s more.  I give up trying to please Aristotle; I’m in the hunt for Diogenes, the guycarrying the lamp.

Lawyers and landmen are taught that a document affecting real or immovable property not recorded in the public records means nothing to a stranger. Like O. J.’s quest for the real killer, lower premiums after the Patient Protection and Affordable Care Act, and the present I would have given my wife except I forgot our anniversary, treat it like it never happened. Freeman v. Block “T” Operating LLC tells us – too late to save our healthcare system and the sanctity of my wedding vows – that’s not always the case.

The Facts

Kurios assigned 2.5% of 8/8ths overrides in wells in Acadia and Jefferson Davis Parishes (the percentage was different on one well but that doesn’t matter here). The assignments were not recorded. Kurios then conveyed to Block T a 20% working interest and a 14% NRI. These assignments were recorded.

After Block “T” acquired and recorded its interests, the plaintiffs-override owners recorded their assignments. Block “T” assumed operations and payment of proceeds from production, and the plaintiffs demanded payment.

Plaintiffs then sued Block T, operator and partial working interest owner, for payment. Block T asserted the public records doctrine (codified in Louisiana Civil Code Art. 3338) as a defense. According to the court, the public records doctrine did not apply.

The Rationale

The gist of the ruling is that “The recorded documents indicate that the net revenue interest owners received only a portion of the leasehold interest of each well. The retained leasehold, the assignments demonstrate, was sufficient so as to create the overriding royalty interest in the percentages claimed by the plaintiffs.”

The plaintiffs’ position was that the working interest assignment to Block “T” and others was based on a portion of the overall NRI, and that adding the landowners royalty and the working interest assignments together would demonstrate that Kurios retained a sufficient leasehold interest that permitted it to convey the override to the plaintiffs. This, the court said, was apparent on the public record.

The court found that Block “T”, as the operator of the wells and the party responsible for properly distributing revenues from the properties, was the appropriate party to be cast in judgment for payment of the overrides.

It’s not as Weird as You First Imagine

At first blush, this is perplexing because it appears that Block T, upon receiving a leasehold assignment, was required to “do the math” to figure out who to pay and how much to pay them. This is especially so in light of this comment in the opinion: “The primary focus of the public records doctrine is the protection of third persons against unrecorded interests”.  But focusing on the court’s approach reveals that Block T’s liability was as the operator charged with paying proceeds properly, and not as the recipient of an assignment without notice of existing overrides.

Here is the musical dilemma faced by Block T.  You gotta love the way Garth Hudson plays the organ.

There is more to learn from Southwestern Energy Production Co. v. Berry-Helfand and Muncey, discussed in a recent post.

Damages – With Room to Run, the Expert Scores.

Courts are entitled to be “flexible and imaginative” when determining damages for misappropriation. The methods could include value of the plaintiff’s lost profits, the defendant’s actual profits from the use of the trade secret, the value that a reasonably prudent investor would have paid for the trade secret, development costs that the defendants avoided, and a “reasonable royalty”.

This approach allows a plaintiff to recover even if she suffers no loss herself.

Ms. Helfand’s expert reservoir engineer calculated the present value of  the revenues Sepco could reasonably be expected to gain from its exploitation of the trade secret and determined the fraction of those revenues that should be apportioned to Helfand, using as a guide a Sepco prospect agreement for the same properties. That, he said, was Helfand’s damages. Helfand was also entitled to three percent of Sepco’s $355M sale of its deep rights, based on what she testified was her typical override on her prospects. He put her total damages at $45M. The jury, accepting some of his conclusions but not others, found the damages to be $11M. So  maybe it was a field goal.

Limitations – I Smell a Rat. When Must I Set the Trap?

Ms. Helfand had three years from when she discovered, or by the exercise of reasonable diligence, should have discovered the trade secret theft, to bring her suit. In May 2005 she expressed her fear in emails that her “concepts and I had spent years in developing are now being used by entitled parties.” Shortly thereafter, though, Sepco returned her materials and assured her it had retained nothing. It turns out, her intuition was correct.  She was aware later that Sepco had the opportunity to steal her data but relied upon Sepco’s assurances that it kept nothing. The jury (and appellate court) concluded that she had no objective reasonable basis for further inquiry into Sepco’s conduct until January 2009, when she actually discovered the misappropriation.

Disgorgement – When is it Available?

The court reversed a $23M award for disgorgement of profits on the basis that the equitable remedy is only for breach of a fiduciary duty. As discussed before, Sepco owed no such duty to Ms. Helfand.

Takeaways

• You might suspect you’ve been cheated, but until you have an objective basis for filing suit you can be protected by the discovery rule. The concept is simple, but you still have to convince the jury.

• Sepco made a wholehearted but unsuccessful challenge to the methodology, assumptions, inconsistencies and projections by Helfand’s expert. 

• Speaking of experts, looming over Ms Helfland’s  verdict and judgment like Jadeveon Clowney on third-and-long is a defendant’s BFF – the Texas Supreme Court. Among that court’s favorite targets are experts. Did he jump through every methodological, analytical, logical, scientific and peer-reviewed hoop necessary to satisfy the picky court?  You can see that the defendant focused on this.

By David Leonard and Julie Palmer

BP’s woes from the Deepwater Horizon disaster in the Gulf continue. The federal Fifth Circuit in In re: Deepwater Horizon, withdrew an opinion of a three-judge panel and certified questions for consideration by the Supreme Court of Texas. Resolution of this dispute could significantly impact insurance law in Texas, which would demand energy companies to immediately and carefully review their insurance programs.

Transocean paid substantial premiums to insure its worldwide drilling program. It is these insurance policies that BP—a self-insured corporation by its own design—would like to exhaust in order to offset its massive losses arising from the Deepwater Horizon disaster.

The BP and Transocean Drilling Contract

BP executed a drilling contract with Transocean for activities on the Macondo well in the Gulf of Mexico. The drilling contract required, among other things, that (i) Transocean maintain certain minimum insurance coverage for the benefit of BP and (ii) BP be named as an additional insured in each of Transocean’s insurance policies.

Transocean’s Insurance Policies

Transocean contracted with its insurers to obtain at least $700 million of additional general liability coverage related to its drilling activities. The policies broadly define an “Insured” to not only include Transocean, but also any entity with whom Transocean entered into an agreement to assume tort liability.

The Disaster

Following the Deepwater Horizon explosion in April 2010, BP sought coverage from Transocean’s insurers as an additional insured under Transocean’s policies. Transocean and its insurers disagreed and filed suit against BP in the U. S. District Court for the Eastern District of Louisiana seeking a declaration that BP did not qualify as an additional insured. The district court ruled that BP could not access Transocean’s policies because Transocean was only required to name BP as an additional insured as to the risks Transocean assumed in the indemnities provisions of the drilling contract which did not include oil pollution risks.

Fifth Circuit Punts

On BP’s appeal, a panel of the Fifth Circuit issued an opinion reversing the trial court, holding that Transocean’s policies covered BP as an additional insured.

Questions for the Texas Court

The Fifth Circuit’s en banc decision withdrew the panel’s opinion and certified two questions to the Supreme Court of Texas.

First: Which document governs the scope of BP’s coverage as an additional insured: Transocean’s umbrella insurance policies or the indemnity clauses in the drilling contract? This question will likely trigger an examination of the Supreme Court of Texas’ seminal decision in Evanston Ins. Co. v. ATOFINA Petrochems., Inc., which held that in determining the scope of an additional insured’s rights under a liability policy procured by its contractor, the court must look not to the indemnity agreement in the service contract but rather to the umbrella insurance policy itself.

Second: If the indemnity clauses govern the scope of BP’s coverage as an additional insured, the Texas court must then address a question related to the additional insured provision of the drilling contract. Resolution of this question would bring into play the sophisticated insured exception and the doctrine of contra proferentem (ambiguities in an insurance policy are strictly interpreted against the insurer).

The answers to these questions could significantly impact insurance law in Texas. Stay tuned.

The prospect generator’s worst nightmare is presented in Southwestern Energy Production Co. v. Berry-Helfand and Muncey. I will over-simplify the facts: Hefland and Muncey toil for years generating James Lime prospects in a five-county area in East Texas. They show it. Dry holes are drilled. More data is generated. They show it many times again.  Parties who are shown the data don’t like the prospects. Those parties enter into AMIs with non-recipients that include some of Helfands’ sweet spots. Their objectives, though, are the Travis Peak and Cotton Valley. The son of Hefland’s new partner is involved with Southwestern (Sepco), who is shown the prospect. Sepco enters into a confidentiality agreement, gets more data, and declines to participate. Sepco buys acreage in two counties, drills Travis Peak wells with others, and participates in over 80 James Lime wells, all of which are successful and all of which are clustered in an area of Hefland’s sweet spots. Revenues from the wells exceed $382M by the time of trial.

The Lawsuit

Helfand sues “everybody” (as in 12 defendants) for “everything”. The jury concludes that Helfand’s study was a trade secret and found against Sepco for trade secret misappropriation, statutory theft of a trade secret, breach of fiduciary duty, fraud, and breach of contract. Damages, disgorgement and fees total more than $30M. Sepco appeals.

Breach of Fiduciary Duty

Sepco owed no fiduciary duty because the parties dealt at arms’ length, the agreement expressly defined and limited to Sepco’s obligations of confidentiality, and there was no formal or informal relationship creating a duty of trust and confidence. Jury reversed.

Fraud

The fraud claim was based on several emails over the course of many years. Sepco, at the time it sent the emails, had no interest in the James Lime, but acquired an interest later. There was no evidence that Sepco’s statement that it was not interested in the prospects was false when made or that Helfand relied on it. Jury reversed.

The court noted that mere failure to perform a contract is not evidence of fraud.

To win on fraud by concealment there must be a duty to disclose. Sepco owed no such duty to Helfand.

Misappropriation

As with most trade secret misappropriation cases, this one rested on circumstantial evidence. There were no wells on the prospects before the presentation to Sepco, and later there were 80 wells; Sepco couldn’t show the paper trail one would expect if it had generated the prospects based on its own engineering; Sepco’s leasing and drilling activity corresponded directly with Helfand’s sweet spots; Sepco couldn’t produce a body of independent research comparable to Helfand’s. The court: It was “not unreasonable” for the jury to conclude that Sepco’s success was a product of information it obtained through misappropriation. The jury had the right to consider the circumstantial evidence, determine credibility of the witnesses, and make reasonable inferences from the evidence. Jury affirmed.

Theft of Trade Secrets

The court found that Sepco returned all of its materials to Helfand and that it did not deprive her of a “trade secret” as that word is defined in the Penal Code, nor was there evidence of intent to deprive her of a trade secret. Jury reversed.

Breach of Contract

Sepco breached its three obligations under the confidentiality agreement: to use the confidential information solely to evaluate prospects it was shown, not to disclose the information to third parties, and not to acquire any leases without giving Hefland the right of first refusal. Jury affirmed.

Issues For Lawyers

The court discussed issues such as limitations, jury instructions, trade secret damages, and the use of prior pleadings, all of which will be of interest to trial lawyers.

The Result

$30M+ verdict and judgment reduced to $11M. The disgorgement award was reversed.

The Takeways

More to come. This post is already too long.

 The jury forcefully answered the question posed by this musical  interlude.

Les Miles encourages Vidal Alexander to subscribe to Energy and the Law.

Occasionally in my litigation experience I’m reminded of time-honored rules of law.  Often I’m pleased, sometimes I’m not. So it was, I assume, for the parties in Midnight rilling, LLC v. Triche et al .The Rules

In Louisiana law, operations and production of minerals sufficient to interrupt prescription of a mineral servitude for nonuse within a unit can interrupt the running of prescription on all tracts within the unit.

But there is a catch.  Drilling and production do not interrupt prescription of a servitude encumbering the surface location if the operations are for the sole and exclusive purpose of discovering and producing minerals from property not subject to the servitude.

Parol evidence cannot be used to prove title to any mineral right, nor to prove any claim for or any interest in the revenues from a mineral right. In Midnight Drilling, whether a well was produced on a unit basis could not be proved by parol evidence. The claim failed because it was not supported by a writing.

The Facts

Triche owned two tracts of land in Terrebonne Parish, separated by the Intracoastal Waterway. Cole’s mineral servitude covered both tracts. Neither party had mineral rights under the canal. The Cole # 2 well had been operated as a lease well, apparently on leases granted by Triche and Cole covering both tracts. The problem for Cole was that, although the surface location was on the North tract, the bottomhole was on the South tract.

Triche asserted that 10 years had elapsed since creation of the original servitudes during which no operations for the benefit of the servitude tract were conducted. Cole asserted that both servitudes had been preserved by production and/or operations, arguing that the parties to the lease acted in such a manner that the Cole #2 well was produced on a unit basis.

Cole’s evidence was insufficient as a matter of law. Whether a well is produced on a unit basis cannot be proved by parol evidence outside of the lease. Invoking the parol evidence rule, the court found that a voluntary unit was not established for the North tract, nor were there operations on the Cole #2 well such that prescription was suspended from accruing on the Cole’s mineral servitude for the North tract.

The Point

Non-unit well operations and production must occur on the actual land burdened with the servitude in order to interrupt prescription. The surface location of the Cole # 2 well did not determine whether the operations or production associated with the well constituted an exercise of the mineral servitude.

It’s that special time of the year: football season. I dedicate this musical interlude to our Aggie friends who will be visiting Baton Rouge in November.

In the Book of Revelation, the really scary guys were the four horsemen. Now, as then, some would have you believe that the end times are upon us. This time it is because of fracking. Is it really? Absent from many discussions about oil and gas drilling are fairness and objectivity. In their place are the modern horsepersons of the anti-drilling movement. There are many, but let’s focus on four today:

Hysteria

The coddled Artists Against Fracking is at it again, this time with a video entitled Don’t Frack My Mother. Aside from the lamely Dylanesque structure (Daddy John would be ashamed), note the embedded misinformation, one example being the discredited fracking-caused fireball from the water faucet.

Listen to the video and then see the commentary from fuelfix.com revealing its shortcomings.

And acidizing is a new, untested, flora- and fauna-threatening scheme to poison the earth.   Here’s my offer:  A free ticket to Al Gore’s next speaking engagement to anyone who can find an engineer alive who remembers when acidizing was NOT used in the oil patch.  Even in California, where this story began.

Sloth

Graphics can be a lazy way to convey information. Money Magazine depicts a direct and short route for frac fluids to migrate from the shale to the fresh water acquifer.  And then ther is theheadline. The Los Angles Times summarizes a poll reflecting  Californians’ supposed “unease” with fracking in a misleading headline which, I believe you would agree, that conclusion is not supported by the accompanying graphic. Do the math.  Here is a report on these two examples of lazy journalism.

This one would fit prevarication if the articles weren’t from seemingly non-idealogical publications.

The Ad Hominem

In the spirit of equal treatment, here is one from Energy In Depth, an industry friendly news source, criticizing anti-drilling activist Bill McKibbben.  This one would fit prevarication if we were focusing on Mr. McKibben.

According to Gas2, Texans (and by extension, all producing states) are   “mental midget teabillies” and “mentally deficient”, and everyone who voted for Rick Perry is an “idiot”. (Come on, not everyone who voted for him is an idiot).  This one is a two-category winner, fitting nicely under prevarication.

Prevarication

Friends of the Earth stretches the truth in demanding a new State Department study of the Keystone XL Pipeline.

And there is the Austin Chronicle article featuring outrageous statements from populist former Texas Land Commissioner Jim Hightower, and a critique from Forbes.com 

The perfect musical interlude.