The energy industry is in constant regulatory and commercial flux, and Davis Graham & Stubbs LLP has the expertise and acumen to help its energy clients successfully respond to new developments. We provide a seamless array of litigation, transaction, permitting, and counseling services specifically targeting the energy industry. Our lawyers apply their in-depth knowledge of the oil, natural gas, coal, coalbed methane, electric, wind, solar, and water industries to their particular fields of legal expertise to deliver sophisticated solutions to energy-industry clients.
We represent clients in both transactional work and litigation of oil and gas and mining industry disputes, including federal and state governmental enforcement cases. We practice before the Federal Energy and Regulatory Commission and state public utilities commissions in gas and electric restructuring proceedings and other types of proceedings. Our lawyers work with clients in the legal aspects of oil and gas exploration, operation, production, sales, transportation, refining, and financing. In addition, we handle acquisitions and divestitures of oil and gas and mining assets. Further, our lawyers are involved in all aspects of the oil and gas and mining permitting process by working with federal, state, and local officials to comply with the various regulatory permitting statutes, rules, and regulations. Combined with other energy lawyers and the broader group of tax, corporate, regulatory, environmental, public lands, and litigation lawyers who are experienced in oil and gas matters, DGS offers one of the strongest oil and gas and mining practices in the U.S.
DGS energy attorneys help clients take advantage of emerging opportunities in the renewable energy and transportation sector in the western U.S. including wind, solar, biomass, alternative and mass transportation, and other ventures. Our diversity of experience and practical understanding of the link between project components distinguishes us from many firms and adds value to client efforts. Our experience includes traditional legal services – such as the drafting and negotiation of power purchase agreements, transmission agreements, and other contracts – as well as specialized, renewable energy-specific expertise.
When our energy clients find themselves facing a dispute, our trial lawyers zealously represent their interests throughout the dispute resolution process. We practice before federal and state public utilities commissions in gas and electric utility regulatory proceedings, including resource and transmission planning, renewable energy portfolio standards, and more traditional utility regulation proceedings, such as rate cases, rule-makings, competitive issues, independent power production, utility mergers and acquisitions, and major public utility facility (transmission lines, substations, and pipelines) siting proceedings. Our trial lawyers are well versed and well respected in the energy industry. We address a wide range of litigation needs relating to antitrust, breach of contract, fraud, intellectual property, securities issues, unfair competition, public utilities regulation, white collar criminal defense, and many others.
On January 25, 2016, the Colorado Oil and Gas Conservation Commission ("COGCC" or "Commission") approved rules for coordinating the work of the COGCC with local jurisdictions when large scale oil and gas facilities are proposed near communities and for facilitating municipal planning. These rules stem from Recommendations No. 17 and 20 of Governor Hickenlooper's Oil and Gas Task Force and will become effective 20 days after they are published in the Colorado Register.
Today, the Department of Interior (DOI)/Bureau of Land Management (BLM) issued its much-anticipated proposed rule on venting, flaring, and leaking from oil and gas operations on onshore federal and Indian leases, along with a four-page fact sheet. DOI's press release, which discusses the proposal largely in terms of air quality, notes that the rule will "help curb waste of our nation's natural gas supplies, reduce harmful methane emissions and provide a fair return on public resources for federal taxpayers, Tribes, and States." DOI is proposing to update NTL-4A by requiring operators to limit venting and flaring through new technologies, processes, and equipment including storage tanks, adopt leak detection and repair programs, and limit gas losses during liquids unloading. The proposed rule would also prohibit venting, except during emergencies and other limited exceptions–effectively implementing a "no venting" standard. Finally, the rule proposes to clarify when operators owe royalties on flared gas and allow BLM to set royalty rates at or above 12.5 percent of the value of production.
Under the Wyoming Supreme Court's recent ruling in Pennaco Energy, Inc. v. KD Company LLC, 2015 WY 152 (Wyo. 2015), parties assigning agreements pertaining to oil and gas development should be aware that, absent express language in the agreement to the contrary, they could remain responsible in the event of subsequent breaches by their assignees, even when those breaches occur years later.
On December 9, 2015, EPA announced important changes to its environmental audit policy and voluntary disclosure program with the launch of its new eDisclosure portal (eDisclosure Notice) intended to streamline the disclosure process.
Denver public lands attorneys Rob Mathes, Katie Schroder, and Tim Canon will join the Natural Resources Department of Davis Graham & Stubbs LLP effective December 1. Mr. Mathes and Ms. Schroder have joined the firm as partners and Mr. Canon as an associate.
Part Two: Environmental Self-Audits and Self-Disclosure
Environmental self-audits are an effective tool to detect and correct potential non-compliance with environmental laws. In addition, EPA's Audit Policy and various state environmental audit privilege and immunity laws provide incentives for self-disclosure of non-compliance subject to certain eligibility criteria.
Imagine you are general counsel explaining to your management that the insurance benefits you thought the other party to a corporate transaction had assigned to your company to cover assumed liabilities are not actually available.
Rule Now Effective In All Other States, But Legal Challenges Loom Nationwide
As discussed in a previous DGS alert, on May 27, 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) issued the new Clean Water Rule (Rule) defining the extent of jurisdictional "Waters of the United States" regulated under the Clean Water Act (CWA).
On Tuesday, August 18, 2015, with much fanfare, EPA released pre-publication versions of several proposed rules affecting air quality permitting and regulation of sources in the oil and gas sector. While EPA's promised "methane rules" and proposed Control Technique Guidelines (CTG's) for state emissions control requirements for oil and gas sources may have grabbed the spotlight for being completely new and different among the proposals released, also included was EPA's proposed rule for making Clean Air Act (CAA) source determinations in the onshore oil and gas sector.
When oil prices fell precipitously in the second half of 2014, many predicted that the resulting financial pressures on U.S. E&P companies would force them to rapidly scale back production. To date, the industry has defied these predictions – greater efficiency, high-grading of drilling plans, cost savings, robust capital raising and strong hedging positions have allowed domestic producers to maintain production at or near historically high levels even with rig counts falling significantly.
Part One: EPA Information Request Letters - Practical Tips and Guidance for Responding in Today's Enforcement Climate
Most environmental statutes provide EPA with broad information gathering authority to examine a company's compliance with applicable environmental laws or waste-related practices. One of the ways in which EPA exercises this authority is via the Information Request letter, which may be a prelude to formal enforcement or administrative action.
Please join Davis Graham & Stubbs for a discussion of EPA's and the U.S. Army Corps of Engineer's recently finalized jurisdictional Waters of the U.S. rule, related Clean Water Act issues, and what it all means for your business. Topics will include a discussion of the new jurisdictional Waters of the U.S. rule, including the new definition of tributary, adjacent waters, significant nexus, and new exclusions among others.
On May 27, 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) issued a pre-publication final rule defining the jurisdictional "Waters of the United States" regulated under the Clean Water Act (CWA). Unless blocked by some federal legislation or court order, the final rule will go into effect 60 days after publication in the Federal Register. That effective date will likely be around mid-August.
On May 5, 2015, the Treasury Department issued proposed regulations that provide guidance on whether income of a master limited partnership (MLP) related to minerals or natural resources constitutes "qualifying income" for purposes of classifying the MLP as a partnership (and not as a corporation) for tax purposes.
It's hard to deny that air quality regulations are one of the most important government initiatives impacting business and industry today. To help understand what the latest and likely future air quality requirements will look like, we have assembled three panels consisting of some of the leading federal and state regulators, as well as several industry and air quality planning experts, to provide their perspectives.
On January 5, 2015, the Colorado Oil and Gas Conservation Commission (COGCC) amended Rules 522 and 523 governing enforcement and penalties. These amendments implement House Bill 14-1356, which the legislature adopted last April.
After a period of relative stability, volatility in global oil prices has returned with a vengeance in recent weeks. Slow economic growth in many regions, OPEC inaction, and surging U.S. production have combined to cause a precipitous fall in the price of oil, which continues to hit new multiyear lows.
On July 31, 2014, the U.S. Environmental Protection Agency (EPA) published a request for information (RFI) on various changes to the Risk Management Program (RMP) under Section 112(r)(7) of the Clean Air Act, including completely replacing the current RMP rule and its sister regulation, the Process Safety Management (PSM) standard, with a new framework for regulating high-risk industries. The comment period associated with the RFI closed on October 29, 2014. EPA has published over 570 comments submitted by industry members, state and local agencies, public citizens, and non-governmental organizations in response to the RFI. This Client Alert analyzes the bulk of those comments for common themes that illustrate anticipated areas for programmatic revision. It further identifies certain ideological conflicts which must be resolved before any final rule can issue with broad-based support.
In response to Executive Order 13650, entitled "Improving Chemical Facility Safety and Security," was issued August 1, 2013 in response to several recent major chemical accidents, including the explosion at the West Fertilizer Facility in West, Texas. The Executive Order required numerous federal agencies to form a Chemical Facility Safety and Security Working Group (Working Group) to identify how to reduce the incidence of major chemical incidents at chemical facilities. On May 1, 2014, the Working Group issued its report to the President recommending a number of initiatives, including modernizing the RMP and PSM standards by May 1, 2015. EPA and the Occupational Safety and Health Administration (OSHA) both issued RFIs intended to assist in determining whether and how to modernize the RMP and PSM standards. Following-up on publication of the Working Group's report and OSHA's RFI, which signals that OSHA may apply an expanded PSM program to ammonium nitrate, reactive chemicals, and oil and gas drilling, servicing, and production facilities, EPA published its own RFI intended to improve and/or expand its RMP rule.
Today, EPA issued its long-awaited new National Ambient Air Quality Standard (NAAQS) proposal for ground level ozone, the federal health-based standard that states must decide how to meet. The new primary 8-hour ozone NAAQS, which EPA is proposing to set at between 65 and 70 parts per billion (ppb), represents a significant tightening of the standard from the current level of 75 ppb and would put a significant portion of the country in non-attainment. The agency is also taking comment on setting the primary NAAQS as low as 60 ppb, which could drastically expand non-attainment designations even further. The agency has also proposed tightening the secondary ozone standard, which exists to protect “public welfare” (as opposed to public health) values such as soils, water, crops, wildlife, weather, economic values, visibility and climate, and personal well-being.
Today’s proposal marks yet another substantial federal air quality action by EPA in a year that has seen, perhaps, as many significant air quality rules or court decisions as any on record. These include the U.S. Supreme Court’s validation of EPA’s Cross State Air Pollution Rule (CSPR), the Court’s ruling on the extent of EPA’s authority to regulate CO2 from stationary sources in the Utility Air Regulatory Group case, EPA’s proposed Clean Power Plan focusing on CO2 reductions from coal-fired power plants, the proposed reversal of EPA’s policy on affirmative defenses for startups, shutdowns, and malfunctions; and the Supreme Court’s recent acceptance of certiorari to review the legality of the Mercury Air Toxics Standard (MATS). Of these, it is perhaps the ozone NAAQS that poses the most serious and important consequences for businesses as well as state regulators, and even the EPA itself. A further lowering of the ozone NAAQS (it was last lowered in 2008) will significantly impact nearly every industrial sector, necessitating, in our view, widespread participation in EPA’s notice and comment process. Comments will be due 90 days after publication of the proposal in the Federal Register; although, given the significance and breadth of the rule’s potential impacts, it is possible the comment deadline will be extended. A final rule is expected by October, 2015.
Davis Graham & Stubbs LLP was named among the 2014-2015 “Best Law Firms” by publisher Woodward/White, Inc. in their fifth edition, which published today. U.S. News and Best Lawyers® have joined forces to position more than 11,000 firms in 87 practice areas based in 178 metropolitan areas and eight states. Firms were ranked across three tiers both locally and nationally based on quantitative and qualitative data gathered from peer and client feedback.
As discussed in our client alert of June 24, 2014, the U.S. Supreme Court in Utility Air Regulatory Group v. EPA (UARG) invalidated EPA’s greenhouse-gas (GHG) regulations to the extent those regulations required stationary sources to obtain Prevention of Significant Deterioration (PSD) and/or Title V major source permits based solely on the source’s GHG emissions (termed "non-anyway" sources). On July 24, 2014, EPA issued a memorandum to the regional administrators outlining several next steps following the UARG decision.
DGS partner Connie Rogers today begins her term on the Board of Directors of the Center of the American West at the University of Colorado. Founded in 1986, the Center serves as a forum committed to the civil, respectful, and problem-solving exploration of important and often contentious public concerns. The center has published numerous books, articles, and films addressing western issues such as energy, water, and conservation.
This past Tuesday – June 24, 2014 – the Colorado Oil and Gas Conservation Commission (COGCC) issued a press release, explaining that it had ordered High Sierra Water Services to temporarily cease operating a 10,000 barrel-per-day injection well in Weld County. The COGCC described the order as “a precautionary step” that would enable the agency to analyze whether well operations are tied to recent low-level seismic activity nearby.
Yesterday, Justice Scalia, writing for a majority of the United States Supreme Court, invalidated EPA's greenhouse-gas (GHG) regulations to the extent they require stationary sources to obtain a Prevention of Significant Deterioration (PSD) and/or Title V major source permit based solely on the source's GHG emissions. The Court, however, also validated EPA's extension of "best available control technology" (BACT) requirements to GHG emissions at sources already subject to PSD requirements based on criteria pollutant emissions (so-called "PSD-anyway" sources).
Please join us for this seminar discussing the recent trends and legal updates surrounding hydraulic fracturing. Our guest speaker, Mike Paque, Executive Director of the Ground Water Protection Council, will address the recent report from the Secretary of Energy Advisory Board, FracFocus 2.0 Task Force.
On May 9, 2014, the U.S. EPA issued a pre-publication copy of an Advance Notice of Proposed Rulemaking (ANPR) requesting public comment on regulatory and voluntary mechanisms for obtaining information on chemical substances and mixtures used in hydraulic fracturing (HF) operations.
Please join us for the second of our enforcement seminars on current issues affecting air and water resources. In this session, our speakers will cover air enforcement trends and developments in Colorado and EPA Region 8 as well as wetland issues including enforcement under section 404 of the Clean Water Act.
A patent-assertion entity (PAE) or non-practicing entity (NPE) is an entity that enforces patent rights against others, but does not itself use the patents for any productive purpose. A perennial adversary of high-tech companies and startups, recent studies looking at the rise in patent litigation reveal that these "patent trolls" are turning their sights increasingly on less traditional technology innovators – including those in the energy industry.
AAPG International Conference & Exhibition Regulators Forum
On Monday, the Colorado Oil and Gas Conservation Commission (COGCC) gave final approval to new rules which expand the setbacks for oil and gas wells and production facilities and impose new notice, meeting, and mitigation requirements to better protect nearby homes and neighborhoods. The COGCC touts the new rules as "the strongest rules in the country for limiting the impact of drilling near residences and other occupied buildings." These rules will go into effect on August 1, 2013.
What do bikes and hydraulic fracturing have in common? Prior to this week, the answer was probably very little. On February 4, 2013, however, the Colorado Supreme Court unanimously issued an opinion striking down the City of Black Hawk’s ban prohibiting bicycle traffic on certain local streets.
Geothermal energy, energy generated beneath the Earth's surface, has the potential to meet a large portion of the nation's energy and power needs. Safe, clean and reliable, it can help the country diversify its renewable energy portfolio and enhance energy security.
DGS is hosting The Aaron Harber Show on Thursday, November 15 with the Democracy & Media Education Foundation. The event, "What the Election Means for the Energy Industry," is a nonpartisan, multi-energy industry event to discuss what the new Congress and Presidential Administration will mean for the Energy Industry.
U.S. – Russia Bilateral Presidential Commission Energy Working Group Round Table - Energy Law in XXI: Views from the U.S. and Russia
DGS associate Lamont Larsen will be speaking at the Rocky Mountain Mineral Law Foundation (RMMLF) Special Institute on Horizontal Oil & Gas Development. The Institute, being held November 8-9 in Westminster, Colorado, will explore the legal and technical challenges facing the oil and gas industry as horizontal development in shale and other similar plays expands and challenges the technological and legal frontiers.
RMMLF Special Institute on The Water-Energy Nexus: Acquisition, Use and disposal of Water for Energy and Mineral Development
Many experts agree that new supplies of natural gas and oil from shale and other unconventional formations have the potential to decrease our energy costs, increase our employment, enhance our national security, and reduce our greenhouse gas emissions.
Unconventional Gas Workshop - Kiev, Ukraine
Davis Graham & Stubbs LLP partners David Neslin and Zach Miller will be participating in the Rocky Mountain Mineral Law Foundation (RMMLF) Special Institute on The Water-Energy Nexus: Acquisition, Use and Disposal of Water for Energy and Mineral Development.
Forty-five DGS attorneys were named Best Lawyers® by publisher Woodward/White, Inc. in its annual guide recognizing legal excellence.
Twenty-one Davis Graham & Stubbs LLP lawyers have been designated "Super Lawyers" in the 2012 Super Lawyers Business Edition published by Thomson Reuters.
Davis Graham & Stubbs LLP partner John Jacus will be speaking at the 24th Annual Rocky Mountain Energy Epicenter August 13-16 at the Colorado Convention Center in Denver.
Denver Business Journal
I recently spoke at a shale gas conference in Kiev, Ukraine, about Colorado's experience producing the energy that we need while protecting the environment that we treasure.
CLE International - Hydraulic Fracturing: The Debate Continues
Institute for Energy Law – Center for American and International Law - Second Conference on the Law of Shale Plays
This paper examines the typical sources of air pollutants from various items of equipment and activities common to shale gas and oil production, the current and likely future air quality regulations affecting the operation of these sources and activities, and recent regulatory and administrative developments of particular concern to those involved in shale gas and oil development.
Davis Graham & Stubbs LLP announces that John R. Jacus will be speaking at the 2nd Conference on the Law of Shale Plays, which is presented by The Institute for Energy Law, on September 7-8th at the Worthington Renaissance Hotel in Fort Worth, Texas. Mr. Jacus’ discussion will focus on “Air Quality Constraints on Shale Development Activities.”
Rocky Mountain Mineral Law Foundation Journal 48.2
The Rocky Mountain Landman
On September 24, 2010, the Colorado State Board of Land Commissioners (the “Board”) released its proposed revision to the oil and gas lease form for Colorado state lands. The Board subsequently accepted written comments regarding the proposed changes and is expected to consider the adoption of the new form at its meeting on December 3, 2010. The proposed changes to the lease form are substantial, and if adopted, may have a significant impact on future operations on Colorado state lands. Following is a brief summary of some of the proposed
The inaugural, 2010 edition of the U.S. News - Best Lawyers® “Best Law Firms” Guide ranks Davis Graham & Stubbs LLP as a national leader in mining law and mutual funds law – and honors the LoDo-based firm with first-tier regional rankings in energy, natural resources, commercial litigation and several corporate law areas, including tax, securities, private equity and M&A. U.S. News & World Report published the results yesterday. The survey included responses from 9,514 corporate executives, in-house lawyers, marketing officers or private practice attorneys.
The newly announced, 2011 edition of the Best Lawyers in America ranks Davis Graham & Stubbs LLP first in Colorado-based law practices for corporate governance and compliance law, environmental law, mergers and acquisitions law, natural resources law, oil and gas law and securities law. This year Best Lawyers recognizes 36 DGS attorneys, including 13 who have been named to the list for at least 10 years. Nearly half (46 percent) of DGS partners are recognized in the definitive guide to legal excellence, in addition to several attorneys of counsel to the firm. Best Lawyers is a peer-review survey of more than 39,000 in-house counsels and private practice attorneys.
Exploration & Production
Jeffrey Davidow, the former US ambassador to Mexico, characterises the relationship between the US and Mexico as analogous to that of a bear and a porcupine – stumbling and prickly.1 The metaphor holds for the relationship between the US and much of Latin America.
2008 Offshore Technology Conference
33rd Annual Indian Law Conference
Twenty-six Davis Graham & Stubbs attorneys practicing in 28 fields will be recognized in the 2007 edition of The Best Lawyers in America. The number of DGS lawyers recognized in the definitive guide to legal excellence increased by five this year, and represents more than 40% of DGS partners overall. DGS ranks first in the number of Colorado-based attorneys listed by the 2007 edition of Best Lawyers in the Commercial Litigation, Natural Resources, Environmental Law, Securities Law and Corporate Governance and Compliance Law practice areas.
Davis Graham & Stubbs attorney Robert W. Lawrence has been chosen as one of only five Colorado lawyers listed in the Lawdragon 500 New Stars New Worlds, the newest list of 500 U.S. lawyers ranked by clients and peers. Lawrence is featured on the list as one of only two environmental attorneys ranked in Colorado. He joins fellow partner Judith M. Matlock, who was named one of the top-ranked energy attorneys in the U.S. in the inaugural issue, The Lawdragon 500: Leading Lawyers in America in October 2005. Lawdragon conducts independent research and online balloting, and interviews thousands of private and in-house lawyers to assemble the guide that reflects excellence in 80 practice areas.
Thirteen lawyers at Davis Graham & Stubbs law firm have been named Super Lawyers by their peers in Colorado. Law & Politics magazine polled active Colorado lawyers for nominations to identify the best attorneys in more than 55 practice areas based on peer recognition and professional achievement. Super Lawyers involves an attorney-led research process for a diverse listing of the top lawyers from private practice, in-house counsel and the public sector in different geographic locations. Only 5 percent of the lawyers in each region are listed in Colorado Super Lawyers, co-published by Law & Politics and 5280 magazine.
The Bush Administration will release its energy strategy on May 16, 2001. The strategy comes at a time of high gasoline prices, power shortages, and rising energy costs. Many of these problems are caused by a fundamental imbalance between demand for energy and its supply. The strategy offers several approaches to correcting this imbalance. The implementation of these strategies will directly affect the business of natural resource companies, but will also have significant consequences for other business.