U.S. considers turning an 1890 antitrust law against OPEC to steer oil price

By Ari Natter on 11/18/2021

WASHINGTON (Bloomberg) - Some U.S. lawmakers are seizing on the energy price surge to revive long-standing legislation that would subject the OPEC oil cartel to the same antitrust laws used more than century ago to break up Standard Oil’s monopoly.

The “No Oil Producing and Exporting Cartels Act” -- known as NOPEC -- would allow the U.S. government to sue members of the Organization of Petroleum Exporting Countries for manipulating the energy market, potentially seeking billions of dollars in reparations.

The legislation faces difficult odds amid concerns about diplomatic fallout that has led the State Department to oppose it in the past. But the House Judiciary Committee did approve the latest iteration by a voice vote in April. A Senate version has attracted sponsors from across the political spectrum, from Iowa’s conservative Republican Chuck Grassley to Vermont’s liberal Democrat Patrick Leahy. No floor votes have been scheduled.

“We’ve been talking to a number of members about it,” Leahy said in an interview Wednesday. He said he intended to discuss the legislation in a floor speech. 

While OPEC hasn’t set prices since the 1980s, its members periodically agree to boost or cut production. The legislation could have widespread consequences.

“We call it a nuclear weapon with a huge and uncertain impact,” said Bob McNally, president of consultant Rapidan Energy Group and a former White House official. “The remedies in the NOPEC act range from a slap on your wrist to seize all your assets.”

“I think were the president to call for it it would pass,” McNally said.

President Joe Biden hasn’t expressed an opinion on the legislation but on Wednesday he urged the Federal Trade Commission to probe possible illegal conduct in U.S. gasoline markets. In a letter to FTC Chair Lina Khan, Biden expressed concern about the difference between pump prices and the cost of wholesale fuel, while citing what he said was “mounting evidence of anti-consumer behavior by oil and gas companies.”

The White House didn’t respond to a request for comment on whether Biden supports the measure. Biden, as a senator in 2000, co-signed a letter that called for legal and judicial action against OPEC, calling the cartel’s behavior in violation of U.S. antitrust laws. In 2007, he co-sponsored a version of NOPEC legislation.

Deputy Energy Secretary David Turk appeared to dismiss the idea in an interview with Bloomberg News earlier this month, saying the administration is “looking at the full range” of options to bring down the price of gasoline and other fuels.

The NOPEC legislation has been introduced several times over the past two decades as U.S. gasoline prices have risen -- and it passed both chambers of Congress in 2007 only to die amid a veto threat from President George W. Bush.

Last month, Grassley wrote to Attorney General Merrick Garland invoking surging gasoline prices, saying that NOPEC “has enjoyed overwhelming bipartisan and bicameral support.”

“For sure it’s gaining support,” Grassley said Wednesday in an interview. “There is no doubt OPEC is violating our anti-trust laws.”

‘Heavy Lift’

Grassley added that State Department opposition has made it a “heavy lift in the past.”

Asked about the prospect of bringing the bill to the floor for a vote, House Speaker Nancy Pelosi said she was concentrating on getting Biden’s social spending bill passed. “We are focused on what we are doing right now,” she said.

Under the legislation, the Justice Department would be able to bring lawsuits against oil cartel members for antitrust violations. Even if the Justice Department were never to act on its power to sue, the mere existence of this option might be enough to force the cartel to change its behavior.

Senate Majority Leader Chuck Schumer co-sponsored the original version in 2000, although his office declined to comment on his support this year. A crucial swing vote in the Senate, West Virginia Democrat Joe Manchin, backed the 2011 version, saying on the Senate floor, “We can no longer allow this nation and our hard-working families to be held hostage by high gas prices.”

His office didn’t respond to a query about his views on the current legislation.

In the House, legislation introduced by Republican Representative Steve Chabot of Ohio and backed by Representative Jerrold Nadler, a New York Democrat who chairs the House Judiciary Committee, passed out of committee with little opposition.

American Petroleum Institute, a trade association for the oil industry, and the U.S. Chamber of Commerce have come out strongly against the bill in the past.

“The result might be a flood” of oil, said Kevin Book, managing director of research firm ClearView Energy Partners. “It will crater the price of oil here.”

Talk of reigning in OPEC seems to “re-emerge whenever gasoline prices rise” but it “remains a counterproductive response,” said Jeffrey Kupfer, a former Energy Department official in the Bush administration from 2006 to 2008.

“It would lead to more volatility in the oil market, lower levels of investment, trade disputes,” Kupfer said, “and ultimately higher prices for the American consumer.”

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