Petroleum Industry

BP’s Partner in Crime

The liability costs stemming from the ongoing environmental disaster in the Gulf of Mexico are likely to be in the tens of billions of dollars. BP, of course, will bear the brunt of those costs, but other deep pockets should not be ignored. Transocean, the owner of the rig where the initial explosion occurred, and Halliburton, which was supposed to seal the well with concrete, will both be targeted.

But we shouldn’t forget that BP is not the sole owner of the underground well, known as Macondo, that continues to spew large quantities of crude oil into the sea. The biggest minority holder, with a 25 percent share, is Anadarko Petroleum, which is a major offshore driller in its own right and has ties to major controversies in the energy industry. The company is worth a closer look.

Anadarko was formed in 1959 as a subsidiary of Panhandle Eastern Pipe Line Company, which used the entity to get around Federal Power Commission limitations on the price it could charge on natural gas produced from properties it owned in the Anadarko Basin in Texas, Oklahoma and Kansas. Anadarko got involved in offshore exploration in 1970. Among its early project partners was Amoco, which would later (1998) be acquired by BP.

By the 1990s Anadarko was a major player in the Gulf of Mexico. During the following decade the company became better known (and much larger) after acquiring Union Pacific Resources and then Kerr-McGee, which had pioneered offshore petroleum exploration in the late 1940s. The latter acquisition, in particular, saddled Anadarko with a dubious legacy.

In the 1970s Kerr-McGee was embroiled in a scandal over accusations of serious safety violations and falsification of records at its nuclear fuel plant in Oklahoma. The controversy escalated after the whistleblower in the case, technician and union activist Karen Silkwood, died under suspicious circumstances in 1974. Silkwood’s family sued the company for causing her to be contaminated with plutonium. In 1986 Kerr-McGee paid $1.38 million to settle the case after a jury award of $10.5 million had been overturned on appeal.

Two decades later, Kerr-McGee mounted a court battle to prevent the federal government’s Minerals Management Service from restoring royalty rates paid by offshore drillers to reasonable rates after they had been reduced by Congress when energy prices were low in the mid-1990s. The case, which was resolved after Anadarko completed its acquisition of Kerr-McGee, could cost U.S. taxpayers, according to a Government Accountability Office estimate, more than $50 billion.

While Kerr-McGee was pursuing its case it was also defending itself against a whistleblower suit charging that the company had cheated the federal government out of millions of dollars in offshore drilling royalties by underreporting its output. In January 2007 a federal jury found the company guilty, but the judge in the case later overturned the verdict on a technicality.

Anadarko’s own record is not unblemished. Last year it and two related companies paid $1.05 million in civil penalties and agreed to spend $8 million in remedial actions to resolve charges that they violated the Clean Water Act by discharging harmful quantities of oil from a production facility in Wyoming. Two years earlier the company was fined $157,500 by the EPA for destroying wetlands in southwest Wyoming. Anadarko is also heavily involved in natural gas drilling in the Marcellus Shale in the northeastern United States, which is viewed as a serious threat to drinking water supplies. Its joint venture partner in the shale operations is Mitsui, which is also the third partner (with a 10 percent stake) in the Macondo well.

Anadarko does not appear to have had any role in operational decisions at that ill-fated Macondo well, but the company is separately involved in its own deepwater drilling activities in the Gulf of Mexico that were temporarily shut down as a result of the moratorium announced by President Obama. While BP rightfully remains the primary target of legal and other responses to the gulf disaster, Anadarko – both by virtue of its ownership interest in Macondo and its own risky drilling – also deserves to feel some of that pain.

Federalize BP

President Obama’s declaration that the federal government is in charge of the response to the oil disaster in the Gulf of Mexico is apparently meant to deflect Katrina comparisons and show that his administration is fully engaged. With that p.r. mission accomplished, Obama now needs to turn to the question of what to do about BP.

As a helpful Congressional Research Service report points out, the Oil Pollution Act of 1990 gives the federal government three options: monitor the efforts of the spiller, direct the efforts of the spiller, or do the clean-up itself. So far, the Obama Administration has followed the second path and resisted growing pressure to “federalize” the response.

This was said to be necessary because the feds do not have the technical expertise to handle a deepwater leak. As Coast Guard Adm. Thad Allen, the National Incident Commander, put it: “To push BP out of the way would raise the question of: Replace them with what.”

The idea that the government is completely dependent on BP to stop the leak is a dismaying thought. But even if it’s true, it no longer applies once the gusher is brought under control. When the center of attention shifts from 9,000 feet below the surface to the clean-up, there is no reason why BP should continue to run things.

The simple fact is that the company cannot be trusted. As Obama himself noted, the company’s interests diverge from those of the public when it comes to assessing the true extent of the damage and deciding what is necessary in the way of remediation. Keep in mind that BP’s total liability will be determined at least in part by the final estimate of how much oil its screw-ups caused to be released into the ocean. It has every incentive to obscure the full magnitude of the catastrophe.

The company’s motivation in employing massive quantities of the controversial chemical Corexit may have had more to do with dispersing evidence of the spill than with helping the ecosystem of the gulf recover. BP had to be pressured to back off from a plan to have clean-up workers sign confidentiality agreements to prevent them from disclosing what they observed. The company resisted making public the live video feed showing the full force of the oil spewing out of the wrecked well and then delayed making a high-definition version of that video available to federal investigators.

For BP, job one is now not clean-up but cover-up. Allowing it to manage the ongoing response would be akin to allowing the prime suspect in a mass murder to assist in processing the crime scene.

Taking operational control of the clean-up away from BP should be a no-brainer, but it is not enough. This is a company that has repeatedly shown itself to be reckless about safety precautions. The gulf disaster comes on the heels of previous incidents—a 2005 explosion at a refinery in Texas that killed 15 workers and a 2006 series of oil spills at its operations in the Alaskan tundra—in connection with which it pleaded guilty to criminal charges and paid large fines. It was also put on probation that has not yet expired.

An individual who violates probation can be deprived of liberty through imprisonment. A giant corporation that violates its probation—as BP undoubtedly has done by breaking various federal and state laws in its actions precipitating the Deepwater Horizon explosion—cannot be put behind bars, but it can be deprived of freedom of action.

Federal sentencing guidelines (p.534) allow probation officers to monitor the finances of a business or other organization under their supervision. In BP’s case, the issue is safety. One way to ensure that the company acts responsibly is to station inspectors inside all of its U.S. operations (at BP’s expense) to oversee any operational decision that could impact the safety of workers and the environment. Those inspectors would also make it harder for the company to cover up the full extent of what it has done to the Gulf Region.

In other words, the Obama Administration should federalize not only the Gulf of Mexico clean-up but BP itself. That would show that the government really is in charge until we can be sure that the oil giant is no longer a public menace.

Bad Karma in the Gulf of Mexico Oil Disaster

British Petroleum is, rightfully, taking a lot of grief for the massive oil spill in the Gulf of Mexico, but we should save some of our vituperation for Transocean Ltd., the company that leased the ill-fated Deepwater Horizon drilling rig to BP. Transocean is no innocent bystander in this matter. It presumably has some responsibility for the safety condition of the rig, which its employees helped operate (nine of them died in the April 20 explosion).

Transocean also brings some bad karma to the situation. The company, the world’s largest offshore drilling contractor, is the result of a long series of corporate mergers and acquisitions dating back decades. One of the firms that went into that mix was Sedco, which was founded in 1947 as Southeastern Drilling Company by Bill Clements, who would decades later become a conservative Republican governor of Texas.

In 1979 a Sedco rig in the Gulf of Mexico leased to a Mexican oil company experienced a blowout, resulting in what was at the time the worst oil spill the world had ever seen. As he surveyed the oil-fouled beaches of the Texas coast, Gov. Clements made the memorable remarks: “There’s no use in crying over spilled milk. Let’s don’t get excited about this thing” (Washington Post 9/11/1979).

At the time, Sedco was being run by Clements’s son, and the family controlled the company’s stock. The federal government sued Sedco over the spill, claiming that the rig was unseaworthy and its crew was not properly trained. The feds sought about $12 million in damages, but Sedco drove a hard bargain and got away with paying the government only $2 million. It paid about the same amount to settle lawsuits filed by fishermen, resorts and other Gulf businesses. Sedco was sold in 1984 to oil services giant Schlumberger, which transferred its offshore drilling operations to what was then known as Transocean Offshore in 1999.

In 2000 an eight-ton anchor that accidentally fell from a Transocean rig in the Gulf of Mexico ruptured an underwater pipeline, causing a spill of nearly 100,000 gallons of oil. In 2003 a fire broke out on a company rig off the Texas coast, killing one worker and injuring several others. As has been reported in recent days, a series of fatal accidents at company operations last year prompted the company to cancel executive bonuses. It’s also come out that in 2005 a Transocean rig in the North Sea had been cited by the UK’s Health and Safety Executive for a problem similar to what apparently caused the Gulf accident.

Safety is not the only blemish on Transocean’s record. It is one of those companies that engaged in what is euphemistically called corporate inversion—moving one’s legal headquarters overseas to avoid U.S. taxes. Transocean first moved its registration to the Cayman Islands in 1999 and then to Switzerland in 2008. It kept its physical headquarters in Houston, though last year it moved some of its top officers to Switzerland to be able to claim that its principal executive offices were there.

In addition to skirting U.S. taxes, Transocean has allegedly tried to avoid paying its fair share in several countries where its subsidiaries operate. The company’s 10-K annual report admits that it has been assessed additional amounts by tax authorities in Brazil and that it is the subject of civil and criminal tax investigations in Norway.

In 2007 there were reports that Transocean was among a group of oil services firms being investigated for violations of the Foreign Corrupt Practices Act in connection with alleged payoffs to customs officials in Nigeria. No charges have been filed.

An army of lawyers will be arguing over the relative responsibility of the various parties in the Gulf spill for a long time to come. But one thing is clear: Transocean, like BP, brought a dubious legacy to this tragic situation.

Profit, Baby, Profit

President Obama’s drill-baby-drill (but not quite everywhere) gambit does not only link him to an environmentally backward policy. It also will force his Administration to defend one of the most dysfunctional federal programs in modern history: the Interior Department’s offshore oil and gas leasing system.

Interior’s Minerals Management Service (MMS) is supposed to collect royalties from companies drilling in offshore public waters. After new activity was restricted in the wake of the devastating spill off the coast of Santa Barbara, California in 1969, the oil industry sought to make its leases more profitable by pressing for reductions in these payments.

In the mid-1990s, when energy prices were low, Big Oil got Congress to expand the “royalty relief” provisions that were already in the Outer Continental Shelf Lands Act of 1953. Royalties were supposed to return to higher rates when prices rebounded, but things got complicated. First, it came to light that MMS had failed to write those provisions into some 1,000 deepwater leases it signed in 1998 and 1999, putting into question its ability to collect billions of dollars in back royalties.

While this was being sorted out, one of the drilling companies – Kerr-McGee (now part of Anadarko Petroleum) – filed suit challenging the right of MMS to impose the higher royalties on any leases. The company’s self-serving arguments found a sympathetic ear in federal court. Last fall the Supreme Court declined to review an appellate ruling in favor of the company, thus allowing Anadarko to avoid paying more than $350 million in back royalties. For the industry as a whole, the Court blocked the Interior Department from trying to collect on a bill that the Government Accountability Office once estimated could run as high as $53 billion.

Then there’s the small matter of the wild parties and gifts that industry representatives lavished on MMS employees in charge of the agency’s royalty-in-kind program. In September 2008 Interior Department Inspector General Earl Devaney (now in charge of the Recovery Accountability and Transparency Board) issued three reports describing gross misconduct at MMS, including cases in which agency employees were literally in bed with the industry. Devaney concluded that the royalty program was mired in “a culture of ethical failure.”

Not all MMS employees were bought off. Some agency auditors came forward and charged that they had been pressured by their superiors to terminate investigations of royalty underpayments.

Once the Obama Administration took office, Interior Secretary Ken Salazar took steps to clean up MMS. Last September he announced plans to terminate the royalty-in-kind program, whose staffers had been at the center of the sex and gifts scandal.

For a while it was unclear whether Salazar would tighten up the remaining royalty programs. In fact, he told the editorial board of the Houston Chronicle last fall that in some cases he thought drilling companies should pay even lower royalty rates. He changed his tune this year, and the Administration is seeking modest increases in royalties and fees.

Yet the entire offshore leasing program still amounts to a giant boondoggle. Thanks to the federal courts, artificially low royalty rates are now effectively an entitlement for the drilling industry. Research conducted by the Interior Department itself suggested that the incentives result in little additional oil production. Not to mention the environmental risks.

And now, thanks to a dubious calculation that making concessions on offshore drilling will help prospects for a climate bill, the Obama Administration is bringing about a major expansion of a program that is disastrous even if there are no spills. Profit, baby, profit.

Shell’s Self-Serving “Humanitarian” Gesture

whale One of the advantages for a corporation in resolving a sensitive lawsuit out of court is that it can proclaim innocence and insist it is settling for other reasons. Royal Dutch Shell has done just that in a case brought in connection with the 1995 execution of author Ken Saro-Wiwa and eight other activists who campaigned against the oil company’s operations in the Ogoniland region of Nigeria.

Shell actually was even more brazenly self-serving than the typical company that says it is settling in order to put the case behind it. The Anglo-Dutch transnational insisted that its willingness to pay the plaintiffs US$15.5 million – $5 million of which will go into a trust fund for the Ogoni people – was a “humanitarian gesture.” It was unusual for Shell to allow the amount of the settlement to be disclosed, but it was apparently worth it to draw attention away from the lawsuit’s charges that the company collaborated with the repressive military regime that ruled Nigeria in the 1990s and that put Saro-Wiwa and the others to death after a sham trial. The suit – brought in U.S. federal court under the Alien Tort Claims Act, the Torture Victim Protection Act and racketeering statutes – also accused Shell of being complicit in crimes against humanity, torture, inhumane treatment, arbitrary arrest, wrongful death, assault and battery, and infliction of emotional distress.

It is understandable why the plaintiffs and their lawyers – led by the Center for Constitutional Rights and EarthRights International – would feel a need to settle a case that had dragged on for 13 years and provide some financial assistance to the Ogoni community. Yet it is frustrating to see Shell trying to turn an outrage into an opportunity to burnish its image, even though other Ogoni claims are still pending.

The frustration is compounded by the fact that Shell continues to engage in dubious behavior in other parts of its global operations. For example, the company has a problematic relationship with another undemocratic government as part of its deep involvement in a massive oil and gas project in the Russian Far East. That offshore project, known as Sakhalin II, has been the subject of a great deal of controversy because it threatens the survival of one of the world’s most endangered species of whales – Western Pacific Grays (photo).

Groups such as Pacific Environment, collaborating with Russian activists who formed Sakhalin Environment Watch, have pressured Shell and its partners to adopt stronger environmental protections or abandon the project. Shell’s largest partner is Gazprom, a publicly traded gas monopoly that is controlled by the Russian government, which has used the company to advance Russian foreign policy goals vis-à-vis Eastern Europe by cutting off gas supplies at various times. Shell has acknowledged that it is interested in developing a new Sakhalin III project in collaboration with Gazprom.

Last year, there were reports that Shell had sought to influence the outcome of a purportedly independent environmental audit of Sakhalin II. Previously, Shell gained notoriety for overstating its proven petroleum reserves by 20 percent. The company ended up paying about $150 million to U.S. and British authorities to settle the charges. It did not try to depict that payment as a humanitarian gesture, but it is possible that one day Shell may have to put a positive spin on millions paid to settle claims stemming from the harms caused in Sakhalin.

Note: If you want to keep track of the far-flung operations of U.S.-based transnationals, check out a new tool called Croctail, which provides an easy way to search the names of domestic and foreign subsidiaries that publicly traded companies report in their 10-K filings to the Securities and Exchange Commission. Croctail is an extension of the Crocodyl wiki of critical corporate profiles sponsored by CorpWatch and other groups (full disclosure: I am a contributor and advisor to Crocodyl).

The Corporate Crime Fighting Budget

The call to boost taxes on the wealthy to start paying for healthcare reform is not the only refreshing thing about the budget outline just released by the Obama Administration. There is also a marked shift toward tighter regulation of business. Here are some features of what might be called the Corporate Crime Fighting Budget:

Cracking down on corporate polluters. The Environmental Protection Agency—a joke during the Bush Administration—is slated for a 34 percent increase in funding. This would result in a hike in the budget for core functions such as enforcement to $3.9 billion, an all-time high for the agency.

Cracking down on abusive employers. Obama wants the Department of Labor—another agency enervated by the Bush crowd—to get a smaller increase than EPA, but the additional funds are intended to rebuild DOL’s responsibilities in workplace monitoring. The budget document proposes to “increase funding for the Occupational Safety and Health Administration, enabling it to vigorously enforce workplace safety laws and whistleblower protections, and ensure the safety and health of American workers; increase enforcement resources for the Wage and Hour Division to ensure that workers are paid the wages that are due them; and boost funding for the Office of Federal Contract Compliance Programs, which is charged with pursuing equal employment opportunity and a fair and diverse Federal contract workforce.”

Prosecuting white-collar crooks. The section on the Justice Department in the budget document says that the Administration will seek [not yet quantified] “resources for additional FBI agents to investigate mortgage fraud and white collar crime and for additional Federal prosecutors, civil litigators and bankruptcy attorneys to protect investors, the market, the Federal Government’s investment of resources in the financial crisis, and the American public.”

Thwarting purveyors of tainted food. The Administration plans to “take steps to improve the safety of the Nation’s supply of meat, poultry and processed egg products and to ensure that these products are wholesome, and accurately labeled and packaged.” The proposed budget for the Agriculture Department “provides additional resources to improve food safety inspection and assessment and the ability to determine food safety risks. This will lead to a reduction in foodborne illness and improve public health and safety.” The Food and Drug Administration, which is under the auspices of the Department of Health and Human Services, would also get a hike in funding.

Restricting plunderers of national resources. The section of the budget document on the Interior Department outlines the Administration’s intention to rein in the windfalls long enjoyed by extraction companies with leases to drill and mine on public lands. The plan includes “a new excise tax on offshore oil and gas production in the Gulf of Mexico to close loopholes that have given oil companies excessive royalty relief” as well as the imposition of user fees and more realistic royalties for oil and gas drilling on federal lands.

Controlling drug and healthcare price gouging. The general framework for healthcare reform released by the Administration as part of the budget document contains plans to slow down the growth in Medicare costs. This includes a proposal to force providers of privatized coverage under the name of Medicare Advantage to participate in competitive bidding. Medicare drug costs would be reined in by tightening oversight of Part D spending and by preventing brand-name pharmaceutical companies from paying generic drug producers to keep their low-cost products off the market.

To these should be added tax proposals that would put an end to various boondoggles that have enriched oil companies, hedge funds and other anti-social elements. Some of Obama’s proposals (especially regarding healthcare) do not go nearly far enough, but the budget as a whole represents a major break from the priorities of the Bush Administration. Though you would hardly know that from the geeky, matter-of-fact way it is being promoted by Budget Dirtector Peter Orszag (photo).

Budget documents are, of course, merely wish lists conveyed by the executive to the legislative branch. In the short term, the main impact of Obama’s blueprint will be to launch a massive wave of business lobbying. Now it is up to Congress to resist the entreaties of those paid persuaders and make it clear that the days of unchecked corporate giveaways have come to an end.

Shell’s Troubled Relationship with the Truth

Oil giant Royal Dutch Shell is facing accusations that it manipulated a supposedly independent environmental audit of a huge Russian oil and gas project in which it is involved. Nick Mathiason of the British newspaper The Observer reports that he obtained dozens of internal e-mails showing that Shell officials in London sought to influence the conclusions of a review of Sakhalin II being conducted by AEA Technology. The audit was used by financial institutions in making funding decisions about the $22 billion project.

The Observer quotes Doug Norlen of the group Pacific Environment as saying: “Shell stage-managed the whole process. They set the agenda, scheduled meetings and even participated in the editing of sections. I believe this to be a stark and vivid example of manipulation.” The Shell website contains a page on which it touts the favorable findings of the AEA report.

Pacific Environment, a non-profit advocacy organization based in San Francisco, has done pioneering environmental work on the Russian Far East and Siberia, collaborating with Russian activists who formed Sakhalin Environment Watch. The groups have been highly critical of the offshore Sakhalin II project because it threatens the survival of the world’s most endangered species of whales—Western Pacific Grays (photo). The campaign has pressured Shell and its partners to adopt stronger environmental protections or abandon the project.

The campaign became more complicated in late 2006, when Shell was forced by Russia to sell half of its holdings in the project at a bargain-basement price to Gazprom, which is publicly traded but controlled by the Russian government. This gave Gazprom a majority stake of 55 percent, with Shell’s interest reduced to 27.5 percent. The holdings of the other partners, Mitsui and Mitsubishi, were also slashed.

In its diminished position, Shell was even more vulnerable to attacks in the Russian and foreign press in mid-2007 after it was revealed that David Greer, the deputy chief executive of Sakhalin II, had sent out a motivational memo to his staff containing unattributed passages taken from a speech made by U.S. General George S. Patton on the eve of D-Day in 1944. Amid the ensuing furor over plagiarism, Greer resigned.

Shell’s integrity problems are not limited to Sakhalin II. In January 2004 the company admitted that had overstated its proven petroleum reserves by 20 percent. It later came out that that top executives at the company knew of the situation two years before it was publicly disclosed. Shell ended up paying penalties of about $150 million to U.S. and British authorities for the misreporting.

In his Observer article, Mathiason notes that environmental campaigners are worried that Shell’s behavior with the Sakhalin II report could be repeated in audits involving other projects such as its oil drilling leases in Alaska’s Chukchi Sea. Given the company’s troubled relationship with the truth, that concern is quite legitimate.