LOBBYING AND LAWYERING: BOTH ARE CRITICAL TO PROJECT DEVELOPMENT BUT THERE ARE CRITICAL DIFFERENCES TO UNDERSTAND

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development, and Investment (Apr 2019)
CHAPTER 3C
LOBBYING AND LAWYERING: BOTH ARE CRITICAL TO PROJECT DEVELOPMENT BUT THERE ARE CRITICAL DIFFERENCES TO UNDERSTAND
Andrew L. Spielman ^*
Zach L. Lass ^**

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ANDREW (ANDY) SPIELMAN is a widely regarded leading preeminent public lands, environmental and natural resources lawyer whose practice involves administrative and regulatory proceedings and government relations, and centers around assisting energy clients with policy and regulatory issues involved in developing new facilities, as well as representing mining, oil and gas companies, wind farm and water system developers in the public land use and environmental permitting process in Washington, DC and across the Western United States. Mr. Spielman is the founder of Natural Resources Law LLC and has served as Global Chair of WilmerHale's Energy, Environment and Natural Resources Practice and Managing Partner of its Denver office, and before that served as Global Co-Chair of Energy and Natural Resources at another international law firm. Following completion of graduate work in governmental administration, Mr. Spielman earned a Presidential Management Fellowship and later served in senior positions at the U.S. Environmental Protection Agency in Washington DC, including acting Associate Director of the Office of Sustainable Ecosystems and Communities and Special Assistant to EPA's Administrator. Mr. Spielman's bi-partisan governmental experience also includes positions in the Executive Office of the President, Office of Management and Budget, and the US Senate. He has also served on campaign committees for several U.S. Senators and Governors and has served as Chairman of the Colorado Oil and Gas Conservation Commission and Chairman of The Regional Air Quality Council.

Introduction

The right to petition the government is recognized by the First Amendment of the United States Constitution.¹ This right dictates that lawyers can go and talk to the government and advocate for their clients' interests. Natural resources lawyers understand that, indeed, working with the federal government is how most projects are ultimately approved. If lawyers and their resource developer clients do not have these discussions, their clients' projects may well not obtain the needed approvals. Accordingly, when a client wants to do anything involving natural resources that requires the government's approval--whether it is obtaining a special use permit for a certain activity, securing an oil and gas lease, gaining approval of a subsequent application for permit to drill, or developing or expanding a mining operation--it is critical that lawyers work with, communicate, and involve government officials early and often throughout the process.

Lawyers understand this role. Their job entails working with government at every stage of the process and is not simply about filing the necessary paperwork and waiting to litigate. However, most lawyers probably do not consider themselves lobbyists. In fact, many in the U.S. actively avoid lobbying for a host of reasons. But an integral part of the lawyer's role in natural resources projects is working with the government, and in the United States, this interfacing counts as lobbying under federal law in certain circumstances. Accordingly, lawyers that work with the federal government must understand when their work qualifies as lobbying under the Lobbying Disclosure Act ("LDA").²

While certain states--like Colorado, for example--have specifically exempted lawyer communications with government officials made on behalf of their client from lobbying,³ the federal government has no such distinction. The bottom line is that what counts as lobbying under federal law does not distinguish between work done as a lawyer or work done as a lobbyist: they are both the same. And because natural resources lawyers frequently engage in activities that qualify them as lobbyists under federal law, they simply need to know the law and understand how to comply with it. The good news is that compliance is fairly straightforward, essentially involving registration and reporting requirements.

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This Paper explains why understanding the contours of "lobbying"--as defined by the LDA--is critical for natural resources lawyers. It explores the contours of the LDA, as well as two other often-overlooked, yet related statutes: the Foreign Agents Registration Act ("FARA")⁴ and Foreign Corrupt Practices Act ("FCPA").⁵ Part I summarizes the LDA, illustrating how it can apply to lawyers working on natural resources projects. Part II then provides an overview of FARA and the FCPA, explaining how they too can be triggered by the work that natural resources lawyers do.

I. The Lobbying Disclosure Act ("LDA")

In 2018, oil and gas companies spent almost $125 million dollars on lobbying activities in the United States.⁶ The mining and coal industries spent over $18 million⁷ and $7 million⁸ respectively. This information is public, in large part, due to the LDA, a statute enacted in 1995 in the face of growing concern that prior lobbying disclosure laws had been ineffective in promoting public disclosure of the efforts of lobbyists.⁹ The LDA sought to cure this problem by both "increase[ing] public awareness of the efforts of paid lobbyists to influence the [government's] public decisionmaking process" and "increase[ing] public confidence in the integrity of the government."¹⁰ Accordingly, at its core, the LDA is a statute aimed at disclosure and reporting, not at curbing any specific conduct.

The LDA is a federal lobbying statute that broadly applies to anyone who spends a significant amount of time working with the federal government to promote or advocate for an interest, project, legislation, or government action. More specifically, the LDA covers almost all activities associated with communications made to any one of potentially thousands of covered executive or legislative branch officials on a wide range of federal subjects.¹¹ Importantly for the natural resources lawyer, it covers communications regarding the formulation, adoption, or administration of agency rules, regulations, programs, or policies, as well as communications concerning project-specific decisions, permits, and approvals.¹² Because natural resources lawyers have these communications all the time, it is important to identify when these communications qualify you as a lobbyist.

A. What is a "lobbyist"?

A lawyer having discussions with federal government officials concerning agency rules, regulations, programs, or policies, or a client-specific project, permit, or license, qualifies as a

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lobbyist--and thus, falls within the ambit of the LDA--when three conditions are met. A lobbyist is an individual who: (1) is either employed or retained by a client for financial or other compensation in excess of $3,000 per three-month period; (2) makes more than one "lobbying contact"; and (3) spends 20% or more of their time over a three-month period on "lobbying activities" on behalf of an employer or client.¹³ It does not matter that you are serving as a lawyer when you are having these discussions. If you meet these three thresholds, you must comply with the LDA's registration requirements.

A lawyer must meet all three elements to qualify as a lobbyist. For example, if a lawyer spends 30% of his or her time on lobbying activities, as discussed below, but made no lobbying contacts, also discussed below, they would not need to register as a lobbyist. Likewise, if a lawyer spends 30% of his or her time on lobbying activities and made one lobbying contact, but did not meet the $3,000 monetary threshold, they would not need to register as a lobbyist. Another illustration, useful for lawyers practicing in law firms, is as follows. A law firm has two lawyers performing work for a particular client. The first lawyer spends 15% of her time on lobbying activities and makes several lobbying contacts. The second lawyer spends 25% of her time on lobbying activities but makes no lobbying contacts. Neither lawyer would fit within the LDA's definition of lobbyist.¹⁴ The monetary element is pretty straightforward, but what qualifies as a "lobbying contact" and what constitutes "lobbying activities" require additional explanations.

B. What are "Lobbying Activities"?

A "lobbying activity" is defined as "lobbying contacts and efforts in support of such contacts, including preparation and planning activities, research, and background work that is intended, at the time it is performed, for use in contacts, and coordination with the lobbying activities of others."¹⁵ If the intent behind the work is to support ongoing or future lobbying, then it is likely that it falls within the definition of lobbying activities.¹⁶ Lawyers must prospectively determine whether the intent of the work when it is performed is to support lobbying contacts.¹⁷ If it is, it qualifies as a lobbying activity.¹⁸ If the intent of the work is not to support lobbying contacts, but is later used for that purpose, it may not count as lobbying activity.¹⁹

It is essential to understand that lobbying activities do not just include the time spent directly on a lobbying contact, but also any of the effort that goes in prior to the actual contact, such as research and background work before the communication. For example, it is common to prepare "leave behind" materials for the government officials with whom you meet--materials that explain the project, its scope, and its benefits. Preparation of such materials constitutes

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lobbying activity. Surprisingly, time spent traveling to a lobbying meeting is also covered. Long flights make for more "lobbying activities."

As discussed above, one can engage in lobbying activities up to a certain point before they meet the threshold that triggers the LDA. It is a question of timing. A lawyer who spends...