The 24th Annual IEL Energy Litigation Conference: Key Insights

Recently, Hicks Johnson Partner Persis Dean served as Conference Co-Chair for the Institute for Energy Law’s 24th Annual Energy Litigation Conference in Houston. This event gathered top in-house and private practice energy litigators to discuss trends and themes in the practice area, including:

Planning alongside uncertainty:

From renewables and CCS to AI and nuclear verdicts, energy litigators currently face a wave of new uncertainties. Fortunately, this industry has weathered volatility before, and has legal tools, precedent, and institutional knowledge to chart a path forward.

Grappling with AI:

AI is shaping evidence, ethics, and everyday litigation strategy. Machine-generated content poses many complex the evidentiary and ethical challenges. The energy litigation community is engaged in a comprehensive investigation of how AI is transforming both the courtroom and case prep.

Strategizing around ever higher stakes:

It’s clear that nuclear verdicts, once rare, are now increasingly common. Practitioners shared best practices for mitigating risk, understanding jury dynamics, and preparing for high-stakes outcomes.

Understanding the new business courts:

Energy litigators continue to deepen their familiarity with the Texas Business Courts, including how these new courts compare with arbitration for resolving complex commercial disputes, especially in energy.

Hicks Johnson Partner Logan Johnson moderated a panel that touched on all these themes, “Navigating Legal Risk in a Shifting Energy Landscape,” which featured Allison Sulser Thomison, Senior Legal Counsel at Equinor; Bryan Rohm, Deputy General Counsel — Litigation, Major Claims & Investigations at TotalEnergies; and Hicks Johnson’s own BB Neely, Chief Information Officer. This expert discussion explored critical legal challenges including:

Renewables and AI-Driven Energy Demand

The conversation addressed growing concerns about grid congestion and curtailment risk affecting wind and solar projects, and the fact that power purchase agreements are experiencing strain due to lost revenue and delivery shortfalls. As AI data centers drive unprecedented demand for electricity and create intense competition for available power capacity, they are creating legal implications around curtailment clauses that allocate risk between developers and offtakers, as well as issues surrounding grid access and prioritization when multiple projects compete for limited transmission capacity.

Consolidation and Indemnity Challenges

As merger and acquisition activity continues in the energy sector, disputes over legacy liabilities have become increasingly common. When companies merge, inherited environmental and contractual obligations create complex legal exposure. Panelists noted that indemnity clauses in M&A agreements are often vague or outdated, leading to protracted disputes over who bears responsibility for pre-existing issues. The key drafting recommendation was to be specific when defining scope, duration, and transferability of indemnification obligations to avoid ambiguity that leads to litigation.

AI in Litigation

The panel also addressed the rapid adoption of artificial intelligence in legal practice. While AI tools are becoming widespread in the legal industry, vertical integration remains in early stages. Panelists observed that early litigation trends have focused primarily on breach of warranty and fraud claims. They cautioned that significant legal challenges lie ahead as AI becomes more deeply embedded in energy transactions.

Lithium From Produced Water

Finally, panelists discussed the emerging opportunity to extract lithium from produced water in oil and gas operations. Legal uncertainties remain regarding ownership rights, including whether lithium qualifies as a mineral estate, surface right, or waste product. Key unresolved issues also include lease coverage, royalty obligations, joint operating agreements, and water use rights. The discussion highlighted Texas law developments, such as Cactus Water Services, LLC v. COG Operating, LLC, 718 S.W.3d 214 (Tex. 2025) and Section 122 of the Natural Resources Code, as the legal framework continues to evolve around this nascent sector.

Additional panels at this year’s conference included:

“Recent Developments in Energy Law” Speaker: Keith B. Hall, Director of the John P. Laborde Energy Law Center, Paul M. Hebert Law Center, Louisiana State University

This panel examined significant state law developments in energy law, with particular focus on oil and gas issues. Key cases discussed included Cromwell v. Anadarko E&P Onshore, LLC, 716 S.W.3d 515 (Tex. 2025), where the Texas Supreme Court held that production by one co-tenant can maintain another’s lease without a joint operating agreement, based on passive voice language in the habendum clause. Myers-Woodward, LLC v. Underground Services Markham, LLC, 716 S.W.3d 461 (Tex. 2025) established that surface estate owners, not mineral lessees, own salt dome caverns created through mining. This session also addressed the emerging value of produced water for lithium extraction, carbon capture storage controversies in North Dakota, a major Louisiana coastal lawsuit resulting in a $744 million jury verdict currently on appeal based on a removal issue, and EOG Res., Inc. v. Lucky Land Mgmt., LLC, 134 F.4th 868 (6th Cir. 2025), an Ohio case restricting horizontal drilling into other lands.

“Evidentiary Challenges and Opportunities in the Age of AI-Generated Evidence” Speaker: Hon. Xavier Rodriguez, U.S. District Court for the Western District of Texas

Judge Rodriguez discussed Proposed Federal Rule of Evidence 707 and the challenges of admitting AI-generated evidence under current Daubert standards, which require expert testimony to be both relevant and reliable, and that the methodology of reasoning behind the expert’s opinion be scientifically valid. He shared an experiment where he compared his traditional findings of fact with AI-generated versions, finding the AI produced a decent 55-page first draft with citation errors. Key concerns included AI’s lack of peer review, unknown error rates, and the “black box problem,” where AI generates unexplainable results. Rodriguez emphasized that attorneys must question experts about how they are using AI in preparing for testimony, and how the particular AI tool in question was trained. He also noted that proprietary AI tools create transparency issues and raise questions about who qualifies as an expert (the user, or the developer of the tool?). E-discovery implications were highlighted, including whether AI prompts constitute attorney work product and whether preservation obligations should apply to AI-generated content.

“Roads to Resolution: The Texas Business Court and Arbitration in Complex Commercial Disputes” Moderator: Yanett Quiroz, Vice President, ICDR-AAA. Panelists: Hon. Sofia Adrogué, Texas Business Court Eleventh Division, Houston; Hon. Grant Dorfman, Texas Business Court Eleventh Division, Houston; Hon. Bill Whitehill, Texas Business Court First Division, Dallas; David W. Jones, Beck Redden LLP

This panel discussed Texas’ new business court, which has exceeded expectations with nearly 200 cases filed, including 100 in Houston. Judges praised the high quality of attorney work product and emphasized their openness to practitioner feedback. Business courts offer advantages over arbitration including specialized qualified staff, ability to write precedential opinions, and faster resolution (trials within a year). The court demonstrates flexibility on confidentiality issues while maintaining public accountability. Judges emphasized accessibility, offering face-to-face meetings within 24 hours to avoid discovery disputes. Appeals are consolidated to the 15th Court of Appeals. The panel noted arbitration may still be preferable when finality without perfection is the goal, emphasizing that practitioners should assess their specific case needs when choosing forums.

“CCS Update and Trends” Moderator: Jonathon Hance, Bracewell LLP; Panelists: Sarah P. Steward, Senior Counsel, Exxon Mobil Corporation, and Katherine Strange, Chief Legal Officer, Milestone Environmental

This panel covered carbon capture storage developments, emphasizing the importance of working with receptive regulators and the 45Q tax credit. Discussion included proposed legislation limiting foreign involvement in projects and EPA’s proposed rule rescinding greenhouse gas reporting requirements, which could create unintended tax consequences. The panel highlighted strong bipartisan federal support for carbon capture storage, contrasting with more challenging local-level reception. Panelists stressed the importance of community engagement and effective public relations messaging at the local level. They recommended litigators become involved in the permitting process, noting that presenting cases before the railroad commission can require entire teams due to numerous challenges. The panel underscored that regulatory navigation requires both technical expertise and strategic stakeholder communication.

“High Stakes Justice: Understanding and Managing Nuclear Verdicts in the Energy Industry” Panelist: Edward Casmere, Norton Rose Fulbright US LLP

This session examined the rise of nuclear verdicts in energy litigation, noting weekly occurrences with limited public outcry compared to past reactions. Casmere discussed how successful appeals rarely receive media attention, creating reputational risks for defendants. Contributing factors include increased social acceptability of litigation, lawyer advertising, litigation funding, and public desensitization to large numbers due to celebrity wealth increasingly becoming a frame of reference. Casmere emphasized that jurors’ concepts of acceptable risk have evolved, making historical benchmarks less relevant. He outlined a “no nukes” defense strategy requiring immediate disclosure of bad news, extensive focus group research to understand local juror perspectives, likable legal teams and witnesses, persuasive affirmative narratives, and strategic anchoring of damage amounts. The presentation highlighted how anchor points significantly influence jury verdict amounts.

“Guidelines and Guardrails: Adapting to Anomaly in Crisis Management (Ethics)” Panelists: Lauren Brogdon, Haynes and Boone, LLP, and Jennifer L. Job, Senior Counsel, Operations / Litigation, Exxon Mobil Corporation

This ethics-focused panel addressed crisis management communication strategies, emphasizing that transparency doesn’t always resonate positively with audiences. Brogdon and Job stressed maintaining credibility through relationship-building and avoiding inconsistency rather than insisting on rigid consistency. They advised tailoring information to specific audiences rather than closing ranks indiscriminately. Public statements should balance having a prepared playbook while avoiding formulaic responses. Essential elements for public statements include factual information about what occurred, timing, emergency response details, subpoenas received, and the composition of response teams. The panel recommended providing specific timelines for future updates, which audiences find most comforting; quoting external authorities when appropriate; maintaining alignment with core values; and establishing procedures for contacting next of kin. They also addressed privilege concerns, noting that investigations aren’t always privileged, and examined the ways in which privilege waiver can present significant issues.

Given the scope and timeliness of the trends and issues addressed by experts in energy litigation, this year’s conference provided true thought leadership, best practices, and the opportunities to connect that drive our work forward. Thank you to all the presenters and attendees.