July 15, 2026 | By: Tim Sowecke and Tyler A. Self

The Department of Justice has renamed its Environment and Natural Resources Division (ENRD) the Energy and Natural Resources Division. Same acronym. Different signal. DOJ announced the change on June 29, 2026, after Principal Deputy Assistant Attorney General Adam Gustafson previewed the move in a Wall Street Journal op-ed titled “New Name, New Mission at the Justice Department.” DOJ framed the change around a blunt proposition: “Energy security is national security.”

The rename is not just a branding exercise. It aligns DOJ’s environmental and natural resources litigation shop with the Administration’s broader energy program: domestic production, grid reliability, critical minerals, expedited permitting, defense of federal energy actions, and affirmative challenges to state policies DOJ views as anti-energy or federally preempted. Executive Order 14154, “Unleashing American Energy,” directs agencies to identify and address actions that burden domestic energy development and instructs the Attorney General to consider litigation positions tied to those policy changes.

Why the Name Change Matters

ENRD has always handled more than traditional environmental enforcement. It defends federal permitting decisions, public lands decisions, energy infrastructure approvals, tribal and natural resource matters, and agency action across the federal environmental docket. DOJ’s announcement places that work squarely within the Administration’s broader energy-security agenda.

That is the point for regulated industry. DOJ is signaling that infrastructure, production, and reliability are not peripheral to environmental litigation—they are central to it. In practical terms, that means DOJ will be staffed and directed toward lawyers who understand the operational side of regulated facilities: pipelines, power generation, production, transmission, refining, waste management, permitting timelines, and the constant work of fitting square operations into the round hole of layered federal and state regulation.

But that does not mean environmental enforcement disappears. DOJ expressly stated that ENRD’s environmental enforcement work will continue. The better read is narrower and more useful: facilities should expect an enforcement philosophy that gives more weight to compliance, correction, operational reality, and energy reliability, while still reserving penalties and criminal enforcement for serious, repeated, and fraudulent conduct.

Compliance First Overlay

The DOJ rebrand also fits with EPA’s recent “compliance first” orientation vis-à-vis its “Reinforcing a ‘Compliance First’ Orientation for Compliance Assurance and Civil Enforcement Activities.” For industry, “compliance first” should not be read as “enforcement last.” EPA and DOJ are signaling a preference for correcting violations efficiently, achieving timely compliance, and resolving matters without unnecessary punitive drag where the facility is acting in good faith. Companies still need to monitor, maintain, and update their permits, monitoring, reporting, corrective action records, and audit results—while communicating all of this to regulators in a disciplined, documented manner.

But these two actions, among others, signal a tone shift within the agencies. A compliance first program should favor getting facilities into compliance and keeping them operating lawfully, rather than allowing disputes to become endless penalty exercises detached from environmental outcome—and reality. The best regulated entities will use that shift by moving quickly when issues arise.

National Security Is Now Part of the Environmental Docket

The most important legal signal is the national-security framing. The Administration’s grid reliability order states that rising electricity demand from AI data centers and domestic manufacturing strains the grid and that reliability affects national and economic security.

That framing changes the litigation posture around energy facilities. Environmental permitting disputes, infrastructure challenges, and related disputes may increasingly be argued not only as environmental or administrative law questions, but also as reliability, defense, supply-chain, and economic security questions.

The same point is reinforced by global oil-market pressure tied to Iran and the continuing strategic importance of the Strait of Hormuz. Those external risks sharpen the domestic argument: energy infrastructure, reliability, and production are no longer being treated as ordinary regulatory subjects. They are being framed as national-security assets.

What Regulated Companies Should Take From This

The immediate takeaway is not that compliance risk has gone away. It has not. The takeaway is that the federal enforcement and litigation environment is becoming more operationally literate and more tied to energy security.

Companies should be prepared to show that they are operating responsibly, correcting problems quickly, and maintaining reliable service while complying with permits and environmental laws. That means compliance programs should be current, field-tested, and documented. It also means regulatory communications should be practical, technical, and tied to corrective action.

The new ENRD will likely be more receptive to arguments that lawful operations, energy reliability, and compliance solutions can coexist. But those arguments work only when the facility has the facts to support them.

The best posture is therefore simple: operate, document, correct, and communicate. The federal government may be moving away from enforcement for enforcement’s sake, but it is not moving away from compliance. It is reframing compliance as part of the work required to keep energy and industrial infrastructure moving.

For assistance with regulatory compliance, permitting, enforcement, and related matters, please contact Tim Sowecke or Tyler A. Self. GableGotwals’ Administrative & Regulatory, Energy, Oil and Gas, and Environmental and Natural Resources teams regularly advise clients on environmental, regulatory, and energy matters.

Tim Sowecke
405-568-3308
tsowecke@gablelaw.com

Tyler A. Self
405-235-5589
tself@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

July 1, 2026 | By: Jason T. Seay, AIGP, CIPP-US

Artificial intelligence is rapidly transforming how companies operate, but with that transformation comes increasing legal scrutiny, regulatory complexity, and operational risk. AI is no longer an emerging issue—it is a current business and legal priority.

Here are seven key takeaways from my presentation at the BSidesOK AI Security Summit.

1. AI Risk Is Broad, Immediate, and Business-Critical

Organizations must evaluate AI beyond technical performance, focusing on legal, reputational, and operational consequences.

• AI-related harms can include:
  • Reputational damage
  • Regulatory exposure
  • Discrimination and bias risks
  • Data privacy violations
  • Economic and societal impacts
• AI amplifies existing risks due to its scale, speed, and automation capabilities

Why does it matter?
Failure to proactively identify and mitigate these risks can lead to enforcement actions, litigation, and brand damage—often before issues are fully understood.

2. There Is No Single AI Law, But Significant Legal Exposure Exists

In the U.S., AI is governed through a patchwork of existing laws and emerging state regulations, not a single comprehensive statute.

• Existing laws already apply, including:
  • Consumer protection (e.g., misleading AI claims)
  • Anti-discrimination laws (e.g., hiring, lending)
  • Privacy and data governance laws
• Regulators such as the FTC are actively taking enforcement action for AI-related misconduct

Why does it matter?
Companies cannot assume they are “unregulated” simply because there is no omnibus AI law. Legal exposure already exists across multiple fronts.

3. State-Level AI Regulation Is Accelerating Quickly

Several states have already enacted AI-specific laws with immediate and near-term compliance obligations:

• California (2026):
  • AI transparency requirements for training data
  • Disclosure obligations for chatbots and synthetic content
• Colorado (2026):
  • Anti-discrimination and reporting requirements for high-risk AI (subject to change under new legislation currently under consideration in Colorado; see SB 26-189)
• Texas (2026):
  • Comprehensive AI governance framework and regulatory sandbox
• New York & Illinois (2026):
  • Reporting, safety, and civil rights implications for AI systems

Why does it matter?
Businesses operating across multiple jurisdictions must manage inconsistent and evolving compliance obligations, increasing operational complexity and risk.

4. Your Role in the AI Ecosystem Determines Your Liability

Regulatory frameworks increasingly distinguish between different participants in the AI lifecycle, such as:

• Providers: Design and develop AI systems (highest regulatory burden)
• Deployers: Use AI within business operations (compliance and oversight obligations)
• Importers/Distributors: Ensure systems meet regulatory requirements before market entry

Why does it matter?
Understanding your role is critical. Liability and compliance obligations vary significantly depending on how your business interacts with AI.

5. AI Governance Must Span the Entire Lifecycle

Effective AI governance is not a one-time exercise; it must be embedded across the full AI tool lifecycle:

• Planning and problem definition
• Data collection and bias mitigation
• Model development and documentation
• Testing for fairness and accuracy
• Deployment with oversight and reporting
• Ongoing monitoring and maintenance
• Proper decommissioning and data handling

Why does it matter?
Regulators and stakeholders increasingly expect “governance by design,” not retroactive fixes after deployment.

6. Risk-Based Frameworks Are Becoming the Global Standard

Most regulatory approaches categorize AI systems by risk level, such as:

• Prohibited: Banned uses (e.g., certain biometric surveillance)
• High Risk: Subject to strict oversight and documentation
• Limited Risk: Transparency and disclosure requirements
• Minimal Risk: Voluntary standards

Why does it matter?
Companies must assess where their AI tools fall within these categories to determine compliance obligations and acceptable use cases.

7. Data, Cybersecurity, and Liability Are Emerging Pressure Points

Key trends shaping AI-related risk include:

• Data quality and bias: AI outputs are only as reliable as training data
• Cybersecurity and confidentiality: Increased threat exposure through the use of AI systems
• Product liability questions: Whether AI systems will be treated as “products” under existing product liability laws
• Internal governance gaps: Lack of policies, training, and oversight structures

Why does it matter?
These issues are likely to drive the next wave of enforcement and litigation, particularly for companies deploying AI at scale.

What Businesses Should Do Now

To stay ahead of regulatory and operational risk, organizations should:

• Conduct an AI risk assessment across all business functions
• Map AI use cases to applicable laws and regulatory frameworks
• Implement governance policies covering development, deployment, and monitoring of AI tools
• Establish internal accountability (legal, compliance, IT, and business stakeholders)
• Audit data sources and outputs for bias, accuracy, and compliance
• Prepare for disclosures and transparency requirements

AI presents significant opportunities, but also heightened legal, regulatory, and reputational risk. Organizations that take a proactive, structured approach to AI governance will be best positioned to innovate confidently while minimizing exposure.

This Alert was prepared by Jason Seay, AIGP, CIPP-US, a member of GableGotwals’ Cybersecurity and Data Privacy Team. For more information, please contact Jason or a member of the team.

Jason T. Seay, AIGP, CIPP-US

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

June 18, 2026 | By: Win Colbert

The regulatory environment for energy, infrastructure, and other projects is undergoing a dramatic shift. New executive orders, evolving agency priorities, landmark court decisions, and pending federal legislation are reshaping permitting, enforcement, and environmental compliance across the United States.

For energy companies, developers, and investors, success in 2026 will depend not only on understanding the rules, but on strategically navigating a rapidly changing regulatory landscape.

Key Takeaways

1. The Fundamentals of Regulatory Success Haven’t Changed

Despite shifting political priorities, core project management principles remain essential:

• Develop deep, cross-functional project knowledge
• Identify short- and long-term project goals early
• Establish realistic permitting timelines and milestones
• Anticipate notice, review, and compliance requirements
• Prepare proactively for enforcement and dispute resolution
• Maintain both “macro” regulatory awareness and project-specific focus

2. Executive Orders Are Reshaping Energy and Environmental Policy

Since January 2025, the administration has issued numerous executive orders aimed at:

• Expanding domestic energy and mineral production
• Accelerating permitting timelines
• Reducing regulatory burdens
• Increasing federal support for fossil fuel and infrastructure development

Key initiatives include:

• EO 14154: Unleashing American Energy
• EO 14156: Declaring a National Energy Emergency
• EO 14270: Zero-Based Regulatory Budgeting To Unleash American Energy

These directives are driving agencies to:

• Re-evaluate existing regulations
• Streamline approvals
• Prioritize domestic production and infrastructure reliability

3. Courts Are Limiting Agency Authority and Expanding Project Leverage

Recent Supreme Court decisions have fundamentally altered administrative law:

• In West Virginia v. EPA, the Court strengthened the “major questions doctrine,” limiting expansive agency action without clear congressional authorization.
• In Loper Bright Enterprises v. Raimondo, the Court overturned “Chevron deference”, requiring courts to independently interpret ambiguous statutes. Previously, the Chevron deference doctrine (established by the Supreme Court in 1984; see Chevron U.S.A., Inc. v. Natural Resources Defense Council) required federal courts to defer to a government agency’s interpretation of an ambiguous statute that the agency was tasked with administering, provided the agency’s interpretation was “reasonable” or “permissible”.

Agencies now face greater legal constraints, and regulated entities have stronger grounds to challenge aggressive regulatory interpretations.

4. NEPA Reviews Are Becoming Narrower and Faster

Recent case law is also reshaping the scope of environmental review under the National Environmental Policy Act:

• Marin Audubon Society v. FAA limited the authority of the Council on Environmental Quality to impose binding NEPA regulations.
• Seven County Infrastructure Coalition v. Eagle County narrowed the scope of environmental review and reinforced judicial deference to agencies.

Result:

• Shorter environmental analyses
• Reduced review obligations for indirect impacts
• Greater agency discretion in defining project scope

However, courts may still invalidate reviews if they are deemed too vague or unsupported.

5. EPA Enforcement Is Shifting Toward “Compliance First”

The Environmental Protection Agency is signaling a major enforcement philosophy shift:

• Increased emphasis on:
  • Voluntary compliance
  • Self-reporting and corrective action
  • State-federal coordination
  • Tailored remedies rather than punitive enforcement

Enforcement actions are expected to require clear and well-supported findings of violation. In response to any enforcement action, proactive engagement and transparency may significantly reduce enforcement exposure.

6. Pending Legislation Could Dramatically Accelerate Permitting

Several federal bills propose to streamline environmental review and infrastructure development, including:

• Shortened litigation windows
• Increased permit certainty
• Digital and AI-assisted environmental review processes
• Faster infrastructure and critical mineral approvals

Proposed federal legislation includes the following:

• SPEED Act (The “Standardizing Permitting and Expediting Economic Development Act” seeks to modernize NEPA by shortening environmental review timelines, limiting judicial review windows, and redefining what qualifies as a “major federal action”).
• Interactive Federal Review Act (would require U.S. DOT to encourage recipients of federal highway funding who are conducting environmental reviews under NEPA to  use of certain digital platforms and models.
• Streamlining Critical Mineral Permitting Act (would amend the Solid Waste Disposal Act to allow an owner/operator of a critical energy resource facility to obtain an  interim permit subject to final approval by U.S. EPA).
• REPAIR Act  (goal is to enhance funding and support for critical repairs).

7. Energy Development Is Becoming a National Strategic Priority

Federal policy increasingly links energy production to:

• National security
• AI and data center growth
• Supply chain resilience
• Critical mineral independence

This broader policy alignment is creating:

• More favorable permitting conditions
• Increased government support for infrastructure expansion
• Greater emphasis on energy reliability and domestic production

8. Long-Term Stability Still Requires Caution

While current trends favor accelerated development:

• Regulatory priorities can shift with future administrations
• Agency interpretations may continue evolving
• Litigation risk remains significant

Best practices include:

• Maintaining strong compliance records
• Structuring projects to withstand policy changes
• Building flexible permitting and operational strategies
• Evaluating both short-term opportunities and long-term stability risks

The Bottom Line

The 2026 regulatory landscape presents a rare combination of opportunity and uncertainty for the regulated community. Executive orders, judicial decisions, and proposed legislation are creating new tools to accelerate permitting and reduce regulatory friction, but the environment remains politically and legally fluid.

Companies that combine proactive planning, strategic regulatory engagement, and adaptable compliance strategies will be in the best position to capitalize on today’s opportunities while protecting long-term operational stability.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Win Colbert

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

June 11, 2026 | By: Jason T. Seay, AIGP, CIPP-US

Cybersecurity and privacy are no longer back-office concerns for the energy sector; they are front-line legal and operational risks. With expanding federal directives, evolving threat tactics, and an increasingly aggressive privacy litigation landscape, some energy companies are rethinking how they manage cyber and data risk. This Alert highlights the latest developments and what they mean for your business.

Key Takeaways

1. Federal Cybersecurity Mandates Are Expanding Rapidly

• The Transportation Security Administration (TSA) continues to roll out mandatory cybersecurity directives for critical pipeline infrastructure.
• These apply to designated pipeline owners and operators and are evolving annually.
• Expect more assets to be classified as “critical infrastructure,” increasing regulatory reach.

2. Compliance Now Requires a Structured, Documented Cyber Program

• TSA directives establish a two-layer framework:
  • Governance and Reporting (01 Series):
    • Designated cybersecurity coordinator (24/7 availability)
    • Mandatory incident reporting to the Cybersecurity and Infrastructure Security Agency (CISA)
    • Formal risk assessments and governance structures
  • Mitigation and Testing (02 Series):
    • Cybersecurity Implementation Plans
    • Incident response and recovery planning
    • Ongoing testing, validation, and documentation
• Key shift: Regulators now expect audit-ready evidence of compliance, not just policies.

3. 2025–2026 Updates Signal a Move Toward Continuous Oversight

• Recent TSA updates emphasize:
  • Performance-based compliance
  • Real-time monitoring and detection capabilities
  • Stricter reporting timelines and remediation tracking
• Implication: Cybersecurity is now an ongoing operational obligation, not a periodic exercise.

4. Threat Actors Are Targeting Identity, Not Just Systems

• Attack strategies are evolving quickly:
  • Help desk impersonation and social engineering
  • Multi-factor authentication (MFA) fatigue (“push-bombing”)
  • Identity provider (IdP) compromise (e.g., centralized access systems)
  • Exploitation of non-human identities (API keys, service accounts)
• Generative AI is accelerating:
  • Phishing sophistication
  • Malware development
  • Attack scale and speed
• Takeaway: Traditional perimeter defense is becoming obsolete.

5. Privacy Litigation Is Expanding Beyond Traditional Targets

• The California Invasion of Privacy Act (CIPA) is being applied to:
  • Website tracking technologies (cookies, pixels)
  • Chatbots and AI tools
  • Session replay and user interaction tracking
• Plaintiffs argue that third-party tools “intercept” user communications—triggering potential liability under California state law.
• Risk exposure: Up to $5,000 per violation, with broad applicability to any site accessible in California.

6. New Privacy Laws Add Another Layer of Compliance

• The Oklahoma Privacy Act (effective 2027) introduces:
  • Enforcement by the Attorney General
  • Penalties up to $7,500 per violation
• At the same time, updated California Consumer Privacy Act regulations require:
  • Risk assessments for high-risk data processing
  • Cybersecurity audits for covered businesses
• Notably: Sensitive data like precise geolocation is a key focus.

7. Proactive Risk Management Is Now a Business Imperative

• Leading practices include:
  • Comprehensive data and AI tool inventory (chatbots, analytics, tracking tools)
  • Vendor contract scrutiny (data use, model training, reuse rights)
  • Regular audits (at least every 6 months)
  • Stronger consent frameworks (clear disclosures and enforceable terms)

The Bottom Line

Legal, IT, and operations teams must work in lockstep as cybersecurity and privacy risks in the energy industry are converging and intensifying. Federal mandates, sophisticated cyber threats, and expanding privacy litigation, are creating a complex, high-stakes environment.

Companies that treat cybersecurity and data governance as core business functions, not just compliance exercises, will be best positioned to manage risk, maintain operational resilience, and avoid costly enforcement actions.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Jason T. Seay, AIGP, CIPP-US

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

June 8, 2026 | By: Kat Statman

In a significant decision impacting the utility and energy industries, the Texas Supreme Court recently issued an opinion in Boerschig v. Rio Grande Electric Cooperative, Inc., making clear the limited scope of an easement by estoppel.

Private land in Texas, with one of the highest rates of private land ownership (more than 96%) and the second largest state by land size in the United States, is crisscrossed with utilities and energy extraction and delivery operations that date back more than a century. As a result, the recent opinion issued by the Texas Supreme Court, which concluded that easements by estoppel are to be narrowly construed in terms of scope, may have an impact on any utility or energy easement holders that are not properly recorded for historical reasons, significantly limiting what the easement holder can and cannot do within its easement rights.

In Boerschig, the Texas Supreme Court was tasked with determining

• Whether an electric cooperative held an easement by estoppel for its power distribution lines that were built pursuant to an agreed, albeit unrecorded, easement with the prior ranch owners and
• Whether the scope of that easement by estoppel allowed the electric cooperative to upgrade the power distribution lines that increased the number of power lines originally constructed.

Based on these questions, the Texas Supreme Court concluded that the electric cooperative did have an easement by estoppel; however, in a significant decision, the Court concluded that the power distribution line upgrades exceeded the scope of the easement by estoppel because the cooperative did not offer any evidence “that the upgrade was reasonably necessary to continue its existing use of the line.”

What Happened?

The Rio Grande Electric Cooperative was originally formed in 1945 to provide electricity to rural ranches and property owners in south, central, and west Texas. Since 1945, Rio Grande has expanded to cover 18 counties in Texas and two in New Mexico. In 1947, Rio Grande acquired a “Right of Way Easement” over the property at issue, giving it “the right to place, construct, operate, repair, maintain, relocate and replace an electric transmission or distribution line or system on 5,684 acres” of the property at issue. However, the easement was never recorded in the real property records.

The distribution line was constructed after Rio Grande obtained the easement and crossed 1.6 miles of the property at issue. Subsequently, in 2002, John Boerschig purchased the U-Bar Ranch in Kinney County, Texas, which included the plot of land where Rio Grande’s utility easement ran. Mr. Boerschig was aware of the distribution line at the time of purchase, as he observed the distribution line in addition to the fact that it was marked on a survey that was prepared in connection with the purchase transaction.

In 2012, Rio Grande provided notice to Boerschig about its plan to bulldoze and upgrade the existing feeder along the utility line easement. Additionally, Rio Grande planned to move the distribution line approximately 15 feet and add to the line to serve new customers (specifically a gas compressor station and a new electric substation Rio Grande was planning to build to accommodate anticipated future demand and growth). While Boerschig contended that he never received the letter, after observing a bulldozer for Rio Grande starting to clear a route through his property, he demanded copies of the easements covering the route. Rio Grande did not provide the specific easement covering the area at issue, only providing other easements it held over the property.

Boerschig filed a suit against Rio Grande for trespass and obtained a temporary restraining order. Rio Grande filed a counterclaim seeking a declaratory judgment that it had a valid express easement or, in the alternative, that it had a prescriptive easement or one by estoppel. During the course of the litigation, the parties agreed Rio Grande would cease construction. Rio Grande also alleged that Boerschig had interfered with its easement rights and potential contracts to reroute the distribution line through the town of Brackettville, Texas.

Throughout the litigation, Boerschig offered to allow Rio Grande to build a new line in a different area of his property and alongside a different existing transmission line owned by another company. Rio Grande, however, refused. After Boerschig dropped his opposition to the continued construction, subject to his trespass claim that the upgrade was not authorized by a valid and enforceable easement, Rio Grande decided to keep the line on the original footprint, but upgraded it to include additional poles and lines as originally planned.

The dispute between the parties eventually went to trial, and the jury returned a verdict that Rio Grande did not have a written or prescriptive easement but concluded that it did have an easement by estoppel. The jury also concluded that Rio Grande’s upgrade to the distribution lines failed to exceed the scope of the easement, which included utilizing 60 poles carrying seven wires versus the original distribution line that was 20 poles carrying four wires.

On appeal, the Court of Appeals was presented with two questions:

1. Whether there was sufficient evidence for the jury to find that there was an easement by estoppel; and,
2. Whether there was sufficient evidence for the jury’s failure to conclude that the transmission line upgrades by Rio Grande exceeded the scope of the easement by estoppel.

The Court of Appeals found that there was sufficient evidence for both jury findings.

Supreme Court’s Fundamental Legal Analysis

Whether There Was Sufficient Evidence for Easement by Estoppel Jury Finding

The elements to prove a claim of easement by estoppel are relatively well-settled under Texas law.

1. “[T]he owner of the burdened estate represented that an easement would be conveyed,
2. The holder believed the representation, and
3. The holder relied on the representation to its detriment.”

The question the Supreme Court focused on was whether the defective easement, because it was unrecorded, could be evidence to establish Rio Grande’s easement by estoppel claim.

The Texas Supreme Court answered this in the affirmative and upheld the Court of Appeals, while declining to adopt the Restatement (Third) of Property. As the Supreme Court stated:

A writing that fails as an express easement can be some evidence supporting the representation element of an easement by estoppel. The function of such easement is to preserve reliance interests for uses of land intended by the parties but not supported by formal written documentation. Thus, easements by estoppel arise only in cases in which an express easement fails to cover the use at issue. An easement that the parties intended but failed to perfectly memorialize is no less relevant than an easement the parties intended to memorialize by a handshake.

Based on this, the Court concluded that there was legally sufficient evidence based on the unrecorded written easement from 1947 that the jury could rely on finding that Rio Grande had an easement by estoppel.

Did Rio Grande’s Upgrade Exceed the Scope of its Easement by Estoppel

The second issue presented to the Supreme Court was on the scope of the easement by estoppel and whether the upgrades by Rio Grande exceeded its scope. This is where the Supreme Court reversed both the trial court and the court of appeals’ conclusions, finding that as a matter of law Rio Grande exceeded the scope of its easement by estoppel under Texas law. Therefore, Boerschig, the property owner, is entitled to judgment as a matter of law on his trespass claim.

In coming to this conclusion, the Supreme Court specifically looked at the public policy surrounding easements by estoppel. As the Court noted, because easements by estoppel are not recorded like express easements, determining their scope is more difficult and is fraught with other considerations, like this situation where the easement would be extended to subsequent property owners such as Boerschig. Based on this, the Court stated “[T]he scope of such an easement [by estoppel] is limited to preventing injustice by protecting the holder’s reliance interest—that is, the actual investment (or other change of position) that the holder made to use the land in reasonable reliance on the owner’s representations.” Based on this, the Court made clear that easements by estoppel are limited in scope to that which “would be discovered by reasonable inspection or inquiry.”

In support of this conclusion, the Court looked closely at separation of powers issues,

Courts and juries are not free to give away more of a landowner’s property rights whenever they feel that the societal benefit of an expanded use outweighs its burden on the landowner. That judgment is for the other branches of government and entities on which they have conferred condemning authority, and our Constitution demands that the landowner be compensated when a greater easement is taken.

There are additional considerations that can be made in assessing whether an easement by estoppel holder exceeded the scope of its easement, such as whether the activity is “reasonably necessary to fairly enjoy the usage rights defined by the representations, reliance, and knowledge.” This assessment of whether the use is reasonably necessary must be narrowly drawn, however, “to burden the landowner as little as possible.”

In undertaking this analysis, the Supreme Court concluded that Rio Grande’s increasing the number of distribution line poles, increasing the height of those poles by seven feet, and increasing the number of lines on those poles was not an activity that was reasonably necessary for it to enjoy the usage of the easement based on the representations it received and relied upon as well as the knowledge of the easement.

In essence, the issue boiled down to whether Rio Grande could continue to use and maintain its line in its present form, which was not contested. However, the Rio Grande CEO testified that the changes made constituted an upgrade and would provide electric services to a new gas compressor station as well as connect a new electrical substation to accommodate anticipated future growth. The CEO also testified that the existing line served roughly 1,000 consumers. This testimony at the trial court showed that under the narrow construal of the easement by estoppel, Rio Grande had exceeded its scope because it was taking additional steps beyond simply using and maintaining the distribution line and easement that had been in place since the 1940s.

On this basis, the Court concluded as a matter of law that Rio Grande trespassed on Boerschig’s property when it upgraded the distribution line and remanded the case to the trial court for further proceedings regarding the appropriate relief.

Key Takeaways

With Texas’ historic amount of private property, utility and energy companies are often holders of easements that crisscross private landowners’ land. The decision in this case is likely to have an impact on what easement holders can or cannot do within their easement where the easement is not properly recorded. This is likely to be a greater consideration when the land where the easement runs is transferred to a new property owner, as in Boerschig. Many of these easements may have been inherited from prior producers or utility companies or granted by prior landowners before the sale of the property to the current landowner. It is fundamental, particularly with these historic property rights, to confirm both that any easements supporting the utility or infrastructure owned are appropriately recorded in the real property records and review the scope of those express easements to ensure that the activity complies with the use and scope of the express easement.

Additionally, it is necessary to understand the narrow limitations on what rights an easement holder may have under the Boerschig decision. Under the rule expressed in Boerschig, an easement by estoppel will be very narrowly construed in scope, limiting what actions the easement holder may take as reasonably necessary for the use and enjoyment of the limited property right they have.

The Boerschig decision underscores the critical importance of proper recording of easements in the property records for utility and energy companies operating across Texas and beyond. Additionally, it underscores the importance of confirming that historical easements, such as the one at issue in Boerschig, were recorded in the property records when obtained to avoid the risk of losing an easement or significant narrowing of an easement already negotiated and obtained years prior.

Attorneys at GableGotwals have experience advising energy clients on the full spectrum of easement and real property issues impacting operations — from auditing existing easement portfolios, ensuring proper recordation in county real property records, and defending real property disputes such as in the Boerschig case.

Kat Statman

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

June 3, 2026 | By: Ethan T. Mock and Alex R. Telarik

In energy and land transactions, few legal doctrines create as much hidden risk as the Rule Against Perpetuities (RAP). Often overlooked during drafting and diligence, RAP can quietly invalidate valuable property interests or trigger costly disputes years after a deal closes. This Alert outlines how RAP applies to oil and gas transactions and what landmen and deal professionals can do to avoid unintended consequences.

Key Takeaways

1. RAP Is Designed to Prevent Long-Term Uncertainty in Property Rights

The rule requires that property interests must vest, if at all, within 21 years after a “life in being” at the time the interest is created. Its purpose is to prevent indefinite control of property (“dead-hand control”) and ensure assets remain transferable and commercially usable.

Key risk: Interests tied to uncertain future events may violate RAP at inception, even if the issue doesn’t surface immediately.

2. Oil & Gas Interests Are Not Exempt

Oklahoma courts treat many energy-related interests as real property, meaning RAP applies to:

• Overriding royalty interests (ORRIs)
• Non-participating royalty interests (NPRIs)
• Working interests and related assignments

Common transaction documents impacted include:

• Mineral deeds
• Leases
• Assignments

Implication: Routine deal structures can unintentionally trigger RAP violations.

3. Violations Can Be Severe, But Outcomes Are Evolving

Historically, RAP violations rendered interests void from the outset. Modern Oklahoma statutes allow courts to reform defective provisions and attempt to honor the original intent of the parties.

Reality check: Judicial reformation is unpredictable and should not be relied upon as a primary safeguard.

4. Drafting Missteps Are the Most Common Trigger

High-risk provisions include:

• Open-ended contingencies (e.g., tied to indefinite future events)
• Delayed-commencement “top leases” or other interests transferred only upon uncertain future occurrences
• Poorly structured renewal or extension clauses

Even protective mechanisms like anti-washout provisions can create fiduciary obligations and fail if not carefully limited within RAP-compliant timeframes.

Bottom line: Precision in drafting is critical—small ambiguities can create major legal exposure.

5. Recent Case Law Highlights Ongoing Uncertainty

In a recent appellate opinion, the Oklahoma Court of Civil Appeals found certain lease structures violated RAP due to indefinite commencement triggers but ultimately upheld the transaction because related unrecorded agreements imposed a defined time limit and saved the transaction from a RAP violation.

Takeaway: While courts may evaluate transactions holistically, outcomes remain fact-specific and unsettled. In fact, the dissent in Tributary Resources argued the unrecorded instruments should not have been considered because, in the dissent’s view, RAP compliance is determined only by recorded instruments.

6. Proactive Risk Management Is Essential

Best practices include:

• Due diligence: Identify RAP risks early (via comprehensive title work) and account for them in deal pricing
• Portfolio review: Audit existing assets for latent issues
• Drafting discipline:
  • Tie contingencies to clear, finite time periods
  • Include RAP savings clauses
  • Avoid vague or open-ended triggers

Don’t rely on courts: Reformation is a fallback, not a strategy

The Bottom Line

The Rule Against Perpetuities remains a powerful, and often underestimated, constraint on energy transactions. Left unaddressed, it can undermine deal value, cloud title, and disrupt operations long after closing.

Companies and land professionals who proactively identify and mitigate RAP risk through careful drafting and diligence will be far better positioned to protect their investments and avoid costly surprises.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Ethan T. Mock

Alex R. Telarik

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

May 27, 2026 | By: Jason T. Seay, AIGP, CIPP-US and Francesca A. Walentynowicz

Emerging technologies are actively transforming how energy companies operate, transact, and compete. From blockchain-enabled digital tokens to the rapid rise of generative AI, these tools offer significant upside, but also introduce legal, regulatory, and operational risks. This Alert explores what energy companies need to know now.

1. Technology Is Now a Core Driver of Performance and Value

Adoption of advanced technologies is directly impacting:

• Operational efficiency
• Emissions reduction
• Cost control and uptime

Companies leveraging AI, sensors, and analytics are:

• Producing more efficiently
• Reducing compliance risk
• Gaining a competitive edge

2. Digital Tokens Go Far Beyond Cryptocurrency

Digital tokens are used to create blockchain-based representations of:

• Asset ownership (e.g., royalties, working interests)
• Contract rights
• Units of value or access rights

Built on distributed ledger technology, they enable:

• Secure, transparent recordkeeping
• Programmable transactions and automated settlement

Key distinction: Tokens can be fungible or non-fungible, depending on their structure.

3.Tokenization Can Help Transform Energy Transactions

Practical use cases include:

• Fractional ownership of energy assets
• Tokenized royalty or production interests
• Streamlined commodity trading and settlement

Platforms like VAKT demonstrate:

• Faster settlement cycles
• Reduced administrative burden
• Improved auditability

Business impact: Lower transaction costs and broader market participation.

4. Adoption Barriers for Digital Tokens Remain Significant

Key challenges include:

• Regulatory uncertainty (securities, tax, and financial regulations)
• System fragmentation across energy data platforms
• Integration complexity with existing infrastructure

Successful implementation requires targeted use cases and strong governance, not wholesale transformation.

5. Generative AI Is Unlocking New Operational Capabilities

Tools like ChatGPT and Microsoft Copilot enable:

• Natural-language querying of complex operational data
• Predictive maintenance insights
• Automated reporting and documentation

AI can also:

• Identify anomalies in equipment performance
• Translate data into actionable insights
• Serve as a knowledge repository for field and office teams

6. AI Use Cases Span the Entire Energy Industry

• Operations:
  • Equipment monitoring and failure prediction
  • Maintenance automation and workflow generation
• Business and Legal Functions:
  • Contract review and due diligence
  • Market analysis and reporting
  • Regulatory and compliance documentation
• Cybersecurity:
  • Threat detection and incident response support
• Customer & Vendor Interaction:
  • AI-driven chatbots and communication tools

7. AI Introduces New Legal and Risk Considerations

Key concerns include:

• Liability exposure (e.g., whether AI outputs create legal risk)
• Data quality and reliability
• Cybersecurity and confidentiality risks
• Rapidly evolving regulatory frameworks

Takeaway: Governance and internal policies are essential for responsible deployment.

8. Competitive Advantage Will Favor Strategic Adoption

Companies that move beyond experimentation and:

• Integrate AI into workflows
• Identify high-value tokenization use cases
• Invest in data infrastructure

Will benefit from:

• Faster decision-making
• Lower operational costs
• Better resource allocation

The Bottom Line

Digital tokens and generative AI are shifting how energy companies operate and transact. While both technologies offer meaningful efficiency gains and new business models, they also introduce complexity across legal, regulatory, and operational domains.

Energy companies that take a measured, strategic approach, focusing on governance, targeted implementation, and risk management, are best positioned to unlock value while avoiding costly missteps.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Jason T. Seay, AIGP, CIPP-US
918-595-4832
jseay@gablelaw.com

Francesca A. Walentynowicz
918-595-4889
fwalentynowicz@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

May 21, 2026 | By: Byron C. Keeling and Brian K. Tully

Recent Texas court decisions are redefining core principles in oil and gas law – from joint operating agreements and insurance coverage to subsurface ownership and royalty rights. For energy companies and investors, these rulings carry significant implications for operations, deal structuring, and litigation risk. This Alert highlights the most impactful developments and what they mean in practice, recently presented at GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar.

Key Takeaways

1. Contract Language Still Reigns Supreme in Joint Operations

In Tex. Crude Energy, LLC v. Burlington Resources Oil & Gas Co., LP, the non-operated working interest owners (Non-Ops) proposed a number of wells to which the Operator consented.  Under the applicable Joint Operating Agreement (JOA), the Operator was required to begin drilling these wells within 90 days, but shortly before that time expired, the Operator then announced its determination that the drilling of the well would not be prudent, and that if the Non-Ops still wanted the well to be drilled, they should resubmit it.

The trial court ruled that the operator did not breach the JOA by doing so.  The court of appeals reversed because the JOA required that if the Operator consented to a well proposed by the Non-Ops, drilling of the well “shall” begin within 90 days, and resubmitting the well was not an adequate remedy.  The Supreme Court of Texas may weigh in on this matter, but “shall means shall,” and Operators cannot rely on broad discretion clauses to avoid explicit contractual duties.

Takeaway: Strict compliance, but not malicious compliance, with JOA provisions is critical to avoid operational disputes, particularly where the Non-Ops and the Operator may have different incentives with regard to the drilling of wells or development plans.

2. Insurance Coverage Disputes Are Expanding in Scope

In BPX Production Co. v. Certain Underwriters at Lloyd’s, the insured poorly performed a cement job at a well, causing it to have to be shut in.  The insured tendered the dispute to its insurer, which denied coverage, effectively cutting the insured loose.  After the insured declared bankruptcy, the Operator was able to take an assignment of claims that the insured had against its insurer for the failure to provide coverage.  The Fifth Circuit reversed the district court’s dismissal under Rule 12, holding that the Operator could bring such claims against the insurer and determine both the coverage issues as well as the insured’s underlying liability for the event, in a single proceeding under the Hamel line of cases.

Takeaway: All may not be lost when the party causing harm declares bankruptcy, and its insurer has denied coverage.  If the denial of coverage was wrongful, the injured party may be able to step into the insured’s shoes and assert claims against the insurer directly.

3. Conditions Precedent Can Halt Development Entirely

In Endeavor Energy Resources v. Comanche Maverick Ranch Investments, the lease and surface agreement at issue referenced that seismic testing would be done under mutually-agreeable terms in a subsequent agreement, but the landowner later refused to negotiate.  Because the existence of a seismic testing agreement was found to be a condition precedent, no obligation existed to negotiate or act in good faith. Projects can stall indefinitely if triggering conditions are not satisfied.

Takeaway: Be wary of clauses leaving key terms on related issues to be determined in a separately-negotiated agreement.  There might not be any obligation for the other party to negotiate such an agreement at all.

4. The Surface Owner Usually Owns Any Subsurface Cavern or Pore Space

In Myers-Woodward, LLC v. Underground Services Markham, LLC, the Texas Supreme Court confirmed that surface owners, not mineral owners, generally own subsurface pore space and caverns. It overruled prior conflicting precedent; however, it recognized that mineral owners and operators under oil and gas leases may still use subsurface space as reasonably necessary for production.

Takeaway: A producer that wants to use any subsurface space for commercial purposes (e.g., storage) may want to secure an agreement with the surface owner.

5. Royalty Rights Continue to Evolve

The Myers-Woodward case also confirmed that a royalty of “1/8 of all oil, gas, and minerals” is an in-kind royalty interest. When producers sell the in-kind royalty owner’s fractional share of the production, the producer generally should pay the royalty owner its fractional share of the net proceeds.

In Fasken Oil & Ranch, Ltd. v. Puig, the Texas Supreme Court ruled that the term “free of cost” in an in-kind royalty clause refers to pre-production costs, not post-production costs.  A “free of cost” term in an in-kind royalty clause does not change the fact that an in-kind royalty owner is generally entitled to receive only its fractional share of the net proceeds; the royalty owner is not entitled to demand a fractional share of the gross proceeds.

Takeaway: Royalty clause language continues to be under heightened scrutiny, but as always, the Texas Supreme Court tries to enforce royalty clauses as they are written.

6. Produced Water Ownership Is Now Clear—But Questions Remain

In Cactus Water Services, LLC v. COG Operating, LLC, produced water is part of the mineral estate unless expressly reserved. However, unresolved issues include:

• Whether royalties apply to produced water
• How profits from reuse or disposal are allocated
• Potential implied duties regarding water management

Takeaway: This area is primed for the next wave of litigation.

The Bottom Line

Texas courts are actively redefining foundational oil and gas principles, often in ways that elevate the importance of contract clarity, strategic drafting, and proactive risk management.

From JOAs and insurance coverage to subsurface rights and emerging asset classes like produced water, the message is clear: small drafting decisions can have outsized legal and financial consequences. Companies that stay ahead of these developments will be better positioned to protect value and avoid costly disputes.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Byron C. Keeling
246-594-5007
bkeeling@gablelaw.com

Brian K. Tully
346-200-6017
btully@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

May, 19 2026 | By: Ethan T. Mock

The global race for critical minerals is no longer a future prospect; it is a current economic and national security imperative. As highlighted in recent reporting by Bloomberg Law, the surge in demand for rare earth metals, essential for everything from electric vehicle batteries to defense technologies, has propelled a specialized niche in the legal sector. At GableGotwals, we are uniquely positioned to lead in this arena, offering a powerhouse trifecta of expertise in Federal Indian Law, sophisticated transactional law, and direct BIA regulatory experience. Our reputation has earned us a Band 1 ranking in Energy and Natural Resources, Native American Law, Corporate/Commercial, and Environment by Chambers & Partners.

The Tribal Frontier of Critical Minerals

The Bloomberg Law analysis underscores that many of the most significant untapped deposits of critical minerals are located on or near tribal lands. However, unlocking this potential requires navigating a jurisdictional landscape that many law firms find impenetrable. Over time, GableGotwals has developed strong relationships with local tribes and is ready to bridge this gap with its dedicated attorneys, many of whom are tribal members. We are committed to facilitating between Native American tribal governments and businesses to achieve economic development.

With a premier Native American Law practice, our Firm understands the nuances of tribal sovereignty and the essential role of tribal nations as partners in the global energy transition. We don’t just see a mining deal; we see a path toward tribal economic self-determination and sustainable resource management.

Transactional Precision Meets Federal Insight

Successful mining deals in Indian Country require more than just an understanding of the minerals; they require a mastery of the “machinery” of the Bureau of Indian Affairs (“BIA”). The complexity of subsurface leasing is where projects often stall, trapped in the regulatory requirements of Title 25 of the Code of Federal Regulations.

Our team includes attorneys with direct, “inside-the-agency” experience at the BIA. This specialized background provides our clients with:

• Regulatory Fluency: Deep knowledge of the Indian Mineral Leasing Act and the Indian Mineral Development Act to structure flexible, high-value agreements.
• Navigational Expertise: An intimate understanding of BIA Standard Operating Procedures and the internal flow of lease approvals, ensuring that environmental and appraisal standards are met without unnecessary delays.
• Risk Mitigation: Transactional experts who can draft and negotiate complex joint ventures and development agreements while ensuring strict compliance with federal trust responsibilities.

Integrated Transactional & Environmental Practices

Beyond Indian law and BIA leasing, GableGotwals brings a full-service platform to critical-minerals projects, pairing sophisticated deal counsel with environmental and regulatory guidance. Our transactional team structures acquisitions, joint ventures, offtake arrangements, and financing to allocate risk, protect value, and keep projects bankable. In parallel, our environmental practice helps clients anticipate and address permitting and compliance issues early, including NEPA strategy, air and water approvals, cultural-resource considerations, and remediation planning, so transactions can close with clear, practical pathways to development and operations.

Ready for the Mining Paradigm Shift

As the market for rare earth minerals evolves, the legal counsel supporting it must be equally sophisticated. GableGotwals offers the rare combination: “Big Law” transactional capability paired with the niche, technical expertise of BIA leasing, environmental, and Indian Law. This expertise is made possible by many of our attorneys who formerly practiced at AmLaw 100 firms, former in-house counsel at major energy companies, and those who graduated top of their class from prestigious universities.

Whether you are a tribal nation seeking to leverage your subsurface assets for the next generation of energy, or a commercial developer looking to navigate the federal trust landscape, GableGotwals has the expertise to move your mining project from prospecting to production. We are not just observing the race for rare earth minerals; we are providing the roadmap for our clients to lead it.

 Ethan T. Mock
918-595-4875
emock@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

May, 14 2026 | By: Thomas J. Hutchison

Closing an energy transaction is not the finish line, it is the beginning of a new phase of risk. Post-closing disputes are common in energy deals, often arising from purchase price adjustments, title defects, environmental liabilities, and operational misalignment. This Alert highlights where disputes arise and how thoughtful structuring can mitigate exposure. recently presented at GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar.

1. Purchase Price Adjustments Are a Frequent Source of Conflict

• Post-closing true-ups are standard, but often contentious.
• Disputes typically stem from:
  • Differing accounting methodologies
  • Working capital calculations
  • Ambiguities in the purchase agreement
• Mitigation tip: Clearly define adjustment mechanics and align accounting principles upfront to reduce ambiguity

2. Title Defects Require Precision in Drafting and Diligence

• Energy deals rely heavily on detailed title frameworks, including:
  • Definitions of “Defensible Title” and “Permitted Encumbrances”
  • Thresholds, deductibles, and valuation methodologies
• Pre-closing diligence is critical, but post-closing remedies are often limited to special warranty protections for a defined period
• Mitigation tip: Ensure purchase and sale agreements (PSAs) clearly outline defect remedies, timelines, and valuation methods

3. Environmental Liabilities Can Be Underestimated

• Known environmental issues are typically addressed through:
  • Specific indemnities
  • Purchase price adjustments
• Unknown risks present greater challenges:
  • Representations and warranties may be narrowly scoped
  • Buyers may face limited recourse without robust protections
• Mitigation tip: Accurately quantify remediation costs and negotiate flexibility to exclude high-risk assets

4. Post-Closing Operations Can Trigger Disputes Quickly

• Common friction points include:
  • Misallocated revenues and expenses
  • Ineffective “true-up” mechanisms
  • Delays in redirecting payments from third parties
• Overlapping remedies can further complicate resolution
• Mitigation tip: Establish clear operational transition protocols and avoid duplicative or conflicting remedies

5. Transition Services Agreements (TSAs) Offer Limited Protection

• TSAs are often:
  • Narrow in scope
  • Limited in enforceability (e.g., gross negligence standards)
• Practical risks include:
  • Lack of continuity if key personnel are unavailable post-closing
• Mitigation tip: Confirm operational readiness and do not over-rely on TSAs for critical business functions.

The Bottom Line

Energy M&A deals do not end at closing. Without careful structuring, diligence, and post-closing planning, routine provisions can evolve into costly disputes. Companies that proactively address these risks ― through precise drafting, realistic valuations, and operational alignment — are better positioned to protect deal value and avoid litigation.

If you have any questions, please contact any member of GableGotwals’ Energy, Oil & Gas team.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Thomas J. Hutchison
918-595-4858
thutchison@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.