A contract is still a contract, even when the federal governmentis the one that breaks it, said the U.S. Supreme Court yesterday,which ruled that two energy giants are entitled to recover $158million in an offshore oil and gas deal that never happened. Thehigh court ruled 8-1 in a breach of contract lawsuit brought byMobil Corp. and Marathon Oil Corp. that followed their expensiveattempt to explore and develop leases off of North Carolina’s OuterBanks.

While the ruling does not allow the companies to continue withthe project, the justices did say that the feds have to return themoney.

In 1981, both companies paid more than $78 million each forOuter Continental Shelf (OCS) oil and gas leases for submergedproperty located about 40 miles off the coast of Cape Hatteras, NC.However, in 1990, Congress enacted the Outer Banks Protection Act,which put a moratorium on any drilling in the OCS. The Act requiresthe Department of the Interior to conduct periodic environmentalanalysis before allowing drilling in the OCS, and both the Bush andClinton administrations have maintained the ban over the past 10years.

In the lawsuit, Marathon Oil said that the Act had “expresslyprohibited the United States from fulfilling its contractualobligations” when it imposed the moratorium on exploration anddevelopment in the OCS, and specifically, the Outer Banks of NorthCarolina.

When the case first went to court, a federal court had ruled forMobil and Marathon, and said then that the companies were entitledto get their money back. However, the Justice Department appealed,and in 1999, a federal appeals court threw out the judgment andsaid the lease agreements had not been breached.

In its ruling, the appellate court said the companies had not beenable to obtain all of the necessary state government approvals forexploration in the nine years before the law had been adopted, andtherefore, they were in no position to drill on the leases or ask fortheir money back. The companies appealed again, and the Supreme Courtagreed to listen to their argument last November (see Daily GPI, Nov. 17, 1999).

In its ruling yesterday, Justice Stephen G. Breyer, writing forthe court, said “The oil companies gave the United States $158million in return for a contractual promise to follow the terms ofpre-existing statutes and regulations.The new statute prevented thegovernment from keeping that promise.And therefore, the governmentmust give the companies their money back.”

The lone dissenter, Justice John Paul Stevens, said he did notagree that the appropriate remedy would be for the companies torecover their initial investment. “I would hold that (thecompanies) are entitled at best to damages from the delay caused bythe government’s failure to approve the plan within the requisitetime,” he wrote.

The court’s ruling may help other government contractors,especially mining, timber and telecommunications companies that payfees up front for licenses or leases. According to the SupremeCourt ruling, the contractors only have to prove that the federalgovernment reneged on its promises, and they do not have to provethey have jumped through all of the regulatory hurdles.

Though Mobil (now ExxonMobil) and Marathon will get their moneyback, the moratorium on exploration and drilling of the OCS stillcarries support, both within the Clinton administration and inCongress. The Act covers nearly all of the coasts of the NorthAtlantic, California, Washington, Oregon, southwest Florida, NewEngland, southern Alaska and the Mid-Atlantic states. PresidentClinton extended it for 10 years in 1998 (see Daily GPI, June 15, 1998).

However, in May, Sen. Frank Murkowski (R-AK), chair of the SenateEnergy and Natural Resources Committee, introduced a comprehensiveenergy bill that uses tax incentives to spur the production of crudeoil, natural gas and alternative energy in the Lower 48 states andAlaska (see Daily GPI, May 17). Amongother things, it would provide royalty relief for producers in remoteOCS areas, and encourages development in new areas. Language to endthe moratorium, though, is not in the bill.

“The bill encourages development in frontier areas like theOuter Continental Shelf, but leaves lifting the ban to individualstates,” said Tina Kriesher, a staff member with Murkowski’scommittee. “If a state wanted to push to lift the moratorium, thatwould be left to that state’s discretion.”

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