McInnes Cooper via Mondaq | 15 June 2016

Canada: Assertion of Aboriginal Right Does Not Automatically Confer Eligibility To Appeal a Regulatory Approval in O’Chiese First Nation v. Alberta Energy Regulator

On 2 June 2016, the Supreme Court of Canada denied an Alberta First Nation’s request to appeal the Court of Appeal’s dismissal of its bid to challenge a regulatory approval.

The Alberta Court of Appeal had decided the First Nation could not appeal the regulatory approval because it did not prove that it was eligible to do so under the specific wording of the relevant legislation.

The decision brings the threshold question of eligibility to appeal into the forefront.  This might limit the extent to which a First Nation will use regulatory appeals to challenge a regulatory decision.

Norton Rose Fulbright via Mondaq | 15 June 2016

New Brunswick Extends Hydraulic Fracturing Moratorium Indefinitely

The Canadian province of New Brunswick’s energy minister has announced that the current moratorium on hydraulic fracturing will continue indefinitely.

The moratorium was put in place in December 2014 until five conditions have been met. The five conditions to allow hydraulic fracturing are

  • A social licence is in place
  • Clear and credible information is available about the impacts of hydraulic fracturing on public health, the environment, and water, allowing the government to develop a country-leading regulatory regime with sufficient enforcement capabilities
  • A plan is in place to mitigate the impacts on public infrastructure and to address issues such as waste water disposal
  • A process is in place to respect the duty of the provincial government to consult with First Nations
  • A mechanism is in place to ensure that benefits are maximized for New Brunswickers, including the development of a proper royalty structure

Offshore Energy Today | 15 June 2016

Congress Members Ask President To Halt Seismic Testing in Atlantic

Fifty-five members of the US Congress joined together in sending a letter to President Obama requesting a halt to the permitting process for potential seismic testing in the Atlantic Ocean.

Photo courtesy of International Association of Geophysical Contractors.

These 55 members include Rep. Mark Sanford, who also opposed seismic testing and offshore drilling in the waters off the coast of South Carolina in April last year, and Rep. Gerry Connolly, who expressed his concern in February last year after Virginia and neighboring states were included in the US Department of the Interior’s draft 5-year plan for offshore oil and gas development.

“If one is not going to do something, it doesn’t strike me as reasonable to prepare to do that something. Accordingly, it makes little sense to conduct seismic testing off the Atlantic coast, when the Atlantic Ocean has been excluded as a possible site for offshore drilling by the Department of Interior,” Rep. Sanford said.

In March 2016, the US Department of Interior backed away from the proposed sale of offshore exploration acreage on the Mid and South Atlantic area as part of the 2017–22 lease sale, citing local opposition and conflicts with competing commercial and military ocean uses.

Sanford added, “It should not move forward, if nothing else, because allowing seismic testing to proceed goes counter to the coastal communities I represent. They have spoken clearly that they do not want this blasting.”

 

Des Moines Register | 6 June 2016

Iowa State Archaeologist Says Pipeline Should Avoid Indian Burial Site

Iowa state archaeologist John Doershuk is recommending that a sacred Native American burial site be avoided by the planned Bakken oil pipeline, which raises questions about whether the pipeline will need to be relocated in northwest Iowa’s Lyon County.

Doershuk toured the site in the Big Sioux Wildlife Management Area on 3 June with state and federal officials and Sioux tribal leaders whose ancestors had ceded the area now known as Lyon County to the federal government in 1851. The site is near the Iowa/South Dakota border.

In a  follow-up report that Doershuk filed over the weekend, the state archaeologist of Iowa described the site as a place of significant cultural and historical importance to the Upper Sioux Community, Standing Rock Sioux tribe, and other Sioux people.

Borden Ladner Gervais via Mondaq | 26 May 2016

Column: Social License in Canada

On 20 April, Alan Ross, a partner in Borden Ladner Gervais’ Calgary office, was invited to offer his insight to the Senate of Canada’s Transport and Communications Committee on their ongoing study of the transport of crude oil in Canada. 

At its essence, social license is the demand on, and expectations for, business enterprise that emerges from neighborhoods, environmental groups, First Nations, communities, and other members of the surrounding civil society. It is not a literal licensing arrangement but a “metaphor to encapsulate values, activities, and ideals that companies must espouse within society to ensure successful operation.”

Social license issues have become part of any sophisticated corporate risk management strategy. In sectors with highly visible business activities, long-term horizons, high exposure to global markets, or a wide range of stakeholders keen to influence the business, the need for a social license to operate is even more important.

In the current climate for pipeline development, companies are generally viewed as responsible for obtaining social license. The role of government is sometimes obscured in that debate. However, governments, as both regulators and recipients of a share of resource rents, have an important role to play. Both federal and provincial governments’ role in the social license debate arises from their powers to exercise reasonable control over persons and property within their jurisdictions respecting security, environment, health, safety, and welfare, among other interests. The federal government can address social license by improving regulatory processes that exist to ensure public trust. Alternately, governments and regulators through legislation, public policy, or ensuring public trust in institutions, can facilitate social license and the public acceptance necessary for new energy projects.

Social license is largely untested as a regulatory concept, but can be considered a form of regulation by drawing from market forces and norms that encourage certain types of behavior. Because there are consequences for failing to comply with social license conditions, such as reputational damage, delay, or ultimately preclusion of a natural resource project, it is nonetheless a de facto form of regulation.

Indiana University | 19 May 2016

Study Suggests Support for Hydraulic Fracturing Grows When Development Fees Stay Local

As voters in several states consider controlling oil and gas development in their communities, new Indiana University (IU) research offers valuable insight for developers as well as local and state officials.

The IU researchers determined that oil and gas development using hydraulic fracturing is greeted with more local support when the fees paid by developers go to municipal governments rather than into county or state general funds.

“There are two reasons for this,” said researcher Naveed Paydar of IU’s School of Public and Environmental Affairs. “The public prefers to give more responsibility to local units of government because they are confident they’re the people who can best handle any problems resulting from development. And the public also has greater trust that the revenues will be spent by their municipal government in ways that benefit the local economy.”

The conclusions are based on an in-depth public opinion survey of residents in Pennsylvania counties where there is oil and gas development. The research, the first to assess the association between public revenues and local support, is described in “Fee Disbursements and the Local Acceptance of Unconventional Gas Development: Insights From Pennsylvania,” published by the journal Energy Research & Social Science.

TripleOKLaw | 10 May 2016

Local Communities and Natural Resources in Kenya—Managing Expectations

Elias Masika, Partner at TripleOKLaw and an authority on environmental and energy law, comments on the concerns recent discoveries of natural resources in Kenya raise. The discovery, development, and exploitation of key natural resources such as oil and coal pose significant challenges to achieving balanced benefit sharing.

Uganda Oil | 10 May 2016

Column: Uganda Energy Ministry Must Expedite Implementation of National Local Content Policy

By Dickens Kamugisha,
Executive Director of African Institute For Energy and Governance, Uganda

I would like to congratulate Ugandans for having successfully elected a president and their parliamentary representatives.

To the winners and losers, I say we embark on the task of building the Uganda we want. Among these tasks is holding government accountable for its actions or lack thereof.

Before we went to the polls, the ministry of energy and mineral development published a report, Progress of the implementation of the National Oil and Gas Policy for Uganda, that appeared both in newspapers and on their website.

I want to commend the ministry for this because publishing the report and other information pertaining to the oil and gas sector enables Ugandans to, one, keep updated on the sector and, two, check on government.

That said, I want Ugandans to join me to task the ministry of energy to account for its failure to implement recommendations made to it by the auditor general in a June 2015 report, Implementation of National Content in the Oil and Gas Sector by the Ministry of Energy and Mineral Development.

When the ministry published its aforementioned report, it showed that it was taking steps to ensure national content, also known as local content. Among the steps taken to realize this is putting in place a national content office at the ministry, setting up an association of oil and gas service providers in Uganda and formulating a national content policy and plan, which is expected to be approved in 2016.

The ministry also said that draft national content regulations for the upstream and midstream acts have been prepared. The ministry painted a promising picture reporting that the oil and gas sector employed “over 1,000 Ugandans during 2013–14, with each of the licensed companies having more than 50% of its staff as Ugandans” and that over “1,000 national enterprises (which have employed more than 9,000 Ugandans) have provided services such as logistics, civil works, environment consulting services, catering, and hotel accommodation,” among others to companies in the oil and gas sector.

Looking at the above steps, one feels that the ministry has taken positive steps, but has it done enough?

The Associated Press | 21 March 2016

US Cancels Oil and Gas Lease on Montana Land Sacred to Tribe

The Obama administration on 17 March canceled a disputed oil and gas lease just outside Glacier National Park, on land considered sacred to the Blackfoot tribes of the US and Canada.

The move came after US District Judge Richard Leon criticized the government over its decades-long delay in addressing the matter. He accused the government of trying to “run out the clock” on a lawsuit from Solenex, a Louisiana company that wants to drill for oil and gas on the 6,200-acre site.

Leon now will decide if the company’s arguments were valid and the lease should be reinstated.

Left unresolved was the fate of 17 remaining leases in northwest Montana’s Badger-Two Medicine area, site of the Blackfoot creation story. Blackfoot leaders say the leases were illegally issued in 1982.

Bloomberg | 17 March 2016

USD 4.2 Million Hydraulic Fracturing Verdict Likely To Spark More Suits

A recent jury verdict and USD 4.2 million award in favor of two Pennsylvania families who alleged hydraulic fracturing operations contaminated their well water is likely to trigger the filing of more suits, sources tell Bloomberg.

A jury on 10 March found Cabot Oil & Gas acted negligently in drilling hydraulic fracturing wells in Dimock, Pennsylvania, which created a private nuisance and significantly harmed the plaintiffs in their use and enjoyment of the property. A number of other families involved in the litigation settled before trial for a total amount less than what was awarded here.

It is one of the first hydraulic fracturing nuisance verdicts finding for plaintiffs but is not unprecedented.

A Texas jury awarded USD 2.9 million in 2014 to a family who alleged contamination from hydraulic fracturing operations caused them a variety of personal injuries, in Parr v. Aruba Petroleum in 2014.

In this case, however, no personal injury allegations were put before the jury.

Counsel for the plaintiffs, Leslie Lewis, a solo practitioner in New York, declined to speculate whether the case will have an impact on further litigation.

“I have no idea what the future will bring regarding other cases and future verdicts; this case was a particular fact pattern, with shoddy operations occurring early in the so-called ‘gas boom’ years,” Lewis said.

Holland & Knight via Mondaq | 24 February 2016

Interior’s Proposed Rule on Flaring Would Restrict Oil and Gas Development on Tribal Lands

The US Department of the Interior on 22 January proposed a rule developed by the Bureau of Land Management (BLM) that would limit the flaring, leaking, and venting of natural gas on public and tribal lands.

The Proposed Rule
The proposed rule would require oil and gas producers to inspect their equipment for leaks, replace equipment that unnecessarily releases large quantities of gas into the air, and adopt processes and technology that limit the rate of flaring. Metering and reporting would also be required when flared volumes reach 50 Mcf)/d. According to the BLM, if implemented, this rule would cost the oil and gas industry from USD 125 million to USD 161 million per year.

Impacts On Tribal Lands And Economic Development
Given the discoveries of Bakken and Marcellus shale gas resources on tribal lands, the rule would impose additional and unnecessary cost barriers to production, restricting oil and gas development on tribal lands. As some tribal governments and Native American-owned developers are new market entrants to this industry, the proposed rule may directly impact their ability to develop tribal natural resources.

The proposed rule states, “BLM requirements would not supersede equally effective or more stringent state and tribal requirements.” However, BLM’s proposed rule appears inconsistent with the federal government’s support of economic independence for tribal governments in other respects (e.g., leasing regulations under the HEARTH Act).

Bloomberg | 17 February 2016

Anadarko Reaches Out to Communities To Fend Off Drilling Bans

Windsor High School junior Kamille Hocking worried a dozen oil wells on her family’s 132-acre Colorado homestead might sicken them. Then, Rebecca Johnson, an Anadarko Petroleum engineer, used a blender in her chemistry class to show the interaction of swirling frack sand, city water, and friction reducer.

Anadarko Petroleum’s Rebecca Johnson speaks to students at Windsor High School in Windsor, Colorado. Photographer: Matthew Staver/Bloomberg

“We heard a lot of stories about how it could get into the water and pollute the land,” said Hocking, who is 16. “I’m going to tell my parents that fracking fluid only makes cracks in the rock the size of a hair that the sand gets into and holds open.”

Facing 10 possible ballot initiatives restricting hydraulic fracturing, Anadarko has deployed 160 landmen, geologists, and engineers such as Johnson to Rotary clubs, high schools, and mothers groups. They demonstrate how drilling works and try to convince people that the technique and the accompanying chemicals and geological effects don’t harm the environment or public health.

These de facto ambassadors are proving effective in deflecting the effort by Colorado municipalities to gain greater control over drilling. They have been so successful that the Woodlands, Texas-based company also trained 2,000 additional employees in Colorado, Wyoming, Utah, and Texas to answer questions posed to them by community members. The Coloradans use a smartphone app that supplies basic fracking facts. Others elsewhere get colorful printed materials.