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VASQUEZ, J., dissenting: I agree with the majority’s
conclusion that (1) there are 32,410 BOE of natural gas which
constitute “qualified fuels” under section 29(c)(1) eligible for
the credit–-15,483 BOE solely attributable to the tight formation
and 16,927 BOE from Devonian shale and the tight formation; and
(2) petitioner is entitled to one credit for the 16,927 BOE of
natural gas produced from both Devonian shale and the tight
formation. I, however, disagree with the majority’s holding that
(1) respondent has conceded that the credit should be indexed
under section 29(b)(2) for the 16,927 BOE of natural gas produced
from Devonian shale and the tight formation; and (2) pursuant to
the concession, petitioner is entitled to index the credit.
Accordingly, I respectfully dissent.
Section 29(b)(2) generally provides for an inflation
adjustment to the credit. Within that section, the statute
further provides that “In the case of gas from a tight formation,
the $3 [credit] amount * * * shall not be adjusted [for
inflation].” It is a commonplace of statutory construction that
a specific provision will not be controlled or nullified by a
general one, particularly when the two provisions are
interrelated and closely positioned. See HCSC-Laundry v. United
States, 450 U.S. 1, 6, 8 (1981). If gas is derived from a tight
formation, the statute specifically does not allow for indexing
of the credit. The 16,927 BOE of natural gas were produced, in
part, from a tight formation; therefore, petitioner is not
entitled to index the credit associated with this natural gas.
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