I. Introduction

The Notorious B.I.G. could not have known it would apply in this context, but the landscape of the energy industry in 2015 was aptly described by the title of one of his most famous songs: “Mo Money Mo Problems.”[1] In this context, the “money” at issue involved high-dollar contracts between upstream and midstream energy companies. The “problems” began with a bankruptcy court’s holding in In re Sabine Oil & Gas Corp. (Sabine).[2] The upheaval that led to Sabine arose in the wake of the 2014–2015 downturn in the energy industry, a phenomenon that saw a wave of bankruptcy filings for upstream oil and gas companies working in the exploration and production (E&P) sector.[3] Sabine involved a series of disputes between the debtor, Sabine Oil & Gas (Sabine), and parties that Sabine had so-called “gathering agreements” with; the central purpose of these gathering agreements was for the construction and operation of midstream infrastructure to transport and process gas that Sabine produced.[4] Sabine filed for Chapter 11 bankruptcy and sought to reject these gathering agreements during bankruptcy to shirk the financially onerous burden the agreements created due to then-present natural gas market conditions.[5] Whether Sabine could properly reject these contracts, and therefore whether it would be on the hook for millions of dollars in contractually mandated payments to the midstream companies, was determined based on whether the contracts were “executory”[6] and whether the agreements created “covenants running with the land.”[7]

In essence, a “covenant” is a promise to do or not do something, whereas a “servitude” is “a right or obligation that runs with the land or an interest in land.”[8] Contractual covenants are analyzed in the oil and gas bankruptcy context to determine whether they are “real covenants” or “personal covenants,” as real covenants bind contractual successors in interest in the burdened land.[9] The upshot is that historically, in contract rejection cases like Sabine, bankruptcy courts have analyzed whether agreements create real covenants or equitable servitudes, and if they do not, rejection of these contracts is permitted.[10] The Sabine court found that the contracts did not create real covenants that ran with the land or equitable servitudes because the covenants in the contracts failed part of the covenant running with the land analysis.[11] Accordingly, Sabine could properly reject the contracts and thereby be liable only for damages—rather than the originally negotiated contractual investments—which would amount to pennies on the dollar relative to what Sabine would have been required to pay out.[12]

Cue the onslaught. The years following the Sabine decision yielded numerous high-profile oil and gas Chapter 11 contract rejection decisions, with cases such as In re Extraction, In re Southland, and In re Chesapeake all allowing debtors to reject similar types of contracts to those at issue in Sabine.[13] Despite decisions that temporarily heartened midstream companies who were parties to these agreements,[14] the proverbial tide appears to have turned towards upstream companies and strengthened their ability to reject contracts during bankruptcy.[15] Today, the cause for concern for midstream companies arises from the lack of medium- to long-term financial protection as a result of the rejection of these contracts; the Southland case alone involved an approximately $350 million investment on the part of the midstream company to build the infrastructure agreed to under the contract.[16]

The most optimal solution to this problem appears to be a combination of solutions. “Strengthening” the dedication language (showing clear intent to create a covenant running with the land) by itself appears to be insufficient.[17] Therefore, the ideal approach likely involves: (1) the creation of a lien right in the contract; (2) a letter of credit from the upstream producer when the contract is agreed to; and (3) some kind of targeted public relations effort on the part of the midstream company, advocating against upstream contract rejection. These contractual fortifications, in conjunction with the strengthening of the dedication language, may be enough to help a contract survive Chapter 11 proceedings.[18]

It remains to be seen whether the recent approach taken in the Sanchez case—formally bifurcating the rejection analysis into whether a contract is executory and (separately) whether there are covenants running with the land—will be applied in a formulaic way by other courts.[19] Despite confronting similar issues, courts have used different methods to determine whether contracts can be rejected, and this may continue in the future.[20] There is also ongoing uncertainty about what the new status quo will look like for future agreements negotiated between upstream and midstream companies. As the Southland court described, there is a mutual and symbiotic relationship between these companies when contracts are properly written and contractual duties are properly carried out.[21] The mutual need will likely continue to provide an impetus for midstream and upstream companies to negotiate these gathering and transportation agreements, even if the terms are, on-balance, less favorable to midstream companies than the historical norm. Unsatisfactory as it may seem, the new status quo may be just that: entirely new.

Part II of this Note will provide background information necessary to understand the key issues at play by discussing the relevant sectors of the oil and gas industry involved in these disputes and offering a brief discussion of the kinds of contracts that are formed between upstream and midstream companies in those sectors. Additionally, this part describes what happens to those contracts during bankruptcy and the foundational caselaw that has developed since the fateful Sabine decision in 2016.[22] Next, Part III analyzes why upstream companies seek to reject contracts and what midstream companies can do to try and combat rejection. This part will detail the motivation behind why upstream oil and gas companies look to reject the gathering and transportation agreements in the first place and describes options available to midstream companies to try and prevent contract rejection during bankruptcy proceedings. This part will also address some of the realities that midstream companies are likely to face moving forward, regardless of which methods they employ to bolster their newly negotiated agreements. Lastly, Part IV concludes by describing the tenuous and uncertain position that midstream companies find themselves in when dealing with contract counterparty bankruptcies and posits that the best option for these midstream companies is to “throw the spaghetti at the wall” and see what sticks.

II. Background

Section II.A begins by offering brief definitions of some common industry terms that will be helpful in understanding the crux of the described disputes, then Section II.B describes the gathering and transportation agreements used between midstream and upstream companies that are at issue in the types of bankruptcy cases described in this Note. Section II.C offers a grossly oversimplified background on contract rejection, and Section II.D provides a timeline and description of some of the bankruptcy cases that have shaped the jurisprudential landscape in the energy industry between upstream and midstream companies.

A. What Do “Midstream” and “Upstream” Mean, Anyway?

Broadly speaking, the word “upstream” is used in the energy industry to describe activities relating to the exploration and production of oil and gas.[23] This includes the steps leading up to drilling, the drilling itself, and the bringing of the minerals to the surface.[24] “Midstream,” on the other hand, refers to the transportation and storage of minerals after they have been produced (removed from the ground) upstream.[25] This encompasses the infrastructure necessary to transport the minerals to the “downstream” refining facilities where the minerals are converted into products, such as gasoline and diesel, and subsequently stored and distributed to end-users and fuel retailers.[26] While the downstream part of the oil and gas industry is likely what consumers are most familiar with (because part of the downstream sector deals with distribution, such as buying gasoline at a gas station), this Note will focus solely on contracts created between upstream and midstream companies.[27] Some of the required midstream infrastructure can be incredibly costly for midstream companies to construct and requires significant upfront investment but is often necessary to accommodate the large volume demands of upstream producers.[28]

B. Reciprocity: The So-Called “Gathering and Transportation Agreements”

Given the enormous financial burden that is placed on midstream companies when building out the infrastructure necessary to accommodate an upstream producer’s demands,[29] upstream and midstream companies negotiate complex contracts called “gathering and transportation agreements” (often referred to simply as “gathering agreements”).[30] Many of these contracts include language in the “dedications” section that gives the contracting midstream company exclusive rights in the minerals that the upstream companies produce, thus dedicating upstream production to the midstream company.[31] These dedications provisions are often the epicenter of a court’s analysis when it is trying to determine whether there are covenants running with the land in a gathering agreement, as seen in Southland, Extraction, Alta Mesa, and Sabine.[32] If the agreements created real covenants running with the land, then the contract could not be rejected by a debtor during Chapter 11 proceedings—hence the extensive litigation.[33]

Such was the common understanding prior to Sanchez. However, in a recent opinion out of the U.S. Bankruptcy Court in the Southern District of Texas, the landscape again shifted as to these gathering agreements. The Sanchez court found that contract rejection may be permitted, regardless of whether there was a covenant running with the land, if a contract is deemed to be executory.[34] This is because, in the view of the Sanchez court, “[r]eal property covenants are clear examples of rights that are not terminated by a breach of contract,” and “the presence of a real property covenant does not hinder a debtor’s right to reject its future performance duties under an executory contract.”[35] The Sanchez court went on to say that the inquiry as to whether a contract could be rejected “must be made on a case-by-case and contract-by-contract basis.”[36] The implications of such a pronouncement may be huge, as “[d]edications are typical and customary in the oil and gas industry.”[37] According to the Sanchez court’s view, a court examining whether a contract may be rejected will have little in the way of bright-line rules and will instead be forced to analyze each agreement on an ad hoc basis.

C. The Basics of Contract Rejection

Under § 365(a) of the United States Bankruptcy Code, a Chapter 11 debtor may “assume or reject any executory contract or unexpired lease.”[38] Unfortunately, the Bankruptcy Code does not define “executory contract.”[39] Despite the lack of clarity from the Bankruptcy Code itself, courts have defined an executory contract as “a contract under which the obligation of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing the performance of the other.”[40] After a debtor makes a motion under § 365(a) to reject a contract, the court will first examine whether the rejection is a sound exercise of the debtor’s business judgment.[41] This standard is generally very deferential to the debtor.[42] Notably, if a debtor succeeds in rejecting a contract, this makes the other party to the contract an unsecured creditor, allowing them to sue the debtor for damages for a breach of contract.[43] The recovery for an unsecured creditor is often considerably less than it would have otherwise received under the originally-agreed-upon contractual terms.[44] This is because an unsecured creditor does not always have the right to sell off the debtor’s collateral to satisfy the debt,[45] and thus the unsecured creditor may have to win a lawsuit to take the debtor’s assets.[46]

D. The Caselaw Chronology: Sabine to the Present

Because of Sabine, it appeared at first that the bellwether for contract rejection in the upstream and midstream oil and gas context would be whether a given contract created real covenants that ran with the land.[47] This was due in part to the fact that many of these gathering agreements were expressly written to create these real covenants, thereby shouldering the debtor with a contractual obligation that could not be shirked during bankruptcy proceedings.[48] Despite allowing for contract rejection, the Sabine decision supported this theory, as the key factor that the court analyzed when allowing rejection was that the contracts related to minerals extracted from the ground, which are personal and not real property.[49] Thus, the contracts did not create real covenants running with the land because they did not “touch and concern” the land (real property) but rather personal property (the minerals), and rejection was permitted.[50]

The Sabine way of doing things was carried forth in later bankruptcy court decisions through cases such as In re Extraction and In re Chesapeake.[51] Extraction was a series of three parallel adversary proceedings involving Extraction Oil & Gas, a (primarily) upstream producer, wherein Extraction sought to reject contracts it had made with several midstream companies.[52] In its analysis, the Extraction court went through each of the agreements that Extraction made with the midstream companies, finding that none of the agreements created covenants running with the land under Colorado law.[53]

Cracks began to appear in the traditional covenant running with the land analysis in Extraction, however, as the court specifically noted that the agreements provided for monetary damages, “which further supports that the covenants running with the land are contractual in nature; thus allowing these contracts to be rejected pursuant to Section 365 of the Bankruptcy Code even if they contain covenants running with the land.”[54] Another bad omen for midstream companies appeared in Chesapeake, wherein the Bankruptcy Court for the Southern District of Texas held that the agreement at issue failed the covenant running with the land analysis, but added in a footnote that “the Court’s analysis might have been profoundly different” had the dedications portion of the contract contained language dedicating “all of the Debtors’ right, title and interest in and to the leases.”[55] In this footnote, the Chesapeake court seemed to be hinting at the possibility of a covenant running with the land existing in these oil and gas agreements, provided that the contractual wording was right.

Possible salvation for midstream companies was short-lived, however, as the Bankruptcy Court for the Southern District of Texas—less than a year later, but with a different presiding judge—held in Sanchez that “the existence of a real property covenant does not prevent a debtor from rejecting its executory obligations in a contract.”[56] The Sanchez court went on to say that “[i]f a contract is executory, a debtor may seek rejection.”[57] According to the court, covenant analysis “must be made on a case-by-case and contract-by-contract basis.”[58] Sanchez also brought a major departure from prior caselaw, as Judge Isgur clarified that rejection of a contract and the extinguishment of a real property covenant should be separate issues in the court’s analysis.[59]

Consequently, there were certain real property covenants between the upstream and midstream companies which survived in Sanchez even though contracts between them were able to be rejected.[60] If the contract rejection analysis seems tortured and confusing to the reader at this point, you are not alone. Because of the recency of the Sanchez decision,[61] it remains to be seen exactly how the Sanchez court’s clarification of real property covenant analysis will be employed by other courts. It appears—as has been the case since Sabine in 2016—that the jurisprudential landscape surrounding the rejection and interpretation of these upstream and midstream agreements is uncertain.

III. Analysis

A. The Upshot: Why Upstream Companies Seek to Reject These Contracts

Plummeting oil prices in 2015 saw a precipitous rise in oil and gas bankruptcy filings due in large part to the burdensome amount of debt that many energy companies took on prior to the crude price decline.[62] Sixty-seven oil and gas companies filed for bankruptcy in 2015 alone, compared to just fourteen in 2014; this was a startling 379% increase from year-to-year.[63] Unfortunately, this is a trend that has continued, as more than 600 oil and gas companies—upstream and midstream alike—have filed for bankruptcy since 2015.[64]

Whereas previous bankruptcy filings may have been linked largely to oil price declines, oil and gas companies have faced a panoply of challenges in recent years: from investors pulling out of the energy sector to the global decrease in demand for oil and petroleum products in the wake of the COVID–19 pandemic beginning in 2020.[65] Sabine Oil & Gas, the company at the center of the Sabine case discussed in Part I, faced $2.8 billion in debt when it began its Chapter 11 bankruptcy journey in 2015.[66] In 2015 alone, forty-two oil and gas companies filed for Chapter 11 bankruptcy, with their total outstanding debt amounting to over $17.85 billion.[67] In the case of Sabine, the company’s debt was decreased to $350 million during the bankruptcy process, which was no small miracle given the debt-obstacle it faced prior to filing for Chapter 11 bankruptcy.[68]

However miraculous the debt-reduction turned out to be for Sabine, it was quite the opposite for many of Sabine’s creditors; those classified as unsecured creditors ended up with just “pennies on the dollar for the $1.4 billion they [said] they were owed.”[69] The Sabine situation reveals the impetus for many upstream oil and gas companies to file for Chapter 11 bankruptcy in the first place, as the upside can be huge for upstream producers who are able to successfully reject midstream contracts.[70] The situation of the unsecured creditor is more perilous, however.[71] During the Chapter 11 process, the determination of whether a debtor can reject a contract also controls the classification of creditor status (secured versus unsecured) for the other party (or parties) to the contract.[72] Therefore, this determination dictates whether that party may end up being able to recover only a fraction of what it was originally owed under the contract.[73] As a result, the classification of these agreements as “executory” and evaluation of whether there are covenants running with the land within the agreements are hotly litigated issues during oil and gas bankruptcies,[74] with large amounts of money on the line for both upstream and midstream companies.[75]

B. Rejection Protection—What Midstream Companies Can Do

1. Can You Un-kick the Hornet’s Nest? Lessons Learned from Sabine

As it was employed in Sabine, the initial midstream counterargument to Sabine’s claim that the agreements at issue could be rejected was that Sabine had covenanted in the dedications portion of the contract to deliver minerals to the midstream company, thus creating a covenant running with the land.[76] Accordingly, the midstream companies argued that the agreement “would survive rejection” because of the covenant.[77] The Sabine court did not agree.[78] First in a non-binding opinion,[79] then later in a binding opinion, the Sabine court performed an analysis of whether the agreements created real covenants running with the land, ultimately concluding that they did not.[80] Notably, the court found that the covenants did not “touch and concern” the land under Texas property law because the agreements affected minerals extracted from the ground, which are personal property, not real property.[81] The Sabine court also discussed the at-times contradictory history regarding horizontal privity of estate in Texas, noting that although caselaw was unclear on whether it was necessary, it was not present in the case before the court.[82] Accordingly, rejection of the agreements was permitted.[83]

This kicked the proverbial hornet’s nest. There may have been hope among midstream companies post-Sabine that it was still possible to prevent rejection through contract language that effectively created covenants running with the land by linking the contract to real property interests rather than personal property interests (often referred to as “strengthening the dedications”).[84] These midstream hopes were temporarily boosted with the Alta Mesa decision, in which the bankruptcy court analyzed agreements similar to those in Sabine, finding that these contracts did, in fact, create covenants running with the land under Oklahoma law, meaning that they could not be rejected during Chapter 11 proceedings.[85] What seemed like a shift back to the pre-Sabine status quo was short-lived, however, as a Delaware Bankruptcy court issued opinions in parallel adversary proceedings in 2020, all involving Extraction Oil & Gas, which turned the tide toward upstream producers yet again.[86] The Extraction court noted that even if the contracts at issue contained covenants running with the land, those covenants were “contractual in nature” and thus could be rejected under § 365.[87] According to the Extraction court, strengthening the dedication language alone does not appear to be sufficient to protect against rejection during upstream Chapter 11 proceedings.[88]

2. Lien Rights in Contracts

The principal option available to midstream companies when trying to mitigate the risk of contract rejection is the creation of a lien right in these gathering agreements. A lien, broadly speaking, is “a claim or legal right against assets that are typically used as collateral to satisfy a debt.”[89] In many states, such as Texas, oil and gas in place underground are classified as real property.[90] Accordingly, an effective way for a midstream company to obtain a lien right that applies to an upstream producer’s oil and gas interest—thereby securing the midstream company’s right to recover some of its financial investment—is through a mortgage lien.[91] A mortgage lien could be bargained for during contractual negotiations and would allow for a midstream company to have a secured claim over the real property assets—oil and gas in place underground—of an upstream company.[92] The lien right would give a midstream company a secured claim against an upstream producer’s assets in the event of an upstream bankruptcy, thereby giving the midstream company a higher likelihood of recovery.[93]

The advantage to the midstream company of this negotiated lien right would be the creation of a lien that would move the midstream company’s claim (during upstream bankruptcy proceedings) from an unsecured claim to a secured claim.[94] Because the secured debt is backed by collateral, this theoretically increases the chances that a midstream company will recover on their claim in the event of an upstream bankruptcy.[95] However, several challenges arise even with this relatively straightforward option. The first obstacle is that upstream producers may simply refuse to agree to a lien right in these gathering agreements. This is because the upstream producer is likely to already have outstanding debt obligations to move forward with its own exploration and production necessary to fulfill its gathering agreement obligations in the first place.[96]

Stemming from that hindrance, even if a midstream company can successfully negotiate the creation of a lien right in an agreement, the company may still be unsuccessful in its attempts to recover after contract rejection if its lien is lower in priority than another party’s lien.[97] Sabine is illustrative on this point, as Sabine’s “lenders end[ed] up with almost all of the company’s stock when Sabine emerge[d] from bankruptcy.”[98] Thus, while a negotiated lien right may offer a greater likelihood of recovery, it is no contractual panacea.

3. Letter of Credit from Producer when Contract Is Executed

A second option available to a midstream company when negotiating these gathering agreements is to obtain a letter of credit as a part of the agreement. A letter of credit is ‘"an engagement by its issuer to honor demands for payment by the beneficiary upon compliance with the conditions specified in the letter.’"[99] Put simply, “[a] letter of credit is a document from a bank that guarantees payment.”[100] In exchange for supplying a letter of credit on behalf of the “holder” to the “beneficiary,” banks often receive a fee from the holder.[101]

In the oil and gas context, this means that an upstream company would agree to provide a letter of credit from a bank to their midstream counterparty. Similar to a lien right, this can be bargained for during the negotiation process.[102] Yet, also like a lien right, the same upstream objections are likely to arise. By adding in a requirement for a letter of credit, the contractual burden on the upstream company is increased due to their fee obligations to the bank.[103] Though as the old saying goes: “It doesn’t hurt to ask.” Especially when there are millions of dollars on the line.

4. Reputation Is Everything . . . or Should Be, Anyway

A factor that should dissuade an upstream producer from rejecting contracts in a way that adversely affects many of its creditors is the loss of reputation in the industry when negotiating agreements with midstream companies. A reputational wound may be an unlikely deterrent, however, given that upstream bankruptcies come at a time when the company is under great financial stress; the reputation of a company does not matter if the company ceases to exist.[104]

Not only are upstream companies largely concerned with the financial bottom-line when determining whether to reject contracts but there seems to have been very little reputational damage to upstream companies historically for rejecting contracts.[105] This is a bit perplexing, as one would think that midstream companies, first and foremost, would seek to negotiate contracts with upstream counterparties that they perceive to be “reliable.” After all, if the upstream company does not produce the amount of oil or gas that is projected, the midstream company stands to make less, absent the existence of a contractual provision for payments regardless of shortfalls (such as a minimum volume commitment).[106] Because of the lack of options, midstream companies may consider making more of a public relations fuss the next time an upstream company seeks to shirk its contractual responsibilities at the expense of the midstream counterparty.

C. The Twist: Life, uh . . . Finds a Way

Despite potential contractual obstacles, the reality remains that upstream companies need the infrastructure that midstream companies provide to sell the minerals extracted from the ground, and without the upstream production, midstream companies have no business.[107] It is a cruel fact (from the midstream perspective) that the two sectors are indispensable to one another. As a result, these contracts will likely continue to be negotiated, even if the terms are, on-balance, less favorable to midstream companies. The persistent and mutual need between upstream and midstream companies will presumably result in a new definition of the status quo and a change in how these contracts are negotiated.[108] In the infamous words of Jeff Goldblum’s fictional character, “Dr. Ian Malcolm” in the 1993 film Jurassic Park: “life, uh . . . finds a way.”[109] So too will the energy industry.

D. . . . Let’s See What Sticks.

The optimal solution to midstream contract rejection woes will likely not be just one solution but a combination of several of the solutions mentioned above. Strengthening dedication language alone is unlikely to be successful given the challenges (and potential impossibility) of surmounting bankruptcy court covenant analysis,[110] and given the recent Sanchez opinion out of the Southern District of Texas.[111] In Sanchez, the court found existing covenants running with the land but nonetheless held that “the presence of a real property covenant does not hinder a debtor’s right to reject its future performance duties under an executory contract.”[112] Given the recency of the Sanchez opinion, it is unclear whether other bankruptcy courts will follow suit in bifurcating the issues as the Sanchez court did,[113] but Southland and Sanchez show the difficulty in clearly creating covenants running with the land and the possibility of rejection even if those covenants are created.[114]

Midstream companies seeking more security in these agreements with upstream producers will need to throw spaghetti at the wall and see what sticks. As discussed previously, lien rights in contracts may be negotiated to provide more security should the upstream producer ultimately file for bankruptcy, but even this will not be a cure-all.[115] A letter of credit is another option with similar obstacles to that of the lien right.[116]

The future of these agreements will almost assuredly come down to risk tolerance. For midstream companies, it will be the amount of investment that they are comfortable with or able to make based on the negotiated level of security in the gathering agreements. For upstream companies, it will be the level of comfort with potentially losing out on better midstream contracts because some of the midstream companies with more leverage will insist on negotiating contracts with more favorable midstream terms. Ultimately, however, it may just be that the new status quo for these types of contracts is one which heavily favors upstream companies. Midstream and upstream parties are indispensable to one another, and with symbiosis comes compromise—but these new contracts are, as of yet, untested by courts.

IV. Conclusion

While midstream companies may have enjoyed a relatively even bargaining position with upstream producers prior to the Sabine case, things have certainly changed since.[117] Although the new Sanchez approach remains largely untested, the years following the Sabine case showed just how much latitude upstream producers are likely to be given by courts moving forward when rejecting contracts during Chapter 11 bankruptcy. Despite the fact that upstream producers filed for bankruptcy in 2021 in fewer numbers compared to 2015 and 2016,[118] it seems plausible that things could again shift drastically during the next major downturn in oil and gas prices. When that happens, midstream companies will likely have to rely on alternative methods of investment security, such as mortgage liens on upstream real property and/or letters of credit from upstream producers. “Strong” dedication language seems unlikely to stave off contract rejection during upstream bankruptcy proceedings.

Mortgage liens offer more security for midstream companies in terms of lien-priority but still do not guarantee repayment because of the general structure of lien priority.[119] Letters of credit offer another avenue for potential recovery on midstream infrastructure investments but may be subject to logistical difficulty and cost objections by upstream producers during contract negotiations. While there appears to be no “foolproof” way for a midstream company to completely protect its investment—as ostensibly existed pre-Sabine due to creation of covenants that ran with the land—the best approach is to combine as many safeguards as possible. When negotiating agreements with upstream companies, midstream companies will have to throw the proverbial spaghetti at the wall and hope that something sticks in the event of upstream bankruptcy.

Holton Farnum

  1. The Notorious B.I.G., Mo Money Mo Problems (Bad Boy Entertainment 1997).

  2. See In re Sabine Oil & Gas Corp., 550 B.R. 59, 71, 83 (Bankr. S.D.N.Y. 2016) (authorizing rejection of the agreements by a bench decision, then granting declaratory judgments based on a lack of real covenants and equitable servitudes, thereby affirming the rejection decision).

  3. In the Pipeline: Understanding Post-Sabine Midstream Contract Rejection Risk, Gibson, Dunn & Crutcher LLP 1 (June 25, 2019), https://www.gibsondunn.com/wp-content/uploads/2019/06/in-the-pipeline-understanding-post-sabine-midstream-contract-rejection-risk.pdf [https://perma.cc/MX9P-LWLY]; see also Marc Stocker et al., What Triggered the Oil Price Plunge of 2014-2016 and Why it Failed to Deliver an Economic Impetus in Eight Charts, World Bank Blogs (Jan. 18, 2018), https://blogs.worldbank.org/developmenttalk/what-triggered-oil-price-plunge-2014-2016-and-why-it-failed-deliver-economic-impetus-eight-charts [https://perma.cc/U3A9-W5YV].

  4. See In re Sabine, 550 B.R. at 63; infra Section II.A and Section II.B; see also What Is Midstream Oil & Gas?, Integrated Flow Sol. (Jan. 8, 2019), https://ifsolutions.com/what-is-midstream-oil-and-gas-industry/ [https://perma.cc/47XN-GLBP] (defining the midstream sector as the “intermediary phase between upstream and downstream operations which involves the storing and shipping of hydrocarbons produced from oil and natural gas fields”); In re Southland Royalty Co., 623 B.R. 64, 81–82 (Bankr. D. Del. 2020) (detailing how gathering agreements allow upstream companies to have access to midstream infrastructure, thereby freeing up capital for further investment in exploration and production, while providing financial security for midstream companies due to the exclusivity).

  5. In the Pipeline, supra note 3, at 1–2 (detailing how Sabine’s argument was that the considerable decline in natural gas prices around this time made it no longer financially viable for the company to deliver its minimum gas volume requirements to its midstream counterparts and that the resulting deficiency payments would be incredibly burdensome to the company).

  6. See In re Sanchez Energy Corp., 631 B.R. 847, 860 (Bankr. S.D. Tex. 2021) (describing “executory” as a contract where there is “material performance remaining on both sides”).

  7. See In re Sabine, 550 B.R. at 65.

  8. Michael P. Pearson, Covenants Running with the Land, Jackson Walker LLP 3, 21 (Sept. 29, 2016), https://www.jw.com/wp-content/uploads/2018/09/Pearson_CRWTL-Paper.pdf [https://perma.cc/MA4H-YFNK] (providing an extensive background and discussion of real covenants and their application in energy industry contracts, as well as a comprehensive description of the Sabine court’s real covenant analysis).

  9. Id. at 3–4.

  10. See In re Sabine, 550 B.R. at 67–71.

  11. Id. at 66, 71. It should also be noted that the covenant running with the land analysis is performed by bankruptcy courts using the test that courts in the applicable state would use. See Gary C. Johnson & Keith M. Aurzada, Steps Producers and Midstream Companies Should Take to Prepare for a Potential Bankruptcy by a Counterparty, Reed Smith LLP (Apr. 27, 2020), https://www.reedsmith.com/en/perspectives/2020/04/steps-producers-and-midstream-companies-should-take-to-prepare-for [https://perma.cc/CQB2-WQ4E].

  12. See In re Sabine, 550 B.R. at 83; Natalie Friend Wilson, The Treatment of Leases and Executory Contracts in Bankruptcy, Langley & Banack, Inc., https://www.langleybanack.com/the-treatment-of-leases-and-executory-contracts-in-bankruptcy/ [https://perma.cc/4LLC-HCBP] (last visited Jan. 3, 2023) (“Claims for rejection damages are unsecured claims, so the actual recovery is often significantly limited by the terms of the plan or reorganization, which may pay only a very small percentage to unsecured claims.”).

  13. See In re Extraction Oil & Gas, 622 B.R. 608, 613, 620, 624 (Bankr. D. Del. 2020) (involving the same bankruptcy court hearing three different parallel adversary proceedings, ultimately allowing rejection of “Transportation Services Agreements” in all three cases); In re Southland Royalty Co., 623 B.R. 64, 71, 88–89 (Bankr. D. Del. 2020) (allowing rejection of gathering agreements, even assuming, for the sake of argument, that real covenants existed); In re Chesapeake Energy Corp., 622 B.R. 274, 281, 284 (Bankr. S.D. Tex. 2020) (involving a gathering agreement that was allowed to be rejected).

  14. See In re Badlands Energy, Inc., 608 B.R. 854, 875 (Bankr. D. Colo. 2019) (holding that the agreements at issue created covenants running with the land and thus could not be rejected under the Bankruptcy code); In re Alta Mesa Res. Inc., 613 B.R. 90, 107 (Bankr. S.D. Tex. 2019) (holding that the gathering agreements at issue were not executory and could not be rejected in bankruptcy).

  15. See In re Extraction, 622 B.R. at 624; In re Southland, 623 B.R. at 88–89; In re Chesapeake, 622 B.R. at 284.

  16. In re Southland, 623 B.R. at 73.

  17. See id. at 81, 88 (holding that despite specific contractual language saying "[t]his Dedication shall be a covenant running with the land under applicable law and binding on the respective successors and assigns," the debtor could reject the contract because it was executory).

  18. Testing new solutions for these issues can be challenging because it is a guessing-game as to how well a course of action will “hold up” until it has been tested by a court. Whereas midstream companies were once able to rely on relatively boilerplate contractual terms pre-Sabine, the recently shifting landscape makes the position of the midstream company considerably more tenuous. See infra Section II.D.

  19. See In re Sanchez Energy Corp., 631 B.R. 847, 860 (Bankr. S.D. Tex. 2021) (describing how a real property covenant created by a contract does not affect a debtor’s right to reject an executory contract).

  20. Compare id. (using a separate contract-rejection analysis to determine whether an agreement creates real covenants that run with the land and whether a contract is executory), with In re Alta Mesa Res., Inc., 613 B.R. 90, 99 (Bankr. S.D. Tex. 2019) (blending the rejection-analysis distinction between real covenant creation and executory status of a contract by holding that a producer’s agreements could not be rejected if they formed real property covenants).

  21. See In re Southland, 623 B.R. at 81–82 (detailing the interplay between upstream production and midstream infrastructure, noting that without midstream companies’ systems and services, “the producer would have no way to transform its produced gas into a merchantable form”).

  22. In re Sabine Oil & Gas Corp., 550 B.R. 59, 74 (Bankr. S.D.N.Y. 2016); see In re Southland, 623 B.R. at 79–80.

  23. Upstream? Midstream? Downstream? What’s the Difference?, EnergyHQ, https://energyhq.com/2017/04/upstream-midstream-downstream-whats-the-difference/ [https://perma.cc/JZ6R-8DAX] (last visited Mar. 13, 2022); see also In re Extraction Oil & Gas, 622 B.R. 608, 613 (Bankr. D. Del. 2020) (“Upstream activities are mainly ‘Exploration and Production’ or E&P activities that focus on locating and extracting hydrocarbons from beneath the surface.”).

  24. Upstream, supra note 23.

  25. Id.

  26. Id.

  27. In Oil & Gas What is Upstream and Downstream?, Eland Cables, https://www.elandcables.com/the-cable-lab/faqs/faq-what-are-upstream-and-downstream-works-in-the-oil-gas-industry# [https://perma.cc/F9MY-8P2Z] (last visited Jan. 14, 2023).

  28. See In re Southland Royalty Co., 623 B.R. 64, 73 (Bankr. D. Del. 2020) (describing the approximately $350 million investment that the midstream company agreed to undertake in its contracts with the upstream producer).

  29. See id.

  30. See Samuel Henninger, Circuit Split: Gas Gathering Agreements and Real Property Covenants, 30 Norton J. Bankr. L. & Prac. 4 (2021) (describing the general purpose and process of gathering agreements).

  31. See id.; see also Jonathan M. Hyman & Philip B. Jordan, When Does a Gas Dedication Create a Real Property Interest? A Post-Sabine Analysis of Covenants Running with the Land, 12 Tex. J. Oil Gas & Energy L. 177, 177 (“[F]ew pondered the legal characterization of dedications contained in the thousands of gathering, processing, and transportation contracts between oil and gas producers and their midstream counterparties.”).

  32. See generally Henninger, supra note 30.

  33. In the Pipeline, supra note 3.

  34. In re Sanchez Energy Corp., 631 B.R. 847, 860 (Bankr. S.D. Tex. 2021) (“If the presence of a real property covenant does not hinder a debtor’s right to reject its future performance duties under an executory contract . . . [i]f a contract is executory, a debtor may seek rejection.”).

  35. Id.

  36. Id.

  37. In re Southland Royalty Co., 623 B.R. 64, 81 (Bankr. D. Del. 2020) (further describing the purpose and mechanics of a dedications section in an oil and gas contract).

  38. 11 U.S.C. § 365.

  39. Civil Resource Manual § 59: Executory Contracts in Bankruptcy, U.S. Dept. of Just., https://www.justice.gov/jm/civil-resource-manual-59-executory-contracts-bankruptcy [https://perma.cc/EVM9-Y78F] (last visited Jan. 3, 2023).

  40. Id. (quoting Countryman, Executory Contracts in Bankruptcy: Part I, 57 Minn. L. Rev. 439, 460 (1973)).

  41. Civil Resource Manual § 60: Executory Contracts in Bankruptcy, U.S. Dept. of Just., https://www.justice.gov/jm/civil-resource-manual-60-executory-contracts-bankruptcy [https://perma.cc/HR5U-LDNK] (last visited Jan. 8, 2023).

  42. In re G Survivor Corp., 171 B.R. 755, 757–58 (Bankr. S.D.N.Y. 1994) (“Generally, absent a showing of bad faith, or an abuse of business discretion, the debtor’s business judgment will not be altered.”).

  43. Civil Resource Manual § 60, supra note 41.

  44. See In re Sabine Oil & Gas Corp., 550 B.R. 59, 83 (Bankr. S.D.N.Y. 2016); Natalie Friend Wilson, The Treatment of Leases and Executory Contracts in Bankruptcy, Langley & Banack, Inc., https://www.langleybanack.com/the-treatment-of-leases-and-executory-contracts-in-bankruptcy/ (last visited Jan. 3, 2023) (“Claims for rejection damages are unsecured claims, so the actual recovery is often significantly limited by the terms of the plan or reorganization, which may pay only a very small percentage to unsecured claims.”); Civil Resource Manual § 59, supra note 39.

  45. Cara O’Neill, What is an Unsecured Claim in Bankruptcy?, Nolo, https://www.nolo.com/legal-encyclopedia/unsecured-claim-bankruptcy.html [https://perma.cc/UB5H-NHRA] (last visited Jan. 8, 2023).

  46. James Chen, Unsecured Creditor Defined, Types, vs. Secured Creditor, Investopedia, https://www.investopedia.com/terms/u/unsecuredcreditor.asp [https://perma.cc/KH3R-4CM3] (last updated Dec. 31, 2022).

  47. Glenn L. Pinkerton & David E. Kronenberg, In re Sabine Oil and Gas: Final Ruling Issued Authorizing Rejection of Gas-Gathering Agreements, Sidley Austin LLP (May 4, 2016), https://www.sidley.com/-/media/update-pdfs/2016/05/20160504-energy-update.pdf [https://perma.cc/6GZR-8DD3].

  48. Id.

  49. Id. at 2.

  50. Id.; see also In re Sabine, 550 B.R. 59, 67–68 (Bankr. S.D.N.Y. 2016).

  51. See generally In re Extraction Oil & Gas, Inc. v. Platte River Midstream, LLC, 622 B.R. 581 (Bankr. D. Del. 2020); In re Extraction Oil & Gas, Inc. v. Elevation Midstream, LLC, 627 B.R. 199 (Bankr. D. Del. 2020); In re Chesapeake Energy Corp., 622 B.R. 274, 283 (Bankr. S.D. Tex. 2020).

  52. See In re Extraction Oil & Gas, 622 B.R. 608, 613–14 (Bankr. D. Del. 2020).

  53. See id. at 624.

  54. Id.

  55. In re Chesapeake, 622 B.R. at 283 n.5.

  56. In re Sanchez Energy Corp., 631 B.R. 847, 859–60 (Bankr. S.D. Tex. 2021).

  57. Id. at 860.

  58. Id.

  59. See Omar Samji et al., The Rules of Rejection—In re Sanchez’s New Take of Real Property Covenants, Shearman & Sterling (July 15, 2021), https://www.shearman.com/Perspectives/2021/07/The-Rules-of-Rejection--In-re-Sanchez-New-Take-on-Real-Property-Covenants [https://perma.cc/B5BW-XJDN] (discussing the Sanchez court’s bifurcation of the real covenant and contract rejection questions).

  60. In re Sanchez, 631 B.R. at 851, 863.

  61. See id.

  62. Matt Egan, U.S. Oil Bankruptcies Spike 379%, CNN (Feb. 11, 2016, 10:59 AM), https://money.cnn.com/2016/02/11/investing/oil-prices-bankruptcies-spike/index.html [https://perma.cc/ZNF5-7KNY].

  63. Id.

  64. Oil Patch Bankruptcy Monitor, Haynes Boone (Jan. 31, 2022), https://www.haynesboone.com/-/media/project/haynesboone/haynesboone/pdfs/energy_bankruptcy_reports/oil_patch_bankruptcy_monitor.pdf?rev=e57d3129b7504ea190df5d33dbacae44&hash=F461E4FE13446BE821B8AE9080C349E6.

  65. Paul Takahashi, Over 100 Oil and Gas Companies Went Bankrupt in 2020, Hous. Chron. (Jan. 20, 2021, 12:09 PM) https://www.houstonchronicle.com/business/energy/article/More-than-100-oil-and-gas-companies-filed-for-15884538.php [https://perma.cc/HXT9-R8GY].

  66. Tom Hals, Judge Moves to End Sabine Oil’s Bitter Bankruptcy, Reuters (July 2016, 3:50 PM), https://www.reuters.com/article/us-sabne-oil-bankruptcy/judge-moves-to-end-sabine-oils-bitter-bankruptcy-idUSKCN1072MZ [https://perma.cc/BGN3-UK68]; In re Sabine Oil & Gas Corp., 550 B.R. 59, 62 (Bankr. S.D.N.Y. 2016).

  67. $17.85 Billion in Oil and Gas Bankruptcies in 2015, Oil & Gas 360 (Jan. 8, 2016), https://www.oilandgas360.com/17-85-billion-in-oil-and-gas-bankruptcies-in-2015/ [https://perma.cc/V5NW-CZAE].

  68. Hals, supra note 66.

  69. Id.

  70. See id.

  71. Id.

  72. Civil Resource Manual § 60, supra note 41 (“Rejection makes other party to the contract simply an unsecured creditor.”).

  73. Hals, supra note 66.

  74. See In re Sabine Oil & Gas Corp., 550 B.R. 59, 61–62 (Bankr. S.D.N.Y. 2016); In re Extraction Oil & Gas, 622 B.R. 608, 613–14 (Bankr. D. Del. 2020); In re Alta Mesa Res., Inc., 613 B.R. 90, 95–98 (Bankr. S.D. Tex. 2019).

  75. See In re Southland Royalty Co., 623 B.R. 64, 73 (Bankr. D. Del. 2020) (discussing the midstream company’s $350 million infrastructure investment pursuant to its contract with the upstream producer).

  76. See In re Sabine, 550 B.R. at 75.

  77. See id.

  78. See id. at 65–71.

  79. See id. at 77.

  80. See id. at 65–71.

  81. Id. at 66.

  82. Id. at 68.

  83. Id. at 71.

  84. See supra notes 17–18 and accompanying text.

  85. In re Alta Mesa Res., Inc., 613 B.R. 90, 106–08 (Bankr. S.D. Tex. 2019).

  86. See In re Extraction Oil & Gas, Inc. v. Platte River Midstream, LLC, 622 B.R. 581 (Bankr. D. Del. 2020); In re Extraction Oil & Gas, Inc., 627 B.R. 199, 205 (Bankr. D. Del. 2020).

  87. In re Extraction Oil & Gas, 622 B.R. 608, 624 (Bankr. D. Del. 2020).

  88. See also In re Southland Royalty Co. v. Wamsutter LLC, 623 B.R. 64, 81, 88–89 (Bankr. D. Del. 2020) (holding that contract rejection was permitted despite explicit contractual language showing intent to create a covenant running with the land).

  89. Will Kenton, Lien: Three Main Types of Claim Against and Asset, Investopedia, https://www.investopedia.com/terms/l/lien.asp [https://perma.cc/MH27-AFU3] (last updated Apr. 10, 2022).

  90. Norris v. Vaughan, 260 S.W.2d 676, 678–80 (Tex. 1953) (“It is well established in Texas that the lessee in the usual oil and gas lease obtains a determinable fee in the oil and gas in place, and thus an interest in realty.”); see also Scott N. Opincar, Have You Protected Your Lien Rights?, McDonald Hopkins (Aug. 2, 2016), https://mcdonaldhopkins.com/Insights/August-2016/Have-you-protected-your-lien-rights [https://perma.cc/CK9P-4ZWQ].

  91. See Johnson v. Home State Bank, 501 U.S. 78, 82 (1991) (“A mortgage is an interest in real property that secures a creditor’s right to repayment.”).

  92. See Bret A. Maidman, What is a Secured Debt?, NOLO, https://www.nolo.com/legal-encyclopedia/what-secured-debt.html [https://perma.cc/K9CP-2DQ5] (last visited Jan. 8, 2023) (“A mortgage or deed of trust is an agreement that grants a lender a security interest, or lien, against real property.”); see also Opincar, supra note 90 (“As a general rule, oil and gas in place constitutes land or real estate and belongs to the owner of the land so long as it remains under the land.”).

  93. O’Neill, supra note 45 (“[A] creditor with a lien right will have a ‘secured claim’ in bankruptcy.”).

  94. See Maidman, supra note 92 (“Secured debts are created with liens.”).

  95. See id. (describing how a secured debt is “backed by collateral a creditor can recover if [the debtor] default[s].”).

  96. See Office of the Comptroller of the Currency, Oil and Gas Exploration and Production Lending 10–12 (Oct. 15, 2018), https://www.occ.treas.gov/publications-and-resources/publications/comptrollers-handbook/files/oil-gas-exploration-prod-lending/pub-ch-oil-and-gas.pdf [https://perma.cc/B4PK-CSQ3].

  97. This is because “[l]iens generally follow the ‘first in time, first in right’ rule, which says that whichever lien is recorded first in the land records has higher priority than later recorded liens.” Amy Loftsgordon, What is Lien Priority?, NOLO, https://www.nolo.com/legal-encyclopedia/what-is-lien-priority.html [https://perma.cc/GMG6-GP5C] (last visited Nov. 23, 2022).

  98. Hals, supra note 66.

  99. Synergy Ctr., Ltd. v. Lone Star Franchising, Inc., 63 S.W.3d 561, 565 (Tex. App.—Austin 2001, no pet.) (quoting SRS Prods. Co. v. LG Eng’g Co., 994 S.W.2d 380, 384 (Tex. App.—Houston [14th Dist.] 1999, no pet.)).

  100. Justin Pritchard, How a Letter of Credit Works, Balance, https://www.thebalance.com/how-letters-of-credit-work-315201 [https://perma.cc/JV7Z-XEPD] (last updated Oct. 29, 2021).

  101. Julia Kagan, Letter of Credit: What it is, Examples, and How One is Used, Investopedia, https://www.investopedia.com/terms/l/letterofcredit.asp# [https://perma.cc/K9P6-SM64] (last updated Mar. 30, 2023).

  102. For an analogous situation where a letter of credit helped an oil and gas company secure a large financial investment, see, e.g., Roy Becker, A Letter of Credit Helps an Oil Company Recover Millions in Losses, Shipping Solutions (Nov. 30, 2015), https://www.shippingsolutions.com/blog/a-letter-of-credit-helps-an-oil-company-recover-millions-in-losses [https://perma.cc/RMK2-8V2A].

  103. Kagan, supra note 101.

  104. See Takahashi, supra note 65 (detailing how many oil and gas companies have been forced to file for bankruptcy due to decreased demand for oil, as well as investors pulling out of the industry).

  105. “Reputation” can be challenging to measure, but for an indication that reputational loss has not been a death knell to these upstream producers, one need only look at how many of these companies have been able to continue negotiating new deals with midstream companies.

  106. Marc Gorewitz et al., Challenges & Solutions for Tracking Minimum Volume Commitments, Hart Energy (Sep. 30, 2018 8:00 AM) https://www.hartenergy.com/exclusives/minimum-volume-commitments-177143#p=full [https://perma.cc/2GSV-TX3Q] (describing how under Minimum Volume Commitments, "a counterparty pays a shortfall or deficiency fee if the [minimum volume commitment] is not met for a specified period . . . ").

  107. See In re Southland Royalty Co., 623 B.R. 64, 81–82 (Bankr. D. Del. 2020) (detailing the dedications portion of an oil and gas agreement, describing the mutual need between upstream producers and midstream companies for the production and processing of hydrocarbons such as natural gas).

  108. See id.

  109. Jurassic Park, IMDB, https://www.imdb.com/title/tt0107290/ [https://perma.cc/KP8N-YWRU] (last visited Feb. 13, 2023); Jurassic Park (1993): Quotes, IMDB, https://www.imdb.com/title/tt0107290/quotes/?ref_=tt_trv_qu [https://perma.cc/4NEU-XQ6N] (last visited Mar. 15, 2023).

  110. See, e.g., In re Extraction Oil & Gas, 622 B.R. 608, 624 (Bankr. D. Del. 2020); In re Southland, 623 B.R. at 88–90.

  111. See generally In re Sanchez Energy, 631 B.R. 847, 860, 863, 865 (Bankr. S.D. Tex. 2021); supra Part II.B.

  112. Id. at 861, 865.

  113. See Samji et al., supra note 59 (discussing the “bifurcation” of the executory analysis and covenant running with the land analysis for the agreements in the Sanchez case).

  114. See generally In re Southland, 623 B.R. at 80 (finding that although the contracts had specific language about creating covenants running with the land (CRWL), the contracts did not pass the CRWL test under Wyoming law, and rejection was permitted). The court also noted that even if there had been CRWL, rejection would still be permitted under § 365 of the Bankruptcy Code. Id. at 80; see also In re Sanchez, 631 B.R. at 847, 859–60, 863–67 (splitting the issues of CRWL and the executory classification of a contract, finding covenants that did run with the land, but ultimately stating that “[i]f a contract is executory, a debtor may seek rejection.”).

  115. See supra Section III.B.2.

  116. See supra Section III.B.3.

  117. See supra Section II.D.

  118. Oil Patch Bankruptcy Monitor, supra note 64.

  119. See Loftsgordon, supra note 97; see also supra Section III.B.2 (discussing lien priority).