Author Archives: Andrew Soto

Andrew Soto What is market manipulation?

Over the past several years, the Federal Energy Regulatory Commission (FERC), the Federal Trade Commission (FTC), and the Commodity Futures Trading Commission (CFTC) have all been given statutory authority—authority patterned after that given to the Securities Exchange Commission (SEC) in § 10(b) of the Securities Exchange Act—to punish market manipulation.  Although all four agencies now have nearly identical regulations on their books prohibiting market manipulation, there does not appear to be much consistency among the agencies on just what they think market manipulation really is.

A recent discussion paper by The Brattle Group titled “Losing Money to Increase Profits: A Proposed Framework for Defining Market Manipulation” goes a long way towards articulating a practical definition of market manipulation.  The question is not merely theoretical.  Regulators need to know what to look for and how to build a solid enough case to reliably prosecute instances of market manipulation.  In addition, the regulated community needs to know what market manipulation is in order to build effective compliance programs to prevent its occurrence.

The Brattle Group’s definition makes a lot of sense.    It asserts that market manipulation occurs when an entity intentionally loses money on a price-setting transaction to benefit related positions in price-taking transactions.  Selling physical natural gas at a loss to help drive down an index price in order to make a profit on transactions that are priced at the index should be considered manipulation.  The Brattle Group’s discussion paper explains how the definition could be applied and used, as well as a variety of situations to address the circumstances commonly understood to be market manipulation.  I think it would be beneficial for all of the agencies (FERC, CFTC, FTC, and SEC) to consider adopting a common definition for market manipulation and to look closely at The Brattle Group’s proposal.

The definition, however, raises one interesting issue—what happens when the price-setting transaction is regulated by one agency and the price-taking transaction is regulated by another agency?  Which agency has jurisdiction to prosecute the manipulation?  The FERC and the CFTC have been at odds over jurisdiction ever since FERC instituted proceedings against Amaranth Advisors for allegedly manipulating exchange-traded natural gas futures (regulated by the CFTC) because the futures index sets the price of physical natural gas sales (regulated by FERC).

In order for The Brattle Group’s proposed definition of market manipulation to succeed, the agencies would have to agree on how to proceed when more than one regulator is involved.  When an entity intentionally loses money selling physical natural gas at Henry Hub in order to drive down the Henry Hub index price because it would benefit the entity’s futures position at Henry Hub, which agency would prosecute the manipulation scheme—FERC, CFTC, both?

I suggest that the agency that regulates the price-setting transaction would have primary jurisdiction to prosecute the manipulation, with the agency that regulates the price-taking transaction assuming a supporting role.  The agency that regulates the price-setting transaction would have a better understanding of when a loss would be explained by legitimate business purposes or when that loss is the trigger for a manipulation scheme.  In the example above, FERC would have primary jurisdiction to prosecute an alleged manipulation based on losses on physical natural gas sales in order to benefit a position in the futures market.  If the situation were reversed (the losses were in the futures market to benefit physical sales positions), the CFTC would have primary jurisdiction.  However you may come out on this question, one agency only should take the lead so that all parties—regulators and regulated alike—know the rules of the road.

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Andrew Soto Last Day at the World Shale Gas Conference

On the final day of the conference, we were treated to a tour of gas production facilities in the Barnett Shale, compliments of Chesapeake Energy.  We didn’t need to go far, just over to the Dallas Fort Worth Airport.  That’s right, there’s a completed wellhead producing about 400 Mcf of natural gas right at the intersection of a couple of runways at DFW.  They had drilled down just shy of 8,000 feet, then horizontally out about 6,000 feet right under the runways.

The footprint now is fairly small.  In addition to the wellhead, there is a small building and tower for the SCADA and automatic shut-off control facilities, a few tanks for the water that comes back out of the well, and the interconnection for the gathering pipeline that takes the natural gas to the custody transfer station with Atmos.  The return water is quite salty. They dispose of it in a salt water disposal well they had drilled a few thousand feet down.

From there, we headed over to a site where they were actually drilling a well.  It was located in a commercial/light industrial section near the airport. They had erected 16 foot sound barriers, but the rig rises 145 feet into the air, clearly visible from the street.  The use the same drill pad to drill anywhere from 8-24 horizontal wells.  Once, they complete a lateral, they move the rig a few feet and drill a new well bore for a lateral a few degrees in another direction, like the spokes of a wheel.

It’s amazing how much can be produced from such a small footprint.

Editors note: We’re including some photos from the event with Andrew’s post. Enjoy and let us know if you were there in the comments below.

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Andrew Soto World Shale Gas Conference Day 1

The most memorable line from the opening remarks for the World Shale Gas Conference & Exhibition came from our own Board Chairman, Bob Skaggs.  In his opening address, he said, “gas is good, and shale gas is very good.”  The message, both simple and concise, resonated among the delegates and sparked interest in getting the word out to energy policymakers around the globe – that natural gas can help solve our energy and environmental concerns.  A consistent refrain I hear among the delegates is why the U.S. government doesn’t do more to promote the use of natural gas  given its environmental attributes.  As a low-carbon, low-cost, ubiquitous fuel, natural gas is well-positioned to meet energy demand in ways that can help reduce current greenhouse gas emissions, not potentially or years from now, but today.

The abundance message is beginning to build momentum.  As Rick Smead, from Navigant, noted, the Society of Petroleum Engineers recently reported that there are over 16,000 Tcf of shale gas resources globally and that North America has more of it than anywhere else in the world, over 3,600 Tcf.  He also noted that while only about one-quarter of those resources are currently technically recoverable, advances in drilling and recovery methods will, over time, unlock more and more of that resource base.

So, why aren’t we using natural gas more – to heat more of our homes and businesses, as a low-carbon fuel to generate electricity, to integrate intermittent, renewable resources, and as a transportation fuel for fleet and person vehicles, for ships in port, for long-haul trucks, etc.?  One of the key take-aways from today’s sessions is that it’s time for the industry to focus on the demand side of the equation – to look at ways to increase demand for natural gas.  AGA is involved in a number of efforts to do just that.  And, we have a great message from our Chairman – “GAS IS GOOD.”

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Andrew Soto At the World Shale Gas Conference

On Tuesday, the day before the conference official opened, I attended a master class on legal and regulatory issues in bringing shale gas to market.  Issues ranged from severance and property taxes on produced gas and gas held in storage, reporting requirements for fluids used in hydraulic fracturing, regulation and restrictions on water use in hydraulic fracturing, as well as the strategies and regulations in dealing with interstate pipelines to transport the produced gas.

Interestingly, it was the tax portion that touched off some of the most interesting discussion.

Who owns the gas?

Depending on where you are in the country, the mineral rights to produce natural gas found under the ground could be owned by the Federal government, the state government, or a private landowner, and in some cases a surface owner would not own the mineral rights for gas found under the property he or she holds.

I had an interesting conversation with a delegate from Poland who was surprised at the land ownership structure in the United States.  Apparently in Poland, land is held by private landowners, i.e., the government does not generally own land; however, the landowner essentially owns only the surface rights, and government does own the mineral rights.  The delegate was describing how difficult it is to build pipelines to bring produced gas to market.

With so many landowners to negotiate with and few tools such as eminent domain, I can only imagine the challenges in trying to get infrastructure built there.

Here in the United States, we should count our blessings.  While there are difficulties and challenges in working with various landowners, for the most part the climate for building natural gas infrastructure is favorable.

We have all benefited from the tens of thousands of wells, thousands of miles of pipelines, and hundreds of Bcf in storage capacity that have been built even in the last decade.  Our natural gas infrastructure provides a solid platform for meeting growing energy demand in an environmentally responsible manner.  It’s helpful to be reminded of that every once in a while.

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