Roth: Sunny opportunity for Oklahoma schools?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on September 12, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Sunny opportunity for Oklahoma schools?

According to the Oklahoma Policy Institute and other reputable observers, “Oklahoma had the dubious honor of having made the deepest cuts to school funding in the nation since the start of the recession in 2008. Now an update from the Center on Budget and Policy Priorities shows that our lead has widened. Adjusted for inflation, Oklahoma’s per student school formula funding has dropped 23.6 percent over the past six years, significantly more than in any other state.”

And that observation was in late 2014. As of 2016, on average Oklahoma continues to spend at the rate that maintains our ranking as 48th among the 50 states and the District of Columbia.

And as we know today our state’s budget dilemmas have only worsened in 2015 and 2016, with historic funding cuts further affecting investments in our public schools, our teachers and ultimately our young citizen students.

But rather than focusing on the budget appropriation side of schools’ economics, I want to share an idea with our state leaders that might actually be a win-win for schools by creating real budget relief in the form of lowering their costs of operations and creating an income opportunity.

Here’s how: Oklahoma’s 1,784 public school buildings spend a great deal of money to provide electricity for heating and cooling throughout the school year, and this growing expense in each school’s annual budget is often regarded as a mandatory expense without options. But that’s not true; Oklahoma does have options.

Imagine the installation of solar panels on top of many of these more than 1,000 school buildings all across the state, generating more electricity than the school itself needs and exporting that excess power to the grid, every month of the year and actually creating more income back to the school than the solar systems cost. Yes, income. How’s that for running government like a business?

It’s happening all across America already, as solar energy is booming in America, with installations in 2016 expected to double the amount from record-breaking 2015 and a trend line toward 20 gigawatts annually by 2020. The cost to install solar has dropped by more than 70 percent over the last 10 years, leading the industry to expand into new markets and deploy thousands of systems nationwide, including with many business and schools.

According to a recent report by the Solar Foundation and the Solar Energy Industries Association, there are nearly 4,000 K-12 schools in the United States with active solar systems, meaning more than 2.7 million American students attend solar schools. The report also found that thousands of other schools could save money by going solar. The large, flat rooftops typically found on public and private K-12 school buildings throughout Oklahoma make these buildings ideal for rooftop solar photovoltaic or solar thermal systems.

Parking lots and solar canopies are another obvious opportunity for Oklahoma schools to generate power, even more than their own buildings require, and the beauty of solar power is that the systems are generating energy at the most expensive time of the day. If you want to teach students something smart and observable every day outside of a textbook or a web page, schools can instruct students by doing something so obvious and observable to them every day.

Oklahoma is home to only one current solar installation at a public school, in the Tulsa area, yet there is enormous potential for school districts of all sizes all across the state. Our Legislature and our governor will need to agree with this idea and make slight changes to Oklahoma law to unlock this opportunity for our many cash-strapped public schools.

The utilities may fight it, as they’ve shown an intention so far to work against citizens who want to install and afford solar, but the Oklahoma taxpayer will love it. And after all, public officials take an oath to serve the citizens and this sunny opportunity is a great way to bring funding relief to our schools.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah P.C. in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Happy birthday for all of us Americans

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on August 29, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Happy birthday for all of us Americans

If this heading makes you think you’ve picked up a copy of The Journal Record’s July 4th issue, I apologize for the confusion. We are always right to joyously celebrate our country’s Independence Day and the importance of the somewhat intangible principles of freedom and liberty that bind our amazing republic, but I am wishing you all a very happy birthday for something more tangible: the land, rivers, valleys and mountains that make up our National Park Service, which turned 100 on Aug. 26.

Happy birthday indeed. The first hundred years have not been easy, including the start in 1916 when Congress passed the National Park Service Organic Act, creating a new agency with the U.S. Department of the Interior. The NPS is charged with the roles of preserving the ecological and historical integrity of places while also making them available for public use and enjoyment.

According to their mission: “The National Park Service preserves unimpaired the natural and cultural resources and values of the National Park System for the enjoyment, education, and inspiration of this and future generations. The Park Service cooperates with partners to extend the benefits of natural and cultural resource conservation and outdoor recreation throughout this country and the world.”

With more than 275 million visitors a year, our national parks create unique opportunities for busy American families, who now more than ever dwell in urban settings, to connect with nature and to develop an appreciation for the boundless, living world around our beautiful America.

Even before the National Park Service was officially begun, patriotic tributes to our land existed in many forms, such as America the Beautiful, whose words were first written as a poem in 1895, then soon combined with a choirmaster’s music and published in their first form in 1910. The lyrics we know today are as important to honor our American experience as perhaps our national anthem:

O beautiful for spacious skies,

For amber waves of grain,

For purple mountain majesties

Above the fruited plain!

America! America!

God shed His grace on thee

And crown thy good with brotherhood

From sea to shining sea!

We should honor and defend these treasures in every way, as a unique enrichment to the American experience.

And just this past week, the designation of the 87,500-acre Katahdin Woods and Waters National Monument along the Maine Coast and the Penobscot River, creating the 413th national park site, home to lynx, bears, moose, brook trout and rare birds such as the American three-toed woodpecker, provides yet another chance for all Americans to visit the land from sea to shining sea.

When I was a teenager, my dad began offering me life and financial advice from his own observations. And although I wish I would have taken better to heart concepts like compounding interest, something that has always stayed with me was his admonition to: “invest in the land and earth around you, as it may be the only finite resource as an investment choice you can make.”

I am thankful that our forebearers believed the same about the amazing majesty of places like Rocky Mountain National Park, Yellowstone, the Great Smokey Mountains, the Grand Canyon, Yosemite and so many others. Cheers to the next 100 years.

So please, as you contemplate the ways you might celebrate your upcoming Labor Day holiday, please consider visiting one of your many national parks, monuments and sites and help celebrate those visionaries that made today’s inspiration still possible.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: The built environment and coming trends

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on August 22, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

The built environment and coming trends

I once read “A house is made of bricks and beams, a home is made of hopes and dreams,” which is a great way to describe the difference between a structure and a habitat.

And we in America, where home ownership has long been described as a main ingredient to the American dream, spend a great deal of thought and action focused on the habitat, but seemingly much less intention about the structure itself. And both matter.

Most of us live in homes or apartments built by other people or companies, however large or small the development. About 66.5 percent of our state’s citizens live in owner-occupied housing, with a median value of $115,000, monthly owner costs of around $1,150 including the mortgage and an average of 2.56 people per household, according to the U.S. Census. For those of us that rent, the median gross rent is $717.

But as we learn more about choices in our built environment, Americans are becoming more conscience of the brick and beams that might determine how comfortable and how affordable our habitat becomes. Old construction techniques with cheaper windows, little to no insulation, inefficient lighting and appliances and inefficient heat and air can actually cost a family more over time than a well-built home with a slightly higher mortgage or rent and lower utilities.

Americans today, before they remodel an existing home or build a new one, are considering energy-efficiency issues more than ever and many are undertaking what’s known as the whole-house systems approach for analysis. Some utilities sponsor energy assessments and retrofit programs and many modern builders are taking the lead to achieve higher Home Energy Scores in the national rating system developed by the U.S. Department of Energy.

Some trends in housing are moving the proverbial ball even further toward ultra-efficient homes, which combine state-of-the-art construction materials and techniques, lighting and commercially available renewable energy systems, such as geothermal and solar energy technologies sited with the home. Builders are also taking advantage of climate and topographic realities to position homes to block out excessive heat gain, but also maximize passive-solar gain at times like the winter months.

Here are a few of the additional, available trends to achieve your own ultra-efficient home or remodel project:

  • Energy-efficient appliances and home electronics.
  • Conservation principles for energy and materials.
  • Low-energy lighting and greater use of daylighting.
  • Advanced house framing, which reduces lumber use and waste.
  • Cool roofs, which use highly reflective materials to absorb less heat by reflecting more of the sunlight during hot weather.
  • Passive solar heat design, such as southern-facing windows that would allow the lower winter sun to help with heat gain, but perhaps with an awning or overhang that protects from the higher summer sun’s unforgiving heat.
  • Increased focus on a healthy home environment, such as increased air and water supply quality, and reducing or eliminating harmful materials or chemicals.

So whether you are a renter saving to buy a home, a homeowner ready to remodel your built environment or a person looking to design or build your own habitat, efficiency in many more forms than ever before will be found not only in the design of these structures, but also in most of the products that are used in the construction of them. Consumer awareness and demand are growing technological choices and the development of products for the most efficient built environment in American history, sans perhaps our forebearers who lived off the local land with a mutual respect for it and it for them.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Rhetoric and regulation

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on August 15, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Rhetoric and regulation

I’m about to share an opinion that seems highly unpopular today: I believe there is a role for government and responsible regulation to keep people safe.

Why is that so unpopular? Or even controversial to some? Perhaps it’s because I’m an Oklahoman who dares suggest that government has a role to play in our collective lives or perhaps it’s because I’m suggesting that people may need protection, in some form, from businesses that serve the public at large.

But if you are the parent of a 10-year-old boy who died at a Kansas City water park, or of any of the three young girls dumped out of a malfunctioning Ferris wheel in Tennessee, or of the boy who fell out of a wooden roller coaster in Pennsylvania, all in the past week, you may be wondering why tragedy befell your loved one and why more wasn’t done by the regulator to keep them safe.

Regulation, such as the role of regulators to inspect and approve the operation of amusement parks, equipment and rides, comes in many forms in American life, yet it seems to have become a bad word in political rhetoric in these modern times. And to be honest, I’m really at a loss as to why.

We’ve all heard the rhetoric: “too many regulations are killing jobs” or “we don’t need government regulation micro-managing our lives.” But which specific regulations are actually killing jobs by saving people’s lives? And if that’s the trade-off, doesn’t regulation win that swap each day and in every way?

I once had a close friend, a very smart business owner with hundreds of employees, tell me he was voting for George W. Bush so he would “rein in OSHA and needless safety regulations.” My friend left me perplexed as he seemingly framed it in an excessive cost-to-doing-business argument.

Yet, when I did some research for myself, I learned that the American Journal of Industrial Medicine actually concluded that the Occupational Safety and Health Administration does not kill jobs; rather, it prevents jobs from killing workers.

The much-maligned Environmental Protection Agency is responsible for implementing and enforcing America’s Clear Air Act, among many other environmental and public health law objectives. Chiefly the Clean Air Act, first passed in 1973, and amended in 1990, both by Republican presidents, is a comprehensive federal law that regulates air emissions and air quality by removing dangerous pollutants that “endanger public health and welfare.”

As of the 2011 prospective cost-benefit analysis, it has been determined that massive reductions in pollutants like sulfur dioxide, mercury and nitrous oxide have now helped avoid up to 230,000 premature deaths for Americans over the age of 30 each year, help avoid 280 infant deaths a year, have dramatically reduced bronchitis, asthma and other respiratory disease and in turn will help America save over $3.7 trillion in annual benefits by 2020.

And yet this campaign for president features a debate over reopening old coal mines for out-of-work coal miners, who while mining the greatest source of pollution when burned, suffer much risk to injury and health themselves. The better idea may be to retrain them for something that is better for themselves and all the rest of us.

So when you hear politicians talk in large generalized platitudes attacking big, bad ol’ “job-killing regulations,” please ask them:

Which regulation can you prove has cost how many jobs?

Or, which amusement park, factory or meat-processing plant should we not inspect?

Or, what harm, injury or death to your loved ones would you say is worth having for less regulation?

And please be specific.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Summer driving is not helping oil, gas

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on August 8, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Summer driving is not helping oil, gas

The American Automobile Association, better known as AAA, has a motto: “Always take the scenic route.”

And America surely affords many options for great scenery along its roadsides in all corners and across this great country. But the view and the reality of how we traverse these miles are changing in ways we’ve never seen before.

In the midst of the annual “summer driving season” the price of oil and gas has seen an unusual slump, now well off double digits from around Memorial Day.

The overproduction of refined petroleum in the form of gasoline has Americans enjoying much cheaper fuel than usual and even cheaper than expected for 2016. According to GasBuddy’s 2016 forecast (www.gasbuddy.com), June was forecast to average $2.48 a gallon, July $2.43 and August $2.46. So far the data that’s in shows us that June came in at a national average of $2.36 and July is expected to have averaged $2.24 for unleaded fuel. These amounts are 5 percent and 8 percent lower than forecast, respectively.

So while the good news for drivers is that roadside fuel options are cheaper than normal, the view for producers and production states like Oklahoma is that the typical increased demand of summer may not be playing out to help grow commodity values for oil and gas.

In fact, the market prices have slid significantly since the start of this summer, even dipping below $40 a barrel for the first time in nearly four months. Oil prices are now down more than 20 percent since hitting $51 a barrel just two months ago, making prices officially corrected in a “bear” market now.

And the horizon is drawing further concern that this oil glut will remain with gasoline inventories at record highs. Many market watchers are critical of America’s refineries for over-refining in the past few months, which may lead to further retraction in oil prices now as crude inventories and storage are further backed up with less demand coming from those very refineries soon. The typically historic expectations, like summer demand, seem to be absent in this new world for America’s oil and gas producers.

New impacts, such as Wall Street investors and large hedge funds, are seemingly playing an even more significant role than weather, driving demand and economic output, and all indications are that those bets may carry more sway than ever before.

In fact, according to Bloomberg’s analysis of the Commodities Futures Trading Commission statistics, money managers have raised their short positions this summer by the largest amount on record, going back to 2006. America’s hedge fund managers, emboldened by producers’ increased drilling activities – six weeks of increased nationwide rig counts – are largely betting against American oil.

So all of this is great news for American drivers, with national gasoline prices averaging $2.13 a gallon last week, compared with $2.66 at this point last year.

But to be honest, I would pay a bit more for my summer road trip if I thought it would put some Oklahomans back to work and send much needed school funding back into the classrooms. But if Wall Street behavior toward the Oil Patch is any indication of the months ahead, the famous line from Bette Davis in All About Eve feels more appropriate: “Fasten your seatbelts. It’s going to be a bumpy ride.”

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Hasenfratz: Commercial real estate development is a team effort

This column was originally published in The Journal Record on August 4, 2016.


Sally A. Hasenfratz is a Director and a member of the Firm’s Real Estate, Tax and Family Wealth and Business Succession Practice Groups.

By Phillips Murrah Director Sally A. Hasenfratz

Commercial real estate development is a complex undertaking and must be managed with precision.

Taking a project from land acquisition to a sale or lease requires time, money and expertise. To ensure the project runs smoothly, accurately and on deadline, a team must come together and function at a high level.

The purpose of this column is to identify key players and examine their responsibilities.

  • Developers. The developer is the team leader with an overarching visionary concept and the ability to control each stage of the project in order to move it to completion. Without developers, there are no projects.
  • Title agents and surveyors. Developers work with title agents to ensure the property is clear of unintended encumbrances and to identify easements and other documents that may be recorded against the property. Surveyors then survey the land and create a graphic representation that shows the location of the project, including the structure’s orientation, access ways, boundaries, easements and related matters.
  • Architects and engineers. Architects and engineers translate developers’ vision into detailed plans by which the project will be constructed. They create the instructions on how to accurately bring the project into physical existence.
  • Builders and contractors. Builders and contractors start the process of construction. Guided by plans created by the architects and engineers, and led by a general contractor who oversees the day-to-day construction site, these team members physically build the project.
  • Regulators. Though not necessarily part of the team, regulators are important components of a project. Select team members work with regulators to make sure the property is zoned for the intended use and all necessary approvals are obtained, including building permits and the like.
  • Lenders. Lenders play a vital role on the team by funding the project. To ensure funds are properly utilized, lenders have a certain degree of oversight in the construction process.
  • Users. Typically, commercial projects are developed for sale or lease to meet the specific needs of users and occupants of the project.
  • Coordinators. Many of the team’s activities overlap or occur in a sequential fashion. Attorneys work with developers to help coordinate the process and make sure that the necessary contracts are in place.

Roth: Do you know what the parties stand for?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on August 1, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Do you know what the parties stand for?

Summers in America are renowned for great movies and many entertainment choices.

This year, and every four years in America, we also had marathon political party conventions to help entertain us with showmanship and drama. Whether it’s the Ted Cruz and his “vote your conscience” non-endorsement or the Democratic National Committee emails showing favoritism against Bernie Sanders, much of the news around this political theater focused on what happened on the stage.

But what probably matters more to Americans, and what may forecast probable impacts to our lives, is what is really happening behind the curtain so-to-speak: the party platforms.

For us Oklahomans, where we know the land we belong to is grand, there ought to be a heightened awareness to the energy, environment and climate positions and objectives of political parties and presidential candidates. So in case you are curious, here is a sampling of those platform polices just approved by both parties the last two weeks.

Democratic Party platform

  • Energy and natural resource policy: Calls on the U.S. to generate half of its electricity from clean resources in the next decade and cleaner transportation fuels; requests tax code changes to create incentives for renewable energy.
  • Environmental policy: Calls for the end of the Halliburton loophole that stripped the Environmental Protection Agency of its ability to regulate hydraulic fracturing, ensuring tough safeguards are in place to protect local water supplies.
  • Climate change position and policy: Calls for setting a price on greenhouse gas emissions; calls on government officials at all levels to take any steps possible to reduce pollution rather than waiting for Congress to act.

Green Party platform

  • Energy and natural resource policy: Advocates a rapid reduction in energy consumption through energy efficiency and a decisive transition away from fossil and nuclear power toward cleaner, renewable, local energy sources; encourage conservation; move toward renewable sources; decentralize the grid; and re-localize the food system.
  • Environmental policy: Extensive platform positions focus on environmental justice and conclude that it is founded on two fundamental beliefs: that all people have the right to live, work, learn, and play in safe and healthful environments, and that people have the right to influence decisions that affect environmental quality in their communities.
  • Climate change position and policy: Want to stop runaway climate change, by reducing greenhouse gas emissions at least 40 percent by 2020 and 95 percent by 2050 from 1990 levels.

Libertarian Party platform

  • Energy and natural resource policy: While energy is needed to fuel a modern society, government should not be subsidizing any particular form of energy; oppose all government control of energy pricing, allocation, and production.
  • Environmental Policy: Competitive free markets and property rights stimulate the technological innovations and behavioral changes required to protect our environment and ecosystems.
  • Climate change position and policy: While there is no specific reference to climate change, some related positions include: Governments are unaccountable for damage done to our environment and have a terrible track record when it comes to environmental protection; protecting the environment requires a clear definition and enforcement of individual rights and responsibilities regarding resources like land, water, air, and wildlife.

Republican Party platform

  • Energy and natural resource policy: Calls for the approval and construction of the Keystone XL pipeline to carry Canadian and U.S. fossil fuel resources to further U.S. markets; coal is an abundant, clean, affordable, reliable domestic energy resource.
  • Environmental policy: Propose to shift responsibility for environmental regulation to the states, away from the EPA, and to transform the EPA into a bipartisan independent commission.
  • Climate change position and policy: Climate change is far from the nation’s most pressing national security issue and calls for the repeal of President Obama’s Clean Power Plan; opposed to international accords like the agreement crafted recently in Paris last year; forbid the EPA to regulate carbon dioxide.

Follow these links to see more: www.demconvention.com/platform; www.gp.org/platform;www.lp.org/platform; and www.gop.com/platform.

Happy reading and no matter what, please vote.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: PSO, AMI and ROI

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on July 25, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

PSO, AMI and ROI

Wow, it’s hot. And it looks like it’s gonna be hot for a while still, as is not a surprise to us Oklahomans.

And once you recall the incredibly warm winter we just had, one can only imagine what August may feel like here. And as we’ve been discussing the last few weeks, a high-temperature weather month can often be followed by a high-cost electric utility bill the next billing cycle.

And as we’ve learned, deployment of new technology is providing customers near real-time price information and abilities to monitor and manage monthly costs, while also providing utility providers with a new slew of information and efficiencies to improve service and lower costs. It’s proving to have a real return on investment for both sides of the meter, so-to-speak.

Case in point: AEP’s Public Service Company of Oklahoma and their advanced metering infrastructure, as of this month, is now fully deployed across PSO’s vast Oklahoma service territory with the installation of more than 560,000 new meters, including those first pilot program meters in the Owasso area beginning in 2010. And with a seemingly huge reception from all territory customers, with over 99.5 percent of customers participating in the AMI program.

PSO has rightly indicated that the AMI program will provide an array of benefits to customers.

And they are not alone as several Oklahoma electric utilities have been using this type of technology for many years and the penetration rate nationwide is nearly 50 percent. I’m glad to see our customers are faring better than the national average and I’m also glad to know that PSO meets the highest standards of cybersecurity with encrypted technology to safeguard customer information. In fact, the Oklahoma Electric Usage Data Protection Act prohibits all utilities from providing any customer information to outside third parties.

And now for the extraordinarily good news for PSO customers: With the full installation of this metering technology, PSO was greatly aided in responding to the devastating storms and outages earlier in July (with 109,000 customers out at one point it was the third-largest storm by customers affected in PSO’s history), the AMI made possible the restoration of service to nearly everyone within three days.

And for those regular storm-free days when Oklahoma’s heat bakes the state, AMI has helped PSO provide new programs for customers’ budget needs, such as PowerHours and PowerPay.

PowerHours, which is similar to OG&E’s SmartHours program, runs June through October and allows enrolled customers to choose from four programs to save money through managed use.

Information on the options is available at www.psopowerhours.com.

Likewise, PowerPay is a voluntary program where customers can prepay for their usage, giving them greater control over the frequency and timing of their payments. No more surprise utility bills the month after high prices. Instead the customer is engaged in energy consumptions, management and related savings in this pay-as-you-go approach. It’s not for everyone, but is a good option for many, so please check it out and see if it’s right for your budget and household.

The return on PSO’s AMI investments can be directly enjoyed by its customers who explore these options, enroll in those that make the most sense for them, and control their own destiny through price signals, energy shifts and energy savings. It’s an exciting time when the cost of next month’s utility bill is based upon what customers choose to do this month for themselves.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

NewsOK Q&A: Data on your personal phone may be available to your employer

From NewsOK / by Paula Burkes
Published: July 19, 2016
Click to see full story – Data on your personal phone may be available to your employer

Click to see Kathy Terry’s attorney profile

The emphasis of Kathryn D. Terry’s litigation practice is in the areas of insurance coverage, labor and employment law and civil rights defense.

Q: What are personal electronic devices and why do they matter?

A: The use of personal electronic devices (PEDs) in the workplace is commonplace, but it’s not without risk for both the employer and the employee. If not managed properly, employers risk the dissemination of their confidential information and employees, perhaps rightly, have privacy concerns.

Q: What can an employer do to protect its business information?

A: Employers need a written PED, or bring your own device policy, signed by employees. Your policy should address several matters: the employer’s information always belongs to the employer; upon termination, it must be deleted immediately in the presence of the employer’s representative; all communications that go through the employer’s server are fair game for the employer and the employee has no expectation of privacy in those communications; only approved websites can be accessed via the employer’s server and accessing an unapproved website may result in severing of the server access and/or deletion of data, even the employee’s personal data, from the phone electronically; and the company always should have access to/be informed of the employee’s password for connectivity between the company server and the PED.

Q: So personal data, including contact lists, phone numbers and pictures, can be deleted from the employee’s own phone? 

A: Yes, though this area is evolving almost daily nationwide. There are lots of different federal laws and statutes in every state, including common law, which could be implicated. Please consult an attorney before charging ahead. Large companies are moving toward policies that give advance notice to an employee that upon termination if he/she fails to cooperate in the deletion of company information, the company can and will wipe all data from the phone (or other PED) and return it to factory settings. Most of the recent case law out there comes down in favor of the employer and rejects claims by employees under various federal laws, like the Electronic Communications Privacy Act or the Computer Fraud and Abuse Act.

Q: Don’t employees have a right to privacy in their own communications, on their own phones?

A: So far, there’s no case out there that has found an employer can’t, under any circumstances, search a PED for data. Courts looking at whether a private employer has overstepped by searching PED communications do emphasize privacy concerns and they recognize each case is fact specific. But, typically, if that data is coming through a company server, the company can take a look. We recommend the employer narrow any such search to work related/topic specific communications.

Q: Are the rules the same for government employers?

A: Not really. Governments have to worry about the Fourth Amendment, unreasonable searches and seizures, and more often than private employers, union contracts. So far, most court and administrative rulings favor the government employer who searches a PED, but those cases get close factual scrutiny. Also, in the case of public employees (elected officials included), the Freedom of Information Act and, here in Oklahoma, the Open Records Act, are applicable. Work-related communications, even on a PED, are public records. If a government employer needs to search for and retrieve communications that are work related from a PED, that search is going to be permissible.

Q: What about quality of life and working after hours?

A: If your employees aren’t overtime exempt, after-hours texting and emailing should be included in the employees’ time records, and they should be paid for it, even if it results in overtime pay at a higher rate. Employers concerned about the increased wage expenditures should consider limiting PEDs use to only overtime-exempt employees. If this isn’t possible, a policy should be written and adhered to that results in very limited after-hours communications, and includes clear guidelines on how to account for the time and resulting compensation when those communications do occur.

Q: Do we have to reimburse employees if they use PEDs for work?

A: In some states, the answer is yes. Here in Oklahoma, we don’t have a bright line rule requiring reimbursement for an employee who uses a PED to conduct work-related tasks. However, many Oklahoma employers are moving toward reimbursement, or partial reimbursement at minimum.

Q: What about litigation holds on electronic data that may be discoverable?

A: If you’ve ever had to produce electronic data during the course of a lawsuit, you know that can be very burdensome. You also know that if you’re on notice of a potential claim against your company, you will need to be sure the company has policies and practices in place that work to preserve potentially discoverable documents, communications and data. Certainly, if your company’s employees are communicating and working on PEDs, there needs to be a process in place designed to reasonably capture and preserve that information, communication and data that may be stored or saved to PEDs, as opposed to a company network server.

Director quoted as source in article on Oklahoma Supreme Court case

Heather L. Hintz primarily represents banks, commercial entities and municipalities in litigation in state and federal courts with an emphasis on protecting hard-fought rulings throughout the appeals process.

Phillips Murrah Director Heather Hintz defended her stance on Oklahoma State Question 777 in an article published on NewsOK.com on Wednesday.

Read Hintz’s comments from the article below:

Attorneys for opponents of the ballot measure have filed an accelerated appeal in the case, in hopes the Oklahoma Supreme Court will take up the matter before a deadline in late August for the Oklahoma Election Board to print the November ballot, said Heather Hintz, an attorney for plaintiffs in the case.

“We are asking the Supreme Court to retain the appeal because it’s a matter of public importance that has widespread public impact,” Hintz said.

The plaintiffs have challenged the constitutionality of State Question 777 on several grounds, and argue that the measure is so blatantly unconstitutional that it would be a waste of state resources and misleading to voters, Hintz said.

“There is a strong Oklahoma policy that something that is facially unconstitutional should not go to the ballot because it’s a waste of resources and it misleads voters,” she said.

Read more at NewsOK.com.

Roth: It’s 4 p.m. Do you know where your thermostat is?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on July 11, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

It’s 4 p.m. Do you know where your thermostat is?

It used to be asked if people knew where their children were at 10 p.m. as a form of safety check and good parenting. And that edict proved a helpful reminder.

But now, other times of the day pose danger for your families and only until recently can we help avoid or lessen those dangers.

It’s the risk to your families’ budgets from extraordinarily high electricity prices that occur often in the summer afternoons. For many decades before now, Americans never knew what cost spikes existed, leading to unpredictable monthly electricity bills. But the times they are a-changin’.

This past week as I stood in line at the post office a few minutes before 4 p.m., I received a text message as a participant in OG&E’s Smart Hours Program alerting me to a “critical price event,” beginning at 4 p.m., where the price of electricity would escalate to 44 cents per kilowatt-hour, more than four times the usual average.

A gentleman in line behind me must have received the same text as he soon thereafter called home to ask his wife to “turn up the thermostat and turn off the unnecessary appliances for the next three hours.”

And this man was probably in his mid-80s and seemed delighted at the opportunity to react to a price signal and save his family money. Each day’s text message also forecasts the price of the next day’s prices between 2 and 7 p.m., usually at the “high rate of 18 cents per kWh.” This is revolutionary.

And we Americans have seen other, once-dominant, mostly utility-like monopolies move to finally provide price signals for the consumers. I am referring to telecommunications and the growth of price transparency and ultimately competition.

Once we Americans learned to not “call family and friends until after 7 p.m.” it revolutionized the cost of long-distance and base rates for phone service and led to consumer choice, innovation and competitiveness. It also led to the decline in landline phones and the emergence and now prolific existence of wireless devices.

Today, we are just 20 years after the federal deregulation of telecommunications under President Bill Clinton, when the Telecommunications Act of 1996 was the first significant change in 60 years, and included the first inclusion of the internet in these issues. And today, most Americans have more technology in the palm of their hands than ever before and consumer price signals and consumer choice have ushered in a whole new reality.

The same is on the verge of being true for your electric utility bill, although not required by federal enactment, but driven by new technologies, consumer education and electricity providers working to usher in a new generation of electric generation.

Next week I’ll highlight a few of the global trends and the local utility options available to us Oklahomans in this relatively new and exciting frontier.

In the meantime, if it’s between 4 and 7 p.m. today, you might consider adjusting your electricity usage and saving your family some of that hard-earned money.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

NewsOK Q&A: High court’s tie in assault affirms tribe’s self-determination right

From NewsOK / by Paula Burkes
Published: June 30, 2016
Click to see full story – High court’s tie in assault affirms tribe’s self-determination right

Click to see G. Calvin Sharpe’s attorney profile

G. Calvin Sharpe has 30 of years of experience in Oklahoma courtrooms, representing a diverse list of business clients in matters relating to medical malpractice, medical devices, products liability, insurance and commercial litigation.

Q: Generally speaking, what was the Dollar General case about, originally?

A: In the original case, there was a Dollar General store operating within the Reservation of the Mississippi Band of Choctaw Indians. A 13-year-old boy, a tribal member, was working at the store as a part of a youth opportunity program. In 2005, a suit was brought by the boy’s parents that alleged that the boy was sexually assaulted by the store’s nontribal manager in the summer of 2003. In the binding contract with the tribe to operate on tribal land, Dollar General agreed to tribal court civil jurisdiction, so the case went to a tribal court. The Choctaw courts denied a motion to dismiss the case due to lack of jurisdiction citing a 1981 Supreme Court Case, Montana v. United States, which held that a “tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members.” Dollar General subsequently sued in federal court to clarify the terminology, “other means.” (Dollar General Corp. v. Mississippi Band of Choctaw Indians)

Q: The Supreme Court decision was tied, 4-to-4, which means that the lower court decision of the U.S. Court of Appeals for the Fifth Circuit is upheld. What was that Fifth Circuit’s upheld decision?

A: At the heart of this decision is the question of whether tribal courts have the right to exercise civil authority over people who are operating within tribe’s jurisdiction, but who aren’t tribal members. In the federal case subsequent to the tribal rulings in Choctaw courts, Dollar General petitioned for certiorari, which means they asked a higher court to review the determination of a lower court. In the judgment of the U.S. Court of Appeals for the Fifth Circuit, Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members.

Q: How has this Supreme Court ruling, essentially allowing the lower court decision to stay, changed the nature of tribal jurisdictional authority?

A: In the decision of the appeal to the Supreme Court of the United States of America, the high court was deadlocked, which allows the decision of the U.S. Court of the Appeals for the Fifth Circuit to stand. The judgment is affirmed by an equally divided court, (which) allows the case to proceed to resolution in tribal court without further appeals regarding authority. However, there’s the likelihood that, in a similar case, the Supreme Court would grant another certiorari when the Senate confirms a replacement for Justice Scalia.

Q: Why is this viewed as a success for tribal sovereignty and tribal governmental authority?

A: Thursday’s Supreme Court ruling served as a significant win in the fight for native tribal court authority. The Supreme Court tie affirms native groups’ right to self-determination. This allows federally recognized tribes to continue developing their own governmental bodies.

 

Roth: It’s twilight in Great Britain and the sunset is near

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on June 27, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

It’s twilight in Great Britain and the sunset is near

“The empire on which the sun never sets” is a phrase used for centuries to describe certain global empires that were so large that at least one part of their claimed territory was always in daylight.

This phrase was originally used for the Spanish Empire, mainly in the 16th and 17th centuries, and its most notable use has been in reference to the British Empire, mainly in the 19th and 20th centuries, when the British Empire spanned a global territorial size larger than any other empire in history.

Famously, the independence of the 13 colonies and the founding of the United States caused Britain to lose some of its most important territory, but its dominance across the globe continued strong into the 19th century with the Industrial Revolution and the power of the imperial British navy.

But much has changed since those days and not just through the independence of former British sovereigns such as India, Zimbabwe (last colony in Africa), Belize (last colony in the Americas) and Hong Kong (last in Asia) in the late 20th century, but also economically as the world economy has blurred the lines of sovereign nations and made regional and global trade a universal currency.

Gone are the days when Great Britain could rely upon steady supply lines of raw materials from all corners of the globe to feed its booming industrial complex and grow its economy. For decades its waning global dominance has perhaps been shrouded by its involvement in the European Union, where 28 member states, accounting for just 7.3 percent of the world’s population, constitute 24 percent of the global gross domestic product in one single market across its members. This combined market advantage has made Europe an economic amalgamation that has proven much stronger together than separate economies that were ill-suited for events like the Great Recession and financial crisis of 2007-08.

Yet, this past week’s Brexit vote for Great Britain to leave the European Union has perhaps hastened the sun setting on this once great power, forever. Gone are the territories in every region of the world, together with a once-dominant naval presence to move goods across the globe. Gone too are the manufacturing sectors and industrial output that once could have allowed Great Britain to better stand alone and even build its own military if required to defend itself as it did in much of the first half of the 20th century in Europe. Today, 74 percent of Britain’s GDP is the service economy, including the financial services sector, but much of which is reliant upon relationships with foreign investment and investors in the EU and beyond. And now gone soon will be the regional economic, political and military advantages that come with the European Union and Great Britain will stand alone, from sunup to sun down with a shrinking role in the world.

And for what? Because many aging British retirees fear the current economy and impacts to their government pensions? Because many lesser-educated and rural citizens and those with blue-collar jobs are mad at the immigration influx creating a more competitive workforce? They want “Great Britain first.” Those demographic distinctions are what actual polling results have revealed from the Brexit vote.

So older, less-educated, mostly rural citizens wanted to “take their country back” and “make Great Britain Great Again” and they have pushed their once great, global empire faster and further into the twilight of their own setting sun.

Does that fear sound familiar?

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Director shares insights into Oklahoma’s clean energy future with Sierra Club

Jim Roth represents individuals and both publicly-owned and private companies in a range of business, energy and environmental issues, as well as a variety of public policy and regulatory matters.

Jim Roth represents individuals and both publicly-owned and private companies in a range of business, energy and environmental issues, as well as a variety of public policy and regulatory matters.

Phillips Murrah Director Jim Roth spoke to the Sierra Club on June 16 about issues regarding Oklahoma’s future in the clean energy arena.

“The Sierra Club has been a national leader in moving the American economy towards a low emission future,” he said. “Oklahoma is perfectly situated with low-emitting resources in abundance: clean burning natural gas; significant wind integrations and now tremendous solar potential.”

Jim is Chair of the Firm’s Clean Energy Practice Group. As a former Oklahoma Corporation Commissioner, Jim helps his energy clients navigate the regulatory environment encompassing new and existing energy technologies so they can accomplish their business and policy goals.

For years, the Oklahoma Chapter of the Sierra Club has successfully protected Oklahoma’s wildlife, preserved its natural resources, and educated the public on many issues at the local, state, and federal level.

Learn more about the Sierra Club’s Oklahoma Chapter here.

Judge orders plaintiff to produce Facebook file

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on June 23, 2016.


Cody J. Cooper is an attorney whose practice is concentrated in commercial litigation, product liability, and intellectual property.

By Phillips Murrah Attorney Cody J. Cooper

The prevalence of social media continues to change litigation practices. As the availability of data about individuals related to social media continues to increase, so do the requests by opposing parties for this information. This necessarily requires analysis by the courts.

In an April order, the U.S. District Court for the Eastern District of Missouri wrestled with this very issue when it ordered a plaintiff to provide the defendant with her “Download Your Info” report from Facebook. See Rhone v. Schneider Nat’l Carriers, Inc., et al., No. 15-cv-01096 (E.D. Mo. 2015).

That lawsuit arose from a car accident and the plaintiff claimed severe, permanent and progressive physical and mental injuries that affected her lifestyle and ability to work.

During discovery, the defendant requested all of the plaintiff’s social media posts made since the date of the accident. The plaintiff simply responded “none.” The defendant then conducted an independent investigation and discovered substantial activity on the plaintiff’s Facebook profile, including posts about dancing and socializing. The defendant contended this was directly relevant to the plaintiff’s injuries.

The parties failed to reach an agreement on production of the information, so the defendant filed a motion to compel plaintiff to produce her Facebook data file. The court found that the plaintiff had failed to comply with her discovery obligations and ordered the plaintiff to download and produce to the defendant the Facebook data file, which includes all active posts, photos, videos and check-ins. The defendant claimed information had already been deleted and requested sanctions against the plaintiff, but the court decided to wait to determine whether the data file would show the alleged deleted information.

The case is still active, and it demonstrates the continued developing trend on treatment of social media. Particularly in case of personal injuries, but even in purely business disputes, postings by either party can become relevant and will likely be subject to discovery; efforts to delete or hide this information will typically result in severe penalties.

If you want to download your Facebook data file, go to settings, then the general tab, and click the link on the bottom – “Download a copy of your Facebook data” – and follow the instructions.

Roth: Oklahomans deserve to hear the facts about wind energy

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on June 20, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Oklahomans deserve to hear facts about wind energy

It’s no surprise that a review of taxes and tax incentives has recently garnered significant attention from lawmakers, voters and the news media as legislators worked this session to combat a historic budget shortfall. One of the most scrutinized policies has been the zero-emissions tax credit, set to expire in 2020, which will be the wind energy industry’s only remaining tax credit as of the end of this year.

As an Oklahoman dedicated not just to forward-looking, clean energy solutions, but also as someone who champions a diverse energy economy in our state, I’ve been floored by the misinformation about wind energy espoused recently by some state officials, reporters and other influencers. It’s time to set the record straight.

Perhaps the most egregiously misrepresented topic is the value of the last remaining tax credit in comparison to the dollars wind energy brings to our state, both in terms of corporate, ad valorem and other tax contributions and in terms of investment, jobs and infrastructure.

Some outspoken opponents have nonsensically implied wind energy’s one incentive is to blame for everything from the budget deficit to ongoing declines in general revenue collections. However, they fail to produce numbers that support these claims and do not consider how incentives to other industries – some of which receive multiple incentives – affect the state’s coffers as well. This paints an inflammatory, misleading and inaccurate picture of the billions of dollars the wind energy industry has contributed and will continue to contribute to our tax base and to state and local economies.

For 2015, the wind energy industry will receive an estimated $46 million as a result of this tax credit, a helpful but relatively small incentive compared to other industries, when considering facts such as:

• The industry has invested nearly $10 billion in Oklahoma and plans to continue investing.

• Economists predict wind energy developers will contribute about $1.2 billion in ad valorem taxes alone through 2043, directly benefiting local schools and communities.

• More than 7,000 Oklahomans can attribute their jobs to wind energy.

• Oklahoma’s largest utilities (OG&E and PSO) have locked in over $2 billion in customer savings through their own wind contracts, according to their own statements.

The zero-emissions tax incentive was created with the goal of drawing renewable investment to Oklahoma during a time when we were missing out on these dollars due to more attractive financial circumstances in neighboring states. Because of our incentive, wind energy now produces almost one-fifth of the electricity powering our homes and businesses and provides the cheapest form of electricity to Oklahomans. The case for keeping wind in our diverse energy mix is a strong one. And it’s made even stronger by tough state budgets reeling from a downturn in the oil and gas industries.

I encourage our elected officials, news media and others to check the facts and make sure the full story on wind energy is being told. As November elections draw near and Oklahoma voters evaluate our state’s leadership, its only right they hear the unbiased truth about this major economic contributor for Oklahoma. The truth my friend, is blowing in the wind.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Pioneers take solar-powered airplane around the globe

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on June 6, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Pioneers take solar-powered airplane around the globe

The Solar Impulse project was co-founded by Bertrand Piccard and André Borschberg. These two pioneers are currently piloting the Solar Impulse 2, a solar-powered airplane, on a trip around the world.

The Si2’s trip around the world began in Abu Dhabi in 2015. There are 16 scheduled legs on its journey, and the team completed the 13th leg on Wednesday when it landed at Leigh Valley International Airport in Pennsylvania.

The Si2 is powered exclusively by the sun’s energy, which is converted by the aircraft’s 17,248 solar cells. These cells fuel the plane during the day. Excess energy that is not used to propel the aircraft is sent to the lithium polymer batteries that are housed with the four engines. The Si2 relies on energy stored in the batteries for power during low-light hours and overnight.

The Si2 is lightweight, has a lower power consumption, and has a wide wingspan. In fact, it weighs about as much as a family car, has the power of a small motorcycle, and has a wider wingspan than a Boeing 747. The lightweight design, coupled with the wingspan, allows the Si2 to travel long distances and consume minimal amounts of energy. One problem with the low weight is that the aircraft is vulnerable to turbulence. The Si2 was recently parked in Tulsa for a week while the team waited for a break from high wind speeds.

The Si2’s entire design and flight plan were built around energy efficiency. For example, one strategy to conserve energy is to ascend to 8,500 meters during the day and descend to 1,500 meters at night. A typical day of the Si2’s trip around the world begins with the plane taking off at sunrise. The four propellers run at full power using the sun’s energy, and the aircraft climbs to its maximum altitude. As the sun begins to set, the engines are throttled down and the aircraft descends to 1,500 meters over the course of several hours. At approximately 10 p.m., the engines are powered up again using the energy stored in the batteries. The Si2 will fly through the night on battery power. A new cycle begins at sunrise, when the solar cells resume fueling the aircraft and charging the batteries.

Piccard and Borschberg believe that renewable energy technologies and energy efficiency are the keys to reducing emissions and improving our quality of life. The Solar Impulse project aims to promote clean energy and its potential to fuel technological innovation. Many of the clean technologies developed for the Solar Impulse project have already been patented and are used in our everyday lives, including electric motors, batteries, and LED lighting. Piccard and Borschberg hope that their project will continue to encourage innovation and sustainable development, in the air and on the ground.

And that’s worth exploring, especially as we Americans stand in long lines through airport security screenings for endless hours this summer travel season.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Pollinators, the environment and the economy

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on May 23, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Pollinators, the environment and the economy

Bees are critical to our food supply and our economy. According to the president’s Pollinator Health Task Force, honeybee pollination alone adds $15 billion to the value of U.S. crops each year.

Bees pollinate a wide variety of crops, from corn to soybeans to apples to almonds. Bees and other pollinating insects travel from flower to flower, enticed by the plant’s sugary nectar. While the insect feeds, the plant covers it with pollen, which the insect then spreads to the next plant.

Pollinator populations are being threatened in several ways.

One problem that pollinating insects face is global climate change with rising temperatures. Scientists fear that climate change may be negatively affecting the plant-pollinator relationship. The problem is that many plants and pollinators respond to environmental cues, such as temperature and snow melt, in order to know when to flower and feed. If plants flower at different times or for shorter periods of time, this will negatively affect pollinating insects and their ability to spread pollen.

Another problem faced by pollinators is infectious disease. Diseases have traveled around the world with host populations due to the commercialization of honeybees and other pollinators. Hosts are naturally exposed to pathogens in a variety of ways, including flower sharing, social interactions, and predatory practices. Humans are also contributing to the spread of disease in both commercial and wild pollinator populations.

Honeybees have evolved and developed several ways of fighting disease on their own. One way is by naturally immunizing eggs as they develop in the queen bee. To do this, worker bees first collect bacteria from contaminated pollen and nectar in the environment. Then, the worker bees make royal jelly out of the bacteria-ridden pollen and nectar. The pathogens are passed to the queen when she feeds on the royal jelly. The pathogens spread to the eggs that are developing in the queen, which immunizes the unborn bees.

Honeybees also fight disease through nursing. Nursing bees will feed certain types of honey to infected brood to fight off different diseases. For example, linden honey is better at fighting off European foulbrood, while sunflower honey is better at fighting off American foulbrood. American foulbrood is a highly contagious bacterial disease. As the name suggests, it initially infects honeybee brood, and it eventually kills the entire colony.

Another threat to pollinators is the severe loss of their natural habitats. Agriculture, urban and suburban development, and resource development have all contributed to the destruction of natural habitats. Many pollinators have lost their winter habitats, as well as their feeding and breeding grounds. While some natural habitats have survived these human developments, many of the remaining habitats are fragmented. These small, isolated habitats may not serve all of the pollinators’ needs.

A final problem faced by pollinating insects is the use of pesticides. One particularly problematic pesticide is the neonicotinoid pesticide commonly referred to as neonics. These nicotine-based pesticides are used to coat the seeds of many crops, including corn and soybeans. Neonics are water-soluble, and the plants absorb the pesticide as they grow. The problem for pollinators is that trace amounts of the pesticide can be found in the flowers of the mature plants. The pesticide is picked up by the feeding pollinator. Eventually, the pesticide is carried back to the hive, where it can spread and kill the entire colony.

If you would like to help nurture and grow the pollinator community, please consider building a garden for bees, butterflies and other pollinators, as described here by the U.S. Fish and Wildlife Service: www.fws.gov/midwest/news/PollinatorGarden.html.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Corporate agribusiness and the right to harm

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on May 16, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Corporate agribusiness and the right to harm

State Question 777 is a proposed amendment to the Oklahoma Constitution, voted on by the Oklahoma State Legislature to appear on the general election ballot on Nov. 8. But this idea didn’t originate in Oklahoma; it’s part of a national push by corporate farming interests rolling across America. Which is ironic because most of Oklahoma’s largest corporate animal processors are Chinese, Japanese and Brazilian.

The Farm Bureau, a well-respected organization, is the face pushing for this measure, while the Oklahoma Municipal League, the Sierra Club and the Humane Society are some of those opposed.

The proposed amendment would add a new section to the Oklahoma Constitution that would provide, in part, that “the rights of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state.” This inspiring language has led proponents to refer to SQ 777 as the “right to farm.” However, the next sentence of the proposed amendment all but eliminates the Legislature’s ability to regulate farming in our state: “The Legislature shall pass no law which abridges the right of farmers and ranchers to employ agricultural technology and livestock production and ranching practices without a compelling state interest.” Opponents refer to this proposed amendment as the “right to harm.”

Missouri narrowly passed a constitutional amendment in 2014, also the product of corporate agribusiness pushing constitutional protections against local regulation. That amendment was also sponsored by the national Farm Bureau and the like. The vague and sweeping language of the Missouri amendment – which is almost identical to the proposed amendment in SQ 777 – has already sparked litigation and legal challenges.

Not only is the language of the proposed constitutional amendment ambiguous, it is also superfluous in many ways because Oklahoma already has a right-to-farm statute that protects farmers from nuisance liability. The last subpart of the statute also provides that farmers must abide by state and federal laws, including the Oklahoma Concentrated Animal Feeding Operations Act and the Oklahoma Registered Poultry Feeding Operations Act.  Legitimate farmers are well protected by existing Oklahoma law.

According to the U.S. Department of Commerce, agriculture, forestry, fishing, and hunting provided 1.1 percent of Oklahoma’s gross domestic product in 2014. Oklahoma has more than 80,000 farms, which includes approximately 73,000 family farms and 1,900 corporate farms. About 75 percent of the land in our state is agricultural land, and the average farm size is 430 acres. The agricultural industry employs more than 120,000 Oklahomans.

If SQ 777 is passed by voters in November, it would have far-reaching and detrimental effects on family farms in our state, to the advantage of larger corporate interests. It would tie the hands of the state Legislature and municipalities, making it almost impossible to implement reasonable and necessary regulations to protect land and water from corporate pollution. As stated in the proposed amendment, the state Legislature will not be able to pass statutes regulating farming activities unless the Legislature can show a compelling state interest. This is an extremely high burden, and most proposed legislation would not be able to satisfy this threshold. What about cock-fighting? Or puppy mills? Or over-flowing waste lagoons?

No other industry is afforded this type of constitutional protection. Forcing state legislators and local regulators to satisfy such a high constitutional burden in order to protect the interests of their constituents will allow major corporate agribusiness to operate with virtual impunity in Oklahoma.

SQ 777 states that it will not overturn any existing legislation that was passed before Dec. 31, 2014. Several laws passed in 2015 could be reversed by SQ 777, including statutes regulating puppy mills in large cities and protecting pollinating insects.

If SQ 777 were passed, it would only invite more federal government intervention from agencies like the Environmental Protection Agency and U.S. Department of Agriculture. If state regulators are rendered impotent by a state constitutional provision, federal regulators will be forced to step in to address environmental concerns, animal rights, water contamination and other harms.

Surely we Oklahomans can be trusted to respect legitimate farming interests and to respect the land that we belong to as grand without having to concrete corporate farm immunity into our vaulted Constitution. Right?

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

What are involuntary bankruptcies?

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on May 12, 2016.


Clayton D. Ketter is a Director and a litigator whose practice involves a wide range of business litigation in both federal and state court, including extensive experience in financial restructurings and bankruptcy matters.

By Phillips Murrah Director Clayton D. Ketter

Bankruptcies are on the rise. Expectations are that, unless oil and gas prices reverse course, related bankruptcy filings will continue.

The majority of these filings will be commenced by a debtor seeking shelter from creditors, known as voluntary filings. Used much less frequently are involuntary filings, where one or more creditors initiate a bankruptcy case without a debtor’s consent.

Two requirements must be met to force a debtor into an involuntary bankruptcy. One pertains to the number of creditors involved. Debtors with less than 12 creditors require only one creditor holding at least $15,325 in aggregate unsecured claims to file the petition to start an involuntary case. Debtors with 12 or more creditors require a petitioning group of three or more creditors holding the same amount. The second requirement is that the debtor is generally not paying its debts as they become due. When these requirements are met, an individual or business (farmers are the exception), can be compelled into bankruptcy.

Involuntary bankruptcies can be used strategically by creditors in certain situations. The most common is to initiate creditor protections afforded by the Bankruptcy Code, which apply equally whether a case is voluntary or involuntary. Creditor protections include stopping a debtor from paying select debts to the detriment of other creditors, and allowing preferential and fraudulent transfers, made pre-bankruptcy, to be reversed in certain situations. The ability to potentially remove incompetent or bad-acting management is another compelling creditor protection.

Another motive is control of venue. Bankruptcy law permits a proceeding to be commenced in various jurisdictions, including an entity’s state of formation. Thus, a corporation incorporated in Delaware may file bankruptcy there, even if its headquarters, operations and creditors are in Oklahoma. Such filings can increase costs for other interested parties located in Oklahoma. To prevent such a filing, a creditor may wish to commence an involuntary case in its preferred jurisdiction.

While involuntary bankruptcy can be an effective tool for a creditor, it is not without costs and risks. A debtor can challenge by arguing that the debts of the creditor are not valid or that the debtor has been paying on time. Resolution of these issues can require expensive litigation. These potential costs should be carefully considered when strategizing on whether an involuntary bankruptcy may be advisable.

Roth: The energy jobs debate

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on May 9, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

The energy jobs debate

This past week saw the release of the U.S. jobs report for April and its results of 160,000 new non-farm jobs, which was less than the expected 200,000. Worker pay did tick up 2.5 percent nationally, however, which may mean that employed Americans may have a bit more take-home pay to spend within the economy.

The U.S. unemployment rate remained at 5 percent (virtually half of what it was in May 2009), but if the labor market continues to soften, it’s now very likely that the Fed will not raise interest rates in June and perhaps only once in 2016 at the December meeting, after the presidential election.

Those of us who live in Oklahoma may be more acutely aware of the job market and the worry of a “soft” economy because as an energy state we’re seeing too many headlines lately about job layoffs. Yet, Oklahoma’s unemployment rate for March was slightly up to 4.4 percent, still below the national average, according to the Oklahoma Employment Security Commission.

But with many of our state’s economic eggs in the energy basket, worry is something we do, and we have learned from cycles now and in the past. The challenge remains to make sure our broader basket is growing and in more directions than one. And lucky for us, our Oklahoma energy mix is broader than most, with oil, gas, wind and solar options going forward for many decades to come.

A more difficult reality has hit other states like West Virginia and Kentucky, known for fewer energy options and mostly known for their Appalachia coal, which is experiencing historic declines due to its high sulfur content and environmental and health regulations.

The significance of that industry to those two states is why candidates for president are playing out the debate about energy jobs in the election foray. Recently candidate Hillary Clinton mentioned her commitment to developing a clean energy future and boasted about “putting a lot of coal miners out of work.” A tough comment for sure, especially for any of us empathetic to friends and colleagues out of work in today’s oil and gas patch. And so candidate Donald Trump pounced and at a large rally of 12,000 people in Charleston, West Virginia, a raucous crowd carrying large “Trump Digs Coal” signs cheered on the presumptive Republican nominee as he announced “We are going to get those mines open.”

But one must wonder how? And why? Does the candidate suggest reversing decades of Clean Air Act progress of removing toxic pollutants from the air so that coal has a growing market share again? He will need 60 senators to gut the law. And he might also need about 1,000 litigators (and 20 years) to defend the efforts from organizations like the American Lung Association, which has worked to reduce respiratory diseases by fighting for cleaner air, and the American Academy of Pediatrics, which has opposed coal plants’ mercury emissions because of the causal nexus with disease and health hazards for children.

But better health and environmental reasons aside, wouldn’t you think a candidate for president would be looking for ideas, policies and visions that moved the country forward, not back, and for which there may be wider public support of his or her energy positions?

For example, today there are more 150,000 American workers employed in the solar energy industry and growing. And the last time I looked, the sun shines over all 50 states.

In 2016, the American wind energy industry hit a new high, employing more than 88,000 American workers, and the DOE released a report recently suggesting the potential of 600,000 American jobs by 2050.

Now these numbers may seem large and they are certainly growing, but nothing compares to the 9.8 million jobs nationwide in the oil and gas industry, supporting about 8 percent of the entire gross domestic project. According to the American Petroleum Institute, 364,300 jobs in Oklahoma are supported by oil and gas, which may be good reason for the unease in our local economy today.

Whatever happens in our presidential politics this year, it’s my hope that America rallies to put the economy in drive, not reverse, and that our future energy development becomes the envy of the world. That’s what leadership can do. Please save the pandering for someone else.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: A two-day workweek?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on May 2, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

A two-day workweek?

History and science tell us that a year is based upon Earth’s one full revolution around the sun and that months on the calendar were designed to measure the time between full moons, yet the seven-day week seems to be something left over from Babylonians’ belief in seven planets in the solar system.

Well, we now know that belief, albeit 4,000 years old, is not accurate, since we have eight recognized planets (sorry Pluto), yet the seven-day week continues.

I have often wondered how America (and the world) ended up with an established five-day workweek and a two-day weekend. I mean after all, if the economy stabilized on this 5-and-2 split, wouldn’t it just the same stabilize over time if there was a two-day workweek and a five-day weekend?

It wasn’t until early in the 20th century in America, in 1908, when an American mill became the first factory to offer a two-day weekend to accommodate both Jewish and Christian workers, forcing other factories to soon follow and a century later here we are.

Over the years, observers, sociologists and economists have predicted that advancements in technology would lead to Americans working shorter hours, perhaps even less days, which would lead to increased productivity, better health, superior performance and greater job satisfaction. Even visionaries such as Google co-founder Larry Page have suggested shorter workweeks would likely increase productivity, yet they and all the rest of us seem to be working longer hours than ever, with no change in sight.

However, due to very unfortunate circumstances impacting Venezuela and its crumbling economy, the drought-stricken country has just announced a two-day workweek and a five-day weekend for its public sector employees, which are apparently a third of the country’s workforce.

Daily blackouts at the country’s largest hydroelectric plant have seriously interrupted their fragile economy and led to energy rationing. Without electricity, factories are idled, food is spoiling and schools remain closed without lights. And there does not appear to be any relief in sight soon.

As El Nino weather brings historic rains and flooding to parts of the Northern Hemisphere, it has led to crippling droughts in the south. Water levels are dangerously low at the Guri Reservoir, the 11th-largest man-made lake in the world, which feeds the country’s Guri Power Plant, with over 10,200 megawatts of capacity. It’s the fourth-largest power station in the world and provides about two-thirds of the country’s power. To give us some point of reference, in Oklahoma if you combined the state’s two largest public utilities (OG&E at approximately 6,000 MWs and PSO at approximately 4,500 MWs), this one power station is comparable to all of these utilities’ power plants, combined.

So while crisis has caused the implementation of scheduled rolling blackouts, four hours a day in much of the country, public sector employees will be experiencing five-day weekends until the energy and economic crises subsides. Whether that proves to increase productivity, as some economists suggested a century ago, is an open question.

For now, it’s a sad reality, made worse by government leaders who haven’t moved to diversify their energy economy, considering they have enormous potential for wind energy (estimated to exceed 10,000 MWs) and the country famously sits on the world’s largest proven oil reserves, totaling 297 billion barrels as of 2014.

Perhaps Oklahoma’s budget crisis pales in comparison to the conditions in Venezuela, but there is no time like the present to make sure our state’s economy makes the most to develop our wind and solar energy potentials, in addition to growing reliable demand for our native oil and natural gas.

But then again, I’ve always been curious about whether a five-day weekend could “work” in America.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Don’t Miss Out on the Gross Production Tax Rebate for Economically At-Risk Oil and Gas Wells

This article was published in OIPA Wellhead, a publication produced by Oklahoma Independent Petroleum Association and distributed to its membership.

By Elizabeth K. Brown

brown-elizabeth-portrait

Liz Brown is a director at Phillips Murrah, P.C., where she has practiced for most of her legal career. Liz is primarily a tax and transactional lawyer with a special emphasis in the energy industry.

A little used gross production tax rebate may now be available to help cushion the blow of low oil and natural gas prices.  This gross production tax rebate is available to owners of economically at-risk wells.  The rebate was designed to extend production from wells that otherwise would likely be shut in during difficult times in the oil and gas industry (such as these) and has been in the law since 2005.  With the steep drop in oil and natural gas prices in the last two years, many more oil and gas wells now qualify as economically at-risk than ever before.  In fact, the Oklahoma Tax Commission estimates that the claims for the economically at-risk rebate for the 2015 year will total $132.9 million compared to total rebates of just $11 million in 2013 when prices were much higher.

An “economically at-risk oil or gas lease” eligible for the rebate is any oil or gas lease operated at a net loss or at a net profit which is less than the total gross production tax remitted for the lease during the previous calendar year.   See 68 O.S. §1001.3 (a).   A “lease” for this purpose is defined as “a spaced unit, a separately metered formation within the spaced unit, or each tract within a Corporation Commission approved unitization, or a lease which, for tax reporting purposes, has been assigned a production unit number”.   See 68 O.S. §1001.2 (b).

To determine whether a lease is economically at-risk, an operator starts with the gross production from the lease and then subtracts severance taxes, royalty, operating expenses of the lease including workover and recompletion costs for the previous calendar year, and overhead costs up to the maximum overhead percentage allowed by the Council of Petroleum Accountants Societies (COPAS) guidelines.  No deduction is allowed for depreciation, depletion, or intangible drilling costs in determining whether the well is economically at-risk.

Using that methodology, if the lease is operating at a net loss, then it will be economically at-risk and eligible for the rebate.  The amount of the rebate for economically at-risk wells subject to the standard 7-percent rate is 6/7ths of oil and gas production taxes collected, while the amount of the rebate for wells subject to the 4-percent rate is 3/4ths of oil and gas production taxes collected. To simplify, the impact of the rebate reduces the effective gross production tax rate on qualified economically at-risk oil or gas wells to 1 percent.

The operator cannot claim the rebate until after July 1 of the year subsequent to the year of the production.  So, for example, the claim for rebate for 2015 production cannot be made until after July 1, 2016.  The rebate claim must be made within eighteen months after the date the refund is first available or the claim will be barred.  The rebate claim is to be made on Form 329 “Gross Production Application for Certification – Economically At-Risk Oil Lease”.

To complete the Form 329, the operator needs to provide the following:

  • Operator’s FEI/SSN number.
  • Operator’s OCC assigned company number.
  • Operator’s name and mailing address information.
  • Lease name as found on record at the Oklahoma Tax Commission.
  • Lease description.
  • Oklahoma Tax Commission assigned production unit number.
  • Calendar year for request.
  • Total gross revenue earned for the calendar year including both oil and gas production.
  • Lease royalty.
  • Operating expenses for the lease to include expendable workover and recompletion costs for the previous year.
  • Gross production tax deducted by the tax remitter, which shall not include petroleum excise tax or any fee collected for another agency.
  • Actual overhead cost, but do not exceed the maximum overhead percentage allowed by COPAS guidelines.

The Oklahoma Tax Commission has the authority to determine if an oil or gas lease qualifies for certification as an economically at-risk oil or gas lease.  Within sixty (60) days after an application is filed for economically at-risk oil or gas lease status, the Oklahoma Tax Commission shall make its determination and shall issue either an approval letter or a denial letter to the lease operator.  Upon certification by the Oklahoma Tax Commission, a refund of the gross production taxes paid in the previous calendar year for the lease shall be issued to the well operator or its designee after July 1 of the subsequent year.

Although Oklahoma oil and gas producers could use this tax incentive now more than ever, the economically at-risk lease rebate is itself at-risk as the Oklahoma Legislature explores options to reduce Oklahoma’s budget shortfall.  Earlier this year, a bill was introduced to suspend the rebate for economically at-risk wells.  While the bill did not advance, an amendment to the statute suspending, reducing or eliminating the rebate could be proposed at any time prior to the end of the legislative session.  Hopefully, this much needed rebate will be left alone to do what it was designed to do  –  enable producers to maintain production from their wells that are operating at a loss during this period of low prices.

Absent a statutory change this session to the gross production tax rebate for economically at risk leases, operators should be evaluating whether they may be eligible for the rebate and should be ready to submit claims attributable to 2015 production to the Oklahoma Tax Commission on or after July 1, 2016.   Don’t miss out!

Elizabeth K Brown is an attorney and Director of Phillips Murrah P.C, a member of the OIPA board of directors and CEO of The Gloria Corporation, an oil and natural gas exploration and production company.

NewsOK Q&A: Advance directives provide care guidance for end of life

From NewsOK / by Paula Burkes
Published: April 28, 2016
Click to see full story – Advance directives provide care guidance for end of life

Click to see Mary Holloway Richard’s attorney profile

Mary Richard is recognized as one of pioneers in health care law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families. She also has significant experience in representing providers in regulatory matters.

Mary Richard is recognized as one of pioneers in health care law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families. She also has significant experience in representing providers in regulatory matters.

Q: What should we know about decision-making in the future to care for ourselves?

A: The mechanism for providing guidance to your health care professionals and to your family at the end of your life is a legal document known as an “advance directive.” The process of completing your advance directive is an important one because it makes you think about yourself in various end-of-life situations. You are telling your providers, in advance, what you will allow them to do, to the extent possible.

Q: Is there a specific form for an advance directive in Oklahoma?

A: Advance Directive forms are available at the Oklahoma Bar Association at www.okbar.org/Portals/14/PDF/Brochures/advance-directive-form.pdf. The advance directive statute requires that you must be 18 or older, of sound mind, and have two witnesses 18 or older and who aren’t beneficiaries of your will. The advance directive needn’t be notarized. It’s effective when your health state is such that your physician and another physician conclude that you no longer are able to make your own health care decisions.

Q: What kinds of provisions can I make for myself with an advance directive?

A: Advance directives provide treatment and care directions for three different conditions. You can provide directions to your providers when your condition is determined to be terminal. A terminal condition is one which, in your physician’s opinion, will result in your death within six months. You also can provide directions about your care when you’re persistently unconscious, which means that your condition is irreversible and you aren’t aware of your environment or of yourself. You also can provide your wishes for your care when you’re in an end-stage condition or an irreversible condition, and medical care would be ineffective. An advance directive also gives you the option of directing future artificially-administered food and water if you’re unable to take those by mouth in the three conditions described. You also can provide for organ donation in the advance directive.

Q: What else should I know about advance directives?

A: These decisions aren’t easy and it’s helpful if you involve your family in your decision-making so that they understand your wishes. Second, keep copies of your advance directives in a number of places and let your family members and loved ones know where they are so that guidance will be readily accessible when needed. Finally, under Oklahoma law, an advance directive for mental health also is available.

Q: Is there a specific form for the advance directive for mental health?

A: The Oklahoma Advance Directive for Mental Health form is found in our Oklahoma statutes, Title 43A Section 11-106. This advance directive allows you to provide for an alternate decision-maker for your mental health treatment. For the seriously mentally ill, this is important in terms of facilitating care when needed, at moments of crises. The advance directive on mental health becomes effective if the attending physician or psychologist determines that the ability to receive and evaluate information and to communicate decisions is impaired so that one lacks the capacity to refuse or consent to mental health treatment. “Capacity” is a determination made by the health care provider.

Roth: Can you feel the heat?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on April 25, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Can you feel the heat?

Although the spring season officially began one month ago, the temperature of spring was far ahead of the calendar this year. Did you feel the heat of 70-degree days in January and the warmest March in recorded history?

The combined average temperature over global land and ocean surfaces for March 2016 was the highest in the 1880–2016 record, at 1.22 degrees Celsius (2.20 degrees Fahrenheit) above the 20th-century average of 12.7 degrees Celsius (54.9 degrees Fahrenheit). In fact, March was the 11th consecutive month of historically warm records for the entire globe.

Average global temperatures have been rising for many years, and scientists have been watching closely to observe the effects of the warming climate. Temperatures began to rise during the industrial revolution in the early 20th century.

Scientists credit the burning of fossil fuels, as well as the cutting down and burning of forests, for causing this warming trend. The average global temperature has already risen 1 degree Celsius since 1900, and experts fear that if the average temperature rises an additional 1 degree there will be catastrophic effects.

The rising temperatures have caused natural disasters, including flooding, drought and wildfires. Over the past few days, an estimated 240 billion gallons of rainwater has fallen in and around Houston. Flooding there has claimed at least seven lives and caused at least $5 billion in property damage.

While south Texas has been bombarded with rain, other parts of the country are in desperate need of moisture. A wildfire that started in Oklahoma last month burned more than 400,000 acres of land in Oklahoma and Kansas. This was the largest wildfire the state of Kansas has ever experienced. On the other side of the globe, Ethiopia is experiencing its worst drought in over 30 years. The United States sent disaster relief teams to Ethiopia last month to help them deal with the lack of food and fresh water.

Fresh drinking water is also at risk in Peru. There, glaciers have melted and reduced in surface area by 40 percent over the past 40 years. The runoff from all of this melting has carried acidic metals downstream and contaminated water sources.

Global warming has caused sea levels to rise an average of 7 inches over the past century, due to both glacial melting and the expansion of water as its temperature has increased. Elevated sea levels have caused coastal erosion, flooding, and aquifer contamination. In 2014, the Research Service in Wales estimated that 23 percent of its coastline experienced erosion, costing the country more than 287 million U.S. dollars.

Climate change has not only affected humans, it has also had detrimental effects on other ecosystems and habitats. Penguin populations in Antarctica have plummeted due to rising temperatures. Warmer, longer summers have caused beetle populations in Alaska to skyrocket, and they have chewed through millions of acres of spruce trees. The severe reduction of sea ice platforms has caused polar bear size and population to decrease dramatically.

In the Hudson Bay area, the ice-free summers have grown longer, shortening the polar bears’ hunting season. As a result, polar bear weight has dropped approximately 15 percent, and the population has declined by more than 20 percent.

While some may say we shouldn’t be alarmed by the loss or decline of these many species, I submit to you that the erratic nature of climate change is cause for concern for all species along the food chain, including humans at the top. A world out of balance, with crop failures, famine and massive human migration will cost the Earth inhabitants more in many ways not even fathomable today. While I am a curious person by nature, this risky future is something I would rather not learn firsthand.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

‘Prequalifying’ Primes Pays Off for Subcontractors

By David A. Walls & A. Michelle Campney.

From The Contractor’s Compass, an educational journal of the Foundation of the American Subcontractors Association.

Published Q2 2012 – originally posted Jun 18, 2012

IN THIS ARTICLE . . .

  • Research primes’ reputations.
  • Research project liens and litigation records.
  • Investigate financial strength of prime and project financing.

Imagine that you need to fill a high-level position in your business. This position is one that will have a visible and immediate effect on your bottom line. Perhaps it is your chief estimator, COO or head of sales. Because you need this person right away, you decide not to ask any applicants for a resume or do any kind of background check. You are going to hire solely on the basis of the fact that you really need to fill the position. Sound crazy?

It is. Yet, many businesses follow this same plan when submitting bids or soliciting work from owners, developers and prime contractors — all of whom will affect their business to at least the same extent as the aforementioned employees. This is likely traceable to the difficult economic environment for the construction industry. When work is scarce, it is hard to be too picky about work. Regardless, there are some basic steps any subcontractor can and should take to assess, or “prequalify,” a prime contractor before taking on any new project.

Reputation

A great deal of information can and should be learned about a prime contractor’s business reputation before bidding a new project. This is especially true if the subcontractor has not worked for the prime contractor previously, or the project is in a state where the subcontractor has not previously worked. The Internet, and particularly social networking sites, can be a wealth of information about a prime contractor. Many businesses will list their projects and customers on their Web sites, and a few quick phone calls can provide valuable information regarding how those projects turned out. Many Web sites will also list the trade groups that a prime contractor belongs to, and these can be verified and investigated. This same type of reputation investigation should be done for the project owner and the project architect. Remember that much information can be discovered simply be speaking to other subcontractors. Questions that should be asked include:

  • What type of work is the prime contractor known for in the industry?
  • What current or recently completed projects has the prime contractor done?
  • What subcontract agreement does the prime contractor use, and can it be negotiated?
  • Can a copy of the subcontract be obtained in advance of bidding?
  • Will the prime contractor work with the subcontractors when the inevitable project challenges arise?

[Editor’s note: ASA-chapter Business Practice Interchanges are a great forum for getting objective information about prospective customers.]

Project Liens and Legal Filings

Subcontractors also should do a thorough background check on the public legal records pertaining to a prospective prime contractor partner. Many states and counties make these records available on the Internet, but at a minimum they can be checked via a quick trip to the office of the records clerk.

Typically, county records can be checked to determine if subcontractors and suppliers have filed liens on projects involving the prospective prime contractor. If a foreclosure action has resulted from the lien, it may mean that, for some reason, payment issues were serious and difficult to resolve. It is important to keep in mind that liens can be filed even when a project is going smoothly, but their existence likely warrants further inquiry.

Subcontractors can check court filings to see if the prime contractor has been involved in litigation, and if so, the nature of the lawsuits that have been filed. Unfortunately, today’s society is litigious, so the mere existence of litigation does not, in and of itself, reveal much about any business. But a large volume of litigation, or a large volume relative to the number of projects undertaken, may warrant further investigation. Moreover, lawsuit records will show the names of other businesses that can be contacted to obtain additional information.

Financial Status

A subcontractor should attempt to determine the financial liquidity of the prime contractor. Examining Uniform Commercial Code filings against the prime contractor in the county clerk’s office may provide some information in this regard. If there are many filings, most of the prime contractor’s assets may be encumbered for financing. It is even more important to investigate the financial status of the owner and the project. If the project is not fully funded, there is a real possibility the project will terminate and payment in full on the subcontract will not be made. Is the project financed with public, private or a combination of public and private funding? Publicly financed projects need scrutiny, as government agencies struggle with tight or reduced, and sometimes forecasted, funding. For example, some public projects may be funded in phases and have only partial appropriations before work commences. If the project is privately financed, the project likely has to meet requirements of the financial institution. A project financed by a public-private partnership may have project financing in place, but could lack payment assurances for subcontractors, as liens cannot be filed on public property and a payment bond may not be required. The subcontractor also should scrutinize the financial health of the industry of which the owner/ developer is a part, such as oil and gas, technology, or health care.

10 Commandments of Getting Paid

“Prequalifying” the prime contractor will help ensure that the project goes smoothly and that the subcontractor will receive full payment in a timely fashion. Follow these 10 commandments of getting paid:

 

  1. Know your customer.
  2. Know your lien rights.
  3. Know your bond rights.
  4. Calendar all deadlines to file claims.
  5. Deal with payment issues immediately.
  6. Get change orders and extra work in writing.
  7. Obtain the legal description for the property or project.
  8. Understand your backcharge rights.
  9. Know what happens if you don’t get paid.
  10. Know whether the contract has an arbitration clause or venue provision.

Taking the time up-front to protect your company will save you time and money in the end.

David A. Walls and Michelle Campney are attorneys with Phillips Murrah P.C., Oklahoma City, Okla. Walls can be reached at (405) 235-4100 or dawalls@phillipsmurrah .com. Campney can be reached at (405) 235- 4100 or amcampney@phillipsmurrah.com.


Read original article HERE.

Related Link: The Foundation of the American Subcontractors Association (FASA)

Roth: Safe digging month and the web beneath us

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on April 18, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Safe digging month and the web beneath us

This time of year many Americans are coming out of their homes and their winter hibernations and beginning to tackle outdoor activities like gardening and projects around the home. But before you dig into spring projects, make sure you practice safe digging.

The Common Ground Alliance, a national organization dedicated to underground damage prevention, has proclaimed April as Safe Digging Month. Excavation damage is one of the leading causes of pipeline accidents and the unfortunate injuries that occur.

It is recommended that we Call 811 at least a few days before starting any digging project. Whether you are planning to do it yourself or hire a professional, smart digging means calling 811 before each job. Data shows that when one calls 811 the appropriate amount of time before digging, there is less than a 1-percent chance of striking a buried utility line.

Here are a few things to know about the massive web of lines, pipes, wires and utilities underground here in Oklahoma and across America. An underground utility line is damaged once every six minutes nationwide because someone decided to dig without first learning what improvements exist below the surface of the earth. Digging without knowing the approximate location of underground utilities can result in damage to gas, electric, communications, water and sewer lines, which can lead to service disruptions, costly repairs, serious injuries and even death.

For decades, and in some places for centuries, common utilities, lines and infrastructure have been placed just below the surface to carry many life necessities from point A to B. According to the Common Ground Alliance, there are more than 20 million miles of underground utilities in the United States, according to data compiled from various industry groups. That figure equates to more than one football field’s length (105 yards) of buried utilities for every man, woman and child in the U.S. And in an energy-producing state like ours, the intricate web is vast, including natural gas gathering systems, high-pressure transmitting pipelines and many other aspects of energy production and market distribution.

In Oklahoma, please call Oklahoma One-Call System Inc. at 811 or 1-800-522-6543. And if you will call no sooner than 48 hours they will be able to mark the areas on inquiry, and those markings, paint or flags should be safely valid for 10 days for you to dig.

The Oklahoma One-Call System Inc. (OKIE811) is a nonprofit 501(c)6 corporation, incorporated in the state of Oklahoma in 1979. It was formed for the purpose of preventing damage to underground facilities. Thirty-seven companies originally joined to fund a statewide one-call notification center. On April 22, 1981, Gov. Henry Bellmon signed into law an act known as the Oklahoma Underground Facilities Damage Prevention Act. The legislation, sponsored by Rep. Cal Hobson of Lexington and Rep. John Monks of Muskogee, became effective Jan. 1, 1982. The act provided that owners and operators of underground facilities must register through a notification system and all excavators must give notice to such underground operators at the notification system prior to excavation. Many lives have been saved because this system exists.

So please enjoy this wonderful spring weather and feel confident to tackle your excavation projects, but please first protect your life and your property by contacting 811 and learning what all exists below the surface of the land where you live, walk, work, drive, dig and garden.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

Roth: Deaths in the oil patch from exposure to fumes

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on April 11, 2016.


Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Deaths in the oil patch from exposure to fumes

When I first joined the Oklahoma Corporation Commission years ago, the agency’s many talented Oil and Gas Division employees and inspectors taught me a lot about the issues in the field.

One new lesson that was a shock to learn was about the enormous dangers of deadly hydrogen sulfide in and around tank batteries, where oil and gas is collected from nearby wells. This killer gas is deadly in small amounts and it can stop a person’s breathing in seconds, rendering them unconscious or dead without much warning. In fact, as the concentration increases it apparently deadens a person’s sense of smell, rendering them unable to even detect the danger.

Since 2010, at least nine workers have died from exposure to hazardous gas vapors on oil production and storage tanks. These workers were alone, usually in the middle of the night, and were later found dead near an opening on top of the tanks. There seemed to be a pattern going unnoticed, and Mike Soraghan, a reporter for Energy Wire, sought to reveal it.

Five of the deceased workers were collecting fluid samples, and the remaining four were manually measuring production levels. To perform both of these tasks, workers had to climb ladders to access so-called “thief hatches” on top of the tanks. Once the hatch is opened, gas vapors that have built up in the tank rush out of the hatch. These vapors greatly displace oxygen in the air surrounding the hatch that can asphyxiate a person in a matter of seconds.

What makes these deaths even more tragic is that they were completely avoidable. There are ways to perform these tasks automatically without exposing workers to these toxic vapors. Unfortunately, the cost of installing the necessary equipment has caused many operators to continue using these dangerous methods.

Another problem is that safer practices cannot be employed on federally owned land due to outdated government agency rules. On federal and tribal leases, strict federal regulations allow only two methods of measurement: Lease Automatic Custody Transfer or manual measurement. LACT is the only automated method of measurement currently allowed on federal land. Because this system is so expensive, the vast majority of storage tanks on federal land are still checked manually.

The Bureau of Land Management is finally revising its rule regarding storage tank measurement, which has not been updated since 1989. However, the proposed new rule adds only one additional automatic measuring method. This additional method is also expensive, which will still prevent smaller operators who cannot afford the necessary equipment from upgrading their storage tanks.

Many of the incidents were reported as deaths from natural causes, such as cardiac arrest. Some were even attributed to the workers attempting to get high off of the fumes. Initially, the Occupational Safety and Health Administration did not find any safety violations where these nine workers died. But OSHA has now recognized the risks involved in manually measuring and sampling fluids in storage tanks. In February, it issued an alert warning operators and workers of these risks. Let’s pray these warnings help save lives.

If interested, you can also find out more on National Public Radio’s website at www.npr.org/sections/health-shots/2016/03/30/472341181/mysterious-death-uncovers-risk-in-federal-oil-field-rules and to learn ideas for avoiding the exposure risks, please check out Inside Energy at insideenergy.org/2016/03/03/what-workers-need-to-know-about-oilfield-gas-exposure.

Jim Roth, a former Oklahoma corporation commissioner, is an attorney with Phillips Murrah PC in Oklahoma City, where his practice focuses on clean, green energy for Oklahoma.

What effect does bankruptcy have on oil and gas leases?

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Mar. 31, 2016.


Melissa R. Gardner is a Director who represents both privately-owned and public companies in a wide variety of oil and gas matters, with a strong emphasis on oil and gas title examination.

By Phillips Murrah Director Melissa R. Gardner

It is an understatement to say these are trying times in the oil and gas industry.

There are multiple reports in the news that predict we have not hit bottom and that our state will be uniquely affected. While oil and gas companies, contractors and service companies have industry insiders to rely on, many individual mineral owners might find themselves without resources or direction, wondering what effect these proceedings will have on the benefits they’ve come to expect under oil and gas leases.

Here’s some helpful information for those who have executed these leases, who are faced with persistent negative news about the companies holding the leases.

It is important to note that, if a company is considering bankruptcy, it could take various forms. Chapter 7 and Chapter 11 are the two most common types of business bankruptcy.

In the first, business typically ceases and a trustee takes control of all assets, including the business’s oil and gas leases, with any eye toward liquidation. However, in Chapter 11 bankruptcy proceedings, the company generally remains in control of its assets and develops a plan of reorganization, often with the goal of remaining in business after its debts are restructured. While Chapter 11 may be ultimately more favorable to the mineral owners, one can take comfort that current payments and leases are not necessarily in jeopardy in either case.

In a bankruptcy proceeding, the bankruptcy trustee or Chapter 11 debtor in possession is only ultimately entitled to property of the bankruptcy debtor, which generally would not include royalties payable to mineral owners. Likewise, in Oklahoma, oil and gas leases typically survive the bankruptcy. This means royalty payments frequently continue, virtually uninterrupted, after a bankruptcy case has been filed and the leases may continue to be developed for the benefit of all notwithstanding the bankruptcy.

Obviously, this downturn has been difficult for many in our state. Hopefully, these facts will provide a mineral owner with some comfort that, even in these times, the payments they have come to rely on under existing oil and gas leases will not automatically be affected adversely by a leaseholder’s bankruptcy. It’s certainly worth investigating more before you assume these benefits will disappear.

Low oil and gas prices create opportunity for estate tax planning

This article was published in OIPA Wellhead, a publication produced by Oklahoma Independent Petroleum Association and distributed to its membership.

By Elizabeth K. Brown and Mike McDonald

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Liz Brown is a director at Phillips Murrah, P.C., where she has practiced for most of her legal career. Liz is primarily a tax and transactional lawyer with a special emphasis in the energy industry.

Act now to preserve your estate. Low oil and gas prices create opportunity for estate tax planning.

The current economic downturn in the oil and gas industry combined with the low interest rate environment and the availability of valuation discounting techniques creates a number of unique opportunities for tax planning.

Two planning concepts used to save estate taxes that work especially well while oil and gas prices are low are the gifting or sale of equity interests in a family business to children or trusts created for their benefit. The following is a typical structure of this planning concept.

The depressed value of oil and gas prices means business valuations are substantially lower than they were a year and a half ago. As a result, more assets can be given away to family members or trusts for the benefit of family members within the confines of the lifetime gift tax exclusion. All the while, the business owner can still maintain control over the business after the gifts.

Currently, there is a $5,450,000 (or $10,900,000 for a husband and wife) estate and gift tax exemption available to shelter assets transferred during lifetime or at death from gift and estate tax. This means that a business owner and his/her spouse can transfer up to $10,900,000 in asset value (either during lifetime or at death) in the aggregate to any one or more family members or others with no gift or estate tax liability. The value of assets transferred during lifetime or at death in excess of $5,450,000 (or $10,900,000 for a couple) is generally subject to estate tax on the death of the survivor of the business owner and his/her spouse.

If the business owner and his/her spouse have a net worth that exceeds $10,900,000, other planning techniques, such as gifting, can substantially reduce any potential estate tax liability. By the gifting or sale of interests in an independent oil and gas company, the value of the interest transferred is in effect “frozen” as of the date of the gift so that future appreciation in the value of the gifted interest is excluded from the business owner’s estate for estate tax purposes.

Gifts of equity interests in the oil and gas company made in trust instead of outright to the business owner’s children have other advantages as well. For example, if the business owner makes a gift of equity interests in the oil and gas company to a “granter trust,” the business owner will continue to be treated as the owner of the gifted interests after the gift for income tax purposes (but not for estate tax purposes).

As a result, the business owner will continue to pay the income tax on the income generated by the gifted equity interest in the oil and gas company. By doing so, the income tax attributable to the gifted interests paid by the business owner (instead of by the trust or the children) is, in effect, an additional gift from the business owner to the business owner’s children that is not taxable for gift tax purposes.

Additionally, assets gifted to multi-generational trusts can pass to younger generations free of gift or estate tax. Finally, gifts of equity interests in the oil and gas company made to a trust are protected from the claims of both the business owner’s creditors and the children’s creditors.

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The benefit of gifting interests in an oil and gas company while oil and gas prices are down is illustrated by this example. If a 1 percent interest in an oil and gas company was worth $50,000 when oil prices were at $100 per barrel, a gift of a 20 percent interest in the oil and gas company would be worth $1,000,000 and would reduce the business owner’s unified estate and gift tax exemption by $1,000,000 ($50,000 x 20), leaving an exemption of $4,450,000 to shelter future estate or gift tax liability. If that same 1 percent interest in the oil and gas company is now valued at $15,000 with oil prices at a little over $30 per barrel, then the value of a gift of a 20 percent interest in the oil and gas company would be only $300,000 ($15,000 x 20) and would reduce the business owner’s gift tax exemption by only $300,000, leaving an exemption of $5,150,000 to shelter future estate or gift tax liability.

Any future appreciation in the value of the gifted or sold interest in the oil and gas company now valued at $300,000 would escape taxation in the business owner’s estate. So, if next year, oil prices go back to $100 per barrel, the 20 percent interest in the oil and gas company would have appreciated by $700,000. That appreciation would escape taxation in the business owner’s estate. In that event, the gift or sale of a minority interest in the oil and gas company made while prices are hovering around $30 per barrel would result in an overall tax savings of approximately $277,200 ($700,000 x the maximum estate tax rate of 39.6%).

As the value of the gifted interests increases over time, the tax savings would be even greater. The result of lower oil and gas prices is that greater quantities of oil and gas assets can be transferred out of the business owner’s estate and sheltered from tax, given the current depressed state of the energy industry. This can be particularly helpful long-range when the inevitable turnaround in the energy industry does occur.

In addition to future increases in oil prices, other foreseeable factors very well may adversely impact these planning techniques in the near future, including increases in interest rates and the anticipated change in the tax law limiting the use of discounting techniques.

The Federal Reserve has made it known that it intends to increase interest rates periodically throughout the year and the IRS has been considering issuing proposed regulations to limit the use of discounts for lack of marketability and lack of control in determining the value of gifts of equity interests in a closely held business. The low interest rate environment, along with lower business valuations, make oil and gas company and other estate tax planning techniques work especially well at this point in time.

If you are concerned about the partial impact of estate taxes on your oil and gas business, now is a great time to plan – before the recovery in oil and gas prices, the inevitable increase in interest rates, and the possible elimination of discounting techniques.

Don’t let this opportunity pass you by.

Elizabeth K Brown is an attorney and Director of Phillips Murrah P.C, a member of the OIPA board of directors and CEO of The Gloria Corporation, an oil and natural gas exploration and production company.

Mike McDonald, of Triad Energy in Oklahoma City, has served as chairman of the OIPA and president of the Domestic Energy Producers Alliance, and holds a Juris doctor the University of Mississippi and a master of laws degree from New York University.