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Transparency rule on government payments

By Oxfam

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Oxfam is championing landmark rules requiring oil, gas, and mining companies registered on US stock exchanges to disclose what they pay to the US and foreign governments, so citizens in these countries can hold their governments to account to ensure that money is spent fairly, wisely, legally, and in ways that help poor people. Investors can also use this information to assess the risks companies face in developing these projects.

The Cardin-Lugar provision

In August 2012, the Securities and Exchange Commission (SEC) voted on guidelines to require oil, gas, and mining companies listed on US stock exchanges to disclose taxes, royalties, and fees paid to foreign governments. These landmark rules implemented Section 1504, a provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act that garnered bipartisan support in Congress before passage in 2010.

Section 1504, also known as the Cardin-Lugar provision, is critical to establishing transparency and fighting waste and corruption. The SEC rules complied with the letter and intent of the law by requiring companies to make annual reports to the SEC, publicly disclosing all payments made to either the US or a foreign government for the extraction of oil, gas, and minerals. The rules would have applied to more than 1,000 companies, and they covered any payment over $100,000. And the rules should have taken effect in 2014.

But the oil industry filed a lawsuit to block the rules, a lawsuit backed by companies such as Exxon Mobil, Chevron, Royal Dutch Shell, and BP. In July 2013, the US District Court in Washington, DC, vacated the final rule and sent it back to the SEC for revision. The SEC has not yet reissued new rules to implement this vital transparency law.

Campaigning for transparency

Oxfam has fought, every step of the way, to get the Cardin-Lugar provision passed and implemented. Oxfam’s extractive industries team had already worked for years to get extractive industries transparency legislation passed in the US, and we lobbied hard for the inclusion of Section 1504 in the Dodd-Frank financial reform law. After the SEC missed a Congressionally required deadline to issue the rule by more than a year, Oxfam America sued the agency in May 2012, compelling the agency to finally issue the rules in August 2012.

Then, Oxfam America’s lawyers went to court again, intervening on behalf of the SEC when the American Petroleum Institute (API) and the US Chamber of Commerce sued to try to block implementation of the rule.

In April 2013 the US Court of Appeals for the District of Columbia Circuit dismissed the suit on jurisdictional grounds—an argument only Oxfam America, an intervener in the case, made to the court.

In addition to taking legal action, Oxfam, in coordination with the Publish What You Pay (PWYP) coalition, ramped up public campaigning, urging the API to drop its lawsuit against the SEC. Oxfam’s campaigning was aimed at companies that were party to the lawsuit. We decided to take advantage of the annual Extractive Industries Transparency Initiative (EITI) global conference that was held in May 2013.

We reached out to the media and went on the record calling on Exxon, Shell, BP, and Chevron to withdraw their support of the lawsuit.

We produced a video titled What Exactly Is Big Oil Hiding? and released it the week of the conference, targeting Shell, BP, Exxon Mobil, and Chevron, and prompting viewers to sign onto an online action.

We also organized a stunt outside the conference to highlight the double standard of participating in the transparency initiative while taking legal action to thwart transparency. A large crowd of allies gathered and displayed a banner with the logos of the companies and the API.

But then, in July 2013, the District Court issued its decision vacating the rule.

Oxfam is continuing to press the SEC to rewrite the rule, make all reports public, and bar any exemptions for disclosure. We have worked with allies, including senior US senators and key investors with more than $5 trillion in assets, to make the case that the SEC should act promptly and decisively to carry out the intent of the transparency law.

The tidal wave of transparency started in the US has now led to similar laws in Europe and an effort, backed by the Canadian mining industry, to implement mandatory disclosure requirements in Canada.

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