Torts
Let’s begin by refreshing our memory as to what’s involved in Tort law.
A tort is an act or omission that causes legally cognizable harm to persons or property. Tort law, in turn, is the body of rules concerned with remedying harms caused by a person's wrongful or injurious actions.
If someone were to sue an officer or director of a producer firm for willful misconduct, a tort, then to succeed would demand the following:
To win a tort case, three elements must be established:
- 1. The defendant had a legal duty to act in a certain way.
- 2. The defendant breached this duty by failing to act appropriately.
- 3. The plaintiff suffered injury or loss as a direct result of the defendant's breach.
It is People, Ideas & Objects' contention that producer officers and directors did breach their legal duty of care to act in their shareholders' interests. Since 2015, shareholders have been unable to influence officers and directors to act appropriately, leading to material losses during the structural breakdown of natural gas prices. As of December 2023, this has resulted in $4.1 trillion in revenue and/or gross profit losses that would have otherwise been realized. Alternatives were proposed in the marketplace to mitigate these specific issues; however, producers chose not to address them.
People, Ideas & Objects also assert that producer officers and directors may have misrepresented the facts of their situation by promoting their financial statements as representative of their performance. Their arguments over the past decades about “building balance sheets” and “putting cash in the ground” are not performance-related and are antithetical to the going concern concept. Corporate strategies of “muddle through” have been broadly adopted, eliminating the innovative and competitive structure of the industry. Sitting on one's hands and doing nothing is considered the natural complement to spending being profitable. People, Ideas & Objects began discussing these and other issues as far back as our March 19, 2006 post entitled “Petro Canada Earnings.” That discussion stands up today and represents their focus and drive then and now.
People, Ideas & Objects Argument
Throughout this period, from that early 2006 post to today, one theme has driven our work: chronic and systemic overproduction of oil and gas in North America on an unparalleled scale. Overstated assets lead to an equal amount of overstated profitability. Let's call that the “motive.” Overstated profitability leads to investors rushing in to capture those earnings. Let’s call that the “means.” This overinvestment in productive capacity leads to overproduction and further erosion of the economic “price maker” characteristics of oil and gas.
The “opportunity” is detailed coherently in the March 19, 2006 blog post entitled “Petro Canada Earnings.” Their officers and directors made out handsomely in the 2005 year, even though their profits were down a billion dollars from the prior year. Such is the way it goes. This is only to document the annual lottery and benefit that has come to be expected by officers and directors. At the same time, we have consistently raised the issue of overhead and noted that 85% of it is capitalized to property, plant, and equipment. Spending is profitable, first of all. Second, capitalization hides the details. We have noted the nature of these overhead expenses and how they are beyond reasonable when it comes to the officers' and directors' burden.
The consequences of their overhead policies and the difficulties they cause include their working capital. Cash is consumed in the capitalization process, leaving producers seeking new money to cover overhead each month. Yet no action was ever taken, as covering their “overhead” costs appears far more important than the cash resources to the firm. This “cash” issue is detailed as early as our “Is It Naivety” March 28, 2019 blog post. Yet “muddle through” was their approach in dealing with working capital drainage?
“We’ll Be Profitable at $XYZ”
Unconcerned with much of anything that has to do with reality, producer officers and directors soon realized that what they said through the producers' non-officers or directors' staff to the press could be excused. This became the means to present the idea that producers were working hard, innovating, and ensuring they maintained their hard-earned profitability during times of rapidly declining commodity prices.
From August 2013 to February 2016, crude oil prices declined from $102.15 to $23.58. This was not of concern. Producers remained profitable throughout the period, declaring profitability at every price point: $80, $60, $40, down to $23.58. At no point was there any accountability or justification made to support these claims.
The difficulty is twofold. First, the majority of any real savings were due to the abuse of the service industry. Cutting industry activity levels in half caused pricing softness in the drilling and fracing firms. Then, deep discounts averaging approximately 50% ensured the service industry's revenues dropped to 25% of what they were a few quarters ago. These revised pricing estimates made it onto the purchase orders and into the capital budgets of the producers. Future costs were reflected here and factored into the "what if" scenarios conducted on the reserves reports. Their objective was to minimize capital expenditures and materially increase bookable reserves through proposed spending.
What we have is commonly referred to in the industry as "recycle costs." These costs have nothing to do with the historical accounting costs that will actually show up when reported. When well over 95% of the capital asset inventory is operational and carries historical costs, why would producers quote the potential, possible, or even imaginary level of profitability from "recycle costs?" This is a difficult question to answer as to where it should be classified: Is it part of means, motive, or opportunity?
What’s My Point?
This is the culture of the North American oil and gas industry, a culture shaped by the SEC’s 1970s Full Cost method of accounting. This method allows companies to lump all expenditures into property, plant, and equipment, shifting the purpose of accounting from measuring performance to reporting value. Assets could be reported up to the limit of the petroleum reserves' value, incentivizing spending to reach that limit. The only concern was the “ceiling test” write-down, which required an impairment to be recorded when asset values exceeded reserve values, bringing assets back in line with reserves. Thus, the ceiling test marked the point where a producer was swapping investment dollars for even smaller amounts of output.
Most of the time, this made the industry appear profitable the more it spent, leading to "muddle through" as the only competitive differentiator between oil and gas producers. Today, the industry's commercial performance sits at about 25% of what is necessary to sustain itself. For decades, it has hoodwinked investors with specious financial statements that have no basis in reality, performance, or validity. These statements, however, do show the industry is “well built” and has lots of “cash in the ground.”
The culture in the industry knows no different. Considering that the most competitive posture would be to have no assets valued in property, plant, and equipment (because they earned abundant profits to recognize those costs) is not part of their thinking. The officers and directors are the ones responsible, accountable, and in control of the firm's resources to ensure this did not happen. They have ignored shareholders' calls for action since 2015 and have disregarded market offerings such as People, Ideas & Objects that could remedy these issues. Therefore, they are responsible to their shareholders for the losses incurred, starting with the $4.1 trillion in revenue losses from natural gas price structural degradation.
Making Our Case!
From October 11, 2023, to May 1, 2024, People, Ideas & Objects presented our case through 44 blog posts under the “Notice” label, focusing on lost revenues and opportunities in natural gas over the past. We documented the revenue loss attributable to the deterioration of natural gas price structures since 2009, where the traditional heating value of 6 to 1 fell to as much as 50 to 1 in early 2024. Comparing the differences in value between 6 to 1 and realized gas prices, we identified $4.1 trillion in revenue losses and a lost opportunity to rehabilitate this pricing structure through LNG market expansion.
I am frequently confronted by those who believe these opportunity costs are tertiary to the industry's pursuit. I argue these are not opportunity costs; they are the responsibility of the officers and directors to maximize and realize shareholders' asset values. This is value leaking out of the bottom of the bucket, not a mere possibility. These concerns fall well within the domain of what an oil and gas producer should pursue and are necessary to make shale commercial. Distractions toward clean energy and a focus on “building balance sheets” will cause such leakage to occur.
These are not unknown unknowns. They are within the control and fiduciary duty of oil and gas producers. Addressing them requires only the most basic business understanding. The misguided culture of idle navel-gazing and pretense, driven by "muddle through," has led to these issues being neglected. Failing to address them in the market, while pursuing other unrelated, unprofitable industries where oil and gas producers hold no competitive advantage, constitutes willful misconduct based on misrepresentations to shareholders.
Officers and Directors Liability Insurance may be canceled due to this litany of purposeful degradation. Insurance firms may successfully accuse producers, officers, and directors of willful misconduct on many levels.
- Late 1970s the SEC regulates oil & gas producers to adopt Full Cost accounting. Officers and directors misinterpret this as license to overstate asset values.
- As noted, overstated assets create equal amounts of overstated profits. Attracting investors seeking the enhanced profitability, overinvestment therefore leads to overcapacity leading to overproduction, or unprofitable production.
- Oil & gas are “price makers” from an economic perspective. No readily available substitutes, small changes in supply / demand have enhanced impact on prices.
- Oil overproduction is documented in a July 27, 1986 Calgary Herald article causing oil prices to collapse from $30 to $10.
- Deliberate SEC overstatement of assets formulating a culture of “spending is profit” and “muddle through” begins in oil & gas.
- Misrepresenting financial statements based on value, not performance.
- Corporate strategies begin to incorporate bankruptcy. Chesapeake declares a $25 million pre-bankruptcy bonus, and returns officers to manage the new organization.
- Natural gas prices began their permanent structural degradation in January 2009.
- Preliminary Specification published in August 2012
- Publication provides proof officers and directors knew of market alternatives.
- Investors suspended further support of oil & gas producers' capital structures in 2015.
- People, Ideas & Objects published a July 4, 2019 white paper: “Profitable, North American Energy Independence -- Through the Commercialization of Shale.”
- Receives broad distribution yet producers refute the Preliminary Specification as unworkable as shutting-in production will damage formations.
- April 2020, ten months after the publication of our white paper, oil prices hit negative $37.00. Subsequently 25% of world oil production is shut-in.
- August 2020 producers capitulate on the viability and commerciality of shale. Transition to pursue clean energy in an unauthorized corporate redirection.
- Undertaken throughout the industry.
- Producers shale interests are disposed of. Such as Shell’s.
- Oil & gas service industry realizes they are no longer a concern to clean energy producers.
- Resumption of 25% of global oil production, producers report no damage to any formation was reported anywhere.
- Realizing the unauthorized nature of their transition to clean energy and shale appearing better in the rear view mirror. Producers return to oil & gas.
- People, Ideas & Objects ran our “Notice” series of blog posts documenting in detail these points and calculating the $4.1 trillion revenue losses in natural gas prices.
- Interestingly SAP sales to oil & gas producers have increased markedly since October 2023.
- SAP will sell you an oil & gas ERP system. However SAP does not have an oil & gas ERP system.
- During this period People, Ideas & Objects realized the unbelievable waste being generated in LNG exports arising from the comprehensive mismanagement of LNG.
- Producers did not understand and did not implement the appropriate means to sell natural gas beyond the Henry Hub as their point of sale.
- All the export sales of natural gas that was shipped via LNG was priced based on Henry Hub prices. Not their ultimate point of sale in either Japan / Korea or the Netherlands.
- Paying for the refrigeration and shipping costs would have provided them with the opportunity to rehabilitate the domestic natural gas price back towards its 6 to 1 heating value factor.
- Upon publishing our finding the industry undertook rapid action to sign agreements to do exactly that.
- However, contracts were not for existing facilities. Not for facilities under construction, or facilities that had received regulatory approval, or facilities that had achieved the point of approval for the decision to build the facility!
- The volume of these contracts was so significant that President Biden announced that no new LNG facilities would be approved during the remainder of his administration.
- This and other callosal blunders by officers and directors shows the catastrophic breakdown and cataclysmic failure of their administrations are not happenstance, isolated, inconsequential or acceptable. This is disqualifying, and those responsible need to be dealt with urgently.
- Personally I find the capitulation of the political landscape of the oil & gas industry to the politicians, the environmentalists and others abhorrent. Playing the victim, silence and whining that so and so did such is comprehensively unacceptable. Standing up and selling the value the industry provides is the last thing on their minds. They are weak, afraid and their opponents understand this. While at the same time expressing an extreme lack of care and duty towards their shareholders.
The Consequences
Shale has to be the greatest endowment of value known to mankind. It is undoubtedly the reason that the North American economy will be unconstrained in its ambitions in the 21st century. Shale was mapped out by the U.S. Geological Survey in the late 1800s. The service industry is responsible for the development and implementation of the methods, procedures, tools, and equipment that made production a reality.
However, shale has been fundamentally destroyed by the officers and directors of North American oil and gas producers. They have capitulated on this endowment, and we should hold them accountable. The immense value represented in shale oil & gas and the amount produced cannot be accounted for anywhere. Investors are disenchanted and have stopped supporting the producers' capital structures. The service industry is but a shadow of its former self, heading at light speed into a black hole. No one wants to work in oil and gas as a career choice, and those remaining are there for the money and benefits. Yes, shale has been mismanaged.
Officers and directors do not deserve the time of day based on this record. They knew what was happening, were apprised of alternatives, refuted them with untrue statements, and abandoned the industry to pursue the most unaccountable, unprofitable, and uncommercial path known to man in the clean energy industry. People, Ideas & Objects have proven they consistently fail to grasp the most basic business concepts. Opportunities such as LNG market development have been left to others to siphon off that value. There is no previous example of failure as comprehensive and tragic as what has occurred in oil and gas today. It is incomprehensible how officers and directors have ignored their investors' lack of support since 2015. There is no more critical message that can be sent to a firm!
But that’s not all. What happened to the value built before the officers and directors arrived? Where is the additional money taken from investors? What about all the money invested in the service industry? Where is the cumulative value of all those careers spent working diligently to ensure the industry was profitable, secure, and reliable? There is nothing left for anyone now. Most of it was wasted while those responsible, accountable, and in control ensured everyone knew they were in charge. And the vision they propose today is consolidation? This is counterproductive to all other decentralized initiatives successfully implemented in the last two decades. The Internet may be the one opportunity for the industry to get back on its feet, yet they want to use the old Soviet Union's methods—a method that shows they will be more obstinate and stuck in their ways than before because they’ll have more bureaucratic control.
Conclusion
The tragedy will ultimately unfold when society's economy and political influences are dictated by those who supply North America with its oil and gas. North America is the most powerful economy and the largest consumer of energy. Few see the immense amount of oil and gas being shipped in pipelines, ships, tank cars, and trucks. They don't realize the global consumption of 100 million barrels of oil daily, nor do they see what’s in their vehicle's tank until they pay for it and feel the cost is too high for the little they received. They believe that covering their roof with solar panels or seeing windmills across the landscape will replace oil and gas, failing to grasp their insignificance.
I’m asking for a choice to be made. We either go with those whose performance is what we know, and live with them, “accepting the reality that all countries are the same and paying our fair share for once.” Chanting their woke agenda along with them. Or we change to a dynamic, innovative, accountable, and profitable oil and gas industry with People, Ideas & Objects Preliminary Specification, our user community and their service provider organizations.
Time has been wasted and the point of what I have been writing about is as plain and obvious to anyone who cares to look. We can document the destruction of the producers' officers and directors; however, if we continue without any action from here, it will be more than this small, select group of individuals who will be responsible for the tragedy that we realize.