No Oil Producing and Exporting Cartels Act

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The No Oil Producing and Exporting Cartels Act of 2007 (NOPEC) was a U.S. Congressional bill, also known as H.R. 2264 and, in 2008, as part of H.R. 6074. NOPEC was designed to remove the sovereign immunity shield and to allow the international oil cartel, OPEC, and its national oil companies to be sued under U.S. law for anti-competitive attempts to limit the world's supply of petroleum and the consequent impact on oil prices.[1] The NOPEC Act was initially sponsored and introduced by Representative John Conyers, D-MI in May 2007 and as H.R. 6074 by Representative Steve Kagan, D-WI. In the U.S. House of Representatives, the 2007 bill had 12, bipartisan co-sponsors, which included Rep. Dennis J. Kucinich.[2][3][4] HR 2264 also had strong bipartisan support in the U.S. Senate.[5][6] Judiciary Committee Chairman Patrick Leahy, D-Vt. said: "It is long past time for this to become law."[7] HR 2264 was passed by the House of Representatives in May 2007, as stand-alone bill by a vote of 345-72.[8] That same month, it also passed the Senate by a vote of 70-23 as part of its energy measure.[9] As part of the Gas Price Relief Act, NOPEC (H.R. 6074) was then passed, in the House of Representatives, in May 2008, by a vote of 324-84.[4][10][11] President G. W. Bush, reiterated his previous promise to veto the bill.[12] Under a continued veto threat, a team of senators reintroduced the bill just a week before President Bush left office.[13] However, NOPEC/H. R. 6074 did not then come to a final Senate vote and has not gone beyond its introduction subsequently.[14]

NOPEC has been the Congressional effort to address the issue that, under federal law, foreign governments cannot be sued for predatory pricing or failing to comply with federal antitrust laws. Thus, the purpose of the bill was to extend similar Sherman Antitrust consumer protection, so as to include protection against collusion and predatory pricing by foreign governments and international cartels, such as OPEC.[15]

As written and passed, H. R. 2264 states the following: "Amends the Sherman Act to declare it to be illegal and a violation of the Act for any foreign state or instrumentality thereof to act collectively or in combination with any other foreign state or any other person, whether by cartel or any other association or form of cooperation or joint action, to limit the production or distribution of oil, natural gas, or any other petroleum product (petroleum), to set or maintain the price of petroleum, or to otherwise take any action in restraint of trade for petroleum, when such action has a direct, substantial, and reasonably foreseeable effect on the market, supply, price, or distribution of petroleum in the United States."

It also summarizes enforcement parameters as follows:

"Denies a foreign state engaged in such conduct sovereign immunity from the jurisdiction or judgements of U.S. courts in any action brought to enforce this Act. States that no U.S. court shall decline, based on the act of state doctrine, to make a determination on the merits in an action brought under this Act. Authorizes the Attorney General to bring an action in U.S. district court to enforce this Act. Makes an exception to the jurisdictional immunity of a foreign state in an action brought under this Act."[16]

Controversy Surrounding Passage Of NOPEC Under Veto Threat

At the time of passage U. S. motorists were paying $3.21/gallon for gasoline. London-based, Center for Global Energy Studies cited The Organization of the Petroleum Exporting Countries (OPEC) restrictions on output as the driving force in pushing oil prices in 2008 to above $60 a barrel. The study proposed that this OPEC-mitigated per-barrel price increase was the central cause of the consumer gas price increase at the pump.[17]

The many bipartisan supporters of the bill, in Congress and elsewhere, felt disavowed by President Bush's staunch veto threats. Representative Conyers stated: "The Bush administration's threat to veto this bill is just further proof that the administration favors the international oil cartel over the American consumer."[15] Then senators Barack Obama and Hillary Clinton both voted "yes" on NOPEC.[1] Writing about Peak Oil, Raymond J. Learsy (commodities trader and author: "Oil and Finance: The Epic Corruption Continues) put it this way: "In defiance of oil interests Congress voted overwhelmingly for the Bill (70 votes to 23 in the Senate and 345 to 72 in the House).[8] This was an act of refreshing and courageous leadership by our Congress only to be abandoned after President George W. Bush, that great stalwart of oil interests and friend of Saudi Arabia, made it clear that he would veto the bill should it land on his desk."[1]

Supporters of the veto included the U.S. Chamber of Commerce (USCC). In its 2007 letter to House members, the USCC stated opposition to the bill: "Although H.R. 2264 limits itself to restraint of trade in oil, natural gas, or petroleum products, it would create a dangerous precedent. There would be a domino effect: once sovereign immunity has been eliminated for one action of a state or its agents, it can be eliminated for all state actions and the actions of agents of the state."[18] Kevin Book, an energy analyst with Arlington, Va.-based Friedman, Billings, Ramsey & Co. noted that increased regulatory fears, as a result of NOPEC, could prompt a flight of capital. Others, including some officials in the oil-producing countries also expressed concerns that "a nation caught up in the throes of a populist movement" might look to seize plants and even nonenergy assets in the United States that are owned by these foreign governments or their affiliated companies. Some officials in the Bush Administration agreed that OPEC countries' United States assets could be the targeted, if a court were to award damages in a resulting antitrust lawsuit. They further feared that this "would likely spur retaliatory action against American interests in those countries and lead to a reduction in oil available to U.S. refiners."[15]

In her, 2012, best selling book, Winner Take All, (pg134,135), renowned economist, Dambisa Moyo, states that "it is beyond question that if OPEC member nations were private companies, they would have been fined heavily and/or had their executives put in jail in the United States or the United Kingdom." Ms. Moyo cites the Bush veto of NOPEC, "for reasons of public policy" and in order to support market based economies, as an indication to China that it too can also expect a continued "lack of any forceful international law," regarding China's potential future international monopolistic policies for "influencing prices, and violating antitrust rules."

NOPEC's Ongoing Debate and Future Possibilities

With a complete policy reversal of his position as senator, the Obama administration favored Citgo and Venezuela State Oil (PVSA) in an amicus brief, which upheld oil company "Sovereign Immunity" defense, in a 2011 U.S. District Court case.[1] Not limited to oil producers, such a sovereign immunity defense can extend to gas producers and to other commodities. As with all cartels, compliance from cartel members is a central factor in any price fixing effectiveness.[19] More significant are the developments relating to anti-trust/cartel enforcement efforts outside the United States. Brazil and the United Kingdom have strengthened their existing laws and their enforcement capabilities; the European Union and other nations may do likewise.[20] At present, ending in 2014, recourse for multinational price fixing and a future possibilities for more rigorous, international anti-trust violation protection for American and international consumers continues.[21]

References

  1. 1.0 1.1 1.2 1.3 "NOPEC ('No Oil Producing and Exporting Cartels Act'): A Presidential Issue and a Test of Political Integrity" Huffington Post - 09/10/12.
  2. "H.R. 2264 (110th): No Oil Producing and Exporting Cartels Act of 2007 Overview" GovernmentTrack.us, accessed 03/24/14.
  3. "H.R. 2264 (pcs) - No Oil Producing and Exporting Cartels Act of 2007" U.S. Government Printing Office, accessed 03/24/14.
  4. 4.0 4.1 "Bill Summary & Status 110th Congress (2007 - 2008) H.R.6074 Titles" The Library of Congress-Thomas, accessed 03/26/14.
  5. "Placed on Calendar Senate" Library of Congress-Thomas, accessed 03/26/14.
  6. "U.S. Senate Passes Amdmt. to Outlaw OPEC" Daily Kos, 06/21/07.
  7. "Leahy Among Senators Saying ‘NOPEC' To OPEC And Joins In Calling On Bush To Deploy Reserve To Lower Oil Prices" Patrick Leahy United States Senate - Press Releases, 03/09/08.
  8. 8.0 8.1 "Senate OKs plan to sue OPEC for price-fixing" Reuters, 06/19/07.
  9. "Why Bid to Allow Lawsuits Against OPEC May Fly The WSJ Online, 07/06/07.
  10. "Bill Summary & Status 110th Congress (2007 - 2008) H.R.6074 Major Congressional Actions" Library of Congress-Thomas, accessed 03/26/14.
  11. "House Passes NOPEC: Will US Sue OPEC States" IPEZone, 05/20/28.
  12. "Senate Energy Bill: I Want My MPG" Daily Kos, 06/20/07.
  13. "Senators Revive NOPEC Bill As Bush Exit Nears" Law360.com, 01/13/09.
  14. "S.394 - 112 Congress, Actions" Congress.Gov, 02/17/11.
  15. 15.0 15.1 15.2 "Congress takes aim at OPEC; Bush vows veto", The Houston Chronicle, 05/23/07.
  16. "H.R. 2264 (110th): No Oil Producing and Exporting Cartels Act of 2007 Summary" Library of Congress, accessed 03/24/14.
  17. "H.R.2264 - No Oil Producing and Exporting Cartels Act of 2007" Open Congress, accessed 03/23/14.
  18. "Letter Opposing H.R. 2264, the "No Oil Producing and Exporting Cartels Act of 2007" U.S. Chamber of Commerce/R. Bruce Josten, accessed 03/24/14.
  19. "Cartels: Myths and realities&#8230" Alexander's Gas & Oil Connections, 06/04/07.
  20. "Antitrust and competition enforcement is changing fast: our report for multinationals from 3 global conferences Antitrust Update" DLA Piper - Publications, 07/17/14.
  21. "2014 Year-End Criminal Antitrust and Competition Law Update" Gibson Dunn, 01/08/15.