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Schovanec: Oklahoma Supreme Court ruling on noneconomic damages could have profound impact

Attorney Ashley Schovanec Web

Ashley M. Schovanec is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

On Tuesday, the Oklahoma Supreme Court ruled Oklahoma’s statutory cap on noneconomic damages violates the Oklahoma Constitution because it singles out for different treatment less than the entire class of similarly situated persons who may sue to recover for bodily injury.

In plain terms, the court found the statute is a “special law” that limits a living plaintiff’s right to recover noneconomic damages to no more than $350,000 and cannot be reconciled with the provision of the Oklahoma Constitution that expressly forbids any statutory damages limitation for injuries resulting in death.

Oklahoma’s statutory cap provides that in any civil action arising from claimed bodily injury, the trier of fact may award a plaintiff for noneconomic loss no more than $350,000, regardless of the number of parties against whom the action is brought or the number of actions brought—unless the claimed bodily injury is the result of more than mere negligence (i.e. reckless disregard for the rights of others, gross negligence, fraud, intentional injury, or malice).

The statute defines noneconomic damages as “nonpecuniary harm that arises from a bodily injury that is the subject of a civil action” and includes damages for, among other things, pain and suffering, loss of consortium, companionship, mental anguish, etc.

In Beason v. I.E. Miller Services, Incorporated, an employee was injured while operating a crane in his employment with I.E. Miller Services. As a result of his injuries, the employee underwent two amputations on parts of his arm. The employee and his wife sued I.E. Miller in a personal injury action. The matter went to trial in Oklahoma County and the jury awarded the employee and his wife a combined total of $15 million – $6 million of which was allocated as noneconomic damages. Applying the statutory cap, the district court reduced the jury verdict to $9.7 million, as the noneconomic damages to plaintiffs was lowered to $700,000, or $350,000 per person. On appeal to the Oklahoma Supreme Court, plaintiffs challenged the damages cap.

The Oklahoma Supreme Court held the statutory damages cap is unconstitutional for one reason: the statue purports to limit recovery for pain and suffering in cases where the plaintiff survives the injury-causing event, while persons who die from the injury-causing event face no such limitation under Oklahoma Constitution Article 23, section 7 (“The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation . . . . ”).

The court explained that “[b]y forbidding limits on recovery for injuries resulting in death, the people have left it to juries to determine the amount of compensation for pain and suffering in such cases, and no good reason exists for the Legislature to provide a different rule for the same detriment simply because the victim survives the harm-causing event.”

Moving forward, the court noted that if the people of Oklahoma believe the jury system and judicial review are no longer effective in deciding compensation in private personal injury cases, then constitutional amendment is the proper way to make such a change, “not a special law.”

The impact of the Oklahoma Supreme Court’s decision in Beason is profound.

Now, after Beason, with the statutory damages cap removed, an unemployed, catastrophically injured plaintiff, and a defendant, may be looking at a substantially different recovery and exposure.  Consequently, and somewhat counter-intuitively, because the risk of large verdicts just went up, cases may settle earlier because of the uncertainty associated with leaving a damages calculation up to a jury.

Ashley M. Schovanec is a litigation attorney with the law firm of Phillips Murrah.

Gavel to Gavel: The uphill battle faced by creditors in bankruptcy

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on March 7, 2019.


Gretchen Latham Web

Gretchen M. Latham’s practice focuses on representing creditors in foreclosure, bankruptcy, collection and replevin cases.

By Phillips Murrah Attorney Gretchen M. Latham

Bankruptcy is a debtor’s remedy, meaning many of the rules and regulations are more favorable to debtors than to creditors. To even the playing field a bit, Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act in 2005.

Several of its provisions were put in place to provide assurances to creditors that the system is fair and impartial. Of note, those that file must now undergo credit counseling both prior to filing and prior to receiving a bankruptcy discharge.

Also of significance are the changes to the Bankruptcy Code regarding what chapter of case a debtor is eligible to file. Prior to enactment of BAPCPA, many creditors were missing out on substantial payments because most debtors elected to file a Chapter 7 case, which acts as a total liquidation of debts, other than debts that are reaffirmed. The result was that most unsecured creditors were losing out on repayment of their entire outstanding balance.

With BAPCPA, debtors are no longer free to decide what type of case to file. Rather, a complex mathematical computation is performed prior to filing, and if the results show a debtor has funds available to repay a portion of their unsecured debt, that debtor may be required to file a Chapter 13 case.

Chapter 13 is similar to debt consolidation, in that the debtor proposes a plan of repayment to all creditors, to include paying back a percentage of unsecured debt. The result is that unsecured creditors, such as credit card companies and medical providers, receive some payment.

A creditor is also permitted to file an objection to the proposed repayment plan. The most common objections are to the interest rate and value of secured claims. There are other bases for objecting, including that plan is not feasible or that the case was filed as a delay tactic.

Aside from having a statutory basis for objecting, a creditor must also adhere to the Bankruptcy Court’s local rules when objecting to avoid the risk of an improperly filed objection.

While bankruptcy is still a very viable option for those with overwhelming debt, the arena is now viewed as being much more equal. Creditors have many tools at their disposal when a consumer files bankruptcy and should take full advantage of those tools to maximize repayment where possible.

Phillips Murrah rowing team competes in 2018 Stars and Stripes River Festival

Law & Oarder, Phillips Murrah's rowing team, gets ready to practice before racing in the 2018 Stars and Stripes River Festival.

Law & Oarder, Phillips Murrah’s rowing team, gets ready to practice before racing in the 2018 Stars and Stripes River Festival.

Phillips Murrah’s rowing team Law & Oarder completed the Summer 2018 season and improved on the team’s competitive time from Fall’s rowing season.

The team competed on June 23 at the 2018 Stars and Stripes River Festival held at the OKC Boathouse District.

“I am super proud of Law & Oarder,” said Deena Baker, Legal Assistant and Law & Oarder team leader. “At the regatta we had a time of 1:58 in our heat race, which advanced us to the finals.

“Even though we didn’t medal in the finals, we made a great run for it and finished with a time of 2:03.  We aren’t disappointed with our efforts at all, and it just gives the team more determination than ever for the Fall season which starts in just a few weeks.”

In all eight seasons the Firm’s rowing team has competed, team members consisted of both attorneys and staff members.

“The rowing team has been a great way to spend time with my coworkers,” Attorney Mark E. Hornbeek said. “It is also exciting to see the amazing changes that have been made to the city’s riverfront in recent years.”


Journal Record and Oklahoman Best Places to Work of 2017

Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Sheets, Ybarra earn Journal Record’s Leadership in Law awards

law day robert n sheets monica y ybarra leadership in law

Robert N. Sheets and Monica Y. Ybarra hold their Leadership in Law awards from the Journal Record.

Director Robert N. Sheets and Attorney Monica Y. Ybarra were presented with the Journal Record’s Leadership in Law award on May 1 at the Oklahoma County Bar Association’s annual Law Day Luncheon.

Oklahoma County District Judge Trevor Pemberton and Attorneys Judy Hamilton Morse (Oklahoma City) and M. David Riggs (Tulsa) were also recipients of this year’s Leadership in Law Award.

“I am truly honored to receive this recognition,” Ybarra said. “The list of honorees is really impressive, and I am humbled to be recognized along with these amazing attorneys that I look up to.”

Ybarra joined the Firm in 2014 and represents clients in the Firm’s Family Law Practice Group.

“As a young associate, it can be difficult to juggle work and family obligations and find time for community work, but community work and civic engagement is a vital part of connecting to the city and the people who live here and opens my eyes to the issues facing our community,” she said. “Finding ways to serve and engage not only enriches my life and experiences, but I hope it blesses others.

“Additionally, I have greatly benefited from the community service of others throughout my life and my education, so finding ways to serve feels like I’m giving back what has so generously been given to me. The OCBA provides so many opportunities to serve, both in the legal profession and the greater OKC community. I am grateful to be a part of such a service-oriented organization and I look forward to finding more opportunities to be useful and to serve.”

Sheets, one of the Firm’s founders, represents both privately-held and public companies in the Firm’s Commercial Litigation Practice Group. This is the second time the Journal Record has recognized him with the Leadership in Law award.

“I was moved when I received the Leadership in Law award from the Journal Record in 2008, and I am honored even more so to be recognized with this award for a second time 10 years later,” Sheets said. “It’s a real testament to the work I’m permitted to do in the legal field and within the community, and I appreciate those who see me fit to hold such an honor.

“My position has afforded me the opportunity to become active in the community, specifically with the Oklahoma County Bar Association and the Voices for Children committee. Thank you to the OCBA for allowing me to give back in a meaningful way, and thank you again to the Journal Record for the acknowledgment.”

Phillips Murrah Director Nicholle Jones Edwards was honored with the award in 2017.

Roth: Oklahoma and the future for exports

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 23, 2018.


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

Roth: Oklahoma and the future for exports

The U.S. exports both goods and services with major categories in the former including food, beverage, and feed. Service exports exceed goods exports, and include things like travel and transportation, financial and insurance services, and intellectual property.

Our country’s largest goods export was soybeans, while the largest services export was in the travel and transportation sectors. The service sector is said to employ five times more people than those making goods.

Economists caution that the potential trade war could hit Midwestern states the hardest, especially states that produce soybeans, corn, or grains. The protectionism rationale in favor of the steel and aluminum tariffs is already said to be counterproductive by some analysts and commentators. One thing is for sure, it has many people talking about international trade and tariffs, and locally, our state’s own exports are being discussed.

Oklahoma exported more than $5 billion worth of goods and services last year. The state’s largest category was in civilian aircraft, engines, and parts, followed by automatic data processing storage units. Parts of pumps for liquids, cotton, and swine are next on the list. In addition to these goods, Oklahoma has decades of experience exporting fuel, like natural gas, through our system of pipelines.

In 1931, construction of a high-pressure pipeline from Oklahoma’s Panhandle to the Chicago area was completed, enabling our state to market this resource far from where it was released. Typically, more than one-fourth of Oklahoma’s natural gas gross withdrawals are consumed within the state.

Like Oklahoma’s aircraft parts, cotton, swine, natural gas, and crude oil, we are now developing more electricity through wind than our state’s load requires. Consequently, just like our oil and natural gas, we will continue to increase our export of wind electricity, although a great majority of it is consumed within our state. But, unlike our oil and natural gas resources, electricity generated from Oklahoma’s wind is a packaged, delivered energy. In other words, it is ready to go as soon as it is generated. Plus, as we were reminded the last week or so, it is abundant.

The dispatch of electricity, like all technological advancements, is evolving. Beginning in the 1950s we constructed interstate highways, and now we have a giant grid of surface transportation.

Similarly, electricity on the wires grid is evolving from local generation and consumption to regional power grids like the Southwest Power Pool, of which Oklahoma is a member. Soon we should be unlocking the technology to send Oklahoma electrons to places like Chicago and beyond, just like we do our natural gas.

On the other hand, we are also seeing more people desire off-grid power for a number of different reasons to discuss another day. It is an exciting and unpredictable future for goods and services and the impacts of consuming both in new ways.

One last thought on exports: Unfortunately, Oklahoma has years of experience exporting another valuable Oklahoma resource, talented young brains. Let’s hope we can figure out how to stop that trend by attracting a growing and vibrant, well-educated economy where innovation and investment unleash our best potential. That’s the first trade war we should fight: investing in our people, educating their children and growing their full potential.

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: The latest buzzzz on pollinators

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 9, 2018.


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

Roth: The latest buzzzz on pollinators

Nothing says, “April Fool’s” like a high of 40 degrees the day after it was 72. It was a rather timely coincidence since by last column featured the difficult work of climatologists in determining just what the crazy weather might do next. It isn’t just humans that the changing weather affects; climate change impacts bees and butterflies, crops, streams and lakes, bird migration, and ultimately, entire ecosystems.

The monarchs are just getting to Oklahoma on their 2,000-plus mile spring journey. These amazing insects take cues from the environment and cannot survive a long, cold winter, so climate change is especially harmful for them. If you are looking for a way to attract them to your yard, they rely on milkweed as their sole host plant. Of course, reducing or eliminating your use of pesticides and herbicides is important, too.

Honey bees have gotten more attention in the past decade or more, as does anything we are at risk of losing. While there are many possible reasons for this phenomenon called Colony Collapse Disorder, the fact is, we lost 10 million beehives between 2007 to 2013, which is twice as many as normal. Thanks to awareness and action, great efforts are in place to save these pollinators, whose work our very food web relies upon.

Losing bees and butterflies has economic impacts on the agricultural industry since many crops, worldwide, are pollinated by Western honey bees. Around one-third of the food we consume relies upon pollinators like butterflies and bees. Dramatic weather can lower the quantity and quality of crops in an area due to drought, heat waves, and heavy rainfall. Oklahoma is an agriculture state so we know firsthand how distressing and unproductive a drought followed by a gully-washer can be.

So what can we do? We can focus on what we know and stay tuned to what scientists continue to discover. We know that climate change’s effect on agriculture is felt the strongest in the world’s poorest countries, so we can support efforts to teach these populations farming techniques that support a more stable food supply.

We know pesticides can be especially devastating to water sources, with the algal blooms in Lake Erie as one disturbing example; so we can cease or minimize our use of pesticides and herbicides, or use natural versions. We can opt for native grasses, flowers, and plants, which will both help our pollinators and require less water to survive. We can purchase local food from our co-ops and farms. There are tons of great resources online to learn more about each of these fascinating topics.

For us Oklahomans interested in helping, please check out a great resource provided by the Tulsa Zoo and the Kerr Center for Sustainable Agriculture, in Poteau, Oklahoma, and their “Native Plants for Native Pollinators in Oklahoma” guide.

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: Plugging into the charging infrastructure market

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on March 12, 2018.


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

Plugging into the charging infrastructure market

We know electric vehicle sales are charging ahead, but where do we charge them? Charging is no problem if you have a driveway and an outdoor electric outlet, or live in California, where there are about 12,000 charging stations (compare this to Germany, which currently has the same). But what about those who live in multifamily units or park on the street?

Lucky for us, there are plenty of smart, motivated people working on this opportunity. I call it an opportunity because if implemented properly, the accessibility of electric vehicle charging won’t amount to a challenge. Moreover, the charging infrastructure market is projected to grow to about $20 billion in the next five years.

For clarification, because the terminology varies, a charging pile is a slower, single station using alternate current level 1 and AC level 2 charging you might find in a parking lot or other public place where a vehicle would be charged for an extended time. A charging station is more like a gas station with multiple, higher-speed, usually direct current chargers. “Charging station” is commonly used for either of those examples.

In Oklahoma, charging stations are increasingly popping up around us. The City Center East parking garage in downtown Oklahoma City just installed new stations, and solar-powered EV charging projects have recently come online by Oklahoma-based companies Delta Energy and Design in and around OKC, and Francis Solar in and around Tulsa.

Globally, new ideas continue to develop with regard to EV charging. A German telecommunications company just announced plans to more than double the country’s number of charging stations by converting its distribution boxes to standard and fast-charging stations by 2020. In England and elsewhere, lampposts have been retrofitted for electric vehicle charging points. Last year China announced it would build 167,000 charging stations. This is a logical next step there since leaders plan an eventual outright ban on fossil fuel vehicles and have already made it more difficult to build them. India, the world’s third-largest oil importer, has plans to sell only electric cars by 2030. It, too, has begun to invest heavily in charging infrastructure.

Once more of us are driving EVs and the infrastructure is in place, the focus will turn to how quickly cars can be charged. India’s former minister of new and renewable energy has advocated for swapping of batteries at charging stations, rather than recharging, to reduce time at the pump. If that comes to fruition, I suppose we could call it a trading post?

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: Energy independence closer to reality

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on February 26, 2018.


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

Energy independence closer to reality

As American oil production surpasses 10 million barrels per day, the latest World Energy Outlook report from the International Energy Agency indicates the U.S. is poised to continue its record-breaking oil and gas production.

The report also predicts that by 2025, the U.S. could become the world’s largest exporter of LNG (we already export more natural gas than we import), and will begin to export more oil than we import, once thought unimaginable. The U.S. has not been a net exporter of oil since the 1950s, and following the 1973 oil crisis, was prohibited from exporting crude. The ban was intended to counteract future crises, and was lifted by the Obama administration in 2015.

Flashback to a previous World Energy Outlook report from 2012 when the IEA indicated the United States would overtake Saudi Arabia as the world’s largest oil exporter by 2020 and become energy-independent 10 years later. That report also predicted that the U.S. would become a net exporter of crude oil around 2030. As recently as 2014, the U.S. was third behind Saudi Arabia and Russia in crude oil production.

We Oklahomans are familiar with the rest of the story, how technological advancement in drilling and fracking, or the shale renaissance, unlocked huge reserves of oil and gas and altered the energy landscape of Oklahoma and the world.

By 2016, the U.S. was exporting crude oil to nearly 30 countries. Last year, monthly exports exceeded 1 million barrels per day, but the U.S. still imports around 8 million BPD of crude oil, which is why the forecast of net exportation is really something.

The U.S. isn’t the only country reshaping its energy landscape. Saudi Arabia, through its Vision 2030 initiative to reduce its economy’s dependence on oil, is planning multifaceted changes to its energy industry this year. For now, Saudi has tentatively planned a 2018 initial public offering of its government-owned oil company Saudi Aramco. If projections are accurate, offering 5 percent of the company could raise up to $100 billion and would place the company’s valuation at or above $1.5 trillion. Saudi is also considering investments in U.S. shale interests, and as I discussed last week, is investing heavily in renewables. These possibly transformative steps within the Kingdom are occurring as American energy production and strength grows and Saudis grow nervous for their economy.

This month a supertanker full of American crude left the Louisiana Offshore Oil Port, or LOOP, for the People’s Republic of China. This was the first time for an export of this size that did not require smaller ships to shuttle their multiple cargoes out to supertankers waiting in deeper waters. LOOP, the only deep-water port in the U.S., has been instrumental in offloading imported oil, and now its ability to handle these massive tankers will both lower the costs and simplify the logistics of oil exports.

IEA reported this month that America’s net crude oil imports fell by 1.6 million barrels per day to just under 5 million bpd, the lowest level since the IEA began keeping this data in 2001. And the export of American crude jumped to just above 2 million bpd, close to a record high of 2.1 million hit in October, and those numbers have pushed our country’s net imports to a new low level. The promise of energy independence, at least on a domestic production and domestic consumption comparison, is growing closer to reality than ever.

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: Counterintuitive renewable energy progress

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on February 19, 2018.


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

Counterintuitive renewable energy progress

I have often said renewables are here to stay, in spite of some resistance from some corners of our economy.

Case in point, countries around the globe are investing in and developing renewable forms of energy in places that wouldn’t be that obvious. For instance, last year in the U.S., we installed more than 14.73 gigawatts of solar, while China installed more than twice that at 34.54 gigawatts.

While the technology for solar panels was created in the U.S., China’s embrace of the solar industry changed the economics. New research indicates that years of cheap Chinese solar panels dropped prices around the globe by 80 percent. China also dominates other industries the U.S. once led, currently surpassing us in the production of steel, automobiles, and cotton. China also leads the way in pollution as well as coal production at almost 4 billion short tons, compared to the United States’ 728 million short tons in 2016. It’s not all bad for the U.S. that China leads the way in solar; after all, the cheaper panels afforded the addition of hundreds of thousands of domestic solar installation jobs here in America.

But, there is more to this story. Renewable energy is being developed in other unexpected places.

In Saudi Arabia, the new crown prince and his energy minister are looking to diversify and grow the economy by maximizing the country’s vast sunlight. One example of this is a solar farm covering a massive parking lot at Saudi Aramco, the national oil company. For Saudi Arabia’s economy, oil has long been the kingpin – citizens get 50 percent of their electricity by burning oil.

But with new leadership (sometimes) comes new ideas, and the new goal is to install 41 gigawatts of solar by 2032. Questions about whether the plan will be implemented still remain. The benefits to the country include the price – with government-backing for projects, the energy will be cheaper than fossil fuels, and, with more citizens using renewables for their domestic energy needs, more Saudi oil is available for export.

These efforts won’t help China’s solar industry much; the bidding process requires the selected company to spend around 30 percent of total costs on domestic suppliers. A sort of “Arabia First” requirement.

Three other countries whose level of renewables might come as a bit of a surprise are Nicaragua, with plans to be powered by 90 percent renewables by 2020. Costa Rica, slightly more assertive than Nicaragua, aims to be completely carbon-neutral by 2021. And Uruguay, maybe the most impressive, is running on 95 percent renewables with only 10 years of effort, and all without subsidies or raising consumer costs.

These countries have geothermal, hydroelectric, solar, and wind – hey, not unlike Oklahoma and its own diverse resources. But Nicaragua and Costa Rica have two things our state does not: volcanoes, which provide for vast geothermal energy, and government leaders who support the development of renewable technologies.

While we won’t have volcanoes anytime soon, we could stand to have more support to develop the many energy blessings found in our state. A sort of “Oklahoma First” energy policy, if you will.

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.

Firm selects two Employees of the Month for January 2018

Nathan Hatcher and Lisa McAlister

Nathan Hatcher and Lisa McAlister

Nathan Hatcher, Assistant Marketing Director, and Lisa McAlister, Paralegal, are Phillips Murrah’s Employees of the Month for January 2018.

“I know it’s hard every month for each of us to decide who should get this honor, because the Firm’s staff is full of hard-working, deserving individuals,” Hatcher said. “I am so thankful that they’ve decided I am worthy of being ranked up there with them.”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“More than being proud of working for an extraordinary law firm, I am proud of working with extraordinary peers that have presented me with this honor and recognition,” McAlister said.

In rare cases, the votes tallied end in a tie, and both winners receive the Employee of the Month honor.

“Nathan has worked with me for a few years, and I am continually impressed by how smart and diligent he is,” Executive Director Michelle Munda said. “His demeanor and personality are a complete delight every day.

“Lisa is a wonderful asset and Legal Assistant, and she takes the initiative to step in when she’s needed in other areas in a way that is very impactful and shows what a true team player she is.  We are lucky to have her here!”


Journal Record and Oklahoman Best Places to Work of 2017

Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Roth: Energy protectionism in the form of solar tariffs

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on February 12, 2018.


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

Energy protectionism in the form of solar tariffs

While this column was on hiatus, the president made his decision on the Section 201 International Trade case by, somewhat unsurprisingly, adding steep tariffs to solar cells and modules originating from China and several other countries. The tariff takes hold at 30 percent this year and will gradually decline to 15 percent in the fourth year.

During his tenure, Trump has been clear about his preference for coal over renewables, so he couldn’t likely squander this two birds, one stone opportunity to stick it to both the renewable energy industry and China. While it is true that cheap, imported panels have boosted the industry, huge investments, domestic job creation and low-cost clean energy accompanied that growth, which made for a complicated and contentious conflict.

As I’ve mentioned previously, many were troubled by the irony that Suniva and SolarWorld, the petition filers, asserted serious harm to the domestic solar industry, yet are foreign corporations, but both have headquarters in the U.S., which gave them standing to challenge the imports. Nonetheless, they prevailed over a massive response from the rest of the solar industry and others interested in trade practices.

One silver lining in the battle appeared when conservative groups ALEC and the Heritage Foundation came out against the tariffs. Their positions on the matter bolstered an already strong faction of those opposed to tariffs, and I am always optimistic when logic transcends politics. But, despite the efforts of the bipartisan opposition group, (not even a Sean Hannity commercial did the trick) the tariffs are the new normal for the solar industry.

But will the tariffs actually help American manufacturers ramp up, and what will those prices look like? Of course, this is yet to be seen. But those in the industry predict (and some have already seen) increases of 10-15 percent over total project costs. Those prices are obviously paid by American consumers. Prices increased upon the initial recommendations, and before Trump made a decision, as solar installers were stockpiling the affected equipment in preparation for what many knew would result.

Since tariffs are taxes, the end users are the ones who will eventually foot the bill. This decision has many, even supporters of the president, disappointed. Those in favor of a free market and especially those for free trade are calling the decision protectionist, while others are warning of a slippery slope not seen before in trade policy. The reason for the concern is that less than half of the petitions sent to the ITC have been granted any type of trade barrier, and since many believe this case lacked a definite injury to the industry, there are fears that other industries will file petitions with similar claims.

The great, hopeful fact that remains for America’s energy future, regardless of what this or any administration does to help or hinder it, is that Americans overwhelmingly want cleaner, renewable energy to power their lives. And as America further electrifies its future, Oklahoma’s sun and wind blessings should play a big role, so long as we don’t deny ourselves the future.

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.

Director Jim Roth to speak on 2018 Legislative Session forum panel

Jim A. Roth, Phillips Murrah

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

Director Jim Roth will participate in a panel during the First Week Forum, an event hosted by The Journal Record designed to inform attendees about hot topics and major issues facing the state and nation during the 2018 Legislative Session.

The First Week Forum will host sessions from 3 to 7 PM this Thursday at the Oklahoma City University School of Law.

Roth will be speaking during the Energy Panel alongside Mark Yates, Director of the Oklahoma Wind Coalition; Chad Warmington, President of Oklahoma Oil and Gas Association; and John Harper of American Electric Power who will be moderating.

“The Journal Record is bringing sunshine to the state capitol political sausage factory at an unprecedented time of budget woes and two concurrent legislative Sessions,” Roth said. “We will discuss the issues of the day and hope Oklahomans can gain information for their benefit going forward.”

Other panel topics include criminal justice reform, education and health care, and registration for the event is free.

Those interested can view a full list of speakers and panels here.

Roth: The high cost of climate volatility

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on February 5, 2018.


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

The high cost of climate volatility

Natural disasters cost the United States $306 billion in 2017, matching a previous record set in 2011.

Hearing this, we Oklahomans can recall that last year’s tornado season, which resulted in one death in our state, was comparatively tame, although that is hardly a term to describe a tornado season or a loss of life.

The costs from the 2017 figures are mostly property damage from Hurricanes Harvey, Irma, and Maria, and damage from wildfires that plagued the West Coast. And the numbers of lives lost and injured continue to grow.

States all across the country suffered damage from all forms of severe weather, including wildfires, resulting smoke and ash, droughts, floods, unseasonable tornadoes, damaging hail, excessive rain, dangerous winds, record snowfalls, and severe thunderstorms. Sixteen devastating weather events, each with a price tag over $1 billion, tested this country’s resolve and took lives.

I listed Maria, but this storm warrants its own discussion. Damage estimates are just under $100 billion for this hurricane that devastated Puerto Rico and other nearby islands. Some parts of Puerto Rico remain without power still and will be for eight months or more as efforts to rebuild the electric grid continue. If that doesn’t make you want to put up solar panels or live free off the grid, I don’t know what will.

But surely it will get better? No, say scientists, climate change will continue to cause worse weather. Every state is experiencing erratic and above-average temperatures, five of which set record temps last year, and in December, Alaska experienced temps that were more than 15 degrees above average.

That was 2017. Right away, 2018 added insult to injury in California, when land that was raw and barren from the recent historic wildfires was pummeled by mudslides destroying homes and lives. While we can quantify the damage to property, the harm caused to humans is, in some cases, quite literally immeasurable.

For instance, there are physical health hazards from wildfires that accompany the smoke and ash that blanketed not only California, but also nearby Washington and Oregon. Even more difficult to measure are the psychological tolls that frightening weather events have on people. Unfortunately, we are all too familiar with that concept in Oklahoma.

If you are like me, you like the optimistic, fresh start a new year offers. So here is a productive tool you can use to offset some of this human activity that leads to this troubling news. Previously I’ve mentioned the EPA’s Carbon Footprint Calculator. This is a great way to live consciously while actively doing what you can to reduce your daily greenhouse gas emissions.

As the price of climate change and erratic weather continues to rise in American lives and property, every individual effort helps.

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.

Firm selects Employee of the Month for December 2017

Cristal Bazemore

Cristal Bazemore, Administrative Assistant, is Phillips Murrah’s Employee of the Month for December 2017.

“It is an honor to win Employee of the Month,” she said. “I am grateful to be a part of such a great team and workplace!

“It is nice to work with such a large group of people who show their appreciation and care for one another.”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“Cristal is a great worker with what seems to be boundless energy, and never lets anything get her down,” Director J. Mark Lovelace said.


Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage three years in a row. Our Firm strives to recognize and reward our employees for excellence.

Firm selects October Employee of the Month

Abigail Duran

Abigail Duran, Legal Assistant, is Phillips Murrah’s Employee of the Month for October 2017.

“It was a wonderful surprise to have been selected Employee of the Month,” she said. “I have learned so much in just a short amount of time here, all thanks to the people that work here.

“I am truly grateful to be working at such an amazing place.”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“Abigail has been a wonderful addition to the Firm,” Director Joshua L. Edwards said. “She’s extremely bright, diligent and has a great ‘can do’ attitude.

“She’s willing to take on whatever is asked of her, and her performance has been impressive.  We are lucky to have her on our team.”


Phillips Murrah has been recognized as one of the Best Places to Work in Oklahoma in 2017 by The Journal Record and an Oklahoma Top Work Place by The Oklahoman/Energage two years in a row. Our Firm strives to recognize and reward our employees for excellence.

Sharp spike in EEOC lawsuits

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on October 5, 2017.


Byrona J. Maule is a Director and litigation attorney as well as Co-Chair of the Firm’s Labor & Employment practice group. She represents executives and companies in a wide range of business and litigation matters with a strong emphasis on employment matters.

By Phillips Murrah Director Byrona J. Maule

Fall is a time of change. But this fall, the transition from summer isn’t the only change we’re experiencing. This fall has also brought extraordinary action from the Equal Employment Opportunity Commission. Starting in July, the EEOC has filed a flurry of federal lawsuits against both private and public employers.

In July 2017, the EEOC filed 20 lawsuits, compared to eight in July 2016, according to EEOC.gov’s announcements. At first, I thought this was some type of anomaly, but it continued into August 2017 with another 20 lawsuits filed, compared to eight last August. In September, they filed a whopping 69 lawsuits, as opposed to 22 in September 2016. To date, the EEOC has filed 241 lawsuits in 2017, compared to 86 in all of 2016. With three months left in 2017, there is no reason to believe the rest of 2017 will trend any differently.

Other changes in the EEOC’s activity include an inclination to file suit against an employer in a single plaintiff case, as opposed to lawsuits in which the outcome would have a broad impact on society. The EEOC’s 2012-2016 Strategic Plan emphasized using litigation mechanisms to identify and attack discriminatory policies and other instances of systemic discrimination. This emphasis seems to have waned.

Considering the life cycle of an EEOC lawsuit from charge to the EEOC’s decision to file a lawsuit takes multiple years, this sharp spike in the number of merit lawsuits being filed does not indicate that workplace behavior has drastically changed in recent months. Rather, the change appears to be in the decision-making process of the EEOC when deciding if it is going to file a lawsuit and what types of lawsuits the EEOC pursues. In one recent case involving Home Depot, the EEOC filed charges despite the company’s position it had reached agreement with the EEOC on the major terms of a settlement.

What does it all mean? It is difficult to know at this point. The real significance for employers is there are significantly more lawsuits being brought by the EEOC in 2017 than at any time between 2012 and 2016. Employers need to be very aware of this, and approach EEOC charges with increased attention.

Byrona J. Maule is a partner and co-chair of the labor and employment practice group at Oklahoma City-based law firm Phillips Murrah.

Roth: What the H?

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 24, 2017.


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

What the H?

Those early, and perhaps forgotten, lessons from middle school chemistry class of the periodic table may be coming around again as America and the world explore new fuel sources for our future.

Hydrogen, that chemical element with the symbol H and the atomic number of 1, is the lightest element on the periodic table. It has the lowest density of all gases, which makes it attractive as a fuel source, plus it is the most abundant chemical substance in the entire universe known to man, with NASA estimating its abundance at 75 percent of known particles.

Because of this abundance and this weight advantage for travel, some see hydrogen gas as the clean fuel of the future – generated from water and returning to water when it is oxidized.

Yet hydrogen has been put to good use for centuries, having been first artificially created in early 16th-century industrial application of acids to metals. Today, its uses can be found across industries as it:

  • Is used to make ammonia for fertilizer (the Haber process).
  • Is used to make cyclohexane and methanol, which are intermediates in the production of plastics and pharmaceuticals.
  • Helps remove sulfur from fuels in oil refining.
  • Filler for balloons; and previously for “airships” until the Hindenburg caught fire.
  • Compressed hydrogen is the fuel for hydrogen-powered vehicles.

This last use is growing faster than any other is and many think the positive attributes of H mean it has a very promising future in a carbon-constrained future world. As the simplest element in existence, by weight, it has the highest energy content of any fuel. It is not found on Earth as a gas, because it is lighter than air, so it rises into the atmosphere; thus, it must be manufactured.

The U.S. produces about 9 million tons per year. It is associated with other elements such as water, coal and petroleum. Since it is generated from water and returns to water when it is oxidized, it is a low-polluting fuel. It can be shipped by pipeline, sometimes cheaper than electricity over wires, which again adds to its allure as a fuel.

Hydrogen must be separated from other compounds due to it not being naturally found on Earth existing by itself. There are two ways to accomplish this: electrolysis (water splitting) and steam reforming, with the latter being the less expensive, commonly seen in industries to separate hydrogen from carbon atoms in natural gas, which consists primarily of methane, which unfortunately does emit greenhouse gases.

Electrolysis on the other hand, emits no greenhouse gases, but is still very expensive today. The process splits water into its basic elements through an electric current. Experimental methods include photo-electrolysis and biomass gasification.

The U.S. Department of Energy has some interesting ideas for a future hydrogen energy infrastructure across America. The hydrogen is compressed up to pipeline pressure and then fed into a transmission pipeline. The pipeline transports the hydrogen to a compressed gas terminal where the hydrogen is loaded into compressed gas tube trailers. A truck delivers the tube trailers to a station where the hydrogen is further compressed, stored, and dispensed to fuel cell vehicles for consumers or business.

Fuel cell vehicles, also known as FCV, look like conventional vehicles, but use innovative technologies with fuel cells instead of gasoline tanks or electric vehicle batteries. Similar to a compressed natural gas vehicle’s “vessel,” the heart of the FCV is the fuel cell stack. The stack converts hydrogen gas stored onboard with oxygen from the air into electricity, which powers the vehicle’s electric motor. The fuel cell market is in its infancy but poised for growth as Toyota’s 2015 rollout of the Mirai joins Hyundai’s FCV Tucson as the only commercially available today. They refuel in five minutes and drive approximately 300 miles. Unfortunately, there are very few hydrogen-dispensing pumps, although California is making good headway.

And before you jump to this new, albeit exciting fuel source vehicle, please know that today South Carolina and California are the closest fuel locations to Oklahoma. But the times, they are a changin’ – come H or high water.

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.

In consideration of a living inheritance

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on July 13, 2017.


Robert O’Bannon is a Director and member of the Firm’s Tax, Trusts and Estate Planning, Energy and Natural Resources, and Corporate Law Practice Groups. He represents individuals and both privately held and public companies in a wide range of transactional matters.

By Phillips Murrah Director Robert O. O’Bannon

When parents are in the financial position to give money or assets to their adult children, there are benefits for the donor and the child.

Rather than a parent holding on to wealth until after death, gifting allows them to share it with heirs when they likely need it most. At the same time, this decision can reduce the tax liability on an estate transfer at death.

The beneficiaries of such gifting are generally in their 40s and typically experiencing their most financially challenging decade. They often have children of their own who are in high school or entering college. Other financial obligations typically include a hefty home mortgage, medical costs associated with middle age and the challenges associated with their own inevitable retirement.

For wealthy, retirement-aged people, it is easy to acknowledge that their adult children and vicariously, their grandchildren, will likely benefit more from gifting at this stage of life rather than waiting until the event of death, at which point the adult children are generally more self-sufficient.

For those transferring wealth to the next generation, holding on to a larger estate flies in the face of limiting the tax liability. For example, upon death in 2017, estates worth more than $5,490,000 are taxed at 40 percent (for married couples, $10.98 million).

Gifting, or transferring either money or assets to someone else without receiving something of equal value in return, is available in various forms, including pre-loading college 529 accounts. Additionally, paying for medical, dental and tuition expenses do not count toward gifting limits as long as the provider is paid directly.

An individual may transfer assets to anyone free of gift tax in the amount of $14,000 per year. In this case, a married couple may gift up to $28,000 per individual. For a couple with two married children and four grandchildren, that would total $224,000.

There are numerous exceptions to the general rules of gift and estate taxation, which can be easily explained by your tax and/or estate planning attorney.

Robert O’Bannon is a director at Phillips Murrah and member of the firm’s Tax, Trusts and Estate Planning, Energy and Natural Resources, and Corporate Law Practice Groups.

Roth: Global decline of coal

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 19, 2017.


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

Global decline of coal

The global consumption numbers are in for 2016 and coal production and consumption hit a 35-year low in the United States and had an even deeper slide around the world.

After peaking in the U.S. in 2007, consumption of this traditional fossil fuel has slid by nearly one-third since. And the decline seems to be picking up speed. The first quarter of 2016 saw the lowest quarterly production since 1981, with the steepest quarter-over-quarter drop in nearly 30 years.

Many of America’s utilities have been moving away from coal in power generation. In 2008, about one-half of our electricity was coal-powered. Today’s its about 30 percent due in large part to cheaper, abundant, clean natural gas and the greater deployment of cheap and clean renewable energy sources.

The U.S. Department of Energy recently estimated an annual coal export decline of 12 percent in 2017, as the decline now appears global as well. Worldwide consumption dropped for the second consecutive year, by 1.6 percent last year, to its 2004 levels, as electricity remained flat and coal continued to be displaced by cleaner fuels. Even China, the largest coal consumer in the world, finished 2016 with a drop in its coal use for the third year in row. And since China has the distinction of being the world’s largest polluter today, compared with our country as the largest polluter over history, China is aggressively moving away from coal to other technologies like wind and solar.

And America is helping to lead that trend too. Just this past week Bloomberg’s New Energy Finance Outlook estimated that solar technologies will rival the cost of new coal plants in America and Germany by 2021. It also estimated that solar will soon be cost-competitive in quick-growing markets like India and China. This scenario is called “China’s tipping point” and suggests that once that happens, coal’s days will only further dwindle. And the reality is that once China has forever lessened its coal appetite, the demand curve for coal will likely never recover here or abroad.

Let’s hope we too have migrated toward cleaner energy options that are abundant in Oklahoma and America like natural gas, wind and soon solar.

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: Syria, Nicaragua and Trump’s America

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 5, 2017.


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

Syria, Nicaragua and Trump’s America

You have probably heard by now that Donald Trump has announced his intentions to withdraw the United States of America from the Paris climate accord, a non-binding agreement dealing with greenhouse gas emissions mitigation, adaptation and financing starting in 2020.

This accord was negotiated within the United Nations Framework Convention on Climate Change and as of June has been signed by 195 countries and already ratified by 148. Yes, that is most, as in almost all, of the countries of planet Earth.

Who isn’t now a party to this historic global effort to safeguard our planet? Syria (current war-torn catastrophe), Nicaragua (who believed the accord “didn’t go far enough”) and Trump’s America (which he stated was disadvantaged in job areas such as coal mining).

However, as many American business CEOs and world leaders denounce Trump’s announcement, an even more meaningful reaction is taking hold: The “other America” of state and local governments, where the great majority of Americans live, is seemingly pushing forward to honor the Paris accord and its pollution reductions.

In fact, the U.S. Climate Alliance was formed by the states of California, New York and Washington to uphold the Paris climate agreement, on the same day Trump announced his intentions for the federal government. Other states and cities will surely follow and in their course undermine Trump’s efforts to speak for all of us.

And why does this matter? Mostly because the world is now a global economy and the power of people and populations drive commerce more so than federal U.S. policy. Put another way, what California does often dictates what businesses and manufacturers do for all of America and beyond.

California, currently the sixth-largest economy in the world, has been a leader for decades in numerous American energy and environmental policies. When then-President-elect Trump began filling his Cabinet with nominees who rejected the idea that human activity effects climate change, California Gov. Jerry Brown cautioned that the state would take action if necessary to safeguard its environmental policies.

California’s large economic prowess allows it to command higher standards in many arenas, (like vehicle fuel and emission standards and natural gas storage and safety rules) since business and industry will create their products to adhere to California standards for its large market.

California is a beacon of hope for those in the climate-change-is-real category (and for those who want to see America continue to lead the world in innovation and environmental protection).

And even though these first three large states are run by Democrats, let us not forget that some formidable American environmental accomplishments came at the hands of Republicans. President Nixon signed into law the Clean Air and Clean Water acts, created the Environmental Protection Agency and the National Oceanic and Atmospheric Administration.

“Everyone talks about red states and blue states,” said Hal Harvey, CEO of Energy Innovation, a San Francisco-based policy research group. “We really have to start talking about green states and brown states. There are about a dozen states – many of them in Republican control – with very strong renewable portfolio standards and very strong utility energy efficiency programs, and utilities are going to be the prime movers in building the electric vehicle charging infrastructure.”

It is more likely than not, America’s green states will stay committed to the voluntary Paris accord and its pollution reductions because state rights and a global economy remain supreme, while Trump’s America becomes a patchwork of brown states aligned with a few outlier nations like Syria and Nicaragua. Stay tuned.

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.

Leadership in Law profile: Nicholle “Nikki” Jones Edwards

From The Journal Record
Published: April 26, 2017
Click to see full story – Leadership in Law profile: Nicholle “Nikki” Jones Edwards

Nicholle Jones Edwards’ practice focuses on family law, labor law and general civil litigation. Her family law practice includes litigation, complex custody issues and valuation issues.

As chair of Phillips Murrah’s Family Law Section, Nikki Jones Edwards manages a large portfolio of complex family law matters. Her practice encompasses all aspects of family law, including high-net-worth divorces, custody issues, valuation disputes, and guardianships. Additionally, she co-chairs the firm’s Business Development Committee. Edwards is passionate about her work with Positive Tomorrows, where she has served in various capacities for 20 years. She is active in several nonprofit, educational, and professional organizations and is frequently called upon to speak, present, and mentor. She considers serving as a mentor to the next generation of Oklahoma attorneys as her greatest professional accomplishment.

Title:
Shareholder

Education:
University of Oklahoma School of Law (J.D., 1997); University of Oklahoma (BBA, 1991)

Primary practice areas:
Family law, civil litigation, trial and appellate advocacy

Admitted to practice in what courts/states:
Oklahoma; U.S. District Courts, Northern and Western Districts of Oklahoma

Professional involvement:
Oklahoma Bar Association; Oklahoma County Bar Association, Community Service and Fee Grievance and Ethics committees; Ruth Bader Ginsburg American Inn of Court, master

Community involvement:
Positive Tomorrows (board member); Oklahoma Single Parent Scholarship Program (board member); OU Women and Gender Studies Program Advisory Board (founding member); Westminster School (volunteer)

Awards/honors:
Outstanding Master, Ruth Bader Ginsburg American Inn of Court; Recognition of Service from Positive Tomorrows and OU Women & Gender Studies program; two-time honoree of Leadership in Law Award; Oklahoma Super Lawyers; Best Lawyers

Hobbies:
Traveling; reading; and watching Thunder basketball and sporting events of her second-grade son, Sam

Roth: OKC in top 10 U.S. cities for solar potential

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on March 27, 2017.


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

OKC in top 10 U.S. cities for solar potential

Google’s “Project Sunroof” program just expanded into every state in America to ascertain which areas are most suitable for solar power and not surprisingly sunny Oklahoma, and specifically sunny Oklahoma City, came out in the top 10 cities across this great country. While Houston was ranked No. 1, Oklahoma City achieved the eighth-best spot, besting Dallas and Albuquerque to round out the top 10.

Overall, the expanded analysis concluded that 80 percent of all American rooftops assessed are suitable and can technically benefit from the installation of solar panels for energy generation. That is an astounding reality and speaks to the coming enormity of solar energy for our country’s future, especially as technology is improving fast and prices are dropping precipitously.

Curious about your own home’s potential? Please check out the project website and simply put in your ZIP code at: www.google.com/get/sunroof#p=0.

My own home was analyzed and shows the potential for at least $3,000 in estimated savings over 20 years due to:

• 1,695 hours of usable sunlight per year, based on day-to-day analysis of weather patterns.

• 352 square feet available for solar panels, based on 3-D modeling of my roof and nearby trees.

• Recommended solar installation size of a 4.75-kilowatt system that could provide more than 21 percent of my electricity consumption (in reality I would probably size it even larger to live freer from dirtier electricity).

All of this great analysis is free and provided using Google Earth and Google Maps technology to build specific 3-D models by assessing weather, trees and other factors that affect your roof’s potential to the sun’s exposure. It was fascinating to see it actually illustrate my own home’s roofs and the analysis specifics, based upon my electricity consumption.

And while it doesn’t yet speak to the local policy issues impacting these equations, such as the fact Oklahoma utilities aren’t yet required to pay homeowners “fair value” price for the energy that your rooftop system may “export” back to the grid for use by others, it does illuminate many of the basics that can get your analysis started. The website even lists solar providers in your area so you can take the next step to have industry experts visit your home and help calculate your system options, payback timelines and any local, state or federal incentives that might help.

In addition, as an aside, please know that the future is looking bright for Oklahomans to adopt more solar energy, as just last week the Oklahoma Corporation Commission voted to block a utility’s request to raise charges on rooftop solar customers. The case centered on the reality that when you study the economics, neighbors with rooftop solar energy are actually providing greater benefit to their neighbors through exported energy than those customers themselves cost the system to tie into the grid. That helps Oklahoma move from its current ranking of 48th in solar adoption toward the enormous potential we have as Oklahoma City ranked eighth suggests.

What are you waiting for? Chances are really good the sun will come up again tomorrow.

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.

Director Jim Roth sourced in article about proposed task force to examine Oklahoma’s Corporation Commission

Jim A. Roth, Phillips Murrah

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

Jim Roth, Phillips Murrah Director and Chair of the Firm’s Clean Energy Practice, was quoted in a Journal Record article by Sarah Terry-Cobo regarding a House Bill that seeks to create an 11-member task force to examine Oklahoma’s Corporation Commission is structure and funding.

Read Roth’s comments from the article below:

OKLAHOMA CITY –  Utilities, drillers, and telecommunications companies could have an opportunity to scrutinize one of their regulators.

State Rep. Weldon Watson said it’s time to take a closer look at the Oklahoma Corporation Commission and give those directly affected by the agency a chance to suggest changes. But at least one industry trade group representative questioned the timing and the need to dig into the agency.

Jim Roth, clean energy practice group director at Phillips Murrah, said reviewing the agency is an excellent idea.

“This is overdue,” he said. “Does the agency have all it needs structurally to function in the modern era?”

The agency and its staff of about 400 do an incredible job for very little money, Roth said. Often, some of the best employees are hired by the industries they regulate, he said.

Roth was a commissioner, serving from 2007 to 2010. He said he assumes the bill was brought with the best intentions to help the agency and the state get it right.

However, the proposed task force should be broader, he said.

“I don’t see one member of the task force without a conflict to the industry,” Roth said. “It’s important that Oklahomans not employed by these companies should have a voice.”

Read the full article at the Journal Record.

Roth: Storm clouds and a silver lining?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on March 13, 2017.


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

Storm clouds and a silver lining?

As Oklahoma’s oil and gas industry looks ahead, cautiously optimistic into 2017 and beyond, it seems there are reasons to be hopeful and still causes for worry. That dual reality has played out already in 2017 and especially within the past week.

As the Oklahoma state budget indicates, the oil and gas patch has been going through a very rough patch for the past few years. And as a country, American oil and gas production has remained steady, albeit more productive than the market can bear. Hence the oversupply and low-price reality exacerbating the industry these past few years.

Where have we been since the high of $110 per barrel of oil in 2014? Well it’s been a rocky road for sure. And 2016 can perfectly illustrate that bumpy journey.

At the beginning of 2016, the U.S. benchmark saw a nearly 13-year low with prices per barrel of oil falling below $27. Yes, that’s less than a quarter of the 2014 price high and no wonder many companies got slammed hard, including bankruptcies and reorganizations to survive. Then a rebound began, due in large part to optimism around production control announced by OPEC and its collaborators, as the rebound more than doubled the price of crude. 2016 saw the U.S. benchmark futures achieve the biggest annual gain in seven years, including an 8-percent gain in December alone.

And as the industry rolled into 2017, hope continued to build that the low commodity price storm clouds may be dissipating. Rig activity is building, some companies are announcing expanded capital programs and cautious smiles are beginning to reappear.

Volatility seemed to be leveling out, as oil traded within a $4 range over the past two months, creating the smoothest period for oil prices since 2014. But then a thunderhead popped up quickly and rained some doubt again for the industry, and prices tumbled for oil and for publicly traded companies directly involved.

Last Wednesday and Thursday saw oil futures fall over 7 percent in two days, sliding back under $50 per barrel as worries continue. Storage data revealed near record highs and suggestions that a rush to produce could further flood the market and continue downward pressure on prices. And an industry desperately in need of balance is being reminded that most factors impacting their industry are beyond their control.

What is more likely within the industry’s control, the cost of doing business, may be the silver lining in all of this stormy experience. Here’s what I mean.

Oklahoma producers have become all too familiar with feast and famine over the past decades. And the smartest amongst us seek out cost efficiencies through the drill bit at times such as these. Through deployed innovation and cost savings implemented structurally in the production processes, many Oklahoma producers are learning to create more with less. And as the industry picks up, with labor demands tightening, land lease prices increasing and energy service companies in growing demand, the exploration and production companies that have implemented price discipline in their own internal practices should weather any coming volatility. It is estimated that about one-third of a well’s costs are on the drilling side, with the remaining two-thirds being for the well’s completion costs. Oklahoma’s companies and Oklahoma’s SCOOP, STACK and the NW STACK plays are going to be laboratories for whether innovative producers can not only compete, but succeed in the new normal of external price pressures.

All of Oklahoma needs them to succeed.

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.

Doing business in multiple states

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on March 9, 2017.


Kendra M. Norman represents individuals and businesses in a broad range of transactional matters.

By Phillips Murrah Attorney Kendra M. Norman

One of the first considerations in forming a business entity is where to organize or incorporate. However, there is another important and frequently overlooked inquiry, which is where else to qualify that entity to do business.

If a business entity functions outside of the state in which it was formed, it may need to qualify to do business in that foreign state. Each state has different requirements for what constitutes doing business for this purpose. For many states, certain activities within that state, without more, do not require qualification. These activities usually include maintaining bank accounts, carrying on activities concerning internal corporate affairs, acquiring indebtedness, owning real or personal property, or conducting isolated transactions completed in 30 days.

Thus, the threshold for requiring businesses to qualify is relatively high. While these acts may not constitute doing business for qualification purposes by themselves, the general standard for qualification is based on the cumulative effect of all of the activities performed in the state in question. Generally, to be required to qualify, the foreign entity must transact a substantial part of its ordinary business within the state. To constitute ordinary business, activities must be indispensable to the business rather than simply incidental.

Failure to qualify can result in many penalties. Entities can be barred from access to the courts in states where they are unqualified, including Oklahoma. This can mean they are unable to enforce contracts entered into in these states. Unqualified entities, and individuals acting on their behalf, can be fined by foreign states in which they do business, including Oklahoma, where there is a statutory provision imposing fines. These fines can include backward-looking fees and franchise taxes to the state for the period in which the entity has operated while unqualified in the state, as well as a fine per transaction while unqualified.

The best course of action when faced with these issues is to determine where a business entity will transact substantial business and examine the specific statutory and case law of that state to determine if qualification is required.

Practitioners should keep in mind that what constitutes doing business for qualification purposes may not be the same threshold for what constitutes doing business for taxation and service of process purposes in some states, including Oklahoma.

Kendra M. Norman is an attorney at Phillips Murrah, where she represents individuals and businesses in a broad range of transactional matters.

Roth: Right-wing social engineering?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on February 27, 2017.


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

Right-wing social engineering?

Not long ago American conservatives professed free-market solutions and an economy without job-killing regulations that pick winners and losers, yet those principles seem to be a thing of the past when it comes to clean energy these days.

To be fair, the American economy does not really meet the actual definition of free market, which according to Dictionary.com is “An economic system in which prices and wages are determined by unrestricted competition between businesses, without government regulation or fear of monopolies.”

Also, perhaps because much of America’s electricity sector is highly regulated, either as a monopoly or something very close to it, but whatever the reason, 2017 is seeing an unprecedented level of activity attempting to interfere with energy markets.

All across America conservative lawmakers have been introducing a number of bills and legislative efforts to block, tax, halt, hobble and hurt the economics of and markets for clean energy. Here is just a sampling from a few states in 2017:

Wyoming – Nine legislators (two senators and seven representatives, all Republicans, mostly from coal-producing counties) have introduced a new measure that would forbid Wyoming utilities from acquiring any electricity from wind or solar energy projects by 2019, regardless of the fact that those resources are becoming cheaper than traditional fossil fuel. The bill would levy steep fines on utilities if they continue to provide “non-eligible clean energy” for their electric service.

By the way, Wyoming generates and consumes mostly coal-powered electricity, which accounted for roughly 90 percent of its electricity in 2016.

North Dakota – Republican Sen. Dwight Cook introduced a measure (Senate Bill 2314) to impose a moratorium on wind energy development through 2019 and he used a procedural maneuver called a hog-house amendment that erases an existing bill and rewrites it so that the public can’t comment on the proposal because hearings already have been held on the original measure. And even though this tactic may stink to high heaven, a North Dakota Senate committee approved it this week in a 4-3 vote. North Dakota is a coal state and is home to seven coal plants, where it exports almost 70 percent of its total electricity generation to neighboring states.

Oklahoma – Republican legislators have introduced more than 60 bills about wind energy and the governor’s State of the State budget address included a proposed new tax on wind energy, which would be the highest in the nation at $5 per megawatt-hour of electricity on every customer’s utility bill. Granted, Oklahoma has a severe budget dilemma, but this electricity tax idea noticeably does not include any similar tax provisions for out-of-state coal or in-state natural gas, which are still the largest parts of Oklahoma’s electricity portfolio.

So what is going on? Why have conservative policymakers seemingly abandoned their core economic free-market philosophies to push regulations designed to put the hurt on clean energy?

It’s especially odd when you read the 2016 GOP platform on regulation, which states:

Regulation: The Quiet Tyranny – Over-regulation is the quiet tyranny of the “Nanny State.” It hamstrings American businesses and hobbles economic growth.

A possible answer? Coal energy is on the ropes and its sympathizers know that desperate times may call for desperate measures. Nevertheless, no matter how many conservative nannies pop up across the country to push to save coal, the power of economics, like water, will flow to their logical outcome over time.

And for us Oklahomans, that is actually a good thing, because clean-burning, (overly) abundant (and cheap) domestic natural gas is the greatest, single market effect pushing coal to the ash heap on energy history. It will not be immediate, so please do not celebrate or panic, but it is real and it is here to stay. Free-market or not.

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: Florida taxes oranges?

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on February 13, 2017.


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

Florida taxes oranges?

If you were to read a headline that the state of Florida was looking to add a 25-percent tax to the price of oranges, you might scratch your head and wonder why they would intentionally hurt one of their largest industries. In Florida, agriculture is second only to tourism.

Such was my reaction when Oklahoma state leaders unveiled an idea this past week to tax their way out of a recurring budget shortfall dilemma by proposing a new tax on Oklahoma’s wind energy, thereby raising the cost of every single Oklahoman’s monthly utility bill. Wind energy accounted for roughly 20 percent of the state’s total electricity last year, so you can do the math about an increase to 20 percent of your electricity fuel bill.

The proposed $5 per megawatt-hour of wind power generation amounts to an approximate 25-percent increase to the cost of wind power, which is now being developed and sold in Oklahoma at around $20 per Mwh.

It’s also interesting to note that only one other state in America has a tax on wind production and Wyoming, where coal is king, has a $1-per-megawatt-hour tax, a whole one-fifth of Oklahoma’s proposed new tax rate.

Oklahoma has enormous energy blessings in the form of natural gas, wind and oil. Recently, the U.S. Energy Information Administration updated its state rankings and has Oklahoma third in the country in natural gas production and fifth in crude oil production. Oklahoma is now also ranked third in wind power with 6,645 megawatts of wind capacity as of the end of 2016, just surpassing California and now trailing only Texas (20,321 MWs) and Iowa (6,917 MWs).

It’s true what Oscar Hammerstein wrote about Oklahoma in our fabled state song, “…where the wind comes sweeping down the plain, and the wavin’ wheat can sure smell sweet,” yet we probably aren’t “doin’ fine” if we are so desperate to tax one of our leading industries, 25 percent to just make budget.

There’s a better way, if you think there is a necessity to push new taxes on electricity generation. There’s an Oklahoma way. Develop a tax approach that makes pollution more expensive, not Oklahoma’s clean energy. And this is an approach being pitched nationally by a large group of prominent, conservative Republicans, who believe it’s time to tax carbon, a real villain, rather than American energy itself.

Former Secretaries of State James Baker and George Schultz, former Treasury Secretary Hank Paulson, business leaders like Rob Walton, former chairman on Wal-Mart, and many others were in D.C. this month meeting with Vice President Mike Pence and other leaders to detail their blueprint for a $40-per-metric-ton tax on carbon dioxide pollution, with the price escalating over time. And yet the policy would actually protect low-income Americans from higher energy bills, unlike Oklahoma’s proposed wind electricity tax. Under Baker’s proposal, the projected $200 billion to $300 billion in annual revenue from the carbon tax would be distributed to households, by quarterly checks, from the Social Security Administration. It is estimated that families of four would receive about $2,000 a year in payments to them, not from them.

And through it all America would be transitioning, even more quickly to a cleaner energy economy and leading the world.

Oklahoma could lead also by a similar approach, rather than hobbling one of its leading industries, with large investments in the state, by targeting wind. We should target negative aspects of human behavior; such is the justification for increasing cigarette taxes, right?

An Oklahoma pollution tax would make winners out of our state’s cleaner-burning natural gas and wind industries, would drive greater production and demand for both and would in turn reduce health care costs to families and businesses by reducing harmful pollutants in our air. We would send less hard-earned Oklahoma money to Wyoming for imported coal, where we are buying their schoolbooks instead of our own. We would in turn incentivize Oklahoma’s energy future by creating a growing market, not a shrinking one.

“Florida taxes fattening fried potatoes” makes more sense to me than “Oklahoma taxes its own wind.”

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: Solar and its erosion of socialism

By Jim Roth, Director and Chair of the Firm’s Clean Energy Practice Group. This column was originally published in The Journal Record on November 28, 2016.


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

Solar and its erosion of socialism

Since long before the Affordable Care Act, Vermont Sen. Bernie Sanders and Social Security, Americans have relied upon socialism to safeguard their lives, provide vital services like water, electricity and infrastructure and to connect one another in a seemingly unbreakable co-dependence. The term and concept of socialism can be a politically charged (often negative) term in today’s culture, but the reality is it’s been the American way of life, in many ways, for many years.

But the greatest threat, or opportunity depending on your point of view, to disrupt some aspects of socialized American life is not whether Speaker Paul Ryan’s past efforts to privatize portions of Social Security have a new life or whether the incoming president will repeal “Obamacare,” it’s whether fast-paced solar energy technologies may give Americans the chance to “live free” so-to-speak, or at least more free in the energy future.

About five years ago, to a national energy audience, I once heard the late Aubrey McClendon state “we have more energy hitting the surface of the Earth every day from the sun than this planet may ever need, we simply don’t know yet how to harness and use it.”

He of course was right and the last five years have seen incredible growth in human ability to harness and use solar energy. And it’s about to disrupt some socialized ways of life, for the better.

Imagine if you will, you drive to and from work in your solar-powered car, park in your home’s garage with solar-technology shingles repowering it and your home, with the help of battery technology that has captured the sun for 24/7 benefit and value to your family. And what are the effects to our socialized systems? Well, the jury is still out on this question but it’s fair to believe that change is coming and that’s a good thing. Yet some of the change won’t be easy as it will involve recalculating and perhaps redesigning cost structures for things like the socialized electric grid and America’s road systems.

Imagine two case studies:

  • More Americans can rely upon a solar-powered home and live free of the local utility. If that trend moves quicker than utilities can divest from older, expensive debt like coal plants and built-out transmission and distribution grids, will the non-solar customers need to pay more for their older forms of socialized electricity? And if that’s the case, then the cost-competitiveness of stand-alone solar energy, compared to escalating utility costs, creates price signals that will motivate even more customers to switch to their own solar systems and hasten the cost increase in the incumbent utility rates.
  • As more Americans drive electric-powered cars right past gas stations without the need to fuel up, what happens to the funding of local roads and bridges that rely upon gas and diesel fuel tax collections to pay, in part, for the roadway system?

More cars may be relying upon their own energy generation, while roads receive less funding as less gasoline and diesel is consumed. And although Americans also pay for roads through public bonds, property taxes and general revenue, some may worry about the reduction of gas taxes into that funding pie.

Early “societal cost analyses” actually suggest that electric-powered cars are cheaper to society, on an all-in basis, because of reduced costs to health and environment compared to combustion engines. But the trend will undoubtedly impact socialized road funding as we know it today and will be something future public policy will need to adjust toward.

It’s rich irony to realize that the sun, something all humans on Earth have access to in common, may be the new way that we all live more separate and independent lives from each other.

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: 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.

Journal Record names three attorneys Woman of the Year

woty-web-logo-2016The Journal Record will honor Phillips Murrah directors Sally A. Hasenfratz, Dawn M. Rahme, and attorney Mary Holloway Richard as those named on the 2016 Fifty Making A Difference list.

Judge Jane P. Wiseman will be the keynote speaker at the 2016 Journal Record Woman of the Year gala set for Nov. 2 at the National Cowboy & Western Heritage Museum.

The Fifty Making A Difference list spotlights female business and community leaders, and honorees are chosen from nominations received across the state.

For more information, visit the Journal Record’s website.