August 18, 2005
It's a move that anyone outraged by high gasoline prices would
applaud -- a non-profit labor group suing the Organization for
Petroleum Exporting Countries (OPEC).
That was in 1978, though -- and the lawsuit failed. A U.S. appeals court threw it out three years later, noting that OPEC's member states enjoy immunity from prosecution under the Sherman Antitrust Act. Congress recently had a perfect opportunity to change that -- and wasted it.
In June, the Senate approved an amendment that would have let the federal government sue OPEC. It was a welcome first step toward re-establishing the free market in this strategically important sector. Indeed, this long-overdue move could have pointed the way to a second step: allowing private antitrust suits against OPEC. But the amendment failed to survive House-Senate negotiations over the energy bill.
American consumers are the real losers. Since its inception in 1960, OPEC, which is dominated by Persian Gulf producers, has successfully restricted its members' petroleum production, artificially distorting the world's oil supply to line their pockets. This supply-fixing strategy has repeatedly wreaked havoc on the U.S. and global economies:
The cartel's operations ensure that its members' oil and gas
economies remain insulated from foreign investment flows. OPEC
members bar foreign investors from owning oil fields and pipelines,
thus perpetuating the cartel's de facto monopoly over the
Indeed, the only serious challenge to the group came in the 1978 lawsuit, when the International Association of Machinists and Aerospace Workers (IAM) sued OPEC. But the decision to reject the case was wrong. Government-owned companies that engage in purely business activities don't warrant sovereign immunity protection.
The wealth that's extracted from Western consumers via OPEC's high oil prices does more than just enrich petroleum producers. It's used to fund terrorism through some oil sheikhs' individual contributions and government-controlled, Persian Gulf-based "non-profit" foundations. It also permits hundreds of millions of dollars to be spent on radical Islamist education in extremist madrassahs (Islamic religious academies).
Rising concerns over energy prices at last prompted Congress earlier this year to examine the legal hurdles that prevent the United States from defending its economic and national security interests. A group of senators led by Sen. Mike DeWine, R-Ohio, introduced the "No Oil Producing and Exporting Cartels Act," known as NOPEC, to amend the Sherman Act to make oil-producing and exporting cartels subject to lawsuits in U.S. courts.
On June 21, DeWine, with the support of Sen. Herb Kohl, D-Wisc., was able to add a NOPEC-like amendment to the Energy Policy Act of 2005. This amendment would have modified the Sherman Act to allow the U.S. Department of Justice or the Federal Trade Commission to bring suits against OPEC for its monopolistic practices. It also would have sent a long-overdue signal to OPEC oil barons that they must stop limiting production and investment access.
Of course, more reform would be needed. If the cartel is to be reined in, individuals and companies it has damaged must have the right to sue. As the IAM v. OPEC decision made clear, Congress should amend the Sherman Act to allow private suits against OPEC.
But NOPEC would have been a good start. Without the kind of pressure it would exert, there's no reason for the cartel to cease its monopolistic practices. And there's no reason for Americans to expect anything other than more of the same from OPEC -- insufficient production and higher energy bills.
Ariel Cohen, Ph.D., is a senior research fellow, and William Schirano is a researcher, in the Davis Institute for International Studies at The Heritage Foundation (heritage.org).
Distributed nationally on the Knight-Ridder Tribune wire