In recent years, there has been an increase in the number of denials of applications to decommission offshore pipelines in place in a departure from the Bureau of Safety and Environmental Enforcement’s (“BSEE”) longstanding practices. The denials are accompanied by an order from BSEE to decommission the pipelines by removal, with reference to Notice to Lessees (“NTL”) 2009-G04 and/or “significant sediment resource areas” (“SSRA”) in the vicinity of the pipeline. BSEE is also issuing orders to companies to remove pipelines located in SSRAs that were previously decommissioned in place.
Energy Litigation
Fifth Circuit to Hold Oral Argument in Sojitz v. UNOCAL in April 2020
By Liskow & Lewis & Jana Grauberger on
Last year, in another dispute over who should bear the cost of decommissioning offshore facilities, the Southern District of Texas held that a former sub-assignee of offshore operating rights was entitled to equitable subrogation from the record title owner and initial assignor. Sojitz Energy Venture, Inc. v. Union Oil Co. of California, 394 F. Supp. 3d 687 (S.D. Tex. 2019).Continue Reading Fifth Circuit to Hold Oral Argument in Sojitz v. UNOCAL in April 2020
Texas Supreme Court Decides Energy Transfer Partners v. Enterprise Products
By Liskow & Lewis on
Posted in Business, Contracts, Energy & Natural Resources, Energy Litigation, Litigation, Pipeline, Texas
The Texas Supreme Court issued an opinion today in Energy Transfer Partners, L.P v. Enterprise Products Partners, L.P., a case previously featured on the Blog. This case began in 2011 when ETP and Enterprise explored the possibility of partnering to modify and extend, or construct anew, a pipeline to transport oil southbound from Cushing, Oklahoma.
Continue Reading Texas Supreme Court Decides Energy Transfer Partners v. Enterprise Products
U.S. Climate Change Litigation: 2020 Update
Since the initiation of climate change litigation several years ago, various state governments and interest groups have filed lawsuits against fossil fuel companies and governing authorities. The current landscape consists of (1) two lawsuits brought by state governments against an oil and gas company alleging investor fraud; (2) numerous cities, counties, and other local governments seeking compensation from fossil fuel companies for climate change related damages; and (3) nine lawsuits brought by a non-profit law firm, through children, against governments for failing to protect them from fossil fuel emissions. Below we take a closer look at each category of lawsuits and provide an update on where they stand today.
Continue Reading U.S. Climate Change Litigation: 2020 Update
Second Remand Order in Coastal Zone Management Cases Pending Before Fifth Circuit
In May 2018, oil and gas industry defendants removed a docket of 42 cases alleging violations of Louisiana’s coastal zone management laws to federal court in the Eastern and Western Districts of Louisiana (“CZM cases”). One year later, the Eastern District granted motions to remand filed by Plaquemines Parish and the State of Louisiana in Parish of Plaquemines v. Riverwood Production Company, et al. (“Riverwood”), No. 18-5217, 2019 WL 2271118 (E.D. La. May 28, 2019). The Western District recently joined the Eastern District and granted similar remand motions filed by Cameron Parish and the State of Louisiana in Parish of Cameron, et al. v. Auster Oil & Gas Incorporated, et al. (“Auster”), No. 18-677, 2019 WL 4734394 (W.D. La. Sept. 26, 2019), —F. Supp. 3d—. Although there are procedural differences between Riverwood and Auster, both district courts found no federal officer or federal question jurisdiction over the CZM cases. The Fifth Circuit is poised to resolve these jurisdictional issues in the upcoming year.
Continue Reading Second Remand Order in Coastal Zone Management Cases Pending Before Fifth Circuit
Texas Supreme Court to Review $500 Million Verdict in Case Involving Formation of Partnership to Construct Crude Oil Pipeline
By Liskow & Lewis on
Posted in Business, Contracts, Energy & Natural Resources, Energy Litigation, Litigation, Pipeline, Texas
Last week the Texas Supreme Court granted review in Energy Transfer Partners, L.P. v. Enterprise Products Partners, L.P., a case concerning Texas partnership law. Energy Transfer Partners has garnered significant amicus support on both sides of the “v.” and has been closely followed by the energy industry.
SCOTUS Decides Dutra Group v. Batterton
By Liskow & Lewis on
Posted in Appellate, Arbitration, Business, Contracts, Employee Benefits, Employment Law, Energy & Natural Resources, Energy Litigation, Environmental, Government Investigations & White Collar Defense, Insurance, Labor & Employment, Litigation, Maritime, Mass Tort & Class Action, Offshore, Product Defense, Toxic Tort & Environmental Litigation
Today the United States Supreme Court issued its decision in this landmark case concerning punitive damages. The six justices in the majority opinion reversed the Ninth Circuit and resolved a circuit split on this issue. The question presented was whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel. Justice Alito wrote the majority opinion, joined by Chief Justice Roberts, Justices Thomas, Kagan, Gorsuch, and Kavanaugh. Justice Ginsburg dissented, joined by Justices Breyer and Sotomayor.Continue Reading SCOTUS Decides Dutra Group v. Batterton
Supreme Court Holds State Wage and Hour Laws are Inapplicable to Offshore Drilling Platforms
In a decision that could have far-reaching implications, the United States Supreme Court issued a June 10 opinion holding that California’s wage-and-hour laws do not apply to workers on oil and gas platforms located in open water on the Outer Continental Shelf. The plaintiffs in Parker Drilling Management Services, Ltd. v. Newton, were offshore rig workers who filed a class action asserting that their employer violated California’s minimum wage and overtime laws by failing to pay them for stand-by time while they were on the drilling platform. Both parties agreed that the platforms were governed by the Outer Continental Shelf Lands Act (“OCSLA”), but they disagreed regarding whether the California’s wage-and-hour laws were incorporated into OCSLA and therefore applicable to workers on the platform.
Continue Reading Supreme Court Holds State Wage and Hour Laws are Inapplicable to Offshore Drilling Platforms
Motion to Remand Granted in One Coastal Zone Management Act Case But Federal Appellate Options Remain Viable
On May 28, 2019, United States District Judge Martin Feldman issued a sixty-four page Order and Reasons which granted motions to remand filed by Plaquemines Parish and the State of Louisiana in The Parish of Plaquemines v. Riverwood Production Co., et al. That case is one of forty-two Coastal Zone Management Act (“CZMA”) cases that were removed to Federal court in May 2018. Those cases generally allege that more than 200 oil and gas companies violated Louisiana’s State and Local Coastal Resources Management Act of 1978 (“SLCRMA”) by either failing to obtain or violating state coastal use permits. The cases were removed to Federal court by Defendants pursuant to 28 U.S.C. § 1442 (the federal officer removal statute) and 28 U.S.C. § 1331 (the federal question statute) on the basis that Plaintiffs’ claims (1) implicate wartime and national emergency activities undertaken at the direction of federal officers, and (2) necessarily require resolution of substantial, disputed questions of federal law. In response, Plaintiffs filed motions to remand. In those motions, Plaintiffs argued that (1) the removal was not timely because Defendants had notice of the grounds alleged in the removal notice more than thirty days before the cases were removed, (2) the Defendants could not satisfy the elements of the jurisdictional test for “federal officer” removal jurisdiction, and (3) Defendants could not satisfy the test for substantial federal question jurisdiction set forth by the United States Supreme Court.
Liskow Obtains Victory for the Oil and Gas Industry in the Louisiana Third Circuit
In a victory for the oil and gas industry, the Third Circuit rendered a decision rejecting attempts by the Louisiana Department of Revenue to impose severance taxes on crude oil production based on index pricing. The Third Circuit reaffirmed that severance taxes should be based on the “gross proceeds” obtained in an arm’s length sale at the lease. The Department had sought additional severance taxes from numerous Louisiana producers that sold crude oil in arm’s length sales at the lease. The contracts provided that the sales price of the crude oil was based on index pricing, less an amount sometimes designated as a “transportation differential” or simply as a deduction. The Department argued that this “differential” or deduction must be “disallowed” when computing severance taxes, effectively imposing severance taxes on the index pricing. The Louisiana Board of Tax Appeals, faced with numerous cases raising this same issue, heard a “test case” involving Avanti Exploration, LLC. The BTA held that the Department’s theories were invalid, and severance tax properly was based on the actual “gross receipts” received by the producer in an arm’s length sale. In a decision issued on April 17, 2019, the Louisiana Third Circuit Court of Appeal affirmed, holding that, pursuant to the Louisiana Constitution, the severance tax statutes, and the Department regulations, in the absence of any “posted field price,” severance taxes must be based on the actual “gross receipts” received by the producer in an arm’s length sale at the lease.Continue Reading Liskow Obtains Victory for the Oil and Gas Industry in the Louisiana Third Circuit