Arguing for Transparency, With a Cheering Section

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As a lawyer, you know you’re on the right side of justice when there are several dozen smiling young people wearing bright clothing and buttons that say “No Secret Deals” sitting behind you in court, and there’s no one sitting behind the other guy.

That was my experience in a Boston courtroom two weeks ago.  As counsel for international development organization Oxfam America, I was arguing for the quick adoption of long-overdue transparency rules in the extractive industries.  The U.S. Securities and Exchange Commission (SEC) – the government agency that oversees U.S. capital markets – is required to enact these regulations under a 2010 financial reform law, but it has dragged its feet every step of the way.

Oxfam (ERI’s client) is a leader in the Publish What You Pay coalition, a global movement to require oil, gas, and mining companies to publish the payments they make to the governments of countries where they operate.  Since 2011, ERI has been advising Oxfam and other coalition members on a legal strategy to secure strong transparency rules from the SEC.  We’ve now gone several rounds – we first sued the SEC in 2012 to get the rules to come out, then intervened on the SEC’s side to defend the rules from attack by the oil industry, and are now again facing off against the SEC for failing to re-enact new rules after the original ones were overturned by a federal judge in July 2013.

On May 6, the SEC’s lawyer told Judge Denise Casper of the U.S. District Court in Boston that the Commission needs more time to complete the rules because it has other tasks to perform and should be free to prioritize them as it sees fit.  Nearly two years have passed since the rules were returned to the SEC for revision, and the SEC has refused to commit to a timeline or even to hazard a guess as to when the rules will be finished.  Oxfam’s argument is fairly simple: Congress told the SEC to get a rule in place within nine months.  There’s no excuse for missing a congressional deadline, and besides, any leeway the SEC may have had ran out long ago.  We’re asking the judge to put the SEC on a court-supervised timeline to enact the new rule.

The transparency rules matter to many of ERI’s partners, like the communities in Myanmar who are waiting to learn how much the government makes from the oil and gas pipelines that have devastated their lives and livelihoods.  And judging by the crowd in the courtroom on that day, there are plenty of allies in the U.S. who stand in solidarity with those communities and are getting impatient with the wait for extractive companies to publish what they pay.

This post was written by Jonathan Kaufman, former staff.

 Photo (from left to right): Rich Rosensweig from Goulston & Storrs, Jonathan Kaufman and Michelle Harrison from ERI, and Howard Crystal from Meyer, Glitzenstein & Crystal.

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