Unconventional Oil and Gas Litigation Trends Report September 2014 Update

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Unconventional Oil and Gas Litigation Trends Report

In December 2013, a statewide zoning law that limited municipalities from banning hydraulic fracturing was ruled unconstitutional by the Pennsylvania Supreme Court, upholding a 2012 ruling by the Commonwealth Court. The Supreme Court found provisions of the law in violation of the Environmental Rights Amendment of the Pennsylvania Constitution, which guarantees citizens a right to clean air and water and the preservation of natural resources. In February 2014, the Supreme Court denied a further petition from the state to reconsider the case. In Colorado, we may see start to see similarly interesting rulings. Four Colorado municipalities passed hydraulic fracturing bans in 2013, and two were subsequently sued in December. The Colorado Oil and Gas Association alleges that Colorado’s Oil and Gas Conservation Act requires uniform regulation of this industry. This edition of the Unconventional Oil and Gas Litigation Trends Report discusses U.S. litigation trends in 2013, and highlights noteworthy cases affecting the unconventional oil and gas industry. The goal of this report is to answer the following questions:

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Flaring is the controlled burning of natural gas. Flaring may be necessary during well production testing, for safety, during maintenance, and to manage gas. It may also occur when the infrastructure needed to take gas to market has not yet been developed, such as in the Bakken shale. A July 2013 report by Ceres posits that from May 2011 to May 2013, the volume of flared gas doubled in North Dakota.2 Both Ceres and a Congressional Research Report note that the rapid development of oil production in the Bakken Formation has led to an increase in associated gas and a subsequent increase in flaring.3 Fourteen royalty cases related to flaring were filed by landowners in North Dakota in the second half of 2013. The parties vary among cases, but all plaintiffs claim lost royalties due to the flaring of natural gas produced in conjunction with oil production. Plaintiffs cite North Dakota Century Code § 38-08-06.4 which places limitations on the time period in which gas may be flared after first production of an oil well and requires producers to pay royalties on any gas flared in violation of the law. In May 2014, a North Dakota federal judge dismissed 13 of the 14 cases that had been filed. The court held that plaintiffs had filed suit before properly exhausting their administrative remedies before the North Dakota Industrial Commission.

1. What are the trends in the overall volume of cases filed? 2. Are there any notable geographic trends in cases filed? 3. Are there any notable trends in the types of cases filed?

LITIGATION TRENDS REPORT HIGHLIGHTS »» Unconventional oil and gas cases filed in federal courts in 2013 decreased by 29 percent from 2012. »» California and Nebraska saw an uptick in state and federal court cases between 2012 and 2013, while most other states saw unconventional oil and gas litigation activity decrease. »» Land and Lease Rights disputes were the most common type of unconventional oil and gas litigation in 2013, followed by Royalty Disputes and Other Breach of Contract

METHODOLOGY USED FOR IDENTIFYING UNCONVENTIONAL OIL AND GAS CASES Navigant attempted to identify all cases filed in U.S. federal and state courts relating to unconventional oil and gas litigation. While Navigant’s list may not be exhaustive, we believe the case data presents a representative picture of the nature and volume of unconventional oil and gas industry litigation filed during 2013. Navigant utilized Courthouse News, Law360, news articles and other court reporting services to identify relevant cases. Navigant then reviewed and evaluated these cases for inclusion in our report. For the purposes of this study, Navigant did not include cases filed in arbitrations, non-litigation agency actions or administrative proceedings. Investigations and decisions by the Federal Energy Regulatory Commission (FERC) also are not reflected in the findings.1

1. WHAT ARE THE TRENDS IN THE OVERALL VOLUME OF CASES FILED? There has been a reduction in litigation related to unconventional oil and gas since 2012 with cases filed in 2013 decreasing 23 percent from 2012 (See Figure 1). While this could indicate a downward trend, the second half of 2012 appears to be an outlier, with far more cases filed than in any other period reported in this study, inflating 2012’s overall numbers. In fact, the number of cases filed in the second half of 2012 was 82 percent higher than the number of cases filed in the second half of 2013.

SPOTLIGHT ON EARTHQUAKE ALLEGATIONS RELATED TO FRACKING Earthquake activity in Oklahoma, Arkansas, Kansas, Pennsylvania, and Ohio, all shale-producing regions, have increased in number over the last few years and according to a recent study by the USGS, this rise in earthquakes can be attributed to hydraulic fracturing activities. Since the findings were released, several lawsuits have been filed by plaintiffs seeking compensation for property damage. One of these cases, Hearn v. BHP Billiton Petroluem LLC recently settled for undisclosed terms. Another case settled with a $2.9 million verdict for the plaintiff (Parr v Aruba Petroleum, Inc.). Oklahoma, the state with the largest increase in earthquakes, may be the one to watch for future litigation trends. From 1972–2008, the Sooner State experienced a handful of earthquakes each year. In 2008, the USGS recorded more than a dozen, four dozen in 2009, over 1,000 in 2010, and 1,400 in 2011. Although lawsuits filed to date have largely alleged damage from wastewater injection, future disputes may be linked more closely to earthquake damage from hydraulic fracturing directly.

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September 2014

After remaining relatively steady in prior reported periods, the gap between state and federal cases was more volatile within 2013, with the percentage of state cases decreasing from 77 percent to 60 percent in the first and second half of 2013, respectively. Since reaching a high point in the second half of 2012, state cases have decreased steadily, by 19 percent from the second half of 2012 to the first half of 2013 and by 40 percent from the first half to the second half of 2013. Federal cases have fluctuated, declining by more than half from the second half of 2012 to the first half of 2013 and then increasing by 36 percent from the first half to the second half of 2013.

Recent legislation and rulemaking on the state level may lead to new case filings in 2014. In 2013, both California and Colorado introduced regulations requiring oil and gas companies to notify neighboring property owners and residents of planned drilling. California’s permitting law also requires disclosure of chemicals uses and environmental monitoring. Wyoming also now requires oil and gas companies to monitor groundwater before and after drilling, and this new rule is among the strongest in the nation regarding water testing in the context of oil and gas drilling.

FIGURE 2: CASES BY GEOGRAPHY

FIGURE 1: UNCONVENTIONAL OIL & GAS CASES BY YEAR 2012

2013

2012

2013

159 256

207

114

74

41

130

40 19

27

23 22

92

TX

Federal

State

2. ARE THERE ANY NOTABLE GEOGRAPHIC TRENDS IN CASES FILED? Texas continues to have the largest number of unconventional oil and gas cases in both 2012 and 2013, but the number of cases filed in Texas decreased between these periods, reflecting the general decrease in cases filed between 2012 and 2013. Texas saw a spike in the number of cases filed during the second half of 2012, primarily driven by Royalty Disputes and Other Breach of Contract cases, whose numbers declined in 2013. However, Texas did see an increase in Environmental / Product Liability cases filed in the second half of 2013. Of the states with the most unconventional oil and gas litigation, only California and Nebraska saw an uptick in cases between 2012 and 2013. All of California’s 2012 cases were filed on the state level, and while state cases did not vary greatly between years, six federal cases filed in 2013 increased California’s total unconventional oil and gas litigation. However, because the types of federal cases filed vary greatly, no trends in federal litigation in this region are easily identifiable. All of Nebraska’s 2012 and 2013 litigation was filed on the state level and is primarily Land & Lease Rights.

OK

PA

LA

69

30 12

OH

12

19

CA

7

17

NE

Other

The bankruptcy trustee of Norse Energy sued the state of New York in December 2013 alleging that the state has not met their obligation to review the health and environmental impacts of fracking in a timely manner. Norse applied for a number of hydraulic fracturing permits and was waiting for the state to finalize their review in order to grant their permits. The review began in 2008 and was originally expected to be completed by the end of 2009. However, additional reviews were ordered and Norse went bankrupt while waiting for the reviews to be completed. The study on the health and environmental impact study of hydraulic fracturing in New York remains unfinished. In early 2014, a group of landowners in New York filed another lawsuit against the state in order to get them to complete the studies.

3. ARE THERE ANY NOTABLE TRENDS IN THE TYPES OF CASES FILED? After being surpassed by Land and Lease Rights cases in the second half of 2012 and first half of 2013, Royalty Disputes were again the most common type of unconventional oil and gas case in the second half of 2013, partially due to several flaring cases filed in North Dakota (See inset). However, Land and Lease Rights cases were the predominant case type in 2013, with its relative volume increasing from 25 percent of cases filed in 2012 to 29 percent in 2013 (See Figure 3).

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Unconventional Oil and Gas Litigation Trends Report

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Royalty Disputes declined by 31 percent from 2012 to 2013, the most significant decrease between years of any type of case. This was primarily driven by Texas, which saw half as many Royalty Disputes cases filed in 2013 as in 2012, and Oklahoma, which also saw a double-digit decline. A decline in Other Breach of Contract cases was also driven by Texas and Oklahoma, offsetting the slight increase in this case type seen in California.

ronmental Rights Amendment prohibits the state from barring municipal hydraulic fracturing bans may open the door for increased environmental litigation in this jurisdiction. In October 2013, a complaint was removed to federal court in Kentucky alleging that two oil and gas exploration companies developing a shale gas field at Fort Knox breached contracts with their subcontractors. Government contractor defendants Trico Tiger Development and Nolin Rural Electric Cooperative are accused of deliberately entering “into a corrupt agreement” that damaged plaintiffs because a sealed contract modification allowed the defendants to hire plaintiff’s competitor to develop the field. The case was dismissed with prejudice in December 2013.

Although Texas saw an increase in the number of Environmental / Product Liability cases filed, this was offset by decreases in states such as New York, Ohio, and Oklahoma. The number of Environmental / Product Liability cases filed in Pennsylvania remained consistent from 2012 to 2013. However, the Pennsylvania Supreme Court ruling in December 2013 that the Envi-

SPOTLIGHT ON REGULATORY DEVELOPMENTS During 2013, California’s governor signed S.B. 4 into law that created a regulatory framework for hydraulic fracturing in the state. In November 2013, the California Department of Conservation developed new regulations to meet the requirements of the new law. These new regulations outline a process that requires permits, environmental monitoring, and disclosure of the chemicals used in the hydraulic fracturing process. When they were revealed, it was believed that these would be the strictest hydraulic fracturing regulations in the US, and companies were concerned about disclosing their trade secret chemical formulations. However, the bill and regulations allowed companies to continue drilling while the state undertakes an environmental impact study.

Legislation introduced in 2014 now threatens to repeal the law passed last year and impose a drilling moratorium in the state. After S.B. 4 passed, several major cities within California passed moratoria on drilling within their borders. A bill known as S.B. 1132 would institute a state-wide ban on hydraulic fracturing while California conducts a number of wide-ranging health and environmental studies that experts say could take years. Drilling would not be able to resume in the state until results from the studies conclusively demonstrate that it is safe. The Natural Resources and Water Committee in California’s Senate approved the proposed law in April.

FIGURE 3: CASES BY TYPE OF MATTER 2012

2013

118

97 89 81

76 67

48 40

40

19 7

Land & Lease Right

Royalty Disputes

Other Breach of Contract

Environmental / Product Liability

3

Securities / Stockholder Suits

Other

5

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ABOUT NAVIGANT’S UNCONVENTIONAL OIL AND GAS SERVICES Navigant’s unconventional oil and gas offerings include advisory services for strategic business decision analysis, construction risk management, economic and antitrust analyses, investment banking and restructuring advisory services, and expert services for disputes and investigations. Navigant was named 2012 Consultancy of the Year – Gulf Coast Region by Oil and Gas Awards based on an entry submitted on its recent work for the Gulf LNG Liquefaction Company, LLC (GLNG), which submitted its application for LNG export on August 31, 2012. For more information, go to navigant.com/shale.

ABOUT NAVIGANT Navigant (NYSE: NCI) is a specialized, global expert services firm dedicated to assisting clients in creating and protecting value in the face of critical business risks and opportunities. Through senior level engagement with clients, Navigant professional combine technical expertise in Disputes and Investigations, Economics, Financial Advisory and Management Consulting, with business pragmatism in the highly regulated Construction, Energy, Financial Services, and Healthcare industries to support clients in addressing their most critical business needs. More information about Navigant can be found at navigant.com.

September 2014

For more details on the information presented above, please contact: Bob Broxson 713.646.5072 [email protected] Todd Lester 512.493.5420 [email protected] Mark O’Rear 713.646.5045 [email protected] Julie Carey 202.481.7551 [email protected] Robert Lang 214.712.1571 [email protected] Gordon Pickering 916.631.3249 [email protected] Research Lead Suzanne Blanton [email protected] Rachael Fischer [email protected]

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1 Case data reported in prior studies may change when information regarding ongoing litigation is identified or amended. 2 Salmon, Ryan and Andrew Logan. Flaring Up: North Dakota Natural Gas Flaring More Than Doubles in Two Years. Ceres. July 2013. Available at https://www.ceres.org/resources/reports/ flaring-up-north-dakota-natural-gas-flaring-more-than-doubles-in-two-years/view. 3 Ratner, Michael and Mary Tiemann. An Overview of Unconventional Oil and Natural Gas: Resources and Federal Actions. Congressional Research Service. January 23, 2014.

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