* Taxpayers stand to miss out on growing coal exports to
* Changing royalty base could net billions more in future
* Former officials, taxpayer watchdog say program flawed
By Patrick Rucker
WASHINGTON, Dec 4 U.S. miners who are booking
big profits on coal sales to Asia are enjoying an accounting
windfall to boot.
By valuing coal at low domestic prices rather than the much
higher price fetched overseas, coal producers can dodge the
larger royalty payout when mining federal land.
The practice stands to pad the bottom line for the mining
sector if exports to Asia surge in coming years as the industry
hopes, a Reuters investigation has found.
Current and former regulators say their supervisory work
has lagged the mining industry as it eyed markets across the
Pacific. They say they will now give the royalty question a
"We are committed to collecting every dollar due," said
Patrick Etchart, spokesman for the Office of Natural Resources
Revenue, which collects federal royalties.
At issue is the black rock pulled from the coal-rich Powder
River Basin in Wyoming and Montana. Miners there say they abide
by the letter of royalty rules that call for the government to
get a 12.5 percent cut on coal sold under federal lease.
The question is: At what point is that coal valued?
Most Powder River Basin coal is sold domestically, where
prices have been depressed by a glut of natural gas and
regulations meant to curb pollution.
But Asian economies rely on coal to sustain growth, so the
ton worth about $13 near the Powder River Basin mines last year
fetched roughly 10 times that in China.
After deducting costs like shipping by sea and rail, that
ton of Powder River Basin coal sold in China last year would
have returned about $30 to the miners, several industry analysts
Luther Lu, director at China-based Fenwei Energy Consulting,
said the figure was closer to half that, with miners up against
other costs that would have cut into their margin.
Whatever the take-home for miners, several royalty experts
said, the taxpayer is due a share of the final sale price
Powder River Basin mining companies disagree and say that
they are right to pay out royalties at the low domestic prices.
"If you look at the regulations, we are not required to do a
net-back," said Karla Kimrey, a spokeswoman for Cloud Peak
Energy, referring to the return on Asian sales. The
taxpayers' bite would be based on that number.
The rules that govern Powder River Basin sales to Asia
deserve a more rigorous review, and short royalty payments will
not be tolerated, Etchart said.
The royalties question will remain an important one as coal
exports to Asian look set to expand and the United States faces
a fiscal crisis.
"How do you justify paying royalties at anything less than
the true value, particularly in these times of tight budgets?"
said Autumn Hanna of the nonpartisan Taxpayers for Common Sense.
$100 MILLION SHORT?
Mining companies declined to explain how they book Asian
coal sales, and their securities filings give only a partial
picture of how miners operate in volatile energy markets.
Industry and publicly available data, though, indicates that
taxpayers stand to lose out.
Paying royalties calculated on the net-back formula for
exports to Asia from Wyoming and Montana rather than on the
benchmark domestic price would have yielded around $40 million
in additional revenue for the government last year alone,
according to data from Goldman Sachs and other analysts, and
figures from the U.S. Energy Information Administration.
Extended to the last few years of increased Asian demand,
that total could exceed $100 million in forgone royalties. The
sum could balloon into billions of dollars if mining giants are
allowed to ship 150 million tons of coal a year or more through
the Pacific Northwest, as the industry wants. [ID: nL2E8JU4LQ]
Of course, if the companies are more profitable because of
lower royalty payments, they may well be paying more in
corporate taxes, though some experts dispute the point.
"A certain $1 collected on royalties is worth more than the
unsure tax take," said Tom Sanzillo, a former deputy comptroller
for New York state who has studied the economics of coal exports
with the Institute for Energy Economics and Financial Analysis.
For now, the debate over exports from the Powder River Basin
is of limited scope: Less than 4 percent of the roughly 476
million tons of coal produced in Wyoming and Montana was
exported last year, according to the EIA. Three-quarters of U.S.
coal exports are bound for Europe or other non-Asian ports, much
of that from private, not federal lands, in the Appalachian
But Asian economies such as India and China cannot grow
without abundant electricity, and that demand has opened a
window for a U.S. coal sector long focused on delivering
'EXPORTS WERE NOT ON THE RADAR'
Several large coal companies mine the Powder River Basin -
a high, grassy plain in eastern Montana and Wyoming. Cloud Peak
exclusively works that terrain, which is chiefly on federal
land. The company was in a position to save tens of millions of
dollars in recent years by their reading of royalty rules.
Less than 5 percent of Cloud Peak coal was shipped to Asia
last year, but that accounted for nearly 19 percent of total
revenue, or about $290 million. A year earlier, Asian sales were
only 3.4 percent of the total volume but 12 percent of revenue.
Cloud Peak, Peabody Energy and Arch Coal all
declined to explain how they book their Asia business, but a
large share of Powder River Basin sales passes through traders.
Sales to brokers and traders are allowed, but royalty rules
assume that those buyers' economic interest is opposite to
miners'. Sales to in-house or affiliated traders are due more
scrutiny under the law.
"We are familiar with the rules around both arms-length and
non-arms-length transaction and fully comply with both," said
Vic Svec, a Peabody Energy spokesman, referring to the
principle that is supposed to guide such sales.
Arch Coal declined to comment on its trading
business, and Cloud Peak said it faces frequent audits from
state and federal officials to make sure it follows the rules.
"In my neighborhood, I don't stop at every block. I could.
But that's not where the stop signs are," said Cloud Peak's
Kimrey. "You can say you don't like the regulations, but we play
by the rules."
Former and current officials said the government has been
slow to understand the power of foreign markets or protect the
taxpayer's stake in those lucrative sales.
"Exports were simply not on the radar," said Bob Abbey, who
in May stepped down as head of the Bureau of Land Management,
the agency that grants federal coal leases. [ID: nL1E8L5GU0]
A PRECEDENT IN GAS
While the industry says it is acting aboveboard, outside
lawyers point to a natural gas precedent that they say further
indicates the issue is far from settled.
In the late 1970s, Marathon Oil Corp used a similar
accounting system to settle royalties on natural gas that was
produced in Alaska but sold to Japan.
A federal court eventually told Marathon to pay out
royalties based on the overseas value. Officials leveled a $10
million fine against Marathon.
Peter Appel, a former Justice Department attorney, said the
case showed that officials expect taxpayers to get a taste of
the true gains on exported fuel.
"This ruling should give officials confidence to give a hard
look at coal sales," said Appel, who prosecuted cases for the
DOJ's Environment and Natural Resources Division and teaches at
the University of Georgia School of Law.
And lax royalties oversight is not simply a matter for
federal officials since third parties can sue the government for
failing to collect, said Erika Kelton of Phillips & Cohen LLP
who represents whistleblowers in federal fraud cases.
"Energy companies have been called to task for missing these
payments," she said, noting that major oil and gas companies
have paid out hundreds of millions of dollars to settle false
claim charges on royalty reports.
Whistleblower statutes are tools environmental advocates can
use to shine a light on issues like coal royalties, said Theo
Spencer who works on coal and climate change issues at the
Natural Resources Defense Council.
"We're considering several promising legal angles to address
what is clearly a flawed process," he said on Tuesday.