Whose Energy Policy?

Cheney’s task force has resisted two open government cases brought to discover who really wrote the nation’s energy policy

From the Summer 2004 issue of The News Media & The Law, page 14.

By Grant Penrod

Access to records from Vice Presi dent Dick Cheney’s national energy task force remains in doubt following the U.S. Supreme Court’s June decision to send the lawsuit seeking them back to a lower court for further consideration.

Cheney and other government defendants launched a broad constitutional defense against the claim that they needed to comply with the Federal Advisory Committee Act, one of only two federal open meetings statutes.

FACA was enacted by Congress in 1972 to provide the public with access to the activities of executive branch advisory committees, the behind-the-scenes groups that do much of the work of the federal government. Congress was concerned with the proliferation of “blue ribbon” committees and the expenditure of public funds on biased proposals. The act establishes time limits on how long advisory committees may exist (normally two years), requires them to make public reports, and opens their meetings and rec ords to the public.

The act’s openness requirements do not apply, however, to committees made up wholly of full-time government employees. It’s when interests outside government are represented on an advisory committee, brought in to provide expert advice and perspective, that the public has a right to know whether those experts are acting in the public interest.

The Government in the Sunshine Act, which applies to executive commissions such as the Federal Communications Commission, is the only other federal open meetings law.

Shortly after President Bush assumed office in 2001, he announced the creation of the National Energy Policy Development Group, commonly called the energy task force, to be chaired by Cheney. The order creating the task force named senior officials of numerous federal agencies as members, but also empowered Cheney to appoint others to the committee.

Because the named members were all full-time government employees, the committee did not comply with the openness requirements of FACA.

The task force met for the first time on Jan. 29, 2001. It met eight more times over four months before issuing a report to the president recommending a national energy policy. The task force then disbanded.

To date, Congress has yet to vote on the president’s national energy policy.

Following media reports that energy industry representatives — including executives of the then soon-to-be bankrupt Enron corporation — had access to the committee, two public interest groups filed separate lawsuits against the task force, its members and alleged non-government participants. The suits were filed by Judicial Watch, a conservative government watchdog group, and the Sierra Club, a liberal environmental organization.

The task force was later dismissed from the suit because it no longer existed after it issued its report. The non-government defendants were also dismissed because FACA did not provide a right of action against them.

The suits, which were consolidated in March 2002 in U.S. District Court in Washington, D.C., alleged that energy industry representatives had significantly participated in the activities of the task force or its sub-groups, making them “de facto” members. The openness requirements of FACA therefore applied, the groups argued.

The “de facto” member doctrine arose out of a 1993 FACA lawsuit for access to the records of the health care task force chaired by then-first lady Hillary Clinton. In Association of American Physicians v. Clinton, the U.S. Court of Appeals in Washington, D.C., held that although non-government employees had not been officially named to the committee, they had become so involved in the task force’s activities that they were “functionally indistinguishable” from the designated members.

The defendants in the Clinton case released the requested documents rather than appeal to the U.S. Supreme Court.

To prove that non-governmental representatives had been involved with the energy task force, Judicial Watch and the Sierra Club asked the district court to order the defendants to disclose the records in the discovery phase of the trial — essentially the remedy they would be awarded if they won the case.

Instead of arguing that exemptions to the act applied, or that the documents were protected by executive privilege, Cheney and the other government defendants took the unusual step of arguing that it would be unconstitutional for the district court to even hear the case. In briefs filed with the court, they argued that applying FACA to the task force would violate the principle of separation of powers by creating an “extreme interference with core Article II responsibilities.” They cited the president’s constitutional powers to recommend legislation to Congress and to receive the opinion of the heads of executive agencies.

In a July 11, 2002, opinion, Judge Emmet Sullivan of the U.S. District Court in Washington, D.C., rejected those arguments. He ordered them to either proceed with “tightly reigned” discovery designed to only disclose whether non-government representatives participated in the task force, or to assert executive privilege over any documents that would interfere with the exercise of constitutional powers.

The D.C. Circuit refused to hear an appeal by the defendants, ruling 2-1 on July 8, 2003, that a decision on the constitutional objections was premature, and affirmed Sullivan’s order to proceed with narrow discovery.

The defendants then appealed to the Supreme Court.

The Reporters Committee for Freedom of the Press, joined by the American Society of Newspaper Editors and the Society of Professional Journalists, filed a friend-of-the-court brief in the case. The groups argued that the public and news media’s substantial interest in open government outweighs the minimal intrusion into executive powers presented by FACA. The case should be allowed to proceed to trial, they further argued, so that the open government issues could be properly litigated.

The defendants’ interpretation of the doctrine of separation of powers and presidential privilege “not only totally ignores the doctrine of checks and balances, but would render FACA ineffective or useless,” they wrote. “All the government would have to do to hide the activities of an advisory committee from the news media and the public would be to associate it with upper-level executive officials, and no court could even look behind that assertion into the actual workings of the committee.”

On June 24, the Supreme Court issued its decision, but did not resolve the underlying dispute. In a 7-2 opinion authored by Justice Anthony Kennedy, the court ruled that the Court of Appeals decided too quickly not to hear the case, and sent it back for further proceedings.

Although the court did not direct the result to be reached by the appeals court, the opinion included strong language supporting the defendants’ constitutional claims.

“[T]he public interest requires that a coequal branch of government afford presidential confidentiality the greatest protection consistent with the fair administration of justice, and give recognition to the paramount necessity of protecting the executive branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.”

Justices Ruth Bader Ginsberg and David Souter dissented, writing that narrow discovery would be sufficient to protect the defendants’ constitutional interests.

Even if the courts eventually deny the public access to the task force through FACA, the records may still be disclosed via the Freedom of Information Act.

In April 2001, Judicial Watch and the Natural Resources Defense Council began filing a series of FOI Act requests with the federal agencies whose officials participated in the task force. When the agencies did not comply with the requests, the groups filed three lawsuits in U.S. District Court in Washington, D.C., beginning in May 2001. The lawsuits were then consolidated.

The defendants are the Department of Energy, the Department of the Interior, the Bureau of Land Management, the Department of Agriculture, the Environmental Protection Agency, the Department of Commerce, the Department of Transportation, the Department of the Treasury and the Federal Emergency Management Agency. A 10th federal agency, the Office of Management and Budget, was also sued but settled with the plaintiffs.

On April 1, U.S. District Court Judge Paul Friedman ruled in a 97-page opinion that although the energy task force is not an agency subject to the FOI Act, certain records created by the federal agencies for the task force are subject to the act.

“The Office of the Vice President chose to borrow Department of Energy personnel to staff the (task force) rather than to hire personnel for the Office of the Vice President or to use existing White House personnel,” Friedman wrote. “It follows from established case law that such persons remain agency employees subject to the FOIA.”

He applied that same reasoning to the other defendant agencies as well.

Friedman also ruled that the agencies could not withhold documents created by federal agencies for the task force under FOI Act exemption 5 — inter- and intra-agency communications — because the task force was not a federal agency.

Friedman refused to reconsider his ruling, but at the request of the defendants stayed the order pending an expedited appeal to the D.C. Circuit. Briefs are due in the court of appeals by early September.

The battle for access to energy task force records may eventually be won with the FOI Act, but FACA’s usefulness as an open government tool could be wounded in the skirmish.