Wednesday, October 16
8:30-8:45 a.m. Welcome
8:45-9:15 a.m. Keynote Address
9:15-9:45 a.m. Joint Employment – The Law Keeps Changing
- Michael J. Moore, Steptoe & Johnson PLLC, Bridgeport, WV
Joint employment creates huge risks for employers that employ contractors, including wage and hour liabilities and ERISA-related liabilities. This presentation will discuss developments in this area of law after the recent Browning-Ferris decision.
9:45-10:15 a.m. Electronic Signatures, Online Notaries, E-Filing: How, When and Where Can They Work for You?
- Karen J. Greenwell, Wyatt, Tarrant & Combs, LLP, Lexington, KY
“Paperless” and “digital” are the new buzzwords for document creation and management. But how does that work for the real property transactions, regulatory filings and other documents required in our record-intensive mineral industries? This presentation will review some of the applicable federal and state statutes and regulations and provide some specifics regarding the use, and potential pitfalls, of electronic signatures and digital records in the mineral industries.
10:15-10:30 a.m. Break
10:30-11:15 a.m. The Last Twelve Months in Energy Law
- Lucas Liben, Reed Smith LLP, Pittsburgh, PA
This presentation will explore the last year’s key developments in the law of oil, gas, and coal, focusing on major cases from Pennsylvania, Ohio, West Virginia, and Kentucky.
11:15 a.m.-12:15 p.m. Lawyer Impairment and Well-Being: Are We Fit to Practice?
- Yvette Hourigan, Director, Kentucky Lawyer Assistance Program, Frankfort, KY
As lawyers, we take continuing legal education courses to stay abreast of current topics, including ethical rules and the conduct that can land us in trouble with our disciplinary boards. But what about our physical and mental well-being? Do these areas of “fitness” impact our legal practice and can they determine whether not we provide our clients with the highest level of legal and ethical representation? Join us as we explore just how “fit to practice” we really are. This presentation qualifies for Ethics credit in some states.
12:15-1:30 p.m. Lunch on your own
1:30-2:00 p.m. Pooling of Oil and Gas Interests
- Gregory D. Russell, Vorys, Sater, Seymour and Pease LLP, Columbus, OH
The pooling of oil and gas interests is often critical in horizontal development. This session will examine what pooling is and what it is intended to accomplish; how it can be effected; and the potential consequences when it is done incorrectly (or perhaps not at all). It will also look at modern pooling issues, such as the amendment of existing conventional leases and units to accommodate horizontal drilling and the need for compulsory state action in the face of seemingly intractable challenges.
2:00-2:30 p.m. Commencement of Operations to Extend a Lease
- Andrew S. Graham, Steptoe & Johnson PLLC, Morgantown, WV
This presentation will provide an overview of how courts in the Appalachian Basin have analyzed the question of whether the lessee’s operations have been sufficient to maintain the oil and gas lease and will also develop a set of general principles, based on both cases from the Appalachian Basin and from other producing states, to help guide operators and practitioners when considering operations clauses under form oil and gas leases.
2:30-3:15 p.m. Surface Trespass Liability — Bad Faith, Good Faith
- Keith B. Hall, Director of Mineral Law Institute, Louisiana State University Law Center, Baton Rouge, LA
Sometimes, a company removes oil, gas, or coal from a property without having valid authority — perhaps because the company relied on lease rights that it acquired from a lessor who lacked title to the minerals or because an otherwise valid lease has expired. In such cases, the true mineral owner may have a monetary claim based on trespass, but what is the measure of damages? Is it the entire value of the minerals produced; that value, minus the cost of production; or a sum equivalent to a market-rate royalty? The measure of damages typically depends on whether the trespasser was in “good faith” or “bad faith.” But what do “good faith” and “bad faith” mean? And what other damages might be available? For example, what if the trespasser drills a dry hole and this diminishes the mineral owner’s chance to grant a lucrative lease?
3:15-3:30 p.m. Break
3:30-4:15 p.m. Preserving the Attorney-Client Privilege: Issues Faced by In-house Energy Counsels
- Kevin K. Douglass, Babst Calland, Pittsburgh, PA
This presentation will focus on the importance of in-house corporate energy counsel’s identification of their client (the company vs. individual employees) in situations where potential conflicts can arise and will feature a discussion of the real life experience of Penn State University general counsel in the Jerry Sandusky case, as well as other fact situations. The presentation will also cover in-house legal advice vs. business communications, waiver, the risks associated with email communications and the work product doctrine.
4:15-5:00 p.m. Environmental Issues Facing the Publicly Traded Energy Company
- Shane Harvey, Jackson Kelly PLLC, Charleston, WV
Energy companies work hard to comply with a wide range of complex environmental regulations. For publicly traded energy companies, that task can be even more difficult. Publicly traded companies must comply with securities laws requiring the timely and accurate disclosure of environmental risks and must respond to shareholder proposals relating to environmental matters. Increasingly, environmental groups are becoming shareholders in publicly traded companies for the sole purpose of using securities laws to promote their agendas. These same groups are also engaged in sophisticated efforts to cut off equity or debt financing for energy producers. This presentation will focus on recent trends and developments in these areas and provide advice on how to deal with these challenges.
5:00-6:00 p.m. Corporate Counsel Panel
- Kevin West, Moderator, Steptoe & Johnson PLLC, Columbus, OH
- Jessica Blake Brisendine, Equitrans Midstream, Pittsburgh, PA
- Gary D. McCollum, Alliance Coal, LLP, Lexington, KY
- Benjamin M. Sullivan, Diversified Gas & Oil Corporation, Charleston, WV
- Kathryn S. Wilson, Natural Resource Partners L.P., Houston, TX
6:00-7:00 p.m. Hosted Reception
Thursday, October 17 Track 1 – Corporate and Land Counsel
8:30-9:15 a.m. Employee Benefits
- Gregory J. Ossi, Drinker Biddle & Reath LLP, Washington, DC
A review of current topics in health care, retirement plans and should your company/client consider an ESOP? A look at issues energy clients have in (1) providing health care, including PBMs, opioids and selecting a TPA; (2) providing retirement benefits, including 401(k) fee lawsuits, fiduciary issues and (3) what is an ESOP and why should I care.
9:15-10:00 a.m. Regulatory Changes Following Advancements in Technology
- William G. Barr III, BlackRidge Resource Partners LLC, Lexington, KY
Kentucky has successfully utilized an inclusive workgroup approach to update its oil and gas regulatory structure. This presentation will provide an overview of the workgroup approach and detail its successes over the past five years, including the recently effective changes to Kentucky Revised Statutes Chapter 353 contained in House Bill 199.
10:00-10:15 a.m. Break
10:15-11:00 a.m. The Ohio Dormant Mineral Act: Living in a Post-Corban Era
- Mike Rush, EQT Corporation, Pittsburgh, PA
From the moment the first Marcellus-bound or Utica-bound drill bit plunged into the earth lying below the State of Ohio, exploration and production companies have been wrestling with the mechanics of that state's dormant mineral act. First enacted in 1989 and later amended in 2006, the Ohio Dormant Mineral Act's ("ODMA") goal may have been to create framework to determine mineral rights within Ohio; however, the resulting case law has been anything but clarifying. Specifically, on 9/15/2016, the Ohio Supreme Court handed down a landmark ruling in the case captioned Corban v. Chesapeake Exploration, L.L.C., et al. (149 Ohio St.3d 512 (2016)). The court's opinion in Corban dramatically changed how an E&P company viewed its acreage acquired under a pre-Corban paradigm. This presentation seeks to elucidate not only how Corban created such change but also how the resulting and related cases handed down since Corban continue to nail together the framework the legislature started in 1989.
11:00-11:30 a.m. A Checklist for Minimizing Counterparty Bankruptcy Risk
- Mitchell E. Ayer, Thompson & Knight LLP, Houston, TX
There are some relatively inexpensive steps for working interest owners to perfect their interests and protect themselves if a contract counterparty files bankruptcy. Unfortunately, these are often overlooked resulting in losses of literally millions of dollars. This session will address ways to minimize that risk and avoid traps for the unwary if a counterparty files for bankruptcy.
Track 2 – Policy and Decision-Making
8:30-9:15 a.m. Significant Department of the Interior Oil, Gas, and Coal Rulemakings and Orders
- Lauren A. Bachtel, Hunton Andrews Kurth LLP, Washington,
During the Obama Administration, the Department of the Interior (DOI) issued several significant oil, gas, and coal regulations and orders, such as the Bureau of Land Management (BLM) Venting and Flaring Rule, the Office of Natural Resources Revenue Valuation Rule, the BLM Hydraulic Fracturing Rule, and the BLM Coal Leasing Moratorium, all of which were immediately challenged. Upon arrival, the Trump Administration took steps to stay the various litigation, stay and repeal the rules and orders, and enact modified rules, all of which were also challenged. This session will provide an overview of those significant DOI regulations and orders, an update on the ongoing litigation, and discuss the potential for and the consequences of the original rules or orders being revived with a change of administration.
9:15-10:00 a.m. Who has the Final Say: Overview of Recent Cases Involving Conflict Among Local, State, and Federal Approaches to Environmental Protection
- Roger G. Hanshaw, Bowles Rice LLP, Charleston, WV
Environmental regulation in the United States often involves a detailed interplay between federal statutes and regulations on the one hand, and laws adopted by states under the cooperative federalism model on the other hand. It is generally understood how these state and federal efforts work together, but what happens when local jurisdictions attempt to add yet another layer of environmental protection to the overall legal framework? This presentation will provide an overview of the cooperative federalism model of environmental regulation in the United States and survey the recent cases addressing the power of local jurisdictions to enact their own environmental protection programs, as well as the issues of preemption of such local programs where state and federal approaches are found to occupy the entire field of environmental regulation.
10:00-10:15 a.m. Break
10:15-11:00 a.m. Chipping Away at the Stone: Agency Deference after Kisor v. Wilkie
- John M. Williams, Williams Kilpatrick, PLLC, Lexington, KY
This presentation discusses the recent Supreme Court decision in Kisor v. Wilkie and its impact on the deference due an agency’s interpretation of its own regulations under Auer v. Robbins, 519 U.S. 452 (1977). What is the status now, and the probable future of, the deference afforded agencies in interpreting their own rules? Are there now meaningful limits on deference under the Auer Doctrine?
11:00-11:30 a.m. The Use of Renewable Portfolio Standards, Net-Zero Carbon Goals, and Zero Emissions Credits in Reshaping the U.S. Power Industry
- James Van Nostrand, WVU College of Law, Morgantown, WV
States across the country are adopting aggressive policies to quicken the market-driven decarbonization of the electric industry that is already underway. Among other things, states are revisiting their existing renewable portfolio standards to adopt more aggressive goals and subsidizing the continued operation of nuclear plants through zero emissions credits to retain the benefits of zero-carbon, baseload generation as a means of achieving greenhouse gas (GHG) reductions. Some states have adopted zero carbon electricity goals, such as New York's Climate Leadership and Community Protection Act, which calls for 100% carbon-free electricity by 2040 and economy-wide net-zero carbon emissions by 2050. These state-level initiatives have an impact on the operation of the competitive wholesale markets, and potentially have implications for continued shale gas development. This presentation will examine the impact of these decarbonization efforts on the energy industry, and the tensions that have arisen in the conflict between state and federal energy policies.
|Join us for an afternoon at the races!
After Thursday’s program concludes, meet your fellow conference attendees at the world-renowned Keeneland racetrack for horse racing, delicious food, and beautiful views of Kentucky’s countryside. A limited number of reserved covered grandstand tickets are available. Please indicate on your registration form whether you will attend. Tickets are complimentary with conference registration. Guest tickets are available for $10.