A back door attack on oil payment transparency
House Bill attempts to carve out oil payment reporting exemptionMay 9th, 2013 | by Ian Gary
A few weeks ago, a few House Republicans introduced H.R. 1613, the innocuous sounding “Outer Continental Shelf Transboundary Hydrocarbons Agreement Act”. A little over four pages long, H.R. 1613 is primarily designed to provide Congressional approval to a US-Mexico Transboundary Hydrocarbons Agreement (TBA) signed by both governments over a year ago.
Oxfam has no problem with the approval of the US-Mexico TBA which simply lays out the rules for how hydrocarbons reserves in the Gulf of Mexico that straddle our maritime borders would be developed.
We do have a big problem with an irrelevant provision inserted into the bill designed to weaken the payment disclosure requirements in Section 1504 of the Dodd-Frank Act, also known as the Cardin-Lugar provision. That law provides for the annual disclosure of payments made by oil, gas and mining companies to host governments around the world – final rules were issued by the SEC in August last year. H.R. 1613 would exempt any covered company from reporting payments from in accordance with any transboundary hydrocarbons agreement anywhere in the world.
The American Petroleum Institute (API) – backed by companies such as Exxon, Shell, Chevron and BP – is suing the SEC in federal court and is now hoping that its Congressional allies can help weaken this landmark law. Oxfam is intervening to defend the rule. Meanwhile, the European Union has reached agreement to put in place similar reporting requirements.
I spoke this week with Neil Brown who was, until very recently, a top Senate Republican aide working on energy issues for Senator Lugar, who was the ranking member of the Senate Foreign Relations Committee. His response: “this exemption is unnecessary and inclusion would only forestall quick approval of this important agreement.”
He should know. As both the co-author of a Senate Foreign Relations Committee minority staff report for Senator Lugar on “Oil, Mexico and the Transboundary Agreement” as well as someone intimately familiar with the “Cardin-Lugar” provision in Dodd-Frank, Mr. Brown would know if the reporting requirements in Dodd-Frank Section 1504 present any issue in approving the US-Mexico TBA. The short answer – they don’t. The minority staff report envisions reporting under Section 1504 and says that under Section 1504 covered companies “would already have to disclose payments” to the SEC if “they invest in Mexico”.
The US-Mexico TBA requires that certain information be kept confidential unless disclosure is required by law. The TBA text demonstrates that the US and Mexico have already made the correct policy judgment that the specific confidentiality provisions of the TBA should be subordinated to each country’s commitment to openness and subject to each country’s disclosure requirements. Nothing in the TBA would require the exemption provided by H.R. 1613.
Tellingly, the Senate Energy Committee has introduced a bi-partisan bill, S. 812, sponsored by Senators Ron Wyden (D-OR) and Lisa Murkowski (R-AK) to approve the US-Mexico TBA, and it contains no Section 1504 exemption provision. If Congress is truly interested in approving this agreement and providing the “rules of the road” for joint development of oil and gas reserves straddling the US-Mexico maritime boundary, then it should adopt the clean Senate bill without the reporting exemption.
Former Senator Jeff Bingaman, past Senate Energy Committee chairman, told Reuters that the exemption proposed by the House “complicates things significantly” for passage of the bill. Referring to the Section 1504 exemption language, he said, “They’ve added in some things that are going to make it difficult to pass in that form.”
The Mexican Congress ratified the TBA a year ago, and the Obama administration – and the oil industry – would like to see it approved. The Obama administration, though, has made clear that implementation of Section 1504 is a priority.
In a letter to Oxfam, Sec. of State Kerry said, “The Department of State and Administration strongly support transparency in the extractives sectors, as outlined in Section 1504 of Dodd-Frank, and the new rule issued by the SEC. The new SEC standard directly advances our foreign policy interest in increasing transparency and reducing corruption, particularly in the oil, gas and mineral sectors.”
My guess is that the oil industry lobby wants this TBA approved far more than it wants this unnecessary Section 1504 exemption. Surya Gunasekara, a tax and trade counsel with the American Petroleum Institute told me that there is “no doubt” that API cares more about Gulf of Mexico access than the proposed Section 1504 exemption.