Idaho Law Review

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Idaho Law Review
College of Law
University of Idaho
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2013 Idaho Law Review Symposium: Legal Aspects of Hydraulic Fracturing

Idaho Law review Symposium 2013March 29, 2013
Idaho Water Center
322 E. Front Street
Boise, Idaho

CLE Credits | Schedule of Events | Presenters | Moderators

The 2013 Idaho Law Review Symposium will bring together an interdisciplinary panel of legal, scientific, and business experts to discuss issues related to the hydraulic fracturing. Topics will include: (1) the science and technology of hydraulic fracturing; (2) the regulation of hydraulic fracturing’s environmental effects; (3) the role of state and local governments in regulating hydraulic fracturing; (4) current legal hot topics in the field, such as the role of trespass and trade secrets; and (5) the role of hydraulic fracturing in a clean energy future for the country.

The 2013 Idaho Law Review Symposium will continue the tradition of bringing together a select group of scholars and professionals for an informed interdisciplinary discussion centered on a topic of growing national importance. By exposing members of the academic, business, technological, and legal communities to diverse viewpoints and multifaceted experiences, our goal is to provide a forum for open discourse which will provide participants with valuable information applicable to their own business and legal situations.

CLE Credits

The video of the Symposium is now available for free access below.

View Video and Receive CLE Credits

Idaho attorneys may obtain 6.25 CLE credits for viewing the video by providing documentation that the attorney has watched the video and paying $145 to the College of Law. Attorneys interested in obtaining the CLE credits for watching the Symposium video should (i) send an e-mail to Prof. Stephen R. Miller (millers@uidaho.edu) indicating that they have watched the video and (ii) send a check made payable to “University of Idaho College of Law” to: Prof. Stephen R. Miller, University of Idaho College of Law – Boise, 322 E. Front Street, Ste. 590, Boise, ID 83702. Upon receipt of the confirming e-mail and payment, the Idaho State Bar will be notified of the attorney’s completion of the 6.25 CLE credits.

PowerPoint Slides and Law Review Articles

The PowerPoint slides and law review articles of the presenters will be posted as soon as they are available. The slides and law review articles constitute the CLE presentation materials for the Symposium.

Symposium Schedule of Events

Registration and Continental Breakfast (8:00 – 8:30)

Introductions and Welcome (8:30 – 8:45)

Science and Technology of Hydraulic Fracturing (8:45-9:45) - (video)
Moderator: Anastasia Telesetsky (Idaho)
John Imse (NORWEST) - Presentation (pdf)
Virginia Gillerman (Idaho Geological Survey) - Presentation (pdf)

Break (9:45-10:00)

Regulation of Hydraulic Fracturing’s Environmental Effects (10:00 – 12:35)
Water. (10:00 – 11:00) - (video)
Moderator: Barbara Cosens (Idaho)
Joseph Dellapenna (Villanova) - Primer on Groundwater Law (pdf) - Presentation (pdf)
Robin Kundis Craig (Utah) - Hydraulic Fracturing (Fracking), Federalism, and the Water-Energy Nexus (pdf)

Air & Land. (11:00 – 12:20) - (video)
Moderator: Jerrold Long (Idaho)
Jim Wedeking (Sidley Austin LLP) - Up in the Air (pdf)
Carlos Romo (Baker Botts LLP) - Rethinking the ESAs Orderly Progression (pdf)- Presentation (pdf)
Elizabeth Burleson (Pace)

Morning Wrap-Up Panel Discussion (12:20 – 12:35)

Lunch Break (12:35-1:50)

State & Local Government Regulation Hydraulic Fracturing (1:50 – 2:50) - (video)
Moderator: Stephen R. Miller (Idaho)
Uma Outka (Kansas) - Presentation (pdf)
Michael Christian (Marcus Christian Hardee & Davies LLP) - Summary of Revisions to Idahos Oil and Gas Conservation Act and Rules (pdf)

Two Hydraulic Fracturing Hot Topics: Trespass & Trade Secrets (2:50 – 3:50) - (video)
Moderator: TBA
Chris Kulander (Texas Tech) - Common Law Aspects of Shale Oil and Gas Development (pdf) - Presentation (pdf)
Keith Hall (Louisiana State) - Hydraulic Fracturing: Trade Secrets (pdf) - Presentation (pdf)

Break (3:50 – 4:00)

Does Hydraulic Fracturing Have a Role in a Clean Energy Future? (4:00 – 5:00) - (video)
Moderator: Dale D. Goble (Idaho)
Joshua Fershee (West Virginia)
Patrick Parenteau (Vermont) - A Bridge Too Far (pdf) - Presentation (pdf)

Concluding remarks (5:00 – 5:15)

Reception (5:15 – 6:15)


Click on the Presenter's name for more information about presenter.

  • Elizabeth Burleson

    Associate Professor of Law
    Pace Law School
    White Plains, New York

    Elizabeth BurlesonProfessor Burleson received her LLM in International Law from the London School of Economics and her JD from the University of Connecticut. She is a Fulbright Senior Specialist and Pace Law School Faculty. She has taught Energy Law, Human Rights and Environment, International Environmental Law, Public International Law, UN Law, International Law and China, Property Law, International Economic Law and the Environment, Water Law, and Environmental Law. Focusing on emerging international law, she has been an advisor to UNICEF's Senior Advisor for the Environment and to the New York Director of UNEP. She has also written reports for UNESCO and UNDP. She has presented on treaty-making for the UN Office of Legal Affairs, having participated in the drafting process for the United Nations Framework Convention on Climate Change (UNFCCC), Agenda 21, and the Rio Declaration. She was a member of the UNICEF delegation to the Bali Climate Conference; worked with the NWF and UNEP delegations to the Copenhagen Climate Conference; and with the IUCN and ASIL delegations to the Cancun, Durban and Doha Climate Negotiations. Professor Burleson is on the International Law Association’s Committee on the Principles Relating to Climate Change, IUCN's Climate Change Core Group, and the National Wildlife Federation President's Advisory Council. She has also conducted legal research for Amnesty International's London-based International Secretariat and New York-based research division and has provided climate-energy expertise to the Japanese, Uruguayan and French Governments. She has also provided legal advice to small island states and least developed countries through the Legal Response Initiative.

  • Michael Christian

    Partner Marcus, Christian, Hardee & Davies, LLP
    Boise, Idaho

    Michael ChristianMichael Christian is a graduate of Northwestern University and the University of Washington School of Law. He has provided business counseling, compliance, transactional and litigation services to manufacturing, mining and technology companies and numerous small businesses for twenty years, the last fifteen of them in Boise, Idaho. He regularly represents clients in the negotiation of real estate leases and sales, stock and asset sales, and other contracts, as well as in litigation covering a wide range of business and real estate disputes. He has successfully represented both employers and employees regarding employee covenants not to compete. He also regularly assists clients in family law and estate planning matters. He is admitted to the practice of law in Idaho and Washington, including all federal and state courts in both states, and is admitted to practice before the Ninth Circuit Court of Appeals. He has successfully argued appeals before both the Idaho Supreme Court and the Ninth Circuit. He serves on the board of directors of Boise Contemporary Theater.

  • Robin Craig

    University of Utah S.J. Quinney College of Law
    William H. Leary Professor of Law
    Salt Lake City, Utah

    Robin CraigAfter earning a Ph.D. at U.C. Santa Barbara in English literature, Robin Craig attended the Lewis & Clark School of Law in Portland, Oregon. There, she worked for the Natural Resources Section, General Counsel Division, of the Oregon Department of Justice, which allowed her to work on a variety of environmental law issues, from Clean Water Act work to CERCLA cleanups to salmon and tribal issues to the intersection of state tax law and environmental law. After graduation, she stayed in Portland to clerk for two years for U.S. District Judge Robert Jones

    Professor Craig previously taught at the Lewis & Clark School of Law, Western New England College School of Law in Springfield, Massachusetts, Indiana University-Indianapolis School of Law, and the Florida State University School of Law. Her areas of professional expertise include Property, Environmental Law, Ocean & Coastal Law, Administrative Law, Water Law, Toxic Torts, and Civil Procedure.

    Professor Craig's research focuses on "all things water," especially the impact of climate change on freshwater resources and the oceans and the intersection of water and energy law; she also has written several articles and book chapters on constitutional environmental law, administrative law, and statutory interpretation. She is the author or co-author of four books--Comparative Ocean Governance: Place-Based Protections in an Era of Climate Change (2012), Environmental Law in Context (3rd ed. 2012), Toxic and Environmental Torts (2010), and The Clean Water Act and the Constitution (2nd ed. 2009) -- and is currently working on a new water law textbook, Modern Water Law, with Professors Bob Adler and Noah Hall, due out in late 2013. Her publications also include over 50 law review articles and book chapters.

    Professor Craig has served on three successive National Research council committees on the Clean Water Act and the Mississippi River and currently works as a research consultant to the Environmental Defense Fund. She is active in the American Bar Association's Section on Environment, Energy, and Resources, where she is currently serving on the Executive Council and helping to plan the 2013 Annual Water Law Conference.

  • Joseph W. Dellapenna

    Professor of Law Villanova University School of Law
    Villanova, Pennsylvania

    Joseph DellapennaJoseph W. Dellapenna is Professor of Law at Villanova Uni­versity, in Villanova, Pennsylvania. He has taught at law schools in the United States and abroad for 44 years. He has practiced, taught, and written about water, both in the United States and internationally, for this entire period. He teaches a course on Managing the Water Environment, as well as courses on Admiralty, Chinese Law, Comparative Law, Conflicts of Law, Contracts, and Transnational Litigation. Over the years, he has also taught Environmental Law, International Trade Law, Law of the Sea, Natural Resources Law, Ocean and Coastal Management Law, and Public International Law. Professor Dellapenna has served as a consultant to governments on three continents regarding water law reform and on transboundary water disputes. He represented the Connecticut Water Works Association in City of Waterbury v. Town of Washington, 260 Conn. 506, 802 A.2d 1102 (2002), persuading the Connecticut Supreme Court to adopt a significant reinterpretation of Connecticut water law.

    Professor Dellapenna serves as Director of the Model Water Code Project of the American Society of Civil Engineers and served as Rapporteur of the Water Resources Committee of the International Law Association. As Director of the Model Water Code Project, he led in the drafting of the Appropriative Rights Model Water Code and the Regulated Riparian Model Water Code, and supervised the preparation of Model Agreements for Sharing and Use of Transboundary Waters and Model Water Regulations for Administration and Trading in Humid Areas. As Rapporteur, he led the revision of the Helsinki Rules, the generally recognized summary of the customary international law on water resources, which resulted in the International Law Association’s approval in August 2004 of the Berlin Rules on Water Resources to replace the Helsinki Rules. He chairs the Water Regulatory Standards Committee and has chaired the Standards Development Council of the Environment and Water Resources Institute of the American Society of Civil Engineers. He contributed about half of the five volume treatise Waters and Water Rights, the standard reference on water law in the United States. He is the only contributor whose works appears in all five volumes. He has also written numerous other books and articles.

    Professor Dellapenna received a B.B.A. with distinction from the University of Michigan in 1965, a J.D. cum laude from the De­troit College of Law in 1968, an LL.M. in Public International and Comparative Law from the George Washington University in 1969, and an LL.M. (Environmental Law) from Columbia Univer­sity in 1974. He has been a member of the faculty of the University of Cincinnati and of Willamette University and well has holding several visiting professorships at other American universities and lecturing at numerous universities outside the United States. He has also been a Fulbright Senior Professor in the Republic of China, in the People’s Republic of China, and in Portugal, and is a regular visiting professor at the European Humanities University in Vilnius, Lithuania, at the University of Macau, and at the University of South Australia.

  • Joshua Fershee

    Professor of Law West Virginia University College of Law
    Morgantown, West Virginia

    Josh FersheeProfessor Joshua Fershee joined the faculty at West Virginia University College of Law in fall 2012. His research and scholarship focus primarily on energy law and corporate law issues. Recent articles have discussed renewable energy programs in the transportation and electricity sectors, climate policy, geothermal energy, and corporate governance and law. His courses include Business Organizations, Energy Law & Policy, and The Energy Business: Law & Strategy. He was formerly a co-editor of the Business Law Prof Blog and a contributor to the Agricultural Law Blog.

    Professor Fershee received his J.D. magna cum laude from Tulane Law School, where he was elected Order of the Coif and editor in chief of the Tulane Law Review. He is also a graduate of Michigan State University, where he received a B.A. in Social Science, with a focus on economics, psychology, and sociology. Before joining WVU, Professor Fershee served as Associate Professor of Law and Associate Dean for Academic Affairs & Research at the University of North Dakota School of Law. Prior to that, he served as a visiting assistant professor of law at Penn State University’s Dickinson School of Law in State College, PA.

    Professor Fershee began his legal career with Davis Polk & Wardwell, New York, NY, where he represented clients in corporate and litigation matters including mergers and acquisitions, derivatives transactions, and securities regulation. He then joined the energy practice group at Hogan & Hartson, LLP, Washington, D.C., where he represented energy clients in matters before state and federal regulators, analyzed state and federal legislation, and advised clients on mergers and acquisitions, climate change issues, and renewable portfolio standards.

  • Virgina (Ginna) S. Gillerman

    Research Geologist University of Idaho/Idaho Geological Survey
    Boise, Idaho

    Virgina GillermanGinna has been a research geologist with the Idaho Geological Survey (part of the University of Idaho) since 1989. She staffs a one-person office in Boise for the Survey, and she is also their economic geologist. Prior to moving to Boise from Reno, Ginna received a Ph.D. from the University of California, Berkeley, and her undergraduate degree from Carleton College. She started her career in mineral deposits with AMAX Exploration, working in the Railroad Mining District of Elko County, Nevada. After grad school she spent 5 years in exploration with Anaconda Minerals Company in Reno, exploring for gold and polymetallic deposits in Utah, Nevada and Alaska. Following a year of teaching back at Carleton College, she returned to Nevada as a contract geologist working mostly on gold exploration for several major companies.

    In 1989, she moved to Boise to staff a new satellite office for the Survey. She learned about Idaho mining from Dr. Earl Bennett, then the State Geologist, and was given the task of preparing the annual review of Idaho’s mining industry. With the IGS, she has multiple responsibilities, including reports and public inquiries on ore deposits, energy and the geology of SW Idaho, the annual mining and exploration review (typically presented at Northwest Mining Association meeting and in print), and research projects. Specific projects have included geologic mapping in the Mayfield, Hagerman and other areas in Idaho, inventories of abandoned and inactive mines on public lands, and research on geology and geochronology of rare earth and thorium deposits in the Lemhi Pass District of Lemhi County, Idaho. Over the past 20 years, she has also taught several classes on “Mineral Resources and Mining” at Boise State University. Current research projects include studies on rock types in aggregate used for highway concrete and gold deposition in the Stibnite Mining District
  • Keith B. Hall

    Louisiana State University College of Law
    Assistant Professor of Law
    Director of Louisiana Mineral Law Institute
    Baton Rouge, Louisiana

    Keith HallKeith B. Hall is the Director of the Louisiana Mineral Law Institute and an Assistant Professor of Law at Louisiana State University. Before joining LSU, he was member of Stone Pigman Walther Wittmann L.L.C. in New Orleans, where he practiced law for 16 years, focusing his practice on oil and gas law, environmental law, and toxic tort litigation. He serves as Chair of the New Orleans Bar Association's Oil and Gas Committee, Vice Chair of the Louisiana Bar Association's Environmental Law Section, a member of the Board of Trustees for the Rocky Mountain Mineral Law Foundation, and a member of the Advisory Board for the Institute for Energy Law. He co-authors "Recent Developments: Mineral Law" for the bimonthly Louisiana Bar Journal. Before joining the LSU faculty, Mr. Hall taught Introduction to Mineral Law as a member of the adjunct faculty at Loyola University School of Law in New Orleans, and was the author of his law firm's blog, the "Oil and Gas Law Brief." He also served as co-chair of his firm’s energy and environmental law practice group.

    Mr. Hall joined the LSU Law Center faculty in 2012. He received his B.S. in Chemical Engineering from Louisiana State University in 1985. Following graduation, he worked for eight years as a chemical engineer. He received his J.D. from Loyola University School of Law in 1996, where he graduated summa cum laude. While at Loyola, he served as Managing Editor of Loyola Law Review and was a member of Moot Court. Upon law school graduation, he joined the firm of Stone Pigman Walther Wittmann, L.L.C. where he remained until joining the Law Center faculty. He currently teaches the newly created Energy Law Seminar which focuses on the oil and gas industry.

  • John Imse

    Vice President of Water Resources and Environmental Services
    Norwest Corporation
    Denver, Colorado

    John IsmeMr. John Imse is the Vice President of Water Resources and Environmental Services at Norwest Corporation. In this role Mr. Imse leads the growth of Norwest’s hydrological and environmental practice and also manages Norwest’s Denver office.

    Mr. Imse has over 30 years of experience in providing high-value hydrogeology and environmental consulting services to a wide variety of clients including mining companies and oil and gas producers. Mr. Imse has established, grown, and developed multi- disciplinary consulting practices in New England, the Midwest, and Western U.S. office locations. His experience includes CERCLA and RCRA project management, regulatory agency negotiation, state voluntary investigation/remediation programs, risk-based corrective action, private party allocation negotiations, litigation support, and expert witness testimony. Most recently he served as the Principal with ENVIRON, a global provider of environmental services. Prior to joining ENVIRON, he served in management and consulting roles with Environmental Resources Management Co. and Weston Geophysical. He has a B.A. degree in geology from Lawrence University and an M.S. degree in geology from Idaho State University.

    Mr. Imse works with staff of nearly 250 Norwest mining, energy, and environmental professionals. Norwest provides specialty consulting services to energy and mining companies, financial institutions, electric power producers, legal firms, regulatory and government agencies. The company serves a worldwide client base through offices in the U.S. and Canada.

  • Christopher Kulander

    Assistant Professor of Law
    Texas Tech University School of Law
    Lubbock, Texas

    Chris KulanderAssistant Professor Kulander teaches oil and gas law, property and mining law at the Texas Tech School of Law. He is also Of Counsel to Haynes and Boone, LLP. He joined the faculty in the summer of 2011 and is admitted to practice in Texas and New Mexico. He received his J.D. from the University of Oklahoma, where he was managing editor for the Oklahoma Bar Mineral Law Newsletter, note editor and assisting managing editor for the American Indian Law Review, and research assistant for Owen L. Anderson, Eugene Kuntz Chair of Oil and Gas Law.

    Before teaching, Professor Kulander practiced for four years in the Houston office of Haynes and Boone, LLP within the Energy Practice Group, focusing on energy lending, finance, and bankruptcy. Prior to that, he practiced for two years with Cotton & Bledsoe in Midland, Texas, focusing on oil and gas title and leasing.

    Before law school, he received his B.S. and M.S. in geology from Wright State in Dayton, Ohio, and his Ph.D. in geophysics (petroleum seismology) from Texas A&M, after which he worked as a geophysicist for the U.S. Geological Survey. He has written and published in the fields of oil and gas law, land use control, American Indian law as well as in geology and petroleum seismology.

  • Uma Outka

    University of Kansas School of Law
    Associate Professor of Law
    Lawrence, Kansas

    Uma OutkaProfessor Outka joined the KU Law faculty as an associate professor in 2011. She teaches environmental law, energy law and related courses, as well as property. Before coming to KU Law, Outka spent two years as a Visiting Scholar in Energy and Land Use Law at the Florida State University College of Law. As a faculty research partner with FSU's Institute for Energy Systems, Economics and Sustainability (IESES), Outka directed a Sustainable Energy Research Project aimed at understanding and advancing legal frameworks to support sustainable energy development. She taught Sustainable Development Law and organized a national symposium on energy and land use issues at FSU. Before entering academia, Outka served as general counsel for 1000 Friends of Florida, a non-profit advocacy organization focused on growth management, environmental conservation and affordable housing, and worked as a litigation attorney at a large Northeast law firm, Verrill Dana LLP in Portland, Maine. She is a summa cum laude graduate of the University of Maine School of Law and holds a master's in public policy and administration from the Muskie School of Public Service.

  • Patrick Parenteau

    Vermont Law School
    Professor of Law
    Senior Counsel to the Environmental and Natural Resources Law Clinic
    South Royalton, Vermont

    Patrick ParenteauProfessor Patrick A. Parenteau, formerly director of Vermont Law School's Environmental Law Center and of the Environmental and Natural Resources Law Clinic, is recognized for his expertise regarding endangered species and biological diversity, water quality and wetlands, environmental policy and litigation, and land use and property rights. The courses he has taught at Vermont Law School include Environmental Policy and Management, Citizen Suits, Watershed Protection, and the Extinction seminar.

    Professor Parenteau received his BS degree in business administration from Regis College in 1969 and his JD degree from Creighton University in 1972. He served as staff counsel for the Legal Aid Society of Omaha, Nebraska, and then earned his LLM degree from George Washington University in 1975. From 1976 to 1984, he held three positions with the National Wildlife Federation in Washington, DC: counsel, director of the resources defense division, and vice president for conservation. During this period, he also served as an adjunct professor at Vermont Law School, at George Washington University, and at the Northwestern School of Law of Lewis and Clark College. From 1984 to 1987, he served as regional counsel for the United States Environmental Protection Agency, Region I, in Boston, during which time he helped establish national precedent for wetlands protection (Sweedens Swamp/Attleboro Mall). Professor Parenteau served as commissioner of the Vermont Department of Environmental Conservation from 1987 to 1989, then was of counsel to the firm of Perkins Coie in Portland, Oregon, from 1989 to 1993. He served as special counsel to the U.S. Fish and Wildlife Service during the spotted owl exemption proceedings in 1991 to 1992. In 1993, he returned to Vermont to assume the directorship of the Environmental Law Center, a position he held through 1998. In 2003, he helped found and directed the Environmental and Natural Resources Law Clinic at VLS, where he now serves as senior counsel. Professor Parenteau has lectured on environmental issues in the Czech Republic, Cuba, Russia, and China. He also teaches at Dartmouth College as an adjunct professor in environmental studies. Professor Parenteau is the recipient of the 2006 National Conservation Achievement Award in the Legislative division, presented by the National Wildlife Federation.

  • Carlos Romo

    Associate Baker Botts, LLP
    Austin, Texas

    Carlos RomoCarlos Romo practices at the intersection of energy and environmental law, concentrating on environmental litigation matters relating to air, water, waste and endangered species statutes and regulations. He has helped clients in a variety of industries evaluate, litigate and resolve environmental concerns and has worked on enforcement, permitting, safety compliance and transactional matters.

    Following graduation from law school, Mr. Romo served as a briefing attorney to the Honorable Wallace B. Jefferson, Chief Justice of the Supreme Court of Texas.

    Before law school, Mr. Romo was a project director at a policy think tank focusing on budget and tax issues. His duties included legislative advocacy, issue development, public policy research and strategic planning. Prior to that, he worked in New York and Latin America on housing finance issues.

  • Jim Wedeking

    Staff Attorney Sidley Austin, LLP
    Washington, D.C.

    Jim WedekingJim Wedeking is an environmental litigator, representing large companies and industry trade associations in federal district and circuit courts. His experience includes the defense of criminal and civil enforcement actions, toxic tort defense, permit appeals, rulemaking challenges and complex civil litigation. A key aspect of Mr. Wedeking’s practice includes developing an involved understanding of the operation of client facilities in the oil and gas, electric power, manufacturing and agricultural industries in order to better understand their needs and advocate for their interests.