The Development of the Marcellus and Utica Shale Plays: Reality or Illusion? David A. Kutik Roy A. Powell Jeffery D. Ubersax
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2 The Development of the Marcellus and Utica Shale Plays: Reality or Illusion? David A. Kutik Roy A. Powell Jeffery D. Ubersax 1
3 Marcellus Shale Utica Shale 2
4 3
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8 7
9 Levels of Maturation in Utica 8
10 Select Physical Properties of Hydrocarbons Including Natural Gas Liquids Compound Formula Molecular Mass Boiling Point, C Density Air = 1 Compressibility Methane CH Ethane C 2 H Ethylene C 2 H Propane C 3 H Butane C 4 H Pentane C 5 H Hexane C 6 H Heptane C 7 H
11 Products Created By NGLS 10
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15 Initial Production 14
16 The Promise Marcellus Shale = 141 TCF unproven technology recoverable 15
17 The Promise Marcellus Shale Per Standard & Poors Could contain almost half the current proven reserves in the U.S. Lowest production costs of any field 90+% success rate 16
18 The Promise Utica Shale TCF natural gas billion barrels oil 17
19 The Investment Major oil & gas players Chesapeake 71% of all permits Enervest Chevron 18
20 The Investment Vallourie & Mannesman U.S. Steel U.S. Steel & Kobe Timken $650 million $ 95 million $650 million $200 million 19
21 The Promise (Near Term) Employment 12,150 40,606 65,680 Labor Income $ ,463 $1,994,216,405 $3,298,757,195 Output $1,667,574,417 $5,823,268,396 $9,642,544,988 Total State and Local Taxes $73,422,148 $271,539,607 $433,528,922 Source: An Analysis of The Economic Potential For Shale Formations in Ohio Prepared by Faculty and Staff of Cleveland State University, The Ohio State University and Marietta College 20
22 The Promise (Long Term) Over the Next years 25,000 to 75,000 wells $80 billion in royalty payments 1 billion linear feet of steel pipe 21
23 22
24 Can state oil and gas law preempt local zoning laws? 23
25 Can state oil and gas law preempt local zoning laws? Robinson Twp. v. Commonwealth, No. 284 M.D. 2012, (Pa. Commw. Ct. July 26, 2012) Local municipalities challenged the constitutionality of legislation regulating oil and gas drilling in the Marcellus Shale. 24
26 Can state oil and gas law preempt local zoning laws? Municipalities challenged portion of the law that required them to amend their zoning ordinances to permit oil and gas operations. Commonwealth Court held that the provision violated substantive due process and declared it null and void. 25
27 Can state oil and gas law preempt local zoning laws? Commonwealth Court s decision has been appealed to the Pennsylvania Supreme Court. Case has been fully briefed and was argued on October 17,
28 Is Marcellus Shale a mineral? Butler v. Estate of Powers, 2011 PA Super 198 (Pa. Super. Ct. Sept. 9, 2011) 27
29 Is Marcellus Shale a mineral? Dunham Rule applied in PA since 1882 A reservation or exception in a deed reserving minerals, without any specific mention of natural gas or oil creates a rebuttable presumption that the grantor did not intend for minerals to include natural gas or oil. 28
30 Is Marcellus Shale a mineral? Deed at issue reserved half the rights in minerals and Petroleum Oils Trial court ruled that Dunham rule controlled and that deed did not reserve rights in natural gas. 29
31 Is Marcellus Shale a mineral? Superior Court reversed and remanded for determination of three questions 30
32 Is Marcellus Shale a mineral? 1. Does Marcellus shale constitute a mineral? 2. Should Marcellus shale gas be treated the same as conventional natural gas? 3. Or is shale similar to coal, in that whoever owns the shale, owns the shale gas? 31
33 Is Marcellus Shale a mineral? Superior Court s decision has been appealed to the Pennsylvania Supreme Court Case has been fully briefed and was argued on October 16,
34 Is Marcellus Shale a mineral? If the decision is affirmed, and the Dunham rule is not applied to Marcellus shale, numerous Marcellus shale leases that adhered to the Dunham rule could be invalidated. Could lead to tidal wave of quiet title litigation. 33
35 Proposed DEP Regulations In August, the DEP released a concept paper summarizing proposed regulatory changes based on the passing of Act
36 Proposed DEP Regulations The primary focus of the proposed regulations is to protect surface and groundwater. The DEP plans to submit the finalized language for approval by the Environmental Quality Board in late
37 Issues on the Horizon Forced Pooling Contract Performance Litigation 36
38 Forced Pooling Ohio has a mandatory pooling statute Pennsylvania has a forced pooling statute, but it does not provide for the forced pooling of Marcellus Shale gas. 37
39 Contract Performance Litigation Drop in natural gas prices Disputes regarding what acreage will be deemed held by production Disputes over royalty payments 38
40 39
41 40
42 Current Fracking Litigation Issues in Ohio 41
43 Who owns the Oil and Gas? Surface owner lawsuits under the Ohio Dormant Mineral Act, O.R.C Several minerals deemed abandoned and vested in the owner of the surface after 20 years unless a saving event occurred: drilling permit, actual production, claim to preserve, or recorded title transaction Enacted in 1989; self-executing 42
44 Who owns the Oil and Gas? Surface owner lawsuits under the Ohio Dormant Mineral Act, O.R.C Amended in 2006 to add notice requirements and procedures to contest abandonment Surface owner must serve notice of intent to declare the mineral interest abandoned and days later an affidavit reciting the facts constituting the abandonment 43
45 Who owns the Oil and Gas? Surface owner lawsuits under the Ohio Dormant Mineral Act, O.R.C Mineral owner may file within 60 days after the notice either an affidavit that identifies a past saving event, or a claim to preserve his mineral interest 44
46 Legal Issues in Pending Cases 1. Can a claim of abandonment still be made under the 1989 version of the DMA? Wiseman v. Potts, No. 08CV0145 (Morgan County Common Pleas, June 19, 2010) 45
47 2. Can an effective claim to preserve be filed under the current Act after a surface owner s notice, even if there has been no saving event? 46
48 3. Is an oil and gas lease a title transaction, and thus a savings event? If so, when does the 20-year period begin to run? when the lease was recorded (Ricks v. Rap, 784 N.W.2d 432 (Neb. 2010)); or when the lease was terminated, after the last delay rental payment (Energetics Ltd. v. Whitmill, 497 N.W.2d 497 (Mich. 1993))? 47
49 4. Is a sale of the surface a title transaction? I.e.: has the mineral interest been the subject of a title transaction if only the surface is conveyed, in a deed that mentions the mineral reservation? 48
50 Can The Oil And Gas Be Removed By Fracking? Surface owner lawsuits to enjoin horizontal drilling and fracking. Mineral owners have implied common law right to mine and remove minerals from the property but not from adjoining properties. Is there an express right to remove minerals (oil and gas) from other lands in the deed reservation? 49
51 Can The Oil And Gas Be Removed By Fracking? Typical language: excepting and reserving all coal, oil, gas and other minerals together with the privileges of mining and removing through and under said described premises other coal, oil, gas or other minerals belonging to said Grantor or which may hereafter be acquired by said Grantor. (1959) 50
52 Can The Oil And Gas Be Removed By Fracking? Court of Common Pleas, Harrison County: the plain meaning of the phrase through and under only authorizes the mining, transfer and removal of coal, oil, gas and other minerals found outside the described premises which takes place beneath the surface. 51
53 Can The Oil And Gas Be Removed By Fracking? Court enjoined any activity for the purpose of accessing and removing oil, gas or other substances from areas outside the premises. Jewett Sportsmen & Farmers Club v. Chesapeake Exploration, L.L.C. (1/12/12) (motion for reconsideration pending). 52
54 Is Fracking A Cause Of Compensable Harm? Surface owner and neighbor lawsuits in Pennsylvania, New York, West Virginia, Texas, Arkansas and Colorado. 53
55 Is Fracking A Cause Of Compensable Harm? Plaintiffs allege property damage, person injury or risk of injury from groundwater and/or drinking water contamination, air pollution. About 40 cases since Few results to date. 54
56 Is Fracking A Cause Of Compensable Harm? Strudley v. Antero Resources (Colorado, 5/9/12): dismissed under Lone Pine; no prima facie showing of any injury caused by well development. 55
57 Is Fracking A Cause Of Compensable Harm? Tucker v. Southwestern Energy (E.D. Ark.): plaintiffs ordered 2/17/12 to replead under lqbal; Lone Pine motion filed; case settled in August. Harris v. Devon Energy (E.D. Tex. 1/25/12): dismissed because testing showed no contamination of wells at toxic levels. 56
58 Can Local Governments Ban Fracking? Morgantown, W.Va. ban: struck down as preempted by state law August Binghamton, NY 2-year moratorium: struck down October
59 Can Local Governments Ban Fracking? In Ohio: Yellow Springs banned fracking August 2012 Cincinnati banned injection wells August
60 59
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