Philippine Petroleum Exploration - Charting Stormy Waters
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Transcript of Philippine Petroleum Exploration - Charting Stormy Waters
Philippine Petroleum Exploration and Development – Charting Stormy Waters The Philippine petroleum upstream industry has been facing a lot of challenges lately hugely affected by a combination of external and internal factors, which may result to a slow down in exploration and development activities. The volatility in oil prices, external security threats in the West Philippine Sea, and political risk perennially attached to the Philippine resource industry, may cause some explorationists to stay in the sidelines while waiting for the dust to settle. The International Energy Agency recently announced that the oil market is “massively oversupplied.” With sanctions likely to be lifted on Iran following the finalization of a nuclear deal, it is expected that as much as 20 million barrels of stored oil will be added to the global market. Currently, Iran is the fourth-‐largest holder of crude oil reserves in the world and the major oil companies are already lining up to tap these resources. The rising oil supply coupled with the recent effects of the slowing China’s economy will dampen demand leading to further price drops. The Chinese economy is expected to grow less than 7 percent this year, its slowest rate since 1990, and could decelerate even more next year. China rattled global financial markets on 11 August 2015 by devaluing its currency to revive economic growth. The move is aimed to help Chinese companies by making their products less expensive in export markets. The stock market have been hit by massive sell-‐offs stemmed only by active government intervention including suspension in trading of more than half of listed firms and a halt to initial public offerings to check the slide in equities. Construction is weaker than ever as the real estate industry struggles amidst a threat of a bubble. Consumer spending, which was supposed to pick up the slack, is not that strong and financial services, a major driver of economic growth when the stock market was booming, are slipping. Saudi Arabia, OPEC’s de facto leader and most powerful member, reportedly continues to pump oil at record high rates as OPEC maintained its daily production target during the downturn. Credit Suisse surmised that Saudi Arabia is working to get oil prices low enough to undermine US shale investment. Credit Suisse further noted that while Saudi Arabia is expected to be running a 20% deficit in 2015, the major oil producer is likely to be able to afford a "price war" for the foreseeable future. Oil prices are down to their lowest level in six years. Despite oil prices taking a sharp nosedive significantly below the $60 per barrel break-‐even point of several shale producers, a few producers are still continuing with plans for deploying more rigs in the near future. Credit Suisse stated that the cost of production for US shale will fall 30%, and that 80% of shale oil produced will make financial sense to produce with prices below $60 a barrel at the end of this year. The oil-‐futures market projects oil prices will bounce back to near $70 a barrel. Adding to the glut are large oil companies or countries that depend on oil revenue, which continues to produce to bring in cash flows regardless of price.
Waiting at the Sidelines Upstream investments in frontier and marginal areas are usually the first casualties during low oil prices. Petroleum companies are responding by cutting capital expenditure programs and in the absence of a price rebound, deeper budget cuts will follow. At the home front, if the results of the 5th Philippine Energy Contracting Round (“PECR”) are any indication, petroleum exploration in the country is expected to slow down in the short term. Formally launched on 09 May 2014, PECR5 is a mechanism whereby the Philippine government through the Department of Energy (“DOE”) bids out areas with potential energy resources for exploration and possible development and production providing a more transparent and competitive system of awarding petroleum service contracts. There are currently twenty (29) Petroleum Service Contracts -‐ seven (7) under Production Period, twenty-‐two (22) under Exploration, seventeen (17) awarded thru direct negotiations, and twelve (12) awarded thru PECRs.
Department of Energy
For the eleven (11) areas placed for bidding under PECR5, only three (3) companies submitted bid proposals. Out of the three that submitted, only two qualified -‐ Ratio Oil for Area 4 (NE Palawan), and Colossal Petroleum for Areas 5 (NE Palawan) and 7 (Recto Bank Block). The other bidder, Yulaga Oil Exploration Enterprises, which bid for Area 1 (Ragay Gulf), was disqualified for failure to submit complete documents. Despite the numerous international roadshow
presentations conducted by the DOE to promote PECR 5, it was noticeable that the big players stayed in the sidelines. Industry sources are now suggesting that the DOE do away with the bidding process of awarding service contracts because of the long lead time in acquiring new acreage and the high costs of promotion, which lately do not translate to any tangible investments by the big players. Meanwhile resources companies are keenly anticipating the passage of the Bangsamoro Basic Law (“BBL”) particularly focusing on the contentious issue of ownership of natural resources. Although the Constitution provides that natural resources belong to the state by virtue of the Regalian doctrine, under the Malacanang-‐backed House of Representatives version of the draft BBL bill, only the Bangsamoro government will have exclusive jurisdiction over natural resources located in the Bangsamoro territory. Under Section 8, “The Bangsamoro Government shall have the authority, power, and right to explore, develop and utilize the natural resources, including surface and subsurface rights, inland waters, coastal waters, and renewable and non renewable resources in the Bangsamoro.” The Bangsamoro Government shall also have the power to declare nature reserves and aquatic parks, forests, watershed reservations and other protected areas in the Bangsamoro, amending the following laws, among others: the National Integrated Protected Areas System Act; the Forestry Code of the Philippines; PD 87, the Petroleum Exploration and Development Law of 1972; and the Philippine Mining Act of 1995. Because of the apparent unconstitutionality of certain provisions of the draft BBL bill, Senator Ferdinand R. Marcos Jr., chair of the Senate Committee on Local Government, filed on 10 August 2015 a substitute bill, Senate Bill 2894, entitled "Basic Law for the Bangsamoro Autonomous Region". Sec. 165 of the bill states that: “The Bangsamoro Regional Government shall have the authority, power, and right to control and supervision over the exploration, utilization, development, and protection of the mines and minerals and other natural resources within the Bangsamoro Autonomous Region in accordance with responsible mining policies, the Philippine Constitution, and the pertinent provisions of this Basic Law. Provided, that the strategic minerals such as uranium, petroleum, and other fossil fuels, mineral oils, and all sources of potential energy shall remain under the control and supervision of the National Government; provided further that in the utilization and exploration of strategic minerals, the Bangsamoro Regional Government shall be consulted.” Also, under Sec. 166: “Qualified inhabitants who are bona fide inhabitants of the Bangsamoro Autonomous Region shall have preferential rights over the exploration, development, and utilization of natural resources, including fossil fuels (petroleum, natural gas, and coal) and uranium, within the Bangsamoro Autonomous Region. Existing rights over the exploration, development and utilization of natural resources shall be respected until the expiration of the corresponding leases, permits, franchises or concessions, unless legally terminated.” Majority of the 17 senators who signed the report submitted by Marcos' committee expressed intention to interpellate or amend the substitute bill, which Marcos vowed to address. The substitute bill consists of 17 articles and 215
sections while the original draft contained 18 articles and 244 sections. In his sponsorship speech on the draft law, Marcos assured the public that his version of the Bangsamoro bill is "constitutional, all-‐embracing and inclusive" and will protect the country's national interest and reserves to the national government its powers enshrined under the Constitution. Looming Uncertainties in the Horizon Three recent developments have also dampen the industry’s enthusiasm and again cast serious doubts as to the integrity of the petroleum service contract system’s legal, regulatory and fiscal regime. Tañon Strait Service Contract Constitutional Challenge In a recent case “Resident Marine Mammals vs. Sec. Reyes”, the petitioners sought to enjoin the DOE from implementing SC46 and to have it nullified because SC46 violates the Constitution and covers the Tañon Strait NIPAS area. The Supreme Court held that following the safeguards established in the La Bugal B’laan case, PD 87 although enacted in 1972 before the adoption of the 1987 Constitution, remains to be a valid law and may serve as the general law, which a service contract for petroleum exploration and extraction may be authorized. However, the Supreme Court noted that the President was not the signatory to SC46 and the same was not submitted to Congress making it null and void. The Court also held that SC46 was not executed for the mere purpose of gathering information on the possible energy resources in the Tañon Strait as it also provides for the parties' rights and obligations relating to extraction and petroleum production should oil in commercial quantities be found to exist in the area. While PD 87 may serve as the general law upon which a service contract for petroleum exploration and extraction may be authorized, the exploitation and utilization of this energy resource in the present case may be allowed only through a law passed by Congress, since the Tañon Strait is a NIPAS area. Since there is no such law specifically allowing oil exploration and/or extraction in the Tañon Strait, no energy resource exploitation and utilization may be done in said protected seascape.” Any seismic survey or drilling in a protected area may only be implemented pursuant to an Environmental Compliance Certificate secured after undergoing an Environmental Impact Assessment. The DOE requested the Office of the Solicitor General (“OSG”) to file a Motion for Reconsideration on the grounds that then President Gloria Macapagal-‐Arroyo granted a Special Authority to then DOE Secretary Vicente Perez and that Congress had been notified of the execution of SC 46. The Motion for Reconsideration was filed by the OSG on July 16, 2015. West Philippine Sea Dispute Petroleum exploration in the highly prospective Western Palawan shelf and the Reed (Recto) Bank, undisputed part of the Philippine exclusive economic zone where the Philippine government has exercised “sovereign rights” through the award of service contracts, have also been threatened by the ongoing territorial
dispute with China. Prof. Jay L Batongbacal in his lecture on “U.S. Maritime Security Policies and Philippine Maritime Territorial Claims” cited documents that the Philippine occupation of the Kalayaan Islands was made as a security perimeter around the Reed Bank, where then President Ferdinand Marcos granted oil exploration contracts to American companies but which was discouraged by US Embassy officials. The Philippine government has pursued an arbitration case against China and a high-‐level Philippine delegation went to The Hague for the oral arguments on the case on 7-‐13 July 2015. In January 2016, the Philippine government expects the International Arbitral Tribunal to issue its award. In the meantime, the Philippines confirmed that it would meet the United States’ appeal to resolve the dispute. Following a regional security conference held in Kuala Lumpur, the Department Foreign Affairs came out with a statement that, "As a means of de-‐escalating tensions in the region, the Philippines fully supports and will pro-‐actively promote the call of the US on the 'three halts'-‐ a halt in reclamation, halt in construction and a halt in aggressive actions that could further heighten tensions.” The West Philippine Sea tension has seriously affected business decision to pursue further exploration work in the disputed area amidst armed threat to seismic vessels and drill ships. Exploration activities in SC72 covering Recto Bank operated by Forum Energy Plc. has been a recent casualty with Forum declaring force majeure on 15 December 2014. Unpaid Royalties to the Government What will ultimate cause apprehension and uncertainty to the petroleum upstream industry is the pronouncements by the state auditing agency, the Commission on Audit (“COA”), which has ruled that the Malampaya natural gas SC47 consortium owes the government P53.1 billion (or $ 1.2 billion) in back royalties. COA instructed the DOE to collect the alleged under-‐collection of the government’s share for the period 2002 to 2009. The DOE, including its predecessors from the Bureau of Energy Development, Ministry of Energy and the Office of Energy Affairs, has represented to the industry that the service contract provides for a sharing of 60 percent for the government and 40 percent for the consortium after deducting allowable expenses. The Philippine government assured petroleum service contractors that though they are not exempted from payment of income taxes, the taxes would be part of the 60 per cent government share. COA disputed this interpretation arguing that if it were to follow this interpretation then the government would be receiving less than the mandated 60 percent. Though the DOE is with the private industry on this issue, the retroactive application of this COA ruling is another manifestation of the Philippine government’s propensity to change the rules, particularly on taxation, in the middle of the game. In addition to these game changers, the Philippine Petroleum Association of the Upstream Industry (Oil and Gas), has raised issues that are currently hounding
the industry which includes: Processing time and bureaucracy in relation to approval of Tax Exemption Certificates; Customs, Immigration, and Quarantine issues; Effluent standards and water classification regulations by the DENR; exploration on ancestral domain claims and free prior and informed consent under the Indigenous People’s Rights Act; and Amendment of Executive Order No. 556 to provide flexibility to Philippine National Oil Company – Exploration Corporation in farming in and out of service contracts. Malampaya Natural Gas – Stimulus for the LNG Industry? All eyes of the industry are now focused on the expiration of Malampaya’s SC38. The outcome of the negotiations with the operator, Shell Philippines Exploration BV (“SPEX”), for the extension of SC38 that expires in 2024 will determine the viability of a liquid natural gas (“LNG”) industry in the country. It is estimated that the Malampaya gas field’s recoverable reserve end of field life is 3.08 to 3.29 trillion cubic feet (“TCF”), whereas the total committed quantity under the current Gas Sales and Purchase Agreement is 2.7 TCF. Total production as of June 2013 was 1.3 TCF. The Malampaya gas field fuels three (3) base-‐load power plants in Batangas with a capacity of 2,700 megawatts (MW) representing around 40% to 50% of Luzon's power requirements. In October 2013 SPEX publicly disclosed details of the Malampaya Phases 2 and 3 (MP 2 and 3) of the Malampaya Deepwater Gas-‐to-‐Power Project involving the drilling of two additional production wells (MP2) and installing a second platform to house additional compressors for depletion compression (MP3). The two phases have been estimated to cost US$250m and US$750m respectively, and were targeted for completion by February 2014 and December 2015. SPEX has indicated that the members of the consortium would like to contract up the remaining gas in the field but for this to happen, they will have to request approval of the extension of SC38 in order to commit the investments in adjoining areas needed to firm up the reserves. Investments needed to firm up additional resources would take time to plan and implement and the consortium would need the certainty that the contract would extend beyond 2024 to make those investments. DOE officer-‐in-‐charge Zenaida Monsada said SPEX affirmed the request for extension but while waiting for Shell’s definitive stance on the matter, the DOE has advised the major oil firm to submit a formal proposal. Absent such formal request, Monsada said that nothing would prevent the DOE from talking to other interested parties. The DOE plans to bid out the unused banked gas from the Malampaya gas field and the awarding is set to be announced in November 2015. The banked gas is set to be extracted by the end of 2015 and delivered to the winning bidder beginning Jan. 1, 2016 up to Feb. 23, 2024. The total volume of banked gas may be able to run a 400-‐megawatt (MW) power plant until 2024. Contracting up the remaining Malampaya reserves to one party would assist the entry of liquid LNG by resolving a key uncertainty in the market. The party who contracts for the gas is able to use it while everyone else wanting to use gas now knows they only have imported LNG as an option. According to the 2013 report
“Philippines Natural Gas Master Plan, Phase One Report: Assessment of the Role of LNG within the Philippines Energy Market” prepared for the DOE by the Lantau Group (HK) Ltd., there is a reasonably robust economic case for a modest (600-‐800MW) of LNG-‐fired combined cycle gas turbine that can economically dispatch at mid-‐merit capacity factors requiring an investment of about US$300m in an LNG import terminal somewhere in Luzon. Mid-‐merit plants supply the gap between base load and peaking plants, which operate during peak hours. Establishing an LNG industry in the country faces an uphill battle due to its capital-‐intensive nature involving the development of a strategic infrastructure for receiving, storage, transmission and distribution. There remain challenges in bringing LNG into the Philippines and incentivizing the market. Today LNG prices simply do not cover the capital costs of new plants. If non-‐power use of the LNG, like an alternative fuel for transport, can ultimately defray some of the initial investment costs then that would permit more power capacity to be economically built. In the short term, gas demand will benefit from plunging oil and gas prices and its increased affordability. But the long-‐term outlook for gas is not so clear according to the International Energy Agency. The competitiveness of LNG versus other fuels remains a key demand uncertainty. It is difficult for LNG to compete with cheap coal and falling costs for renewables. In the Philippines, which currently resorts to cheap and quick to install power sources without internalizing the environmental costs, coal remains the fuel of choice. If the Philippine government adopts stronger climate policies, renewables may take over the slack. Conclusion Behind the seemingly relentless supply of oil coming into the market, companies and host countries need to revaluate their upstream energy strategies. Companies are refocusing on core assets while putting large investments through a much tougher vetting process. Amid tight cash flows, marginal and low-‐return projects will be have to be placed in the back burner if not outright cancelled. The Philippines still have to hit the elusive black gold bonanza outside of the Northwest Palawan basin. Deepwater petroleum resources, which the Philippines hope to strike big, are fraught with technical operational complexities, cost enormous sums of money, and threatened by externalities arising from the conflict with China. Instead of clouding the service contract system with its resource nationalism tendencies and bureaucratic inefficiencies, the government must ensure that companies have contractual stability in their high-‐risk investments.
Fernando “Ronnie” Penarroyo is the Managing Partner of Puno and Penarroyo Law ([email protected]). He used to work with the Oil and Gas Division of the Department of Energy as a geologist. He is currently involved in numerous petroleum exploration and development projects advising both local and foreign energy companies.