House Kills Requirement For Energy Companies To Disclose Payments To Foreign Governments
In a victory for the US oil, gas and mining industry, which for years has appealed to the executive branch and courts to eliminate a rule which Exxon Mobil (whose former CEO was just confirmed as US Secretary of State), Chevron and other producers alleged put them at a disadvantage against foreign competitors, this afternoon the House approved a resolution killing an SEC requirement for US energy companies to disclose their payments to foreign governments, known as the “extraction rule.”
The industry had claimed that the rule, part of the 2010 Dodd-Frank act, gives global rivals a competitive edge. Backers, on the other hand, said the rule would keep payments to foreign nations in government coffers, not private pockets, and generally avoid bribes and graft.
Because Exxon and Chevron aren’t listed on the European exchanges, they don’t have to comply with the EU disclosure rules Bloomberg explains. That may give them an edge over other oil majors who must report project-level payments, critics say. In its 2015 disclosure to the UK, Rosneft reported $29.8 million in payments to the Russian Federation, Vietnam, Brazil and Norway. In the same year, BP reported $15.2 billion in payments to 23 countries, Total disclosed $16.7 billion to 44 countries, and Shell reported $21.8 billion to 24 countries.
The idea behind the measure is simple: If foreign oil companies disclose payments of $1 million to the government of Country X, then the lawmakers and citizens of Country X will know that $1 million should show up on the country’s budget. If less shows up, then obviously some of that amount was “diverted for private use” i.e., embezzled.
ExxonMobil and Chevron have said they support financial transparency in the oil sector. Both are members of an advisory committee under the Interior Department that oversees a voluntary corporate financial disclosure program. However, in comments to the SEC, the companies say they would support a version of the regulation that protected company-specific data. They argue that the current SEC rule would make available potentially valuable company information to state-owned competitors such as Saudi Aramco and Cnooc Ltd., neither of which are subject to the disclosure rules.
The American Petroleum Institute successfully challenged an earlier version of the rule in court, forcing the SEC to rewrite it. API asked the agency to consider a reporting model that detailed payments by resource type and production method — omitting company-specific data. But, the SEC didn’t adopt that approach.
“The SEC largely ignored industry’s comments,” said Exxon spokesman Bill Holbrook. While the final rule included exemptions for acquired companies and exploratory activities, it “remains based on the EU’s model and likely will adversely affect the ability of publicly-traded companies to compete globally,” he said.
“To roll it back would be a complete abdication of U.S. initiative and leadership on issues of corruption,” said Daniel Kaufmann, president of the Natural Resource Governance Institute, an international transparency watchdog.
To Mr. Kaufmann’s chagrin, the House, using a Congressional Review Act, promptly undid this regulation – which was supposed to take effect next year – with a simple majority rule.“This is just one regulation out of thousands and thousands that are burdening our companies, our job creators,” Rep. Jeb Hensarling (R-Texas) said. That bill passed 235-187.
Republicans especially those close to the energy lobby, not to mention the energy sector, will be delighted: “The SEC’s rule forces U.S. companies to disclose proprietary information to its competitors while foreign entities do not. This can give some large industry players an advantage on future business projects,” the American Petroleum Institute, an industry group, said in a statement.
House Majority Leader Kevin McCarthy pledged in a Wall Street Journal op-ed, to “take the ax” to the SEC rule, which he characterized as “an unreasonable compliance burden.”
Meanwhile, transparency advocates argue the repeal is part of a pattern of behavior among Republican lawmakers. “The GOP that tried to gut the ethics committee is trying to gut a critical anti-corruption law,” said Jana Morgan, director of the advocacy group Publish What You Pay. “It sends a really disturbing message.”
Before its passage, the vote generated tension among members of the anti-corruption advisory committee on which Exxon, Chevron and API sit. The panel, made up of representatives from government, industry and civil society, publishes an annual report detailing U.S. government revenues from the oil, natural gas and mining industries, as well as voluntarily reported payments made to the U.S. government from companies in those sectors. Civil society members of the committee say Exxon’s opposition to the SEC rule jeopardizes its standing on the panel. At a meeting on Wednesday, members discussed whether Exxon, Chevron and API should keep their seats at all.
“I really have to question whether it’s appropriate for companies like Exxon and Chevron and API to continue to sit around this table,” said Zorka Milin, an attorney with the anti-corruption group Global Witness, and a member of the advisory committee.
Finally, the fact that the former head of Exxon, who is now the US Secretary of State, has been accused of being especially close with Vladimir Putin, will hardly ease concerns that US companies will now have free reign to covertly bribe foreign governments (including Russia), without any public disclosure.
Whether US energy and mining giants – who will all benefit now that the payments rule has been rescinded – will abuse the lack of disclosure for personal gains of their shareholders, remains to be seen.