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J. Brian Jackson

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On Feb. 15, 2023, the U.S. District Court for the Northern District of Texas held that the force majeure provision contained in the parties’ contract applied to excuse performance even if the event — Winter Storm Uri — did not render performance impossible.

In MIECO LLC v. Pioneer Natural Resources USA, Inc., 2023 WL 2064723, the parties had entered into an agreement in which MIECO (Buyer) would purchase 20,000 million British thermal units of natural gas from Pioneer (Seller) each day from Nov. 1, 2020, to March 31, 2021. But from Feb. 14, 2021, to Feb. 19, 2021, Pioneer failed to deliver the full amount of the contracted natural gas due to Winter Strom Uri. On Feb. 16, 2021, Pioneer sent MIECO a notice of force majeure.…

Continue Reading Winter Storm Uri Qualifies as Force Majeure, Even When Performance Was Not “Impossible”

On Nov. 30, 2022, the Transportation Security Administration (TSA) published an advance notice of proposed rulemaking (ANPRM) aimed at enhancing cyber risk management in the pipeline and rail sectors. Indeed, the ANPRM recognizes the critical role pipelines and railroads play in ensuring economic and national security. But the ongoing and growing risk of cyberattacks increases…

While utility companies and critical infrastructure companies have focused on digital sabotage and cybersecurity over the past few years, such companies must remain cognizant about continued risks of physical sabotage.…

Continue Reading Physical Sabotage Remains A Substantial Risk to Utility Companies and Other Companies Providing Critical Infrastructure

As of October 6, 2022, operators of gas and hazardous liquid pipelines must comply with the Pipeline and Hazardous Materials Safety Administration’s (“PHMSA”) Final Rule on “Valve Installation and Minimum Rupture Detection Standards.”[1]  The Rule codifies several related design and performance standards across 49 C.F.R. Parts 192 and 195.  Those standards largely apply to new or replacement onshore gas transmission pipelines.[2]  Now, however, the Rule impacts gas distribution pipeline operators in two significant ways.  First, the Rule requires operators to implement and maintain certain emergency notification requirements.[3]  Second, the Rule obligates operators to develop, implement, and incorporate “lessons learned” from a post-failure or incident review into their written procedures.[4]  Unfortunately for operators, the second requirement illustrates the growing challenge operators face in ensuring that internal investigations remain protected by the work-product privilege.…

Continue Reading New Federal Pipeline Safety Regulations Present Work-Product Concerns

On July 8, 2022, the Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a notice of regulatory enforcement discretion for particular gathering lines. Gathering lines are those pipelines that transport gas from a current production facility to a transmission line or main (see 49 C.F.R. § 192.3). The notice specifically applies to existing Type C gas gathering pipelines with an outer diameter greater than or equal to 8.625 inches, but less than or equal to 12.75 inches. It also applies only to violations of safety requirements identified in 49 C.F.R. § 192.9 until May 17, 2024.
Continue Reading PHMSA Issues Notice of Limited Enforcement Discretion for Some Gas Gathering Pipelines