May 23, 2008 3:09PM
Why Suing OPEC Won’t Work
By Elizabeth MacDonald
The US House of Representatives recently passed legislation that would let the government sue members of OPEC (the Organization of the Petroleum Exporting Countries) and other foreign states for colluding to restrict oil production in order to manipulate the price of oil.
A compelling idea for anyone experiencing sticker shock at the pump, especially given the widespread fear that we may see $5 gas by the fall.
Though suing OPEC is a pipe dream, and it may not help to lower gas and oil prices, a better way is to stop debasing the dollar (as oil is priced in dollars) and drastically expand its energy exploration and discovery on all fronts, including the outer continental shelf as well as renewable and alternative energy production.
Here’s the thinking behind suing OPEC.
Some argue that we should sic the US tort bar sharks on this oil gang, that’ll teach them to stop holding production in a blind crab-like fist. And maybe distracting the US tort bar will heave a sigh of relief through the corridors of beleaguered US corporations slapped silly for years by buckshot shareholder law suits.
The US tort bar could very well show Iran and Venezuela a thing or too, even Saudi Arabia, which largely refused President George W. Bush’s recent pleas for increased production.
Saudi Arabia’s King Abdullah has said he had ordered new oil discoveries left untapped to preserve oil wealth in the world’s top exporter for future generations, so there, all you US drivers of gas guzzling Hummers and SUVs (even though sales of gas-hogging light trucks and SUVs at places like Ford have plunged).
“I keep no secret from you that when there were some new finds, I told them, ‘no, leave it in the ground, with grace from God, our children need it,’” the king reportedly said.
An antitrust action against OPEC is not some addlepated, knee-jerk, angry populist idea, in fact, there have been a number of attempts over the years to sue OPEC under American antitrust law. Just last year Congress voted to sue OPEC for engaging in a “price fixing conspiracy” that has “unfairly driven up the price” of crude oil and in turn gasoline. A suit would have yanked sovereign immunity that protects the governments in OPEC from prosecution or asset seizures.
And antitrust cops, here and abroad, have attacked all sorts of international cartels with heavy fines, be they in telecommunications, construction, banking, even in vitamins, or graphite electrodes, even elevator makers, glass makers and lysine, an animal feed additive.
At any given time there are some 50 grand juries investigating international cartels, with targets located on six continents and in nearly 25 countries, the American Bar Association says.
Prosecutors report that they have uncovered cartel meetings in more than 100 cities and 35 countries, including most of the Far East and in almost every country in Western Europe.
There’s an argument to be made that an antitrust lawsuit against OPEC for once might compel the European antitrust police to grow a spine and go after the big guns, not just OPEC but Russia’s price-fixing Gazprom too, not the small bore stuff like torturing Microsoft or General Electric.
But set aside for now that any such law won’t pass a Bush veto.
Set aside too for now the fact that, if OPEC were found guilty of antitrust abuses in an American court, it would be extraordinarily difficulty trying to ascertain how the cartel would actually be punished or broken up.
Sovereign immunity, the act of state doctrine and other special international defenses typically preclude suits against OPEC and its member nations, analysts note.
Also there’s a heated debate over whether or not the Middle East is really tapped out. Some Middle East officials say there’s plenty of suppy; others privately say not so at all, as more capital investment is needed to pump all that there is out of aging oil fields and to rehabilitate geriatric refineries, notably in Iran.
Either way, supply and demand statistics out of the Middle East are poor, as secretive bureaucrats hoard data. And transparent data is non-existent notably in non OPEC countries like China and Russia.
Moreover, the higher oil prices soar, the less apt OPEC will pump, as oil in the ground is a more valuable asset than having its sovereign wealth funds investing in Citigroup or Merrill Lynch.
Eight members of OPEC are also members of the World Trade Organization, and a threatened new law allowing an antitrust suit could raise hackles at this worldwide body to get it to fight any such law. “The Venezuela-Iran-Ecuador axis might even cut production to spite the US, inflicting some pain on spot market prices,” says Tom Post, a top editor at Forbes Magazine.
Perhaps the US could ask OPEC countries that are not WTO members, such Libya, Algeria, Iran and Iraq whether, as a condition of WTO membership, they’d stop orchestrating an international price-fixing conspiracy. But who is to say they will listen?
Congressman Michael Conaway (R-Tex.) agrees that suing OPEC is “foolhardy,” he says, and “could have drastic consequences for the U.S. if the bill ever became law.”
Why? Because foreign governments would quickly take “retaliatory action against American interests” such as “discouraging investment in the U.S. economy and [they] may even limit the availability of gasoline to the United States,” Conaway says, adding that “if OPEC shifts away from pricing oil in dollars as a retaliatory action, the dollar’s value on the world market would plummet and inflation would skyrocket.”
Shifting away from pricing oil in dollars is already happening in Iran, OPEC’s second-largest producer, which has stopped conducting oil transactions in U.S. dollars, due to tension over Tehran’s nuclear program, the war in Iraq and a weakening US currency.
Since oil is priced in dollars on the world market, the dollar’s erosion in value has caused crude prices to soar and in turn has eroded the value of the Middle East’s dollar reserves.
The blogosphere in Saudi Arabia is hot with debate over inflation in Saudi Arabia and talk of pushing the royals to de-peg the riyahl from the US dollar.”The dollar has totally been removed from Iran’s oil transactions,” Iran’s oil ministry official Hojjatollah Ghanimifard has already said. “We have agreed with all of our crude oil customers to do our transactions in non-dollar currencies.”Iranian president Mahmoud Ahmadinejad called the depreciating dollar a “worthless piece of paper” at a summit last year in Saudi Arabia attended by state leaders from OPEC countries.
Iran has been pressuring other OPEC countries to price oil in a basket of currencies, but it has not succeeded as a number of members, including Saudi Arabia, are firm U.S. allies.
OPEC officials argue prices are beyond their control, with its secretary general blaming oil’s rise on investment funds moving to oil from other markets and the weakness of the dollar.”OPEC can’t do anything about that,” OPEC’s secretary general said. “We can’t stop people in the United States bringing their money to the oil market.”
It’s already been noted that the $600 fiscal stimulus checks already in the mail would have bought 190 gallons of gasoline instead of the 164 gallons now due to the weakening US dollar, and that if the dollar had maintained the same strength as the Euro, oil would be priced anywhere between $70 to $80 a barrel, not the $133 it is now.
Even so, it is an absurdity for OPEC to use as its official line, as it has done in prior antitrust lawsuits, that it is “a simple commercial entity.”
More irritating is the stated market manipulation that OPEC blatantly says on its own website, in its FAQs section, by way of answering the question, “why does OPEC set oil production quotas?”
The OPEC website reads that its statutes require “OPEC to pursue stability and harmony in the petroleum market for the benefit of both oil producers and consumers…If demand grows, or some oil producers are producing less oil, OPEC can increase its oil production in order to prevent a sudden rise in prices. OPEC might also reduce its oil production in response to market conditions.”
For the sake of argument, if a US law passes allowing an antitrust suit against OPEC, and the defendants are the members of the OPEC cartel, wouldn’t you like to see who takes the witness stand? And wouldn’t you like to see any court documents produced in discovery?
Comment by Dan Cox
May 23rd, 2008 at 7:44 pm
Elizabeth,
I agree with your article in the reasoning behind why it is futile to even think of suing OPEC. A cartel is too similar to the mob, and pretty tough to take down, and when it doesn’t have to abide by U.S. laws and regulations, why should they have to cooperate?
I am a total advocate of finding new and innovative ways to produce renewable and alternative energy. However, this does not happen over night and until it the source found can be proven reliable, it can’t happen at the pace the consumer would like.
Some of the things that could happen is to take the gas taxes we are gouged at the pump with off of the consumer, drill in Alaska, and tell OPEC to go drain all their oil fields, and become a self-reliant nation again, not an isolationist nation, but self reliant, similar to the way the U.S. operated during WWII. This entire kick on globalization works to an extent, but once the pendulum has swung too far the other way; it begins to rear its ugly head in the negative direction toward the U.S. Drilling out own oil, while investing more R&D into another source of renewable and alternative energy, but the technology disrupter again, will not happen over night and be in everyone’s garage or driveway tomorrow. So, I think the issue that needs to be expressed throughout the slanted left wing media, who promote “Going Green,” “Global Warming,” and all these other activist agendas, is that of gradually moving to the next source of renewable energy, and not waiting on the world to catch up with the U.S. We have so many resources and talented people in this country, and sometimes it seems as though we hinder ourselves. The gradual shift is what needs to be communicated to the consumer and the country. This talk of alternative renewable energy resources is great, but only once it has been identified as the replacement for the current operating systems in place. You wouldn’t just go from drinking water to all of a sudden recharging and getting your nutrients and self sustaining bodily fluids to a pill or some sort of herbal remedy overnight, would you?
Comment by Ivo Cerckel
May 23rd, 2008 at 7:46 pm
The House of Representatives does not seem to be aware that price fixing in the Sherman Antitrust Act is a per se offense. No defense resting on claims that the prices fixed are reasonable will succeed.
The opposite of the per se-approach is the rule of reason which says that only combinations and contracts unreasonably restraining trade are subject to actions under the antitrust laws.
The bill authorizing a lawsuit against OPEC for price-fixing would in part amend the Sherman Antitrust Act of 1890. It provides in part that the cartel would be prohibited when such action, combination, or collective action has a direct, substantial, and REASONABLY FORESEEABLE EFFECT [emphasis mine] […] in the United States.
This is the rule of reason for oil-price-fixing.
The rule of reason, replacing the “per se”-approach, in oil-price-fixing cases, is the first step towards the complete repeal of the immoral antitrust laws.
As Alan Greenspan said more than 45 years ago:
The world of antitrust is reminiscent of Alice’s Wonderland: everything seemingly is, yet apparently isn’t, simultaneously. It is a world in which competition is lauded as the basic axiom and guiding principle, yet “too much” competition is condemned as “cutthroat.” It is a world in which actions designed to limit competition are branded as criminal when taken by businessmen, yet praised as “enlightened” when initiated by the government. It is a world in which the law is so vague that businessmen have no way of knowing whether specific actions will be declared illegal until they hear the judge’s verdict — after the fact.
Comment by James
May 24th, 2008 at 1:29 am
How many people complaining about the high cost of gas have taken steps to reduce their own consumption? I know from actual mesurement that every car I own gets significantly lower gas mileage as I increase speed above 55 miles per gallon. My Toyota drops from 40-42 miles per gallon @ 55 miles per hour to only about 32-34 miles per gallon at 70 miles per hour. Similarly, my Ford Taurus gets about 37 miles per gallon on the highway, (I-40 in Arkansas) while driving at 55 but drops to 28-30 miles per gallon at 70. If you are not willing to slow down and save then quit complaining about the price. We only have two solutions to the problem in the short term and that is by conserving, or using less, and by boosting domestic production. What most people seem to be unaware of is that we have, in this country, enough untapped reserves to become almost energy independent but Congress has refused to allow production increases. Anwar, Rocky Mountain Shale, and coastal areas, (many of which are already being developed by foregin countries)together hold more reserves than have been discovered in Saudi Arabia but yet Congress refuses to allow the developement of these areas.
Comment by ron
May 24th, 2008 at 6:22 pm
more stupidity from congress. gas tax holidays, ending the filling of the strategic reserve, suing opec. all stupid ideas that do nothing to actually address the problem - we use too much oil and need to do the hardwork to change how we do things.
this country is doomed.
Comment by Mark Thompson
May 25th, 2008 at 12:51 am
Again the US leads the charge with absudidty. The writting has been on the walls for years ( see T. Boone Pickens)…..basic economics: limit supply drive price up. Why would any country increase supply to reduce price…..with Bernake deflating the dollar and the horses having already bolted and the barn door jamed open….the US’s arrogance prevents the basic American from understanding we are now all in trouble. The sky is falling,,,there I said it.
I have to go now the chairs have to be rearranged.
Comment by Rob
May 25th, 2008 at 4:15 pm
Hey, so long as Congress is going to sue OPEC for acting in their own best interest, perhaps they should consider suing the Sun. After all, global warming is apparently happening on all planets as far out as Jupiter (see the NASA photos of the three giant red spots taken recently). Obviously it’s a conspiracy. This makes more sense than Congress, or the Senate lately. As a worker in the oil industry it seems amazing that so many people out there get it right ,as seen in many of these posts, yet our representatives and Senators are mostly blinkered idiots. I’m sorry, perhaps I should have said lawyers, but isn’t that redundant. Democrats are lawyers and lawyers redistribute. Ever heard of a lawyer that built anything, or created wealth, or generated jobs that created wealth? Me either. I have almost no hope left for common sense to come from our government. It seem likely that the next generation will be left to a much less affluent future, needlessly. I wish I could say undeservedly, but someone out there is electing these dunderheads and they get the government they deserve. If you haven’t noticed our energy situation started to deteriorate in late 2006, right after the Democrats took control of Congress. Next year is looking very dark for us all. One term of unlimited idiocy (Democrats controling 2+ branches of the Federal Gov) and we may spend decades digging ourselves out of the coming damage. Ask your parents or grandparents if they enjoyed the 1930’s or the 1970’s because that seems to be where we’re headed. Better start trying to find financial shelter, because the effect of this coming “change” is to distribute misery to everyone.
Comment by Clyde
May 25th, 2008 at 5:07 pm
Quote…
foreign governments would quickly take “retaliatory action against American interests” such as “discouraging investment in the U.S. economy and [they] may even limit the availability of gasoline to the United States ….Unquote
What a crock! So we have to put up with corruption and dishonesty with shaking boots just in case…..yeah right. That’s what made us great….a fair and open economy. They will always line up to invest in that. That’s one congressman who should be kicked out on his backside.
Comment by Mike
May 25th, 2008 at 10:44 pm
Yawn. House putting on a song and dance. This is the best show they can do, and they look more pathetic than ever.
Do they know that we know they are pathetic?
Comment by Will
May 26th, 2008 at 1:21 pm
I feel all these entries have merit. Overall it is collaboration of both producer and consumer to reduce demand and increase supply. The only two areas I seem to center on in conversations with this topic are:
First, when are the auto manufactures going to attempt to “catch up”? Remember when the energy crisis happened a couple decades ago. The US had to compete with Japanese auto makers having cars getting higher MPG. In the early 1980’s autos were at a level of fuel efficiency that is standard today. With increased technology you would think they can raise the bar.
Second, Increased oil production would lower the barrel price but remember that oil companies can and do control the price at the refinery level. The only think that would drive prices down would be if there was a law passed that oil refineries had to upgrade to increase production or, if a few more refineries were built and increased output.
Comment by StephenL
May 27th, 2008 at 3:37 am
The democratic party promised us they would be fiscally responsible. No work on a balanced budget. No work to fix medicare. No work to fix medicade. No end to ear marks. And lots of plans to increase taxes. Not to mention INCREASED spending here and now.
After 1.5 years in office it’s time to face it…..the democrats are failing us. The republicans have failed us in the past. Who do we turn to?
And we have three Senators from our failed congress running for the White House. That’s not CHANGE that’s status quo.
Comment by Stephen Mallinger
May 27th, 2008 at 4:13 pm
This is an interesting article but of course suing will not work. They are other countries with their own agenda and they do not like the US. They tolerate us. What the US should do is to look to alternatives. I work on Capitol Hill but I do not work for any one on Capitol Hill. I have been there for the last 10 years. What most people do not understand is that decisions on the Hill are made based upon what constituents want in their own states. The Congress does not exist for the “collective good” except possibly for the military. Big corporations have more influence than individuals. Collectively, however, a large group of individuals have more influence than many corporations. Getting to my point, the US needs to wean itself from foreign oil, especially from countries where it is from coming today. Also, the organizations or people investing in the energy commodities futures should have competition. The US should heavily push plug-in hybrids. We have the technology. Most electric utilities have the capacity especially at night after peck usage. At $0.09 cents per kilowatt hour consumers can get an equivalent of a gallon of gasoline for $1.00. The energy is locally produced and even if produced by a coal power plant, the carbon dioxide amounts are still half of what an internal combustion engine would produce for the same amount of energy. All these studies are available by doing a search on Google. If consumers decided to switch to purchasing mostly plug-in hybrids, Congress would follow suit.
Comment by Tony Deemer
May 28th, 2008 at 7:00 am
While the U.S. government is pondering the propect of suing OPEC nations for manipulating the markets, there seems to be a rumor circulating that the Justice Dept. maybe investigating the commodity markets for artificially, if not illegally, driving the oil prices to again record levels. Its anyones guess how much teeth this rumor has but its out there.
Comment by Michael Fermanich
Jun 2nd, 2008 at 9:02 pm
Well thank you Liz McDonald for grandstanding the truth about the “New World Order” via International Monopolies. As a graduate of Western Michigan University Majoring in Petroleum Distribution I find your communications interesting. Yes and do you understand the competition that has allowed the Oil Industry to offer cheaper priced products. I suggest you research the old anti-trust laws in the United States. “Fixed Pricing” is a NO NO via the Oil Industry, right? Thus why would it not be a NO NO on a International basis and goods sold around the world. I was a student during the Arab Embargo at WMU and took classes with various Saudis and Gulf Region students. In fact we discussed numerous times about the exploration and production of crude oil in the gulf regions via costs! Nothing has changed via getting sweet crude out of the ground and it is not any harder to find the reserves under ground via same costs. Would you like to know what my Arab friends had to say about Americans? Well they said “Americans are arrogantly cheap at the expense of others”. Yes I kept the quote for future resource in my law books. Ever hear of the word “collaboration”? In fact it is not legal for Oil Executives of various Companies to meet at the same place via anti-trust laws of the United States. The people are not getting the best price via “fixed pricing” on a International scale thus it should be against the law. Backbone would be in order with lots of money to be made by many expert lawyers. Liz, it is interesting that Fox panders for the International Elite at expense of United States citizens. How many of your viewers own stock of International Oil Companies and still complain about gasoline prices? In fact how many of your viewers are customers of other products controlled by other monopolies(International)? Why not just have your network post investment shows for the few elite that can afford high prices of many products?