Page 1

The Oil Pollution Act of 1990: A Year in the Spotlight Jurisdictional Wetlands and Mitigation Banking in Texas The State of Texas versus the EPA Regulation of Hydraulic Fracturing Houston Bar Foundation Recognizes Outstanding Efforts by Volunteers

lawyer

THE HOUSTON

inside...

Volume 48 – Number 5

March/April 2011

Environmental and Energy Law


BUY

OPEN

7 DAYS A WEEK 9 AM - 8 PM

SELL

MUSEUM CITY PLACE Museum District - $340’s

VICEROY MODERN

MODERN RM ROSE

Rice Military - $440’s

SABINE PARK

MAXIE MODERNE

Rice Military - $460’s

CHATEAU ON FLOYD

Rice Military - $440’s

Memorial Heights - $410’s

Rice Military - $680’s

713.868.7226 5023 Washington Avenue Houston, TX 77007

urbanliving.com www.urban Inc, TREC Broker #476135


contents Volume 48 Number 5

March/April 2011

10

16

FEATURES Oil Pollution Act 10 The of 1990: A Year in the Spotlight

By Andrew J. Torrant

Wetlands 16 Jurisdictional and Mitigation Banking in Texas

By Andrew L. Fono and Russ Krauss

State of Texas versus 24 The the EPA Regulation of

24

30

Hydraulic Fracturing

By Terry W. Roberson

Bar Foundation 30 Houston Recognizes Outstanding

The Houston Lawyer

Efforts by Volunteers

The Houston Lawyer (ISSN 0439-660X) is published bimonthly by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehouston lawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. For article REPRINTS, please contact Wright’s Reprints: 1-877-652-5295. ©The Houston Bar Association, 2011. All rights reserved.

2

March/April 2011

thehoustonlawyer.com


CUT COSTS NOT CORNERS. Comcast Business Class Internet and Voice. Next generation business tools for next generation businesses. Switch to Comcast Business Class and stop over-paying for phone and Internet service with the phone company. Get fast Internet, a better phone plan including unlimited nationwide calling and tools from Microsoft.ÂŽ All backed by 24/7 Business Class Support.

877-757-3019 business.comcast.com

Subject to Comcast Business Class Service Order Agreement and General Terms and Conditions. Business Class Voice: Unlimited package pricing applies only to direct-dialed calls to locations in the U.S., certain U.S. territories and Canada. No separate long-distance carrier connection available. Digital voice service (including 911/emergency services) may not function after an extended power outage. Certain customer premises equipment may not be compatible with services. EMTA required ($5/month). Business Class Internet: Many factors affect speed. Actual speeds vary and are not guaranteed. Cable modem required. Please call your local Comcast office for restrictions and complete details. Š2011 Comcast. All rights reserved.


contents Volume 48 Number 5

March/April 2011

33

35

departments Message 6 President’s Take the Climate Challenge By T. Mark Kelly the Editor 8 From An Interesting Year in

Environmental Law By John S. Gray

Spotlight 33 Committee Get Involved with the Campaign

for the Homeless Committee By Lisa Brindle Talbot

46

the Record 35 OffMarathon Woman By Mark Trachtenberg the Bar 36 AtJudicial Investitures Reviews 38 Media Legal Writing for the Rewired

Brain: Persuading Readers in a Paperless World Reviewed by Mark Trachtenberg

The Trial Reviewed by Caroline Pace

Dragon Naturally Speaking 11 Reviewed by Robert Painter and Al Harrison Trends 42 Legal The Texas Court of Criminal

Appeals Affirms the Deference Owed to the Trier of Fact By Farrah Martinez

The Texas Supreme Court Says “No” to Rolling Easements By Goran Krnaich Profile in Professionalism: 46 AJeffrey W. Carr The Houston Lawyer

Senior Vice President, General Counsel & Secretary FMC Technologies Inc.

47 Placement Service 48 Litigation MarketPlace 4

March/April 2011

thehoustonlawyer.com


Join the Houston Bar Association’s 100 Club The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, corporate legal departments, law schools and government agencies with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Abrams Scott & Bickley, L.L.P. Adair & Myers PLLC Ahmad, Zavitsanos & Anaipakos, P.C. Ajamie LLP Allen Boone Humphries Robinson LLP Andrews Myers, P.C. Bair Hilty, P.C. The Bale Law Firm, PLLC Barker Lyman, P.C. Barrett Daffin Frappier Turner & Engel, LLP Bateman/Pugh, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann & House Brown McCarroll L.L.P. Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, L.L.C. Butler I Hailey Caddell & Chapman Cage Hill & Niehaus, L.L.P. Campbell Harrison & Dagley L.L.P. Campbell & Riggs, P.C. Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Cochran Baker Williams & Matthiesen LLP Cokinos Bosien & Young Conley Rose P.C. Connelly • Baker • Wotring LLP Cooper & Scully, P.C. Cozen O’Connor Crady, Jewett & McCulley, LLP Currin, Wuest, Mielke, Paul & Knapp, PLLC David Black & Associates De la Rosa & Chaumette De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Diamond McCarthy LLP Dinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski L.L.P. Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Drucker, Rutledge & Smith, L.L.P. Ebanks Taylor Horne L.L.P. Edison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Essmyer, Tritico & Rainey, L.L.P. Ewing & Jones, PLLC Farnsworth & Von Berg, L.L.P. Fibich Hampton & Leebron, L.L.P. Fisher, Boyd, Brown & Huguenard, LLP Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C. Fleming & Associates L.L.P. Foreman DeGeurin & Nugent Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PC Funderburk & Funderburk, L.L.P. Galloway Johnson Tompkins Burr & Smith Germer Gertz, L.L.P. Givens & Johnston PLLC Goldstein & Vowell, L.L.P. Gordon & Rees LLP Greer, Herz & Adams, L.L.P.

Hagans Burdine Montgomery & Rustay, P.C. Harberg, Huvard, Jacobs & Wadler, LLP Harris, Hilburn & Sherer Harrison, Bettis, Staff, McFarland & Weems, L.L.P. Hays McConn Rice & Pickering, P.C. Heard, Robins, Cloud & Black, L.L.P. Heim, Payne & Chorush, L.L.P. Hicks Thomas LLP Hirsch & Westheimer, P.C. Hogan Lovells US LLP Holm I Bambace LLP The Hudgins Law Firm Hunton & Williams LLP Jackson Gilmour & Dobbs, PC Jackson Lewis LLP Jenkins Kamin, L.L.P. Johnson, DeLuca, Kennedy & Kurisky, P.C. Johnson Radcliffe Petrov & Bobbitt PLLC Johnson, Trent, West & Taylor, L.L.P. Jones, Walker, Waechter, Piotvent, Carrere & Denegree, L.L.P. Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kasowitz Benson Torres & Friedman LLP Kelly Hart & Hallman, LLP Kelly, Sutter & Kendrick, P.C. Kroger | Burrus LeBlanc Bland P.L.L.C. Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre & McCulloch, LLP Manning, Gosda & Arredondo, L.L.P. McGinnis Lochridge & Kilgore LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PC Miller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Munsch Hardt Kopf & Harr, P.C. Murray | Lobb PLLC Myers, Dale & Associates Nathan Sommers Jacobs Nickens Keeton Lawless Farrell & Flack LLP Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Okin Adams & Kilmer LLP Osha Liang LLP Pagel Davis & Hill PC Perdue Brandon Fielder Collins & Mott Perdue & Kidd, L.L.P. Phelps Dunbar LLP Phillips & Akers, P.C. Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, McKinley & Zito Ramsey & Murray PC Roach & Newton, L.L.P. Roberts Markel P.C. Ross, Banks, May, Cron & Cavin, P.C. Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Moore, Jackson & Echols, P.C. Schiffer Odom Hicks & Johnson PLLC

Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Junell, Greenberg & Oathout, LLP Schwartz, Page & Harding L.L.P. Seyfarth Shaw LLP Shannon Martin Finkelstein & Alvarado, P.C. Shepherd, Scott, Clawater & Houston, L.L.P. Shipley Snell Montgomery LLP Short Carter Morris, LLP Singleton Cooksey LLP Slusser Wilson & Partridge LLP Smith & Carr, P.C. Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P. The Spencer Law Firm Sprott, Rigby, Newsom, Robbins & Lunceford, P.C. Steele Sturm P.L.L.C. Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P. Sutherland Asbill and Brennan LLP Tekell, Book, Allen & Morris, L.L.P. Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Tucker, Taunton, Snyder & Slade, P.C. Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson & Henneman, LLP Westmoreland Hall Maines & Lugrin PC Weycer Kaplan Pulaski & Zuber, P.C. White Mackillop & Gallant P.C. Williams, Birnberg & Andersen, L.L.P. Williams Kherkher Hart Boundas LLP Williams Morgan & Amerson, P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wong, Cabello, Lutsch, Rutherford & Brucculeri, P.C. Wright Brown & Close, L.L.P. Yetter Coleman LLP Ytterberg | Deery LLP Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zukowski, Bresenhan & Sinex, L.L.P. Firms of 25-49 Attorneys Adams & Reese LLP Baker & McKenzie LLP Beck Redden & Secrest, L.L.P. Gibbs & Bruns LLP Hoover Slovacek LLP Littler Mendelson, PC Morgan, Lewis & Bockius LLP Olson & Olson LLP Firms of 50-100 Attorneys Akin Gump Strauss Hauer & Feld LLP Baker Hostetler LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain Hrdlicka White Williams & Martin Coats I Rose Gardere Wynne Sewell LLP Jackson Walker L.L.P. Jones Day King & Spalding LLP

Martin, Disiere, Jefferson & Wisdom, L.L.P. Porter Hedges LLP Thompson & Knight LLP Winstead PC Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Haynes and Boone LLP Locke Lord Bissell & Liddell LLP Vinson & Elkins LLP Corporate Legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc Lyondell Petrochemical Company MAXXAM Inc Newfield Exploration Company Petrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University Sysco Corporation Texas Children’s Hospital Total E&P USA Inc. University of Houston System Law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center Government Agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County Texas


president’s message

By T. Mark Kelly Vinson & Elkins LLP

Take the Climate Challenge

The Houston Lawyer

T

his issue of The Houston Lawyer that focuses on energy and environmental law seemed the perfect place to announce a new challenge that the HBA and its Lawyers Against Waste Committee are proposing to law firms and law offices. The Law Office Climate Challenge was developed by the American Bar Association Section of Environment, Energy and Resources (SEER), in cooperation with the U.S. Environmental Protection Agency. It is designed to encourage law offices to take specific steps to conserve energy and resources, as well as reduce emissions of greenhouse gases and other pollutants. The ABA’s Law Practice Management Section is also a sponsor. The HBA’s Lawyers Against Waste Committee, chaired this year by Julie Baumgarten Pradel of The Williams Companies and Judge David Fraga of the City of Houston Municipal Courts, has since 1998 organized activities that benefit our environment and beautify our city. The annual Lawyers Against Waste Trash Bash is coming up April 30, in which volunteers from the HBA and the community will pick up trash, trim shrubs, weed, mow and perform other tasks that will greatly improve a section of Hermann Park. Last fall, the committee organized an event to remove debris and verify burial records at College Memorial Park Cemetery, which dates from the late 1890s. Those wonderful events provide muchneeded outreach to the community, but the committee’s newest project focuses on the internal operation of law offices. Joining the Climate Challenge is a way that your office can help the environment, reduce waste, save money and enhance your 6

March/April 2011

thehoustonlawyer.com

reputation as a good citizen. The HBA program’s slogan, coined by Judge Fraga, is “Clean Today for a Green Tomorrow.” It may be as simple as undertaking best practices for office paper management or extended to purchasing energy-saving equipment and renewable energy sources. There are four ways to participate: 1. Adopt best practices for office paper management by reducing paper usage, increasing recycled content in paper purchased, or increasing recycling. 2. Participate in the EPA’s WasteWise program, which encourages organizations to save energy by reducing waste, and adopt best practices for office paper management. 3. Participate in the EPA’s Green Power Partnership program by purchasing energy from renewable sources to cover at least a portion of electricity usage. 4. Participate in the EPA’s ENERGY STAR Program, which encourages law offices to reduce energy use by at least 10 percent through, among other things, the purchase of ENERGY STAR-designated equipment and implementation of better energy management practices. This program has features that recognize the issues associated with tenant law offices. Detailed information on each of these options is available on the ABA website through a link on the HBA homepage, www.hba.org. The application procedures are not complicated, and you will receive recognition from the HBA and the ABA, as well as from the EPA if you choose one of their partnership programs. The ABA site also includes a wealth of information on ways that law offices can reduce their car-

bon footprint. For instance, the WasteWise program shows you best practices on recycling paper, including double-sided printing and copying, and how to economically purchase paper with recycled content. A comprehensive Law Office Guide to Energy Efficiency offers tips on everything from evaluating your office lighting to better utilizing idle time settings on your computers and other office equipment. A 30 percent reduction in power cost per square foot on a 20,000 square foot office space could net $60,000 in savings over a five-year lease. “Carbon footprint” may have become a buzzword, but don’t let that dilute its importance. A recent study at Purdue University showed that one lawyer can use up to 100,000 sheets of paper in one year— enough to publish 347 copies of Harper Lee’s legal classic, To Kill a Mockingbird. Multiply that by the number of lawyers that make up Houston’s law firms, and it’s an astounding mound of paper. By making even small changes, law offices can achieve a big impact toward a cleaner environment. I know that a number of law offices in Houston are already involved in waste reduction and energy saving programs. If you have already implemented many of these best practices, earn recognition of your efforts by joining the Climate Challenge. If your office is looking for ways to “Clean Today for a Green Tomorrow,” this is a great opportunity to learn more about your options. Within the next few weeks, HBA members will receive an email from the Lawyers Against Waste Committee that details the Climate Challenge and lets you know how to register your participation through


the HBA, so your law office can begin receiving the recognition it deserves. The Climate Challenge will run through March 2013. Think of all the paper you could save, just in the next two years. And for a hands-on project that helps the environment, get together a team or participate as an individual in the April 30 Lawyers Against Waste Trash Bash in Hermann Park. You can bring the family and enjoy morning coffee and pastries, lunch and door prizes, at no charge. In between, we’ll put you to work cleaning up a section of Houston’s most famous park. Visit www.hba.org for more information or call our office at 713-759-1133.

713.840.1000

jatkinson@linscomb-williams.com www.linscomb-williams.com

Strategies for Wealth

thehoustonlawyer.com

March/April 2011

7


from the editor

By John S. Gray Gardere Wynne Sewell LLP

Associate Editors

Keri Brown Baker Botts L.L.P.

Catherine Le Law Firm of Catherine Le

Robert W. Painter The Painter Law Firm

The Houston Lawyer

Don Rogers Harris County District Attorney’s Office

Tamara Stiner Toomer Attorney at Law

8

March/April 2011

An Interesting Year in Environmental Law

W

hen Mark Kelly and I were planning the topics to be covered in our six annual issues of The Houston Lawyer last year our community, along with the rest of the Gulf Coast, was witnessing and experiencing the largest accidental marine oil spill in the history of the petroleum industry–the blowout of the deepwater Macondo well and subsequent explosions on and sinking of the Deepwater Horizon drilling rig. We wanted to address the potential legal issues our community would be addressing, but the oil was still flowing uncontrolled from the wellhead, the extent of damage to marine and wildlife habitats, as well as the Gulf’s fishing and tourism industries, was ever-changing, Congress was railing about making wholesale changes to existing marine pollution liability statutes, and the forum where the legal issues raised by the oil spill would be decided–Houston or New Orleans–had yet to be determined. Consequently, we decided to wait until the fog over the legal landscape lifted a bit to prepare an environmental issue to cover these topics and others that were percolating last spring. This April 20th marks the one-year anniversary of when methane gas under high pressure expanded upward and out of the drill column onto the rig’s platform, where it ignited and exploded. Despite efforts to douse the flames, the Deepwater Horizon sank on April 22nd shortly after which the oil leak was discovered coming from the damaged wellhead on the sea floor. Estimates of the spill flow rate varied widely, but subsequent government reports estimated that the spill was about 20 times larger than the one caused by the Exxon Valdez. The wellhead was finally capped in July. Thankfully, the spill occurred far from shore and efforts to protect the Gulf coastline and marine environments were generally successful although many experts still thehoustonlawyer.com

debate how much of the oil was actually released into the environment, contained and removed. Moreover, there is a lot of disagreement on the effects of the oil and chemicals used to disperse it on the environment (including coral), marine life and the food chain. This is an issue that will be studied for many years. It did not take long for litigation to spring forth with hundreds of individual and class action lawsuits being filed “in which individuals and businesses seek payment for financial losses covered by the Oil Spill Pollution Act. Generally, the claimants in these lawsuits are fishermen, hotel operators, landowners, rental companies, restaurants and seafood processors, who claim a current or potential future loss of business in the aftermath of the oil spill.” In hearings on the Oil Spill litigation held in July and August of last year, a panel of federal judges in Boise, Idaho decided to create Multidistrict Litigation to be based in either Houston or New Orleans. New Orleans was preferred by the plaintiffs’ bar and the government, and the JPML ordered that the majority of lawsuits relating to the Oil Spill be transferred to the U.S. District Court for the Eastern District of Louisiana for consolidated pretrial proceedings. BP investors’ suits over losses tied to the spill are being heard in a federal court in Houston. Perhaps just as significantly, in coordination with the Obama Administration, BP created a $20 billion spill response fund being administered by Kenneth Feinberg to be used for natural resource damages, state and local response costs and individual compensation, but not be used for fines or penalties. This fund is expected to resolve most claims and in order to participate in this process, claimants have to surrender their right to sue BP. I expect you may be wondering why more of this issue is not devoted to the oil spill, given that the spill was the reason for deciding to dedicate an issue to environmental law in the first place. The reason is rather continued on page 23


BOARD OF DIRECTORS President

Secretary

T. Mark Kelly

David A. Chaumette

President-Elect

Treasurer

Denise Scofield

Brent A. Benoit

First Vice President

Past President

M. Carter Crow

Barrett H. Reasoner

Second Vice President

Laura Gibson

DIRECTORS (2009-2011)

Alistair B. Dawson Jennifer A. Hasley

Benny Agosto, Jr. Warren W. Harris

Hon. David O. Fraga Daniella D. Landers

DIRECTORS (2010-2012) Todd M. Frankfort John Spiller

editorial staff Editor in Chief

John S. Gray Associate Editors

Keri D. Brown Robert W. Painter Tamara Stiner Toomer

Catherine Le Don Rogers

Editorial Board

Julie Barry Angela Dixon Dori Kornfeld Goldman Farrah Martinez Caroline C. Pace Joy E. Sanders Hannah Sibiski Mark R. Trachtenberg N. Jill Yaziji

Sharon D. Cammack Don D. Ford III Al Harrison Judy L. Ney Maidie Ryan Mark Schuck Lisa Brindle Talbot Gary A. Wiener

Managing Editor

Tara Shockley

HBA office staff Membership and Technology Services Director

Executive Director

Kay Sim Administrative Assistant

Ronald Riojas

Ashley G. Steininger

Membership Assistant

Administrative Assistant

Bonnie Simmons

Billy Salinas

Receptionist/Resource Secretary

Committees & Events Assistant

Lucia Valdez

Ashley Sugg

Director of Education

Lucy Fisher Continuing Legal Education Assistant

Amelia Burt Communications Director

Tara Shockley

Community Education Assistant

Natasha Williams Communications Assistant/Web Designer

Brooke Eshleman

Advertising sales Design & production QUANTUM/SUR

12818 Willow Centre, Ste. B, Houston, TX 77066 281 . 955 . 2449 • www.quantumsur.com Publisher

Leonel E. Mejía Production Manager

Marta M. Mejía Advertising

Mary Chavoustie & Liz C. Searcy

thehoustonlawyer.com

March/April 2011

9


By Andrew J. Torrant

The Oil F Pollution Act of 1990: A Year in the Spotlight

or several months in 2010, as the world watched crude oil flow from the ocean floor into the Gulf of Mexico, decision-makers scrutinized the legal framework in the United States for handling the public and private claims that could typically result from such incidents. Indeed, within days of the April 20, 2010, Deepwater Horizon/ MC-252 well blowout, commentators and congressmen alike called for a revamp of the Oil Pollution Act of 19901 (“OPA�) on the speculation that the statute would not offer adequate protections. In reality, a more thorough examination of OPA, rather than a knee-jerk reaction, shows that the rush to judgment may have been premature. OPA was once touted as a measured, bipartisan response to the Exxon Valdez incident of 1989, and OPA continues to provide a viable method for handling spill-related claims today.

Why the Act is Still a Viable Method for Handling Spill-related Claims

I. OPA and Its Enactment Having survived recent attempts to significantly alter OPA, its provisions are still the primary oil-spill response legislation in place for incidents in inland and offshore waters of the United States. The act covers a broad range of spill-related activities and liabilities, and as such, serves to cover many contingencies. While the 101st Congress enacted OPA in 1990 as a result of a fervor similar to 2010 Gulf oil spill reaction, that Congress ended up taking a measured approach, almost 18 months were allowed to pass following the Exxon Valdez spill before the


statute was signed into law. OPA is noteworthy because of the general sense of bipartisan support that it received. Though that support may have been spurred on by intense rhetoric, the ultimate legislative product was not a mere codification of anger directed at Exxon. Nearly a year after the Deepwater Horizon incident, Congress has yet to fully act on the intense rhetoric that filled the airwaves for much of 2010, but it may still do so as long as such a negative mood continues to linger. A. What OPA Does: Response Resources OPA was signed into law in August 1990, after the Exxon Valdez incident that spilled approximately 11 million gallons of crude oil into the rich fishing grounds of Prince William Sound, and onto over 1,300 miles of Alaskan shoreline. Within weeks of the spill, Exxon set up a “claims program” to provide fishermen and others with immediate relief and to pay for the damages they suffered. Many fishermen and other local residents were hired by Exxon for spill clean-up and were wellpaid for their boats, equipment and time. In the end, Exxon spent approximately $2.1 billion in cleanup efforts alone. Despite the response efforts exhibited in the aftermath of the Exxon Valdez, the aim of OPA was to broaden the reach of the government concerning spills to navigable waters, expand the types of claims that could be asserted, and provide more money and resources for oil-spill response, including creation of the Oil Spill Liability Trust Fund (“Fund”), which provides up to $1 billion per spill incident. OPA also intensified the requirements for contin-

gency planning and spread out the National Oil and Hazardous Substances Pollution Contingency Plan in a three-tiered approach: • the federal government is required to direct all public and private response efforts for certain types of spill events; • area committees—composed of federal, state, and local government officials—must develop detailed, location-specific Area Contingency Plans; and • owners or operators of vessels and certain facilities must prepare their own Facility Response Plans.

In the case of vessels, onshore facilities, and pipelines, the RP is the owner or operator; in the case of a deepwater port, the RP is the licensee authorized under the Deepwater Port Act; and in the case of offshore facilities, the RP is the lessee, permittee, or easement holder (i.e., the party that holds the right to the oil in the given sector). A sampling of instrumentalities that would fit into these categories include barges, tug boats, tankers, refineries, storage tanks, pipelines, production facilities, drilling rigs, platforms, and mobile offshore drilling units (MODUs),8 just to name a few.

Finally, OPA increased civil and criminal penalties for violation of the Clean Water Act, broadened the response and enforcement authority of the federal government and preserved state authority to establish law governing oil-spill prevention and response.2

C. What OPA Allows: Liability & Defenses OPA imposes liability on responsible parties for removal costs, different damages incurred by the United States, a State or an Indian tribe, or any person, and administration of Fund claims.

B. To Whom OPA Applies: Responsible Parties Generally, courts and commentators assert that liability under OPA is strict, joint and several.3 Liability can be imposed on each “responsible party” (“RP”) for a vessel or facility that discharges oil into or upon the navigable waters or adjoining shorelines or the exclusive economic zone.4 The terms “vessel” and “facility” are defined broadly enough by OPA to together encompass virtually any instrumentality that might conceivably discharge oil.5 Similarly broad, the term “discharge” includes any emission of oil that is not natural seepage.6 The determination of whether a person is a RP depends on the instrumentality at issue: vessels, onshore facilities, offshore facilities, deepwater ports and pipelines.7

Removal Costs Removal costs are those costs incurred to remove oil after a discharge has occurred or the costs to prevent, minimize, or mitigate oil pollution from such an incident. These actions include containment and removal of oil from water and shorelines, and other actions as may be necessary to minimize or mitigate damage to the public health or welfare, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches. Damages OPA also allows different categories of injured parties to recover different types of damages.9 The following summarizes the categories of damages recoverable under OPA and indicates whether certain parties may recover such damages:

thehoustonlawyer.com

March/April 2011

11


• Natural resource damages are for lost use of marshes, wetlands, coastlines, and other habitats. Only certain designated government entities or their trustees may recover for damage to natural resources. • Real or personal property damages are for injury to or economic losses from destruction of real or personal property. Any claimant—property owner or lessee—whose property was damaged may recover for property damages. • Subsistence use damages are for lost subsistence use of natural resources like fish and wildlife or wetlands. Any previous user of the resources—not necessarily the owner—may recover such damages. • Revenues damages are for the net loss of taxes, royalties, rents, fees or net profit shares due to damage to property or natural resources. Only designated governmental entities may recover revenues. • Profits and earning capacity damages

are recoverable by anyone whose lost profits or whose earning capacity was impaired by injury or damage to property or natural resources. • Public services damages are for providing increased public services during or after spill removal, such as fire, safety and health protection. Only designated governmental entities may recover these. Further, OPA requires a RP to set up and implement a claims process, and to advertise the availability of such process. Claimants may choose to present their full claim during this process or merely an interim claim, without any penalty. If the responsible party denies all liability for a claim or if the claim is not settled within 90 days, then the claimant may either sue the responsible party or present their claim to the Fund. Defenses to Liability Despite OPA’s strict liability provisions, certain defenses are also provided in the

statute. A responsible party is not liable for removal costs or damages if it establishes by a preponderance of the evidence that the discharge or substantial threat of a discharge of oil and the resulting damages or removal costs were caused solely by: (1) an act of God; (2) an act of war; (3) an act or omission of a third party (with certain exceptions); or (4) a combination of these causes.10 However, these defenses do not apply if the responsible party fails or refuses to report the incident, to provide cooperation and assistance requested, or to comply with certain orders.11 In order to assert the third party defense found in section 2703(a)(3), the responsible party must establish, by a preponderance of the evidence, that the responsible party: (1) exercised due care with respect to the oil concerned, taking into consideration the characteristics of the oil and in light of all relevant facts and circumstances; and (2) took precautions against foreseeable acts or omissions of any such third party and the foreseeable consequences of those acts or omissions.12 Under the third party defense, the third party cannot be an employee or agent of the responsible party or a third party whose act or omission occurs in connection with any contractual relationship with the responsible party.13 Limitations of Liability Importantly, OPA also establishes liability limits based on the type of instrumentality involved. For example, a responsible person’s total liability for removal costs and damages recoverable under the Act, which relates to an incident from an offshore facility (except a deepwater port), may not exceed “the total of all removal costs plus $75,000,000.”14 For any onshore facility or a deepwater port, the liability limit is an absolute maximum of $350,000,000 (inclusive of removal costs).15 The liability limits for vessels are based on the type and tonnage of the vessel and are adjusted at least every three years to take into account changes in the consumer price index.16 The table below summarizes the limits last amended in 2009.

12

March/April 2011

thehoustonlawyer.com


Vessel Type

Liability Limit

(1) For an oil cargo tank vessel greater than The greater of $3,200 per gross ton or 3,000 gross tons with a single hull, including $23,496,000. a single-hull tank vessel fitted with double sides only or a double bottom only. (2) For a tank vessel greater than 3,000 gross tons, other than a vessel referred to in (1).

The greater of $2,000 per gross ton or $17,088,000.

(3) For an oil cargo tank vessel less than or The greater of $3,200 per gross ton or equal to 3,000 gross tons with a single hull, $6,408,000. including a single-hull tank vessel fitted with double sides only or a double bottom only. (4) For a tank vessel less than or equal to 3,000 gross tons, other than a vessel referred to in (3).

The greater of $2,000 per gross ton or $4,272,000.

(5) For any other vessel

The greater of $1,000 per gross ton or $854,400.

Nevertheless, OPA’s liability limits are subject to a number of important exceptions. First, such limits do not apply if an incident was proximately caused by: (1) gross negligence or willful misconduct of, or (2) the violation of an applicable federal safety, construction or operating regulation by, the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party.17 In addition, OPA’s liability limitations do not apply if the responsible party fails or refuses: (1) to report the incident as required by law and the responsible party knows or has reason to know of the incident; (2) to provide all reasonable cooperation and assistance in connection with removal activities; or (3) to comply with an order issued under 33 U.S.C. § 1321(c) or (e) or the Intervention on the High Seas Act.18 The limitations also do not apply to a tank vessel on which the only oil carried as cargo is an animal fat or vegetable oil, or to a tank vessel that is designated in its certificate of inspection as an oil spill response vessel and that is used solely for removal. Further, the limits on liability apply only to a responsible party’s liability under OPA § 2702—OPA leaves states free to impose additional, possibly unlimited, liability under state statutes or common law.19

Thus, state statutes imposing strict and/or unlimited liability on responsible parties would remain valid under the OPA. Furthermore, OPA does not affect the authority of the United States or any State Finally, OPA specifically states that notwithstanding the limitation of liability provisions, “all removal costs incurred by the United States Government or any State or local official or agency in connection with a discharge or substantial threat of a discharge of oil from any Outer Continental Shelf facility or a vessel carrying oil as cargo from such a facility shall be borne by the owner or operator of such facility or vessel.”20 Contribution OPA expressly allows for contribution claims among responsible parties: “[A] person may bring a civil action for contribution against any other person who is liable or potentially liable under [OPA] or another law.”21 Contribution is an equitable doctrine under which a party against whom a claim has been asserted may require other wrongdoers, including those not named in a claim, to contribute proportionally towards satisfaction of the claim. Therefore, the party that initially responds to an oil spill incident may have statutory contribution claims that could be asserted against other responsible par-

ties at some future time. A handful of reported cases indicate that the scope of the OPA contribution provision is decidedly broad. Indeed, one of the earliest cases to analyze OPA’s contribution provision noted that a “literal interpretation... would place no limitations on what ‘other law’ [a third party] must be at least potentially liable under for [a responsible person] to be able to sue... under OPA for contribution.”22 This court continued by opining that “at the very least, it would seem as though ‘another law’ under § 2709 refers to an analogous environmental law, such as CERCLA.”23 Ultimately, the court permitted a party to pursue contribution against a former facility owner under both OPA and CERCLA, as the party alleged that the former owner’s actions contributed to the ongoing discharge of PCBs. II. Legislation in Limbo Against the backdrop of existing provisions to deal with an oil spill, the 2010 Deepwater Horizon incident caused stakeholders to renew the debate. As much as anywhere, Washington, D.C. found itself caught in the frenzy in the aftermath of the spill. While federal regulators mobilized to assess the situation and Congressional committee chairs rushed to hold hearings, media outlets covered all aspects of the event, including a considerable amount of assigning blame. Members of Congress seized upon the occasion to file bill after bill—and feed press releases and sound bites to the media—regarding proposed legislation that would either severely punish responsible parties for incidents at offshore facilities, or make deepwater drilling drastically more expensive, which would have been cost-prohibitive for most small, independent production companies. The rush of proposals fizzled out though. And, out of all the bills that were filed, only one— amending OPA to authorize advance payments from the Fund to the federal on-scene spill response coordinator24— passed both houses of Congress and was signed into law. While offshore drilling thehoustonlawyer.com

March/April 2011

13


issues were the focus of everyone’s attention, in the end it seems that OPA was, indeed, a workable solution for the aftermath of such a spill. Before adjourning for planned recesses, members of both the House and Senate announced a final push of spill-related legislation in late July 2010. Democratic floor leaders compiled omnibus bills that incorporated significant provisions on a variety of topics from many of the previously introduced bills. On July 28, 2010, Senate Majority Leader Harry Reid (D-NV) introduced a 409-page omnibus bill incorporating text from over a dozen existing bills. The most striking parts of this bill, named The Clean Energy Jobs and Oil Company Accountability Act of 2010, S. 3663, included provisions that would: • eliminate the liability limit for certain offshore facilities; • modify the Fund claims process; • reorganize the regulatory agencies overseeing operations in the outer continental shelf;

14

March/April 2011

thehoustonlawyer.com

• add onerous requirements for exploration and production plans, spill response plans, and requirements of up to $1.5 billion in financial responsibility; • increase civil and criminal penalties for activities in the outer continental shelf; • allow the recovery of non-pecuniary damages; and • repeal the Limitation of Liability Act for vessels.25 S. 3663 sat on the 2010 Senate calendar without ever coming to a vote. An alternate omnibus bill offered by Republicans, The Oil Spill Response Improvement Act of 2010, S. 3643, also never made it off the Senate calendar. Led by Sen. McConnell (R-KY), who introduced a 136-page bill, rather than targeting such a specific actor or incident, S. 3643 was primarily aimed at restructuring the Department of Interior (overseeing exploration and production activities in offshore waters and in federal onshore lands) and addressing

industry-wide approaches to oil spill liability and response, including measures for research and preparation. While media attention has subsided to some degree, legislators have found ample opportunities to launch additional bills in 2011. Sen. Robert Menendez (D-NJ) has again introduced measures that would eliminate the liability cap.26 Both S. 214 and S. 215 have been pending in committee, without a hearing, since January 2011, and there does not appear to be the same climate in 2011 for advancing such legislation.27 No doubt, stakeholders will continue to ponder statutory and regulatory changes that may occur in the energy industry and beyond. III. Perception About OPA, Then & Now It may be that Congress took a measured approach when it enacted OPA, which is why OPA remains a workable solution today. A look at OPA’s legislative history shows some of the reasons why the legislative response to the Exxon Valdez was so different from the reaction to the 2010


Gulf oil spill.28 The bill that became OPA had 79 co-sponsors from both political parties.29 It passed the House of Representatives 375-5, the Senate by voice vote and both houses unanimously after conference.30 While the legislative responses differed, the mood of the country was actually quite similar in 1989 and 2010. In 1990, Congress passed measured legislation despite the mood; In 2010, Congress came close to acting hastily because of the mood. The Exxon Valdez spill rhetoric should sound familiar to those who watched the news in 2010: The spill occurred in one of the world’s most productive fisheries, a region abundant with wildlife... Millions of Americans saw images on the nightly news of cleanup crews toiling on miles of oil covered beaches, dead otters washing ashore and birds struggling to fly with their black matted feathers. The oil spill compelled the State of Alaska to cancel its fishing season in Prince William Sound, bringing untold financial hardship to those whose livelihood depends on the ocean.31 If such a mood resurges today, it may eventually result in the kind of sweeping changes that Congress rushed toward in 2010 but abandoned. Of course, some do want to see OPA remade into a better law. One contributor to OPA’s text believes that OPA does not work for disasters like the 2010 Gulf spill. The former chairman of Alaska’s oil spill commission legal research task force has commented that OPA is inadequate because it lacks provisions like a supreme command-and-control center to govern spills, and citizen councils that would oversee safety and spill-response for offshore operations.32 Whether improvements can be worked into OPA remains to be seen. IV. Conclusion Like all legislation, OPA may have some faults; however, an understanding of OPA and its protections shows that the rush to judgment in 2010 may have been premature. Enacted as a measured, bipartisan

response to the Exxon Valdez incident, OPA continues to provide a viable system for handling oil spill-related incidents today. Andrew J. Torrant is an associate in the Environmental Department of Fulbright & Jaworski L.L.P. The author wishes to thank Will Hailey for his assistance in preparing this article. Endnotes

33 U.S.C. §§ 2701-2762 (2006 & Supp. 2010). See generally Oil Pollution Act Overview, U.S. ENVT’L PROT. AGENCY (last modified Jan. 28, 2011), http://www.epa.gov/ emergencies/content/lawsregs/opaover.htm. 3. OPA does not use the terms “strict” or “joint and several,” however, courts and commentators refer to legislative history for this position. See Apex Oil Co. v. United States, 208 F. Supp. 2d 642, 652 (E.D. La. 2002); United States v. English, No. 00-00016, 2001 U.S. Dist. LEXIS 26033, at *7 (D. Haw. Mar. 28, 2001); Patricia Simmons Schminke, “The Oil Pollution Act of 1990: Has it Muddied the Waters of Liability Limitation?”, 5 U. Balt. J. Envt’l L. 173, 186 (1995). 4. 33 U.S.C. § 2702(a). 5. Id. § 2701(9), (37). 6. Id. § 2701(7). 7. Id. § 2701(32). 8. MODUs are treated as vessels until they are deemed responsible for damages beyond the cap for vessels; then MODUs are treated as facilities, which are subject to a higher cap. 33 U.S.C. § 2704(b)(1)-(2). 9. See generally 33 U.S.C. § 2702. 10. Id. § 2703(a)(1)–(4). 11. Id. § 2703(c). 12. Id. § 2703(a)(3)(A)-(B). 13. Id. § 2703(a)(3). OPA defines the term “contractual relationship” 1. 2.

to include, but not be limited to, “land contracts, deeds, easements, leases, or other instruments transferring title or possession” unless several circumstances are shown. Id. § 2703(d)(1)-(3). § 2704(a)(3). 14. Id. 15. Id. § 2704(a)(4). 16. Id. § 2704(a)(1)-(2); 33 C.F.R. § 138.230 (Jul. 1, 2010). 17. Id. § 2704(c)(1). § 2704(c)(2), (4). 18. Id. § 2718(a). 19. Id. § 2704(c)(3). 20. Id. § 2709 (emphasis added) 21. Id. 22. In re Energy Coop., No. 92-C-2392, 1995 U.S. Dist. LEXIS 7545, at *20–21 (D. Ill. May 30, 1995). 23. Id. at *21. 24. Act of June 10, 2010, Pub. L. No. 111-191, 124 Stat. 1278. 25. Clean Energy Jobs and Oil Company Accountability Act of 2010, S. 3663, 111th Cong. (2010). 26. Big Oil Bailout Prevention Unlimited Liability Act of 2011, S. 214, 112th Cong. (2011); Big Oil Bailout Prevention Trust Fund Act of 2011, S. 215, 112th Cong. (2011). also Katie Howell, Bingaman plans news spill response 27. See legislation, E&E PUBLISHING, Jan. 26, 2011, http://www.eenews. net/Greenwire/gulf_spill/2011/01/26/3 (“[I]t remains uncertain how much political will exists on Capitol Hill to pass legislation in response to the oil spill. President Obama last night in his State of the Union address made no mention of the BP PLC spill.”). generally Comment, Elizabeth R. Millard, Anatomy of an 28. See Oil Spill: The Exxon Valdez and the Oil Pollution Act of 1990, 18 SETON HALL LEGIS. J. 331, 347 (1993-1994). 29. Oil Pollution Act of 1990, H.R. 1465, 101st Cong. (1990) (as introduced, considered by committees, Mar. 16, 1989, through Sept. 11, 1989) (enacted). 30. Oil Pollution Act of 1990, H.R. 1465, 101st Cong. (1990) (as passed by House of Representatives, Nov. 9, 1989, and Aug. 4, 1990; as passed by Senate, Nov. 19, 1989, and Aug. 2, 1990) (enacted). 31. Jay M. Wallace, Statutory Regulations and Liabilities Applicable to Oil Transporters and Facilities Operators: How the Oil Pollution Act of 1990 Raised the Stakes, 21 ST. B. TEX. ENVT’L. L.J. 137, 138 (1991). 32. A Look at the 1990 Oil Pollution Act, NPR (June 15, 2010), http:// www.npr.org/templates/story/story.php?storyId=127862906&ft=1 &f=1014 (statements of Zygmunt Plater).

Defending Texans Since 1994 Former Assistant United States Attorney Former Assistant District Attorney Founding Member of the National College of DUI Defense of Counsel Williams Kherkher LLP Law Offices of Ned Barnett

Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017 Downtown Office: 440 Louisiana, Suite 800 • Houston, TX 77002

713-222-6767 • www.nedbarnettlaw.com

Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com

March/April 2011

15


Jurisdictional Wetlands and Mitigation Banking in Texas How the Water Looks Today

By Andrew L. Fono and Russ Krauss I. Introduction Today, there is continuing inconsistency among United States District and Appellate Courts over what constitutes a “jurisdictional wetland” subject to regulation under the Clean Water Act (“CWA”). This is primarily a result of the 2006 U. S. Supreme Court’s decision in Rapanos v. United States1 in which a closely divided Court, split 4-1-4, limited the federal government’s jurisdiction over wetlands under the CWA. Subsequently, the United States Environmental Protection Agency (“EPA”) has been taking steps in an effort to expand the definition of jurisdictional wetlands beyond the Rapanos decision. The Rapanos decision has also impacted the mitigation banking industry by creating some risks. For example, if fewer wetlands and streams are identified as “waters of the United States” conferring CWA jurisdiction, then fewer 404 Permits would be required, thus reducing the demand for mitigation credits to offset impacts to wetlands. But unlike the adverse effect Rapanos has had on the EPA’s and the U. S. Army Corps of Engineers’ (“Corps”) wetland regulatory and enforcement strategy, the mitigation banking industry has been able to benefit from a far more definitive federal regulation under the 2008 Compensatory Mitigation Rule.2 This article provides a brief summary of some recent updates on the jurisprudence regarding jurisdictional wetlands, as well as the current status of how the Corps’ Galveston and Fort Worth Districts are addressing the establishment of mitigation banking service areas. This article also provides a brief description of how Nation Wide Permits negate the requirement for mitigation credits. Because U. S. circuit courts continue to issue inconsistent rulings on jurisdictional wetlands under Rapanos, and EPA and the Corps are continually striving to expand their jurisdiction over wetlands by formalizing the jurisdictional review pro-


cess, this area of the law is always changing. Also, where Corps districts have traditionally been autonomous (to a degree) in their application of standards for mitigation banking, as well as their approach to determining jurisdiction over wetlands, there now appears to be some consistency and concurrence among at least the two Corps’ districts in Texas over mitigation banking services areas. II. Wetlands Before jurisdiction can be asserted or a mitigation credit can be approved, one should understand what constitutes a wetland and stream (irrespective of jurisdiction). What is a Wetland? Most people picture wetlands as water flooded plains swarming with migrant birds.3 However, the scientific definition of wetlands may include areas that rarely have significant levels of water on the surface and few forms of wildlife.4 The Corps’ Wetlands Delineation Manual defines wetlands as requiring: (1) the prevalence of plant species typically adapted to saturated soil conditions, determined in accordance with U.S. Fish and Wildlife Services’ National List of Plant Species that occur in wetlands; (2) hydric soil, meaning soil that is saturated, flooded, or ponded for sufficient time during the growing season to become anaerobic or lacking in oxygen, in the upper part; and (3) wetland hydrology, a term generally requiring continuous inundation or saturation to the surface during at least five percent of the growing season in most years.5 What is a Stream? There are three primary types of streams regulated under the CWA.6 The first type is a perennial stream, which contains flowing water year-round during any typical year. Perennial streams support a diverse aquatic community of organisms year round and are typically the streams that support major fisheries.”7 A second type of stream is an intermittent stream. An intermittent stream “has

flowing water during certain times of the year, when ground water provides water for stream flow. The biological community of intermittent streams is composed of species that are aquatic during a part of their life history or move to perennial water sources.”8 An intermittent stream is best characterized as a body of water that routinely has constant water flow for only part of the year. A third type of stream is an ephemeral stream. An ephemeral stream has flowing water only during and after precipitation events. Ephemeral streams typically support few aquatic organisms that typically have a very short life stage.”9 An ephemeral stream is best characterized as being dry for most of the year, except after heavy rains. Rapanos and Continued Uncertainty over Wetland Jurisdiction Since the Rapanos decision, there continues to be uncertainty over the definition of what constitutes a jurisdictional wetland regulated by the CWA.10 Both District and Appellate Courts have been inconsistent in their application of the Rapanos decision’s plurality test (“continuous surface connection” test), Justice Kennedy’s “significant nexus” test, a combination of both, or an application of either one. The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”11 To meet this objective, the CWA makes it unlawful to discharge any pollutants, including dredged or fill material, into navigable waters without first obtaining a permit.12 Navigable waters are defined under the CWA as “waters of the United States, including the territorial seas.”13 The Corps interprets the definition of “waters of the United States” very broadly to include not only traditional navigable waters,14 but also other defined waters,15 tributaries of such waters,16 and wetlands adjacent to such waters and tributaries. Adjacent wetlands include those “bordering, contiguous [to], or neighboring” waters of the United States even when they are “separated from [such] waters...

by manmade dikes... and the like.”18 Likewise, EPA defines “waters of the United States” to include, among many other things, streams (including intermittent streams), mudflats, sandflats, wetlands, and tributaries.19 Following Rapanos, the EPA and the Corps developed a series of memos and guidance materials, culminating into the 2008 Rapanos Guidance outlining their position on which bodies of water they would regulate under the CWA.20 Under this Guidance, the Corps will seek to assert jurisdiction over: (1) traditional navigable waters; (2) wetlands adjacent to traditional navigable waters; (3) non-navigable tributaries of traditional navigable waters that are relatively permanent where the tributaries typically flow year-round or have continuous flow at least seasonally; and (4) wetlands that directly abut such tributaries.21 The Corps will not assert jurisdiction over: (1) swales or erosion features (e.g., gullies, small washes characterized by low volume, infrequent or short duration flow); and (2) ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.22 Additionally, the Corps shall decide jurisdiction on a fact-specific, case-by-case basis to determine if there is a “significant nexus” to traditional navigable waters of: (1) non-navigable tributaries that are not relatively permanent; (2) wetlands adjacent to non-navigable tributaries that are not relatively permanent; and (3) wetlands adjacent to but that do not directly abut a relatively permanent non-navigable tributary.23 The general consensus is that the CWA covers any body of water that meets either the plurality’s test or Kennedy’s “significant nexus” test under Rapanos.24 But continued uncertainty exists as to thehoustonlawyer.com

March/April 2011

17


what actually constitutes “significant nexus” because it applies a much broader approach to determining jurisdiction than the plurality test. The 2008 Rapanos Guidance suggests the Corps analyze “significant nexus” by considering flow characteristics and functions of the tributary itself, as well as the functions performed by all wetlands adjacent to the tributary to determine if they significantly affect the chemical, physical and biological integrity of downstream traditional navigable waters, as well as a consideration of hydrologic and ecologic factors.25 However, several courts have applied a more rigorous standard. In Environmental Protection Information Center v. Pacific Lumber Co., the district court stated that proving “significant nexus” requires present evidence of a hydrologic connection and in some cases must show “some measure of significance of that connection for downstream water quality.”26 In Simsbury-Avon Preservation Society, LLC, et al v. Metacon Gun Club, Inc., the Second Circuit Court of Appeals stated that a “significant nexus” required proof that contamination is actually occurring to other bodies of water and not just a possibility that it will occur.27 And recently, the United States Court of Appeals for the Fourth Circuit in Precon Development v. Massachusetts,28 further limited the reach of the “significant nexus” test when it concluded that the Corps’ administrative record failed to contain sufficient information that would allow the court to find that the wetlands had a significant nexus to a downstream river (located miles away); and, therefore the Corps failed to adequately establish that the wetlands had a significant effect on the downstream river by preventing floods

through water retention or preventing contamination by trapping pollutants. Wetlands in the Fifth Circuit In the case of United States v. Lucas,29 the Fifth Circuit sidestepped the question of which Rapanos standard to apply by holding that jurisdiction was appropriate in this case under both Rapanos standards (e.g. plurality standard and significant nexus standard).30 In Lucas, the appellate court held that the prosecution presented sufficient evidence to find jurisdiction under the plurality test, in part based on their expert’s testimony that “there is a continuous band of wetlands and streams and creeks that lead from the site to the waters.”31 The second standard the Fifth Circuit examined, offered by the Rapanos concurrence, was to evaluate whether the wetlands have a “significant nexus” to navigable waters.32 The Lucas court held that the prosecution also presented sufficient evidence of “significant nexus” by showing the wetlands at the site controlled flooding in the area and prevented pollution from getting into downstream navigable waters.33 At least one district court in Texas issued an opinion defining “waters of the United States” narrowly in the wake of Lucas. In United States v. Chevron Pipe Line Company, the court held that dry arroyos do not qualify as waters of the United States because they are a connection of generally dry channels.34 The court further held that the unnamed channel and creek to which the oil migrated to were not “waters of the United States” within the definition of “navigable waters,” and that evidence that the farthest reach the “oil spill” could have an impact upon navigable waters was too speculative and inconclusive to show that the oil was ac-

“Until the Fifth

Circuit definitively addresses the

Rapanos tests, the issue will

remain somewhat ambiguous... ”

18

March/April 2011

thehoustonlawyer.com

tually discharged to the navigable water. Because the Fifth Circuit found that under the factual circumstances in Lucas, both tests under Rapanos could be applied, this left ample room for district courts in the Fifth Circuit to narrowly interpret “waters of the United States,” as the Southern District of Texas did in Chevron Pipe Line Company. Until the Fifth Circuit definitively addresses the Rapanos tests, the issue will remain somewhat ambiguous because district courts in Texas (and elsewhere) are able to apply either standard. The Clean Water Restoration Act As a result of the Rapanos uncertainty, and to prevent further restrictions on the CWA’s regulatory authority over “waters of the United States,” Senator Russ Feingold (D-Wis.) introduced a bill in April 2009 titled the “Clean Water Restoration Act” (“CWRA”).35 The Act’s purpose was to get around the Rapanos decision by greatly expanding the scope of the CWA.36 To do so, the proposed Act would overturn the Supreme Court’s holdings in Rapanos, and in an older case, Solid Waste Agency of Northern Cook County (“SWANCC”) v. United States Army Corps of Engineers,37 and restore the broad jurisdiction previously asserted by the EPA and the Corps.38 The Act proposed expanding the scope of the CWA to include, in addition to traditional jurisdictional waterways, the following geographical formations selected by the EPA or the Corps for federal jurisdiction: [I]ntrastate lakes rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie postholes, wet meadows, playa lakes, or natural ponds... all impoundments of waters of the United States... tributaries of the aforementioned waters... and wetlands adjacent to the aforementioned waters.39 In a separate provision, the Act also included “small intermittent streams, including ephemeral and seasonal streams.”40 The CWRA, however, never made it to Congress for a vote and because


the recent 2010 elections resulted in the defeats of Representative James Oberstar (D-Minn) and Senator Feingold, both sponsors and proponents of the CWRA, a similar attempt to amend the CWA in the near future is unlikely. The Proposed Clean Water Protection Guidance As the CWRA languished in Congress, the EPA and the Corps developed proposed Clean Water Protection Guidance (“CWPG”). On December 20, 2010, the EPA and the Corps sent a draft CWPG to the White House Office of Management and Budget (“OMB”) that would be another attempt to greatly broaden the scope of CWA jurisdiction over wetlands and expand the EPA and Corps’ regulatory reach. This draft CWPG departs from the previous 2008 Joint EPA Corps Guidance by relying more explicitly on Justice Kennedy’s “significant nexus” test for determining CWA jurisdiction under the Rapanos decision. OMB has had 90 days to review the draft CWPG, culminating

into a March 20, 2011 deadline for review. The EPA and the Corps will be providing an opportunity for public comment on the draft CWPG. Yet one of the biggest hurdles facing the release of this CWPG is the current movement to push for formal rulemaking. Formal rulemaking would implement the CWPG into a regulation having far greater impact and enforcement strength. But, similar to the fate of the CWRA, formal rulemaking also faces large opposition and may likely fail. III. Wetland Mitigation and Nationwide Permits Mitigation Credits Persons planning to develop land for residential, commercial or other uses must know what types of streams, wetlands and other water bodies they may impact. Therefore, a developer planning to impact a wetland or stream should contact the Corps for assistance in determining whether federal jurisdiction applies. If the Corps determines that the wetland or stream falls under the jurisdiction of the

CWA (e.g., meets the definition of “water of the United States”), the developer must apply for and obtain a CWA Section 404 permit from the Corps before impacting the water body.41 In order to obtain a Section 404 permit from the Corps, a developer must demonstrate that it attempted to avoid negative impacts to wetlands or streams.42 If avoidance is impossible, the developer must either restore degraded wetlands and streams or create new wetlands and streams.43 Alternatively, if restoration and creation is not feasible (due to land size and/or availability of adequate geology for such activities), a developer can offset its environmental impacts to wetlands or streams by purchasing compensatory mitigation credits from a mitigation bank. A mitigation credit is used to offset environmental losses created by developments on wetlands and streams. Such credits often take the form of wetland credits or stream credits. There are three types of compensatory mitigation available: (1) mitigation bank credits,

Ensure your family coverage is tailor-made... The State Bar of Texas Insurance Trust specializes in helping all Bar Members and their Eligible Employees obtain complete insurance coverage at any point in their lives. From Health Insurance to Long Term Disability Insurance, the Trust has you covered.

State Bar of Texas Insurance Trust

800.460.7248 www.sbotit.com

thehoustonlawyer.com

March/April 2011

19


(2) in-lieu fee mitigation programs, and (3) permittee-responsible mitigation.44 Mitigation banks exist for the purpose of banking and selling mitigation credits. Mitigation banks are sites where resources such as wetlands, streams or riparian areas are restored, established, enhanced or preserved.45 Over time (and based on defined mitigation bank performance criteria) the mitigation bank sponsor (typically a land owner or entrepreneur) is awarded a certain number of mitigation credits from the Corps which are banked until either sold or used. The amount of mitigation credits approved for use is based on physical, biological and chemical factors including total acreage restored, restoration type, quality of restoration, and overall environmental impact. These activities are detailed in the Final Rule on Compensatory Mitigation for Losses of Aquatic Resources—a joint Corps and EPA rule released April 10, 2008, and currently implemented across the 38 Corps districts (the “Final Rule”).46 When a de-

veloper needs replacement wetlands or streams, they can buy mitigation credits from a mitigation bank as opposed to developing wetlands or streams themselves. In fact, the Final Rule sets a preference for purchasing mitigation credits from an approved mitigation bank (not a bank pending approval) as the preferred form of compensatory mitigation versus in-lieu fee programs and permittee-responsible mitigation47 (historically the most common types of mitigation). Service Areas Are Now Consistent Among the Fort Worth and Galveston Corps Districts The Final Rule defines service areas as the geographic areas within which developer impacts can be mitigated from a specific mitigation bank.48 These service areas are divided into “primary” and “secondary” geographic service areas. These geographic areas are defined using a “watershed approach.”49 Watersheds are established using the United States Geological Survey (“USGS”) Hydrologic

Unit Code (“HUC”) classification.50 Each Corps district may interpret the watershed approach differently and allocate HUCs accordingly, even on a project-byproject or bank-by-bank basis. In Texas, where the Fort Worth and Galveston Corps districts make up the primary offices authorizing CWA Section 404 permits, an 8-digit HUC is utilized as the primary service area boundary.51 With such a large aerial extent, Texas also uses another land use descriptor called an Ecoregion.52 Ecoregions are identified by their respective vegetation, soils and supported species. Currently, within the Fort Worth and Galveston districts, the primary service area is defined as the entire 8-digit HUC within which the mitigation bank is located (regardless of Ecoregion).53 Where most districts would differ, in Texas this is an area where the Fort Worth and Galveston districts are currently consistent. The secondary service area is defined as any 8-digit HUC (or portion thereof) adjacent to the primary service area, and located within the same Ecoregion as the mitigation bank.54 Studies of Service Areas across the country indicate wide-ranging variability of definitions of watersheds and these definitions are being adapted over time as the Final Rule is implemented by each Corps district.55 While mitigation banks have been used as compensatory mitigation nationwide for more than 30 years, the Final Rule has formalized bank approval and operations, and placed a priority on the use of commercial mitigation banks as the “preferred” alternative to meet the needs for compensatory mitigation. With commercial mitigation credit inventories available, developers are guided to mitigation banks by Corps’ permit writers and project managers reviewing and approving Section 404 permits. Nationwide Permits On some occasions, development activities that impact federally protected wetlands, streams, or other waterways may not require mitigation credits. There

20

March/April 2011

thehoustonlawyer.com


are some circumstances when the type of development activity has already been determined by regulators as sufficient to meet—what the Corps’ Chief of Engineers issues—a “General” or Nationwide Permit (“NWP”). NWPs allow certain development activities having minimal impacts on jurisdictional wetlands to proceed without having to obtain a Section 404 permit.56 These NWPs are issued based on the type of development activity being engaged. Land developers should always request confirmation from a Corps District Engineer (“DE”) at the appropriate Corps district office that a proposed activity complies with the terms and conditions of a NWP to avoid liability.57 General permits are often applicable to common, small scale fill activities which have been determined by the Corps to result in minimal impacts to regulated areas. If an activity meets the criteria and special conditions of a general permit, then the activity can be authorized by the Corps in a relatively short period

of time, typically 30 to 45 days. If an activity does not meet the criteria of a general permit, then an individual permit is necessary which can require four months or more to complete and approve. The Corps has broad discretion to require an individual permit even if an activity meets the requirements of a general permit. Regional permits are issued by individual Corps districts and are usually activity specific or address unique conditions within a geographic area, whereas NWPs are for specific activities and are utilized throughout the nation. There are currently 50 NWPs, of which a few are of interest to oil and gas operations. NWPs relevant to the oil and gas industry include NWP-6 (survey activities), NWP-8 (oil and gas structures in the OCS), NWP12 (utility line activities), NWP-14 (linear projects), NWP-21 (oil spill cleanup), and NWP-47 (pipeline safety programs).58 Many Corps districts that service regions with extensive oil and gas activities have one or more Regional General Permits (“RGP”) that specifically address

oil and gas industry related operations. Such is the case for the Fort Worth district under RGP-11.59 Most recently, with the ongoing development of the Haynesville Shale gas development area in the counties of northeast Texas, RGP-11 has been utilized often with mitigation credits from wetland mitigation banks serving to fulfill the need for compensatory mitigation. VI. Conclusion With the definition of jurisdictional wetlands remaining a stable uncertainty, there will continue to be significant deviations among the federal circuits over what constitutes “waters of the United States.” And with such a broad interpretation of jurisdictional wetlands, while the EPA strives to increase its enforcement activities, more permitting is likely to occur giving rise to more demand for compensatory mitigation credits. Although there are distinctions between the Corps districts throughout the United States, with many districts implementing differ-

Trust

your transactions to the only merchant account recommended by over 60 bar associations!

Get Paid Increase Business Control Cash Flow Reduce Collections Lower Fees up to 25%

LawPay.com credit card pro cessing

866.376.0950

Affiniscape Merchant Solutions is a registered ISO/MSP of Harris, N.A., Chicago, IL

thehoustonlawyer.com

March/April 2011

21


ent definitions for establishing HUCs, we are fortunate in Texas to have two Corps districts that have come together on a consistent position regarding how they establish and apply the primary and secondary service areas. The Fort Worth and Galveston Corps districts have greatly reduced the confusion surrounding service area definitions by implementing a consistent approach, making property developments less complex, less time consuming, and less costly for developers and mitigation providers alike. Andrew Fono is a shareholder in the Energy and Environmental Practice Group at Winsted PC. Andrew has more than 17 years experience concentrating his environmental practice on transactional, compliance, and litigation involving contaminated properties, wetlands, and various land use matters. Russ Krauss is VP, Business Development with Resource Environmental Solutions, L.L.C., a leading mitigation banking and ecological solutions company. Russ received

a BA in geology from Boston University and an MBA from the University of Houston. Endnotes

547 U.S. 715 (2006). 40 C.F.R. Part 230 Compensatory Mitigation for Losses of Aquatic Resources. 3. See Leonard Shabamn and Paul Scodari, Past, Present, and Future of Wetlands Credit Sales, RESOURCES FOR THE FUTURE (2004). 4. Id. 5. See Wetlands Research Program Technical Report Y-87-1 (online edition), pp. 12-34 (Jan. 1987), http://www.wetlands.com/pdf/ wdm0225e.pdf. 6. See Stream Mitigation Guidelines (online edition) pp. 6-11 (Apr. 2003), http://www.saw.usace.army.mil/wetlands/ Mitigation/Documents/Stream/STREAM%20MITIGATION%20 GUIDELINE%20TEXT.pdf. 7. Id. at 6. 8. Id. at 6-7. 9. Id. at 7. 10. See, Federal Water Pollution Control Act, 33 U.S.C. ยง 1251, et seq. 11. 33 U.S.C. ยง1251(a). 12. 33 U.S.C. ยงยง1311(a), 1342(a). 13. 33 U.S.C. ยง 1362(7). 14. 33 C.F.R. ยง 328.3(a)(1). 15. 33 C.F.R. ยง 328.3(a)(2), (3). 16. 33 C.F.R. ยง 328.3(a)(5). 17. 33 C.F.R. ยง 328.3(a)(7). 18. 33 C.F.R. ยง 328.3(c). 19. 40 C.F.R. ยง 230.3(s). 20. See ENVIRONMENTAL PROTECTION AGENCY: CLEAN WATER ACT JURISDICTION FOLLOWING THE U.S. SUPREME COURTโ€™S DECISION IN RAPANOS V. UNITED STATES & CARABELL V. UNITED STATES (2008). 21. Id. 22. Id. 23. Id. 24. See Joshua A. Bloom, Whatโ€™s Next After Rapanos?, 22 NAT. RESOURCES & ENVโ€™T 13, 13-14 (2007). 25. ENVIRONMENTAL PROTECTION AGENCY: CLEAN WATER ACT JURISDICTION FOLLOWING THE U.S. SUPREME 1. 2.

COURTโ€™S DECISION IN RAPANOS V. UNITED STATES & CARABELL V. UNITED STATES (2008). 26. 2007 U.S. Dist. LEXIS 3715 (N.D. Cal. Jan. 8, 2007). 27. 575 F.3d 199 (2d Cir. 2009). 28. 2011 WL 213052 (4th Cir. 2011). 29. United States v. Lucas, 516 F.3d 316 (5th Cir. 2008). 30. Lucas, 516 F.3d at 329 (for purposes of this article, we are not evaluating the Dissentโ€™s standard). 31. Id. at 327. 32. Id. 33. Id. at 327. 34. Id. 35. S. 787, 111th Cong. ยง 1 (2009). 36. The Proposed Act would expand federal jurisdiction to the โ€œmaximum extent of the legislative power of Congress under the Constitution.โ€ Id., ยง 2(3). 37. 531 U.S. 159 (2001). 38. S. 787, 111th Cong. ยง 3(8), (10). 39. S. 787, 111th Cong. ยง 3(8). 40. Id. at ยง 3(18). 41. 73 Fed. Reg. 19596 (Apr. 10, 2008). 42. Id. 43. Id. 44. 40 C.F.R. Part 230. 45. 33 C.F.R. ยง332.2. 46. 33 CFR ยงยง 325 and 332. 47. 33 CFR ยง332.3(b)(1). 48. 40 C.F.R. ยง 230.92. 49. 33 C.F.R. ยง332.2. 50. http://water.usgs.gov/GIS/huc.html (Dec. 15, 2009). 51. http://www.swf.usace.army.mil/pubdata/environ/regulatory/public/ pn/2010_11/PN/SWF_MitigaitonBanks.pdf. 52. Omernik, James M., Ecoregions of the Coterminous United States, 77 Annals Association of American Geographers (1987). 53. Personal interviews with Corps Galveston and Ft. Wt. Districts, Regulatory Department, March 8, 2011. 54. Id. 55. โ€œSetting Geographic Service Areas for Compensatory Mitigation Banking,โ€ National Wetlands Newsletter, September-October 2010. 56. 33 C.F.R. ยง 300.1(b). 57. 33 C.F.R. ยง 330.6. 58. http://www.spn.usace.army.mil/regulatory/nwp.html. 59. See, CESWF-08-RGP-11 (2008).

Hot New Legal Thriller from Houston Lawyer Larry D. Thompson h!SREALASAHEARTATTACKANDEVERYBITASSUSPENSEFULv *OHN,ESCROART .EW9ORK4IMES"EST3ELLING!UTHOR h0LENTYOFSIZZLEANDCLOUTFROMAPLOTTHATUNWINDSSIMILARTO SPEEDINGDOWNASLALOMCOURSEv 3TEVE"ERRY .EW9ORK4IMES"EST3ELLING!UTHOR h)COULDNgTPUT4HE4RIALDOWN)TgSARIVETINGCOURTROOMTHRILLER ANDTHE TENSIONJUSTKEEPSBUILDING7ONDERFULv ,OUISE0ENNY.EW9ORK4IMES"EST3ELLING!UTHOR

The Trial: What you donโ€™t know about the big drug companies can kill you! Showcased at the 2011 Sundance Film Festival Featured as an Alternate Selection by:

โ€ขLiterary Guild Book Club โ€ขMystery Writers Book Club โ€ขDoubleday Book Clubโ€ขDoubleday Large Print Book Club

"WBJMBCMF/08FWFSZXIFSF CPPLTBOEFCPPLTBSFTPME

www.LarryDThompson.com

22

March/April 2011

thehoustonlawyer.com


FROM THE EDITOR...

page 8

simple. After one year, the legal fallout related to the oil spill is not the dominating issue it was last year. The environmental damage to sensitive habitat and wildlife was less than expected given the volume of oil released. The oil spill response fund has already paid out about $3.5 billion to claimants and Mr. Feinberg estimates that only about $6 billion of the fund will be spent, including government and cleanup claims, allowing BP to reclaim the remainder once all the settlements are paid out by August 2013. Finally, despite last year’s saber-rattling, Congress did not substantially amend the pollution laws to remove liability caps. Perhaps more importantly, other environmental issues, such as hydraulic fracturing, are becoming increasingly important in Texas and elsewhere. Thus, this issue has a smorgasbord of articles put together by our special guest editor, Maidie Ryan. This issue features three articles touching on three different environmental-related issues of current importance and interest. The first article by Andrew Torrant, “The Oil Pollution Act of 1990: A Year in the Spotlight,” discusses OPA, what it does, to whom it applies, what it allows, and Congressional efforts to change the law. The second is an article by Andrew Fono and Russ Krauss, “Jurisdictional Wetlands and Mitigation Banking In Texas: How The Water Looks Today,” that looks at the inconsistent way courts have been interpreting the U.S. Supreme Court decision in Rapanos v. United States. The decision limited the government’s jurisdiction over wetlands and current efforts by some in Congress and EPA to re-expand the scope of the Clean Water Act over wetlands, as well as how the Fort Worth and Galveston Corps Districts are working together to implement a consistent approach to defining their jurisdiction, making property developments less complex, consuming, and costly for developers in Texas. The final article by Terry W. Roberson is “The State of Texas versus the EPA Regulation of Hydraulic Fracturing.” This article discusses efforts to produce shale gas from

hydrocarbon using horizontal drilling and hydraulic fracturing. It explains what shale gas is, where it is found, the regulation of hydraulic fracturing by the federal government and Texas, and recent EPA complaints against producers. In addition to these issues, the U.S. Supreme Court hears oral argument in the AEP v. Connecticut climate change case and will decide this summer whether courts can use the common law tort of public nuisance to judicially regulate emissions of greenhouse

gases into the atmosphere. As always, I hope you enjoy this issue of The Houston Lawyer. We appreciate your comments, critical or otherwise, so please do not hesitate to share your thoughts on our publication. Likewise, please take a few moments to look at the advertisers in your copy of this magazine, give them a call, and then use their products and services when possible. Without their continued support this magazine would not be possible.

the economy may be

uncertain.

your staffing doesn’t have to be.

THAT’S WHAT WE DO, EVERY DAY.® It’s tricky. You want to be ready without being overstaffed. Special Counsel can make sure you have the people you need in uncertain economic times. Our temporary staffing solutions offer flexibility without the liability of increased headcount. So you can stay lean, but ready when things ramp up. Temporary, temporary-to-hire, and direct-hire, we meet your needs no matter what. Call us today.

713.439.0911 800.737.3436 specialcounsel.com

©2011 Special Counsel, Inc. All rights reserved.

thehoustonlawyer.com

March/April 2011

23


By Terry W. Roberson

The State of N Texas versus the EPA Regulation of Hydraulic Fracturing

atural gas production from hydrocarbon rich shale formations is the leading trend in onshore exploration and production. Due to the advances in horizontal drilling and hydraulic fracturing, shale gas is now economically feasible. In the last 60 years, more than 1 million wells have been hydraulically fractured.1 The industry is now facing the burden of proof that hydraulic fracturing does not contaminate surface or underground water. Meanwhile, environmental groups continue looking for one example that hydraulic fracturing contaminates drinking water sources.

What is Shale Gas? Shale gas is natural gas produced from shale formations that usually act as the reservoir and source.2 Shale gas is normally a dry gas composed of at least 90 percent methane.3 Shale is fine-grained sedimentary rock that forms upon compaction of silt and clay-sized mineral particles called “mud.�4 The very fine clay mineral grains and layers of sediment cause the rock to have limited horizontal permeability and extremely limited vertical permeability.5 Shale gas’ low permeability causes it to be classified as an unconventional natural gas reservoir. Shale Gas in Texas Shale gas exists across most of the U.S. The Barnett Shale is the most prominent shale in the U.S. and covers around 5,000 square miles surrounding Fort Worth, Texas.6 The Mississippian-aged shale is 6,500 to 8,500 feet deep and its thickness ranges from 100 to 600 feet.7 The depth to the base of treatable water is roughly 1,200 feet.8 The well spacing is between 60 to 160 acres per well.9 Its original gas-in-place is 327 tcf, which is the entire volume of gas contained in the reservoir regardless of the ability to produce it.10

24

March/April 2011

thehoustonlawyer.com


History of Shale Gas/ History of Hydraulic Fracturing Natural gas production from shale formations has been continuous since the earliest gas developments. In 1821, the first producing gas well was in Fredonia, New York.11 Hydraulic fracturing was first used in 1903, but its first commercial stimulation was in 1949.12 However, it was not until the 1980s when the technology of hydraulic fracturing and horizontal drilling and the cost of producing shale gas became efficient. In 1981, George Mitchell began an 18 year long persistent experimentation on how to extract commercial amounts of natural gas from the Barnett Shale.13 Similarly, the first horizontal well in the Barnett Shale was drilled in 1992.14 This technology increased Texas natural gas production by 15 percent and U.S. production by nine percent between 2007 and 2008.15 History of Federal Regulation of Hydraulic Fracturing The Safe Drinking Water Act (“SDWA”) protects the quality of U.S. drinking water and its sources.16 The SDWA’s Underground Injection Control (“UIC”) program regulates wells that inject fluids underground for storage or disposal. For the past three decades, the EPA did not regulate hydraulic fracturing under the UIC program. The SDWA enables states to request that the EPA allow its state regulatory agency to have primary responsibility over UIC permits. In 1994, Leaf Environmental Assistance Foundation (“LEAF”) petitioned the EPA to withdraw its approval of Alabama’s UIC program. In 1995, the EPA denied the petition upon determining hydraulic fracturing did not fall within the SDWA’s definition of “underground injection.” Upon LEAF’s petition for review of the EPA’s order, the Eleventh Circuit ruled that hydraulic fracturing activities constitute “underground injection” and hydraulic fracturing of coalbed methane gas is under the SDWA’s jurisdiction.17

In 1999, Alabama revised its UIC program to include regulation of hydraulic fracturing of coalbeds. In January 2000, the EPA approved Alabama’s revised regulations. LEAF filed a second petition for review, in which Alabama intervened in the case. In December 2001, the Eleventh Circuit held Alabama’s revised UIC program complies with Section 1425 of the SDWA.18 However, the Eleventh Circuit did remand to the EPA for determination of whether Alabama’s UIC revised program complies with Class II well requirements. In July 2004, the EPA issued its final determination that Alabama complied with Class II well requirements. The ruling was supported by the EPA’s June 2004 study that found the injection of hydraulic fracturing fluids into coalbed methane gas wells poses little threat to drinking water.19 In response to the LEAF ruling, Congress passed the Energy Policy Act of 2005 that amended the SWDA’s definition of “underground injection” to exclude “the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”20 The State of Texas Regulation of Hydraulic Fracturing There is no formal regulation for hydraulic fracturing in Texas.21 The Railroad Commission of Texas (“RRC”) regulates natural gas exploration and production and has jurisdiction over all natural gas wells. The Texas Commission on Environmental Quality (“TCEQ”) protects the state’s natural resources. The RRC and the TCEQ entered into a memorandum of understanding that details the division in jurisdiction.22 The RRC requires permits for drilling or deepening a natural gas well.23 Additionally, it regulates casing and cementing as a preventative measure against contamination of ground and surface water.24 The RRC is confident that these requirements are adequate to protect

Texas’ ground water from hydraulic fracturing fluids. The RRC requires a permit for the storage, transfer, and disposal of any natural gas waste, which should include hydraulic fracturing fluids.25 Section 3.46 of the Texas Administrative Code is specifically intended to regulate fluid injection into production reservoirs. It states a permit is required for “fluid injection operations in reservoirs productive of oil, gas, or geothermal resources.”26 However, in reality, the RRC does not require a special fluid injection permit for hydraulic fracturing. The RCC may be required to issue these permits if federal regulations are amended to include hydraulic fracturing in the Class II underground injection well definition. U.S. Congressional Legislation The 111th Congress was unsuccessful in passing environmental regulation legislation. On June 9, 2009, stand-alone bills in both the U.S. House of Representatives and U.S. Senate, H.R. 2766 and S.1215, respectively, for the Fracturing Responsibility and Awareness of Chemicals Act were introduced. The bills would have required the EPA to regulate hydraulic fracturing under the SDWA’s UIC program and required companies to disclose the chemical constituents of its hydraulic fracturing fluid. The bills never left their committees; however, they did inspire a new EPA study on potential impacts of hydraulic fracturing on drinking water and groundwater. In June 2010, the EPA submitted its proposed study plan on hydraulic fracturing for public comment.27 The EPA expects initial research results by the end of 2012 and a report in 2014. The issue with diesel fuel in hydraulic fracturing fluid began in January 2010 when the Environmental Working Group issued a report that found state agencies were confused over the diesel exemption.28 On February 18, 2010, the U.S. House Subcommittee on Energy and Environment announced they were sending letters to eight companies rethehoustonlawyer.com

March/April 2011

25


garding the chemicals used in hydraulic fracturing, after two companies admitted using diesel.29 On August 5, 2010, 25 environmental organizations sent letters to the EPA and U.S. House Committee on Energy and Commerce and Subcommittee on Energy and Environment asking them to regulate the use of diesel in hydraulic fracturing.30 In response, the U.S. House of Representatives included an EPA study to better understand any potential impacts of hydraulic fracturing on drinking water and groundwater in its fiscal year 2010 budget report. The November 2010 elections gave Republicans control of the House. Before closing session, the U.S. House Energy and Commerce Committee Democratic congressional investigation issued a report and shared their findings in a letter to the EPA.31 The Congressmen contend that 12 companies injected 32.3 million gallons of diesel or fluids containing diesel into wells in 19 states from 2005 through 2009 in violation of the SDWA. Under the 2005 Energy Policy Act, companies using diesel fuel in hydraulic fracturing must get a permit to be in compliance with the SDWA. The industry does not dispute the EPA’s authority to regulate diesel fuel in hydraulic fracturing under the SDWA. However, the industry says there are currently no requirements in the federal regulations that require a company to obtain a federal permit prior to using diesel during a hydraulic fracturing project. Who Bears the Burden of Proof? The State of Texas and the EPA continue to disagree on the level of regulation in 26

March/April 2011

thehoustonlawyer.com

Texas. The disagreement began last year when Texas sued the EPA over federal regulation of GHGs under the Clean Air Act. This year began with another states’ rights debate on the EPA’s unprecedented federal regulation of hydraulic fracturing under the SWDA. The EPA accuses Range Resources Corporation and Range Production Company (“Range”) of contaminating two private fresh water wells in southern Parker County, west of Fort Worth. On August 6, 2010, a landowner filed a complaint with the RRC.32 Field inspection noted gas odor. The RRC only found two active gas wells within a half mile radius of the water wells, which

Range completed hydraulic fracturing operations in 2009 at a depth of 5,800 feet. The EPA should determine if the water wells’ contamination was due to the drilling operations of Range. However, the burden of proof lies on Range to prove its own innocence. The water wells’ location raises several issues regarding water contamination. First, they are located in the Cretaceous aquifer that is approximately 140 feet from the surface. Immediately below is the Strawn formation that produces natural gas and nitrogen. Surrounding areas have an impermeable seal between

the formations that prevent natural gas from migrating in the Cretaceous. However, these water wells lack an impermeable seal so natural gas from the Strawn formation has migrated into the Cretaceous over geological time. The second issue relates to previous drilling practices in this area of the Cretaceous. It is well known that a few landowners drilled their water wells too deep, which pierced the impermeable seal and contaminated their own wells. Shallow gas wells were drilled decades ago before modern casing and cementing practices were implemented by the industry and the RRC, which also likely contaminated water wells. The EPA admits it did not know these factors before issuing the ruling. Range was presumed guilty. On December 7, 2010, the EPA issued an Emergency Administrative Order under Section 1431 of the SWDA. The emergency order found Range “caused or contributed to” contamination of the water wells and required Range to conduct a full scale investigation. The following day, the RRC set a hearing on the emergency order for January 10, 2011. Meanwhile, Range provided the landowners with drinkable water, installed methane monitors in both homes, and conducted appropriate tests. Range’s results were provided to the EPA by Range; however, the EPA did not reciprocate by sharing its results. On December 17, 2010, Range obtained subpoenas from the RRC for the deposition of EPA employees. The employees did not appear. On December 28, 2010, Range filed a motion to compel the depositions. On December 30, 2010, the administrative proceeding was removed to the U.S. District Court for the Northern District of Texas. On January 3, 2011, the EPA filed a motion to transfer venue


to the Western District of Texas. Range is unable to defend itself without reviewing evidence the EPA relied upon in issuing its December 7 emergency order. On January 5, 2011, Range filed a complaint against the EPA in the Western District of Texas. The complaint seeks judicial review of the EPA’s decision to boycott the deposition and to produce substantive documents. In response, the EPA filed a complaint against Range in the Northern District of Texas on January 18, 2011. The EPA’s complaint seeks injunctive relief to require Range to comply with the emergency order and pay a civil penalty. On January 19, 2011, the Western District of Texas ruled that Range could depose the EPA. Range was able to present its evidence to the RRC in the administrative hearing on January 19-20, 2011. The EPA as the claimant was not in attendance. Range introduced a photograph of a nearby water well drilled in 2005 that was flaring natural gas and water flowing without a pump. A geochemical gas fingerprinting expert noted natural gas found in the water wells contain nitrogen levels that are comparable to the Strawn formation and twice that of the Barnett Shale levels. Similarly, the data presented shows natural gas was present in nearby water wells before Range drilled its first well in 2009. Finally, a petroleum engineer testified that the pressure tests show the production casing in both wells have mechanical integrity to prevent Barnett Shale gas from migrating behind the pipe. The EPA reviewed this data, but refused to produce the technical data behind its initial allegations. Range deposed an EPA official, John Blevins, on January 25, 2010. The statements made during the deposition raise questions about the EPA’s intent in filing its emergency motion. Mr. Blevins said the EPA has the legal authority to ask a company suspected of violating the SWDA to “do the work” of proving there is no link between the drilling operation and water well contamination.

Even though, the EPA knew that natural gas was in water wells in the immediate area, the EPA did not perform a geologic investigation on the Strawn formation near the water wells. Finally, the EPA admitted that Range may not have caused or contributed to the natural gas water wells. The RRC hearing examiners issued their Proposal for Decision on March 7, 2011.33 The Proposal for Decision is not a final order, though the Commission will

consider the issuance of a final order at its conference on March 22, 2011. The examiners recommend a final order be issued which finds Range has not contributed and is not contributing to contamination of any water wells. Conclusion The fact that the RRC completed a thorough investigation and allowed all parties to present evidence, rather than immediately accusing Range like the EPA

When you begin a relationship with Woodway, you are joining Houston's premier wealth management team. Together you build a customized plan to achieve your financial goals. Woodway is with you every step of the way, with experienced, objective guidance in planning your customized financial strategies, preserving your wealth and bringing your goals to fruition. Generations of families have entrusted their financial futures to this Houstonbased trust company with more than 25 years experience practicing sound investment strategies, improving worth and creating lasting value.

• Investment Management • Financial Planning • Trust and Estate Services

Learn more at www.woodwayfinancial.com or call 713-683-7070.

10000 Memorial Drive, Suite 650 Houston, Texas 77024 E-mail: inquire@woodwayfinancial.com thehoustonlawyer.com

March/April 2011

27


did, proves states are in a better position to regulate environmental concerns. The RRC knew of the Strawn formation, knew that other water wells in the same area contain natural gas, and knew the area’s drilling history. The upcoming EPA study on drinking water contamination due to hydraulic fracturing will be finalized in 2014. Until then, the industry must continue to find technological advances to protect our water sources. The industry must also perform simple preemptive measures, such as testing the ground water for natural gas prior to drilling, which may help to prevent similar situations as between Range and the EPA. Terry W. Roberson is an associate at The Kilburn Law Firm, PLLC, an oil and gas law firm based in Houston, Texas. He holds an LL.M. degree in International and Comparative Law from The George Washington University Law School and a J.D. from South Texas College of Law. He may be reached at wroberson@law.gwu.edu.


fizer beck

Endnotes See Bloomberg, Exxon, Chevron Face Pressure on Fracturing Disclosure, Jan. 20, 2011, available at http:/www.bloomberg.com/ news/print/2001-01-20/exxon-chevron-southwestern-facingpressure-on-fracturing.html (last visited Mar. 8, 2011). 2. See U.S. Dept. of Energy, Modern Shale Gas Development in the United States: A Primer, April 2009, available at http://fossil. energy.gov/programs/oilgas/publications/naturalgas_general/ Shale_Gas_Primer_2009.pdf (last visited Mar. 8, 2011). 3. See A Primer, supra note 2 at 14. 4. See Geology.com, Shale, available at http://geology.com/rocks/ shale.shtml (last visited Mar. 8, 2011). 5. SeeA Primer, supra note 2 at 14. 6. See id. at 18. 7. See id. 8. See id. at 17. 9. See id. at 18. 10. See id. at 16, 18. 11. See id. at 13. 12. See Energy in Depth, History of Hydraulic Fracturing, available at http://www.energyindepth.org/in-depth/frac-in-depth/historyof-hf/ (last visited Mar. 8, 2011). 13. See Geology.com, The Farther of the Barnett Natural Gas Field George Mitchell, available at http://geology.com/research/barnettshale-father.shtml (last visited Mar. 8, 2011). 14. See A Primer, supra note 2 at 13. 15. See American Petroleum Institute, Natural Gas Supply and Demand, available at http://www.api.org/aboutoilgas/natgas/ supply_demand.cfm (last visited Mar. 8, 2011). 16. 42 U.S.C. § 300f et seq. (1974). 17. See Legal Envtl. Assistance Found. v. EPA, 118 F.3d 1467 (11th Cir. 1997). 18. See Legal Envtl. Assistance Found. v. EPA, 276 F.3d 1253 (11th Cir. 2001). 19. See EPA, Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs Study (2004), available at http://water.epa.gov/ type/groundwater/uic/class2/hydraulicfracturing/wells_ coalbedmethanestudy.cfm (last visited Mar. 8, 2011). 20. See Pub. L. 109-58, 119 Stat. at 694, § 322 (amending SDWA 1.

section 1421(d)(1), 42 U.S.C. § 300h(d)(1)). 21. See Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d

1, 17 (Tex. 2008) (stating hydraulic fracturing has occurred in Texas for over 60 years though the Legislature nor the RRC has ever seen fit to regulate it). 22. 16 TEX. ADMIN. CODE § 3.30 (RRC), 30 TEX. ADMIN. CODE § 7.117 (TCEQ), available at http://info.sos.state.tx.us/pls/ pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_ tloc=&p_ploc=&pg=1&p_tac=&ti=16&pt=1&ch=3&rl=30 (last visited Mar. 8, 2011). 23. See TEX. ADMIN. CODE at § 3.5 (2009). 24. Id. at § 3.13. 25. Id. at § 3.8. 26. Id. at § 3.46. 27. See EPA, Hydraulic Fracturing Research Study, available at http:// www.epa.gov/safewater/uic/pdfs/hfresearchstudyfs.pdf (last visited Mar. 8, 2011). 28. Environmental Working Group, Drilling Around the Law, available at http://www.ewg.org/files/EWG2009drillingaroundthelaw.pdf (last visited Mar. 8, 2011). 29. Committee on Energy and Commerce, Memorandum, Feb. 18, 2010, available at http://www.bfenvironmental.com/pdfs/ hydraulic_fracturing_memo.pdf (last visited Mar. 8, 2011). 30. See A copy of the letter sent to the U.S. House Committee on Energy and Commerce and Subcommittee on Energy and Environment, available at http://ewg.org.s3.amazonaws.com/ letters/8-5-10/DieselLetterHouseE&C8.5.2010.pdf (last visited Mar. 8, 2011). 31. See Committee on Energy & Commerce Democrats, Waxman, Markey, and DeGette Investigation Finds Continued Use of Diesel in Hydraulic Fracturing, Jan. 31, 2011, available at http:// democrats.energycommerce.house.gov/index.php?q=news/ waxman-markey-and-degette-investigation-finds-continued-useof-diesel-in-hydraulic-fracturing-f (last visited Mar. 8, 2011). 32. See Railroad Commission of Texas, News Release, Dec. 7, 2010, available at http://www.rrc.state.tx.us/pressrelease/2010/120810. php (last visited Mar. 8, 2011). 33. See Railroad Commission of Texas, Oil and Gas Docket No. 7B-0268629, Examiners’ Report and Proposal for Decision, Mar. 7, 2011, available at http://www.rrc.state.tx.us/meetings/ogpfd/ RangePFD.PDF (last visited Mar. 8, 2011).

FIZER BECK WEBSTER BENTLEY & SCROGGINS

a professional corporation IS PLEASED TO ANNOUNCE

AMANDA M. GYESZLY ON BEING NAMED SHAREHOLDER IN THE FIRM (January 2010)

SHANE W. HUDSON ON BEING NAMED SHAREHOLDER IN THE FIRM (January 2011)

JEFFREY T. McCLEAN and MICHAEL W. McGEE, JR. HAVE RECENTLY JOINED THE FIRM AS ASSOCIATES

1330 Post Oak Boulevard, Suite 2900 • Houston, Texas 77056 Telephone: (713) 840-7710 • Fax: (713) 963-8469 www.fizerbeck.com

28

March/April 2011

thehoustonlawyer.com


Houston Bar Foundation Recognizes Outstanding Efforts by Volunteers T he Houston Bar Foundation marked its 28th year of service with an Annual Meeting and Luncheon held February 8 at The Houston Club. The luncheon not only commemorated the installation of new officers, but also recognized the contributions of volunteers who provide pro bono legal representation and other services to the community. The keynote speaker was Charles W. Matthews, vice president and general counsel of Exxon Mobil Corporation from 1995-2010, who spoke on the importance of pro bono service. William C. (Bill) Lowrey, vice president, general counsel and corporate secretary of Shell Oil Company, took office as the 2011 chair of the Houston Bar Foundation, succeeding Rocky Robinson of Andrews Kurth LLP. Other new officers are John Eddie Williams, Jr. of Williams Kherkher Hart Boundas LLP, vice chair, and Daniel D. Herink of Insperity, Inc., treasurer. New directors for 2011-2013 are Glenn A. Ballard, Jr. of Bracewell & Giuliani LLP; Craig Glidden of LyondellBasell Industries; and Greg Ulmer of Baker Hostetler LLP. Completing terms as directors for 2010-2012 are Melanie Gray of Weil, Gotshal & Manges LLP; Robert J. McAughan of Locke Lord Bissell & Liddell LLP ; and Thomas M. Roche of ExxonMobil Corporation. Robinson presented the Foundation’s annual awards for pro bono service through the Houston Volunteer 30

March/April 2011

thehoustonlawyer.com

Lawyers Program (HVLP), volunteer mediation services through the Dispute Resolution Center (DRC), and legal writing in The Houston Lawyer, the HBA’s professional journal. Presentation of James B. Sales ProBono Leadership Award Robinson also presented the second annual James B. Sales ProBono Leadership Award to the Honorable Harriet O’Neill, whose judicial career began in 1992, when she was elected to the 152nd District Court in Houston. In 1995, she was appointed to the 14th Court of Appeals and won election to that seat in 1996. In 1998 she was elected to the Supreme Court of Texas and reelected to a second term in 2004. Justice O’Neill retired from the Texas Supreme Court on June 20, 2010 and founded the Law Office of Harriet O’Neill, P.C. in Austin. She was a founding member of the Texas Access to Justice Commission and served as the Supreme Court’s liaison, working tirelessly to encourage lawyers to provide direct legal services to those who could not afford them. Justice O’Neill also spearheaded the Texas Supreme Court’s Permanent Judicial Commission for Children, Youth and Families to enhance resources for children who are placed under court supervision because of abuse or neglect. The program has become a national model for its effective collaboration and innovation.


The Honorable Harriet O’Neill accepts the second annual James B. Sales ProBono Leadership Award from Rocky Robinson

Keynote speaker Charles Matthews

William C. (Bill) Lowrey became the 2011 Chair of the Houston Bar Foundation.

Layne Kruse accepted the award for Fulbright & Jaworski L.L.P, one of two large firms recognized for Outstanding Contribution to HVLP.

Mark Kelly accepted the award for Vinson & Elkins LLP, one of two large firms recognized for Outstanding Contribution to HVLP.

Accepting the award on behalf of Marathon Oil Corporation for Outstanding Contribution to HVLP were Holly Keiser, Karen Lukin, Jennifer Doud, Cecilia Villarreal, Christina Bonilla, Dick Horstman and Susan Miller.

Photos by Temple Webber

John Eldridge accepted the award on behalf of Haynes and Boone, LLP for Outstanding Contribution to HVLP by an Intermediate Firm. thehoustonlawyer.com

March/April 2011

31


Daryl Dursum accepted the award for Adams & Reese LLP for Outstanding Contribution to HVLP by a Mid-size Firm.

Accepting the award for Weycer, Kaplan, Pulaski & Zuber, P.C. for Outstanding Contribution to HVLP by a Small Firm were Paul Strug, Tanya Garrison, Marilyn Sims and Duke Keller.

Barry Abrams accepted the award for Abrams Scott & Bickley, L.L.P. for Outstanding Contribution to HVLP by a Boutique Firm.

Terry L. Hart received the award for Outstanding Contribution to HVLP by a Solo.

David Verbit received the award for Outstanding Contribution to the Dispute Resolution Center.

Achille Arcidiacono received the award for Longevity of Exemplary Service to the Dispute Resolution Center.

Photos by Temple Webber

The Hon. Georgia Akers was recognized as the author of the Outstanding Legal Article published in The Houston Lawyer. 32

March/April 2011

thehoustonlawyer.com


COMMITTEE SPOTLIGHT

Get Involved with the Campaign for the Homeless Committee

By Lisa Brindle Talbot

T

he Houston Bar Association’s pick up. 4 court offices. The drive also collected Campaign for the Homeless Committee Chairs for 2010-2011, Jen$1,871.00 in donations, which enabled Committee has been active for nifer A. Hasley of Hasley Scarano, L.L.P. the committee to support the endeavors over 20 years. The committee’s and Cynthia Lam of Jackson Walker, of the non-profit organization, Dress for mission is to support shelters L.L.P., agree that volunteering with the Success Houston. and organizations Campaign for the throughout the HousHomeless is a great ton community by way to spend time collecting gently-used and create a sense clothing for adults, of community. As teens and children. Hasley stated, “This Each year, the is one of the easiest committee sponsors ways to do something two major clothing that warms your heart drives: (1) the Spring and the lives of other Children’s Clothing people. It is one of the and Diaper Drive, most rewarding comand (2) the Fall Coat mittees because of its and Warm Clothing huge impact on othDrive. With the warm ers.” weather quickly apIf you and/or your proaching, the comlaw firm/organization mittee prepared for the are interested in getHBA Campaign for the Homeless Co-chairs Cynthia Lam, far left, and Jennifer Hasley, far right, got personal thanks and Spring drive, which a certificate of appreciation for clothing donations from representatives of No More Victims, an advocacy agency for ting involved with the was scheduled to take newborns and children of incarcerated parents. committee, volunteerplace the week of April 11-15, 2011. The ing, and/or setting up a clothes donation On a larger scale, since 1996, this comFall drive will proceed later this year in box at your office, please contact the HBA mittee has collected over 300,000 items October. The clothes collected from these for more information. All monetary donaof clothing for the homeless. These efdrives are routinely donated to local orgations can be made payable to the Houston forts are predominantly due to the vast nizations, including Covenant House, Star Bar Foundation, attention Campaign for support of law firms, judges, corporate of Hope, S.E.A.R.C.H., and other shelters the Homeless Committee. counsel, solo practitioners, and the Housand organizations that serve the homeless ton community at large. It is not only throughout Harris County. the donations of clothing and funds that Lisa Brindle Talbot is a member of The There is no question that the work of make these efforts successful, but also the Houston Lawyer editorial board and an this committee is outstanding. Last year, time of tireless volunteers responsible for attorney in Houston, Texas. Her practhe Fall drive successfully collected 5,559 picking up the clothes from the various tice areas include commercial litigation, articles of clothing from 69 law firms organizations, sorting through them by insurance defense, and environmental tort and organizations, 42 individuals, and size and season, and boxing them up for matters. thehoustonlawyer.com

March/April 2011

33


Equal Access

Champions

What does it take to become an “Equal Access Champion”? The firms and corporations listed below have signed 5-year commitment forms that indicate they will uphold a pledge to provide representation in a certain number of cases each year, based on the number of attorneys in the firm or legal department. The goal is to provide pro bono representation in at least 1,500 cases through the Houston Volunteer Lawyers Program each year, and to increase that goal each year. For more information contact Kay Sim at (713) 759-1133.

Large Firm Champions Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski L.L.P. Locke Lord Bissell & Liddell LLP Vinson & Elkins LLP Corporate Champions Baker Hughes Incorporated BP CenterPoint Energy, Inc. ConocoPhillips Continental Airlines, Inc. Exxon Mobil Corporation Marathon Oil Company Port of Houston Authority Rosetta Resources Inc. Shell Oil Company Intermediate Firm Champions Akin Gump Strauss Hauer & Feld LLP Beirne, Maynard & Parsons, L.L.P. Gardere Wynne Sewell LLP Haynes and Boone, L.L.P. King & Spalding LLP Thompson & Knight LLP Mid-Size Firm Champions Adams & Reese LLP Baker & Hostetler LLP Chamberlain, Hrdlicka, White, Williams & Martin Greenberg Traurig, LLP Jackson Walker L.L.P. Jones Day Morgan, Lewis & Bockius LLP

Porter & Hedges, L.L.P. Strasburger & Price, L.L.P. Susman Godfrey LLP Weil, Gotshal & Manges Winstead PC Small Firm Champions Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Beck, Redden & Secrest, L.L.P. Gibbs & Bruns LLP Hays, McConn, Rice & Pickering, P.C. Hughes Watters Askanase LLP Johnson DeLuca Kennedy & Kurisky, P.C. Kroger | Burrus Schwartz, Junell, Greenberg & Oathout, L.L.P Shook Hardy & Bacon, L.L.P. Sutherland Asbill & Brennan LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Yetter Warden & Coleman LLP Boutique Firm Champions Abrams Scott & Bickley, L.L.P. Coane & Associates Connelly • Baker • Wotring LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Funderburk & Funderburk, L.L.P. Hicks Thomas LLP Jenkins & Kamin, L.L.P. Ogden, Gibson, Broocks, Longoria & Hall, L.L.P. Squire, Sanders & Dempsey L.L.P. Strong Pipkin Bissell & Ledyard, L.L.P. Wilson, Cribbs & Goren, P.C.

Solo Champions Law Office of O. Elaine Archie Basilio & Associates, PLLC Peter J. Bennett Law Office of Fran Brochstein Law Office of Barbara Calderon Law Office of Robbie Gail Charette De la Rosa & Chaumette Law Office of Papa M. Dieye Frye & Cantu, PLLC Fuqua & Associates Terry L. Hart Law Office of David S. Hsu Law Office of James and Stagg, PLLC Katine & Nechman L.L.P. The Keaton Law Firm, PLLC Gregory S. Lindley Law Office of Maria S. Lowry Martin R. G. Marasigan Law Offices The Law Office of Evangeline Mitchell, PLLC Morley & Morley, P.C. Bertrand C. Moser Pilgrim Law Office Robert E. Price W. Thomas (Tommy) Proctor Law Offices of Judy Ritts Cindi L. Robison Scardino & Fazel Shortt & Nguyen, P.C. Sadler Law Firm Jeff Skarda Teal & Associates Tindall & England, P.C. Diane C. Treich Norma Levine Trusch


OFF THE RECORD

Marathon Woman

By Mark Trachtenberg

L

ucy Forbes did not let a little thing like her pregnancy stop her from her passion – distance running. She ran until the day before she went into labor with her now 4-year old daughter, Laura, and she wistfully watched the Houston marathon runners pass by her hospital room the day after her daughter was born. Lucy had successfully completed 13 marathons before Laura was born, including those held in New York, San Francisco, San Diego, Washington, D.C. and Chicago. Juggling the demands of her solo appellate practice and parenthood, Lucy recently jumped back on the marathon circuit, completing the Houston Marathon in 3:52:20, her personal best marathon time. Lucy Forbes and daughter Laura prepare for a run. She glowingly reports that she “left nothing on the course,” and “gave it everything [she] had,” and was bolstered by the “phenomenal crowd support” despite the rain. Lucy discovered her passion for running in 1998 as a student at Baylor Law School, because she found running to be a “good form of stress-relief.” She pursued this passion even with the heavy workload she had practicing in the Baker Botts trial section, as a staff at-

torney for the Fourteenth Court of Appeals, in an appellate boutique firm, and now, as a solo appellate practitioner, in which she is board certified by the Texas Board of Legal Specialization. Her training consists of two early morning 7-9 mile runs a week, a 10+ mile run on Saturdays (and up to 23 miles before marathons), and one other 4-6 mile run during the week. On many runs, her daughter Laura accompanies her in a stroller and enjoys the ride. On other runs, she is joined by members of the Memorial Park Running Club, a club she has served as president for three years running. Lucy also practices an advance vinyasa yoga two to three times a week. Now that she is back on the marathon circuit, Lucy has no plans to get off. She intends to run two marathons a year. Don’t be surprised to see her daughter Laura joining her at the starting line in a few years. In fact, Laura’s first run was the HBA’s Eikenburg Law Week Fun Run 1-miler on March 26. Mark Trachtenberg is a partner in the appellate section at Haynes and Boone LLP and serves on The Houston Lawyer editorial board. thehoustonlawyer.com

March/April 2011

35


at the bar

The Hon. Martha Hill Jamison was sworn in as a justice on the Fourteenth Court of Appeals by the Hon. Murry Cohen, retired appellate justice, on December 20, 2010.

The Hon. Sharon McCally was sworn in as a justice on the Fourteenth Court of Appeals by the Hon. David Hittner, U.S. District Judge for the Southern District of Texas, on January 18, 2011.

The Hon. Roy L. Moore was sworn in as judge of the 245th District Court by the Hon. Eva M. Guzman of the Supreme Court of Texas on January 20, 2011.

The Hon. Glenn H. Devlin was sworn in as judge of the 313th District Court by the Hon. Lisa Millard, judge of the 310th District Court, on January 20, 2011.

NON-SUBSCRIBER WORKERS COMPENSATION CASES REFERRALS ACCEPTED Texas is the only state that does not require employers to carry state worker’s compensation coverage for their employees. We have successfully handled these cases against H.E.B., Kroger, Richway Transportation, Memorial Hermann and many other Texas employers that are non-subscribers to State Workers Compensation.

The Houston Lawyer

If your client’s employer is a “non-subscriber” and there is a serious injury caused by the employer’s negligence, call us - we can help!

Thomas N. Thurlow & Associates, P.C. The Lyric Centre 440 Lousiana, Suite 1200, Houston, TX 77002 713-224-6774 36

March/April 2011

thehoustonlawyer.com


at the bar

The Hon. Stephen E. Newhouse was sworn in as associate judge of the 313th District Court by the Hon. Glenn Devlin, judge of the 313th District Court, on January 20, 2011.

The Hon. Christine Butts was sworn in as judge of Probate Court Number 4 by the Hon. William C. McCulloch, retired probate judge, on January 27, 2011.

The Hon. Diane Guariglia was sworn in as associate judge of the 245th District Court by the Hon. Eva M. Guzman of the Supreme Court of Texas on January 28, 2011.

How Much Downtime Can You Afford?

Technology used by 23 of the top 25 law firms in the U.S. CloudReplica makes it simple and affordable. • Low Monthly Service Fee • Continuous Server Replication • Safe, Secure, Off-Site Data Center

RELIABLE.

<og\i`\eZ\n_\epfle\\[`kdfjk%N_\epflËi\ Y\`e^ j\im\[# pfl j_flc[eËk _Xm\ kf nfe[\i `] pflZXeZflekfepflidXcgiXZk`Z\ZXii`\i%K_\i\Ëj e\m\iXdfi\`dgfikXekk`d\]fii\c`XYc\#lg$kf$ [Xk\c`XY`c`kp`ejliXeZ\%K\oXjCXnp\ijË@ejliXeZ\ <oZ_Xe^\ _Xj Y\\e X jk\X[]Xjk gifm`[\i n`k_ i\XjfeXYc\iXk\j]fifm\i*'p\Xij%CffbkfKC@< ]fi\og\i`\eZ\pflZXeZflekfe%

Contact us for a demo and 30-day free trial 888.971.0004 www.cloudreplica.com/Legal

,()%+/'%0'.+&(%/''%),)%0**) @E=F7KC@<%FI>NNN%KC@<%FI> thehoustonlawyer.com

March/April 2011

37


Media Reviews

Legal Writing for the Rewired Brain: Persuading Readers in a Paperless World By Robert Dubose Texas Lawyer Book Series, 2010 137 pages, paperback

The Houston Lawyer

L

Reviewed by Mark Trachtenberg egal Writing for the Rewired Brain is essential reading for lawyers whose livelihood depends on their ability to write persuasively in the rapidlyevolving communications revolution. Penned by Houston appellate lawyer and legal writing guru, Robert Dubose, this book provides many important techniques to persuade readers whose brains are literally being rewired through “screen reading,” multitasking, and the steady bombardment of emails and instant messages. Part I of the book explains how and why computer technology is rewiring our brains. Clients and judges are increasingly reading briefs and memoranda on screens, with multiple programs running, an unremitting drumbeat of email or text messages interrupting, and the temptation of the Internet just a few clicks away. Dubose puts this reading revolution into a broader context, discussing the impact of prior communication revolutions (e.g., phonetic alphabet, printing press) and the recent transition to “screen reading” in offices and judicial chambers. He cogently explains how our brains are being rewired to make it difficult to engage in a deep reading of long blocks of uninterrupted text. Through eye-tracking studies, he shows how screen readers skim 38

March/April 2011

thehoustonlawyer.com

some of the ambiance. There is a confidence that his characters are engaging enough to advance his story, and with simple dexterity he sets forth tangential explanations for the reader’s immediate use and discard. Thompson presents the protagonist’s struggle with his identity as defined by his legal career, parenting and romantic interests to fully develop the reader’s understanding of the attorney before unfolding the drama of the legal matter that he must bring on behalf of his daughter in order to save her life. Loyal to realism, the novel depicts the parental relationship of two parties who are living somewhat independently and incongruously from each other, both lacking an understanding of the other’s perspective. Upon mending the relationship, the young daughter and father team up to fight an illness. In so doing, they must Mark Trachtenberg is a partner in the also fight a menacing drug company, appellate section of Haynes and Boone, LLP. blinded by profits, that is unremorsefully He has served on the editorial board of The exploiting the public with tentacles that Houston Lawyer since 2005. reach the FDA as well as private physicians, from local practitioners to renowned clinicians. h!SREALASAHEARTATTA By Larry D. Thompson Far from a social *OHN,ESCROART .EW St. Martin’s Press, 2011 commentary on the evilsh0LENTYOFSIZZLEANDCLO of big business 306 pages or big government, the SPEEDINGDOWNASLALOM Reviewed by Caroline Pace resulting trial is more ocal attorney Larry of a3TEVE"ERRY .EW9ORK venue for depictD. Thompson’s first ing the challenges that h)COULDNgTPUT4HE4RIAL nonfiction book the protagonist and TENSIONJUSTKEEPSBUILD opens with a young his ad-hoc legal team girl learning that must,OUISE0ENNY.EW9O overcome while her body is failing, and flashing to the demonstrating the skills of a small-town skilled murder of an emotionally conlawyer. flicted young executive. From the start, Engaging, sensational, and fast-paced, it is clear that this book is about much The Trial is a well-crafted, page-turning, Showcased at the 2011 Sundance Film F more than an attorney’s war story. legal thriller. Featured as an Alternate Selection by: While fully developing his characters, Thompson does not wrestle with •Literary stilted Caroline is anClub attorney with The Writers B GuildPace Book •Mystery verbiage and stifling descriptions but Ammons Law Firm, L.L.P . and a member of Print •Doubleday Book Club•Doubleday Large allows his reader’s imagination to craft The Houston Lawyer editorial board. text on screens based on an “F-pattern,” focusing on headings, summaries, topic sentences and other structural cues. In Part II, Dubose provides ten writing tips to help lawyers effectively communicate with screen readers, while still providing the necessary support to “deep readers.” These tips offer important guidance on how to make a brief or motion quickly accessible to a skimming reader (e.g., through effective headings, outlines and summaries), easier to read (e.g., through the use of visuals, bullet points and white space), while still providing the necessary authority to prevail. If you engage in any legal writing at all —whether directed at courts or clients— you are bound to benefit from this book, particularly if you read it on a deserted beach without wireless access.

The Trial

L

Hot New Legal Thrille Larry D

The Trial: What you don’t know abou

www.LarryDT


Media Reviews

Dragon NaturallySpeaking 11 Premium & Professional Versions Nuance Communications, Inc.; www.nuance.com Premium Edition: List $199.99 Legal Professional Edition: List $799.99 Reviewed by Robert Painter and Al Harrison

T

his joint review of Nuance Softwareâ&#x20AC;&#x2122;s Dragon NaturallySpeaking (â&#x20AC;&#x153;DNSâ&#x20AC;?) application was â&#x20AC;&#x153;writtenâ&#x20AC;? using DNS. We are pleased to say that DNS performed magnificently! In conjunction with a suitable headset which was properly positioned relative to the speakersâ&#x20AC;&#x2122; respective mouths, Dragon properly interpreted the vast majority of the spoken words â&#x20AC;&#x201D;actually the spoken phrases and clausesâ&#x20AC;&#x201D; to generate this review. Only a hand-full of corrections to the corresponding verbiage were necessary, by both Robert and Al, to produce the intended phraseology. Robert, as a new user, has become conversant with the DNS application and availed himself of its benefits during a two-month time frame. He found that the Premium edition essentially ran â&#x20AC;&#x153;out-of-the boxâ&#x20AC;? and, every time he used it, the voice recognition engine seemed to improve the quality of both recognition and accuracy, leaving Robert shaking his head in amazement about DNSâ&#x20AC;&#x2122; extraordinary functionality and usefulness. Al, as an experienced user, has used DNS during a time frame that traverses several years and several generations of improvements, and has witnessed the development of DNS into a mature and sophisticated â&#x20AC;&#x201D;top-notchâ&#x20AC;&#x201D; accurate and reliable voice recognition engine. He

prefers the DNS Legal edition because it includes a panoply of words and terms (more than 30,000) specific to law practice; enables matter-specific recurring phrases and clauses to be readily defined as voice commands; routinely formats legal citations; and automatically transcribes voice input stored on mobile digital voice recorders. Robert Painterâ&#x20AC;&#x2122;s Experience Interestingly, until about two months ago, Robert, in keeping with the notion that speech recognition software was clunky and cumbersome, was under the impression that a voice recognition application such as Nuanceâ&#x20AC;&#x2122;s DNS had not yet proven itself and thus was not ready for prime time. Notwithstanding, seeking ways to make his law practice more efficient, Robert procured the Premium version of DNS directly from Nuance Communications, publisher

and distributor. Triggered by his order via nuance.com. DNS was delivered to Robertâ&#x20AC;&#x2122;s office with an Andrea headset having an integrated microphone. During a 15-minute installation, Robert was encouraged to partake of nominal initial training (15 minutes reading a text passage) to allow DNS to learn his speaking nuances manifest as a user profile, and, in so doing, to greatly enhance the applicationâ&#x20AC;&#x2122;s accuracy. He noted that this short training exercise enabled the underlying DNS engine to analyze his voice idiosyncrasies and his speaking pattern. This user profile should be established for each user in a law office, with each user going through the training. An important aspect of this training was for the user to learn to properly position the headset microphone adjacent to a side of the userâ&#x20AC;&#x2122;s mouth. With installation and training complete, Robert was ready to put DNS to

alternative dispute resolution MEDIATION, ARBITRATION, SPECIAL JUDGE

(Chap.151, CPRC)

Dan Downey  ,Ă&#x160;/Â&#x2026;>Ă&#x152;Ă&#x160;Preserves 9Â&#x153;Ă&#x2022;Ă&#x20AC;Ă&#x160;Right of Appeal p Â&#x2026;>°Ă&#x160;ÂŁxÂŁ]Ă&#x160; *,

UĂ&#x160;Â&#x153;Ă&#x20AC;Â&#x201C;iĂ&#x20AC;Ă&#x160; Â&#x2C6;Ă&#x192;Ă&#x152;Ă&#x20AC;Â&#x2C6;VĂ&#x152;Ă&#x160;Ă&#x2022;`}i UĂ&#x160; Â&#x153;>Ă&#x20AC;`Ă&#x160; iĂ&#x20AC;Ă&#x152;Â&#x2C6;wi`Ă&#x160; Â&#x2C6;Ă&#x203A;Â&#x2C6;Â?Ă&#x160;/Ă&#x20AC;Â&#x2C6;>Â?Ă&#x160;>Ă&#x153;Ă&#x160;p Ă&#x160;Ă&#x160;/iĂ?>Ă&#x192;Ă&#x160; Â&#x153;>Ă&#x20AC;`Ă&#x160;Â&#x153;vĂ&#x160;i}>Â?Ă&#x160;-ÂŤiVÂ&#x2C6;>Â?Â&#x2C6;â>Ă&#x152;Â&#x2C6;Â&#x153;Â&#x2DC;

A faster, cheaper and more predictable ADR alternative to arbitration.

UĂ&#x160;`Â?Ă&#x2022;Â&#x2DC;VĂ&#x152;Ă&#x160;*Ă&#x20AC;Â&#x153;viĂ&#x192;Ă&#x192;Â&#x153;Ă&#x20AC;Ă&#x160;Â&#x153;vĂ&#x160;>Ă&#x153;

,i>`Ă&#x160;Â&#x201C;Â&#x153;Ă&#x20AC;iĂ&#x160;>Ă&#x152;Ă&#x160;Ă&#x160; dandowney.comĂ&#x160; ­*Ă&#x2022;LÂ?Â&#x2C6;V>Ă&#x152;Â&#x2C6;Â&#x153;Â&#x2DC;Ă&#x192;ÂŽ

iĂ&#x152;>Â&#x2C6;Â?Ă&#x192;Ă&#x160;>Ă&#x152;\Ă&#x160;

dandowney.com U 713.907.9700 1-800.792.4444 UĂ&#x160;Ă&#x160;5009 Caroline Suite 100B, Houston, TX 77004 thehoustonlawyer.com

March/April 2011

39


Media Reviews

The Houston Lawyer

work by interacting with the onscreen Dragon toolbar. After clicking the Microphone icon to activate the microphone, the user can opt to invoke pull-down menus or to press shortcut keys or to press special keys (e.g., “+” key) on the numeric keypad or to say voice commands (e.g., SCRATCH THAT, CAPS ON, SPACE BAR, NEW LINE, etc.) prior to dictating to the DNS engine. Robert found using DNS to be amazingly simple. To convert spoken words into text just required placing the cursor in a particular application such as Microsoft Word and speaking at a normal pace into the properly positioned headset microphone—but concentrating on elocution by striving to pronounce every syllable and to enunciate word-endings before commencing to pronounce the subsequent word. From the very start DNS accurately recognized over 90 percent of Robert’s speech, typing it in realtime emulating a court-reporter’s output. He noted that this stellar behavior was even more remarkable since he typically handles medical cases wherein his speaking incorporated medical terminology such as “Staphylococcus,” which, incredibly, DNS had no problem recognizing. He experienced this excellent performance not only when speaking textual content into Word documents, but also when creating emails and entering time entries into a billing application. Since Dragon has proven its voice-recognition efficacy, Robert now uses DNS to routinely prepare various legal documents and concomitant correspondence, which he then emails to his legal assistant for final formatting and incidental refinements. For Robert’s purposes, the Premium edition has worked just fine and far beyond his expectations. Al Harrison’s Experience Al’s focus sought to ascertain the utility of the features unique to the top-of-the-line Legal edition. He first dictated repre40

March/April 2011

thehoustonlawyer.com

sentative state and federal citations to DNS and noted that the translation from his voice to text was typically flawless. Dragon knew how to properly format and punctuate the citations; this was a huge time-saver. Next, he created custom voice commands for expeditiously generating recurring verbiage in patent applications and other legal documents. Al also created custom commands that produced special templates including graphics for emails and letters. Having access to these and other custom commands significantly facilitated creation of frequently invoked language that appeared in documents, letters and emails. Such custom commands are created via the DNS MyCommands dialog box which may be invoked to generate text-and-graphics templates; to generate macros by recording sequences of mouse movements and/or keystrokes; and to activate menu and/or keystroke commands for controlling particular applications. Since he frequently travels, Al was intrigued by Dragon’s new capability to automatically transcribe content dictated into a portable digital voice recorder (e.g., a Sony, Panasonic or Olympus recorder) or even dictated into a SmartPhone (creating sound files in WAV or MP3 or WMA format). This protocol requires that a separate user profile be created so that DNS is properly trained to recognize the sound patterns of the recorded speech which is different from normal speech sound patterns. Using the Blackberry, Al’s recorded speech was transcribed fine-and-dandy by DNS once the WAV file was copied to his laptop hard disk as described in the documentation. Thus, by adapting the Legal edition to accommodate his intellectual property practice, Al was able to invoke the powerful and customized DNS engine to effectively generate a variety of legal documents and related client communications via letter and/or email. Dragon

streamlined this document creation and editing process, which simultaneously eliminated wrist strain and the like, caused by extensive keyboarding and concomitant mouse movements. The result was enormous time-savings and inherent reduction of editing loops and associated iterative proofreading. Recommendations to Assure Peak DNS Performance While our experience demonstrates that Dragon NaturallySpeaking runs out-ofthe box, with just a modicum of training prerequisite to build a crucial user profile, we strongly recommend that users regularly avail themselves of the Accuracy Tuning feature. This tuning feature supplements the Dragon databases not only with commonly-used dictated word sequences manifest as phrases and clauses, but also with acoustic data correlated with user corrections to DNS recognition and incremental user input derived from ongoing user training and feedback. For instance, by providing DNS with samples of writing style and word combinations, Dragon’s recognition engine becomes better acquainted with a user’s speech patterns and proportionately improves recognition accuracy. Thus, the more the underlying DNS engine is used and trained, the more accurate and more reliable Dragon becomes because, among other things, the user’s profile is being enriched and refined. During dictation, the user should endeavor to be cognizant of how speech is being communicated to DNS. Ideally, the tone, pace and volume of the speech should echo normal speech patterns. It is imperative for the user’s elocution and diction to fit on the user’s very own profile to avoid DNS misrecognizing speech patterns that are well defined for a particular user, but, unfortunately, the user’s normal voice pattern suffers perturbations attributable to a cold, to speaking too loudly or too softly or too quickly. A


Media Reviews

user’s normal speech—as heard by DNS— might also be skewed by an inadequate or defective desktop or laptop sound system or by a defective or otherwise inadequate headset. While virtually all versions of Nuance DNS are delivered with a headset, typically an Andrea USB model, it is recommended that a headset having integrated digital signal processing (DSP) hardware be invoked to avoid any issues with the host desktop or laptop sound system, and to normalize and standardize the user’s speech patterns manifest in the implicated user profile. A DSP module bypasses the sound system—sound card, speakers, microphone—integrated into a desktop’s or a laptop’s computer system. The DSP built into a headset constitutes the sound system infrastructure; the host computer’s sound system is essentially short-circuited and rendered moot for voice recognition purposes. Excellent-performing and

reasonably-priced DSP headsets are available from Plantronics and VXi. We recommend the Plantronics DSP USB headset series for providing excellent, natural voice input while removing ambient noise, and for being comfortable to wear over the head and ears. As an alternative, the VXi Parrott TalkPro USB has a built-in DSP that affords prerequisite sound performance for effective voice recognition. While the Plantronics headset provides a more soundproof, noise-cancelling and comfortable fit, the VXi headset also affords good sound performance and is more portable. To expeditiously become conversant with the features and functions of DNS, we have found it profoundly helpful to walk through the End-User Workbook for Version 11 developed by Nuance. Using this Nuance Workbook tends to promote a user seamlessly and effectively learning how to speak to DNS. The ex-

planations of the functionality and the sequence of exercises are easy to follow and definitely drive home the how-to of voice recognition ala Dragon. These exercises are augmented by an online knowledge base and apropos webinars and tutorials. Dragon NaturallySpeaking has proven itself to be a premier voice-recognition engine. Its accuracy and reliability are truly amazing. Once a user becomes acclimatized to delivering speech directly to a desktop computer or laptop or digital recorder or SmartPhone, there is no turning back. Robert W. Painter is an attorney at Painter Law Firm PLLC, and is the media editor for The Houston Lawyer. Al Harrison is a patent attorney practicing intellectual property law with Harrison Law Office, P.C. and has been a member of The Houston Lawyer editorial board for several years.

thehoustonlawyer.com

March/April 2011

41


LEGAL TRENDS

The Texas Court of Criminal Appeals Affirms the Deference Owed to the Trier of Fact

I

The Houston Lawyer

By Farrah Martinez n Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2011), Texas’s highest criminal court overruled case law that permitted appellate courts to reexamine a jury’s factual findings, reaffirming the deference to be given to the trier of fact and essentially merging the factual sufficiency standard with the legal sufficiency standard. In Brooks, a jury convicted Kelvin Brooks for possession with the intent to deliver more than four grams but less than 200 grams of crack cocaine. At trial, the evidence showed that Brooks matched a description given to police of an individual in possession of a firearm inside of a local bar. Officers encountered Brooks and ordered him to stop. Instead, Brooks fled. During the chase, officers witnessed Brooks throw down two small baggies. Once officers detained Brooks, a total of three baggies containing various controlled substances were recovered. On Brooks’ person, officers found a few dollars and a cell phone, although they did not locate a gun. At trial, Brooks’ defense rested on the premise that he was a drug user and not 42

March/April 2011

thehoustonlawyer.com

a drug dealer. To support this theory, Brooks’ attorney obtained testimony from the arresting officer that dealers usually possess a larger sum of money and a list of clients in debt, carry a weapon, and there is usually an eyewitness to testify to the sale of drugs. While the prosecution contended that Brooks was a drug dealer, as substantiated by the value of the crack, worth approximately $500 and conveniently divided into 25 individual crack rocks, Brooks had no drug paraphernalia, nothing to use the drugs (such as a crack pipe), and he was not under the influence at the time of the arrest. The state prevailed on the “intent to deliver” charge and Brooks was sentenced to 25 years in prison. Brooks appealed on the issue of intent. Ruling in his favor, the court of appeals held that, standing alone, 4.72 grams of crack cocaine is insufficient evidence of intent because the amount is also consistent with personal use. Additional evidence presented was legally sufficient to establish intent when viewed in a neutral light, but was factually insufficient to support guilt beyond a reasonable doubt. The state sought discretionary review and requested the Texas Court of Criminal Appeals to address whether there is any meaningful distinction between the legal sufficiency review standard established in Jackson v. Virginia1 and the factual sufficiency review standard developed in Clewis v. State.2 The legal sufficiency standard, as set out in Jackson v. Virginia, requires the reviewing court to view the evidence “in the light most favorable to the verdict” by paying deference to the jury’s credibility and weight determinations. Under Clewis, the Court adopted a factual sufficiency standard that allowed the reviewing court to view the evidence in a “neutral light,” not deferring to the jury’s credibility and weight determinations, and resolving conflicting evidence with a different outcome than the trier

of fact. In prior cases, the Court had issued opinions that required reviewing courts to defer a jury’s resolution of conflicting evidence, thereby eroding the factual sufficiency standing, making it so indistinguishable the Court used the standards interchangeably. Finally, in Brooks, the Court took one last bite at the apple and simply overruled Clewis and the factual sufficiency standard to ensure deference to the trier of fact’s determinations on credibility and the weight of the evidence by disallowing reviewing courts to operate as a “thirteenth juror.” Farrah Martinez is the Director of Legislative Affairs for the Harris County District Clerk. Martinez serves on the editorial board of The Houston Lawyer. Endnotes 1. Jackson v. Virginia, 443 U.S. 307 (1979). 2. Clewis v. State, 292 S.W.2d 126 (Tex. Crim. App. 1996)..

The Texas Supreme Court Says “No” to Rolling Easements

T

By Goran Krnaich he State of Texas has a longstanding policy in favor of free access to public beaches. The Texas Supreme Court issued a 2010 opinion that has the potential to significantly affect free access to Texas public beaches. In Severance v. Pat-


LEGAL TRENDS

terson, 54 Tex. Sup. Ct. J. 172, 2010 WL 4371438 (Tex. Nov. 5, 2010), the Court held that a public beachfront access easement “[does] not roll onto previously unencumbered private beachfront property when avulsive events cause dramatic changes in the coastline.” “Avulsion” is defined as “the sudden and perceptible change in land.” In this case, the avulsive event was Hurricane Rita. The Texas Open Beaches Act (“OBA”) was passed by the Texas legislature in 1959 to “[enforce] the public’s right to use the dry beach on private property where an easement exists and [to enforce] public rights to access and use State-owned beaches.” A public beach may be owned by the public or by a private party, and it extends from the “line of mean low tide to the line of vegetation bordering on the Gulf of Mexico.” TEX. NAT. RES. CODE § 61.011(8). A private beach is included within the public beach definition if “the public has acquired the right of use or easement to or over the area by prescription, dedication, presumption, or has retained a right by virtue of continuous right in the public since time immemorial... ” Id. The Court explained that “[t]he area from mean low tide to mean high tide is called the wet beach, because it is under the tidal waters some time during each day. The area from mean high tide to the vegetation line is known as the dry beach.” The wet beach areas are owned by the State, while the Court recognized that “the dry beach is often privately owned.” Carol Severance (“Severance”) ac-

quired three separate beachfront properties on Galveston Island’s West Beach before Hurricane Rita. One property, oc-

cupied by a rental home, was the subject of this litigation. An easement enabling public use of that property was located seaward of the property, and existed before the purchase. The easement was established through a judgment obtained by the State in 1975. Hurricane Rita destroyed the dry beach that was subject to the easement, and the vegetation line relocated behind Severance’s home. Subsequently, the State asserted that a portion of Severance’s property was “located on a public beachfront easement and

[that] a portion of [the] house interfered with the public’s right to use of the dry beach.” Severance filed suit for declaratory and injunctive relief in federal court, alleging “that enforcement of the rolling easement pursuant to the OBA would effect an illegal seizure under the Fourth Amendment and an impermissible taking without just compensation under the Fifth Amendment.” Severance v. Patterson, 566 F.3d 490 (5th Cir. 2009). Severance also alleged a violation of substantive due process rights. The district court dismissed the suit. Severance appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit affirmed the dismissal of the takings claim because of “the uncertainty and ambiguity of Texas law regarding rolling easements and the takings consequences thereof.” However, the Fifth

thehoustonlawyer.com

March/April 2011

43


LEGAL TRENDS

The Houston Lawyer

Circuit found that Severance’s Fourth Amendment claim was valid because of the State’s “meaningful interference with her possessory interests in her property.” The court held that the State’s interference was “unreasonable because the interference is unjustified by state law or, if justified, then uncompensated.” Because of no state law precedent, the Fifth Circuit certified state law questions to the Texas Supreme Court to resolve the seizure claim. The Texas Supreme Court held “that Texas does not recognize a rolling easement on Galveston’s West Beach.” Instead, the Court held that “a new easement must be established by sufficient proof to encumber the newly created dry beach bordering the ocean.” The Court recognized that generally “[t]he easements’ boundaries may move according to gradual and imperceptible changes in the mean high tide and vegetation lines”

44

March/April 2011

thehoustonlawyer.com

and that the State does not have to “reestablish” easements when these changes occur. However, the Court held that a different rule should apply if the change in the boundaries is caused by an avulsive event. The Court’s reasoning was that since “sudden and perceptible changes by nature occur very quickly, it would be impossible to prove continued use in the new dry beach, and it would be unfair to impose such drastic restrictions through the OBA upon an owner... without compensation.” The dissent criticized the majority’s distinction between “gradual” and “dramatic” changes in easements, characterizing it as vague and stating that it will jeopardize the “public’s right to free and open beaches.” While this decision protects the beachfront property owners’ rights, it requires the State to establish new public beachfront access easements, which may not always be possible. The Texas Attorney

General and Galveston County have filed a motion for rehearing in this matter. Numerous entities, including the City of Houston and Harris County, have submitted amicus curiae letter briefs in support of the appellees’ motion for rehearing. The amicus curiae letter briefs raise concerns about the perceived negative impact of the opinion, such as the public’s loss of access to open beaches which could in turn lead to decline in tourism and loss of revenues for the local municipalities. The Severance opinion is significant and will become more so, especially as hurricanes and storms continue to alter the Texas coastline. Goran Krnaich is an Assistant City Attorney employed by the City of Houston Legal Department. Any views expressed by the author in this article are his own.


A Profile

in professionalism drafting contracts. To some, professionalism may well be summed up in the imprimatur of zealous representation. We, on the other hand, believe that many a meaningless billable hour has been spent in the name of that same zealous representation. As such, to me professionalism reflects neither purity of legal logic nor the elegance of cogently drafted but impenetrable documents, but rather a laser-like focus on value in the delivery of legal services while maintaining an unyielding ethical compass. Perhaps our profession is slowly transforming our society into a victim of the machines we built and are charged with operating. Our endless dissection of concepts, rules and legal morass are Jeffrey W. Carr Senior Vice President, General Counsel & Secretary FMC Technologies Inc.

The Houston Lawyer

“W

46

interesting of course to us as members of the bar, but of little, if any, usefulness to our customers. Compliance with all applicable laws is onerous

e are are not lawyers”—to

and well-nigh impossible. Regulatory “protec-

many, this first sentence of

tions” cause us to wonder who precisely is being

our legal team’s vision state-

protected.

ment may be patently absurd,

We must step back and ask ourselves as mem-

frightening or simply anathema. That statement

bers of this honorable and respected profession

goes on to say “We are business people with legal

if that respect is still deserved. After all, there

training forged into a cohesive legal team com-

aren’t all that many cruel-hearted, sarcastic doc-

mitted to success... through focused effective-

tor jokes. For when we stop focusing truly on the

ness, relentless efficiency, constant improvement,

client’s interests and focus instead on protection

creative disruption and unyielding integrity.”

of our own prerogatives, then we have truly lost

The point of these two statements is to force-

our way. At the very least we risk professional ir-

fully assert that we intend to look at each situ-

relevance as customers flee to solutions that we

ation from the client’s point of view, from their

no longer provide at a value proposition that they

perspective, from the eyes of the customer. We

can no longer endure.

are here to assist them in achieving their legiti-

True professionals never forget that it is the cli-

mate objectives—not to answer interesting ques-

ent and not the practitioners that are deserving of

tions of law, to win cases, or to seek perfection in

the protection of professionalism.

March/April 2011

thehoustonlawyer.com


reinvent your image...

The Houston Bar Association Lawyer Placement Service will assist members by coordinating placement between attorneys and law firms. The service is available to HBA members and provides a convenient process for locating or filling positions. 1. In order to place an ad, attorneys and law firms must complete a registration record. Once registration is complete, your position wanted or available will be registered with the placement service for six months. If at the end of the six-month period you have not found or filled your position, it will be your responsibility to re-register with the service in writing.

brochures websites logos

2. If you are registered, resumes will be sent out under their assigned code numbers. Once a firm has reviewed the resumes, they are to contact the placement office with the numbers they are interested in pursuing. The placement coordinator will then contact the attorney, give him/her some background information on the inquiring firm, and the attorney will then let the coordinator know if he/she wishes personal information to be released to the firm. This process will insure maximum confidentiality and get the information to the firms and attorneys in the most expedient manner. 3. In order to promote the efficiency of the Houston Lawyer Placement Service. PLEASE NOTIFY THE PLACEMENT COORDINATOR OF ANY POSITION FOUND OR FILLED. 4. To reply for a position available, send a letter to HBA, placement coordinator at the Houston Bar Association, 1300 First City Tower, 1001 Fannin Street, Houston, Texas 77002 or e-mail Brooke Eshleman at BrookeE@hba.org. Include the code number and a resume for each position. The resume will be forwarded to the firm or company. Your resume will not be sent to your previous or current employers. PLACEMENT DEADLINES Jan. 1 Jan./Feb. Issue Mar. 1 March/April Issue May 1 May/June Issue July 1 July/August Issue Sept. 1 Sept./Oct. Issue Nov. 1 Nov./Dec. Issue If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office, 713-759-1133.

QuantumSUR, Inc. advertising / marketing company

281.955.2449 ext.11 www.quantumsur.com

Positions Available 5074 Insurance coverage firm seeking attorneys with at least 3 years of experience with commercial property coverage. Strong writing/litigation skills required. Louisiana license, in addition to a Texas license, preferred.

5076 Boutique Civil Litigation law firm specializing in complex business litigation is looking for an associate attorney with 1-3 years litigation experience and excellent research and writing skills. 5080 Houston public pension fund seeking Associate Counsel reporting to CLO. Approx. 4 yrs. experience with pen-

sions, employment, administrative, institutional investing or local government law. Competitive benefit package. Background checks required. 5084 Full time associate position available. 5+ years experience required. Must have commercial and personal injury background. Competitive compensation package. 5094 PROBATE LAWYER. Sugar Land estate planning/ probate firm with HoustonGalleria office seeking attorney with extensive experience in TX probate and trust administration, Form 706 preparation, estate and gift tax planning. Positions Wanted 2062 Very Experienced Trial Attorney intimately familiar with the mechanics and operation of the Commercial Mortgage Backed Securities (CMBS) industry, including the securitization process of commercial loans and the duties and responsibilities of Mortgage Loan Originators/Depositors, Underwriters of REMIC Trusts, Rating Agencies, Trustees, Servicers and Special Servicers. Looking for in-house position.

2064 Attorney with extensive experience in collections and enforcement of judgments will take cases on a fee-for-service orâ&#x20AC;&#x201D;if meritoriousâ&#x20AC;&#x201D;on a contingency basis.

If you need information about the Lawyer Placement Service, please contact HBA, placement coordinator, at the HBA office,

713-759-1133

thehoustonlawyer.com

March/April 2011

47

placement service

PLACEMENT POLICY


LITIGATION MARKETPLACE

Document Examiner

Galleria - Post Oak Blvd. Ninth floor office space, 15 x 15. Tenant shares suite with five attorneys, standard amenities included. Call Elizabeth at 713-652-2144 x 28

GREENWAY-GALLERIA area - Two exterior offices. Inner Loop. Secretarial area, storage, conference room/library. FAX furnished. Controlled access, covered parking, seAttention: Immigration/ curity. $660 — 800 range. Criminal Justice Attorneys. 713-522-4334 Want to share our CPA office (including receptionLEGAL OFFICE SPACE ist) very next to CONSULFOR RENT - DOWNTOWN ATE GENERAL–EL SALVAHOUSTON DOR for immigration and $500.00 – $1,000.00 per Criminal Justice Services? month - 2 Blocks from Civil/ 10301 Harwin Drive, Criminal/Family Courts Ste 1, Houston, TX 77036 - Multiple Conference and 713-496-3348 Break Rooms Contact @yoecpa.com - Bi-Lingual Secretarial/Re ceptionist Services Available FAIRMONT PARKWAY/ - Internet, Fax, Scanning and BELTWAY 8. Copying Complimentary Professional office suite, new- Furnished Client Waiting ly constructed (previously a Area. law office.) Eight offices, re- Immediate Move In ception room, kitchen, 2900 Available sq. ft., alarm system. CALL: 713–229-0770 713-252-1291

Research

Legal Document Retrieval & Research www.legaldocusa.com legaldocusa@aol.com CV, CR, BK documents All Courts & Archives, UCC, Patent, Trademark Asset & Property Search Document Scanning Complete Service of Process

1.800.487.2245

The Houston Lawyer

Office Space

brochures, websites, business cards, logos... 281.955.2449 x11 quantumsur.com 48

March/April 2011

Midtown/Montrose Victorian Style Office Space. Ideal for 6 to 8 people. Large offices, hardwoods floors throughout. Kitchen, fridge & microwave; furnished with conference table, large screen TV, desks, and Persian rugs included. ADA access to building and first floor bathroom. Wired and wireless internet and digital phone system. Gated Parking area. Prefer 3yr. lease. Contact: 713-526-2222. canretproperties@gmail.com I-10W and 610 Loop North of Galleria Large office space available, furnished or unfurnished. Five attorneys practice in location. Includes internet access. Conference room and copier available. Free parking. Call Charlie 713-686-5444

thehoustonlawyer.com

OFFICE SPACE at 3 Riverway Class “A” Building located off Woodway drive and 610 West Loop. Law firm is primary tenant. Several offices available. On-site management and security guard, attached parking garage for tenants and visitors, conference rooms, receptioist services, kitchen, wired for broadband internet access. Contact Lisa DeWild, 713-209-2934

Receptionist included in rent and available for secretarial work. Excellent shared-suite environment since 1991. Call Lynn at 713-977-9600 Lorance & Thompson, P.C., a well established litigation firm, has a few extra offices that were reserved for expansion. With the current economy, that isn’t gong to happen any time soon. The firm would like to sublet them to a small firm specializing in a non-litigation practice. If interested, please contact Phil Summers 713-868-5560 HOUSTON / MUSEUM DISTRICT Newly remodeled Historic Home, minutes from the Court House. On-site Management, receptionist, three conference rooms, kitchen, small library, telephone system, internet access, copier, fax and free parking. Several offices available. Call 713-840-1840 Executive Office Space Available: Ranging from $850-$995 per month. Amenities include: 2 conference rooms; maid and reception services; full kitchen. Heights Boulevard address.  Broker/owner. 713-880-4700

GREENWAY PLAZA One first floor office space available, 12X17. Tenant shares suite with 6 attorneys, standard amenities inHOUSTON – cluded. Please call Trina at TANGLEWOOD. 713-627-1133 Woodway Frost Bank Building. Window office(s) for sublease in beautiful suite Sublease beautiful office space furnished with antiques and 1402 sq ft—550 Westcott. Oriental rugs. Includes wood- Call Leigh 713-224-6774 paneled conference room, eat-in kitchen, advanced GREENWAY PLAZA phone system answered in- Lovely partner/window ofdividually for each attorney. fices with adjacent secretarial


HOUSTON â&#x20AC;&#x201C; GALLERIA AREA Capital One Bank Plaza. Two offices available in office sharing suite with other lawyers. Exterior office is 18 X 16 (can be divided in two). Panoramic view east toward downtown, Greenway Plaza and Medical Center. Interior office is 10 X 13. Secretarial station also available. Includes: conference room, kitchen, phone, fax, copier, high-speed internet, and free parking. Great location. 5 year lease renewed with improvements. Contact John at 713-781-5932. Positions Available

Providus, a national legal staffing company, is seeking a lawyer for a business development position in the Houston office. Must have 4+ years experience working in a law firm or corporate law department and sales or marketing experience. High income potential - base compensation plus commission, healthcare benefits, and 401(k). Duties include new business development through marketing our services to law firms and corporate law departments, sales presentations, contract negotiation, cultivating and maintaining business relationships with our clients. Excellent research and writing abilities a must. Submit your resume in confidence to jbrown@ProvidusGroup.com.

accidents. Eutsler Law Firm. Tel. 713-464-6461

n

Brare 65 Arthur 1.440.36 Tel. 28 36 5 1.440.49 s.com x 9057 Fax 28 las n fifiberg to Hous defi@de 0 29 ss.com Texas 77 la rg fifibe www.de

P.O. Bo

Residential

2B/2B condo for Sale $165,000 or Lease furnished $2,000/ month.1400 Hermann across Hermann Park. 1433 s.f w/900 s.f terrace.Established, well managed building. Minnette Boesel Properties. 713-503-0571 or NKinghorn@comcast.net.

For classifieds advertising please contact:

Sheron R. â&#x20AC;&#x153;Samâ&#x20AC;? Sheppard CO-OWNER / PRESIDENT

3101 Highway 59 N. Shepherd, TX 77371 WyVac, Inc. | Texas | USA

4]`SWU\:O\UcOUS0caW\SaaBcb]`WOZ Mary I. Breeland president

â&#x20AC;˘ â&#x20AC;˘

Phone: 832.444.7573 marybreeland@yahoo.com

281.955.2449 ext.13

â&#x20AC;˘ â&#x20AC;˘

Spanish Classes Translations Bilingual Seminars English Classes

1,000 full color business cards (both sides, front & back)

$

Mary Chavoustie mary@quantumsur.com

OfďŹ ce: (936) 628-1210 Cell: (713) 805-5720 Fax: (936) 628-1207 sam.sheppard@wyvac-inc.com www.wyvac-inc.com

84.95 delivered to your office in less than 2 weeks!

art@quantumsur.com (design services available)

Positions Wanted

WANT HELP WITH YOUR LITIGATION PRACTICE? Attorney with 10 years litigation experience available for contract projects. Reasonable rates. See schiffmanlawoffice.com, email: info@schiffmanlawoffice.com or call 713-521-3636. Professional Services

Yoe CPA

Specializing in Financial Fraud, Asset Discovery, Due Diligence, Background, and White Collar Criminal Matters.

Full-Service CPA firm providing Tax, Bookkeeping, Payroll, Review, Audit. Special discount for Bookkeeping and Quickbooks Services - $50 per hour. 10301 Harwin Drive, Ste. 1, Houston, TX. 77036 713-496-3348 â&#x20AC;˘ contact@yoecpa.com

Tickets, DWI, Hit & Run, Suspended License and Driver License Issues, including DPS hearings. *Traffic Warrants Removed. *Personal injury &

Serving Corporate and Legal Communities Worldwide with the utmost discretion. Our offices are staffed by professional intelligence specialists with experience garnered from premier international government agencies.

713.621.1180 ArturosUptown.com

2323 South Shepherd, Suite 920 713.520.9191 â&#x20AC;˘ noukas@noukasintel.com www.noukasintel.com

thehoustonlawyer.com

March/April 2011

49

The Houston Lawyer

Law Firm with an office in Houston, TX seeks an experienced Litigator who has an existing practice, but wishes to increase that practice with Corporate Insurance and other clients in Houston. Individuals that have represented Corporations, Insurance Companies and other organizations in litigation in the past would be preferred. The Law Firm has a multiplicity of clients with different types of needs predominantly in litigation, but also involving some transactions. The Firm is looking for someone with which they can build a larger practice and presence in Houston. The firm has class A office in Downtown Houston, but is willing to relocate if the individual or Firm believes it would be beneficial. Please send resumes to info@otbtlaw.com.

ATTENTION: Any Lawyer familiar with the â&#x20AC;&#x153;Redemption Processâ&#x20AC;?, and the â&#x20AC;&#x153;secured Party Creditorâ&#x20AC;? status, â&#x20AC;Śphone, Ron G. @ 281-433-8056. Retired, BAR or non BAR O.K..

LITIGATION MARKETPLACE

station. Beautiful, quiet, professional environment with access to support equipment, Hi-Speed Internet, kitchen, file storage, reception and conference rooms. Convenient parking. No lease required. Call Pam at 713-877-1600


Ho u ston

â&#x20AC;&#x2122;s Pr e m i e r Fl o r i s t

713.532.7288

XXXMFYJTGMPSJTUDPNt4L ZMJOFtFNBJMMFYJTGMPSJTU!ZBIPPDPN Designed by www.advision.net

THL_March/April_2011  

The Houston Lawyer magazine, Volume 48, number 5

Read more
Read more
Similar to
Popular now
Just for you