WASHINGTON, D.C., (February 1, 2001) - The Natural Resources Defense Council (NRDC), a major national environmental organization, and Tri-Valley CAREs (TVC), a citizens organization based in Livermore, CA., today filed a motion in the Federal Court for the District of Columbia to bar the Department of Energys use of a recent "Rebaseline Validation Review" of the National Ignition Facility (NIF) to garner public and congressional support for the controversial laser fusion project.
"The DOE Rebaseline Committees August 2000 review of NIF is the epitome of everything that the Federal Advisory Committee Act was designed to prevent -- a hasty, biased and made-to-order review, conducted in secret by agency officials and insiders who stood to benefit from the very recommendations they were being called upon to make," noted Christopher Paine, a senior researcher with the NRDC.
"The DOE has relied on this tainted review to assert to Congress that it has finally gained control over the NIFs technical and budget problems, when the reality is quite different. If we prevail, DOE could be forced to go back to square one and prepare a more candid, unbiased, and complete assessment of the NIF Project," said TVC Director Marylia Kelley.
The motion also seeks to prevent DOE from forming any additional advisory committees concerning the NIF that do not fully comply with the public notice, openness and balance requirements of the Federal Advisory Committee Act (FACA). The two public interest organizations are represented by Meyer & Glitzenstein, a Washington, D.C. law firm with a record of successfully litigating claims of FACA violations by the Department of Energy and other federal agencies.
"The violations involved in this case are blatant, and all citizens concerned about the manipulation of federal agencies for private ends should welcome the action my clients are taking today," said the plaintiffs attorney, Howard Crystal. Todays motion for a preliminary injunction is part of an ongoing NRDC-TVC lawsuit against DOE that alleges a pattern of FACA violations in connection with the NIF project extending back to at least 1996.
A Stacked Committee
The Department of Energys "Rebaseline Validation Review of the National Ignition Facility Project," chaired by DOE officials Kathleen Carlson and Daniel R. Lehman, met none of FACAs requirements (see below). Without any public notice or participation, some 38 committee members -- including numerous paid consultants to DOEs Lawrence Livermore National Laboratory -- met in secret at Livermore laboratory from August 7-11, 2000 and reviewed the NIF construction project in support of the DOE Secretarys "certification" of the new "baseline" cost and schedule for the NIF, which DOE delivered to Congress on September 15. A DOE press release from that date asserted that "an independent technical review of the project, known as the Carlson-Lehman Review," had concluded that the $3.5 billion NIF project "can be completed successfully using current technology within the total cost and schedule defined in the revised baseline."
When DOE declined to withdraw its public characterization of the NIF Rebaseline Review as "independent," and to inform the Congress that the review had not been conducted in compliance with FACA, the two public interest groups filed suit. Among the numerous FACA violations cited, perhaps the most damaging to the integrity of the public policy process was the stacking of the review with paid consultants and advisers to Livermore National Laboratory and the NIF Project -- creating the very kind of biased panel that FACA was expressly enacted to prevent.
The two groups have identified 11 members of the Rebaseline Committee with serious financial or career conflicts of interest, "and seven of them had individual consulting contracts with Livermore in areas directly related to the NIF project," said Paine. For example, in one critical area of the review -- the evaluation of the NIFs large optical components -- all four members of the "Large Optics" Subcommittee had "clear biases in favor of NIF," Paine explained. (For details see the attached memo, "Conflicts of Interest of the NIF Rebaseline Review Committee Members.")
Congress enacted FACA in 1972 to control wasteful expenditures on advisory committees and open to public scrutiny the ways in which government agencies obtain advice from private individuals. Prior to FACA, advisory committees had become a convenient nesting place for special interests seeking to influence federal agency actions for their own ends.
FACAs requirements apply to agencies when they establish or utilize a group of individuals that includes at least one non-federal employee to provide collective advice or recommendations to the agency. To legally obtain such advice, an agency must, among other requirements: prepare a charter detailing the committees objectives, duties, costs, and duration; publish a notice in the Federal Register that describes the need and purpose for the advisory committee and "the agencys plan to attain fairly balanced membership;" and ensure that the resulting committee is "fairly balanced in terms of the points of view represented and the functions to be performed," and not "inappropriately influenced by the appointing authority or any special interest."
Once the committee is formed, FACA provides that the agency must: provide public notice at least 15 days before each meeting; provide public access to committee meetings and the material the committee considers and generates; ensure that they are held at a reasonable time and place to allow for public participation, and make the committees minutes, transcripts, and other documents available to the public.