In the first appellate court ruling to address the post-closing obligations of a party asserting the Superfund bona fide prospective purchaser (BFPP) defense, the U.S. Court of Appeals for the Fourth Circuit affirmed that a South Carolina brownfields developer forfeited the defense because of its failure to exercise due care with regard to existing contamination.…

All persons associated with non-public construction projects in Louisiana are affected by, and should be familiar with, the Louisiana Private Works Act. La. R.S. 9:4801, et. seq. (“PWA”).  The two fundamental policies behind the implementation of the PWA summarized are:

  • To protect those who contribute to the improvement of immovable property by ensuring that the owner does not benefit from their labor without compensating them; and
  • To incentivize the owner to take reasonable steps to ensure that contractors and suppliers are paid.

    • The PWA was first enacted in 1981 and was based upon the work and recommendations of the official advisory law revision commission and, the law reform agency and legal research agency of the State of Louisiana – The Louisiana Law Institute. Over the last thirty years, numerous amendments and revisions to the PWA have resulted in piece-meal changes to certain provisions that lead to confusion, ambiguity, and potential traps for the unwary.

    Recognizing the undesirable effects of the many revisions, the 2012 Louisiana Legislature has once again turned to the Louisiana Law Institute for its recommendations to simplify and better organize the provisions of the PWA.

    On April 19, 2013, a Texas-led state coalition filed a petition with the US Supreme Court requesting review of the D.C. Circuit’s June 26, 2012 decision upholding USEPA’s Greenhouse Gas (GHG) rules. That decision upheld the agency’s Endangerment Finding and Tailpipe Rule before determining that state and industry opponents lacked standing to challenge USEPA’s Timing and…

    Lenders venturing into Ohio’s oil and gas industry need to be aware of unique features of the industry and how to conduct due diligence to properly evaluate risk. Successful lenders understand how the maturity of an oil and gas play, unique features of oil and gas assets, and a borrower’s experience can impact risk. Unique…

    As Ohio enjoys its latest boom in oil and gas exploration, it is important to understand how oil and gas leases are treated in bankruptcy. Unsettled Ohio law regarding whether a debtor owns unextracted oil and gas as part of the debtor’s real property can make this a difficult issue. 

    In In re Loveday, No. 10-64110, 2012 WL 1565479 (Bankr. N.D. Ohio May 2, 2012), the Northern District of Ohio examined whether a Chapter 13 debtor had properly included in his bankruptcy schedules his interest in unextracted oil and gas relating to the debtor’s real property. Whether the debtor’s oil and gas rights were properly scheduled was a significant factor in determining whether the debtor could retain the proceeds of the sale of his oil and gas rights. But more importantly, for the companies who sought to purchase the debtor’s oil and gas rights, knowing whether such rights were properly scheduled was necessary to determine whether the debtor had unfettered authority to sell his oil and gas rights without court approval.

    The Ohio 130th General Assembly is considering two new bills, House Bills 59 and 72. Each bill proposes changes to Ohio’s oil and gas law. Following is a summary of the proposed changes relevant to Ohio’s oil and gas law in each bill.

    House Bill 59

    On Feb. 12, 2013, Rep. Amstutz (R-Dist 1) introduced House Bill 59, Gov. Kasich’s budget bill. The full Bill Analysis from the Ohio Legislative Service Commission is also available online. The following proposals affect Ohio oil and gas law:

    1. New Taxes
    The oil and gas tax changes proposed by the Kasich administration have been the most publicized part of H.B. 59. The bill would lower income taxes for all tax brackets by a total of 20% over the next three years, funded by increased oil and gas severance taxes. H.B. 59 also proposes to calculate property taxes from the true value of gas reserves based on the British thermal unit (Btu) content of the gas extracted and the true value of condensate reserves. Other tax provisions in H.B. 59 are differentiated based on whether production is from a horizontal or nonhorizontal well.
    A.  Nonhorizontal Wells: H.B. 59 would change ORC §5749.02 to adjust the rate of severance tax on gas from the current 2.5 cents per MCF to the lesser of 3 cents per MCF or 1% of spot market value. It would also raise the tax rate on severance of oil from 10 cents per barrel to 20 cents per barrel. It would exempt nonhorizontal wells for paying severance tax on gas if they produce less than 10 MCF per day in a quarter. 
    B.  Horizontal Wells: H.B. 59 would change ORC §5749.02 to levy a severance tax at a rate of 1.5% of the spot market value of oil and condensate produced by horizontal wells for the first five quarters of a well’s production, with the rate jumping to 4% beginning in the fifth quarter. Gas measuring no more than 1,050 Btu would incur a severance tax of 1% of the spot market value of gas. For gas measuring more than 1,050 Btu, the severance tax would be variable, calculated according to the Btu of the gas and the spot price of gas and natural gas liquids (NGLs), with a base rate of 1.5% for the first five quarters and a base rate for gas of 1% and for NGLs of 4% after the first five quarters of production.

    In  Save Cuyama Valley v. County of Santa Barbara (Jan. 10, 2013) 2013 Cal.App.LEXIS 212, the Sixth District Court of Appeal issued a decision upholding the trial court’s denial of Save Cuyama Valley’s (Save Cuyama) petition for a writ of mandate against the County of Santa Barbara (County).  Save Cuyama contended that the Environmental…

    February 5, 2013, the U.S. Department of Labor issued its final rule rolling out new amendments to the FMLA regulations that correspond with military related leaves of absence.  The FMLA was amended in 2008 and 2010 to provide leave rights for military families.  The amended regulations implement changes made to the FMLA.  In addition, the…

    You are interested in acquiring a gas lease on certain parcel. When you look at the real property records, however, you discover the record owner is deceased. Now what do you do? Who owns the interests? How do you evidence this ownership?

    This issue might be best discussed in the context of an example. Roger Farmer sold his farm, located in Muskingum County, Ohio, in 1978 and retained the mineral interests. That is, Roger “severed” the mineral interest from the rest of the property. He died in 1995 without transferring those interests. He left a will, admitted to probate in Franklin County, Ohio, which left all his property, real and personal, to his son, John.

    John died in 2002, also without transferring the interests. There is no record of any will being admitted to probate, or of the administration of his estate. To determine the current owners of the mineral interest, we have to analyze Roger’s will and John’s family situation.