December 1998 Vol. 219 No. 12  Washington

Charles D. Matthews,  Contributing Editor

Congress earns less-than-perfect grades this year

On October 20, Senator Robert Byrd, D-West Virginia, a revered and respected Senator, and a most knowledgeable scholar of the Constitution of a United States, severely scolded his colleagues for permitting the rules and regulations of Congress to be ignored and the Constitution defamed during the final framing of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of Fiscal 1999 (OCAA99). This was the "must enact" spending authority that held up adjournment sine die for several days.

What prompted Sen. Byrd’s passionate discourse? Article I of the U. S. Constitution makes it clear that "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." This is the first branch of the federal government established by the Constitution. The powers of the executive branch and the President are set forth in Article II. His responsibilities are to carry out the policies, programs and laws enacted and funded by the Congress. Article III provides for the Supreme Court of the United States and gives it the federal government’s judicial powers.

All three of these branches of government became directly involved early this year in a court challenge of the legality of the line-item veto. Senators Daniel Patrick Moynihan, D-New York; Carl Levin, D-Michigan and Byrd filed an amicus brief before the Supreme Court aimed at bringing down the line-item veto as being a legislative activity of the President. The Court agreed that he is not empowered to legislate. The President is supposed to faithfully execute the law, not write it. So, the statute was struck down.

During the closing debates on OCAA99, Sen. Byrd made his passionate remarks: "Look what we have done now. We, the Congress, invited the executive branch to legislate. We said, ‘We can’t do it, you come on in.’" Byrd painted this word picture, "On one side of the table were the representatives of the President, on the other side of the table were the Speaker and the majority leader of the Senate representing the majority. We in the minority in the Senate and in the House were not at the table." He went on to say, "We have run roughshod over the Constitution of the United States of America. Through this process, we have, in effect, circumvented the supreme law of the land because we have circumvented the Constitution, Section 9 of Article I and Section 1 of Article I."

The distinguished Senator could have gone on to say, also, the consensus of the professional Congress watchers in Washington was that the Republicans were usually caving in like outhouses in a Texas tornado.

Congress gets a few better grades from industry. The oil and gas companies have been working hard for some time to delay the Minerals Management Service (MMS) from issuing its final ruling on valuation of crude oil for royalty purposes. OCAA99 does include an 8-month delay until June 1999, before which a final proposed rulemaking cannot be made unless a negotiated settlement is reached. The proposed rule would have based federal oil royalty payments on spot prices using various government formulas.

The industry actively helped keep the delay in the bill to allow more time for the staffs of congressional supporters, MMS, industry and others to work out a more comprehensive oil royalty valuation system that would be more fair and more workable for domestic producers. "This delay will allow us to develop a bipartisan, and hopefully, interagency process for promulgating a rule that is fair, and certain, and bases royalties on values received at the lease," said IPAA Land & Royalty Committee Chairman Diemer True.

Coalbed methane producers get a break. OCAA99 also includes language to protect existing coalbed methane leases across the nation and offset the recent Southern Ute vs. Amoco court decision, which ruled that methane produced from coal should be considered part of the coal itself. This action made the titles uncertain for coalbed methane leases in which the U.S. reserved the coal under the 1909 and 1915 Coal Lands Act. The uncertainty was having serious effects on future coalbed methane production. This legislation grandfathers coalbed methane leases as of October 21, so the producers holding leases at that time may continue their projects with certainty.

Deep Water Royalty policies. The Department of the Interior’s section of the OCAA99 includes report language encouraging "MMS to maintain its current financial terms for deepwater leases" for the remainder of the Deep Water Royalty Relief Act’s incentive period.

Long-awaited coastal impact assistance legislation introduced. The Reinvestment and Environmental Restoration Act was formally introduced, with bipartisan support in both the House and the Senate. Sen. Mary Landrieu, D-Louisiana, along with nine co-sponsors, introduced the Senate version and received the number S.2566. In the House, H.R. 4717 was introduced by Resources Committee Chairman Don Young, R-Alaska, along with nine co-sponsors.

NOIA will continue its leadership in supporting this legislation. Back in 1973, the NOIA president, one of the first witnesses to testify at an Interior Department OCS lease sale hearing, suggested revenue sharing of offshore revenues with coastal states. The idea was before its time, but the association has continued its support of the concept.

During the 1998 annual meeting, the NOIA Board of Directors adopted a resolution reaffirming support for the concept of coastal impact assistance. Their Government Affairs Committee is forming a working group "to analyze any coastal impact assistance legislative proposals put forward and to develop industry comments on the measures." These actions are in preparation for congressional committee hearings expected early in the 106th Congress.

Merry Christmas to you and your loved ones. May the New Year bring you health, happiness and prosperity.

Charles D. Matthews is president of Charles Matthews & Co., consultants and advocates on government relations, Arlington, Virginia.

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