United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED July 16, 2024 No. 23-10575 ____________ Lyle W. Cayce Clerk Mieco, L.L.C.,

Plaintiff—Appellant,

versus Pioneer Natural Resources USA, Incorporated,

Defendant—Appellee. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:21-CV-1781 ______________________________ Before Stewart, Duncan, and Engelhardt, Circuit Judges. Stuart Kyle Duncan, Circuit Judge: Pioneer Natural Resources contracted to sell natural gas to MIECO. During Winter Storm Uri in 2021, Pioneer invoked the contract’s force majeure clause to excuse its failure to deliver agreed-upon amounts of gas. MIECO sued for damages. The federal district court granted Pioneer summary judgment, ruling that Pioneer properly invoked force majeure. On appeal, we conclude that the district court correctly interpreted the force majeure clause. Specifically, the clause’s terms do not require Pioneer to show that the storm rendered its performance under the contract Case: 23-10575 Document: 148-1 Page: 2 Date Filed: 07/16/2024

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literally impossible, as MIECO argues. Furthermore, Pioneer’s “gas supply” under the clause encompasses only the gas Pioneer regularly produced from the Permian Basin—and not, as MIECO argues, substitute gas that Pioneer does not own but could purchase on the spot market. We must reverse the district court’s judgment on one issue, however. The force majeure clause required Pioneer to exercise due diligence to overcome Uri’s impact on its ability to deliver gas to MIECO. Fact disputes remain over whether Pioneer did so. Summary judgment was therefore improper. The case must be remanded for fact finding on that issue. Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion. I. Background Pioneer produces natural gas in west Texas’s Permian Basin and sends this gas to Targa Pipeline Mid-Continent WestTex’s plant for processing. Targa processes the gas, keeping a portion as payment, and Pioneer then sells the final product and transfers it to customers. One of those customers is MIECO, L.L.C., an energy trading firm that buys and resells natural gas. Pioneer produces the vast majority of its gas from wells in the Permian Basin and, when production is insufficient to meet contractual demands, purchases supplemental gas from third parties on the spot market. MIECO and Pioneer (“the Parties”) entered a “Firm”1 contract in 2014 and again in 2020 wherein Pioneer agreed to deliver 20,000 MMBtu of gas daily to MIECO at the Ehrenberg pooling hub on the Arizona-California border. To memorialize their agreement, the Parties used the base contract _____________________ 1 A “Firm” commitment is defined in the NAESB base contract as requiring “that either party may interrupt its performance without liability only to the extent that such performance is prevented for reasons of Force Majeure.”

2 Case: 23-10575 Document: 148-1 Page: 3 Date Fil