Digital Commons Network^™

Environmental Defense Center V. Bureau Of Ocean Energy Management, Eliot M. Thompson

Public Land & Resources Law Review

The United States Court of Appeals for the Ninth Circuit upheld the district court’s grants of summary judgment and injunctive relief against BOEM for violating the ESA and CZMA. The Ninth Circuit found BOEM violated NEPA, CZMA, and the APA by failing to adequately consider the environmental impacts of well stimulation treatments. The Ninth Circuit also reversed the lower court’s grant of summary judgment against the Environmental Defense Center for their NEPA claims.

Transparency Of Land-Based Investments: Cameroon Country Snapshot, Sam Szoke-Burke, Samuel Nguiffo, Stella Tchoukep

Columbia Center on Sustainable Investment Staff Publications

Despite a recent transparency law and participation in transparency initiatives, Cameroon’s investment environment remains plagued by poor transparency.

In a new report focusing on agribusiness projects in Cameroon, CCSI and the Centre pour l’Environnement et le Développement (CED) find that:

• Communities continue to be excluded from decision-making around investments.
• The government pursues a top-down approach to concession allocation and remains reluctant to recognize all legitimate tenure rights.
• The government faces threats to its legitimacy as the grievances of citizens and investors alike lead to the barring of roads by communities and investor withdrawals.

CCSI and CED therefore call for:

• A …

Nigeria’S Petroleum Industry Bill: A Missed Opportunity To Prepare For The Zero-Carbon Future, Solina Kennedy, Martin Dietrich Brauch, Perrine Toledano, Tehtena Mebratu-Tsegaye

Columbia Center on Sustainable Investment Staff Publications

With Nigeria’s National Assembly debating the proposed Petroleum Industry Bill (PIB) in the first quarter of 2021 – after nearly two decades of attempted reform of the country’s petroleum sector – Nigeria has a unique opportunity to rethink the role of the oil and gas industry in Nigeria’s economy and build out the country’s energy sector and economic capacity for the long term. CCSI’s report Equipping the Nigerian National Petroleum Corporation (NNPC) for the Low-Carbon Transition, released before the PIB was publicized, advances suggestions on how to do so. The PIB takes notable steps toward much-needed reform of NNPC’s …

Free, Prior And Informed Consent: Addressing Political Realities To Improve Impact, Tehtena Mebratu-Tsegaye, Leila Kazemi

Columbia Center on Sustainable Investment Staff Publications

Indigenous and Tribal peoples’ right to free, prior and informed consent (FPIC) has transformative potential. Yet, there is a considerable gap between the theory and what happens in practice. Global actors supporting recognition of FPIC and effective prior consultation processes usually focus on normative standards and best practices. They concentrate much less on addressing the political challenges and opportunities that shape how these processes unfold.

With funding from the Ford Foundation, we looked at the politics of FPIC in Latin America, analyzing how the power and interests of the key players–across governments, companies and indigenous peoples–can determine the fate of …

Equipping The Nigerian National Petroleum Corporation For The Low-Carbon Transition: How Are Other National Oil Companies Adapting?, Perrine Toledano, Martin Dietrich Brauch, Tehtena Mebratu-Tsegaye, Francisco Javier Pardinas Favela

Columbia Center on Sustainable Investment Staff Publications

The Nigerian National Petroleum Corporation’s (NNPC) persistent governance challenges have both hampered Nigeria’s oil sector development and deprived the country of public resources. The oil, climate, and COVID-19 crises and the ramp-up of the low-carbon transition exacerbate this reality, with the national oil company (NOC) delivering sub-optimal returns to its stakeholders.

Other NOCs have taken meaningful steps to become players in the low-carbon energy transition domestically or in­ternationally – for example, Sau­di Arabia’s Saudi Aramco, Norway’s Equinor, Brazil’s Petrobras, Malaysia’s Petronas, and Algeria’s Sonatrach. These NOCs can serve as sources of inspiration for NNPC. These five NOCs have also undergone …

Getting The Most Out Of Extractive Industries Transparency: How A More Explicit Treatment Of Political Considerations Could Strengthen The Impact Of Transparency Efforts, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

Work on transparency in the extractive industries (EI) has achieved important successes over the last two decades. For example, significant commitments to disclosure have been secured, the volume of publicly available information about critical activities has increased considerably, and norms around certain information being in the public domain have been established. There is also a growing library of use cases for this information. Nonetheless, important work remains to be done to translate these efforts into impact.

Political context is crucial to determining the fate of transparency efforts. Therefore, grappling with political context more effectively will also be key to unlocking …

Cities And Citizens Seethe: A Case Study Of Local Efforts To Influence Natural Gas Pipeline Routing Decisions, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This Article explores the reasons local governments find difficulty influencing pipeline-routing decisions. For example, federal law controls interstate natural gas pipeline permitting, which is complicated and inaccessible. State law, particularly in Ohio, heavily favors utilities, in part by preempting local efforts to make local decisions regarding oil and gas development. Finally, the information gaps are enormous between what local governments need to influence pipeline-routing decisions and what is accessible.

This Article addresses barriers to local influence by discussing the efforts of citizens and local governments to influence the routing of NexusSpectra's natural gas transmission pipeline, which was recently constructed and …

Subsurface Tension: The Conflicting Laws Of Texas And New Mexico Over Shared Groundwater And New Mexico’S Desire For Regulation, Kameron B. Smith

Texas A&M Law Review

A recent oil boom in Southern New Mexico has resulted in increased hydraulic fracturing operations in the region and, as a result, a steady and reliable supply of water to fuel such operations is required. As New Mexico regulations make it difficult to acquire a steady supply of water within the state, oil and natural gas producers are turning to unregulated areas in Texas, which permit unlimited pumping of groundwater. However, this groundwater is being pumped from the Pecos Valley aquifer, which is the same source of water that New Mexico is regulating within its borders. This issue is only …

Rebuilding The Texas Railroad Commission, James W. Coleman

Faculty Journal Articles and Book Chapters

This article explains how the Railroad Commission of Texas became the world’s most prominent oil and gas regulator and how it can become the world’s role model again. It explains how the Railroad Commission built the world’s modern oil and gas industry by stopping oil and gas waste and ensuring stable prices. And it describes the crisis now facing the industry—overproduction of oil and gas is wasting resources that will be worth more in the future. The United States is emerging from the biggest oil and gas boom that the world has ever seen and its production now dwarfs that …

The Law Of Coal, Oil And Gas In West Virginia And Virginia, C. E. Goodwin

West Virginia Law Review

No abstract provided.

A Crude Bargain: Great Powers, Oil States, And Petro-Alignment, Inwook Kim

Research Collection School of Social Sciences

Petro-alignment, a quid pro quo arrangement whereby great powers offer security in exchange for oil states’ friendly oil policies, is a widely used and yet undertheorized energy security strategy. One consequential aspect of this exchange is that great powers choose different levels of security commitment to keep oil producers friendly. With what criteria do great powers rank oil states? How do we conceptualize different types of petro-alignments? What exactly do great powers and oil producers exchange under each petro-alignment type? I posit that a mix of market power and geostrategic location determines the strategic value and vulnerability of individual client …

A Georgist Perspective Of Petroleum Taxation, Joseph Leeson

Indiana Journal of Global Legal Studies

Over a century ago, the town of Arden, Delaware, was founded on a unique single-tax-community system that radically altered the popular concept of land ownership. This system was premised on concepts developed by a man few know today but who was a major figure in economics during the 1800s, Henry George. George's public finance theory has been described as having received "intermittent attention over the years, with many eminent names in economics making at least a passing comment, but it has seen comparably little action in the policy debate arena and has been largely ignored by the modern era of …

Maralex Resources, Inc. V. Barnhardt, Bradley E. Tinker

Public Land & Resources Law Review

In Maralex Resources v. Barnhardt, Maralex and property owners brought an action to protect private property from BLM inspections of oil and gas lease sites. The Tenth Circuit looked at the plain meaning of a congressional statute and held in favor of Maralex, finding that BLM lacked authority to require a private landowner to provide BLM with a key to inspect wells of their property. The Tenth Circuit held BLM has the authority to conduct inspections without prior notice on private property lease sites; however, it is required to contact the property owner for permission before entering the property.

Solenex Llc V. Jewell, F. Aaron Rains

Public Land & Resources Law Review

In Solenex LLC v. Jewell, the Secretary of the Interior cancelled a highly contentious oil and gas lease in Montana’s Badger-Two Medicine area, an environmentally sensitive and culturally significant area to the Blackfeet Tribe, nearly thirty years after the lease had been issued. Solenex, a Louisiana based oil and gas company and holder of the lease, brought this action to enjoin the cancellation. The District Court for the District of Columbia agreed with Solenex and found that the Secretary’s decision took an unreasonable amount of time and violated good-faith contractual obligations. On these grounds, the court found the Secretary’s …

Fracking The Public Trust, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

Climate change presents an ever more urgent threat, and earlier in 2019, atmospheric carbon dioxide levels reached an all time high for recorded history. Current federal and state policies promoting fossil fuel extraction mean that future governments will have to look very seriously at leaving fossil fuels in the ground, if our society wants to have any hope of avoiding catastrophic climate change.

One of the biggest obstacles to leaving fossil fuels in the ground is the threat of massive takings liability for any government that dares to slow or prevent the extraction of fossil fuels. This has been particularly …

Reclaiming The Navajo Range: Resolving The Conflict Between Grazing Rights And Development, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

Grazing is fundamental to Navajo identity, yet management of the Navajo range remains highly problematic. This Essay connects the federal government's devastating livestock reduction effort of the 1930s with the inability of the Navajo Nation to place meaningful limits on grazing and the power of grazing permittees. It argues that the Navajo Nation should consider reasserting the tribe's traditional understanding that property rights depend on use as a way to create space for reservation development.

Get Out From Under My Land! Hydraulic Fracturing, Forced Pooling Or Unitization, And The Role Of The Dissenting Landowner, Heidi Gorovitz Robertson

Law Faculty Articles and Essays

This article addresses the legal circumstances arising when a state agency authorizes oil and gas production operations beneath a landowner’s land against that landowner’s wishes. One might assume that, if a landowner wants to preserve his or her land from oil and gas development, the landowner could simply refuse to allow drilling to occur beneath the land. However, neighbors may want to develop the oil and gas resources beneath their own land. To satisfy the neighbors’ wishes, an oil and gas producer must assemble mineral production rights on or beneath enough contiguous land to satisfy state spacing and acreage requirements …

"I See Genocide" - The Struggles Of The Ponca Nation To Reclaim Their City From Polluters, Douglas Fournet

History Theses

This thesis examines two court cases undertaken by the Ponca Tribe of Oklahoma and residents of Ponca City and the surrounding areas against two polluting corporations on their land: Conoco and Continental Carbon. By analyzing the history of history of the Ponca alongside the history of Native American relations to the petroleum industry and the history of EPA enforcement problems, the paper sets out to demonstrate that the unique position of Native American tribes in the United States allows them to employ what Klyza and Sousa term "alternative pathways" in fighting environmental injustice.

The Oil & Gas Industry: Failing To Properly Regulate Hydraulic Fracturing & Placing Profits Over Safety, Ellery Gordon

The Journal of Business, Entrepreneurship & the Law

This Note will evaluate the regulations and environmental implications surrounding hydraulic fracturing, or “fracking,” on state, federal, and Indian lands, focusing on the recent and still undecided case of Wyoming v. United States Dep’t of the Interior. Additionally, it will address the regulatory gap in federal regulations governing hydraulic fracturing, the current issues the industry faces, and advocate for a more stringent set of regulations that ought to be applied on a uniform basis throughout the United States. In the aforementioned case, Wyoming, Colorado, North Dakota, Utah, and the Ute Indian Tribe brought suit against the Bureau of Land Management …

Il Contributo Delle Compagnie Oil & Gas Nel Raggiungimento Degli Obiettivi Energetici E Climatici (How Oil And Gas Companies Can Help Meet The Global Goals On Energy And Climate Change), Lisa E. Sachs, Nicolas Maennling, Perrine Toledano

Columbia Center on Sustainable Investment Staff Publications

Nel settembre 2015, i governi di tutto il mondo hanno adottato17 Obiettivi di Sviluppo Sostenibile (Sustainable Development Goals – SDG) e, pochi mesi dopo – a dicembre – hanno firmatol’Accordo di Parigi. Queste azioni sono la riprova delrafforzamento del consenso globalecirca la necessità di frenare il cambiamento climatico indotto dalle attività antropiche e dipromuovere uno sviluppo sostenibilesu scala mondiale. I due concetti sono infatti strettamente legati: l’urgenza di affrontare il cambiamento climatico va inquadrata nella cornice degli sforzi globali tesi a ridurre la povertà, promuovere la crescita economica, rispettare i diritti umani e di inclusione sociale.

On September 2015, governments …

Wyoming V. Zinke, Jaclyn Van Natta

Public Land & Resources Law Review

In Wyoming v. Zinke, the Bureau of Land Management attempted to update a regulation governing hydraulic fracturing from the 1980s, but oil and gas industry companies opposed, and brought suit. The district court held in favor of the industry petitioners, and the Bureau of Land Management and citizen group intervenors appealed. In the wake of appeal, Donald J. Trump became President of the United States. The administration change caused the Bureau of Land Management to alter its position and align with the new administration. Secretary of the Interior, Ryan Zinke, via executive order, began rescinding the new fracking regulation, …

A Fracking Mess: Just Compensation For Regulatory Takings Of Oil And Gas Property Rights, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

As the Trump administration tries to roll back federal regulations on the oil and gas industry, constituents depend on state and local governments for protection from the worst impacts of industrial-scale fracking. Yet as the debate about proper regulation of the oil and gas industry continues, the specter of potential takings liability looms over the public discourse. Such liability is premised on the idea that government regulation of fracking might constitute a taking of private property that requires payment of just compensation — that is, the amount of money that should be paid to owners if indeed there is a …

Wrongful Benefit & Arctic Drilling, Nicolas Cornell, Sarah E. Light

Articles

The law contains a diverse range of doctrines — “slayer rules” that prevent murderers from inheriting, restrictions on trade in “conflict diamonds,” the Fourth Amendment’s exclusion of evidence obtained through unconstitutional search, and many more — that seem to instantiate a general principle that it can be wrong to profit from past harms or misconduct. This Article explores the contours of this general normative principle, which we call the wrongful benefit principle. As we illustrate, the wrongful benefit principle places constraints both on whether anyone should be permitted to exploit ethically tainted goods, and who may be permitted to profit …

Earthquakes In The Oilpatch: The Regulatory And Legal Issues Arising Out Of Oil And Gas Operation Induced Seismicity, Monika U. Ehrman

Georgia State University Law Review

This article reviews the scientific theories and studies regarding induced seismicity, in addition to examining the current regulatory framework and litigation arising out of these seismic events. Lastly, it provides strategies to aid stakeholders and identifies challenges likely to arise in the future.

Part I of this Article provides a review of the geoscience theories regarding natural and induced seismicity. Part II reviews the current scientific literature regarding a possible relationship between certain oil and gas operations and induced seismicity. Part III reviews the existing regulatory structure addressing seismicity in affected states, including possible applicable environmental legislation. Part IV discusses …

Back To Its Roots: How §1983 Must Return To Its Origins To Provide A Remedy For The Inupiat Against Oil Drilling In Alaska's Arctic Circle, Julia Prochazka

Northwestern Journal of Law & Social Policy

As demand for oil and gas grows, companies are looking to the Chukchi Sea in Alaska as a potential source of oil and wealth. However, the land along the Chukchi Sea is also home to the Native Alaskan community of the Inupiat. Drilling comes in direct conflict with the way of the life of the Inupiat. Considering this conflict, this Comment explores the difficulty of a §1983 claim for the Inupiat. The failure of §1983 to provide a remedy for the Inupiat provides a frame through which to view how §1983 has deviated from its plain language and original purpose.

The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney

St. Mary's Law Journal

This Article discusses the implications of Heritage Resources, Hyder, and several Louisiana cases on the “post-production costs” issue in gas royalty clauses, as well as the fate of implied covenants in the shale era. To better understand that issue, this Article first provides a background on the interaction of express lease clauses and the doctrine of implied covenants. This discussion reveals that implied covenants are relegated to a minor role in light of extensive express clauses in Shale Era leases because courts frequently view express or “plain” terms as barring implied covenants. The problem, however, as commentators have noted—particularly regarding …

Earthquakes In The Oilpatch: The Regulatory And Legal Issues Arising Out Of Oil And Gas Operation Induced Seismicity, Monika Ehrman

Monika U. Ehrman

Different Names For Bullying, Marco Poggio

Capstones

“There's all different forms of bullying,” says Steven Gray, a Lakota rancher and former law enforcement officer living in South Dakota. In this look into Gray’s life, we learn about two instances of bullying: the psychological and physical harassment that pushed his son, Tanner Thomas Gray, to commit suicide at age 12; And the controversial construction of an oil pipeline in an ancient tribal land that belongs to the Lakota people by rights of a treaty signed in 1851, which Gray sees as an institutional abuse infringing on the sovereignty of his people. Gray is involved in the movement that …

Outcome Report Of Workshop On International Investment And The Rights Of Indigenous Peoples, Kaitlin Y. Cordes, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

On May 12, 2016, the United Nations (UN) Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, and the Columbia Center on Sustainable Investment hosted a one-day workshop on international investment and the rights of indigenous peoples. This outcome document synthesizes the discussions that took place during the May 12 workshop.

The workshop was part of a series of consultations undertaken to support the Special Rapporteur's Second Thematic Analysis on the Impact of International Investment Agreements on the Rights of Indigenous Peoples. Held at the Ford Foundation in New York, the workshop brought together 53 academics, practitioners, indigenous …

Agenda: Winter, Wilderness & Climate: Threats & Solutions, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, The Wilderness Society, Protect Our Winters

Winter, Wilderness, and Climate--Threats and Solutions (October 12)

In partnership with the Getches-Wilkinson Center, join The Wilderness Society and Protect Our Winters for an interactive presentation about energy development and climate impacts on public lands.

This event was held on Wednesday, October 12, 2016, 5:30 - 7:30 p.m., in the University of Colorado Law School, Wolf Law Building, Wittemyer Courtroom.