Kelley Drye & Warren LLP

Energy Litigation

Overview
Experience
People
Honors

Kelley Drye’s approach to litigation is lean and efficient and is always focused on our client’s goals. Our lawyers bring both in-depth industry knowledge and top-notch trial skills to the task.

Our litigation attorneys have successfully resolved some of the most high-profile and complex disputes in the energy sector. Our energy litigation team includes trial lawyers experienced with a broad range of complex commercial, tort and regulatory disputes arising out of the exploration, production, distribution, marketing and trading of all forms of energy, including electricity, oil, gas, nuclear and coal, as well as wind, solar, biofuels, ethanol and hydropower. Our energy litigators also handle high-profile challenges to federal regulations and enforcement actions before federal and state regulators.

Our attorneys represent clients before state and federal courts throughout the country, in domestic and international arbitrations, and before state and federal regulatory agencies. Our in-depth understanding of the energy and natural resources industry enables us to provide comprehensive, cost-efficient advice to our clients in connection with the full range of litigation challenges that confront them, including complex commercial disputes, oil and gas royalty and operations disputes, lease disputes, price manipulation investigations and class actions, personal injury tort claims, environmental and real property damage claims, securities claims and criminal investigations.

Complex Commercial Litigation

Our commercial litigation representations include matters of extraordinary complexity, such as nationwide class actions, parallel civil and administrative proceedings, and multidistrict and multistate litigation. We have wide-ranging experience in diverse business-to-business and consumer-to-business disputes such as breach of contract, business torts, antitrust and price manipulation claims, false advertising and unfair competition, bankruptcy and real estate-related claims.

Toxic Tort/Contamination

Combining attorneys skilled in products liability, class actions, OSHA and environmental litigation, we bring a unique mix of talents in defending a toxic tort claim. We have a proven track record of successfully defending both mass tort and class action litigation in both state and federal courts and are experienced in handling multiple related class actions, including working efficiently with co-counsel to defend claims against multiple defendants where mutual interests have been identified.

Regulatory and Administrative Actions

Energy companies facing an increasingly complex regulatory landscape rely on our extensive experience representing numerous heavily regulated industries through all aspects of the federal rulemaking process, including, where necessary, litigation. We harness the resources of our legal, government relations, public relations and economic teams to develop effective cross-cutting responses to proposed regulations. Among other energy-related statutes, we have litigated on many occasions under the Federal Power Act, the Clean Water Act, the Endangered Species Act and the National Environmental Policy Act. We have successfully defended oil refinery clients in EPA enforcement actions alleging violations of NSPS, NESHAP and New Source Review regulations.

Enforcement Actions

Our attorneys represent and advise utilities, oil and gas companies, power marketers and market participants on a multitude of issues related to regulatory statutes, rules, regulations and orders. We represent energy clients in multiple courts and administrative agencies including the Commodity Futures Trading Commission (CFTC), the Securities and Exchange Commission (SEC), the Federal Energy Regulatory Commission (FERC), the Nuclear Regulatory Commission (NRC) and the U.S. Department of Justice (DOJ) in enforcement matters involving alleged violations of those agencies rules and regulations.. We also help our clients create and implement compliance programs, and work with them to spot and eliminate potential issues.

Landowner/Leaseholder and Operating Disputes

Lease and operating agreements are often the source of a variety of legal disputes between oil companies and landowners. Kelley Drye attorneys have represented both landowners and leaseholders in a wide range of disputes involving oil field operations, royalty payments, cost deductions, title disputes, trespass and property damages, and product marketing disputes.

Complex Commercial Litigation

Represented an independent power producer in multiple state and federal class actions alleging manipulation of wholesale power markets.
Represented gas marketer in multiple state and federal class actions alleging claims of collusion to manipulate natural gas prices.
Represented major refiner in a series of lawsuits brought by independent dealers concerning disputes over dealer supply agreements.
Represented a wholesale gas marketer in defense of multiple class actions alleging conspiracy to manipulate natural gas futures contracts.
Represented producer in breach of contract action involving propane gas contracts.
Represented producer in dispute over fuel oil deliveries.
Represented major integrated oil and gas company in dispute with the purchaser of former service station property concerning the underground storage tanks.
Represented an independent refiner in a dispute over pipeline rates, contract obligations and FERC’s jurisdiction to hear the complaint.
Represented an oil and gas producer in a multiparty dispute over production operations and lease interpretation.
Represented an independent wind generator in a dispute over contract for the sale of renewable energy credits.
Represented an independent power producer in AAA arbitration of dispute with off-taker over terms of the parties’ tolling agreement.
Represented an independent power producer in AAA arbitration of dispute over power and transmission contracts.
Represented a power producer in defense of breach of contract and fraud claims in connection with nuclear plant construction asserted by the plant’s minority owner.
Represented an integrated major production and refining company in multiple disputes over real property restrictive covenants limiting uses of former gas processing and petroleum storage sites.
Represented an independent refiner in a dispute over interpretation of crude oil contract after supply disruptions.
Represented a drilling rig owner in a dispute with a joint venturer over construction of new drilling rigs for Middle East deployment.
Represented an offshore production platform owner in a dispute with fabricator of accommodation quarters for a new production platform.
Represented international oil and gas reserves and investment consultants in ICC arbitration of contract disputes with Middle East state-owned company.
Represented a natural gas producer in a dispute over the interpretation of a gathering and processing contract.
Represented a pipeline construction contractor in a dispute over costs of constructing a Middle East pipeline.
Represented an oil and gas producer in a dispute over responsibility for accident during well workover operations.
Represented an integrated major oil and gas company in defense of a challenge to real property deed restrictions limiting use of a former producing gas field.
Represented a major financial institution in connection with the Enron Chapter 11 bankruptcy proceeding and a surety litigation matter relating to oil and gas prepay transactions.

Toxic Tort/Contamination

Lead counsel representing integrated major production and refining company in a putative federal court class action and 18 state court cases brought by over 600 residents of Greenpoint, Brooklyn, alleging in excess of $1 billion in property damages and personal injuries due to a large oil spill.
Representing refiner in a series of putative class actions and individual cases arising out of an explosion at a fuel terminal.
Representing railroad in claim for property damage arising out of spill of diesel oil.
Represented production and refining company in lawsuit over responsibility to remediate millions of gallons of petroleum products near the Newtown Creek in Brooklyn, New York.
Represented integrated major production and refining company in negotiations with the New York Department of Environmental Conservation and Attorney General concerning the remediation of petroleum contamination.
Represented a major production and refining company in claims by Cargill, Inc. concerning responsibility for petroleum contamination at the site of a former bulk storage facility in Providence, Rhode Island.
Representing a global independent energy company in a lawsuit alleging that a spill of gasoline from a service station migrated beneath homes in a residential area.
Obtained summary judgment dismissing New York Navigation Law claims against an energy company in a case arising from a large spill of home heating oil at a Brooklyn apartment complex.
Representing a global independent energy company in a case alleging property damage due to a spill of fuel oil from underground storage tanks.
Represented an independent oil company in a lawsuit brought under the Navigation Law for alleged contamination of plaintiff’s property.
Obtained dismissal of claim seeking refinery to remediate a former service station property.
Represented one of the largest producers and marketers of petroleum products in a claim brought for alleged fuel spill at a former service station.
Represented former subsidiary of an independent energy company in a case seeking contribution for MTBE allegedly impacting municipal water wells.
Represented electric utility in defense of alleged negligent closing of contaminated metal recycling facility.

Regulatory and Administrative Actions

Challenging U.S. Federal Office of Management and Budget’s Social Cost of Carbon Estimates, on behalf of a coalition of 18 national oil and gas trade associations.
Successfully challenged a National Marine Fisheries Service (NMFS) proposal to list sperm whale in the Gulf of Mexico as a distinct population segment.
Challenging a proposal rule by the Occupational Health and Safety Administration (OSHA) to lower the permissible exposure limit for silica, filed on behalf of the oil and gas industry.
Challenging the U.S. Fish and Wildlife Service’s decision to list the lesser prairie chicken as “threatened” under the Endangered Species Act.
Handled and resolved OSHA investigation surrounding fatality investigation of natural gas well fracking operations.
Challenged EPA’s authority to regulate GHGs under the Clean Air Act.
Successfully challenged on behalf of the oil and gas industry one of the largest critical habitat designations ever issued under the Endangered Species Act.
Led legal challenge of mandatory reporting rule for GHG emissions from upstream oil and gas operations.
Led challenge of BLM’s failure to issue oil and gas leases under the Mineral Leasing Act.
Led successful intervention in proceeding involving oil and gas lease sale that was challenged under NEPA for failure to adequately consider GHG impacts.
Challenged, on behalf of the oil and gas industry, numerous FWS and NMFS listing proposals and decisions that adversely impact oil and gas operations (including listing proposals for the sperm whale, 66 species of coral, the lesser prairie chicken, the dusky shark and the dunes sagebrush lizard).
Successfully advocated for amendments to the Energy Independence Security Act pertaining to renewable fuels and related EPA fuel waivers.
Represented a coalition of refineries, chemical companies and electric generators in a challenge to the state implementation plan for compliance with the Clean Air Act.
Electric utility: prudence review of reasonableness of nuclear power plant construction costs.

Enforcement Actions

Represented major integrated oil and gas company in administrative proceedings commenced by the New York Department of Environmental Conservation for alleged violations in connection with repairs to fuel storage tanks.
Represented energy trading executives during CFTC and FERC investigations.
Represented a refiner during CFTC investigation.
Represented an independent power producer and gas marketer against claims of collusion and manipulation of wholesale power and gas markets before multiple courts and administrative agencies.
Represented an independent power producer against criminal indictment under the Commodity Exchange Act for alleged manipulation of electricity prices.
Represented retail electricity providers in investigations and state regulatory enforcement actions.
Represented a wholesale gas marketer in a DOJ investigation of alleged false reporting of natural gas prices in violation of the Commodity Exchange Act.
Represented an independent power producer in internal investigations and representation before the SEC and DOJ in connection with financial reporting of energy trades.
Represented individual clients in an investigation by a U.S. Attorney and the NRC into alleged false statements regarding safety analysis for a nuclear plant.

Landowner/Leaseholder and Operating Disputes

Advised a gas producer regarding interpretation of joint operating agreement and preparation of a $1.3 billion drilling program proposal.
Represented an oil and gas producer in ICC arbitration with a Middle East host government concerning an extension to a production sharing agreement, and defense of allegations of reservoir mismanagement and environmental damages.
Represented a landowner in a dispute over ownership of minerals and royalty production payments.
Represented an oil and gas producer in defense of a challenge to unit designation and alleged superior title to minerals.
Represented an oil and gas producer in a dispute over a leasehold assignment and development agreement.
Represented a royalty owner in the negotiation of division order and dispute over suspended royalty payments.
Represented natural gas producers in defense of a class action brought by royalty owners alleging failure to distribute severance tax refunds.
Represented oil and gas producers in defense of federal False Claims Act lawsuits alleging underpayment of royalties on federal leases.
Represented oil and gas producers in defense of class action lawsuits by public and private royalty owners alleging underpayment of royalties.
Represented oil and gas producer in defense of suit for alleged damages to country road.
Represented oil and gas producer in suit to recover damages from service provider for negligent operations of well workover.

Overview

Kelley Drye’s approach to litigation is lean and efficient and is always focused on our client’s goals. Our lawyers bring both in-depth industry knowledge and top-notch trial skills to the task.

Complex Commercial Litigation

Toxic Tort/Contamination

Regulatory and Administrative Actions

Enforcement Actions

Landowner/Leaseholder and Operating Disputes

Experience

Complex Commercial Litigation

Represented an independent power producer in multiple state and federal class actions alleging manipulation of wholesale power markets.
Represented gas marketer in multiple state and federal class actions alleging claims of collusion to manipulate natural gas prices.
Represented major refiner in a series of lawsuits brought by independent dealers concerning disputes over dealer supply agreements.
Represented a wholesale gas marketer in defense of multiple class actions alleging conspiracy to manipulate natural gas futures contracts.
Represented producer in breach of contract action involving propane gas contracts.
Represented producer in dispute over fuel oil deliveries.
Represented major integrated oil and gas company in dispute with the purchaser of former service station property concerning the underground storage tanks.
Represented an independent refiner in a dispute over pipeline rates, contract obligations and FERC’s jurisdiction to hear the complaint.
Represented an oil and gas producer in a multiparty dispute over production operations and lease interpretation.
Represented an independent wind generator in a dispute over contract for the sale of renewable energy credits.
Represented an independent power producer in AAA arbitration of dispute with off-taker over terms of the parties’ tolling agreement.
Represented an independent power producer in AAA arbitration of dispute over power and transmission contracts.
Represented a power producer in defense of breach of contract and fraud claims in connection with nuclear plant construction asserted by the plant’s minority owner.
Represented an integrated major production and refining company in multiple disputes over real property restrictive covenants limiting uses of former gas processing and petroleum storage sites.
Represented an independent refiner in a dispute over interpretation of crude oil contract after supply disruptions.
Represented a drilling rig owner in a dispute with a joint venturer over construction of new drilling rigs for Middle East deployment.
Represented an offshore production platform owner in a dispute with fabricator of accommodation quarters for a new production platform.
Represented international oil and gas reserves and investment consultants in ICC arbitration of contract disputes with Middle East state-owned company.
Represented a natural gas producer in a dispute over the interpretation of a gathering and processing contract.
Represented a pipeline construction contractor in a dispute over costs of constructing a Middle East pipeline.
Represented an oil and gas producer in a dispute over responsibility for accident during well workover operations.
Represented an integrated major oil and gas company in defense of a challenge to real property deed restrictions limiting use of a former producing gas field.
Represented a major financial institution in connection with the Enron Chapter 11 bankruptcy proceeding and a surety litigation matter relating to oil and gas prepay transactions.

Toxic Tort/Contamination

Lead counsel representing integrated major production and refining company in a putative federal court class action and 18 state court cases brought by over 600 residents of Greenpoint, Brooklyn, alleging in excess of $1 billion in property damages and personal injuries due to a large oil spill.
Representing refiner in a series of putative class actions and individual cases arising out of an explosion at a fuel terminal.
Representing railroad in claim for property damage arising out of spill of diesel oil.
Represented production and refining company in lawsuit over responsibility to remediate millions of gallons of petroleum products near the Newtown Creek in Brooklyn, New York.
Represented integrated major production and refining company in negotiations with the New York Department of Environmental Conservation and Attorney General concerning the remediation of petroleum contamination.
Represented a major production and refining company in claims by Cargill, Inc. concerning responsibility for petroleum contamination at the site of a former bulk storage facility in Providence, Rhode Island.
Representing a global independent energy company in a lawsuit alleging that a spill of gasoline from a service station migrated beneath homes in a residential area.
Obtained summary judgment dismissing New York Navigation Law claims against an energy company in a case arising from a large spill of home heating oil at a Brooklyn apartment complex.
Representing a global independent energy company in a case alleging property damage due to a spill of fuel oil from underground storage tanks.
Represented an independent oil company in a lawsuit brought under the Navigation Law for alleged contamination of plaintiff’s property.
Obtained dismissal of claim seeking refinery to remediate a former service station property.
Represented one of the largest producers and marketers of petroleum products in a claim brought for alleged fuel spill at a former service station.
Represented former subsidiary of an independent energy company in a case seeking contribution for MTBE allegedly impacting municipal water wells.
Represented electric utility in defense of alleged negligent closing of contaminated metal recycling facility.

Regulatory and Administrative Actions

Challenging U.S. Federal Office of Management and Budget’s Social Cost of Carbon Estimates, on behalf of a coalition of 18 national oil and gas trade associations.
Successfully challenged a National Marine Fisheries Service (NMFS) proposal to list sperm whale in the Gulf of Mexico as a distinct population segment.
Challenging a proposal rule by the Occupational Health and Safety Administration (OSHA) to lower the permissible exposure limit for silica, filed on behalf of the oil and gas industry.
Challenging the U.S. Fish and Wildlife Service’s decision to list the lesser prairie chicken as “threatened” under the Endangered Species Act.
Handled and resolved OSHA investigation surrounding fatality investigation of natural gas well fracking operations.
Challenged EPA’s authority to regulate GHGs under the Clean Air Act.
Successfully challenged on behalf of the oil and gas industry one of the largest critical habitat designations ever issued under the Endangered Species Act.
Led legal challenge of mandatory reporting rule for GHG emissions from upstream oil and gas operations.
Led challenge of BLM’s failure to issue oil and gas leases under the Mineral Leasing Act.
Led successful intervention in proceeding involving oil and gas lease sale that was challenged under NEPA for failure to adequately consider GHG impacts.
Challenged, on behalf of the oil and gas industry, numerous FWS and NMFS listing proposals and decisions that adversely impact oil and gas operations (including listing proposals for the sperm whale, 66 species of coral, the lesser prairie chicken, the dusky shark and the dunes sagebrush lizard).
Successfully advocated for amendments to the Energy Independence Security Act pertaining to renewable fuels and related EPA fuel waivers.
Represented a coalition of refineries, chemical companies and electric generators in a challenge to the state implementation plan for compliance with the Clean Air Act.
Electric utility: prudence review of reasonableness of nuclear power plant construction costs.

Enforcement Actions

Represented major integrated oil and gas company in administrative proceedings commenced by the New York Department of Environmental Conservation for alleged violations in connection with repairs to fuel storage tanks.
Represented energy trading executives during CFTC and FERC investigations.
Represented a refiner during CFTC investigation.
Represented an independent power producer and gas marketer against claims of collusion and manipulation of wholesale power and gas markets before multiple courts and administrative agencies.
Represented an independent power producer against criminal indictment under the Commodity Exchange Act for alleged manipulation of electricity prices.
Represented retail electricity providers in investigations and state regulatory enforcement actions.
Represented a wholesale gas marketer in a DOJ investigation of alleged false reporting of natural gas prices in violation of the Commodity Exchange Act.
Represented an independent power producer in internal investigations and representation before the SEC and DOJ in connection with financial reporting of energy trades.
Represented individual clients in an investigation by a U.S. Attorney and the NRC into alleged false statements regarding safety analysis for a nuclear plant.

Landowner/Leaseholder and Operating Disputes

Advised a gas producer regarding interpretation of joint operating agreement and preparation of a $1.3 billion drilling program proposal.
Represented an oil and gas producer in ICC arbitration with a Middle East host government concerning an extension to a production sharing agreement, and defense of allegations of reservoir mismanagement and environmental damages.
Represented a landowner in a dispute over ownership of minerals and royalty production payments.
Represented an oil and gas producer in defense of a challenge to unit designation and alleged superior title to minerals.
Represented an oil and gas producer in a dispute over a leasehold assignment and development agreement.
Represented a royalty owner in the negotiation of division order and dispute over suspended royalty payments.
Represented natural gas producers in defense of a class action brought by royalty owners alleging failure to distribute severance tax refunds.
Represented oil and gas producers in defense of federal False Claims Act lawsuits alleging underpayment of royalties on federal leases.
Represented oil and gas producers in defense of class action lawsuits by public and private royalty owners alleging underpayment of royalties.
Represented oil and gas producer in defense of suit for alleged damages to country road.
Represented oil and gas producer in suit to recover damages from service provider for negligent operations of well workover.

People

Honors

WAYNE J. D'ANGELO

Partner

Email (202) 342-8525(202) 342-8525

Wayne routinely works with clients on regulatory, permitting, compliance, and enforcement matters arising under the Clean Air Act (CAA), Clean Water Act (CWA), Endangered Species Act (ESA), Nationa...

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JONATHAN K. COOPERMAN

Partner

Email (212) 808-7534(212) 808-7534

Jon Cooperman is an experienced trial attorney. His practice focuses on all aspects of civil litigation, including commercial litigation and contract disputes; environmental law claims pertai...

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KENNETH O. CORLEY

Partner

Email (713) 355-5006(713) 355-5006

Kenneth Corley is managing partner of the firm’s Houston office. His practice is focused on litigation and trial advocacy, with an emphasis on environmental and business disputes in sta...

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JOHN D.S. GILMOUR

Partner

Email (713) 355-5005(713) 355-5005

John Gilmour co-chairs the Environmental Litigation section. His practice encompasses significant commercial, tort and environmental matters from coast to coast, including some of the largest...

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WILLIAM J. JACKSON

Partner

Email (713) 355-5050(713) 355-5050

Bill Jackson is co-chair of the firm’s national Environmental Law practice group and a member of the firm’s Executive Committee. Bill has one of the most sophisticated and success...

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WILLIAM C. PETIT

Partner

Email (713) 355-5023(713) 355-5023

Will Petit represents clients in the litigation and trial of environmental, commercial and general civil matters. He also provides practical, cost-effective legal advice on general business a...

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JOHN L. WITTENBORN

Of Counsel

Email (202) 342-8514(202) 342-8514

John Wittenborn focuses his practice on environmental and energy regulatory and litigation matters at the federal and state levels, and throughout the United States. John has more than three ...

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MELISSA E. BYROADE

Special Counsel

Email (202) 342-8823(202) 342-8823

Melissa Byroade represents domestic and international clients in litigation and international arbitration, with a focus on environmental litigation. A substantial portion of Melissa’s pr...

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LAUREN H. SHAH

Senior Associate

Email (713) 355-5002(713) 355-5002

Lauren Shah practices environmental, energy, and commercial law for a wide variety of clients, across the country. Lauren is well versed in federal, state, and local environmental laws. Laure...

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July 31, 2017

Benchmark Litigation Recognizes Partner Will Petit on their Under 40 Hotlist

April 15, 2014

Law360 Profiles Special Counsel Wayne J. D'Angelo As One of Its 2014 'Rising Stars'

March 11, 2013

Kelley Drye Hits Trifecta With Three Lawyers Named "Rising Stars" by Law360