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State needs to do more to protect land owners' gas royalty checks

Marcellus shale gas leases across Pennsylvania have generated hundreds millions of dollars in royalty payments for individual landowners and the state. Some landowners, however, have been complaining that a few gas producers are cheating them by improperly deducting post-production costs from royalty payments.

A bill to address this problem was introduced in the state House of Representatives late last month. Landowners, particularly people receiving royalty payments from Oklahoma-based Chesapeake Energy, have complained for years that their checks are being cut improperly by so-called post-production costs. Despite landowners having contracts specifying they will receive a royalty of 15 percent or more, the legal language is a matter of dispute and the net percentage received can be much lower.

The state’s Guaranteed Minimum Royalty Act of 1979 set a minimum of 12.5 percent, but some leases contain language stating companies can deduct from royalty checks their post-production costs or gathering fees, which include transportation, compression and dehydration.

Not all gas companies are playing this game and shortchanging landowners receiving royalty payments. The industry claims most companies treat landowners honestly and are transparent about costs. Industry groups argue that a few bad actors are giving the industry a bad name. That might be true, but it does not mean the apparent cheating should continue.

Despite its suggestion that just a few bad operators are playing these accounting tricks, the industry fought to keep House Bill 1391, introduced by state Rep. Garth Everett, R-84th, from becoming law. Everett prepared his bill last year, but the gas industry’s friends in the General Assembly kept it from coming to the floor for a vote.

Everett said his bill, providing a guaranteed minimum lease royalty percentage, was “held up in strategic places by strategic people — the leadership in the Republican caucus.”

It was individual landowners who filed suit and pressed for a law to address this issue and make sure they are not being cheated. But the state has the same interests, with gas leases on state-owned land. So it’s troubling that little has been heard from the state about being shortchanged in the same ways.

If gas producers are playing accounting games to slash royalty checks for wells on state-owned land, it could mean a shortfall of tens of millions of dollars due the state.

Unfortunately, private landowners seem to care, but state officials are less concerned about not being fully and fairly compensated.

Defenders of the state’s lack of action point to bureaucracy as the problem with the Department of Conservation and Natural Resources (DCNR) as well as the Game Commission controlling gas drilling on public lands.

The DCNR has not said much publicly about the royalty issue, but documents from open-records requests reveal internal investigations into reductions in royalty payments for gas wells on state land. The DCNR says that leases for gas production on state land prohibits the deduction of post-production expenses from royalty payments.

Chesapeake Energy disagrees.

A 2013 report by ProPublica found that the gas industry has a complex system of accounting with gas ownership changing hands multiple times between well head and consumer.

The report also found that companies can sell gas to a subsidiary at an artificially low price, using that price for royalty payments, then resell it later at higher market prices.

Gas producers inclined to cheat can rely on complex accounting and business practices to hide their improper reductions to royalty checks. Landowners have little recourse other than the courts, and lawsuits are expensive — another advantage for gas companies with staff lawyers and deep-pockets.

Rep. Everett deserves credit for attempting to correct the abuses related to gas royalty checks, but the bill’s guaranteed minimum would only apply to future leases. That means current lease holders get no help, and can only take costly legal action to get the royalty payments promised in their contracts — which is evidence of the undue power of gas companies in Harrisburg.

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