Co-author Lydia Webb
One of the hottest issues from 2016 was whether an E&P debtor can reject, under section 365 of the Bankruptcy Code, an above-market midstream contract. Given the potential for a “no-win” situation, in all but one case where the issue arose E&P debtors and midstream companies were able to settle, often by entering into new midstream contracts upon mutually agreeable terms that take into account the changed market conditions since the downturn in commodity prices.
However, the bankruptcy judge in Sabine Oil and Gas Corp. held that an E&P debtor could reject its gas gathering agreements because its midstream counter-parties could not establish that their agreements were covenants running with the land under Texas law. The midstream companies appealed to the U. S. District Court for the Southern District of New York, hoping for a better answer. They did not get their wish.
Many were surprised by the opinions, given the billions of dollars invested in necessary midstream infrastructure that was built under the assumption that gathering, processing and transportation agreements would bind the producer’s successors. The Sabine court was unsympathetic, and last month affirmed the bankruptcy court’s rejection orders. The midstream companies’ primary argument was that the dedication language in the agreements were analogous to the conveyance of a royalty interest in minerals “produced and saved”. Thus, Sabine’s dedication must have conveyed a real property interest. The district court was not impressed, and held that the gathering agreements were mere service contracts, and Texas law did not support a finding that they constituted a conveyance of mineral rights or otherwise burdened the underlying leases.
The debate will continue. Sabine is not the end of the argument that interests created by midstream oil and gas agreements are covenants running with the land that can survive a producer’s bankruptcy. Why?
- A Texas court has not yet ruled on the issue, although at least one Houston bankruptcy judge has commented that he would love the opportunity to set the record straight for his New York colleagues. Given the complex issues of state law involved in the interpretation of these agreements, there is reason to believe that a Texas judge experienced in Texas property law would rule differently.
- Energy companies continue to construct creative arguments that these agreements create real property interests that cannot be shed in bankruptcy. Most recently, in the Vanguard Natural Resources Corp. bankruptcy it has been argued that the right to drill and develop acreage assigned under a farmout agreement creates a covenant running with the land that burdens the entirety of the lessee/farmor’s undeveloped acreage (Caveat: This is not a midstream situation).
Stay tuned. Whether these arguments hold water, and in which contexts, is yet to be seen. What is clear is that midstream companies will continue to innovate in their effort to protect agreements in which they have invested millions of dollars, and the producers will respond.