Oil, Gas, and Mineral Law Commons^™

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

The Winds Of Change: How China's Focus On Rare Earth Minerals Reshapes The World, Ian Murphy, Kevin Johnston

Political Science & Geography Faculty Publications

This article examines how rare earth minerals and the People's Republic of China's (PRC) strategic dominance in the global economy affect U.S. national security. The PRC's near monopoly on rare earth processing and its use of export controls as leverage pose significant risks to global supply chains and U.S. national security interests. This analysis explores contemporary PRC strategies in the rare earth sector and their implications for U.S. national security by explaining how the PRC's view of international cooperation differs from the United States' view. In essence, the PRC is using the transition to renewable energy to pursue its broader …

Impacts Of Recent Us Supreme Court Administrative Law Jurisprudence On The Electricity Wholesale Markets, Joel B. Eisen

Law Faculty Publications

Recent decisions by the US Supreme Court have prompted a shift toward limiting the authority of US federal administrative agencies, including the Federal Energy Regulatory Commission (FERC), the agency that oversees the nation’s wholesale electricity markets. This Article explores the impact of several of the Court’s major decisions on rules and administrative orders by FERC that govern the wholesale markets. These include decisions empowering judges to overturn agency regulations, enabling challengers to agency enforcement to force agencies to pursue cases in federal courts, and allowing lawsuits to challenge agency rules long after their issuance. These decisions promise to have significant …

Subsurface Trespass In The Restatement (Fourth) Of Property: An Appraisal And Alternative Account, Joseph A. Schremmer

Faculty Articles

Building on the scholarly work of leading property theorists Henry Smith and Thomas Merrill, the recently approved Fourth Tentative Draft of the Restatement (Fourth) of Property prescribes treating all entries below ground as ordinary trespasses. That includes entries in the shallow subsurface by building foundations and utility lines, as well as invasions in the deep subsurface by mining shafts, oil and gas wells, and substances injected for disposal and storage. The Restatement comes at an important time in the development of subsurface trespass law, as developers, courts, and policymakers grapple with the growing use of subsurface technologies for horizontal drilling, …

The Meaning Of "Other Minerals" And Other Incidents Of Mineral Ownership, Monika U. Ehrman, Colton Franks

Faculty Journal Articles and Book Chapters

Of all the contracts used in the oil and gas industry, none is as important as the oil and gas lease. It is the foundational instrument in oil and gas and a required prerequisite to development for those who do not own the mineral estate. Its uniqueness arises in that, unlike most other oil and gas contracts, it is both a contract and a conveyance of property. Part I of this article begins with an overview of the mineral estate, the predecessor to an oil and gas lease. Part II examines theories of oil and gas rights ownership and oil …

Gravitational Property Theory, Monika U. Ehrman

Faculty Journal Articles and Book Chapters

Isaac Newton and Albert Einstein defined and redefined the field of physics. Their theoretical work on gravity is still considered a monumental discovery of their respective times. Although born centuries apart, the theory of gravity each advanced is still essential. Newton’s theory is applied on Earth and even throughout much of the solar system, while Einstein’s theory is used in special environments, such as near black holes. Neither theory is discarded, but instead used where appropriate. Likewise, gravitational property theory proposes that simple property theory—the ad coelum doctrine—is still appropriate for simple property, like stationary or vertical objects. And complex …

A Legal Black Hole: Private Entities Mining Extraterrestrial Resources, Devin Lynn Doutaz

Oklahoma Law Review

No abstract provided.

Uncharitable Think Tanks, Faith Stevelman

FIU Law Review

As people debate whether the Heritage Foundation’s Project 2025 is good policy, what’s being overlooked is that it’s likely unlawful as the work product of a charitable think tank. (Think tanks nearly always are qualified as charities under the tax code.) To reinforce think tanks’ educational mission, tax law sets rigorous content requirements for their materials. It also bans them from campaigning, sharply limits their lobbying, and prohibits their benefiting private parties. The doctrines are intended to keep think tanks charity-worthy educators, but they have not succeeded.

Ironically, the failure reflects other features of tax law that incentivize using think …

Social Conflict And Indigenous Consent In Mining: A Primer On Csr, Esg And Social Disclosures To Investors, Shin Imai

All Papers

The transnational corporate structure of mining companies makes it challenging to conduct independent investigations of allegations of social or environmental harm. A parent company can hide behind a multitude of subsidiaries in a multitude of jurisdictions to avoid liability. This article explores one way to bypass these corporate structures through the disclosure requirements of securities legislation. When a parent company fails to disclose social conflict or lack of Indigenous consent at a project, investors may be harmed when the stock price falls. This article describes six empirical studies, supported by extensive macro studies, which show that when social conflict or …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …