Joint Review Panel Exceeds Mandate with Use of Sustainability Framework
Submitted by Shawn Denstedt & JoAnn Jamieson, Osler, Hoskin & Harcourt LLP

The recent joint review panel decision of the Kemess Project illustrates a recent trend toward expanding the role of sustainable development in environmental assessments. By using a sustainability framework to make its decision, the panel exceeded its mandate under existing environmental legislation.

The federal/provincial environmental assessment joint review panel (the Kemess Panel) for the Kemess North Copper-Gold Mine Project (the Kemess Project) released its report on September 17, 2007. The Kemess Panel recommended the rejection of the Kemess Project on the basis that the economic and social benefits of the project, on balance, were outweighed by the “risks of significant adverse environmental, social and cultural effects.”

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Texas Court Denies 100 Year-Old Claim to Mineral Interests
Submitted by Daniel M. McClure, Fulbright & Jaworski L.L.P.

Several energy companies recently prevailed in an appeal in a 100-year-old title dispute involving oil and gas interests in south Texas: Longoria v. Exxon Mobil Corp., 2008 WL 227970 (Tex. App. – San Antonio 2008). On January 31, 2008, the San Antonio Court of Appeals affirmed the dismissal by the trial court in Brooks County, Texas of claims by descendants of Jose M. Longoria that they had acquired title to a one-half interest in the mineral estate in 9,200 acres about 100 years ago when Jose M. Longoria allegedly adversely possessed the surface acreage as against his brother, Ponciano Longoria, the ancestor of the current royalty owners. The plaintiffs claimed that the energy companies had wrongfully converted one-half of the oil and gas produced from the 9,200 acres from wells producing on the property during the last 40 years or more.

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Texas Supreme Court Makes Key Rulings in Royalty Class Action Litigation
Submitted by Michael Powell, Locke Lord Bissell & Liddell LLP

In Bowden v. Phillips Petroleum Company, decided February 15, 2008, the Texas Supreme Court made several significant rulings affecting royalty owner class action litigation.

The Court reaffirmed its prior holdings that class actions are subject to normal rules of res judicata. For suits based on oil and gas leases, the Court wrote: “If the class representatives do not assert at the trial court all claims for damages arising from the leases which could have been litigated before the trial court, the unasserted claims may be precluded by res judicata in subsequent litigation.”

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More States Join California in the Fight Against the EPA's Emissions Ruling

In December of 2007, the EPA denied the state of California’s request for a waiver of the federal Clean Air Act that would allow California to impose regulations that would limit carbon dioxide emissions from new vehicles. California's regulations would significantly cut emissions and require a considerably higher mile-per-gallon average than that of the federal energy bill. The EPA ruled that, under the Clean Air Act, carbon dioxide emissions regulations are within the purview of the federal government. The EPA explained its decision to deny the waiver, in part, by pointing out that allowing some states to regulate emissions would make it more difficult for auto manufacturers to comply with each state’s differing levels of regulation, and explained that the EPA was working on a nationwide solution.

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"Hot Gas" Lawsuit to Move Forward

Plaintiff groups in the “hot gas” Multi-District Litigation (“MDL”) will be allowed to proceed with their case after a federal judge in Kansas denied the defendant oil companies’ motion to dismiss for failure to state a claim. The MDL was formed to address the issue of fuel expansion in warm weather. (For background see previously published story in the December issue of The Energy Law Advisor which can be found in the Advisor Archive).

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House Passes Renewable Energy Tax Breaks

The House Ways and Means Committee introduced what would become the Renewable Energy and Energy Conservation Tax Act 2008 (H.R. 5351) on February 12, 2008, and the bill passed the House of Representatives on February 27, 2008. The bill proposes granting $17.5 billion in tax breaks for investments in renewable energy and building efficiency. Similar bills have been blocked in the Senate because the tax breaks would be financed through repealing other tax breaks (valued at approximately $13.6 billion) granted to oil and gas companies in 2004 for domestically produced goods.

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5th Annual Law of LNG Conference
September 4-5, 2008 | Houston, Texas