Looking Ahead on U.S. and Global Climate Tort Liability Lawsuits Mineral, Wind, and Groundwater Estates in Texas and The Severance Implications Environmental Justice: No longer a Nascent Concept but Hurdles Remain How the Biden Administration Will Impact Environmental Law Barrels and Bytes: The Energy Transition, Digital Transformation, and Cybersecurity
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Volume 58 – Number 5
Energy & Environmental
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March/April 2021
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contents March/April 2021
Volume 58 Number 5
10
14
FEATURES Actions, Local Liabilities: 10 Global Looking Ahead on U.S. and Global Climate Tort Liability Lawsuits By Prof. Tracy Hester
What Lies Beneath Above: 14 Mineral, Wind, and Groundwater Estates in Texas and The Severance Implications By Shanisha Y. Smith
Justice: 18 Environmental No longer a Nascent Concept
18
22
but Hurdles Remain
By Michael J. Wynne and Alexis Summers
the Biden Administration 22 How Will Impact Environmental Law By Eddie C. Lewis and Bob Greenslade
and Bytes: The Energy 26 Barrels Transition, Digital Transformation, and Cybersecurity By Michael Razeeq
Today, Gone Tomorrow: 30 Flare Update on Texas Flaring
26
30
Regulations
By Carly Milner
Social, and 32 Environmental, Governance Due Diligence and Environmental Risk Allocation in Transactions
The Houston Lawyer
By Kimberly Tuthill White and Carina L. Antweil
The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonthly by The Houston Bar Association, 1111 Bagby Street, FLB 200, Houston, TX 77002. Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1111 Bagby Street, FLB 200, 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, 10306 Olympia Dr., Houston, TX 77042, 281-955-2449 ext 1, www.thehoustonlawyer.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. ©The Houston Bar Association/QuantumSUR, Inc., 2021. All rights reserved.
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contents March/April 2021
Volume 58 Number 5
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37
departments Message 6 President’s Advice to a Young Lawyer By Bill Kroger
the Editor 8 From Preserving Our Fortunes By Anna M. Archer
Milestones 34 HBA Houston Bar Foundation: The
Foundation of Vital Community Programs By Natasha Breaux
38
39
Spotlight 36 Section Social Security in the Age of a
Pandemic
By James Passamano
Profile in professionalism 37 AKelly B. Rose
Senior Vice President, Legal and General Counsel ConocoPhillips
THE RECORD 38 OFF A Strong Competitor: Jeannie
Andresen
By Liz Furlow
Spotlight 39 Committee Keeping On: HBA Law Week
Fun Run Goes Virtual
42
By Kimberly A. Chojnacki
trends 40 legal New Laws Allowing Non-Lawyer
Ownership of Law Firms By Ruby L. Powers
The Supreme Court Broadens the Scope of Plain-Error Review (a Little) By Nelson S. Ebaugh
reviews 42 Media The Mourning Wave:
A Novel of the Great Storm Reviewed by Nikki Morris
A Litigator’s Guide to Building Your Best Argument The Houston Lawyer
Reviewed by Brooksie Bonvillain Boutet
44 Litigation MarketPlace 4 March/April 2021
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president’s message By Bill Kroger Baker Botts L.L.P.
Advice to a Young Lawyer
The Houston Lawyer
W
inter storm Uri rolled across Texas this February. Temperatures dropped to levels not seen in recent lifetimes. Millions were without heat, electricity and clean water for days. People died. Pipes broke, and rooms flooded. It was another singular disaster during a time full of them. We live on a crowded planet, with many geopolitical, economic, demographic, technological and other risks. John Maynard Keynes observed many years ago the “intensely unusual, unstable, unreliable, temporary nature” of the modern world. This is especially true now. One event collides into the next, making each impact greater and harder to predict. Given all of this, I would like to share what I have learned this year that might be of value to a young lawyer facing similar uncertainty. 1. Practice your craft seriously, every day. Good lawyering has never been more important. Work on your writing, speaking and advocacy. It will take at least a decade before you will consider yourself skilled. Be patient. 2. Houston is a wonderful place to practice law. It is youthful, with strong legal and business communities, a diverse, skilled citizenry, great universities and colleges, a vibrant art scene, one of the best medical centers in the world, a large port, low tax rates, and a central geographic location in a dynamic state. 3. Find the right life partner. Your most important life decision will be your choice of spouse or partner, a steadfast rock when winds are blowing. Lawyers who have a steady, loving, supportive partner will be more resilient and capable of handling the pressures, longhours, and ups and downs of practicing law. It is a team sport. Find your lifetime mate. 4. Make smart financial decisions. Pay off all of your debts as soon as possible, including your mortgage and student loans, and build a fortress balance sheet. You will enjoy the practice of law much more if you are financially strong and independent. 5. Stay healthy and fit, and eat right. Practicing law is a marathon. You will only be able to handle the stresses if you exercise regularly and eat healthily. During the past year, Elizabeth and I ate more healthy foods and worked out regularly with a trainer. Today, I am 15 pounds lighter than when I started this bar year.
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6. Be a lifetime reader. Over the long run, your development as a lawyer will depend on the people you meet, the places you visit, and the books and newspapers you read. Lifetime readers become lifetime leaders. I read from a stack of books, four papers and many journals daily. As the range of challenges grow, lawyers need to be conversant across a broad range of topics beyond the law, including environmental and social sciences, local and world histories, economics, accounting and finance, technology, and engineering principles. 7. Be grounded in your community. Most great lawyers are from a place, and are leaders within that same community. It matters less what you do, and more that there are causes and projects in your city that you care about. You will meet people who are not lawyers and engage in problem solving outside of your legal practice. You will be a better person, and that will make you a better lawyer. 8. Support the arts. The liberal and performing arts have never been more important for building a foundation for your understanding of our world. When COVID-19 hit, I read Tolstoy. No one wrote more accurately about how people think and behave in hard times than Tolstoy. With George Floyd, I recited Walt Whitman, Langston Hughes, and Gwendolyn Brooks out loud on my front porch. During the winter storm, I read Melville. And during the entire year, I listened to Beethoven – especially the late quartets and sonatas. The Menil also became a place of reflection. 9. Be open to new ideas and experiences. Be curious. Stay in the middle, where most solutions lie. Don’t write angry messages. Spend time with people, not devices. Be hopeful and optimistic – most things work out. Most of your biggest worries today will never happen tomorrow. 10. Slow down. When the world speeds, up, go at a calm, steady pace. Keep lists. Sleep. Go for walks. Take breaks when you write so that you have time to reflect. If you work hard, take your professionalism seriously, and do your best work every day, then over time, you will build a meaningful practice and a rewarding purposeful life, especially in a world with many challenges.
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March/April 2021
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from the editor By Anna M. Archer U.S. District Court
Associate Editors
Anietie Akpan METRO
Brooksie Bonvillain Boutet Shipley Snell Montgomery
Kimberly Chojnacki Baker Donelson
Elizabeth Furlow Baker Botts
The Houston Lawyer
Andrew Pearce BoyarMiller
Koby Wilbanks Murrah & Killough
8 March/April 2021
Preserving Our Fortunes
I
n 1836, Davy Crockett famously said, “[A]s to what I have seen of Texas, it is the garden spot of the world. The best land and the best prospect for health I ever saw is here, and I do believe it is a fortune to any man to come here.”1 It’s been almost two centuries since Crockett lauded this great State as being a “garden spot” and described it as a “fortune to any man,” and Texans now face the challenges of preserving our natural environment while not depleting the fortunes that fossil fuels have provided. Additionally, extrapolating Crockett’s reflection to the modern era, we must confront the reality that the fortunes Texas holds have not been equally enjoyed by all people. At times during the past year, Houston has seemed to be far from the garden spot Crockett encountered. We have been dealing with a devastating pandemic, narrowly escaped a hurricane season with a recordbreaking 30 named storms, and are in the process of recovering from a winter storm that left millions in the Houston area without power in freezing temperatures—some for days.2 All of this is occurring at a time when the nation is more ideologically divided than it has been since the Civil Rights Movement, and there seems to be a collective awakening to the sad truth that the dreams sown during that time period have not yet been realized.3 The havoc created by Winter Storm Uri demonstrates how connected energy, the environment, and racial injustice are. The loss of energy during a winter storm that some scientists believe was so destructive due to global warming 4 disproportionately impacted communities of color.5 The people in these communities were already emotionally exhausted from heightened tolls of the pandemic.6 And many have been dealing with the reality for their entire lives that they are more susceptible to pollution from fossil fuels and face higher energy burdens than predominantly white communities.7 As lawyers, now is the time to recognize and confront these intersecting issues and use our advocacy skills to help ensure this garden spot and all the fortunes it has provided will continue to thehoustonlawyer.com
be a refuge for all women and men—equally—in the future. The feature articles in this issue provide insight, from a Houston point of view, into current legal issues relating to energy and the environment. Professor Tracy Hester addresses the expansion of climate change litigation and current trends both domestically and abroad. Shanisha Smith argues that wind estates should be severable property rights just as groundwater estates are. Michael Wynne and Alexis Summers revisit a 1998 The Houston Lawyer article about environmental justice and discuss how much has changed and how much work is left to be done. Eddie C. Lewis and Bob Greenslade provide insight into what environmental law changes they expect to see with the Biden Administration. Michael Razeeq discusses the importance of cyber security as energy companies begin the transition to different sources of power. Carly Milner provides up-to-date information about flaring, and Kimberly Tuthill White and Carina L Antweil write about the increased focus on Environmental, Social, and Governance factors in transactions. Collectively, the feature articles show us that Houston lawyers are prepared to aid in the energy transition and ultimately play an important role in retaining all that we love about this city. Thank you, authors, for educating our readers about these important issues. Thank you, also, to the guest editors for this issue, Carly Milner, Nikki Morris, and Michael Wynne, and to our associate editors, who always provide interesting topics and find amazing authors for the regular columns. Many of the people contributing to this publication about energy and the environment worked on it while they were without energy to power their environments due to the winter storm. Hopefully, our work will give Houston lawyers a resource to rely on as they work to preserve the fortunes of this garden spot for all Houstonians. Endnotes
1. DAVID TRACES OF TEXAS, https://tracesoftexas.com/ (last visited Mar. 8, 2021).
Continued on page 45
BOARD OF DIRECTORS President
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President-Elect
Treasurer
First Vice President
Past President
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Jennifer A. Hasley
Chris Popov
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Second Vice President
Diana Gomez
DIRECTORS (2019-2021)
Collin Cox Pamela Medina
Greg Moore Greg Ulmer
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March/April 2021
9
By Prof. Tracy Hester
Global Actions, Local Liabilities:
Looking Ahead on U.S. and Global Climate Tort Liability Lawsuits
U
.S. climate change politics have waxed and waned over the past 30 years, but climate litigation continues to steadily expand against the tides. The term “climate litigation” itself has become a conceptual big tent that includes a motley collection of lawsuits seeking to force government action, challenge administrative decisions on greenhouse gas permits and emission limits, enforce human rights and constitutional protections against harms from climate change, and impose liability on emitters of greenhouse gases for damages from climate change allegedly caused by their emissions. Trial lawyers now specialize in the field, and some law firms have built active climate litigation practice groups.1
The numbers bear out this trend. According to the latest tally of global activity in climate change litigation, plaintiffs have filed a total of 1,587 cases of climate litigation in at least 37 different national court systems or international bodies since 1986 —and most of them in the past decade. While the majority of those cases initially arose in the United States (1,213), lawsuits also appeared in Australia, the United Kingdom, and European bodies and courts.2 Even the global South has begun to actively participate in the growing wave of climate lawsuits and transnational litigation.3 As international climate litigation has grown, a mounting portion of it explicitly seeks to force strategic change by governments. Most of these courtroom battles, of course, still center on the particular interests of parties affected by a local action or agency decision (e.g., approval of a permit for an LNG terminal). But other lawsuits explicitly aim to promote changes in public policy on climate, force changes in behavior from key actors, and raise public awareness of particular climate risks. These strategic lawsuits have absorbed a growing amount of attention and resources as the courts and other judicial bodies find themselves slowly pushed into the center of the push to achieve an effective climate response. One category of climate litigation in the United States seeks to combine these strategic goals with more pecuniary interests: climate tort liability actions. These lawsuits allege that emitters of greenhouse gases, or purveyors of products that emit greenhouse gases when used (such as liquid hydrocarbon fuels or thermal coal), bear liability for damages caused by climate changes due, in part, to their emissions. These claims originally sounded in either traditional tort doctrines such as negligence, nuisance, or trespass, or they drew on strict liability doctrines for allegedly ultrahazardous activities. Later lawsuits also alleged that some companies, including large fossil fuel producers, committed tortious misrepresentations and concealed information about the
harms posed by their products. The first wave of climate tort lawsuits relied on federal common law to allege that interstate emissions constituted public nuisances that merited either damages or injunctive relief. These federal actions ended in a decisive defeat in 2011. In American Electric Power v. Connecticut, a unanimous U.S. Supreme Court ruled that Congress had displaced the entire field of federal common law public nuisance liability for greenhouse gas emissions when it authorized the U.S. Environmental Protection Agency (“EPA”) to regulate those pollutants under the federal Clean Air Act.4 Congress’s prior action swept aside the fragile field of federal common law for climate tort actions – even if the EPA chose never to exercise its regulatory power under the statute. After the setback in American Electric Power, U.S. climate tort litigation has resurged anew. The substantive factual allegations and damage claims look similar to the initial federal tort actions, but the legal basis of liability has a new forum and body of law: state law and state courts. Local governments, including large cities and state governments, have now filed over 20 actions in state courts in California, Colorado, Washington, Rhode Island, Virginia, Hawaii, Ohio, and other states. These actions rely on state tort and consumer protection laws to support the claims, and none of them invoke federal common law or federal statutory authorities.5 Despite several fierce skirmishes over jurisdictional defenses and justiciability claims, some of these tort actions are poised to begin discovery and tackle substantive motions in state courts. For example, the City of Oakland’s tort action against BP, Chevron, and numerous energy corporations has survived a removal action, a dismissal by the federal district court, a reversal by the Ninth Circuit of that dismissal, and denial of an en banc rehearing by the Ninth Circuit – thereby opening the way for the case to finally return to California state courts and begin initial settings for trial.6 Similarly, many
of the defendants in other state tort actions have sought to remove them to federal courts by alleging that they raise legal issues which require application of federal law, or that they necessarily will bring federal officers into the lawsuits. Essentially, the first major fights of the new wave of state tort suits have centered on where to fight, not the fight itself. With discovery and substantive arguments looming, the U.S. Supreme Court may step in again – but in an unexpected way. On January 19, 2021, the Court heard oral arguments in BP P.L.C. v. City of Baltimore over a relatively small and obscure question of appellate law.7 When Baltimore brought its public nuisance tort action against a collection of large energy and industrial corporations, it initially sued in Maryland local courts and relied solely on Maryland tort laws for its claim. In response, the defendants have repeatedly sought to remove the action to federal courts. The federal district court initially denied the removal attempt, and it remanded the case to the Maryland courts. The defendants appealed to the
Fourth Circuit, which also denied this attempt to remove the case —and hence led to their request for review to the U.S. Supreme Court. While BP P.L.C. involves potentially titanic questions of climate liability and responsibility, the U.S. Supreme Court heard arguments on an exceedingly narrow issue of appellate jurisdiction: the scope of appellate review of a district court’s decision to deny a removal action. Normally, federal law prohibits an appellate court from reviewing a court’s denial of a removal action. But narrow statutory exceptions allow appellate review if the removal action relied on the federal officer removal statute. The question, then, centered on what issues the appellate court could assess if defendants relied on the federal officer removal statute to seek appellate review. Could the defendants insist that the appellate court review all of their claimed bases for removal? Or should the appellate court review only the federal officer removal issue? Notably, this obscure issue has already provoked a split in the
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March/April 2021
11
circuit courts. In oral arguments, the justices focused on familiar statutory interpretation doctrines.8 In particular, the petitioners highlighted the plain textual meaning of the word “order” in the federal removal statute. This word choice by Congress implied, arguably, that an appellate court could review all issues related to the “order” itself rather than simply the federal officer issue alone. Other justices focused on whether Congress had implicitly endorsed a narrow interpretation of the federal officer statute when it revised the statute without changing the language at issue. In the stilted round-robin oral argument required by COVID-19 pandemic restrictions, the questions from the justices hinted that the Court is narrowly divided. More tellingly, the Trojan Horse got noticed. While the arguments focused on the scope of appellate review on denial of federal officer renewal, the true battle – whether the Court should also directly rule on the underlying issues on whether state tort law should govern potential liability for damages caused by global climate change – pulsed below the surface. When Justice Barrett asked counsel for the petitioners whether it would be “fairly aggressive” to decide whether the underlying climate tort claims necessarily arose under federal jurisdiction (and prevented state law suits), the petitioners’ counsel flatly said no because the issue was fully briefed and “the answer is clear” – i.e., federal law governs the issue and precludes state tort actions.9 Justice Thomas raised the same question with the solicitor general’s attorney, who replied that the United States agreed that federal common law “governed the nature of the injury” here.10 Even if the Court declines to answer the federal preemption issue via the BP P.L.C. v. City of Baltimore vehicle, these lawsuits likely will resurface in its docket unless Congress takes direct action. This opening skirmish at the Court targets narrow questions over appellate review, but future battles will quickly replace it 12 March/April 2021
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at the Court and state supreme courts. These pending fights will likely center on more substantive issues: the preemption of state law by regulatory action (or inaction) under the federal Clean Air Act, the standing of litigants to bring tort claims in state courts where criteria may vary from federal standards, the ability of state courts to exercise jurisdiction over foreign defendants based on emissions or representations occurring in other states or nations, and many others. Even once past these threshold issues, substantive challenges would still loom over the actual mechanics of hosting such a trial, wrestling with complicated issues of causation and attribution, coordinating multiple state court actions involving similar parties, and marshalling and admissibility of expert evidence on complex climate science. The Biden Administration’s fast start on climate action via multiple executive orders augurs a complex interplay of complementary forces affecting state climate tort actions.11 Energetic progress by the federal executive branch on climate action, ironically, may create a growing headwind against the viability of state climate tort actions. While the federal Clean Air Act includes express savings clauses to preserve the viability of additional state laws and regulations on air pollution (including some torts),12 the prospects for actual conflict or field preemption grow if EPA undertakes aggressive regulatory actions and permitting requirements for greenhouse gas emissions. Regulatory initiatives may not necessarily preclude tort liability for past actions that predated the new regime, but the breadth of federal action may make it easier for state and federal courts to find that federal law better fits the imposition of any liability for greenhouse gas emissions. And Congress, of course, may have the last word if it passes significant climate legislation. One proposal for climate legislation by a bipartisan pro-market group advocating a carbon tax included an express statutory preemption of state tort liability as part of the overall frame-
work for federal regulation. This suggestion sparked immediate and intense objections, and it was quickly abandoned in subsequent proposals.13 But the prospect remains on the table – especially if any of the state climate tort actions appear anywhere near actual trial or issuance of liability judgments. While the U.S. Constitution imposes relatively few limits on the power of Congress to preempt state laws, the history of statutory preemption clauses suggests that drafting these clauses is much more complex and difficult than many advocates expect. In the end, even action by Congress or the U.S. Supreme Court will not end the climate tort liability struggle. Climate change is a global phenomenon, and other national courts will almost certainly press ahead with liability claims even if the United States declines to do so. Some foreign litigants have already begun to bring their claims in defendants’ national courts to recover damages that they suffered in their homelands. For example, in Lliuya v. RWE a Peruvian farmer has sued Germany’s largest electrical power providers in German court of appeals in Hamburg for emitting greenhouse gases that contributed to mountain glacial losses in Peru. These losses, in turn, have allegedly raised the risks for flooding and disruption near his home.14 Foreign plaintiffs in other lawsuits have pursued actions against defendants in their home jurisdictions for environmental damages that they caused abroad, although transnational climate tort actions still appear to be rare. Alternatively, some plaintiffs may ultimately bring climate damage actions in their home courts against foreign defendants. These actions would rely on domestic laws and tort systems that may favor the plaintiffs, and these cases may yield substantial judgments. The enforcement of these foreign judgments in the defendants’ home court systems might then face less daunting barriers because most nations, including the United States, do not allow re-litigation of an underlying dispute when a successful litigant
seeks to enforce a final foreign judgment rendered abroad (as long as it meets basic standards of fairness and due process). This outcome, of course, raises troubles of its own. Greenhouse gas emitters may face in the future conflicting liability judgments from multiple domestic and foreign court systems by overlapping plaintiffs with varying theories of liability. The prospects of an international uniform resolution of these liability claims appears remote, and the vast creativity currently used in crafting these claims may ultimately reappear in efforts to structure effective settlements and proactive claim preclusions. In the meantime, climate tort liability actions appear here to stay, and they will likely grow in stakes and complexity as climate action continues to ramp up in the United States and abroad. Professor Tracy Hester teaches environmental law at the University of Houston Law Center. His research focuses on the innovative application of environmental laws
to emerging technologies and unanticipated risks, including climate engineering; deep decarbonization (particularly in energy production); and advanced wind, solar, and other renewable power systems. Prof. Hester is currently the co-director and a co-founder of the Center for Carbon Management in Energy at the University of Houston. Endnotes
1. Janet The Sabin Center for Climate Change Law at Columbia University School of Law co-hosts a database of U.S. and global change litigation that tracks lawsuits in all of these categories and several others (e.g., securities lawsuits and retaliation lawsuits against climate scientists). The climate litigation database is available at www. climatecasechart.com and at climate.law.columbia.edu. 2. JOANA SETZER & REBECCA BYRNES, LONDON SCH. OF ECON. & POL. SCI., GLOBAL TRENDS IN CLIMATE CHANGE LITIGATION: 2020 SNAPSHOT, 4 (2020), https://www.lse.ac.uk/granthaminstitute/wpcontent/uploads/2020/07/Global-trends-in-climatechange-litigation_2020-snapshot.pdf. 3. Jennifer Hijazi, Next Frontier in Climate Law: The Global South, CLIMATEWIRE (May 13, 2020), https://www. eenews.net/climatewire/stories/1063118845/print. 4. Am. Elec. Power v. Connecticut, 564 U.S. 410 (2011). 5. Ellen Gilmer, Climate Cases Poised for Bigger Fights as Courts Clear Hurdles, BLOOMBERG LAW (June 2, 2020, 5:01 a.m.), https://news.bloomberglaw.com/environmentand-energy/climate-cases-poised-for-bigger-fightsas-courts-clear-hurdles?context=article-related; Jennifer Hijazi, 2020 Could Bring Dramatic Movement on Climate Liability, CLIMATEWIRE (Dec. 23, 2019), https://www. eenews.net/climatewire/stories/1061883257/print.
6. Michael Phillis, Ninth Circuit Won’t Rethink Order Remanding California Climate Suits, LAW360 (Aug. 12, 2020, 8:54 p.m.), https://www.law360.com/articles/1300782/9thcirc-won-t-rethink-order-remanding-calif-climate-suits. 7. BP P.L.C. v. Mayor & City Council of Baltimore, No. 24C-18-004219, 2019 WL 7304940 (Md. Cir. Ct. Dec. 5, 2019); see Transcript, BP P.L.C. v. Mayor & City Council of Baltimore, No. 19-1189 (U.S. Jan. 19, 2021), https:// www.supremecourt.gov/docket/docketfiles/html/public/19-1189.html (last visited on Feb. 15, 2021). 8. Transcript, supra note 7. 9. Id. at 22. 10. Id. at 30–31. 11. See, e.g., Executive Order on Tackling the Climate Crisis at Home and Abroad, WHITE HOUSE (Jan. 27, 2021), https:// www.whitehouse.gov/briefing-room/presidentialactions/2021/01/27/executive-order-on-tackling-theclimate-crisis-at-home-and-abroad/ . 12. 42 U.S.C. §§ 7604(e), 7416. 13. The bipartisan Climate Leadership Council proposed a statutory preemption of state climate tort liability as part of its comprehensive plan to implement a carbon tax. After the proposal drew strong objections, the Council’s subsequent versions of the plan omitted the liability preemption language. Current legislative proposals by other groups either expressly preserve state law claims or leave the issue unaddressed. Dana Drugmand, New Carbon Bills Won’t Let Oil Companies Off the Hook for Climate Costs, THE CLIMATE DOCKET (July 31, 2018), https://www.climatedocket.com/2019/07/31/carbonbills-climate-liability-waiver/. 14. Sabin Ctr. For Climate Change L., Luciano Lliuya v. RWE AG, CLIMATE CHANGE LITIG. DATABASE, http://climatecasechart.com/non-us-case/lliuya-vrwe-ag/#:~:text=RWE%20AG,-Filing%20Date%3A%20 2015&text=Summary%3A&text=Luciano%20Lliuya’s%20suit%20alleged%20that,town%20of%20 Huaraz%2C%20population%20120%2C000 (last visited Feb. 12, 2021).
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March/April 2021
13
By Shanisha Y. Smith
What Lies Beneath Above:
Mineral, Wind, and Groundwater Estates in Texas and The Severance Implications
E
nergy companies will be left behind if focus is not shifted to what is shaking our global conscience: climate change, the economy, the COVID-19 pandemic, and racial inequality. This is a reckoning period. Reinvention is amiss. In 2021, energy companies must cut greenhouse gas emissions by exploring investments in renewable energy and green technology amid pressures from investors, regulators, and customers. Even the U.S. Securities and Exchange Commission is directing companies to focus on climate-related disclosures.1 These pressures have mounted in Texas after the statewide electricity crisis in below freezing temperatures. Yes, we now know that the cause of the Texas Blackout was a “perfect storm” literally and figuratively—the combination of freezing natural gas pipelines, failed wind turbines,
the loss of some natural gas and coal generation, and the loss of a nuclear reactor.2 Here’s what happened: Cold temperatures forced an extreme electric demand and a decrease in supply. Wind turbines froze. Natural gas wells froze, too. And pipelines. Don’t leave out the critical pipes at coal and nuclear power plants; they froze as well. Equipment panels went offline. The “perfect storm” for disaster. Energy companies face a complex problem: building reliable infrastructure in the midst of climate change while creating jobs and a clean energy economy under President Biden’s goal of reaching a net zero emissions future by 2050.3 The collective impact of the pandemic, the blackout, and climate change has increased the draw of investment in diverse, green energy assets such as wind power. The severance of the wind estate in Texas is unclear, but legal precedent provides guidance. Let’s analyze a scenario to highlight the issue. Wind Estate Severance: An Example You have volunteered to take a pro bono case. The client is an elderly developmentally disabled woman from Humble, Texas. The client’s personal representative is her brother. Upon death, the parents devised the client a ranch—understanding the gravity of the client’s current and future medical expenses, living expenses, and care. The 2,700-acre ranch has a producing well, an aquifer, and some farming equipment. The client wants to sell 25% of the wind estate to an Austin investment firm. The client’s brother says that this transaction would allow them access to immediate cash, funds to pay off expenses from the estate, money for future medical expenses and care, and future royalties. The client and her brother ask for your legal opinion on the severance of the wind estate and the implications of the client’s other property rights. Keep in mind that a wind lease could provide various payments and compensation for the client such as royalties, bonus payments, delay rentals (on development fees), rents, and options, along with fees for surface disturbance, installation, and facilities. Energy
produced from wind could also aid in another Texas blackout or freeze. Lucky for you, the resources and available information to advise the client are vast. The State of Texas leads the nation in the production of oil, gas, and wind energy.4 Texas favors citizen profitability from the private ownership of mineral estates. Under Texas law, one can sever property devising title to the surface estate to one party and title to the mineral estates to other parties.5 Unfortunately, Texas has not recognized the outright severance of the wind estate. This article provides readers with legal and practical clarity on why the wind estate is a severable property interest just as the mineral and groundwater estates are severable.6
gas, groundwater, granite, caliche, and uranium are all individual mineral rights in Texas that can be individually severed.11 Therefore, a Texas landowner should have the option to retain, convey, or bequeath all property rights, including those in the wind estate. Groundwater Estate Severance Law Serves as a Guide Texas treatment of groundwater provides sufficient guidance for the severability
of the wind estate.12 Texans have had a longstanding relationship with their water supply. In 1917, Texas voters ratified a water-related amendment.13 The amendment created “conservation and reclamation districts” as units of local government and made the preservation of natural resources a public right and duty.14 Of all the water we use in Texas, about 60 percent is groundwater; the other 40 percent is surface water.15 In 1972, the Texas Supreme Court found that “[w]ater, unsevered
Traditional Estate Severance in Texas Estate severance in Texas is deeply rooted in private property rights.7 Texas common law provides clarity for property owners with interests in wind estates, surface estates, mineral estates, and groundwater estates.8 It is likely that the Texas Legislature and the Texas judiciary will follow the precedent applied to groundwater and mineral estates and affirm that the wind estate may be severed from the surface estate. The idea that surface owners hold the right to the wind that flows across their land is supported by Texas common law—cujus est solum, ejus est usque ad coelum et ad inferos—to whomsoever the soil belongs, it is theirs up to the sky and down to the depths.9 Precedent upholds the right to use land to establish the necessary equipment to build a wind farm and the right to use the airspace appurtenant to the land both reside with the surface owner. Even though there is not yet Texas case law or a statute directly addressing the severance of wind rights, a wind severance will likely be upheld if challenged. Throughout the history of the Republic of Texas and State of Texas, property owners have been able to make decisions about their own property. For example, during the Great Depression, landowners sold their mineral estates to produce income to take care of their families.10 Oil, thehoustonlawyer.com
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expressly by conveyance or reservation, has been held to be a part of the surface estate.”16 The Court pronounced that surface interests include “not only the soil, but also any underground water supplies at all depths under the land” but exclude “the oil, gas and other minerals therein.”17 Though the groundwater estate was held to be a part of the surface estate, the express conveyance or reservation of the groundwater estate creates a severed estate. This supports Texas’s historical posture that Texans have the right to contract regarding their “bundle of sticks” as they see fit.18 Wind should follow this pattern, policy, and practice.19 Old Theories Provide the Foundation for Wind Estate Severance Courts have provided an outline for the severance of the wind estate through their treatment of groundwater under the “absolute ownership theory,” the “ownershipin-place theory,” and the accommodation doctrine. And attorneys have severed groundwater estates prior to receiving judicial or legislative guidance, relying on the policy that Texans have the right to contract. In 2008, a Texas appellate court weighed in and upheld the cogency of deed provisions severing groundwater rights.20 Under the “absolute ownership theory,” a grantor can reserve all groundwater rights when she conveys the remainder of the fee, consequently creating a separate groundwater estate.21 The Texas Supreme Court held that percolating water is a “part of, and not different from, the “soil” and the landowner is the “absolute” owner of it.22 “Water, unsevered expressly by conveyance or reservation, is part of the surface estate.”23 Groundwater is the “exclusive property” of the owner of the surface and “subject to barter and sale as any other species of property.”24 In 2012 and again in 2016, the Texas Supreme Court aligned ownership of groundwater to the ownership of minerals, providing more guidance for landowners.25 In the 2012 case, Edwards Aquifer Authority v. Day, the Court held that land ownership includes a distinct, divisible, 16 March/April 2021
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and constitutionally protectable interest in the groundwater beneath the surface estate, similar to that of oil and gas.26 The Court further determined the ownership of groundwater to be “in place” by adopting the ownership theory previously applied to mineral estates.27 The ownershipin-place theory establishes that a surface owner, owning a property in fee simple, owns all the minerals and groundwater, fugitive resources, and solid resources below his surface estate. In 2016, the Texas Supreme Court went a step further in protecting the individual property rights of groundwater owners when it applied the accommodation doctrine to groundwater estates in Coyote Lake Ranch v. City of Lubbock.28 The accommodation doctrine requires the balancing of interests of the surface estate and the groundwater or mineral owner who carry the dominant easement over the surface estate. The Court again analogized the similarities between groundwater and mineral estates, focusing on the aspects that both estates consist of fugacious and fungible resources, both may be severed from the surface estate, both are subterranean reservoirs, and both are subject to the rule of capture. The Court stated that it had “applied the [accommodation] doctrine only when mineral interests are involved. But similarities between mineral and groundwater estates, as well as their conflicts with surface estates, persuade us to extend the accommodation doctrine to groundwater interests.”29 The Texas Supreme Court’s application of the accommodation doctrine to groundwater in Coyote Lake Ranch was a significant step in the ownership of groundwater estates because the groundwater estate gains a dominant easement over the surface estate.30 Having a dominant easement over the surface estate allows the owner of
the dominant estate to drill for water and install pipelines to transport water on the surface estate without gaining permission from the landowner.31 This rationale can be easily applied to the wind estate. As with the other severable interests, wind is another “stick in the bundle” subject to the absolute ownership theory, the ownership-in-place theory, and the accommodation doctrine. Established Rules Should Apply to Severing the Wind Estate The first commercial wind turbine was built in Howard County in 1999, and thus wind energy has been harvested in Texas for over 20 years.32 By 2020, wind turbines supplied 23 percent of Texas’s electricity.33
Approximately 1,000 deeds have been filed in Texas severing the wind estate from the surface estate. Severing wind rights in Texas is now a common practice, and property owners need certainty regarding their property interests.35 We know that even severed from the surface, wind rights are valuable in the marketplace. Texas law has a long tradition of protecting private property rights and encouraging the development of the state’s natural resources.36 Landowners want to continue the power to separately transfer, bequeath, or sell the minerals or groundwater below the land and the wind above the land, giving the landowner myriad options for property ownership and development. The client in the scenario above
could sell the surface estate and keep the mineral estate for the future monies. Or, the client could sell the mineral estate to pay estate taxes. The client could make additional funds from the mineral estate, groundwater estate, and wind estate. The historical approach the Republic of Texas and the State of Texas took regarding private property rights, the historical analysis of the severability of groundwater estates, and the public policy of creating certainty and stability in the energy sector all support severability of the wind estate.37 The same reasoning that supports severing both the groundwater and mineral estates supports severing the wind estate. The accommodation doctrine has provided a sound basis for resolving conflicts between ownership interests. Similarities between mineral, groundwater, and wind estates, including their conflicts with surface estates, extends the accommodation doctrine to wind production. All the mineral, groundwater, and wind estates consist of fugacious and fungible resources, and all are subject to the rule of capture. Property ownership theories support the severance of the wind estate. The wind estate has the same right to use the surface that a severed mineral estate and a groundwater estate does. As with groundwater and minerals, there is an element of the rule of capture that may be applied to wind.38 Because wind is a renewable resource, wasting it does not raise the same concerns as wasting oil and gas. Texas will liken wind ownership to groundwater ownership or mineral ownership, following public policy, common practice, Edwards Aquifer Authority, and Coyote Lake Ranch to allow the severance of undeveloped wind rights to protect private property interests of landowners in Texas. Wind development strengthens our economy and transmission system, and there is legal precedent to support its severance. Shanisha Y. Smith is an associate at Baker & Hostetler LLP where she practices energy and environmental litigation. While obtaining her LL.M in Energy, Environmental
and Natural Resources Law, she worked at the Texas Railroad Commission and the Comisión Nacional de Hidrocarburos during the Mexico Energy Reform. Any opinions expressed in this article are those of the author and should not be construed to be those of Baker & Hostetler LLP, its client(s), or any of its or their respective affiliates. Endnotes
1. PUBLIC STATEMENT, SEC Emblem (2021), https:// www.sec.gov/news/public-statement/lee-statementreview-climate-related-disclosure (last visited Mar 1, 2021); CERAWEEK: ACTING SEC CHAIR SEEKS AN INTERNATIONAL BASELINE FOR MEASURING CLIMATE RISK, IHS Markit (2021), https://ihsmarkit.com/ research-analysis/ceraweek-acting-sec-chair-seeksan-international-baseline-for-.html (last visited Mar 2, 2021). 2. See, e.g., Veronica Penney, How Texas’ Power Generation Failed During the Storm, in Charts, N.Y. TIMES, Feb. 19, 2021, https://www.nytimes.com/interactive/2021/02/19/ climate/texas-storm-power-generation-charts.html. “It was across the board,” says Bill Magness, the president and CEO of ERCOT, or the Electric Reliability Council of Texas. “We saw coal plants, gas plants, wind, solar, just all sorts of our resources trip off and not be able to perform.” Morning Edition, What Really Caused the Texas Power Shortage, NPR HOUS. PUB. MEDIA (Feb. 18, 2021, 5:10 a.m.), https://www.npr.org/2021/02/18/968921895/ what-really-caused-the-texas-power-shortage. 3. Exec. Order No. 14008 § 201, 86 Fed. Reg. 7619, 7622 (Jan. 27, 2021), https://www.federalregister.gov/documents/ 2021/02/01/2021-02177/tackling-the-climate-crisis-athome-and-abroad. 4. K.K. DuVivier & Roderick E. Wetsel, Jousting at Windmills: When Wind Power Development Collides with Oil, Gas, and Mineral Development, 55 ROCKY MTN. MIN. L. INST. § 9.01 (2009). 5. See Harris v. Currie, 176 S.W.2d 302, 304 (Tex. 1943) (“The owner has the right to sever his land into two estates, and he may dispose of the mineral estate and retain the surface, or he may dispose of the surface estate and retain the minerals.”); see also Bagby v. Bredthauer, 627 S.W.2d 190, 194 (Tex. App.—Austin 1981, no writ). 6. The Texas Supreme Court has aligned groundwater estates and mineral estates, holding the groundwater estate to be a freely severable estate. See Coyote Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d 53 (Tex. 2016); Edwards Aquifer Auth. v. Day, 369 S.W.3d 814 (Tex. 2012). 7. See generally Colleen Schreiber, Landowner Attorney Discusses Private Property Rights, TEX. AGRIC. L. BLOG (May 2, 2016), https://agrilife.org/texasaglaw/2016/05/02/ landowner-attorney-discusses-private-property-rights/. 8. See, e.g., Coyote Lake Ranch, LLC, 498 S.W.3d 53; Edwards Aquifer Auth., 369 S.W.3d 814. 9. See 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 18 (William Draper Lewis ed., 1902) (discussing the cujus est solum doctrine). 10. See RICHARD KING, KING & CO., 2018 ANNUAL REPORT (April 10, 2019), https://rkingco.com/category/ mineral-owners/. 11. See Moser v. U.S. Steel Corp., 676 S.W.2d 99, 102 (Tex. 1984). 12. Coyote Lake Ranch, 498 S.W.3d at 55 (holding that the accommodation doctrine applies to groundwater); Edwards Aquifer Auth., 369 S.W.3d at 817 (holding that “land ownership includes an interest in groundwater in place”). 13. See TEX. CONST. art. XVI, § 59. 14. Id. § 59(a), (b); see also Dallas County Levee Dist. No. 2 v. Looney, 109 Tex. 326, 207 S.W. 310 (1918). 15. College of Geosciences, Texas Water, TEX. A&M UNIV., https://texaswater.tamu.edu/faqs (last visited Feb. 21, 2021) (information for Texans about Texas water).
16. Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 811 (Tex. 1972) (allowing a mineral estate owner to use underlying groundwater for oil production) (citing Fleming Found. v. Texaco, Inc., 337 S.W.2d 846 (Tex. Civ. App.—Amarillo 1960, writ ref’d n.r.e.)). 17. Fleming Found., 337 S.W.2d at 850. 18. Sun Oil Co., 483 S.W.2d at 814 (Daniel, J., dissenting). 19. See Alan J. Alexander, Texas Wind Estate: Wind as a Natural Resource and a Severable Property Interest, 44 U. MICH. J. L. REFORM 429, 457 (2011). 20. See generally City of Del Rio v. Clayton Sam Colt Hamilton Tr., 269 S.W.3d 613, 617–18 (Tex. App.—San Antonio 2008, pet. denied) (holding that the landowner was entitled to sever the groundwater from the surface estate when it conveyed surface estate via warranty deed). 21. Id. at 617–18 (citing Friendswood Dev. Co. v. Smith-Sw. Indus., Inc., 576 S.W.2d 21, 25–27 (Tex. 1978); Sun Oil Co., 483 S.W.2d at 811; Texas Co. v. Burkett, 296 S.W. 273, 278 (1927)). 22. Hous. & T.C. Ry. Co. v. East, 98 Tex. 146, 81 S.W. 279, 281 (1904); see, e.g., City of Sherman v. Pub. Util. Comm’n, 643 S.W.2d 681, 686 (Tex. 1983) (“The absolute ownership theory regarding groundwater was adopted by this Court in Houston & T.C. Ry. Co. v. East, 98 Tex. 146, 81 S.W. 279 (1904).”); Friendswood Dev. Co. , 576 S.W.2d at 25–27. 23. Sun Oil Co., 483 S.W.2d at 811. 24. Texas Co., 296 S.W. at 278. 25. Coyote Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d 53, 55 (Tex. 2016) (holding that the accommodation doctrine applies to groundwater); Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 817 (Tex. 2012) (holding that “land ownership includes an interest in groundwater in place”). 26. Edwards Aquifer Auth., 369 S.W.3d at 823. 27. See id. at 831–32. The Texas Supreme Court outlined ownership “in place” for oil and gas in Elliff v. Texon Drilling Co., 210 S.W.2d 558 (Tex. 1948). 28. See Coyote Lake Ranch, 498 S.W.3d at 64. 29. Id. at 62–64. 30. See id.at 64. 31. See Brent Dore, Teaching an Old Dog a New Trick: Examining the Intersection of the Accommodation Doctrine and Groundwater Rights Through the Lens of City of Lubbock v. Coyote Lake Ranch, LLC, 3 TEX. A&M L. REV. 853, 882–83 (2016). 32. See John O. King, The Early Texas Oil Industry: Beginnings at Corsicana, 1894-1901, 32 J.S. HIST. 505, 505–06 (1966). 33. Nate Chute, What Percentage of Texas Energy Is Renewable? Breaking Down the State’s Power Sources from Gas to Wind., AUSTIN AM.-STATEMAN, Feb. 17, 2021, https://www. statesman.com/story/news/2021/02/17/texas-energywind-power-outage-natural-gas-renewable-green-newdeal/6780546002/. 34. Ed Browne, GRAPHIC SHOWS WHAT PERCENTAGE OF TEXAS’ ENERGY IS RENEWABLE Newsweek (2021), https://www.newsweek.com/how-much-power-texasrenewable-coal-gas-wind-turbines-1570238 (last visited Mar 2, 2021). 35. Mose Buchele, Texas Landowners Take the Wind Out of Their Sales, KUT (Dec. 11, 2017, 5:01 a.m.), http://kut.org / post/texas-landowners-take-wind-out-their-sales/. 36. Humble Oil & Refining Co. v. West, 508 S.W.2d 812 (Tex. 1974). 37. See Robert Montgomery, Water to Wind: The Path Texas Groundwater Law Provides to Sever the Wind Estate and Prioritize Mutually Dominant Estates, 50 TEX. ENVTL. L.J. 107, 114 (2020) (citing Steven K. DeWolf & Rod E. Wetsel, Wind Energy Seminar, WIND LAW (Feb. 22, 2012). 38. Terry E. Hogwood, Against the Wind, STATE BAR TEX. OIL, GAS & ENERGY RES. L. SECTION REP., Vol. 26, No. 2 at 6 (Dec. 2001); cf. TEX. HOUSE OF REPRESENTATIVES HOUSE RES. ORG., NO. 80-9, CAPTURING THE WIND: THE CHALLENGES OF A NEW ENERGY SOURCE IN TEXAS 17 (2008), http://www.hro.house. state.tx.us/focus/Wind80-9.pdf (“‘Capture’ of the wind would be the right to convert or the actual conversion of the wind to [wind] energy.”).
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By Michael J. Wynne and Alexis Summers
Environmental Justice:
No longer a Nascent Concept but Hurdles Remain
W
e revisit a topic we addressed in this publication 21 years ago.1 The term in use frequently then was “Environmental Racism.” There were then and remain emotionally-charged debates centered on the struggle to deconstruct a policy choice or agency decision (including permitting decisions) and assess whether the decision was based on an insidious “intent to discriminate,” or whether the “effects” were sufficiently dispropor-
tionate to constitute discrimination against a protected class. Similarly charged was the debate surrounding the delineation of the degree to which a court (or jury) might infer intent from impact, similar to ongoing debates in courtrooms adjudicating issues under Sections 2 and 5 of the Voting Rights Act of 1965. This comparison perhaps has become less useful today because the U.S. Supreme Court (in the case of Section 5) has stricken or continues to water down or otherwise threaten (in the case of Section 2) these provisions. The premise is that the burden of environmentally polluting facilities, practices, and the associated hazards often falls most heavily on minority groups and that zoning or other land-use decisions are based at least in part on the intent to discriminate. The potential circumstances in which the issue may arise are many. Inherently problematic in any analysis is that the claimant must prove the decision-making body selected or reaffirmed an environmentally racist course of action “because of” its likely adverse effects on an identifiable, protected group of people. That proof standard remains a high hurdle. Moreover, there are few legal vehicles to mount environmental racism challenges. The limited cases that have been adjudicated include challenges under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, Section 1983, and private and public nuisance law causes of action. None has proven to be particularly effective in surmounting preliminary motion practice. The term now commonly used for what we were describing in 1998 is “environmental justice,” likely because it has become more evident that these burdens fall disproportionately on low-income areas, independent of considerations of race or national origin. The argument that income level and not race is the operative element in the environmental justice calculus has complicated efforts under existing statutes, including the Civil Rights Act of 1964, to raise these issues
through traditional civil rights litigation. I. CLINTON ADMINISTRATION INITIATIVE REMAINS THE TOUCHSTONE Then-President Bill Clinton’s Executive Order No. 12898 in 1998 helped launch the environmental racism/environmental justice discussion and is still arguably the primary policy touchstone.2 But, it was chiefly aspirational. It provided a loose policy framework but omitted the nuts and bolts of policy development and implementation. Executive Order No. 12898 directed executive branch departments to consider “environmental equity” in interpreting regulations under their consideration,3 but it did not provide an enforcement regime, a compliance metric, or a private right of action or other mechanism to assert grievances.4 Recognition of the persistence of the problem continued through the George W. Bush Administration, but with little to no correction of the above referenced insufficiencies.5 Executive Order No. 12898 established a Federal Interagency Working Group (the “Working Group”). In 2011, the Working Group issued a Memorandum of Understanding (“MOU”) on Environmental Justice, which provided more structure and deadlines for progress reports. Through the U.S. General Services Administration (“GSA”), the Cabinet secretaries committed they would do the following: • Declare the importance of identifying and addressing environmental justice considerations in agency programs, policies, and activities; • Develop an environmental justice strategy and annual implementation progress reports; • Ensure meaningful opportunities exist for the public to submit comments and recommendations relating to the strategy, implementation, and ongoing efforts associated with environmental justice; and • Serve as active members of the Interagency Working Group on environmental justice.6
But again, the directives were insufficient to establish meaningful remedies for those suffering from environmental injustice, stating as follows: “This MOU and activities under it relate only to internal procedures and management of the Federal agencies and the Interagency Working Group. They do not create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its agencies or other entities, its officers, employees or agents, or any other person.”7 In accordance with the terms of the MOU, in September 2011, the Environmental Protection Agency (“EPA”) developed Plan EJ 2014, which is a cooperative plan to protect the health and environment of overburdened communities and establish partnerships with local, state, tribal, and federal governments and organizations that affect environmental outcomes.8 The EJ: 2020 Action Agenda followed, with similarly high aspirations.9 Some federal agencies ranked the issue higher in their lists of priority crite-
ria than others.10 As a former senior trial attorney at the Department of Justice’s Environmental Justice and Natural Resources Division remarked in recounting an exchange with his former boss regarding the Department’s Environmental Justice Committee, “I had to look around at first. I didn’t know that I was a committee. There was one person doing [Environmental Justice] at DOJ – moi. We now have ‘we.’”11 II. MIXED RESULTS IN THE COURTHOUSE Despite efforts to tie civil rights enforcement and to environmental justice, plaintiff groups have encountered difficulty formulating and advancing a legal theory to surmount threshold procedural rules like Federal Rule of Civil Procedure 12(b)(6), which requires that plaintiffs set forth facts that if true would satisfy the elements of an existing common law, statutory, or constitutional cause of action.12 Former U.S. District Judge Stephen Orlofsky’s clear efforts to preserve a cause of action in a string of district court and
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appellate decisions and remands in South Camden Citizens in Action illustrate this difficulty.13 These decisions likely signal that a lawsuit founded solely on Section 601 or 602 of Title VI of the 1964 Civil Rights Act is unlikely to proceed under current jurisprudence.14 Likewise, the Fair Housing Act, 42 U.S.C. §§ 3604, et seq., does not appear to constitute a judicially approved vehicle for environmental justice claims. In South Camden Citizens in Action, even Judge Orlofsky rejected the plaintiffs’ claim, pled in the alternative, that the granting of an air permit for a cement grinding facility constituted “constructive eviction” of the residents of South Camden, New Jersey, noting that the state environmental regulatory agency does not provide the kind of “services” contemplated by the Fair Housing Act.15 Plaintiffs’ groups have encountered similar challenges in the consolidated Flint Water Cases, in which the plaintiffs allege disproportionate injury from lead and other contamination in the city’s water supply.16 In those cases, the courts have wrestled with whether a 42 U.S.C. § 1983 claim against city and local officials based on the substantive due process right to bodily integrity could survive qualified immunity claims. Similar court challenges have brought few successes in the lengthy and contentious zoning litigation relating to the relocation of a recycling plant in Chicago17 and civil rights actions relating to toxic coal ash in Uniontown, Alabama, and Kingston, Tennessee.18 III. INITIAL BIDEN ADMINISTRATION INITIATIVES Given the limited statutory tools available and constitutional limitations with respect to environmental justice litigation brought by private plaintiffs, the regulatory arena will likely host the next several environmental justice battles. After Joe Biden’s election, the new administration pledged to meaningfully address environmental justice. President Biden promptly established a White House Environmental Justice Advisory Council 20 March/April 2021
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and White House Environmental Justice Interagency Council. Commentators speculated President Biden would select a highly progressive leader of the White House Council.19 Instead, President Biden selected Brenda Mallory, who is perceived to be a moderate. President Biden did not make Environmental Justice a standalone initiative but instead included it in his climate change initiative, contained in a January 27, 2021 Executive Order that states in part, “with this executive order, environmental justice will be at the center of all we do, addressing the disproportionate health and environmental impact on communities of color, the so called ‘fence-line’ communities especially those comprised of... Blacks, Native Americans, and poor whites.”20 Going forward, courts will determine whether including “poor whites,” which is generally not a constitutionally protected class, in the category of victims will make litigating environmental justice claims under Title VI and other tools dependent on racial classifications even more problematic. If the Biden Administration adds teeth to environmental justice enforcement, they will likely be in the regulatory permitting arena if and when environmental justice considerations focusing more on economic rather than racial status of burdened groups are incorporated into permitting criteria for facilities having a detrimental environmental impact.21 Permitting criteria amendments may provide a way around statutory and constitutional mechanisms initially designed to deal with racial and other inequities directly related to environmental justice. Even then, the battle will continue as courts review administrative permitting and other government decisions involving the placement, operation, and maintenance of environmentally burdensome facilities. Thus, there is much work to be done, and this discussion is, as of now, to be continued. Michael Wynne is co-chair of Gregor Wynne Arney, PLLC, a Houston-based litigation boutique. Wynne is a 1992 gradu-
ate of Harvard Law School, former partner with McDermott Will & Emery, LLC, and former Assistant U.S. Attorney in the Southern District of Texas. Alexis Summers is a third-year law student at South Texas College of Law Houston and the managing editor of CURRENTS: Journal of International Economic Law. She graduated with honors in political science from the University of Connecticut. She will be working as an associate at Gregor Wynne Arney in the fall. Endnotes
1. For ease of reference, the 1998 article is available on The Houston Lawyer’s page on the Houston Bar Association’s website: www.hba.org/thehoustonlawyer. The original article may also be found on Westlaw. See Roliff Purrington & Michael Wynne, Environmental Racism: Is a Nascent Social Science Concept a Sound Basis for Legal Relief?, 35 HOUS. LAW. 34 (Mar./Apr. 1998). 2. Exec. Order No. 12,898, Federal Actions to Address Environmental Justice in Minority Populations, 59 Fed. Reg. 7,629 (Feb. 16, 1994); see Benjamin Wilson (moderator), Barry Hill, Quentin Pair & Suzi Ruhl, The State of Environmental Justice: An Obama Administration Retrospective, 47 ENV’T L. REP. NEWS & ANALYSIS 10,385, 10,385 (2017) (transcript of a panel discussion of experts). 3. CONG. RESEARCH SERV., IF10529, ROLE OF THE U.S. ENVIRONMENTAL PROTECTION AGENCY IN ENVIRONMENTAL JUSTICE (2021), https://crsreports. congress.gov/product/pdf/IF/IF10529/8 (explaining how “Executive Order 12898 itself does not establish federal law but is a presidential directive for the management of executive departments and agencies that instructs the implementation of existing law.”). 4. Tara R. Kebodeaux & Danielle M. Brock, Environmental Justice: A Choice Between Social Justice and Economic Development?, 28 S.U. L. REV. 123, 131 (2001). 5. Memorandum from Christine Todd Whitman, EPA, to Assistant Administrators et al. (Aug. 9, 2001), http://widit. knu.ac.kr/epa/ebtpages/Environmental_Management/ siteout/s6out4.pdf (discussing EPA’s “firm commitment to the issue of environmental justice”). 6. See Interagency Working Group on Environmental Justice, Memorandum of Understanding on Environmental Justice and Executive Order 12898 (2011), https://www. epa.gov/sites/production/files/2015-02/documents/ ej-mou-2011-08.pdf (providing that the memorandum of understanding shall be implemented in compliance with, and to the extent permitted by, applicable law). 7. See id. 8. EPA, PLAN EJ 2014: EXECUTIVE SUMMARY (Sept. 2011), http://www.nmpha.org/Resources/Documents/planej-exec-sum.pdf. 9. EPA, EJ 2020 ACTION AGENDA: THE U.S. EPA’S ENVIRONMENTAL JUSTICE STRATEGIC PLAN FOR 20162020 (Oct. 2016), https://www.epa.gov/sites/production/ files/2016-05/documents/052216_ej_2020_strategic_ plan_final_0.pdf. 10. See Wilson, supra, note 2. 11. Id. at 10,387 (emphasis in original). 12. Daria E. Neal, Recent Developments in Federal Implementation of Executive Order 12,898 and Title VI of the Civil Rights Act of 1964, 57 HOWARD L.J. 941, 948 (2014).
13. See S. Camden Citizens in Action v. N.J. Dep’t of Env’t Prot., 254 F. Supp. 2d 486 (D.N.J. 2003). 14. Bradford C. Mank, South Camden Citizens in Action v. New Jersey Department of Environmental Protection: Will Section 1983 Save Title VI Disparate Impact Suits, 32 ENV’T. L. REP. NEWS & ANALYSIS 10,454, 10,454 (2002). 15. See S. Camden Citizens in Action, 254 F. Supp. 2d at 499–503; cf. Yanata v. Ind. Dep’t of Child Servs., No. 1:19-cv-03928RLY, 2021 WL 799563, at *4 (S.D. Ind. Feb. 8, 2021) (claim of environmental racism fails because that is not a claim upon which relief can be granted) (citations omitted). 16. In re Flint Water Cases, 960 F.3d 303 (6th Cir. 2020). 17. E.g., Brett Chase, Environmental Racism Complaint Against Chicago Referred to U.S. Prosecutors, CHI. SUN TIMES (Jan. 29, 2021, 3:51 PM), https://chicago.suntimes.com/2021/1/29/22256841/generaliron-environmental-racism-hud-justicedepartment-lori-lightfoot; Brett Chase, Pastors Seek Injunction to Stop General Iron Relocation, Allege “Pay to Play,” CHI. SUN TIMES (Oct. 21, 2020), https://chicago. suntimes.com/2020/10/21/21527434/ general-iron-lawsuit-lori-lightfoot-lincolnpark-east-side-environmental-racism. 18. Marianne Engelman-Lado et al., Environmental Injustice in Uniontown, Alabama, Decades After the Civil Rights Act of 1964: It’s Time for Action, A.B.A. HUMAN
RIGHTS MAG. (Apr. 13, 2020), https:// www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/ vol--44--no-2--housing/environmentalinjustice-in-uniontown--alabama--decades-after-the/ (“On December 22, 2008, more than a billion gallons of highly toxic coal ash burst from an impoundment and spilled into the Emory River channel in Kingston, Tennessee”; “The impacts of this spill... reach far beyond the town [of Kingston] and those involved in the cleanup efforts, affecting the lives of hundreds of people across state lines in Uniontown, Alabama, a low-income, predominantly African American community.”). 19. Jennifer A. Dhlouhy & Ari Natter, Environmental Justice Crusader Eyed for White House Council, BLOOMBERG (Nov. 28, 2020, 6:22 p.m.), https://www.bloomberg. com/news/articles/2020-11-29/environmental-justice-crusader-eyed-for-whitehouse-council. 20. Executive Order 14,008 of Jan. 27, 2021, 86 Fed. Reg. 7619 (Feb. 2, 2021); see AIMEE BARNES ET AL., CTR. AM. PROGRESS, MAPPING ENVIRONMENTAL JUSTICE IN THE BIDEN-HARRIS ADMINISTRATION, https://www. americanprogres.org/issues/green/reports/2021/02/04/495397. 21. Richard J. Lazarus & Stephanie Tai, Integrating Environmental Justice Into EPA Permitting Authority, 26 ECOLOGY L.Q. 617 (1999) (foreseeing the possibility).
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By Eddie C. Lewis and Bob Greenslade
How the Biden Administration Will Impact Environmental Law
O
ver the prior four years, the Trump administration made innumerable changes to the broad legal landscape that comprises environmental law. Many of the changes may prove to be shortlived because President Biden has directed all agencies to review and take action to address federal regulations and other actions taken during the prior four years that conflict with his environmental objectives. Accordingly, every executive branch environmental action in the prior four years is at risk of reconsideration, amendment, or revocation. Due to the massive scale of issues under consideration by the new administration, this article does not identify all discrete issues for which changes are
known or anticipated. Instead, we attempt to identify themes and broad areas of focus expected from the administration, along with a few examples of significant, discrete issues. These focus areas include climate change, enforcement, oil and gas, procedural matters, public land use, and social justice. Climate Change Climate change will be a key focus of the administration. As a candidate, Biden promised to achieve a 100% clean energy economy and net-zero greenhouse gas (“GHG”) emissions by 2050.1 He has since announced John Kerry as Climate Envoy and Gina McCarthy, former U.S. Environmental Protection Agency (“EPA”) Administrator, as domestic climate coordinator. He also signed an order rejoining the Paris Climate Agreement and established a National Climate Task Force.2 Other changes may include: • New GHG Standards. In American Lung Association v. U.S. Environmental Protection Agency, issued in January 2021, the D.C. Circuit vacated EPA’s GHG standards for coal-fired power plants, holding that the New Source Performance Standard (“NSPS”) provisions in the Clean Air Act are not necessarily limited to measures within the “fenceline” of a plant.3 This opinion could result in the reinstatement of the Obama-era GHG standards, as well as new offset and emissions trading measures for other industries. • Vehicle Fuel Standards. An early 2020 rule relaxed Obama-era fuel economy requirements for automakers by lowering the ramp-up on new vehicle average fuel economy from 5% per year to 1.5% per year. The rule also revoked the Clean Air Act waiver that had previously allowed California to set its own standards (which other states could then adopt). The Biden administration is expected to undo the new rule.4 • Appliance Efficiency. In January
2020, the Department of Energy (“DOE”) issued a “Process Rule” limiting efficiency measures for appliances and other devices based on new “significance thresholds” and modifying rules for setting test procedures.5 DOE is expected to reverse the rule and to impose standards for additional products. We also expect that the Federal Energy Regulatory Commission (“FERC”) will facilitate new infrastructure to convey electricity from renewable energy sources and to integrate distributed generation (e.g., rooftop solar) into the grid. DOE programs are expected to focus on electric vehicles, carbon capture, and the transition to clean energy technologies, such as geothermal power plants and hydrogen fuel cells. Due to a largely unconnected electrical grid, FERC jurisdiction could be limited in Texas, unless the state decides to integrate with the national grid in light of the impacts of Winter Storm Uri.
ber of exemptions granted to small refiners. • Bureau of Land Management’s (“BLM”) Waste Prevention Rule. In 2016, the BLM limited venting and flaring of natural gas from wells under its jurisdiction. In October 2020, a federal district court overturned the 2016 rule because the rule targeted air quality, which is within the purview of EPA, and not “waste.”8 We expect an appeal of this opinion and/or a replacement rule. • BLM’s Hydraulic Fracturing Rule. In December 2017, the BLM rescinded a 2015 rule that had established casing design and cement verification logging requirements for fracturing oil and gas wells under BLM jurisdiction.9 We expect that these rules will be reinstated or a new rule proposed. • The Migratory Bird Treaty Act (“MBTA”) Take Rule. In January 2021, the U.S. Fish and Wildlife
Service determined that the take prohibitions under the MBTA apply only to deliberate actions, meaning that “incidental” take is no longer prohibited.10 We expect reversal. The oil and gas industry may also be a target for additional regulations targeting GHG emissions, such as emissions offset and trading rules based on the D.C. Circuit’s opinion in American Lung Association. Increased Enforcement The Biden administration is expected to reverse the decline in enforcement and penalties for environmental matters. Using EPA as an example, we note that a 2020 report by EPA’s Inspector General found that agency inspections fell by 50% from 2010 to 2018, enforcement cases initiated after such inspections fell by 52% from 2007 to 2018, administrative actions were down by 58%, and total assessed penalties dropped from a high of $6.1 billion in 2016 to $69 million in
Oil and Gas During his campaign, Joe Biden pledged that he would “gradually move away” from fracking. As President, he revoked the March 2019 presidential permit for the Keystone XL Pipeline, issued a 60day suspension of new oil and gas drilling permits under federal jurisdiction, and paused federal oil and gas leasing.6 Other measures concerning oil and gas include: • EPA’s NSPS Rules. In late 2020, EPA published final rules relaxing fugitive emissions requirements for the oil and gas sector and removing applicability for the transmission and storage segments.7 We expect that these rules will be reversed. • The Renewable Fuel Standard (“RFS”). EPA’s RFS requires blending renewable fuels into petroleum-based fuels, with volumes increasing annually. Under Biden, we expect more aggressive annual targets and a decrease in the numthehoustonlawyer.com
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2018.11 Referrals to the U.S. Department of Justice (“DOJ”) also hit a low in 2018. Beyond a return to former enforcement levels, we also note that there are a number of discrete enforcement-related measures expected. These include: • New Litigating Division. Biden is expected to create a new litigating division at the DOJ devoted to environmental and climate justice.12 It is unclear how this division will mesh with the existing Environmental and Natural Resources Division. • DOJ’s Ban on Agency Guidance. Current policy prohibits DOJ litigators from using agency guidance documents to establish violations of law in civil enforcement matters—a significant impediment for federal litigators.13 We expect DOJ to reverse or relax this policy. • DOJ’s Ban on Supplemental Environmental Projects (“SEPs”). A March 2020 DOE memo currently bans the use of SEPs benefiting third parties in consent decrees and
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other settlements.14 We expect that this will be reversed. • Reversing EPA Policies. We expect reversals of (1) EPA’s March 2018 policy requiring regional offices to submit a briefing to EPA headquarters prior to a judicial referral to the DOJ; and (2) an April 2018 policy discouraging “Next Generation” compliance tools in enforcement settlements, such as advanced monitoring and third-party verification measures. Air and Water Issues Although GHG emissions will be the core focus, we expect that the Biden administration will also address a number of traditional air and water issues, including: • Waters of the United States. Rules in 2019 and 2020 narrowed the definition of “waters of the United States” promulgated in 2015, thereby restricting federal jurisdiction under the Clean Water Act. We
expect the Biden EPA to undo these changes. • National Ambient Air Quality Standards (“NAAQS”). In late 2020, EPA decided it would not revise the NAAQS for particulate matter and ozone. We expect that EPA will lower the existing NAAQS, leading to new nonattainment areas. • Cross-State Pollution. In mid2020, the D.C. Circuit held that EPA improperly denied a petition by New York requesting action to reduce emissions from upstream states. This could lead to a new multi-state emissions rule. Procedural Matters Challenges to environmental rules and approvals are often based on procedural requirements. For example, such challenges have plagued the Keystone XL project. Below, we highlight several procedural issues: • National Environmental Policy Act (“NEPA”) Rules. Mid-2020 re-
visions to the Council on Environmental Quality’s NEPA regulations imposed strict deadlines for assessments and limited the scope of the impacts that must be assessed. Reversal or revision is expected. • EPA’s Science Rule. A January 2021 rule requires EPA rulemakers to discount scientific studies for which underlying data is not available for public scrutiny. We expect this rule to be short-lived. • The Cost of Carbon. Obama administration estimates established the damage from carbon dioxide emissions at $50 per ton in 2020, escalating to $82 per ton by 2050. Current estimates are only $7 per ton in 2020 and $11 per ton in 2050. The new administration will undoubtedly revise this metric. Eddie Lewis is the co-head of Norton Rose Fulbright’s Energy, Infrastructure and Environmental practice in the United States. He is a partner in the firm’s Houston office.
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Bob Greenslade is a counsel attorney in Norton Rose Fulbright’s Energy, Infrastructure and Environmental practice group. He maintains offices in the firm’s Houston and Denver offices. Endnotes 1. Exec. Order No. 14008 § 201, 86 Fed. Reg. 7619, 7622 (Jan. 27, 2021), https://www.federalregister.gov/documents/2021/02/01/2021-02177/tackling-the-climate-crisis-at-home-and-abroad. 2. Id. at §§ 102, 203, 86 Fed. Reg. at 7619–21, 7623. 3. See generally Am. Lung Ass’n v. U.S. Envtl. Protection Agency, No. 19-1140 (D.C. Cir. 2021). 4. See Lauren Sommer, Biden To Move Quickly on Climate Change, Reversing Trump Rollbacks, NPR (Jan. 20, 2021), https://www.npr.org/sections/inauguration-day-liveupdates/2021/01/20/958854421/biden-to-move-quicklyon-climate-change-reversing-trump-rollbacks. 5. Department of Energy Issues Final “Process Rule” Modernizing Procedures in the Consideration of Energy Conservation Standards, U.S. DEP’T OF ENERGY (Jan. 15, 2020), https://www.energy.gov/articles/department-energyissues-final-process-rule-modernizing-procedures-consideration-energy. 6. Exec. Order No. 13990 § 6, 86 Fed. Reg. 7037, 7041 (Jan. 20, 2021), https://www.federalregister.gov/documents/ 2021/01/25/2021-01765/protecting-public-health-andthe-environment-and-restoring-science-to-tackle-theclimate-crisis. 7. EPA Issues Final Policy and Technical Amendments to the New Source Performance Standards for the Oil and Natu-
ral Gas Industry, U.S. ENV’T PROT. AGENCY, https:// www.epa.gov/controlling-air-pollution-oil-and-naturalgas-industry/epa-issues-final-policy-and-technical (last visited Feb. 23, 2021). 8. See generally Wyoming v. U.S. Dep’t of Interior, No. 2:16-CV-0285-SWS, 2020 WL 7641067, at *27 (D. Wyo. Oct. 8, 2020). 9. BLM Rescinds Rule on Hydraulic Fracturing, U.S. DEP’T OF INTERIOR, BUREAU OF LAND MGMT., https://www. blm.gov/press-release/blm-rescinds-rule-hydraulicfracturing (last visited Feb. 23, 2021). 10. Press Release, U.S. Fish & Wildlife Service, U.S. Fish and Wildlife Service Finalizes Regulation Clarifying the Migratory Bird Treaty Act Implementation (Jan. 5, 2021), https://www.fws.gov/news/ShowNews.cfm?_ID=36829. 11. EPA’S COMPLIANCE MONITORING ACTIVITIES, ENFORCEMENT ACTIONS, AND ENFORCEMENT RESULTS GENERALLY DECLINED FROM FISCAL YEARS 2006 THROUGH 2018, U.S. ENV’T PROT. AGENCY 7–8, 13 (2020), https://www.epa.gov/sites/production/ files/2020-04/documents/_epaoig_20200331_20p-0131_0.pdf. 12. Ellen M. Gilmer, Biden Bolsters DOJ Focus on Environmental Justice, Climate, BLOOMBERG L. (Jan. 27, 2021, 2:53 p.m.), https://news.bloomberglaw.com/environment-andenergy/biden-bolsters-doj-focus-on-environmentaljustice-climate. 13. DOJ Limits Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases, NAT’L L. REV., Jan. 26, 2018, https://www.natlawreview.com/article/doj-limitsuse-agency-guidance-documents-affirmative-civil-enforcement-cases. 14. Memorandum from Jeffrey Bossert Clark, Assistant Attorney General to ENRD Deputy Assistant Attorney Generals and Section Chiefs (Mar. 12, 2020), https://www. justice.gov/enrd/file/1257901/download.
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By Michael Razeeq
Barrels and Bytes:
The Energy Transition, Digital Transformation, and Cybersecurity
“I
t is difficult to think of two issues with a greater potential to negatively impact both our natural environment and the global economy than climate change and cyber attacks.”1 In 2018, according to a study by the Pew Research Center, Americans viewed cyber attacks, terrorism, and climate change as the three most significant risks to the security of the United States.2 Although the same survey conducted in 2020 identified, among other things, the spread of infectious diseases as top of mind,3 cyberattacks and climate change likely will remain major concerns for Americans for years to come. The energy industry, which includes a range of sub-industries, such as oil and gas, coal, renewables, nuclear power, and electric power, and which includes business activities that range from mining to transportation to nuclear fission, is essential to the global economy. If not already clear before the onset of the global pandemic, that fact is now obvious. As a critical infrastructure sector, energy industry participants must ad-
dress climate change and cyber attacks to ensure society is able to reap the benefits of the products and services the industry delivers in a sustainable way. The Intersection of Climate Change and Cybersecurity Anyone who has attended an energy industry conference in recent years will have noted the increasing number of presentations on climate change and cybersecurity, albeit typically in separate CLE presentations. “Although the atmosphere and cyberspace are distinct arenas, they share similarities of overuse, difficulties of enforcement, and the associated challenges of collective inaction and free riders.”4 Apart from those commonalities, the two issues are linked because achieving cyber resilience is necessary for energy companies to effectively address climate change. Addressing climate change will require substantial investments of capital from energy companies and other stakeholders. Digital technologies will underpin much of the global effort to combat climate change, and energy companies must have confidence that these technologies are reasonably secure before investing large sums of money to procure and deploy them. Without that confidence, companies will be slower to adopt or may even forego adopting the technologies altogether. As an example of the potential delays that uncertainty regarding new technology can cause, it is worth noting that the maritime industry, which, like the energy industry, plans for capital-intensive, long-term projects, has been slow to order new ships that can run on cleaner fuels because ship owners are not sure which technology will remain viable in 20 years.5 To avoid similar uncertainty about the digital technologies needed to combat climate change, the energy industry must work with its stakeholders toward resiliency against cyber attacks. The Energy Transition On December 12, 2015, 195 countries
and the European Union came together to sign the Paris Agreement and committed to undertake efforts to combat climate change, in particular by reducing global greenhouse gas emissions.6 The goals set out in the Paris Agreement include an “energy transition,” which is a shift in the global energy mix used to power industry, provide light and heat to homes, and transport goods and people across the globe. As historian Daniel Yergin notes, The term [energy transition] is widely embraced—possibly the two most used words in talking about the future of energy. It aims to limit temperature rises to less than two—or 1.5—degrees centigrade above pre-industrial levels, but beyond that there is no clear consensus...There is certainly no consensus as to the speed of the transition, nor as to what the transition will look like decades from now, nor as to the cost—nor as to how it is all to be achieved.7
Energy transitions are not new. Earlier energy transitions include the shift from wood to coal in Britain beginning in the 13th century, the shift from coal to oil as the dominant energy source in the 1960s,8 and most recently, a further shift from coal to natural gas. Yet, the current energy transition is notably different from those in the past because of the global agreement to work toward a specific goal of decarbonization and because it is being powered by digital technologies and data. “Most of the drivers behind the [current] energy transition can be distilled down into three main pillars; decarboni[z]ation, decentrali[z]ation and digitali[z]ation.”9 This energy transition likely will result in different energy mix outcomes in different countries, but it will be based on those common inputs. Digital Transformation as a Pillar of the Energy Transition Digitalization is a term en vogue at energy industry conferences. At its core, digitalization is about using electronic
data to improve ways of working. As digital technologies continue to evolve ever more quickly, entirely new business models and processes become possible, which lead to complete digital transformation. “Digital transformation is the process of using digital technologies to create new—or modify existing—business processes, culture, and customer experiences.”10 In 2020, the trend of digital transformation accelerated dramatically, not only in energy, but in every sector as a result of the global pandemic that forced companies across the globe to rethink their ways of working and business models. In the energy industry, a digital transformation is necessary to help meet the challenge of providing more energy for more people while reducing greenhouse gas emissions to address the threat of climate change. “Unlocking the magnitude of energy resources... in a way that does not choke the environment, cannot be done without the power of digital [technologies] to improve efficiency and man-
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age complexity.”11 To illustrate how new digital technologies will affect energy demand, it is worth noting that in 2019, the global mining of the cryptocurrency, Bitcoin, required more electricity consumption than that consumed by the entire country of Austria.12 Although digital technologies will consume more energy as they are adopted by more people, they are necessary tools to manage energy production, storage, transportation, and consumption. For example, as the use of cloud computing increased around 550 percent between 2010 and 2018, efficiency improvements—through the use of renewable energy and digital technology, like machine learning—have kept the energy usage of data centers relatively stable at around one percent of global electricity consumption over the same period.13 In another example of the blurring between energy and digital technology, Tesla, which many think of as an automobile company and some think of as a tech company, states on its website that the company “builds not only all-electric vehicles but also infinitely scalable clean energy generation and storage products.”14 Tesla utilizes digital technologies to create an ecosystem which allows customers to install Tesla solar panels to power their homes, to store energy in Tesla Powerwall battery units, and to use the energy to power their Tesla vehicles. Cybersecurity Is a Must for Any Digital Transformation No company in the energy industry, or any industry for that matter, can fully reap the benefits of digitalization or effect a digital transformation without addressing the threat of cybersecurity. “Digitali[z]ation brings new opportunities in energy design, manufacturing, distribution and maintenance [but] also presents new cyber security and data integration challenges.”15 This means the ability to harness the potential of the digital technologies needed to power the energy transition hinges on compa28
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nies addressing the cyber security risks presented by those same technologies— “[w]ith great power there must also come—great responsibility.”16 Addressing cybersecurity as part of a digital transformation requires focusing on people and processes as much as purchasing new products. The frequency and volume of cyber attacks will continue to increase, but energy companies can work to become harder targets and to build their capability to respond to and recover from attacks. In other words, energy companies must build cyber resiliency: “the capacity... to prepare for disruptions, to recover from shocks and stresses, and to adapt and grow from a disruptive experience.”17 The focus of cyber resiliency is less about preventing cyber attacks and more about preventing bad outcomes.18 In the past couple of years, cyber attacks within the energy industry have targeted oil and gas companies,19 renewable energy companies,20 electric companies,22 pipeline companies,22 drilling rigs,23 and more. As a result, regulatory bodies are beginning to impose more requirements for cybersecurity safeguards. In the United States, this can mean an energy company must comply with a patchwork of requirements issued by various federal and state agencies. The regulatory complexity only multiplies for multinationals. Because of the rapidly increasing regulatory requirements and the encroachment of cybersecurity issues into so many areas of law, energy lawyers have a vital role to play in helping clients achieve cyber resilience. The Lawyer’s Role in the Future of Digitalization The exact roles lawyers will play in helping achieve cyber resiliency will vary based on the client’s particular business and the lawyer’s particular area of legal expertise. ABA Model Rule of Professional Conduct 1.1 requires lawyers to “provide competent representation to a client... [which] requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”24 Comment 8 to that rule, introduced in 2012, notes the implicit inclusion of technology as part of competent representation, and 38 states include similar requirements in their rules of professional conduct.25 Lawyers must have an understanding of technology and cybersecurity to competently advise clients in a growing list of circumstances. Examples of occasions when lawyers should discuss cybersecurity with clients include: (1) at the start of representation; (2) when the client enters a regulated field of activity; (3) when cybersecurity regulations are issued, amended, or judicially reinterpreted; (4) when litigation, enforcement actions, or investigation is reasonably anticipated; (5) when the client experiences a cyber incident; (6) in the event of a cyber incident or if reports of an external cyber incident raise concerns; (7) when the client anticipates being the buyer or target in a merger or acquisition; (8) when the client anticipates providing goods or services that utilize or are new technologies, especially in a regulated sector; and (9) when a client embarks on a major transition in its corporate or commercial activities.26 With energy infrastructure (e.g., oil fields, pipelines, power plants) being increasingly outfitted with sensors to collect and process data, organizations using machine learning algorithms to process that data on cloud platforms, and software tracking and documenting product sales, there is no shortage of occasions when energy lawyers will be called upon to advise clients on cybersecurity. This is not some distant future, but the present. Energy lawyers must work to help secure the digital transformation that will drive the energy transition. Michael Razeeq is in-house counsel for a global energy company where his practice focuses on cybersecurity and privacy law, digital product counseling, and technology transactions.
Endnotes
1. Scott J. Shackelford, On Climate Change and Cyber Attacks: Leveraging Polycentric Governance to Mitigate Global Collective Action Problems, 18 VAND. J. ENT. & TECH. L., 653, 655 (2016). 2. Jacob Poushter & Christine Huang, Climate Change Still Seen as the Top Global Threat, but Cyberattacks a Rising Concern, PEW RSCH. CTR. (Feb. 10, 2019), https://www. pewresearch.org/global/2019/02/10/climate-changestill-seen-as-the-top-global-threat-but-cyberattacks-arising-concern/. 3. Jacob Poushter & Moira Fagan, Americans See Spread of Disease as Top International Threat, Along with Terrorism, Nuclear Weapons, Cyberattacks, PEW RSCH. CTR. (Apr. 13, 2020), https://www.pewresearch.org/ global/2020/04/13/americans-see-spread-of-disease-astop-international-threat-along-with-terrorism-nuclearweapons-cyberattacks/. 4. Shackelford, supra note 1, at 653. 5. Elizabeth Low & Jack Wittels, Ship Orders Slump 50% with Owners Unsure Which Green Fuel to Use, BLOOMBERG (Jan. 10, 2021, 6:02 p.m.), https://www.bloomberg. com/news/articles/2021-01-08/ship-orders-slump50-with-owners-unsure-which-green-fuel-to-use. 6. The Paris Agreement, opened for signature Apr. 22, 2016, TIAS No. 16-1104, https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement (last visited Feb. 15, 2021). 7. DANIEL YERGIN, THE NEW MAP: ENERGY, CLIMATE, AND THE CLASH OF NATIONS 377–78 (Penguin Press 2020). 8. Id. at 378. 9. Technology—The Vehicle for the Energy Transition, GRIDBEYOND, https://gridbeyond.com/technology-energytransition/ (last visited Feb. 15, 2021). 10. What is Digital Transformation, SALESFORCE, https:// www.salesforce.com/products/platform/what-is-digitaltransformation/ (last visited Feb. 15, 2021). 11. Adrian Booth et al., Digital Transformation in Energy: Achieving Escape Velocity, MCKINSEY & CO. (Sept. 3, 2020), https://www.mckinsey.com/industries/oil-and-gas/ our-insights/digital-transformation-in-energy-achieving-escape-velocity#. 12. Bitcoin Energy Consumption Index, DIGICONOMIST, https://digiconomist.net/bitcoin-energy-consumption (last visited Feb. 15, 2021). 13. Urs Hölzle, Data Centers Are More Efficient than Ever, GOOGLE (Feb. 27, 2020), https://blog.google/outreachinitiatives/sustainability/data-centers-energy-efficient. 14. About Tesla, TESLA, https://www.tesla.com/about (last
visited Feb. 15, 2021). 15. WORLD ENERGY COUNCIL, ENERGY TRANSITION TOOLKIT 31 (2020), https://www.worldenergy.org/assets/ downloads/World-Energy-Council-Energy-TransitionToolkit-User-Guide.pdf. 16. See S. LEE & S. DITKO, AMAZING FANTASY NO. 15: “SPIDER-MAN” 13 (1962). 17. RICHARD A. CLARKE & ROBERT K. KNAKE, THE FIFTH DOMAIN: DEFENDING OUR COUNTRY, OUR COMPANIES, AND OURSELVES IN THE AGE OF CYBER THREATS 42 (Penguin Books 2020). 18. Id. at 13. 19. Christian Vasquez, Oil and Gas Hackers Chase Bigger Pandemic Paydays, E&E NEWS (May 12, 2020), https:// www.eenews.net/stories/1063112771. 20. William Turton, How to Survive a Ransomware Attack without Paying the Ransom, BLOOMBERG (July 22, 2020, 11:01 p.m.), https://www.bloomberg.com/news/features/ 2020-07-23/how-to-survive-ransomware-attack-without-paying-ransom. 21. Dan Goodin, Hackers Behind Dangerous Oil and Gas Intrusions Are Probing US Power Grids, ARS TECHNICA (June 15, 2019, 6:50 a.m.), https://arstechnica.com/informationtechnology/2019/06/hackers-behind-dangerous-oil-andgas-intrusions-are-probing-us-power-grids/. 22. Meenal Vamburkar et al., Cyberattack on Energy Transfer Partners’ Data System Overcome, HOUS. CHRON., Jan. 2, 2019, 3:03 p.m., https://www.chron.com/business/energy/ article/Cyberattack-on-Energy-Transfer-Partners-data12801633.php. 23. Jeremy Wagstaff, All at Sea: Global Shipping Fleet Exposed to Hacking Threat, REUTERS (Apr. 23, 2014, 10:10 p.m.), https://www.reuters.com/article/us-cybersecurityshipping-idUSBREA3M20820140424. 24. MODEL RULES OF PRO. CONDUCT r. 4.1, (AM. BAR ASS’N 2020), https://www.americanbar.org/groups/ professional_responsibility/publications/model_rules_ of_professional_conduct/model_rules_of_professional_ conduct_table_of_contents/ (last visited Feb. 15, 2021). 25. Robert Ambrogi, Tech Competence, LAWSITES BLOG, https://www.lawsitesblog.com/tech-competence (last visited Feb. 15, 2021). 26. See, e.g., Rolan L. Trope & Lixian Loong Hantover, Occasions When Counsel Should Consider Initiating a Conversation About Cybersecurity with the Client, in JILL D. RHODES & ROBERT S. LITT, THE ABA CYBERSECURITY HANDBOOK: A RESOURCE FOR ATTORNEYS, LAW FIRMS, AND BUSINESS PROFESSIONALS, 145– 83 (2d ed., 2018).
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pipelines. Major producers, like Shell and BP for example, support the World Bank’s Zero Flaring by 2030 Initiative and have supported regulatory changes to reduce flaring.1 On the environmental side, the Environmental Defense Fund has taken a leading role in identifying environmental issues associated with flaring, including a significant contribution to carbon dioxide emissions, methane emissions (from gas that is vented directly without being burned, whether intentionally or from malfunctioning flares), and nitrogen oxide emissions (which contribute to smog and other local air quality issues).2 The Texas Railroad Commission (“Railroad Commission”) regulates flaring under Statewide Rule 32, which requires operators to apply for an exception to be able to release gas not otherwise allowed by the rule. The operator must n unlikely coalition of royshow “the necessity for the release.”3 alty owners, pipeline comThe rule explicitly considers “the unpanies, major producers, availability of a gas pipeline or other and environmentalists came marketing facility, or other purposes and together in 2020 to promote uses authorized by law” restrictions in to constitute “necessity” Texas on the flaring of casfor casinghead gas.4 inghead gas, a common byOpponents of flaring product of shale oil wells. For royalty owners have noted that, in the Operators often flare gas when the well does not have and pipeline com- last several years, the Railroad Commission a connection to a pipeline panies, the issue is has approved all or alor other method for collectfinancial: depend- most all applications for ing and transporting the ing on lease terms, exceptions.5 As a result gas. As a result of the shale boom and new shale wells royalty owners may of the increased exceptions and the increased outpacing the infrastructure not receive royalties amount of flaring overall, for transporting gas, flaring on flared gas.” the Railroad Commission in the Permian Basin and faced pressure in 2020 to the Eagle Ford has increased address this issue. In November 2020, over recent years. Estimates of the after public hearings and a comment amount of flared gas vary, but sources period, the Railroad Commission voted agree that the amount of gas flared annuto change the form required for an exally exceeds the residential consumption ception application. Currently, operators of natural gas in Texas. may use either the old or new form; the For royalty owners and pipeline comnew form will likely become mandatory panies, the issue is financial: depending in spring 2021 as part of a shift to an onon lease terms, royalty owners may not line submission system. According to the receive royalties on flared gas. Pipeline Railroad Commission, the changes to companies lose out on revenue when gas the form will reduce flaring by (1) reducis flared rather than transported in their By Carly Milner
Flare Today, Gone Tomorrow:
Update on Texas Flaring Regulations
A
‘‘
ing the time period for which an operator can obtain an administrative exception to flare, (2) providing incentives to use technology to reduce flaring, (3) requiring more specific information justifying the need for the exception, and (4) requiring additional information to assist in auditing reported production.6 Other changes are likely to follow. Environmental groups in particular are not satisfied with these changes, pointing out that they do not actually require a reduction in flaring and do not address the release of methane via malfunctioning flares. Major producers support the World Bank’s “Zero Routine Flaring by 2030” program, and the Biden administration appears interested in stopping the rollback of rules on methane emissions. Two bills, HB 896 and HB 897, have been filed for the 2021 Texas Legislative session to address this issue as well.7 HB 896 would require the Texas Commission on Environmental Quality to develop regulations to limit flaring and venting, while HB 897 would require a study of how to use existing regulations and incentives to reduce flaring. Newly elected Railroad Commissioner Jim Wright also released a statement after the Commission’s January 26, 2021 open meeting, emphasizing that applicants for exceptions to the flaring rules must provide sufficient information to demonstrate a true need for flaring.8 On February 9, 2021, the Railroad Commission deferred some applications for flaring, including one that sought to flare over a million dollars’ worth of natural gas, to investigate the facts of the applications further.9 Commissioner Wright and Commissioner Wayne Christian both indicated an interest in reducing routine flaring (as opposed to emergency flaring) and taking a harder look at applications for exceptions. Despite the lack of significant change to Statewide Rule 32, operators can expect the Railroad Commission to demand strict compliance with the rules as well as evidence supporting the claimed basis for flaring. Whether the Railroad
Commission’s new approach to enforcement of the existing regulations dampens the momentum for more extensive legislative or regulatory changes remains to be seen. Carly Milner is a partner at Fogler, Brar, O’Neil & Gray, LLP, practicing commercial litigation. She is also a member of The Houston Lawyer Editorial Board. Endnotes
1. See Letter from David Lawler, Chairman & CEO, BP Am., Inc. & Gretchen Watkins, President, Shell Oil Co., to the Railroad Commission of Texas (Sept. 4, 2020), https:// www.bp.com/content/dam/bp/country-sites/en_us/united-states/home/documents/public-statements/railroadcommission-swr-32-comment-letter-and-zrf-principles. pdf. 2. Ben Ratner, A Zero Flaring Policy is Long Overdue, and Investors Can Help Make It Reality, ENV’T DEF. FUND (May 27, 2020), http://blogs.edf.org/ energyexchange/2020/05/27/a-zero-flaring-policy-islong-overdue-and-investors-can-help-make-it-reality/. 3. 16 TEX. ADMIN. CODE ANN. § 3.32(f)(2). 4. Id. § 3.32(f)(2)(D). 5. Kiah Collier, Pipeline Giant Sues Railroad Commission, Alleging Lax Oversight of Natural Gas Flaring, TEX. TRIB., Dec. 3, 2019, https://www.texastribune.org/2019/12/03/ railroad-commission-sued-lax-oversight-natural-gasflaring/. 6. RRC’s Commissioners Take Action to Reduce Flaring by Oil and Gas Industry, TEX. RAILROAD COMM’N (Nov. 9, 2020), https://rrc.texas.gov/news/110920-rrc-conferenceflaring-action/. 7. Kyra Buckley, 2 Texas House Bills Look to Curb Natural Gas Flaring, HOUS. PUB. MEDIA (Jan. 6, 2021), https:// www.houstonpublicmedia.org/articles/news/energyenvironment/2021/01/06/388716/lawmakers-couldaddress-natural-gas-flaring-in-upcoming-session/. 8. Commissioner Wright Statement on Flaring Exceptions, TEX. RAILROAD COMM’N (JAN. 26, 2021), http:// www.rrc.state.tx.us/news/012621-commissioner-wrightstatement-on-flaring-exceptions/. 9. E.g., Kevin Crowley & Rachel Adams-Heard, Texas Oil Regulator Signals Flaring Crackdown After Backlash, BLOOMBERG (Feb. 9, 2021, 11:45 a.m.), https://www. bloomberg.com/news/articles/2021-02-09/texas-oilregulator-defers-natural-gas-flaring-permit-requests.
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By Kimberly Tuthill White and Carina L. Antweil
Environmental, Social, and Governance Due Diligence and Environmental Risk Allocation in Transactions
I
n recent years, Environmental, Social, and Governance (“ESG”) factors have risen in importance to the point that they are often a central focus in a transaction. Over the past year, we have seen ESG transactional considerations impact environmental risk allocation practices in two primary ways: (1) due diligence; and (2) contractual risk allocation. 1. Due Diligence For the most part, ESG due diligence looks similar to traditional due diligence, but with an ESG lens. There are numerous “checklists” that are now being used to complete ESG due diligence. These checklists are typically maintained in-house and guide buyers through various ESG factors in an approach similar to that taken in traditional due diligence. ESG due diligence can uncover significant risks and opportunities that can impact the business post-transaction. These issues can be as varied as the ESG factors that companies consider, ranging from operations in water stressed areas, to supply chain human rights considerations, to workplace harassment concerns. ESG risks that are identified in due diligence can be accounted for in the transaction in various ways, including purchase price reductions, interim operating covenants requiring the seller to take certain actions in connection with the ESG risks, and postclosing indemnification obligations for losses arising out of the ESG risks. However, ESG risks also present opportunities for strengthening and improving the business post-transaction. ESG due diligence is primarily performed in-house or with the assistance 32 March/April 2021
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of consultants. Over the past couple of years, a market for ESG financial offerings, such as green or sustainable bonds, has emerged. The underwriters of these types of bonds will require a Second-Party Opinion issued by third-party providers of ESG research and services for investors and organizations. 2. Contractual Risk Allocation Once traditional due diligence is complete, any ESG risks identified that are central to a transaction must be allocated among the parties through contractual methods. For example, a transaction that involves greenhouse gas (“GHG”) emissions associated with a business or product line will specify how emissions will be accounted for, how they will be verified, and any recourse for failure to adhere to performance standards. Consider the following factors when setting out such contractual measures: • Flexibility for a changing regulatory landscape. The legal and regulatory landscape underlying ESG factors, such as GHG emissions associated with green products, is rapidly evolving. Thus, contracts should offer flexibility for a changing regulatory landscape. One way to accomplish this is to include provisions that allow the parties to update the agreement based on changes in the law as they relate to the specified ESG factors. • Accounting and verifying standards. In the absence of regulations that may dictate how a market treats a green product, contracts can also attempt to identify third-party standards or certificates that can be used to account
for or measure ESG factors. • Consistent and precise definitions. It is important to have consistent and accurate definitions that appropriately reflect the legal, scientific, and common understanding of terms. For example, with respect to GHG emissions, there are important nuances between an emissions credit and an emissions allowance, so these terms should not be used interchangeably. • Measures for recourse. If the provisions and goals that are bargained for in the contract are not followed or attained, as applicable, parties should negotiate appropriate recourse. For example, if a business or product fails to meet certain ESG-related performance standards post-transaction, there can be a reduction in price based on market prices for the nonconforming product. In 2021, we expect to see an even greater emphasis on ESG factors in transactions. We also expect to see emerging regulatory regimes for ESG factors in the financial markets, which may have an impact on how they are treated in the context of a transaction. Such developments should be closely monitored in both U.S. and international markets. Kimberly Tuthill White, a senior associate at Baker Botts L.L.P., advises clients on environmental regulatory compliance and represents them in environmental enforcement, litigation, permitting, and transactional matters. Her practice focuses on compliance counseling and enforcement defense for upstream and midstream oil and gas companies, and on ESG and sustainability reporting issues. Carina L. Antweil, a partner at Baker Botts L.L.P., represents public and private companies in a broad range of corporate and securities matters, including mergers and acquisitions, Exchange Act reporting, corporate governance, and general corporate matters. She represents issuers, investment banking firms, and other investors in public offerings and private placements of equity and debt securities, including initial public offerings, follow on and secondary public offerings, and 144A offerings.
Equal Access Champions The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has made a commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. Large Firm Champions Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Kirkland & Ellis LLP Locke Lord LLP Norton Rose Fulbright US LLP Vinson & Elkins LLP
Corporate Champions CenterPoint Energy, Inc. Exxon Mobil Corporation Halliburton Energy LyondellBasell Industries Marathon Oil Company Shell Oil Company
Mid-Size Firm Champions Akin Gump Strauss Hauer & Feld LLP BakerHostetler LLP Beck Redden LLP Chamberlain Hrdlicka Clark Hill Strasburger Foley & Lardner LLP Gibbs & Bruns LLP Gray Reed & McGraw, P.C. Greenberg Traurig, LLP Haynes and Boone, L.L.P. Jackson Walker L.L.P. Jones Day King & Spalding LLP Morgan, Lewis & Bockius LLP
Porter Hedges LLP ReedSmith LLP Winstead PC Winston & Strawn LLP
Shortt & Nguyen, P.C. Squire Patton Boggs (US) LLP Trahan Kornegay Payne, LLP
Individual Champions Boutique Firm Champions Abraham, Watkins, Nichols, Agosto, Aziz & Stogner Blank Rome LLP Dentons US LLP Fullenweider Wilhite PC Hogan Lovells US LLP Jenkins & Kamin, L.L.P. McDowell & Hetherington LLP Ogden, Broocks & Hall, L.L.P. Ogletree, Deakins, Nash, Smoak & Stewart P.C. Weycer, Kaplan, Pulaski & Zuber, P.C. Wilson, Cribbs & Goren, P.C. Yetter Coleman LLP
Small Firm Champions Coane & Associates Frye, Benavidez and O’Neil, PLLC Fuqua & Associates, P.C. Gibson, Dunn & Crutcher LLP Givens & Johnston Katine & Nechman L.L.P. Katten Muchin Rosenman LLP KoonsFuller, P.C. MehaffyWeber, P.C. Quinn Emanuel Urquhart & Sullivan, LLP Rapp & Krock, PC
Law Office of Peter J. Bennett Law Office of Travis A. Bryan I, PLLC Burford Perry, LLP The Dieye Firm The Ericksen Law Firm Law Office of Todd M. Frankfort Hasley Scarano L.L.P. David Hsu and Associates The Jurek Law Group, PLLC Law Firm of Min Gyu Kim PLLC The LaFitte Law Group, PLLC Law Firm of Catherine Le PLLC C. Y. Lee Legal Group, PLLC Law Office of Gregory S. Lindley Martin R. G. Marasigan Law Offices McGarvey PLLC Law Office of Evangeline Mitchell, PLLC Rita Pattni, Attorney at Law Pilgrim Law Office Law Office of Robert E. Price The Reece Law Firm, PLLC Law Office of Cindi L. Rickman, J.D. Sanchez Law Firm Law Office of Jeff Skarda Angela Solice, Attorney at Law Diane C. Treich, Attorney at Law Law Office of Norma Levine Trusch Trey Yates Law
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HBA Milestones Houston Bar Foundation:
The Foundation of Vital Community Programs
T
By Natasha Breaux
he Houston Bar Foundation (“HBF”) was established in 1982 as the charitable arm of the Houston Bar Association (“HBA”).1 At that time, the HBA had commissioned a long-range planning committee to consider what should be done to meet the challenges of the future.2 One of the committee’s recommendations was to create a nonprofit charitable organization that could more effectively discharge the Bar’s responsibilities to the legal profession and the community. And so, the HBF was born. According to the HBF’s first chairman, James B. Sales, it took “shoe leather” and “knocking on doors” to obtain initial donations. The first annual budget was $240,000, which went towards a variety of community service projects. Sales and John D. Ellis, Jr., who served as the fourth chair of the Foundation, were instrumental in establishing it as a section 501(c)(3) nonprofit organization. The Foundation’s directors are appointed by the Houston Bar Association and Foundation board members choose the chair, vice chair, and treasurer. The HBA president and HBA executive director serve as ex officio members of the HBF board, with the executive director also serving as secretary. The HBF has no paid staff; the HBA staff provide administrative and communication services. From its beginning, the primary beneficiary of the HBF has been the HBA’s Houston Volunteer Lawyers (“HVL”), which provides pro bono legal services in civil matters to low-income residents of Harris County, linking qualified applicants with attorneys volunteering their time on a pro bono basis. Through annual grants from the HBF and other organizations like the Texas Access to Justice Foundation, HVL helps low-income citizens that other programs often cannot serve, such as those who may not meet the financial criteria of other legal assistance programs. HVL volunteers make a difference in the lives of lowincome clients, their families, and communities every day. Today, the HBF continues to “provide critical funding to
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close the justice gap across the greater Houston area,” including providing financial support for HVL, says Polly Fohn, the 2021 chair of the HBF. In 2019, the Foundation created the Kay Sim Endowment for Maintaining Access to Justice in Houston, named after the HBA’s former longtime executive director, who remains a champion of pro bono service. Inaugural co-chairs were David Beck, Beck Redden LLP; Shauna Clark, Norton Rose Fulbright US LLP; Robin Gibbs, Gibbs & Bruns LLP; T. Mark Kelly, Vinson & Elkins LLP; Christine LaFollette, Akin Gump Strauss Hauer & Feld L.L.P; Neal Manne, Susman Godfrey L.L.P.; Jason M. Ryan, CenterPoint Energy, Inc.; and John Eddie Williams, Jr., Williams Hart LLP. Along with many other contributors, the Endowment Campaign helped to sustain future annual funding for pro bono legal services through HVL. Fohn further explains that the HBF’s “success is in large part due to its Fellows Program through which a small number of HBA members are nominated each year to support the Foundation’s crucial efforts.” The HBF, she says, is “proud to have more than 2,000 Fellows, including many of Houston’s most prominent lawyers and judges.” After four successful decades, the HBF investment portfolio has grown to over $18 million. The HBF supports the following programs: • Legal Clinics—An opportunity for low-income individuals to apply for assistance with HVL and receive free legal advice. • Veteran’s Legal Initiative—Service to low-income military veterans. • Consumer, Elder, and Family Law Handbooks—Free printed and electronic handbooks that explain common legal issues and remedies. • Self-Help Divorce Clinics—Assistance to self-represented litigants. • Continuing Education Grants—Education programs, which improve administration of justice for all, for Harris County court staff. • Texas Children’s Hospital Medical-Legal Partnership— Legal assistance for low-income patients. • Houston Area Women’s Center—Legal advice and assistance with protective orders for domestic violence victims. • Center for Urban Transformation—The Foundation has made grants the past two years for the juvenile diversion program that seeks to disrupt and end the 5th Ward’s school-to-prison pipeline and build a culture of compassion. The mission of the HBF “has never been more important to our community as over the past year,” explains Susan L. Bickley, 2020 chair of the HBF, when “many Houstonians found
themselves out of work, homeless, or trapped in painful or abusive relationships.” The community needs, according to Bickley, “only increased as the pandemic continued.” She describes how the HBF was able to continue providing a stable source of funding for all these important programs3: “Never have I been so proud of lawyers in the Houston Bar as I have been this year. It was immensely gratifying to watch our Houston lawyers answer the call. Because of COVID-19, we were unable to hold our annual Harvest Celebration party, which is the central fundraising vehicle for HBF.” She noted how this, in turn, adversely impacted funds available for HVL and continued, “Against this backdrop, I was overwhelmed by the generosity of our Houston legal community when—even without the Harvest party—the HBF 2020 Harvest Campaign raised a record amount to support Houston Volunteer Lawyers and pro bono legal services.”
Surely the founders of the HBF did not envision a worldwide pandemic gripping Houston. Nonetheless, the foundation they put in place, together with the generosity of so many attorneys, has served Houstonians superbly over this past year. There is no doubt that it will continue to do so for many years to come. Natasha Breaux is a Fellow of the Houston Bar Foundation and on the editorial board of The Houston Lawyer. She practices appellate litigation at Haynes and Boone, LLP. Endnotes
1. Houston Bar Foundation, HOUSTON BAR ASSOCIATION, https://www.hba.org/?pg= Houston-Bar-Foundation (last visited February 23, 2021). 2. ERIC L. FREDRICKSON, A COMMITMENT TO PUBLIC SERVICE: THE HISTORY OF THE HOUSTON BAR ASSOCIATION 147 (1992). 3. Houston Bar Foundation Fellows Program, HOUSTON BAR ASSOCIATION, https://www. hba.org/?pg=Fellows-Program (last visited February 23, 2021).
Chairs of the Houston Bar Foundation James B. Sales ,,,,,,,,,,,,,,,,,,,,,,,,,,, 1983 *John H. Crooker, Jr.,,,,,,,,,,,,,,,,, 1984 *Richard P. Hogan, Sr. ,,,,,,,,,,,,, 1985 *John D. Ellis, Jr.,,,,,,,,,,,,,,,,,,,,,,, 1986 * Richard Royds,,,,,,,,,,,,,,,,,,,,,,,, 1987 Robert A. DeWitt,,,,,,,,,,,,,,,,,,,,,, 1988 Michael Moehlman,,,,,,,,,,,,,,,,,,, 1989 Kenneth R. Wynne,,,,,,,,,,,,,,,,,,, 1990 Donald F. Wood,,,,,,,,,,,,,,,,,,,,,,,, 1991 *Blake Tartt,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 1992 Scott E. Rozzell,,,,,,,,,,,,,,,,,,,,,,,,, 1993 *D. Gibson Walton,,,,,,,,,,,,,,,,,,,, 1994 John F. Rhem, Jr.,,,,,,,,,,,,,,,,,,,,,,, 1995 Paula W. Hinton,,,,,,,,,,,,,,,,,,,,,,,, 1996 James V. Derrick, Jr.,,,,,,,,,,,,,,,,,, 1997 Otway B. Denny, Jr.,,,,,,,,,,,,,,,,,,, 1998 *Mark S. Snell,,,,,,,,,,,,,,,,,,,,,,,,,,, 1999 Ronald C. Lewis,,,,,,,,,,,,,,,,,,,,,,,, 2000 T. Mark Kelly,,,,,,,,,,,,,,,,,,,,,,,,,,,, 2001 *Marcy E. Kurtz,,,,,,,,,,,,,,,,,,,,,,,, 2002
Frank G. Jones,,,,,,,,,,,,,,,,,,,,,,,,,, 2003 Lynn Kamin,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 2004 William K. Kroger,,,,,,,,,,,,,,,,,,,, 2005 Tracie J. Renfroe,,,,,,,,,,,,,,,,,,,,,,,, 2006 Karl S. Stern,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 2007 Debra Baker,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 2008 Stewart W. Gagnon,,,,,,,,,,,,,,,,,,, 2009 Kent W. (Rocky) Robinson,,,,,,, 2010 William C. (Bill) Lowrey,,,,,,,,,, 2011 Robert J. McAughan,,,,,,,,,,,,,,,,,, 2012 Glenn A. Ballard, Jr.,,,,,,,,,,,,,,,,,, 2013 John Eddie Williams Jr.,,,,,,,,,,,, 2014 William R. Buck ,,,,,,,,,,,,,,,,,,,,,, 2015 Denise Scofield,,,,,,,,,,,,,,,,,,,,,,,,,, 2016 Travis Sales,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 2017 Barrett Reasoner,,,,,,,,,,,,,,,,,,,,,,, 2018 Travis Torrence,,,,,,,,,,,,,,,,,,,,,,,,, 2019 Susan L. Bickley,,,,,,,,,,,,,,,,,,,,,,,, 2020 Polly Fohn,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 2021 *Deceased
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SECTION spotlight
Social Security Section:
Social Security in the Age of a Pandemic
E
The Houston Lawyer
By James Passamano
ighty-five years ago, President Roosevelt signed the Soto follow. cial Security Act of 1935. It created the familiar retireSecond, the Section is committed to improving the qualment benefit program and also the federal unemployity of representation in Social Security and has for many years ment insurance prowanted to bring officials from gram, which during the Social Security Administhe current pandemic serves tration from Washington and as an important source of ecoBaltimore to Houston for an nomic and social security to in-person CLE program for our millions of Americans. Social members. However, schedulSecurity has since expanded to ing, timing, and transportation meet the needs of an expanding of the officials all precluded nation. For more than 50 years, such an event. With the ubiqthe Social Security Disability uitous use of internet-based Insurance benefit program has conferencing, this long-desired protected workers and families Section goal is now possible. who are unable to work because The Section has the goal of orof a disabling illness or injury. ganizing a web-based program Similarly, the Social Security Social Security Section members heard a presentation from U.S. Magistrate for our members and the HBA Administration’s Supplemental Judge Peter Bray at a section luncheon at Tony’s prior to the COVID-19 pandemic. that includes appearances from Security Income benefit program has protected indigent chilthe Social Security Administration leadership. The program will dren and adults with severe disabilities. address how the agency is processing and hearing claims with Members of the Houston Bar Association’s Social Security a Social Security Administration workforce that is working reSection work in this highly focused administrative litigation motely due to the COVID-19 pandemic, how the recent change practice, which involves marshaling medical evidence, presentin the federal administration will affect the Social Security Ading evidence before administrative law judges, and appealing to ministration, and how the pandemic has affected applications the Administration’s Office of Hearing & Appeals and to United for benefits and program financing, among other issues. States District Courts and Circuit Courts of Appeal. Finally, the Section continues to pursue its ongoing goal of inThe Section has developed several goals for the upcoming creasing section membership. We hope to attract newly licensed 2021-22 bar year. attorneys to this challenging practice as well as attract attorneys First, because the COVID-19 pandemic has caused a reducin other areas of practice that have a connection to Social Securition in the number of Section meetings, the Section’s most imty law – such as employee benefits, personal injury settlements, mediate goal is to resume regular section meetings with CLE guardianship, and estate planning. programming through web-based conferencing. The Section will also plan to resume in-person meetings whenever it is safe James Passamano has practiced Social Security law and health and practical to do so. The Section is small in number, but its law at Sufian & Passamano, L.L.P. since 1997. He is a former members have rich experience. The regular Section meetings are senior trial attorney for the United States EEOC and a former judian important aspect of professional development and collegiality cial clerk for the United States District Court. He received degrees for the Social Security Bar. The Section has two meetings with in law from the University of Cambridge in England and South CLE programming planned for the upcoming months with more Texas College of Law – Houston. 36 March/April 2021
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A Profile
in pro f e s s i o n a l i s m
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Kelly B. Rose Senior Vice President, Legal and General Counsel ConocoPhillips
or me, professionalism begins with treating others with kindness and respect, a basic tenet of human society that we learn as children. But it is especially important for lawyers to be kind and respectful. The practice of law can be stressful. Even practice areas that are not inherently dispute-related involve conflict. The profession is increasingly competitive, and constant connectivity can weigh on personal time. Our clients and colleagues have high expectations of us, and it can be hard to keep up. If those pressures weigh on you, they also weigh on your assistant, paralegal, office staff, opposing counsel, clients, and colleagues. The antidote to these pressures is kindness and respect. It can be as easy as a genuine smile and hello in the elevator or as difficult as giving someone the benefit of the doubt rather than assuming ill intent. I believe that being kind and respectful to all not only makes you a more effective lawyer, but also leads to greater personal happiness and professional satisfaction. How to interact in the professional world isn’t something that is formally taught. It’s a skill that you learn by observing and imitating. As a young lawyer, senior partners at Baker Botts taught me that a well-reasoned but polite disagreement was vastly more effective than an escalating argument. Opposing counsel 30 years my senior chose to treat me as an equal instead of taking advantage of my inexperience. Clients forgave rookie mistakes. Every one of those interactions added another layer to my understanding of what it means to be a professional. And in my 30 years of practicing law, I believe they were the most influential lessons I learned.
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OFF THE RECORD
A Strong Competitor:
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The Houston Lawyer
By Liz Furlow
Jeannie Andresen
eannie Andresen, a commercial bankruptcy attorney at Doré Rothberg McKay specializing in mineral liens for oil and gas servicers, is also a competitive bodybuilder. After having her second baby in 2017, Jeannie decided she wanted to lose the weight she gained during her pregnancy and get fit. At first, she went to the gym and ate healthy. But then she decided to push herself harder. One day at the gym, she observed those around her. Who was the strongest, who was the fittest? She approached them all in turn, asking them who they trained with. Almost all of them named a local coach, Jay Martinez. Jeannie pulled the trigger and gave Jay a call. She told him her basic goals: she wanted to get healthy and to tone up. For the next year, they worked to achieve those goals. But as Jeannie’s strength and fitness developed, so did her original ambition. A year in, seeing how far she had come already, her trainer suggested that Jeannie try a bodybuilding competition. “We decided to turn things up,” Jeannie says. Jay came up with a very specific training and nutrition regimen for Jeannie, and the next level of work began. On certain days, she would train specific muscle groups, or she would perform a certain amount of cardio on various fitness machines. Based on her progress each week, her couch would adjust her meal plan or training schedule. This rigorous training schedule also had to fit in around Jeannie’s top priorities: work and family. To make time for it all, Jeannie woke up at 4:30 every morning to train. After her morning session at the gym, she would then come home, get her daughter ready for kindergarten, and head to work herself. Jeannie had her first bodybuilding competition in 2019 and has competed in three shows since, including national level competitions. To prepare for a show, discipline is everything. Jeannie cooks all of her meals in advance, because she needs to eat five to six meals a day—measuring each meal to the gram—and eat every two to three hours. But Jeannie considers the final two weeks before a show—the 38 March/April 2021
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cutting phase—to be the most challenging. “You’re trying to deplete your body without starving yourself. You don’t eat any carbs for days, maybe just fish and asparagus, for a week.” The final days leading up to the show require an altogether different kind of preparation. As a competitor in the bikini division, Jeannie is expected to get “all glammed up,” as she says. This means “crazy dark spray tans and a sparkly bikini, all for 10 seconds on stage.” The rigid discipline required to train for these competitions, from working out every morning to measuring her meals down to the gram, has helped Jeannie develop the same discipline and focus at work. Not only does the training reinforce the discipline required for long hours of work and research, but the exertion of physical activity early in the morning provides her with a mental reset. By the end of each morning training session, Jeannie says, she is “ready to attack the day.” Jeannie’s life before and after her training are like night and day. Before, she would hit the gym occasionally, but had no real physical routine. And where her kids used to eat chicken nuggets or pizza for dinner, now they eat what she eats: salmon and broccoli and other healthy meals. Jeannie will compete at the national level in Pittsburgh in July, and will begin her training in a few months’ time. “Everyone can make time for it,” she says. “If you want to do it, you’ll make the time.” Jeannie may be contacted about bodybuilding through her Instagram at @jeannie_andresen_ and her coach, Jay Martinez of Team Cobra, can be contacted through his Instagram at @kingjmcobra. Liz Furlow is a litigation associate at Baker Botts L.L.P. She is the associate editor in charge of the Off the Record column for The Houston Lawyer.
Committee spotlight
Keeping On:
HBA Law Week Fun Run Goes Virtual
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By Kimberly A. Chojnacki
he HBA John J. Eikenburg 8K Law Week Fun Run is ticipants received a finisher medal, as did all participants in the in its 36th year. Every year before now, hundreds of 1K kids’ run. All registered participants also received a t-shirt, area runners, walkers, and supporters have traversed race packet with swag generously provided by sponsors of the up and down Allen Parkrace, and the opportunity to win way on race day in support door prizes. of The Center for Pursuit, a private, While the Law Week Committee non-profit corporation dedicated to is proud of the work it has done for offering people with intellectual and The Center for Pursuit over the last developmental disabilities the op36 years, it is particularly proud of portunity to reach their full potential the impact it has been able to make and to contribute to their community. in this most extraordinary year, all That changed this year due to the COwith the help of the Houston legal VID-19 pandemic. community, the support of sponsors This year, the Law Week Fun Run from the community, and particiwent virtual. Instead of one race day, pants far and wide. All the while, the participants were able to participate Committee remains excited and anxin the 1K kids’ run, the 8K, or the ious to (hopefully) be able to plan 1-mile family walk over a span of 17 next year’s race as an in-person event days. While there was no race day as it has in years past. camaraderie, no live music, no postIf you missed the opportunity to race food or beer, the shift to a virregister for this year’s Law Week tual event nevertheless proved to be Fun Run or to sponsor the event, you another silver lining for The Center can always support The Center for for Pursuit, with this year’s donation Pursuit by making a tax deductible of $70,691. donation by mailing a check to the Since 1986, the Houston Bar AssoHouston Bar Association, Attn: Fun ciation has raised over $1.6 million Run, 1111 Bagby, FLB 200, Houston, for The Center for Pursuit. To that Texas 77002. (All checks should be end, 100 percent of every entry fee made payable to the Houston Bar is contributed directly to The Center Foundation.) for Pursuit and helps support a variAnd if you’re interested in being a ety of programs designed to provide part of organizing a great event for an education, job training, socialization, Top photo– South Texas College of Law Houston fielded several even better cause, consider joining community living, and health care for teams and individual runners, and all participated together, the committee in the upcoming bar including Dean Michael Barry. Bottom– Members of the people with intellectual disabilities. Eikenburg Law Week Fun Committee at Holler Brewing Co., host year. For more information, please Paired with additional fundraising for a drive-thru packet and awards pickup. reach out to any one of the co-chairs: from sponsorships, and without the costs associated with orBrooksie Boutet, Amber Morrison, and Cara Vasquez. ganizing the usual, in-person trappings of the annual race, the HBA was able to contribute even more to The Center for Pursuit Kimberly A. Chojnacki is an associate editor of The Houston this year. Lawyer. She also is a litigation associate at Baker Donelson Participants this year were able to choose their own routes, in Houston. She represents corporate clients in eminent domain whether in their neighborhoods, using the usual course route, proceedings, complex commercial litigation, and insurance or anywhere else in the world they happened to be. All 8K pardefense disputes. thehoustonlawyer.com
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LEGAL TRENDS
New Laws Allowing Non-Lawyer Ownership of Law Firms
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The Houston Lawyer
By Ruby L. Powers
he concept of non-lawyer ownership of law firms is foreign to most in the United States, but recent court rulings in Utah and Arizona have us rethinking this standard, partly in response to calls for criminal justice reforms, innovation, and increased access to justice concerns. Arizona was the first state to allow nonlawyers to own law firms. They will allow legal paraprofessionals (LPs) to provide limited legal services to the public, including going to court with their clients. LPs will be able to practice in administrative law, family law, debt collection, and landlord-tenant disputes, with limited jurisdiction in civil and criminal matters.1 Utah followed soon after with changes that allow non-lawyers to own or invest in law firms with a two-year pilot program that will establish a regulatory sandbox for lawyers and non-traditional legal providers and services to test new ways of delivering and marketing legal services in a controlled environment.2 This includes entities with non-lawyer investment or ownership. The Utah court wrote “what has become clear during this time is that real change in Utahns’ access to legal services requires recognition that we will never volunteer ourselves across the access-to-justice divide and that what is needed is market-based, far-reaching reform focused on opening up the legal market to new providers, business models, and service options.”3 In other jurisdictions, Washington state “sunsetted” their Limited License Legal Technicians program that permitted non-lawyers to perform some legal
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tasks within family law. The Washington Supreme Court cited costs of sustaining the program and the small number of interested individuals for reasons to end the program.4 In July 2019, the California State Bar began considering allowing nonlawyers, as well as artificial intelligence (AI) programs, to legally “practice” law. Those against the idea argued it would impact the small and solo law firms who often serve the lower- to middle-class income markets5 defeating the access to justice argument. If this change were to take place in more states, there could be a tipping point for many areas of law. For now, this will be an experiment in Utah and Arizona and potentially for Federal law practices like tax, patent, and immigration, depending on the details of the states that experiment in this arena. From Lawline v. American Bar Association6 to Florida Bar v. Glueck 7 and Reus v. Tilp 8, along with countless other decisions, the court has frowned upon nonlawyers forming a partnership with lawyers and sharing fees with non-lawyers. In each of these cases, parties have either shared the profits, jointly provided legal along with non-legal services to clients, or directly involved nonlawyers as alleged owners and operators of law firms. If we look beyond the United States, common law jurisdictions such as England and Australia have already taken measures to lift the prohibition on nonlawyer ownership.9 While innovation is invited in the hopes of modernizing and bringing the practice of law into the 21st century, some change may be too much for lawyers and law firm owners as well as impact the quality of service and disrupt the market. Although to a lawyer this paradigm shift may take time to fathom, there are several benefits for non-lawyer ownership.10 One benefit includes a more diverse approach to thoughts and ideas of
providing legal services from operations, marketing, and service delivery. It could bring out-of-the box thinking to a field in need of ingenuity. Second, this gamechanger could allow a more unique pool of employees and team members and incentivize those traditionally not in the legal field to enter with their expertise and capital. More importantly, the goal for those who tout this change is the increased access to justice. According to the World Justice Project, 77% of legal problems don’t receive legal help.11 At the same time, record-breaking unemployment rates, economic slowdowns, and reduced court services have only increased the barriers to legal services.12 Advocates for this change argue that the gap between those who are served and those who are not justifies trying to solve this matter in a new way. As for the drawbacks of non-lawyer ownership, lawyers can see many initial problems, hence all the prior litigation and why this hasn’t changed on a widespread scale in the United States. A nonlawyer would have a steep learning curve in understanding the legal field they are in. The concern for professional independence for example, if non lawyers make legal decisions in running the law or are perceived of unauthorized practice of law, will be of great concern to the legal community and confusing to the nonlegal community. In conclusion, what is the right answer? Amidst advancements in technology and societal shifts, it is hard to ignore the legal market’s climate is changing. The debate over the legal industry becoming available to non-lawyers has long been a point of contention. Ultimately, time will tell with this experiment. Arizona and Utah are pioneers in the pursuit of justice but also could be seen as disruptors in the legal field. It will take a few years to see the results of this experiment. When other states take notice of the results, they could ultimately follow and create a
LEGAL TRENDS
whole new era of law firm ownership or if it fails, it will close the chapter on this trial for years to come. Ruby L. Powers is founder of Powers Law Group, P.C., a full-service immigration law firm, and she is board certified in Immigration and Nationality Law. She authored AILA’s “Build and Manage Your Successful Immigration Law Practice (Without Losing Your Mind)” and provides law practice management consulting services to attorneys. She is a member of The Houston Lawyer editorial board. Endnotes
1. https://www.2civility.org/two-states-vote-to-allownonlawyer-ownership-or-investment-in-law-firms/ 2. https://www.2civility.org/two-states-vote-to-allownonlawyer-ownership-or-investment-in-law-firms/ 3. Moran, Lyle. “Utah Embraces Nonlawyer Ownership of Law Firms as Part of Broad Access-to-Justice Reforms.” ABA Journal, 14 Aug. 2020, 3:45 PM CDT, www.abajournal.com/web/article/utah-embracesnonlawyer-ownership-of-law-firms-as-part-ofbroad-reforms. 4. ht t p s: // w w w. a b ajou r n a l .c om / ne w s /a r t ic le / washington-supreme-court-decides-to-sunset-pioneering-limited-license-program 5. https://www.glscap.com/how-will-changes-to-lawfirm-ownership-rules-affect-us-law-firms/ 6. Lawline v. American Bar Ass’n, 956 F. 2d 1378 Court of Appeals, 7th Circuit 1992 7. The Florida Bar v. Glueck, 985 So. 2d 1052 - Fla: Supreme Court 2008 8. REUS v. TILP, 2015 NY Slip Op 32025 - NY: Supreme Court 2015 9. https://www.glscap.com/how-will-changes-to-lawfirm-ownership-rules-affect-us-law-firms/ 10. https://www.cohenwinters.com/new-laws-regardingwho-can-own-law-firms/ 11. World Justice Project, Global Insights on Access to Justice, 2018 12. Clio Legal Trends 2020, page 6
The Supreme Court Broadens the Scope of Plain-Error Review (a Little)
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By Nelson S. Ebaugh
or nearly three decades, the U.S. Court of Appeals for the Fifth Circuit held that a factual issue could not be reviewed for plain
error. However, in Davis v. United States, 140 S.Ct. 1060 (2020), the U.S. Supreme Court concluded that “there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.” Some background on plain error will help explain the significance of the Davis opinion. To begin with, plain error is often referred to as a standard of review. However, it is arguably not so much a standard of review as it is a doctrine applied by a federal appellate court to determine if an unpreserved error should be reviewed at all. If unpreserved error on appeal is plain, i.e., clear or obvious, a federal appellate court may correct the error if it affects the defendant’s substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Plain-error review is typically employed in criminal cases, but federal appellate courts occasionally apply plain-error review in civil cases, too. In Davis, a criminal defendant challenged the Fifth Circuit’s “outlier practice of refusing to review certain unpreserved factual argument for plain error.” The Supreme Court noted that “almost every other Court of Appeals [besides the Fifth Circuit] conducts plain-error review of unpreserved arguments, including unpreserved factual arguments.” Further, the Supreme Court remarked that Federal Rule of Criminal Procedure 52(b), the plain-error rule, “does not immunize factual errors from plain-error review.” Finally, the Supreme Court observed that none of its cases “purport to shield any category of errors from plain-error review.” The Supreme Court thus held that a factual issue could be reviewed for plain error and remanded to the Fifth Circuit for further proceedings consistent with its opinion. Unfortunately for Davis, his success at the Supreme Court turned out to be hollow victory when, on remand, the Fifth Circuit held
that he failed to show plain error. The facts are relatively straightforward. Davis pleaded guilty to a federal felon-in-possession-of-a-firearm charge and a federal possession with intent to deliver narcotics charge. At the time of his federal sentencing, Davis had a state unlawful possession of a firearm charge and a state possession of marijuana charge pending against him. The state charges arose from conduct that occurred ten months prior to the commission of Davis’ federal offenses. Without any objection from Davis, the federal district judge ordered Davis’ federal sentence to run consecutive to any state sentences. On appeal, Davis argued that because his federal and state offenses were part of the “same course of conduct,” the federal district judge should have ordered the federal sentence and any state sentence to run concurrently with each other, not consecutively. Employing plain-error review, as directed by the Supreme Court, the Fifth Circuit held that it was not “clear or obvious” that Davis’ federal and state offenses were part of the “same course of conduct,” and affirmed Davis’ sentence. In sum, the Davis holding may allow a criminal defendant to challenge an unpreserved factual issue when “findings are internally contradictory, wildly implausible, or in direct conflict with the evidence that the sentencing court heard at trial.”1 However, satisfying the plainerror standard remains difficult, “as it should be.”2 Nelson S. Ebaugh’s practice concentrates on business litigation and criminal defense. He is a member of the Criminal Justice Act Panel in the Southern, Northern, Eastern, and Western Districts of Texas. His office is in Houston (www.ebaughlaw.com). Endnotes
1. United States v. Saro, 24 F.3d 283, 291 (D.C. Cir. 1994). 2. United States v. Dominguez Benitez, 542 U.S. 74, 83, n. 9 (2004).
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Media Reviews
The Mourning Wave: A Novel of the Great Storm By Gregory Funderburk Köehlerbooks, 2020 Reviewed by Nikki Morris
The Houston Lawyer
I
magine living through a storm so powerful and so devastating that 120 years later it is still considered to be the deadliest natural disaster in US History, claiming the lives of between 6,000 and 12,000 people. This catastrophic event is the subject of Gregory Funderburk’s debut novel, The Mourning Wave: A Novel of the Great Storm. Funderburk is a Houston lawyer and a pastoral care minister. His experiences on both accounts have no doubt contributed to his ability to write a compelling story that is based in fact and yet conveys the genuine emotions felt during and after experiencing a natural disaster. The Mourning Wave is historical fiction that provides a detailed glimpse into what life was like in Galveston during and after the Great Storm of 1900. The novel centers around Will Murney, Frank Madera, and Albert Campbell—the only three survivors of over 90 orphans living at St. Mary’s orphanage at the time. Will, Albert, Frank and many of the characters they encounter throughout the story are based on real people and real accounts of the storm that demolished businesses, destroyed homes, and claimed thousands of human lives. The story begins just before the storm reaches the island and immediately invokes a sense of foreboding before taking you through the emotional rollercoaster that is a natural disaster. In the middle of the night, the boys cling to life in an old boat called the John S. Ames while wind and water threaten to pull them out to sea. Once the dawn breaks and the destruction is complete, the boys make their way 42 March/April 2021
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across the island seeking refuge and medical attention for injuries sustained during the storm and with the mission of telling the sisters at St. Mary’s infirmary what happened at the orphanage. Along the way, they encounter several characters experiencing the shock and grief that follows tragedy, as they grapple with the uncertainty of loved ones’ whereabouts and the complete loss of their homes or livelihoods. Funderburk’s descriptions of the destruction are thorough, but at one point, Will and his friends come across an unsurmountable ridge created by demolished buildings, furniture, and other remains, and I felt compelled to stop reading so that I could search for pictures of the destruction to see it for myself. If you, like me, have little knowledge of the history of this storm, I encourage you to search for pictures of the Great Storm of 1900, too! The devastation is incredible with houses turned on their sides and entire streets reduced to piles of lumber and other debris. But do not be discouraged. The Mourning Wave is not only a compelling tale of the devastation caused by the Great Storm, but it is also a story of hope and resiliency as the city begins to heal and find a way to move forward. Neighbors help neighbors with needed supplies, such as clothing and food. Other infrastructure is also instituted as large-scale cleanup efforts commence. There is even hope as people are reunited with loved ones thought to be lost. Although historical fiction is not my typical go-to genre, I was captivated by The Mourning Wave and compelled to find out the fate of Funderburk’s characters. This is the type of story that history buffs familiar with the Great Storm and fiction-lovers can both enjoy. Funderburk’s writing is thoughtful and poetic, and I look forward to his next novel.
Nikki Morris is a litigation attorney at Baker & Hostetler, LLP. She is a member of The Houston Lawyer editorial board and an avid reader.
A Litigator’s Guide to Building Your Best Argument By Cecil C. Kuhne III ABA Book Publishing, 2019 Reviewed by Brooksie Bonvillain Boutet
I
f you find the same words and phrases appearing on your computer screen over and over again, A Litigator’s Guide to Building Your Best Argument is a good read to refresh your writing. The overarching theme is how to craft a convincing argument for a busy judge. The book covers wide-ranging topics—from overall structure and rigorous editing, to how to summarize the facts of a case and analyze case law—for trial and appellate attorneys across all practice areas. It even includes a little lagniappe on oral arguments. The structure of the book is user friendly. Each chapter provides a brief lesson on an essential of effective, persuasive writing and concludes with samples of the techniques described. This makes for a quick read for a practitioner who finds it necessary to forego the lengthier examples and allows for easy reference back to key points. However, if the examples included in each section are not enough for you, there are more at the end of the book and model briefs in the appendix. A Litigator’s Guide will bring attorneys of all skill levels back to the basics of building their best arguments. Brooksie Bonvillain Boutet is a trial attorney at Shipley Snell Montgomery, LLP. She is a member of The Houston Lawyer editorial board and serves as the editor of Behind the Lines: The Houston Lawyer Podcast.
Join the HBA 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, government agencies, law schools and corporate legal departments 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, Agosto, Aziz & Stogner Adair Myers Graves Stevenson PLLC Ajamie LLP Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Berg & Androphy Bradley Arant Boult Cummings LLP Buck Keenan LLP Bush & Ramirez, PLLC Carter Morris, LLP Cozen O’Connor Crady, Jewett, McCulley & Houren, LLP De Lange Hudspeth McConnell & Tibbets LLP Dentons US LLP Devlin Naylor & Turbyfill PLLC Dobrowski, Larkin & Stafford, L.L.P. Doyle Restrepo Harvin & Robbins LLP Ewing & Jones, PLLC Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins Fogler, Brar, O’Neil & Gray LLP Frank, Elmore, Lievens, Slaughter & Turet, L.L.P. Funderburk Funderburk Courtois, LLP Galligan & Manning Germer PLLC Givens & Johnston PLLC Gordon Rees Scully & Mansukhani Henke, Williams & Boll, LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Horne Rota Moos LLP Hughes, Watters & Askanase, L.L.P. Husch Blackwell LLP Irelan McDaniel, PLLC Jackson Lewis P.C. Jenkins & Kamin PC Johnson DeLuca Kurisky & Gould, P.C.
Jordan, Lynch & Cancienne PLLC Kean | Miller LLP Kelly, Sutter & Kendrick, P.C. Kilpatrick Townsend & Stockton LLP KoonsFuller, PC Law Feehan Adams LLP Linebarger Goggan Blair & Sampson, LLP Lorance Thompson, P.C. MacIntyre McCulloch & Stanfield, L.L.P. McGinnis Lochridge McGuireWoods LLP McKool Smith MehaffyWeber PC Morris Lendais Hollrah & Snowden Murrah & Killough, PLLC Nathan Sommers Jacobs PC Paranjpe Mahadass Ruemke LLP Peckar & Abramson, P.C. Phelps Dunbar LLP Pillsbury Winthrop Shaw Pittman LLP Pipkin Ferguson PLLC Ramey, Chandler, Quinn & Zito, P.C. Rapp & Krock, PC Reynolds Frizzell LLP Roach & Newton, L.L.P. Ross Banks May Cron & Cavin PC Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Echols, Slay & Nelson Archer, P.C. Schiffer Hicks Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Page & Harding, L.L.P. Scott, Clawater & Houston, L.L.P. Shannon Martin Finkelstein Alvarado & Dunne, P.C. Shearman & Sterling LLP Shellist | Lazarz | Slobin LLP Shipley Snell Montgomery LLP Smith Murdaugh Little & Bonham LLP Spencer Fane LLP Sponsel Miller Greenberg PLLC
Sprott Newsom Quattlebaum & Messenger Strong Pipkin Bissell & Ledyard LLP Stuart PC Taunton Snyder & Parish Taylor Book Allen & Morris Law Firm Thompson & Horton LLP Tindall England PC Tracey & Fox Law Firm Ware, Jackson, Lee, O’Neill, Smith & Barrow, LLP West Mermis, PLLC Weycer, Kaplan, Pulaski & Zuber, PC Williams Hart Boundas Easterby LLP Wilson Cribbs & Goren PC Wright Abshire, Attorneys, PC Wright Close & Barger, LLP Ytterberg Deery Knull LLP Zukowski, Bresenhan & Piazza L.L.P. Firms of 25-49 Attorneys AAdams and Reese LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Andrews Myers, P.C. Beck Redden LLP BoyarMiller Coats | Rose Cokinos | Young Gibbs & Bruns LLP Hogan Lovells US LLP Kane Russell Coleman & Logan PC Liskow & Lewis Littler Mendelson P.C. Martin, Disiere, Jefferson & Wisdom McDowell & Hetherington LLP Ogletree Deakins Nash Smoak & Stewart, P.C. Yetter Coleman LLP
Greenberg Traurig, LLP Haynes and Boone, LLP Jackson Walker L.L.P. Morgan, Lewis & Bockius LLP Susman Godfrey LLP Winstead PC Firms of 100+ Attorneys Baker Botts L.L.P. Bracewell LLP Hunton Andrews Kurth LLP Locke Lord LLP Norton Rose Fulbright US LLP Porter Hedges LLP Vinson & Elkins LLP Corporate Legal Departments CenterPoint Energy, Inc. EOG Resources, Inc. MAXXAM, Inc. Plains All American Pipeline, L.P. Quantlab Financial, LLC Rice University S & B Engineers and Constructors, Ltd. Law School Faculty South Texas College of Law Houston Thurgood Marshall School of Law University of Houston Law Center Government Agencies Harris County Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County, Texas 1st Court of Appeals 14th Court of Appeals
Firms of 50-99 Attorneys BakerHostetler LLP Brown Sims
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LITIGATION MARKETPLACE
Office Space Midtown Office Space I3518 Travis, ground floor, 4 window exposure executive offices available, conference room access, full shared kitchen, all expected amenities. Internal clerical space also available. Will accommodate. Call 713-960-8300. KIRBY – 3730 Kirby, 7th Floor. Window office available. Part downtown & med center view. Suite shared w/ 4 attorneys. Includes networked copier/fax/scanner, phone, internet, conference room & reception area, kitchen, fileroom, staff space available. Covered free parking. Call Sam Bernstein at 713-526-4968.
The Houston Lawyer
HOUSTON/ENERGY CORRIDOR I-10 & 1155 Dairy Ashford Established law firm with estate/ trust planning, probate/trust administration, elder law and business practice seeks to lease large 12x15 window office in friendly, beautiful office suite, with reception area. Office easily accommodates credenza, full size desk, two client chairs, two 5-drawer lateral files. Telephone, WiFi, high speed Internet, copiers/ scanners, fax. Kitchen with microwave and coffee. Notary available. Access to conference rooms on scheduled basis. Free covered parking for attorney and clients. Possible overflow work subject to attorney availability, skill and experience. $895/month, quarterly term. Steve 713-553-0732 (cell) steve@mendellawfirm.com. HOUSTON—ONE GREENWAY PLAZA, SUITE 100—Class A space available for sublease. Great MultiLawyer/Corporate/Professional Suite—1st floor (no elevator needed), 15 ft+ ceilings, security, garage/ covered parking, digital phone/ voicemail-emailed/fax/high-speedinternet/cable system, 2 conference rooms, file room, front full-time bilingual receptionist, kitchen area; walk to new food court; fine dining/ restaurants; new Lifetime Fitness gym; Starbucks, etc. Recently refurbished office; various combinations available January/February 2021: 2 large window offices and/or 3 spacious furnished secretarial spaces. Virtual office space also available. Call Lawrence at 713-650-1222 or email: legal@texas.net. 44 March/April 2021
HOUSTON GALLERIA AREA NEW NORMAL OFFICE SPACE One approx. 14’ x 15’ office and one cubicle with high partitions. 5,000 sq ft suite for easy social distancing. File space; 2 conference rooms; kitchen; telephone system; fiber internet; copier; ground floor (no elevator rides). Not an executive suite. Contact kurt@kurtarbuckle.com. HOUSTON MEMORIAL OFFICE SUITES Legal offices available on Westview Drive between Wirt and Antoine. Shared receptionist, conference room, and break room. Rent includes all utilities, internet, phone, parking, security, cleaning service, and office maintenance. For details contact: jacquesb@marksfirm.com Looking to lease your empty office space to other lawyers? LawSpaceMatch.com is where lawyers go to lease LawSpace to lawyers. List LawSpace quickly and easily, outline practice areas and upload 6 photographs. Created by lawyers sharing LawSpace. Contact service@lawspacematch.com for 30 day FREE LawSpace listing Promo Code. OFFICE SPACE Houston Junior League area. Join 9 independent, established lawyers. Large outside office and one inside office. Reception area and receptionist. Notary. Large outside conference room, library/conference room; kitchen with microwave, 2 refrigerators, coffee center, telephone system, copier, fax, scanner, internet, covered parking, electrical stations, file room. Furnished or non-furnished. 713-759-1188 or jim@jhwlaw.com. DAIRY ASHFORD, NEAR WESTHEIMER Established solo practitioner offering large office space (22’ X 9’) for lease. Furnished with desk and bookcases. Three month lease ($450/month) includes free parking. Possible overflow legal work. Call Judith 713-780–1355.
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mary@quantumsur.com or call
281.955.2449 ext. 3
Law Firm Acquiring Kiefaber & Oliva LLP is Interested in Acquiring a Law Firm We are eager to hear from principals of law firms that meet all of the following criteria: •Sizable revenue (an average of at least $1M of top line revenue over the last 5 years); •Demostrated consistent earning power (we are not interested in future projections); •Business earning good returns while employing little or no debt; •Management and staff in place; •Simple practice; •An offering price (we don’t want to waste our time or that of the seller by talking, even preliminarily, about a transaction when price is unknown). We can promise complete confidentiality and a very fast answer as to whether we’re interested. Please send correspondence to Zachary Oliva, Managing Partner of Kiefaber & Oliva LLP, via e-mail (zoliva@ kolawllp.com) or U.S. Mail (Kiefaber & Oliva LLP, 815 Walker Street, Suite 1140, Houston, Texas 77002). Professional Services
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When you need a number call our number
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Mary Chavoustie mary@quantumsur.com
281.955.2449 ext. 3
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W W W . T H O M A S R O N E Y L L C . C O M
from the editor From page 8 2. Record-Breaking Atlantic Hurricane Season Draws to an End, NAT’L OCEANIC & ATMOSPHERIC ADMIN. (Nov. 24, 2020), https://www.noaa.gov/media-release/ record-breaking-atlantic-hurricane-season-drawsto-end (noting there were thirty named storms and twelve storms that fell on land in the continental United States); Paul Takahashi, Some Went Without Power for Days in Houston’s Winter Storm; Others Never Lost it. Why?, HOUS. CHRON., Mar. 3, 2021, https:// www.houstonchronicle.com/business/energy/article/ texas-power-outage-houston-analysis-15995419.php (discussing the power outages in Houston during Winter Storm Uri). 3. See, e.g., Thomas J. Sugrue, 2020 Is Not 1968: To Understand Today’s Protests, You Must Look Further Back NAT’L GEOGRAPHIC (June 11, 2020), https:// www.nationalgeographic.com/history/article/2020not-1968 (noting the similarities and differences between “uprisings” in 1919, 1943, 1968, and 2020). 4. See, e.g., Theresa Machemer, How Winter Storm Uri Impacted the United States, SMITHSONIAN MAG. (Feb. 19, 2021), https://www.smithsonianmag.com/ smart-news/how-winter-storm-uri-has-impactedus-180977055/ (noting that some scientists “say that as warming weakens the jet stream, the polar vortex will become unstable more often, causing more of these cold spells at least in the short term”); Stephanie Ebbs, Historic Winter Storm Raises Questions About Climate Change and Cold, ABCNEWS (Feb. 19, 2021), https://abcnews.go.com/Politics/climate-change-affects-winter-weather/story?id=75971290 (“[W]hile the connection between climate change and cold weather patterns isn’t as clearly established as its relationship to warming, experts say it does affect how severe winter storms are and how long they last.”). 5. E.g., Elizabeth Trovall, Winter Storm Delivers Another Blow to Communities of Color, NPR, HOUS. PUB. MEDIA (Feb. 23, 2021, 5:03 a.m.), https://www.npr. org/2021/02/23/970435257/winter-storm-deliversanother-blow-to-communities-of-color (“Last week’s deep winter freeze exposed a series of inequities.”); see Alexa Ura & Juan Pablo Garnham, Already Hit Hard by the Pandemic, Black and Hispanic Communities Suffer the Blows of an Unforgiving Winter Storm, TEX. TRIB., Feb. 19, 2021, 5:00 a.m., https://www.texastribune. org/2021/02/19/Texas-winter-storm-sufferinginequities/; Sonia Torres Rodriguez et al., Winter Storm Uri’s Impact on Houston Neighborhoods Show Why It’s Urgent to Build Equity into Climate Resilience, URBAN WIRE: CLIMATE, DISASTERS, & ENV’T (Mar. 10, 2021), https://www.urban.org/urban-wire/ winter-storm-uris-impacts-houston-neighborhoodsshow-why-its-urgent-build-equity-climate-resilience. 6. Health Equity Considerations and Racial and Ethnic Minority Groups, CTRS. DISEASE CONTROL & PREVENTION (updated Feb. 12, 2021), https://www.cdc.gov/ coronavirus/2019-ncov/community/health-equity/ race-ethnicity.html. 7. Kathiann M. Kowalski, How Energy Issues and Civil Rights Intersect, ENERGY NEWS NETWORK (June 30, 2020), https://energynews.us/2020/06/30/howenergy-issues-and-civil-rights-issues-intersect/; ARIEL DREHOBL ET AL., AM. COUNCIL FOR AN ENERGY EFFICIENT ECON., HOW HIGH ARE HOUSEHOLD ENERGY BURDENS? AN ASSESSMENT OF NATIONAL AND METROPOLITAN ENERGY BURDEN ACROSS THE UNITED STATES (Sept. 2020).
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