Oil and Mining Companies Should Disclose What They Pay, the Law Says. Critics Say the SEC Is Undermining It.

By Will Englund, The Washington Post

06 April 20

Eleven years after it was enacted, a law governing disclosure of payments to governments still hasn’t gone into effect. A proposed rule has been criticized as toothless.

t a moment when the Trump administration is planning significant oil purchases to prop up domestic petroleum prices, and some industry players are asking Washington to impose tariffs or sanctions to keep out imports, the Securities and Exchange Commission wants to make it possible for oil and mining companies to mask their payments to governments at home and around the world.

A U.S. law passed in 2009 requires the disclosure of such payments — but it has never gone into effect.

Now, amid the economic collapse brought on by the coronavirus, and the clamor for help from Washington, the SEC is proposing rules under that law that would make such disclosures so general as to be of little value. The timing is a coincidence, but critics say the blow to transparency would be especially unfortunate right now.

The proposed rules “would represent a breathtaking retreat from the leadership position the U.S. has sought to play in advancing extractive transparency and combating corruption,” Sen. Ben Cardin (D-Md.), an author of the original legislation, wrote to the SEC. Nine other senators, all Democrats, signed his letter as well.

The U.S. law was a pioneering effort to force oil and mining companies to declare their payments to foreign governments, as a hedge against corruption and cronyism, and it served as a spur for subsequent laws in Canada, Norway and the European Union.

Neighbors of the prosperous Blanket gold mine in Zimbabwe got a taste of what such laws accomplish earlier this year. They found out that in 2018 the company that runs the mine, listed on the Toronto stock exchange, paid fees of $144,760 to the local rural district council, and that it had paid almost as much the year before that, all according to figures gleaned in faraway Ottawa.

No one recalled anybody from the operating company, Caledonia Mining, or on the Gwanda Rural District Council ever saying anything about that. But in January, Mukasiri Sibanda, an attorney with the Zimbabwe Environmental Law Association, arranged sessions with residents of the district, bearing with him the Canadian reports.

In a country noted for its lack of transparency, members of the community “think there is no accountability and the money is not being spent for the purpose of development,” Sibanda said in a telephone interview.

“I do not know about that money you are talking about,” said the head of the district council, Ronny Sibanda (no relation to Mukasiri), when asked about Caledonia’s payments.

What is happening in Gwanda is precisely what the framers of Canada’s Extractive Sector Transparency Measures Act had in mind when they drew it up. Disclosure by oil and mining companies of payments made to government bodies, project by project, could both inform local populations of money coming into their communities and act as a check on corruption. Because Caledonia is listed on the Toronto stock exchange, it is required to report such payments worldwide.

“In countries like Zimbabwe, where oil and gas are quite opaque and transparency is quite low, this definitely changes the game,” said Emily Nickerson, the director of the Canadian branch of an organization called Publish What You Pay, who traveled through the Gwanda district with Sibanda earlier this year.

The Canadian law, which went into effect in 2015, and the similar European laws are directly modeled on the U.S. legislation, a section of the Dodd-Frank Act of 2009. “It was definitely the U.S. that acted first and that gave confidence to Canada and the E.U. to move,” Nickerson said.

And they’ve left the United States behind.

The Canadian and E.U. laws cover payments made anywhere in the world, so that it’s possible, for instance, to learn that the Chinese oil giant CNOOC paid $74 million in fees, royalties and taxes to various U.S. jurisdictions in 2018 — because CNOOC is listed on the London stock exchange. But Exxon and Chevron, listed in New York? No.

Twice, the SEC drew up rules to give substance to the law. In 2015, after the American Petroleum Institute sued, the courts struck down the first effort. The second attempt was repealed by the new Republican Congress in 2017, following vigorous lobbying by Rex Tillerson, the Exxon CEO who had just been nominated as secretary of state.

Now, there’s a third proposal, and the public comments have not been kind. The SEC commissioners themselves have been vividly at odds.

The proposed rule would require companies to report payments country by country, rather than for each contract, as earlier versions had required. Payments of less than $150,000 would no longer need to be itemized. In the Blanket mine example, if this rule had applied, Caledonia could have reported one sum for all of Zimbabwe, without specific mention of the fees it pays to the Gwanda Rural District Council. Another provision in the proposal would screen the company reports to the SEC from public scrutiny.

Hester M. Peirce, one of three commissioners to support the new rule, sharply criticized the use of securities legislation to accomplish the goals of “civil society” groups. Doing so “would hamper our ability to serve investors, dampen issuers’ interest in raising money in our public markets, and erode our position as home to the most vibrant and liquid capital markets in the world,” she said.

“It’s a terrible rule,” said Isabel Munilla of Oxfam, which has been pushing for corporate transparency. Citing the Canadian and European laws, she said, “This approach of the SEC is fundamentally and embarrassingly out of step.” 

Reporting on a project-by-project basis, as the earlier versions required, is important because that is the level where corruption occurs, said Zorka Milin, a lawyer with a transparency group called Global Witness.

“There are industry fingerprints all over this new rule,” said Kathleen Brophy of Publish What You Pay’s Washington office.

The legislation, an amendment to the Dodd-Frank Act called Section 1504, was sponsored by Cardin and then-Sen. Richard G. Lugar (R.-Ind.). “The point of the law was to give transparency to these contracts, and to give the local communities the means to hold their governments accountable,” said Algene Sajery, an aide to Cardin. “This is a really weak rule, a really sad day. It does not reflect congressional intent.” 

Foreign oil majors have also been critical.

“In the 21st century, we have to be transparent,” said Patrick Pouyanné, CEO of Total, the French company, during a visit to Washington. “In Europe, we’re disclosing everything. We are hiding nothing. I don’t see why our U.S. colleagues should oppose it.” 

A stronger rule, he acknowledged, would put European- and U.S.-listed companies on the same footing as they seek opportunities around the world, which he naturally supports.

“But transparency obliges people to be more responsible,” he said.

BP has also found fault with the proposed rules.

The Mining Association of Canada supports the law there. Its member companies, said Ben Chalmers, the association director, “were paying a reasonable amount of taxes,” and they decided it was in their own interest to keep the public informed. “These conversations” about what companies were paying, he said, “have been happening anyway. We thought it would be better to have these conversations with facts.” 

Michelle Harrison of EarthRights International, an advocacy group, said she believes some U.S. energy companies are opposed to the rule because it would reveal just how low their U.S. taxes are.

When Congress revoked the second version of the Cardin-Lugar rule, in 2017, it used its authority under the Congressional Review Act. That law requires the appropriate agency to draw up a new version of a rule that cannot be “substantially the same” as the one rejected by Congress. But no one has defined what that means.

Allison Herren Lee, an SEC commissioner appointed by President Trump, argued that the new rule strays too far. It “essentially reverses the 2016 final rule in almost every significant respect,” she said.

It doesn’t matter, she said, if some of her colleagues believe the SEC should not be promulgating anti-corruption rules. The law is the law, she said, and the proposed rule undercuts its goals.

Another commissioner, Robert J. Jackson, Jr., argued that the new rule hurts investors, who benefit from transparency. It would “make it harder to hold corporate insiders to account for the choices they make,” he said.

Commissioner Elad L. Roisman disagrees. “This was not a typical rulemaking,” he said. “To begin with, this has no pretense of furthering the SEC’s tripartite mission: protect investors; maintain fair, orderly and efficient markets; and facilitate capital formation. Not one of us can pretend that it does so.” 

He suggested that the SEC is the wrong body to carry out the task.

The American Petroleum Institute, which went to court to get the first rule knocked down and applauded the repeal of the second rule, has yet to take a position on the third.

“The industry has historically supported transparency efforts and many of our member companies are filing revenue transparency reports under the rules of other jurisdictions,” the API’s vice president of corporate policy, Stephen Comstock, said in a statement. “We have always felt that successful implementation of the Dodd-Frank legislation depends on rules that manage the need for revenue data with the concerns with disclosures that could create competitive harms and undermine development.” 

Companies report their own numbers in Europe and Canada, and advocates of the disclosure laws acknowledge that there could be some fudging. But they argue that it’s at least a step in the right direction.

CNOOC reported payments to governments in 18 countries, including the United States, in 2018: from $294,000 to Equatorial Guinea to $3.3 billion to its own government in Beijing. Gazprom reported payments of $21.4 billion to the Russian government. And $32,000 to Kyrgyzstan.

Besides Caledonia, two other companies reported making payments to Zimbabwe governments, altogether totaling $11 million.

A voluntary effort, called the Extractive Industries Transparency Initiative, has signed up 52 participating countries to publish reports on a national level, though particulars vary from country to country.

The EITI is good as far as it goes, said Peter Jones, a U.K.-based investigator with Global Witness. But “it’s not hard law.” It works best as a complement to legislation, he said.

SEC Chairman Jay Clayton said he believes the new rule is “true to the requirements” of the law, but he has suggested the commission could take some of the criticisms into account as it drafts a final version.