Law Commons^™

Ad Coelum And The Design Of Property Rights, Joseph A. Schremmer

Faculty Scholarship

This Article seizes on a specific doctrinal discussion in Eric Claeys’s Natural Property Rights to argue for the importance of understanding property doctrines in the context of a system of interconnecting rules and standards and not in isolation. The ad coelum doctrine provides that land ownership entails ownership of the suprajacent airspace as well as the underlying subsurface. As Claeys’s discussion highlights, scholars disagree about the significance of ad coelum both conceptually, as to what function the rule serves in defining and allocating property, and normatively. It is only by viewing ad coelum in the context of how it interacts …

Climate Choice Architecture, Felix Mormann

Faculty Scholarship

Personal choices drive global warming nearly as much as institutional decisions. Yet, policymakers overwhelmingly target large-scale industrial facilities for reductions in carbon emissions, with individual and household emissions a mere afterthought. Recent advances in behavioral economics, cognitive psychology, and related fields have produced a veritable behavior change revolution. Subtle changes to the choice environment, or nudges, have improved stake-holder decision-making in a wide range of contexts, from healthier food choices to better retirement planning. But the vast potential of choice architecture remains largely untapped for purposes of climate policy and action. This Article explores that untapped potential and makes the …

A Unifying Doctrine Of Subsurface Property Rights, Joseph A. Schremmer

Faculty Scholarship

This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …

The Case For Corporate Climate Ratings: Nudging Financial Markets, Felix Mormann, Milica Mormann

Faculty Scholarship

Capital markets are cast as both villain and hero in the climate playbill. The trillions of dollars required to combat climate change leave ample room for heroics from the financial sector. For the time being, however, capital continues to flow readily toward fossil fuels and other carbon-intensive industries. Drawing on the results of an empirical study, this Article posits that ratings of corporate climate risk and governance can help overcome pervasive information asymmetries and nudge investors toward more climate-conscious investment choices with welfare-enhancing effects.

In the absence of a meaningful price on carbon, three private ordering initiatives are trying to …

When Engineering Solutions Cause Legal Problems: The Developing Field Of Reservoir Rights And Liabilities, Joseph A. Schremmer

Faculty Scholarship

For well over a decade, the pages of this Quarterly have undoubtedly been filled with discussions of cutting-edge drilling and completion technologies. This article discusses some of the problems that all these engineering solutions have caused for the law of oil and gas. It begins in Part II with a brief outline of how the law slowly develops through the common law process and illustrates how that process responds, also slowly, to rapid technological and social changes, like the unconventional hydrocarbon revolution. Part III then surveys how courts have begun to reform the legal rights and remedies in common reservoirs …

Brief For The National Stripper Well Association As Amicus Curiae, L. Ruth Fawcett Tr. V. Oil Producers, Inc. Of Kansas, Joseph A. Schremmer, Charles C. Steincamp

Faculty Scholarship

In its briefings, the Class in this appeal, in spite of the evidence, evokes the myth of a great conspiracy between operators and marketers, and it advances a theory that threatens impermissible economic and underground waste of natural gas resources. The language of the parties' oil and gas leases, on the other hand, sets up bargained-for arrangement that enables the parties to share in the benefits of stripper gas production and promotes conservation of the state's natural gas reserves.

When Drills And Pipelines Cross Indigenous Lands In The Americas, Guillermo J. Garcia Sanchez

Faculty Scholarship

From the Missouri River, passing through the Sonora Desert, all the way down to the Amazon Forest and the Andean Mountains, drills and pipelines are crossing over indigenous lands. In an energy-thirsty continent, there is no land left to spare, not even tribal land. Many of these energy infrastructure projects involve international investments that are protected by treaties and enforced by arbitral tribunals. At the same time, tribal communities have an internationally recognized right to receive prior and informed consultation before they are affected by projects of this nature. The Article focuses on the clash of rights between energy extraction …

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

Crystal Gazing: Foretelling The Next Decade In Oil And Gas Law, Joseph A. Schremmer

Faculty Scholarship

This chapter attempts to predict the major issues oil and gas law will encounter in the 2020s. Yet even before the first draft could be completed, the industry landscape changed unexpectedly. As this chapter goes to press, the global and domestic economies are just starting to emerge from a sharp downturn brought on by the outbreak of COVID-19. Oil and natural gas prices collapsed to levels not seen in decades. Against this unforeseen backdrop, the legal changes facing oil and gas development in the United States look somewhat different. But one element of our new reality is consistent with this …

The Footprint Of The Chinese Petro-Dragon: The Future Of Investment Law In Transboundary Resources, Guillermo J. Garcia Sanchez

Faculty Scholarship

Chinese offshore investments in the oil and gas sector around the world are on the rise. Like dragons roaming the seas trying to dominate the tides, Chinese state-owned companies are particularly eager to bid for oil fields in maritime borderlines. The article tells the story of how Chinese state-owned companies are over paying for oil on the US-Mexico boundary to gather experience on how China’s global competitors handle resource development conflicts. My argument is that Chinese participation in transboundary field development fits within a long-term strategy to master international legal regimes. The presence of these petro-dragons in borderlines is an …

Getting Past Possession: Subsurface Property Disputes As Nuisances, Joseph A. Schremmer

Faculty Scholarship

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracing). Property rights will need to continue adapting if they are to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of trespass …

Book Review: Jonathan P. Thompson, River Of Lost Souls: The Science, Politics, And Green Behind The Gold King Mine Disaster (2018), Clifford J. Villa

Faculty Scholarship

On August 5, 2015, contractors for the U.S. Environmental Protection Agency (EPA) investigating the Gold King Mine in southwestern Colorado accidently released some three million gallons of contaminated water into the Animas River, triggering weeks of front-page headlines, months of congressional hearings, and now years of litigation. River of Lost Souls: The Science, Politics, and Greed Behind the Gold King Mine Disaster, a new book by Jonathan P. Thompson, suggests by its title a human folly behind this “disaster” much broader and deeper than one tragic accident wrought by EPA contractors. On this thesis, Thompson certainly delivers. However, what …

The Fine Print Of The Mexican Energy Reform, Guillermo J. Garcia Sanchez

Faculty Scholarship

Five years ago, when Mexico transformed its energy sector, most commentators were worried about the government’s capacity to implement the reform. What would the upstream contracts look like? Would the auctions be transparent? How would international companies react? After two successful auction rounds, 107 signed contracts, and the creation of viable regulatory agencies to manage and monitor the reform agenda, the questions have changed. Today, Mexico’s capacity to implement energy reforms and attract foreign investment is no longer in doubt. Today, the most pressing questions about the reform concern its long-term sustainability. Can it survive the Mexican electoral cycles? Will …

The Curious Policy Implications Of In Re Semcrude: Do Crude Oil Markets Need A Volcker Rule?, Joseph A. Schremmer

Faculty Scholarship

In the summer of 2008 the nation's largest and fastest growing midstream crude oil purchaser, SemCrude, declared bankruptcy. SemCrude's demise was not the result of a bear market but of its taste for risky options trading. The bankruptcy pitted the competing liens of thousands of unpaid oil and gas producers and royalty owners who sold their crude oil to SemCrude at the wellhead against those of SemCrude's lenders and the claims of downstream purchasers. The Bankruptcy Court for the Federal District of Delaware found none of the producers' lien rights to be perfected under applicable law and awarded priority to …

Property Provisions Of The Joint Operating Agreement: An Update For The New 2015 Form Joa, Alex Ritchie, Gary B. Conine

Faculty Scholarship

The joint operating agreement (JOA) in the oil and gas industry helps coordinate joint operation efforts that facilitate exploration and unitization of tracts, and conservation of a depleting resource. Professor Conine’s 1988 article expanded, limited, and defined the property interests of the parties both inside and outside the contract area. This article is an update to those prior works with greater emphasis on the 1989 Form JOA, cases and developments since its publication, and the implications of the revisions to the JOA in the new 2015 Form JOA published by the American Association of Professional Landmen (AAPL).

The purposes of …

Brief For The Kansas Independent Oil & Gas Association As Amicus Curiae, Joseph A. Schremmer

Faculty Scholarship

Is the letter of the rule against perpetuities (the Rule) more important than its public policy? The Appellants in this case recklessly petition the Court to apply the Rule to a commonly used form of mineral reservation for the first time in the reservation’s nearly 100 years of use. They contend the Rule should apply even though it would cloud or nullify the property interests of countless unrepresented parties, spur a spate of litigation, remove a useful form of mineral ownership from commerce, and disrupt oil and gas development across Kansas—all in contravention of the Rule’s policy of making land …

New Mexico’S Renewable Portfolio Standard: Analysis Of Existing Policy Design Elements And Compliance Obligations Beyond 2020, Gabriel Pacyniak

Faculty Scholarship

This white paper analyzes two elements of New Mexico’s current Renewable Portfolio Standard (RPS) in advance of the state legislature’s consideration of an RPS expansion in the 2019 legislative session. First, the paper surveys key policy design elements of the current RPS, compares those elements to other state RPSs, and identifies “policy considerations” that may inform legislative or regulatory action. Among the findings from this part of the analysis are that: 1) other states have set much higher RPS targets; 2) that New Mexico’s RPS has uniquely restrictive cost-containment measures that limit cost impacts but also prohibit the full RPS …

Imputing Regulatory Failures In Oil And Gas Licensing: A Discussion And Proposal, Joseph A. Schremmer, Charles C. Steincamp

Faculty Scholarship

This Article argues that the Commission's legitimate interest in enforcing its oil and gas regulations, especially including well-plugging regulations, does not justify absolute imputation of regulatory liability to third-party operators under Kan. Stat. Ann. § 55-155(c)(4). But, under certain circumstances, the state's interest may justify imputing personal liability on the individual constituents of a license applicant where the individual is culpable for the underlying regulatory violation or the applicant has a business connection with the operator primarily responsible for the violation, and the competing public policies of groundwater protection and limited liability justify the imputation. This Article proposes a procedural …

Making The Most Of Cooperative Federalism: What The Clean Power Plan Has Already Achieved, Gabriel Pacyniak

Faculty Scholarship

The fate of the EPA's Clean Power Plan-the signature Obama Administration action to reduce greenhouse gas ("GHG") emissions from existing power plants under the Clean Air Act-is uncertain at best given pending litigation and the opposition of President Donald Trump. Despite this uncertainty, the development of the Clean Power Plan provides an important case study of how rulemaking under a cooperative federalism statutory structure can prompt broad, beneficial policy engagement by states and stakeholders, even in a contentious regulatory action. In the development of the Clean Power Plan, active state and stakeholder engagement and an iterative process of "trying on" …

Reducing Transportation Emissions In The Northeast And Mid-Atlantic: Fuel System Considerations, Gabriel Pacyniak, Drew Veysey, James Bradbury

Faculty Scholarship

In support of states interested in learning more about market-based policy options, the Georgetown Climate Center developed Reducing Transportation Emissions in the Northeast and Mid-Atlantic: Fuel System Considerations to explore technical aspects of a possible regional cap-and-invest policy, as an illustrative example of a market-based approach to a multi-state transportation policy. The paper focuses on two subjects: which fuels might be covered under a policy, and which entities in the transportation fuel supply chain might be responsible for reducing emissions.

The recommendations made in this paper are intended to support robust market-based policies that provide flexibility and enable innovation while …

An Examination Of Policy Options For Achieving Greenhouse Gas Emissions Reductions In New Jersey, Gabriel Pacyniak

Faculty Scholarship

An Examination of Policy Options for Achieving Greenhouse Gas Emissions Reductions in New Jersey surveys emissions and energy trends, describes a “deep decarbonization pathway” for the state, and identifies the types of policies that would be necessary to achieve those reductions. Many of the policies address the power and transportation sectors, which account for more than 60 percent of total greenhouse gas emissions from New Jersey. The report also includes options for improving building efficiency, reducing methane leaks from natural gas infrastructure, restoring natural carbon sinks in forests and wetlands, and incorporating equity considerations to address the needs of frontline …

Oil And Gas Secured Transactions In Kansas, Joseph A. Schremmer

Faculty Scholarship

Successfully handling oil and gas secured transactions in Kansas requires understanding two bodies of law: Article 9 of the Kansas Commercial Code (Article 9 or UCC) and Kansas real property law. This article surveys the creation, perfection, priority, and enforcement of consensual liens in oil and gas property under both sets of rules.

A Reexamination And Reformulation Of The Habendum Clause Paying Quantities Standard Under Oil And Gas Leases, Alex Ritchie

Faculty Scholarship

The Koontz standard as originally stated by the Texas Supreme Court has lost its way. It has evolved into a two-prong test that wrongly focuses on past performance based on arbitrary and uncertain accounting calculations rather than future projections. As occurred in the 1980s, a price downturn provides motivation to reexamine provisions such as the two prong paying quantities standard in the habendum clause of the oil and gas lease. This article examines the habendum clause and the evolution of the paying quantities standard which will determine whether a lease continues in effect or terminates automatically. This article also seeks …

New Strategies For Reducing Transportation Emissions And Preparing For Climate Impacts, Gabriel Pacyniak, Kathryn Zyla, Vicki Arroyo

Faculty Scholarship

The transportation sector is becoming the largest source of greenhouse gas ("GHG") emissions in the United States. The Obama Administration put in place federal vehicle and fuel standards that are significantly reducing emissions. However, these regulations will be insufficient to put the United States on track to achieve needed reductions needed long-term. This is especially true if the 2025 standards announced by the Obama Administration are rolled back by the new Trump Administration. Because current federal standards alone will not attain ambitious climate goals and may be rolled back, state and local activity is essential to make progress towards meeting …

State Innovation On Climate Change: Reducing Emissions From Key Sectors While Preparing For A New Normal, Gabriel Pacyniak

Faculty Scholarship

Climate change is a global phenomenon that is causing sea levels to rise, floods and droughts to become more severe, and countless other impacts. States are implementing many innovative initiatives that are helpful models for other state and federal action—catalyzing changes well beyond their borders. State and local governments possess important legal authorities in areas such as utilities regulation, infrastructure investment, and land use—governing important policies, programs and investments that have long-term consequences in the fight against climate change. More recently, states have begun to undertake efforts to prepare for the consequences of climate change—developing “adaptation plans” aimed at increasing …

Framework Of Surface And Ground Water In Oklahoma And Texas: Perspectives For Oil And Gas Development, Jessica Foster, Gabriel Eckstein

Faculty Scholarship

Chapter Extract:

Advancements in drilling techniques have broadened possibilities for producing hydrocarbons; but the innovations of unconventional drilling have exacerbated existing threats that the oil and gas industry have posed to water resources while creating new challenges. In today's industry, conventional methods of drilling for free-flowing crude oil are playing a secondary role to unconventional oil and gas production capable of bringing hydrocarbons trapped in tight or previously inaccessible geologic formations. Compared to conventional production, unconventional methods use much greater amounts of water in chemical-laden processes that can impact the availability and purity of freshwater resources in concentrated localities where …

The Hydrocarbon Industry’S Challenge To International Investment Law: A Critical Approach, Guillermo J. Garcia Sanchez

Faculty Scholarship

The research presented here challenges the contemporary view that the international investment regime has a “chilling effect” on host government policies. That critique errs in assuming that the effects of the modern bilateral investment treaties on decision-making within host governments have been uniform across states and economic sectors The main argument presented here is that in developing countries that depend on the oil and gas sectors, the international investment regime rarely deters host government rent-seeking behavior that can harm foreign investors.

In petro-dependent developing nations that have weak institutional capacity the survival of the government becomes tied to its ability …

Fracking In Louisiana: The Missing Process/Land Use Distinction In State Preemption And Opportunities For Local Participation, Alex Ritchie

Faculty Scholarship

Oil and gas development is testing and defining the boundaries of local government authority and autonomy as concerned municipal entities and citizens seek to limit oil and gas operations. Advances in high-volume hydraulic fracturing have increased domestic oil and gas production to historic levels.) At the same time, national and international concerns about irreversible man-made global warming have focused on fossil fuel combustion. National groups opposed to continued reliance on oil and gas as an energy source have found willing partners in many local governments and their citizens, who are anxious about the local implications of drilling and fracking. Many …

Reducing Greenhouse Gas Emissions From Transportation: Opportunities In The Northeast And Mid-Atlantic, Gabriel Pacyniak

Faculty Scholarship

The report finds that clean transportation policies could cut greenhouse gas emissions between 29 to 40 percent in the TCI region by 2030. A comprehensive implementation of state policies could result in net cost savings of up to $72.5 billion over 15 years for businesses and consumers, along with tens of thousands of new jobs and improvements in public health.

The 2012 Agreement On The Exploitation Of Transboundary Hydrocarbon Resources In The Gulf Of Mexico Confirmation Of The Rule Or Emergence Of A New Practice?, Guillermo J. Garcia Sanchez, Richard J. Mclaughlin

Faculty Scholarship

This Article explores the international law applicable to the exploitation of hydrocarbon resources that straddle the boundaries between States (transboundary fields) and its applicability to the U.S. and Mexico maritime boundary in the Gulf of Mexico. After a detailed examination of the different sources of international law including treaties, customary norms, judicial decisions, and bilateral practice, the Article concludes that the United States and Mexico have deviated in some regards from the standard international legal practices that other States have adopted to exploit transboundary hydrocarbon resources. The two most notable deviations are in allowing either nation to unilaterally exploit the …