Energy Litigation

A valuable part of Steptoe & Johnson's team are energy litigators and paraprofessionals devote their practices to representing clients in energy related litgation. The Energy Litigation team is one of the largest and most diverse industry-specific litigation practices in the region. The group's strength has earned the top rankingings by The Best Lawyers in America®, with more than 60% of group members individually recognized as leaders in their field.

Deep industry knowledge combined with a work approach based on partnering produces proactive representation for clients and effective interaction with governmental agencies to design solutions that prevent conflicts from arising.

With the perspective of 100 years of firm experience in the industry, Steptoe & Johnson energy litigators, based in offices throughout Colorado, Kentucky, Ohio, Pennsylvania, Texas and West Virginia, stay current with emerging energy industry issues and develop solutions that are in line with each client's litigation, regulatory, and strategic objectives.

Firm lawyers also provide litigation avoidance advice designed to develop alternative courses of action for clients seeking to reduce the threat of litigation. They have extensive experience in risk management strategies, contract and policy consulting, and training, derived from this unique and in-depth understanding of risk management and the energy industry.

Chambers and Partners, Publishers of Chambers USA recently wrote of one energy lawyer "She has caught the attention of the market thanks to her "calm air and ability to know just when to apply the brakes and when to ease the pressure."  She recently secured a voluntary dismissal for a regional utility company client in a workplace safety case alleging wrongful death.
 

Know How

Alert: NY Court of Appeals Upholds Local Zoning Restrictions on Oil and Gas
On June 30, 2014, the New York Court of Appeals ruled that under the “Home Rule” principle, towns may ban oil and gas production activities, including but not limited to hydraulic fracturing, through the use of local zoning laws in the case of Wallach v. Town of Dryden.  The Court ruled that as currently written, the state Oil, Gas and Solution Mining Law (OGSML) does not preempt the home rule authority of municipalities to regulate land use through zoning. The Court applied a three part test for preemption which established that state preemption of home rule is analyzed through:
Webinar: March 2014 - Energy Webcast - "Ohio Oil & Gas Case Law Update"
Click HERE to view a recording of the presentation. The explosion of the shale gas development in the U.S. has lead to ongoing developments in case law. This webcast will look at Ohio oil and gas case law developments over the past year.  Relevant cases that were decided in 2013 will be discussed and analyzed. This webcast will have significant focus on dormant mineral act cases as well as cases regarding interpretation of lease provisions.In this webcast, Tim McKeen and Jason Lucas discuss: Recent case law regarding Ohio's Dormant Mineral Act Recent case law regarding interpretation of certain lease provisions Brief look into the future of case law and pending cases
Alert: WV Governor Unveils West Virginia Source Water Protection Act
Today, Governor Tomblin unveiled his bill to create the West Virginia Source Water Protection Act (WVSWPA) in response to Freedom Industries’ release of MCHM into the Elk River near downtown Charleston approximately one week ago. This legislation is intended to bolster the Department of Environmental Protection’s (DEP) regulatory program over industrial aboveground storage tanks located within a zone of critical concern that are capable of storing regulated materials in excess of certain thresholds established by the Secretary of the DEP to the extent that such tanks are not already subject to an individual permit under an existing regulatory program involving site-specific regulation and inspection by the DEP or otherwise exempted by statute or legislative rulemaking.
Alert: Legislative Changes to Ohio’s Dormant Mineral Act and Lease Forfeiture Statute
Lease Forfeiture - Notice of Failure to File Ohio Revised Code Section 5301.332 O.R.C. Section 5301.332 governs the process by which a lessor, or the lessor’s successor in interest, can have a lessee’s lease forfeited for noncompliance with an instrument’s terms. Previously, if a lessee, within 60 days, failed to notify the person who filed an “affidavit of forfeiture” and failed to file for record an affidavit stating that the lease had not been abandoned, then the county recorder would annotate on the margin of the record of the lease "This lease cancelled pursuant to affidavit of forfeiture recorded in Lease Vol...., Page...."
Alert: PA Judge Rules Fracing Fluid Formulas are Still Protected Trade Secrets
Last week, U.S. District Court Judge A. Richard Caputo ruled formulas of hydraulic fracturing fluids are protected information in Pennsylvania.Judge Caputo's decision came after doctors challenged a gag order written into the state's energy regulation, known as Act 13.  Medical personnel are obligated to sign confidentiality agreements in the event disclosure must be made to allow treatment of workers exposed to hydraulic fracturing chemicals.
Webinar: October 2013 - Webcast Presentation - Energy Related Litigation - Personal Injury
To watch and listen to a recording of this webcast, CLICK HERE.   With the extensive expansion of oil and gas work in the region comes the inevitable personal injury lawsuits. Those suits require your company and your insurers to deal with a litany of claims involving multiple parties in multiple jurisdictions. This jurisdictional survey will help educate you on the “hot button” issues involved in those suits filed in West Virginia, Ohio and Pennsylvania and offer recommendations on how to protect yourself. In this webcast, Randy Fife and Phillip Glyptis will discuss how courts in each of these jurisdictions will treat the following claims:
Webinar: October 2013 - Webcast Slides - Energy Related Litigation - Personal Injury
With the extensive expansion of oil and gas work in the region comes the inevitable personal injury lawsuits. Those suits require your company and your insurers to deal with a litany of claims involving multiple parties in multiple jurisdictions. This jurisdictional survey will help educate you on the “hot button” issues involved in those suits filed in West Virginia, Ohio and Pennsylvania and offer recommendations on how to protect yourself.In this webcast, Randy Fife and Phillip Glyptis will discuss how courts in each of these jurisdictions will treat the following claims: Deliberate intent Premises liability Ultra-hazardous and ultra-dangerous activities Compensatory and punitive damages
Alert: “Precious Little” Extends Operator’s Lease
On August 13, 2013, the Honorable Judge Brann, sitting in the Middle District of Pennsylvania, issued a memorandum opinion granting Summary Judgment in favor of Lessee-Defendants Chief Exploration & Development, LLC, et al. (“Chief”). The dispute arose when the Lessor-Plaintiffs asserted that that their leases with Chief had expired at the end of the respective primary terms. Ultimately, the court sided with Chief because it agreed that its physical activity, behind-the-scenes efforts and good faith intent to drill constituted “commencing operations” sufficient to perpetuate the lease beyond its primary term.
Alert: Production “Irrelevant” Under Flat-Rate Leases
A good outcome for oil and gas operators in West Virginia was provided by the U.S. Court of Appeals for the Fourth Circuit on May 7, 2013.  Referencing “… longstanding West Virginia law,” the Court affirmed the validity of a 1933 lease finding “… the quantity of production is irrelevant to the expiration of the secondary term …” of a flat-rate mineral lease.  Despite the language in the term or “habendum” clause that extended the term “… as long thereafter as oil or gas … is produced …,” the 4th Circuit found that production was not required if the quarterly flat-rate rentals were paid.   The royalty provision required payments of $75 “… each three months in advance for the gas from each and every well drilled … while the gas from said well is marketed and used.”
Alert: The Quick and the Dead
The Quick and the Dead: Cessation and Production of Shut-Ins During the Secondary Term of An Oil and Gas Lease. Published in the North Dakota Law ReviewVolume 88, Number 3 (2012). 
Alert: WV House Judiciary Committee Amends Horizontal Well Legislative Rule
On April 9, 2013, the House Judiciary Committee amended SB 243, the West Virginia Department of Environmental Protection ("WVDEP") rules bill which includes the promulgation of permanent legislative rules, 35 Code of State Rules, Series 8, regarding horizontal well development in West Virginia.  The rule is mandated by provisions of the West Virginia's Natural Gas Horizontal Well Control Act, W.Va. Code Chapter 22, Article 6A.
Webinar: March 2013 - Webcast Slides - MSHA Citations and Orders: Preparing for Negotiation & Litigation
Preparing to negotiate or litigate MSHA citations and orders is an increasingly tedious task.  Jonathan Ellis and Peter Raupp will discuss the litigation process for MSHA citations and orders, including tips on what you can do at the time of the MSHA inspection to prepare for the eventual negotiation and/or possible litigation of any citations and orders issued.Topics to be discussed:The litigation and negotiation process for MSHA citations and ordersTips on documenting to assist in defending against citations and ordersIssues related to spoliation of evidenceRecent FMSHRC decisions
Webinar: March 2013 - Webcast Presentation - MSHA Citations and Orders: Preparing for Negotiation & Litigation
Click the following link to listen to a recording of the webcast:  MSHA Citations and Orders Preparing to negotiate or litigate MSHA citations and orders is an increasingly tedious task.  Jonathan Ellis and Peter Raupp will discuss the litigation process for MSHA citations and orders, including tips on what you can do at the time of the MSHA inspection to prepare for the eventual negotiation and/or possible litigation of any citations and orders issued. Topics discussed: The litigation and negotiation process for MSHA citations and orders Tips on documenting to assist in defending against citations and orders Issues related to spoliation of evidence Recent FMSHRC decisions
Webinar: February 2013 - Webcast Presentation - Foreign Corrupt Practices Act (FCPA) & the Energy Industry
Click the following link to listen to a recording of the webcast: FCPA & the Energy Industry The Foreign Corrupt Practices Act (FCPA) prohibits payments to foreign officials to obtain or keep business.  Sounds pretty straightforward, doesn’t it?  As with most simple-sounding things, it’s not as straight-forward  as it sounds.  This webcast, created specifically at businesses in the energy sector, goes through the nuts and bolts of FCPA compliance. In this webcast, William Wilmoth discusses: Primer on the FCPA statute Case studies Situations to keep top-of-mind The impact on business
Webinar: February 2013 - Webcast Slides - Foreign Corrupt Practices Act (FCPA) & the Energy Industry
The Foreign Corrupt Practices Act (FCPA) prohibits payments to foreign officials to obtain or keep business.  Sounds pretty straightforward, doesn’t it?  As with most simple-sounding things, it’s not as straight-forward  as it sounds.  This webcast, created specifically at businesses in the energy sector, goes through the nuts and bolts of FCPA compliance. In this webcast, William Wilmoth discusses: Primer on the FCPA statute Case studies Situations to keep top-of-mind The impact on business
Webinar: November 2012 - Webcast Slides - Dart Board Litigation in the Utica & Marcellus Shales
Development of the Utica and Marcellus Shales has created a significant change in the legal environment, types of claims, and new types of plaintiffs and plaintiffs' attorneys involved. Plaintiffs now employ so-called "dart board" litigation which makes defending claims more complex and significant. New types of claims have developed including individual claims against landmen and notaries.In this webcast, Phillip Glyptis will provide an update on the claims being brought, as well as provide recommendations on how to control and potentially avoid being involved in litigation.Discussion includes: Current litigation trends Why OH, PA, and WV are different Claims in mineral title litigation Ways to protect yourself from litigation
Alert: Wage and Hour Alert for Energy Industry
On Wednesday, November 14, 2012, Department of Labor (DOL) Investigator Diana Smargie spoke to the North Central WV Society for Human Resource Management (SHRM) chapter. Smargie made a number of points during her talk, one of which she was careful to highlight. As part of its 2013 enforcement initiative, the DOL will be targeting small energy producers and oil and gas service providers.  As Smargie put it, a lot of people in the industry have come up through the ranks being paid wrong, so when they are in a position to pay employees themselves, they really do not know how to pay properly and they violate the wage and hour law.So what are the chief issues she sees?  Her top three problems:
Webinar: August 2012 - Webcast Presentation - Trucking Companies to Independent Contractors: New Regulations in the Utica & Marcellus Shales
To watch and listen to a recording of this webcast, CLICK HERE.August 2012 - Energy Keynote Webcast Trucking Companies to Independent Contractors: New Regulations in the Utica & Marcellus ShalesOn June 5, 2012 the Federal Motor Carrier Safety Administration (FMCSA) issued updated guidance to clarify the applicability of the “Oilfield Operations” exceptions to the "Hours of Service" regulations for commercial drivers. The exception has gotten more attention recently as a result of increased Marcellus drilling activities in the Northeast; and a number of highway deaths linked to commercial drivers operating vehicles in excess of the permitted hours of service.
Webinar: July 2012 - Webcast Slides - Mineral Title Litigation & Litigation Trends in the Utica and Marcellus Shales
Mineral Title Litigation & Litigation Trends in the Utica and Marcellus ShalesThe ongoing development of the Utica and Marcellus shales has resulted in increased mineral title litigation and varying litigation trends throughout Ohio, Pennsylvania and West Virginia.  In this webcast, Kevin West and Jim Wright will discuss these issues and how they affect energy developers doing business in the region.Discussion includes:Curing title issuesHow WV, OH, and PA are differentCurrent litigation trends in the Utica and MarcellusWays to protect yourself
Webinar: June 2012 - Webcast Presentation - Employment in Ohio: 10 Things Energy Developers Should Know
To watch and listen to a recording of this webcast, CLICK HERE.June 2012 - Energy Keynote Webcast Employment in Ohio: 10 Things Energy Developers Should KnowOhio, like all states, has its own particular nuances on employment law that affect employers. In order to effectively operate in the State, you need to know the lay of the land. You will be guided through employment law issues unique to business operations in Ohio. In this webcast, Toney Stroud and Todd Sarver will discuss employment law issues that affect energy developers doing business in the Utica Shale. Discussion includes:
Webinar: November 2011 - Webcast Slides - MSHA Citation Defense - An Operator's Guide
MSHA Citation Defense - An Operator's GuideUnderstanding and handling MSHA citations and petitions can be a tedious task. Steptoe & Johnson attorneys have excellent insight into MSHA and how to handle citations and will share some of this knowledge with you this month. This webcast will address the litigation process of MSHA citations and petitions, how the negotiation process works with a Department of Labor attorney, and will give you tips as to what you can do at the time of inspections/citations to help your attorneys defend you. Discussion included: The litigation process of MSHA citations and petitions Update on the backlog project Demonstration of the negotiation process Your defense: what you can do to help    
Alert: OSHA Analyzing Silica Exposure at Drilling Sites
OSHA and NIOSH issued a hazard alert in June 2012 entitled "Worker Exposure to Silica During Hydraulic Fracturing" due to the agencies' concern over sand used in the "fracing" process, but stopped short of issuing a new regulation.The OSHA/NIOSH alert can be viewed at www.osha.gov/dts/hazardalerts/hydraulic_frac_hazard_alert.html.OSHA describes fracing as a process used to stimulate well production in order to extract oil and gas deposits.  The process involves 3 steps: The well is drilled, Water, sand and chemicals are injected into the well causing fissures in the shale, Sand flows into the fissures so that the oil and gas from the shale can flow up and out of the well. OSHA advises that possible workplace measures might reduce silica exposure by:

Representative Experience

  • Served as part of a litigation team representing a national oil and gas development company in a quiet title/declaratory judgment/injunction action concerning the development rights to Marcellus shale assets worth upwards of $10,000,000
  • Handled oil and gas lease disputes, joint venture disputes and other energy-related litigation
  • Assisted title insurance company in boundary and lien priority disputes
  • Experienced in defending coal operators in 104(d) orders and pattern violations
  • Defended coal operators in allegations of deliberate intent
  • Researched various legal issues pertaining to a partition action involving oil and gas interests owned by unknown or missing heirs
  • Served as lead trial counsel for major chemical company pursuing breach of contract claim against biomanufacturer
  • Significant trial experience in energy-related litigation, eminent domain, and complex commercial litigation
  • Assisted in the representation of coal miners during various government investigations
  • Defended claims of underground water contamination against coal operators
  • Assisted in drafting responsive pleadings, including preliminary objections and answers, and discovery and evidentiary motions in the defense of energy companies 
  • Represented marine transportation company in enforcement of long-term coal barging contracts
  • Provided advice and assistance in five workforce reductions in the natural gas industry
  • Defended energy companies in wrongful death, deliberate intent, and premises liability lawsuits, including claims brought as a result of fatal workplace accidents and an explosion at an oil and gas work site
  • Provide day-to-day advice on employment issues for surface and underground coal companies, ranging from hiring procedures to internal investigations to issuing discipline
  • Provide day-to-day advice on employment issues to natural gas drilling and transmission companies on all sorts of issues, ranging from drug testing to disability determinations and accommodations to issuing discipline
  • Represented energy clients in multiple matters before state and federal courts across the Commonwealth of Pennsylvania
  • Represented FERC-regulated companies on numerous FERC enforcement matters
  • Handled over 100 employment-related lawsuits in the coal industry and over 40 in the natural gas industry
  • Sought summary judgment for timbering client in unsafe workplace case where plaintiff alleged wrongful death
  • Tried to a jury verdict 18 cases in the coal industry and six in the natural gas industry, with most cases being disposed of through summary judgment or settlement
  • Represented oil and gas producer in eminent domain proceedings in state and federal court
  • Litigated cases involving breach of lease agreements, breach of implied covenants, right-of-way disputes, injunctions against landowners, royalty disputes, and all types of energy-related cases in both West Virginia and Pennsylvania
  • Defended gas pipeline company in case alleging public service commission jurisdiction over pipeline
  • Handled over 10 arbitrations in the natural gas industry
  • Defended coal operator in large breach-of-contract claim
  • Investigated numerous instances of workforce misconduct by employees in the coal and oil and gas industries
  • Sought to set aside three arbitration awards in the natural gas industry
  • Defended industrial company in hearings and negotiations regarding heavy citations imposed on its drivers for operating an overweight truckload on a weight-restricted road
  • Defended mining companies on MSHA matters, including citation contests, accident investigations, pattern of violations issues, challenges of flagrant violations, and 110(c) investigations
  • Provided diversity training at both coal mines and compressor stations in West Virginia, Virginia, Maryland and Kentucky
  • Represented investment services company in enforcement of restrictive covenants against defecting investment brokers who took proprietary information and breached anti-solicitation and raiding clauses in employment agreements
  • Defended retaliatory discharge and discrimination claims in health care, chemical, auto sales, aluminum products, retail, wood products, legal, high tech, education, banking, natural gas, coal, pharmaceutical and other industries
  • Assisted oil and gas operator in business litigation against working interest owners
  • Represented numerous companies in contract disputes
  • Represented client in jury trial on antitrust claims under state antitrust statute and sales below cost statute against national coal company
  • Coordinated and directed internal investigation of impoundment failure with fatality and defending resulting death claim
  • Represented a large coal company against an executive who allegedly violated a covenant-not-to-compete
  • Defended the manufacturer of underground coal equipment against allegations of wrongful death resulting from defective design
  • Represented energy and natural resources clients in various capacities including quiet title actions and defense of liability claims
  • Defended a major coal company in a tortious interference with royalties action in bankruptcy court
  • Provided advice and assistance in eight workforce reductions for a large coal company
  • Represented natural gas transportation company in federal condemnation action for major interstate pipeline
  • Represented oil and gas producers against claims of lease termination, royalty payments and access rights
  • Defended large oil and gas company in litigation over validity of oil and gas leases
  • Sought summary judgment for oil and gas service provider on claims of negligent operations
  • Defended multiple fatality/personal injury claims that arose from a mine shaft explosion
  • Jury trial in state court for major underground coal producer in a wrongful death action
  • As lead counsel, defended claims in excess of $250 million regarding allegations of contract breach, fraud and tortious interference in a natural gas measurement dispute
  • Defended oil and gas companies and associations against overregulation at the local level
  • Defended multiple cases alleging injury and/or death underground
  • Assisted in obtaining injunctions to obtain access to leased premises for purposes of drilling and maintaining oil and gas wells 
  • Represented public utilities on rulemaking, RTO, interconnection, and rate matters
  • Represented drilling and production companies working to develop the Marcellus shale in surface-use disputes and litigation with surface landowners
  • Litigated complex condemnation actions involving permanent easements for the storage of natural gas, permanent well road easements, and permanent pipeline easements
  • Assisted clients in asserting rights to use the surface under oil and gas leases with and without litigation
  • Represented oil and gas operator in deliberate intent and personal injury action
  • Assisted operator in action to recover costs from working interest owner
  • Defended trespass actions
  • Defended major coal company in breach of contract action where damages claimed were in excess of $800,000,000
  • Argued summary judgment motion in a complex deliberate intent matter involving a major energy company
  • Prosecuted dozens of preliminary and permanent injunctions to halt interference with natural gas operations
  • Represented large energy companies in significant personal injury, administrative and commercial litigation matters
  • Prosecuted summary judgment motion for Fortune 500 multi-state utility based on satisfaction of duty in matter where plaintiffs alleged carbon monoxide poisoning
  • Represented coal company in petitioning for closure of public road running through active coal mine
  • Defended coal miners in decertification proceedings
  • Sought preliminary and permanent injunctions to prevent interference with energy company rights of way and major transmissions lines
  • Litigated numerous cases on behalf of energy companies including, but not limited to, claims surrounding property rights, claims for surface damages and claims for injunctive relief to prevent the obstruction of or interference with utility rights of way
  • Represented oil and gas drilling company in personal injury action related to injuries workers received on gas drilling platform
  • Defended national oil and gas companies in litigation over validity of oil and gas leases and deeds
  • Defended coal companies on MSHA matters
  • Litigated missing heirs petitions, partition actions, and other mineral title litigation for energy clients
  • Assisted in acquisition of resources so as to avoid potential minority interest claims
  • Drafted numerous research and guidance memoranda for coal clients regarding complex issues of lease construction, assignment and sublease of coal interests, and structure of contract mining agreements
  • Drafted numerous briefs on various title issues for trial courts as well as the West Virginia Supreme Court of Appeals
  • Represented producers in litigation (including trial) related to lease construction and surface use
  • Drafted numerous research and guidance memoranda for oil and gas clients regarding complex issues of lease construction, implied and express royalty covenants, post-production expenses, joint venture and joint operating agreements, and area of mutual interest provisions
  • Represented producers with Marcellus and Utica shale wells in suits for excessive surface use, ownership, drilling rights, and pooling
  • Defended at jury trial against federal mine safety criminal charges related to coal mine investigation
  • Represented coal company in a "fugitive dust" case
  • Prosecuted partition actions
  • Defended lessees against claims of lease forfeiture arising from nonproduction and/or abandonment
  • Assisted coal mine operator in a potential pattern of violations (PPOV) matter
  • Assisted in drafting scholarly journal article regarding lease royalty provisions
  • Represented oil and gas companies in foreclosure litigation in Ohio state courts to protect clients' oil and gas lease interests throughout the foreclosure process
  • Defended property owner in a right-of-way dispute
  • Prosecuted dozens of preliminary and permanent injunctions to halt interference with gas transmission pipelines and well access disputes
  • Represented seller of coal leases in multimillion-dollar sales contract dispute
  • As lead counsel, prosecuted a claim in excess of $24 million on behalf of a coal operator in an eminent domain matter that went to verdict in a jury trial

100

Steptoe & Johnson PLLC is a U.S. energy firm with core strengths in labor & employment, litigation and transactional law. In 2013, Steptoe & Johnson celebrated 100 years of helping clients reach their goals.

 

Did you know?

10.5 Years

equals the average tenure of our client relationship. We'd like to be in it for the long haul with you too.

Face-to-Face Client Interviews

25+ face-to-face client interviews are conducted every year by our CEO and firm management to learn how we can do better (so please give us an earful).

One Firm

Ours is a client-of-the-firm culture, service model and compensation system that matches the best talent to the assignment and puts your economic interest ahead of ours.

14 Offices Throughout the U.S.

14 offices throughout Colorado, Kentucky, Ohio, Pennsylvania, Texas and West Virginia.

Leaders in our Field

22 of us are ranked as “Leaders in their Field” by Chambers USA.

Leaders in our Field

Steptoe & Johnson was the first firm to successfully secure regulatory approval for a multi-lateral Utica shale well.