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1Presented by Dana E. Dupre and Rick M. Shelby A Trending Risk and Liability on the OCS: What Happens When a Party Can No Longer Pay to Play?Presented by Dana E. Dupre andRick M. Shelby
2April 24 Houston SeminarTOPIC: Trending Risk on the Outer Continental Shelf (OCS)Business of Managing Risks – understanding offshore oil and gas activity and lessons learnedOverview of RisksOperational issues – cost of doing business (P&A – expensed to co-owners)Sunset Properties/Idle Iron – P&A cost outweighs value of reserves/environmental hazardsRegulatory Compliance – BOEM (financial obligations) and BSEE (‘fit for purpose’ requirements)Offshore decommissioning liabilities are expensive – in the range of $ million per leaseContractual disputes regarding decommissioning liabilitiesBankruptcy – culmination of all risksATP Oil & Gas Corporation – case study of E&P company failure and sophisticated approach to shedding residual liabilities
3A Trending Risk and Liability on the OCS OUTLINE 1. Decommissioning Liabilities 2. Decommissioning liabilities in bankruptcy 3. To be or not to be an overriding royalty interest – Comments on ATP case 4. OCSLA choice of law issues
5Regulatory decommissioning liabilities § Who must meet the decommissioning obligations in this subpart?(a) Lessees and owners of operating rights are jointly and severally responsible for meeting decommissioning obligations for facilities on leases, including the obligations related to lease-term pipelines, as the obligations accrue and until each obligation is met.(b) All holders of a right-of-way are jointly and severally liable for meeting decommissioning obligations for facilities on their right-of-way, including right-of-way pipelines, as the obligations accrue and until each obligation is met.(c) In this subpart, the terms “you” or “I” refer to lessees and owners of operating rights, as to facilities installed under the authority of a lease, and to right-of-way holders as to facilities installed under the authority of a right-of-way.§ When do I accrue decommissioning obligations?You accrue decommissioning obligations when you do any of the following:(a) Drill a well;(b) Install a platform, pipeline, or other facility;(c) Create an obstruction to other users of the OCS;(d) Are or become a lessee or the owner of operating rights of a lease on which there is a well that has not been permanently plugged according to this subpart, a platform, a lease term pipeline, or other facility, or an obstruction;(e) Are or become the holder of a pipeline right-of-way on which there is a pipeline, platform, or other facility, or an obstruction; or(f) Re-enter a well that was previously plugged according to this subpart.
6Residual liability post-transfer The BOEM must approve all assignments of record title (lessee’s interest) or operating rights (working interest) in an OCS lease§ (d) You, as assignor, are liable for all obligations that accrue under your lease before the date that the Regional Director approves your request for assignment of the record title in the lease. The Regional Director's approval of the assignment does not relieve you of accrued lease obligations that your assignee, or a subsequent assignee, fails to perform.(e) Your assignee and each subsequent assignee are liable for all obligations that accrue under the lease after the date that the Regional Director approves the governing assignment. They must:(2) Remedy all existing environmental problems on the tract, properly abandon all wells, and reclaim the lease site in accordance with 30 CFR part 250, subpart Q [decommissioning regs].(f) If your assignee, or a subsequent assignee, fails to perform any obligation under the lease or the regulations in this chapter, the Regional Director may require you to bring the lease into compliance to the extent that the obligation accrued before the Regional Director approved the assignment of your interest in the lease.
7Residual liability continued § 556.64: You do not gain a release from any accrued obligation under your lease or the regulations by assigning your record title interest or transferring your operating rights in the lease.You are jointly and severally liable for the performance of each nonmonetary obligation under the lease and under the with each prior lessee and with each operating rights owner holding an interest at the time the obligation accrued, unless this chapter provides otherwise.Sublessees and operating rights owners are jointly and severally liable for the performance of each nonmonetary obligation under the lease and under the regulations in this chapter to the extent that:The obligation relates to the area embraced by the sublease; andThose owners held their respective interest at the time the obligation accrued
8Recent Decisions Re: Decommissioning Noble Energy, Inc. v. Salazar, 671 F.3d 1241 (D.C. 2012) – decommissioning obligation discharged by DOI breach of lease?Cutting Underwater Technologies USA, Inc. v. ENI US Operating Co., 671 F.3d 512 (5th Cir. 2012) – defining decommissioning for OCS properties.Nippon Oil Exploration U.S.A. Limited v. Murphy Exploration & Prod. Co. – USA, 2011 WL (E.D. La. 3/25/2011); 2011 WL (E.D. La. 6/15/2011) – predecessor responsible for decommissioning costs accruing before effective date of assignment.Mariner Energy, Inc. v. Devon Energy Production Co., 690 F.Supp.2d 558 (S.D. Tex. 2010)- decommissioning costs measured at time Agreement executed.Apache Corp. v. W&T Offshore, Inc., 626 F.3d 789 (5th Cir. 2010) – no decommissioning owed under farmout agreement.Chieftain Int’l (U.S.), Inc. v. Southeast Offshore, Inc., 553 F.3d 817 (5th Cir. 2008) – assignee remains solidarily liable for decommissioning costs.
9Contracting around residual liability Today, residual liabilities are always considered in the PSA and other contracts, but less likely in older contractsUse of performance bonds or decommissioning escrow accounts to guarantee performance is sometime advisableBeware of how you define decommissioning obligations; courts will look to the regulations for guidance if ambiguousCareful of who may be the last owner in the chain of title
10Bankruptcy: A Culmination of Risks TOPICS:Property of the EstatePriority of ClaimsShedding LiabilitiesAbandonmentRejectionSafe HarborsEquitable TitleFarmoutsProduction Payments
11Property of the Estate11 U.S.C. § 541 – an estate is created by commencement of the bankruptcy caseAll legal or equitable interests of the debtor in property as of the commencement of the caseNOTE: Section 541 does not define the interests. The question of whether or not the debtor has an interest in property and the determination of the nature and extent of interest is resolved under nonbankruptcy law.
12Bankruptcy Principles to Shed Liabilities Abandonment of Burdensome Assets11 U.S.C. § 554Administrative burden – no value/no benefitMidlantic Nat’l Bank v. New Jersey Dept. of Environmental Protection, 474 U.S. 494 (1986) = a debtor cannot abandon property that would violate decommissioning regulations “reasonably designed to protect the public health or safety from identified hazards.”
13ATP Bankruptcy Case Background Case No (Isgur) – S.D. TexasATP sought Chapter 11 bankruptcy protection in August 2012, citing dramatically reduced cash flows from the deepwater drilling moratorium.ATP listed assets of $3.6 billion and liabilities of $3.5 billion in its Chapter 11 petition.Much of ATP’s development and production was funded by debt.ATP was exempt from supplemental bonding until July 31, 2012 when DOI revoked ATP’s exempt status.ATP filed for bankruptcy in August 2012, leaving its assessed decommissioning liabilities un-bonded
14ATP Sheds Residual Decommissioning Liabilities After filing for bankruptcy protection and a series of failed negotiations to continue operations, ATP shut-in certain OCS properties and moved to concurrently reject any unexpired leases related to the certain properties and abandon any property, right or interest in those properties.ATP, as operator, was responsible for decommissioning all of the wells and facilities located on the Gomez Properties.The Gomez Properties consisted of several OCS leases including the MC 711 Lease, a floating offshore platform along with a network of pipelines and wells.The cost to decommission was estimated to exceed $100 million.
15ATP Seeks to Shed Residual Decommissioning Liabilities - Continued The ATP court permitted abandonment in light of MidlanticIn re ATP Oil & Gas Corp., 2013 WL , (Bankr. S.D. Tex. June 19, 2013) = Midlantic did not hold that a debtor may abandon property where abandonment would be consistent with – and perhaps in furtherance of – an environmental regulatory scheme.
16Objections to ATP Abandonment The DOI and Anadarko objected to abandonmentDOI – ATP cannot abandon environmental liabilities under MidlanticAnadarko – same; as only P-I-T, Anadarko would be saddled with decommissioning liabilityDOI withdrew objection, preserving admin claimJudge Isgur permitted abandonment under MidlanticUnder the applicable decommissioning regulations, DOI could look to Anadarko to satisfy decommissioning obligations (at least for wells and facilities in place when Anadarko transferred its interest to ATP and for which ATP had no security posted).
17IN RE: ATP OIL & GAS CORPORATION, Debtor(s) IN RE: ATP OIL & GAS CORPORATION, Debtor(s). Motion to Abandon Gomez Properties The Court is not unsympathetic to Anadarko. It may be forced to bear a substantial cost as a result of ATP’s financial woes. Nevertheless, like many things in a bankruptcy case, the cost that Anadarko may bear is a reflection of the credit risk it took. Anadarko sold a portion of the Gomez Properties to ATP, and required ATP to bear the financial burden of plugging and abandonment in accordance with applicable federal law. This unfortunate position is no different from that of any other creditor that relies on the promise of performance from an eventually failed entity. In re ATP Oil & Gas Corp., 2013 WL , (Bankr. S.D. Tex. June 19, 2013)
18Anadarko’s Relief?After ruling, DOI ordered Anadarko to decommission propertiesDOI, ATP and Anadarko ultimately settled with Anadarko receiving proceeds of ATP’s $3 million area wide bond but responsible for decommissioning properties (at cost projected to exceed $115 million)The Anadarko decommissioning settlement agreement also preserved any administrative expense claim arising out of the maintenance and decommissioning of the platform and MC 711 Lease.Anadarko filed a proof of claim on 1/6/2014 for $115,217,808 of projected maintenance and decommissioning costs.Estimated $1.6 million available for to pay priority claims
19Priority of Claims – Administrative Priority Priorities are important in bankruptcy because some creditors’ claims are more important than others.Holders of administrative expenses are the highest priority next to secured claims.In Midlantic, the court ruled when a debtor cannot abandon the property, the resulting post-petition clean-up cost is an administrative expense.In re H.L.S. Energy Co., 151 F.3d 434 (5th Cir. 1998) = P&A is an “actual and necessary” cost of administering the estateIn re American Coastal Energy, Inc., 399 B.R. 805 (Bankr. S.D. Tex. 2009) = environmental claims arising from a pre-petition liability do not fit within the same framework as trade-creditor claims arising from pre-petition liabilities
20Priority of Claims Rejection Damage Claims 11 U.S.C. § 365(g) – “rejection of an executory contract or unexpired lease of the debtor constitutes a breach”Estate will be liable for damages caused by the breach, but such claim is treated as a prepetition unsecured claim. See 11 U.S.C. § 365(g)(1).The non-debtor party to the contract may file a proof of claim for the pre-petition rejection damages. See 11 U.S.C. § 502(g).The effect of rejection is significant because the rejection claim will rank below administrative claims, priority claims and secured claims.Contract Assumption – Cure Claims are administrative claimsSubrogation issues - In re Tri–Union Development Corp., 314 B.R. 611 (Bankr. S.D. Tex. 2004) = subrogated only to the claim and priority of BOEM (not police power)
21Are OCS leases and carved out interests property of the estate? Rejection of Executory Contracts“Bringing interests back into the estate”Remember the non-cost bearing interests that ATP createdWhat is the nature of the interest conveyed by these assignment?What is the nature of the debtor’s interest in the OCS lease and derivative interests?ATP put this creative approach into practice
23To Be or Not to Be an ORRI… Pre-bankruptcy = ATP assigns/conveys Term ORRI / NPI to raise capital (lenders, drilling contractors, charterers)Post-bankruptcy = ATP labels conveyances of non-cost bearing interests as financing transactions and not sales of a property interestWHY? Property of the Estate or not?
24To Be or Not to Be an ORRI… ISSUE: “disguised financing” or transfers of ownershipSummary Judgment Phase = court not deciding on nature of the interest; only legal issue of consistency/inconsistency with the interest conveyed and possibility of “Recharacterization”Consistent with Term ORRI?Subordinated Interest/Payment TermsReversionary/Retention of ControlInconsistent with a Debt Instrument?Lack of Foreclosure RemedyEconomic Substance
25Nature of Federal, Offshore Mineral Interest? Underlying legal issue in adversary proceedings was about the nature of an OCS lease and its “derivative interests” – i.e. the nature of an OCS estateThis issue begs fundamental questions re: whatlaw should apply to determine the nature ofan OCS lease/mineral interest – federal or statelaw?It’s well-established that non-bankruptcy law(generally, state law) creates and defines propertyinterests in bankruptcy proceedings. So for jurisdictions that characterize a private mineral lease as a fee simple determinable (Texas), the lease is not considered a true lease or executory contract under § 365. But jurisdictions that characterize a mineral lease as conveying only a true lease, then the mineral lease is an executory contract under § 365.Thus, the question what is an OCS interest and what law should define it.
26OCSLA CHOICE OF LAW PROVISION – 43 U.S.C. § 1333(a)(2)(A) Federal law under OCSLA applies on the OCS.However under the OCSLA choice of law provisions, state law serves as surrogate federal law, if there is a “gap” in applicable federal law.So, should we be asking: why doesn’t Louisiana law apply to determine the nature of an OCS lease in a bankruptcy proceeding?
27ATP and DOI Position on Applicable Law ATP argued that under the OCSLA, the title it acquired from the DOI in the OCS leases was that of a lessee, and did not constitute absolute title.Making the OCS leases executory contracts and/or unexpired leases.Accordingly, any ORRI or NPI conveyance that is derivative of ATP’s OCS leases, did not constitute real property interests.Therefore, the ORRIs are not property of the burden holder and may be rejected in bankruptcy.The DOI supports ATP’s position because it agrees that OCS leases are merely contractual leasehold rights.
28Interesting DOI arguments in ATP In recent ATP filings, the DOI has urged that OCS leases and interests carved out of OCS leases are limited contractual rights under applicable federal law:since OCS leases are governed by the OCSLA, federal law applies;because the OCSLA uses the word “lease” to characterize the property interest granted by the US, OCS leases are by their plain language, leases – viz., contractual rights between lessor and lessee;the OCSLA enabling statute grants lessees only the right to “explore, develop, and produce the oil and gas contained within the lease area,”;the OCSLA language comports with the Bankruptcy Code’s definition of a lease in § 365 as being “any rental agreement to use real property.”; andDOI supports its argument with jurisprudence holding that an OCS lease “does not convey title in the land, nor does it convey an unencumbered estate in oil and gas.” Boesche v. Udall
29State Law as Surrogate Federal Law As we all know, under Louisiana law, all mineral rights are real rights, incorporeal immovables and alienable.The DOI argues then that Louisiana law cannot apply as surrogate federal law under the OCSLA because Louisiana law is inconsistent with this federal law – that OCS leasehold interest and other mineral rights on the OCS are merely contractual/personal rights.But if applicable federal law exists, is there even a need for state law as gap filler?And is this what was intended? What property law should define OCS mineral interests? What was the OCSLA choice of law provision meant to do?
30Bonding Requirements BOEM/BSEE Regulations 30 CFR 256 – Bonding Required prior to issuance of lease, RUE, ROW or any proposed activity, or assignment of sameGeneral Operating Bond – area wideLevel of ActivityNone = $300,000Exploration Plan = $1,000,000Development Plan = $3,000,000Lease SpecificNone = $50,000Exploration Plan = $200,000Development Plan = $5,00,000
31Role of supplemental bonds When is a supp bond required?BOEM with BSEE technical assessment will determine decommissioning liabilityHow is decommissioning liability determined?Review of potential liabilities, financial strength and reliability – see NTL No N07Some companies are exempt from providing supp securityWhen is decommissioning liability adjusted?After partial abandonmentRevised activity planAny change in responsible partiesCompany requestBSEE/BOEM determination
32More bonding Issues BOEM/BSEE Bond Reassessment Study To apply to all shelf propertiesIncrease bonds for non-exempt and some cos. may lose exempt statusBonds for ROWs?Bonds for operating rights interest?Bonds needed where one record title holder exempt?