EPA’s Draconian WOTUS Rule Blocked by Federal Judge
In May, MDN told you the maddening news that the federal Environmental Protection Agency had, once again, illegally grabbed power not granted to them under the Constitution by redefining what are “waters of the United States” (see EPA Power Grab: Redefines Waters of the U.S. to Include Everything). Every minor mud puddle will be regulated by the EPA under the new WOTUS rule issued by the agency. Some 13 states sued to stop the rule. The WOTUS rule was slated to go into effect beginning today, but a federal judge in North Dakota blocked it at literally the eleventh hour. The judge’s action stops WOTUS cold until the lawsuit filed by the states can work its way through court. This is fantastic news for drillers across the country as the EPA was surely aiming to further regulate oil and gas drilling using the back door of the WOTUS rule, although we’re not out of the woods yet…
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MDN is pleased to add another occasional voice to Marcellus Drilling News. Stephen Heins is an energy and regulatory consultant for a Wall Street firm, and the former vice president of communication for Orion Energy Systems. Steve has penned an article (below) pointing out five critical problems with the recently announced EPA Clean Power Plan. Steve makes a strong case that the EPA needs to hold off on implementing this draconian new plan until the Supreme Court hears a case brought against the plan by 16 states. Pull up a chair and enjoy Steve’s expert insights…
An unfortunate decision in an Ohio court case may have far-reaching implications for Ohio landowners. In Armstrong v. Chesapeake Exploration, L.L.C., landowners Myron and Nikki Armstrong purchased 61 acres of land in Tuscarawas County, OH in 2003 with an existing oil and gas lease (dating back to 1972). After purchasing the property, the Armstrong’s land was pooled into a drilling unit and a well was drilled. We do not know how much (or even if) the well produced in the way of gas and oil. We don’t know if it was hooked up to a pipeline for production. We assume it was hooked up and is producing because the Armstrongs have sued to cancel the lease saying they haven’t received a single royalty check since the well was drilled. Tuscarawas County Court ruled that because there is no express provision in the original lease saying “you can cancel this lease if we don’t pay you the royalties we say we’ll pay you,” the court ruled in favor of Chesapeake and the company that owns the lease and is supposed to pay the royalties–Belden & Blake. The Armstongs appealed the decision to the Ohio Court of Appeals, Fifth Appellate District. That court has just ruled the same way–saying even though royalties haven’t been paid, that’s not a good and sufficient reason to cancel the lease…
The Supreme Court of Kentucky has just ruled, in a pair of cases, that producers (i.e. drillers) CAN deduct post-production costs before calculating royalties to landowners. Once case involves landowners suing Magnum Hunter, the other involves landowners suing EQT, claiming (much like what has happened in Pennsylvania) that post-production costs mean they are getting less than one-eighth or 12.5% of the fair value of the gas as a royalty payment. The Supreme Court of Kentucky ruled the language in the leases is unambiguous as is the law–and that the lease allows for post-production expenses to be deducted. Here’s a summary from the legal beagles at Vorys…
The U.S. Court of Appeals for the Second Circuit, located in New York State, released a decision yesterday in a case known as Beardslee v. Inflection Energy, LLC (copy of the decision is embedded below) that may create problems for future shale drilling in New York State–should the existing statewide ban ever be lifted. Yesterday’s decision is good news for landowners in one sense–it officially upholds the right of Tioga County, NY landowners party to the lawsuit to be released from old leases made in pre-Marcellus days when landowners signed leases for $3 per acre. Those leases were signed before the words “Marcellus” or “Utica” meant anything other than municipalities in New York State. (Interesting factoid: both shale plays are named after the NY towns where they were first identified. Further interesting factoid: both Marcellus, NY and Utica, NY banned fracking before the statewide ban was official.) The Second Circuit upheld a previous decision which we first wrote about in 2012 (see 
The Chief of the Division of Oil and Gas Resources Management for the Ohio Dept. of Natural Resources (currently Rick Simmers) is a man with a lot of power. He has the power, according to a ruling just handed down on August 12, to make his own decisions about suspending permits to operate in the absence of specific violations of a law or regulation. In September 2014 Simmers suspended permits for two wastewater injection wells in Trumbull County, OH after a very low level earthquake was detected close to those wells (an earthquake that couldn’t be felt at the surface and caused no damage of any kind). American Water Management Services sued saying they hadn’t violated any laws or regulations on the books and their permits could not just be arbitrarily revoked like that. But the Ohio Oil and Gas Commission said nope–Tom Cruise, er, a, Mr. Simmers can arbitrarily do what he wants when there is no specific rule or guideline or law–because he has the best interests of the people at heart…