U.S. federal oil and gas royalties

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U.S. federal oil and gas royalties are payments made by firms to the federal government in exchange for the opportunity to explore for oil and gas on government-owned land or water. Traditionally, most of the funds generated by these royalties have gone directly into the general U.S. Treasury. Some of the funds have been directed to the Historical Preservation Trust Fund and the Land and Water Conservation Fund. During most of the twentieth century, oil and gas companies generally paid between 12.5 and 16.7 percent in royalties for a lease to drill on public land or water. Over time, these royalty payments generated over $100 billion in revenues.

Contents

Changes to federal oil and gas royalty policy

110th Congress

After Democrats took control of Congress following the 2006 congressional elections, the House passed the CLEAN Energy Act of 2007, 264-163. The bill was intended largely to compensate for errors made by the Interior Department (discussed below) in collecting royalties from oil and gas companies from leases issued from 1996 to 2000, as well as advance conservation initiatives. Following passage of the bill in the House, it was placed on the Senate calendar.


An Act to move the United States toward greater energy independence and security, to increase the production of clean renewable fuels, to protect consumers from price gouging, to increase the energy efficiency of products, buildings, and vehicles, to promote research on and deploy greenhouse gas capture and storage options, and to improve the energy performance of the Federal Government, and for other purposes.
Sponsor: Rep. Nick Rahall [D, WV-3]Committees: House Transportation and Infrastructure, House Natural Resources, House Rules, House Budget, House Ways and Means


Main article: CLEAN Energy Act of 2007

Past changes to federal oil and gas royalty policy

Deep Water Royalty Relief Act (S.395)

In 1995, both houses of Congress passed and President Bill Clinton signed the Deep Water Royalty Relief Act (S.395), which granted a royalty "holiday" to oil and gas companies drilling in government-owned deep waters in the Gulf of Mexico for leases sold between 1996 and 2000. Specifically, under the program, companies would not have to pay the normal royalties except when market prices reached $34 a barrel for oil and $4 per thousand cubic feet for natural gas. At the time, oil and gas prices were fairly low, and supporters of the bill argued it would provide an incentive for petroleum companies to drill for oil and natural gas inside the U.S.[1]

November 8, 1995
Passed, 289-134, view details
Dem: 77-117 opposed, GOP: 212-16 in favor, Ind: 0-1 opposed

November 14, 1995
Passed, 69-29, view details
Dem: 18-27 opposed, GOP: 51-2 in favor, Ind: 0-0

In 2004 the Interior Department estimated that the act will eventually cost the government as much as $80 billion in lost revenue on royalties from leases issued from 1996 to 2000. In 2007 the Government Accountability Office estimated that the government had already lost about $1 billion but that outstanding lawsuits and other complications made an accurate estimate impossible until they were resolved.[1]

Bush administration relaxed royalty requirements

In 2004, after oil and gas prices had risen substantially over the previous several years, Interior Secretary Gale Norton offered royalty incentives to shallow-water producers.[1] Specifically, Norton raised the threshold prices by which companies would need to begin paying royalties.[1] The Interior Department originally proposed a cut-off price for royalty exemptions of $5 per million British thermal units (BTU's), but the Independent Petroleum Association of America, which represents smaller producers, argued that the new incentive would be useless because natural gas prices were already above $5. Ultimately, Norton set the threshold at $9.34. Shirley Neff, an economist at Columbia University, stated "There is no cost rationale...It is astounding to me that the administration would so blatantly cave in to the industry's demands."[1][1]

Energy Policy Act of 2005 (H.R. 6)

In 2005, Congress passed and President Bush signed the Energy Policy Act of 2005 (H.R. 6). which included a variety of provisions to provide royalty relief to oil and gas companies. Environmental and taxpayer groups criticized the legislation. Sara Zdeb, Legislative Director of Friends of the Earth, criticized the legislation as it came out of conference, saying, “the bill hands over billions in taxpayer dollars to America’s worst polluting industries while shortchanging renewable energy and energy efficiency—proven solutions that reduce our dependence on oil.”[1]

Main article: Energy Policy Act of 2005

Gulf of Mexico Energy Security Act of 2006 (S. 3711/H.R. 6111)

In 2006, Congress passed and the President signed the Gulf of Mexico Energy Security Act. Sen. Mary Landrieu (D-La.) and Senate Energy Committee Chairman Pete Domenici (R-N.M.), coauthored the plan to open 8.3 million acres in the Gulf of Mexico and share 37.5 percent of the new royalty revenues, dedicated to coastal protection, with Louisiana, Texas, Mississippi and Alabama. An additional 12.5 percent will be dedicated to the state side of the Land and Conservation Fund, which funds the acquisition of parks and green spaces across the country.[1] An industry-led coalition called the Consumer Alliance for Energy Security applauded passage of the bill and claimed that they “played a prominent role” in winning its passage.[1]

Tyson Slocum, director of Public Citizen’s Energy Program criticized the legislation:

"America is already the third biggest oil producer in the world. The problem isn’t that we produce too little oil – it’s that we consume too much, using one of every four barrels of oil in the world each day. The smartest way to break our reliance on oil is to increase fuel economy standards and invest in energy efficiency measures and mass transit... Left to their own devices, oil companies will just keep drilling in environmentally sensitive federal land and offshore areas, and fueling their corporate wealth in the process."[1]

Controversy

Allegations of fraudulent underpayment of royalties by oil and gas companies

POGO and whistleblowers file suit against oil companies in mid-nineties

During the mid-nineties, whistleblowers and the Project on Government Oversight (POGO), a government watchdog group, filed suit against sixteen oil companies for failing to pay their required royalties. POGO’s suit was filed under the False Claims Act (FCA), which provides citizens the power to sue on behalf of the federal government for fraud. In these cases, the Justice Department has the right to join the case. This ultimately happened in the POGO case. From 1998 to 2001, a dozen major companies, while acknowledging no wrongdoing, paid $438 million to settle charges that they had intentionally misreported their sale prices for oil (in order to pay lower royalties).[1] POGO listed the suit, and its eventual settlement, in its 2006 “Greatest Hits” list.[1]

Interior Dept. tightens rules to ensure payments; Sen. Hutchinson delays implementation

POGO eventually issued several reports finding hundreds of millions of dollars in uncollected royalties. The litigation and investigations by POGO and Congress prompted the Department of Interior’s Minerals Management Service (MMS) in 1998 to issue new rules for oil royalty collections which would end future underpayments. For a few years, Sen. Kay Bailey Hutchison (R-Texas) prevented the new rule from being implemented by putting spending riders on to annual appropriations bills.[1]

Senators favoring the new valuations rule mounted a filibuster led by Sen. Barbara Boxer (D-Calif.) on the FY 2000 Interior and Related Agencies appropriations bill. Ultimately, a compromise passed which was signed into law as PL. 106-113 on November 29, 1999. It contained valuation rule language delaying the implementation of a rule until March 15, 2000.[1]

In June 2000, MMS implemented the new oil rule which was estimated to collect $70 million more annual in royalties.[1]

Oil industry tycoon files suit over natural gas royalty underpayments; Congress asks for investigations into underpayments

Starting in the 1990s, oil industry executive Jack Grynberg filed False Claims Act lawsuits against dozens of oil and gas companies over allegations that they undermeasured natural gas for the purpose of underpaying royalties to the federal government. Grynberg estimates that $30 billion may be owed under his consolidated lawsuit against 73 companies over natural gas royalty underpayments.[1] One of the companies, Burlington Resources, disclosed in Securities and Exchange Commission filings that, it owed $ 97 million in underpaid royalites, and this was the subject of a DOJ press release.repo=tenk&ipage=3301239&doc=1&num=36&total=128&source=996 "Income Tax Expense,"] 10K Wizard. February 28, 2005.</ref> Over 65 of Grynberg's suits were dismissed, due to jurisdictional bars. Now, Grynberg has charged that BP(British Petroleum) was involved in bribes on oil concessions, strangely as he was in a business arrangements seeking concessions, a matter all over the news. Grynberg speaks 6 languages, a key in his world wide biz arrangements. Grynberg was never a party to the big settlement in the Burlington resource matter, despite previous attribution by Westword, on that to create a mistaken impression, one that Congress surely needs not to be confused on going into the 111th Congress.

Grynberg has reportedly spent $20 million of his own money mounting the USA lawsuits, qui tam actions[1]

Grynberg has received millions of dollars in previous lawsuit settlements with oil and gas companies, non-qui tam matters.[1] Westword has produced pieces on Grynberg but failed to bring out the full nature of the problems in his jurisdictional bars, on the qui tam actions, a matter that should deeply concern Congress. Other sources noted Grynberg has private personal interests in around 800 Oil / gas wells. Grynberg lives in the Denver area, close to the Westword offices, where the notion of "oil tycoon" was created by Westword, a weekly, not a main Colorado paper.

In response to the Grynberg's litigation, in July 2006, six members of Congress issued a letter to the Department of Interior questioning its methods for calculating natural gas royalties. Signing the letter were Reps. Carolyn Maloney (D-N.Y.), Tom Tancredo (R-Colo.), Maurice Hinchey (D-Mass.), George Miller (D-Calif.), Edward Markey (D-Mass.), and Bernard Sanders (I-V.T.).[1]

On October 20, 2006, the U.S. District Court for the District of Wyoming dismissed all of Grynberg's claims in this suit, his suit on qui tam actions. In Re: Natural Gas Royalties Qui Tam Litigation, 467 F. Supp. 2d 1117 (D. Wyo. 2006). The court found that "Grynberg deliberately chose to make sweeping allegations of fraud against nearly the entire industry, based in large part on rank speculation. By employing such odious tactics he now becomes the instrument of his own undoing." Id. at 1148. This, however was a jurisdictional bar, not a ruling on any merits, something that should not be confused in any matters by Congress. Westword, seemed to fail to understand a jurisdictional bar ruling is not a ruling on the merits. Congress should not fall into that Denver P R trap, in any Denver Oil town P R.

In January 2007, Rep. Maloney followed up by introducing legislation (H.R. 435) to commission a National Academy of Engineering study to assess whether natural gas drilled from federal and Native American lands is being properly measured for the purpose of paying royalties.[1]. This may obscure a larger problem, in view of the duties to market gas from federal lands in a marketable condition. After all market pricing is important as to natural gas taken from federal lands. MMS had a scandal on that, in the MMS chicks Denver office. The Judge who imposed the over 65 jurisdictional bars against Grynberg was from Cheney's home town -- Casper, Wyoming. A jurisdictional bar, only means the Judge never even reviewed any merits, yet he rants about "odious", in the heart of Dick Cheney's home(oil) town sentiments. The judge used to work for a law firm that represented big oil and gas companies. Surely, Congress should not be bind to that reality, home towned rulings in the red State Oil town--not on any merits--- is hardly a ruling that totally rubber stamps things, to put all matters to rest on the vital issues, despite that decision being widley misrepresentd by the oil industry. Even Grynberg's attorneys, if they dipped into some $ 20 million pool of funds, of the "tycoon", should know a jurisdictional bar ruling is not a ruling on the merits. The issue is vital to the U S treasury accountability, and should not be some home town oil P R deal. It is too important to America so as not to confuse some of this vital issues, now facing Congress.

Government auditors accuse Bush administration of pressure not to audit or enforce royalty payments

Whistleblowers file suit against oil companies to enforce audits ignored by superiors; one whistleblower fired

Bobby Maxwell, an auditor who had worked for many years for the Minerals Management Service (MMS), had the job of ensuring that oil companies were paying the federal government the royalties they owed. In the early 2000s, he discovered that Kerr-McGee Oil and Gas Corp., an oil company, was underpaying its royalties by millions. According to Maxwell, his superiors at the Interior Department discouraged him from pursuing the money from Kerr-McGee. The MMS later argued that it did not pursue the matter because it did not believe the claims were credible.[1]

In response to allegations by Maxwell and others, POGO's Beth Daley stated “We have a really serious problem right now. It's clear that the auditors are not being allowed to collect money that's owed to the taxpayers... Nationwide, we've looked at lawsuits and we've found that there are billions and billions of dollars in lawsuit settlements over these exact same kinds of allegations.”[1]

Rep. Carolyn Maloney (D-N.Y.) agreed with Daley, and argued that the main problem with the Interior Department was that, “Many of the people who work at the Minerals Management Service section of the Interior Department are almost a revolving door with the oil industry — they work in the industry, then they go work at MMS, then they leave MMS and go back to the industry.”[1]

In 2005, Maxwell filed a lawsuit against Kerr-McGee in a Denver, Colo. federal court. The suit accused the company of cheating the government out of over $7 million in royalty payments. It also contended that the Interior Department ignored audits which clearly showed Kerr-McGee’s wrongdoing. Soon after, the Interior Department eliminated Maxwell’s job in what it termed "reorganization." In the Bobby Maxwell case, an affidavit said that MMS Director Johnnie Burton personally discouraged the agency from pursuing unpaid royalties.[1]

Three other federal auditors, who once worked for Maxwell and continued to work at the Interior Department, also filed similar suits of their own against other energy companies.[1][1] The lawsuits filed by the auditors claimed that superiors at the agency told them not to collect royalties owed by oil companies.[1]

At a Senate hearing in January 2007, Sen. Ron Wyden (D-Ore.) raised concerns about the problems and whistleblower retaliation: “The auditors - agency veterans - say their superiors at MMS ordered them not to pursue these cases on the job, so they are doing it on their own. And how did the Interior Department respond? One of the auditors claims he was forced out of his job and the other three have been reassigned to other jobs and are the subject of internal Department investigations.”[1]

ExxonMobil, Chevron, Shell and ConocoPhillips all sought (unsuccessfully) to block Maxwell’s suit, arguing before an appellate judge that the case would "open the floodgates" to suits by other federal auditors. The court, however, rejected their pleas and a trial was set to begin on January 16, 2007.[1][1]

On January 23, a federal jury found that Kerr-McGee Corp. knowingly underpaid the federal government by $7.56 million in royalties. Specifically, the jury ruled that Kerr-McGee sold oil to the Houston-based petroleum company Texon LP at below-market prices in a deal to reduce its royalty payments to the Minerals Management Service (MMS). In exchange for paying a lower price, Texon provided free marketing services for Kerr-McGee.[1][1] Following the ruling, Michael Porter, Maxwell's lawyer, stated "A group of ordinary citizens decided today they'd had enough with the cozy relationship between government and Big Oil."[1][1] Under the False Claims Act, a law intended to encourage whistle-blowers, Kerr-McGee faced over $30 million in fines, as well as penalties of up to $11,000 for each of 1,200 false statements that the company was accused of making in its royalty reports to the government. The firm promised to appeal the decision.[1][1]

In March 2007, Maxwell testified before the House Natural Resources Committee. According to his statement “I served the American taxpayer with over thirty years of service, including three years in the U.S. Army... My only regret is that my career was cut short due to exposing the federal government’s current cozy relationship with the oil and gas industry and its unwillingness to consistently enforce laws and regulations requiring the industry to pay royalties due on Federal oil and gas leases.”[1]

Company gets suit dismissed on technicality

In March 2007, Kerr-McGee prevailed in a post-trial motion which resulted in Maxwell’s case being dismissed. According to the Judge, Maxwell did not have standing to file the lawsuit due to a technicality over whether Maxwell voluntarily disclosed wrongdoing by Kerr-McGee to the government prior to filing suit as required under the False Claims Act.[1]

Problems with audit collections exposed in 2006

In a series of letters in 2006, state and tribal royalty auditors raised concerns about the Minerals Management Service’s (MMS) audit and compliance review program and the computer systems used to track revenues.[1]

Starting in 2006, insiders from the Minerals Management Service alerted the news media and Congress to the fact that they were being discouraged from collecting on audit findings. Written testimony from the Project On Government Oversight pointed out that audit collections had declined since 2000 and that MMS had cut back on its number of auditors.[1]

In December 2006, the Department of Interior Inspector General issued a report confirming that the number of audits being performed by MMS had declined by 22 percent from 2000 to 2004, that concerns about the compliance review program and the computer systems had merit, and a variety of other problems leading to less certainty for collection of royalties. The report also noted that the MMS reduced the number of auditors conducting compliance activities by 20.7 percent.[1]

On March 1, 2007, House Natural Resources Committee Chairman Nick Rahall (D-W.V.) recommended that House appropriators restore the number of MMS auditors performing compliance activities to its FY 2000 level in the FY 2008 Interior Department budget.[1]

In testimony before the House Natural Resources Committee, Taxpayers for Common Sense President Ryan Alexander stated, "The combination of self-reporting and superficial data reviews provides companies with an incentive to under-report and under-pay royalties owed."[1]

In 2006 and 2007, the Department of Interior's Minerals Management Service (MMS) issued statements in response to the DOI Inspector General report. According to those statements, MMS is in the process of implementing many of the recommendations in the December 2006 Inspector General report.[1][1]

Clinton Interior Dept. error leads to lost revenue for federal government; Bush admin. takes years to fix

In 1998 and 1999, the Interior Department's Minerals Management Service (MMS) under President Clinton issued over 1,000 leases to oil and gas companies which omitted the clause forcing companies to pay royalties if oil prices rose above $34 a barrel and natural gas rose above $4 per thousand cubic feet.[1] The New York Times exposed the problem in a February 14, 2006 article.[1] The Bush administration learned of the mistake, but initially opted not to address it. Interior Secretary Norton stated, “These are binding contracts that the government signed with companies...I don’t think we can change them just because we don’t like them.”[1][1][1]

As of 2007, the error had already cost the federal government over $1 billion, and was estimated to ultimately cost as much as $10 billion.[1]

House Subcommittee on Energy and Resources investigates missing price thresholds

In 2006, Rep. Darrell Issa (R-Calif.) – then-Chairman of the House Committee on Government Reform Subcommittee on Energy and Resources – conducted an investigation and held hearings concerning the missing price thresholds on the offshore leases.[1] On March 1, 2006, at the first hearing held on the issue by Issa, a Department of Interior (DOI) official testified that the price thresholds were "inadvertently dropped out" of the 1998-1999 offshore leases.[1]

At a second hearing on June 21, 2006, an oil industry executive from Chevron said the company had notified the DOI of the missing price thresholds as early as 1998.[1]

On August 3, 2006, House Committee on Government Reform Chairman Tom Davis (R-Va.) and Issa wrote to Interior Secretary Dirk Kempthorne to express "concerns that Interior Department officials have intentionally withheld information in an attempt to impede the Committee's investigation."[1]

At a third House Energy and Resources Subcommittee hearing on September 13, 2006, the DOI Inspector General reported on the findings of his investigations into the offshore leases, concluding: "short of a crime, anything goes at the highest levels of the Department of the Interior."[1]

Sara Zdeb, Legislative Director of Friends of the Earth, expressed outrage after the hearing. She stated "The Inspector General's blunt testimony today confirms what we've known all along: the Interior Department's culture of cronyism is paying big dividends for Big Oil while taxpayers foot the bill."[1]

The House Committee on Government Reform followed with a fourth hearing the next day day, September 14, 2006, featuring testimony from DOI officials. Chairman Davis and Subcommittee Chairman Issa "denounced a five-year coverup of the lapse in payments."[1] Rep. Issa later accused DOI Minerals Management Service Director Johnnie Burton of misleading Congress about when she knew about the problem with the leases, and called for her ouster.[1]

House of Representatives passes legislation to address missing price thresholds; Senate passes language out of committee

On May 18, 2006, the House of Representatives voted for an amendment offered by Reps. Maurice Hinchey (D-N.Y.) and Edward Markey (D-Mass.) and several other members of Congress to the 2007 Department of Interior Appropriations Bill (H.R. 5386). According to a statement from Rep. Hinchey, "While the Hinchey amendment doesn't require energy companies to rework their contracts, it does bar them from receiving future contracts unless they work with the Interior Department to redo the existing contracts that contained the royalty-free clerical error, thus providing energy companies with a large incentive to rework the existing contracts."[1]

On June 29, 2006, the Senate Appropriations Committee approved a similar amendment to the House language. Sponsored by Sen. Dianne Feinstein (D-Calif.) and Sen. Judd Gregg (R-N.H.), the amendment was attached to the FY 2007 Interior Appropriations Bill.

However, the amendments sponsored in the House and Senate were never enacted because the 2007 Interior Appropriations Bill was one of nine budget bills never finally approved during the 109th Congress.[1] In early 2007, Congress passed and the President signed the Fiscal Year 2007 Joint Resolution (P.L. 110-5) providing funding for the Interior Department at its 2006 enacted level.[1]

On December 8, 2006, Reps. Markey and Hinchey again offered an amendment to persuade oil companies to renegotiate their offshore leases, this time to the Gulf of Mexico Energy Security Act (S. 3711 and H.R. 6111). Although the amendment failed, Rep. Hinchey vowed to continue fighting for it.[1]

On January 18, 2007, the House of Representatives adopted the Hinchey-Markey approach to fixing the offshore leases when it passed the CLEAN Energy Act of 2007.[1]

Main article: CLEAN Energy Act of 2007

Interior renogiates some leases, opposes legislation

The Department of Interior (DOI) did eventually succeed in renegotiating lease terms with some of the oil companies.[1] On December 14, 2006, Assistant Secretary of Land and Minerals Management C. Stephen Allred announced that the government had signed agreements with BP, ConocoPhillips, Marathon Oil Company, Shell, and Walter Oil and Gas Corporation. Under the agreements, these companies agreed to begin paying royalties on oil and gas produced under leases issued in 1998-1999. Past royalties would not be collected. According to congressional staff, these companies represented just 17 percent of the flawed 1998-99 leases.[1]

At a Senate Energy Committee hearing on January 18, 2007, DOI Assistant Secretary C. Stephen Allred continued to express the Interior Department's opposition to the Hinchey-Markey approach to fixing the leasing error, saying "we must be mindful of unintended consequences, including potential new legislation that might result in litigation affecting future lease sales in the gulf."[1]

Kerr-McGee files lawsuit to avoid paying deepwater royalties

On March 19, 2006, Kerr-McGee Corp. filed lawsuit against the Department of Interior (DOI), maintaining that it did not have to pay royalties on deepwater offshore leases. The lawsuit asserted that DOI could not apply price thresholds to deepwater leases issued from 1996-2000 under the Deepwater Royalty Relief Act. In June 2006, Kerr-McGee agreed to enter into mediation with the DOI over the lawsuit.[1]

According to the Government Accountability Office, "MMS estimated in October 2004 that potential foregone royalties on future production could be up to $60 billion over the life of the leases, should the federal government lose the legal challenge."[1]

In March 2007, mediation failed between DOI and Kerr-McGee, which was purchased by Anadarko in 2006.[1]

Royalty-in-Kind (instead of cash payment) program expands under Bush

Under the Bush administration, the Minerals Management Service (MMS) dramatically expanded its program to take oil and gas royalties-in-kind (RIK), meaning the industry gives the government a portion of the oil and gas it takes from federal lands rather than paying royalties in cash. Much of the oil taken under this program has been used to fill the federal government’s Strategic Petroleum Reserve. A series of pilot programs in the 1990’s were the precursor to this expansion. These pilot programs almost consistently lost money for the government. In January 2003, an analysis by the Government Accountability Office concluded that MMS was unable to determine whether it was losing revenue through its RIK pilot programs.[1]

Reps. Nick Rahall (D-W.V.) and Carolyn Maloney (D-N.Y.) wrote to then-Secretary of the Interior Gale Norton to demand that expansion of the RIK programs be halted until data could show that the American taxpayer was getting a fair deal.[1]

In the Energy Policy Act of 2005, Congress gave the Secretary of Interior expanded authority to accept royalties-in-kind but required that the Secretary report to Congress each year from 2006 to 2015 on the details of these royalty collections.

Main article: Energy Policy Act of 2005

In February 2007, the Senate Energy Committee asked the Government Accountability Office to update its research on RIK in light of “widely reported and well documented problems that the Mineral Management Services (MMS) has had with its royalty collection programs.” Committee Chair Jeff Bingaman (D-N.M.) said, “Given the growth of this program because of the Energy Bill, its impact on the Treasury and the problems that MMS has had with recordkeeping, we think it’s just good government to have GAO take a closer look at this program.”[1]

Criminal investigations into Interior Dept. employee conflicts of interest

In December 2006, the New York Times reported that the Justice Department had “begun two criminal investigations into the Interior Department’s Minerals Management Service” including one which involved officials who manage the royalties-in-kind program.[1]

The Justice Department was investigating “whether the director of a multibillion-dollar oil-trading program at the Interior Department has been paid as a consultant for oil companies hoping for contracts.” According to the Times, “investigators were worried that senior government officials had been steering huge oil-trading contracts to favored companies.”[1] Three Minerals Management Service employees themselves as part of a consulting company whose “purpose is to supply the minerals industry with expertise in mineral resource assessment, financial and economic analysis, mineral database design, and data collection techniques.” According to CBS News, one of the consultants said the website “never generated any business for me.”[1]

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