NRDC Provides Primer on Issues at Stake in Litigation over Secret Energy Task Force
WASHINGTON (April 23, 2004) - On Tuesday, April 27, the U.S. Supreme Court will hear oral arguments in Cheney v. U.S.D.C. District of Columbia (03-475). The proceedings begin at 10:00 am. The legal battle over the White House's dirty energy secrets began three years ago when it refused to disclose information about the workings of the National Energy Policy Development Group -- otherwise known as Vice President Cheney's energy task force.
There are two ongoing lawsuits against the Bush administration for stonewalling over its national energy plan. The Supreme Court case relates to a suit filed by the Sierra Club and Judicial Watch alleging that the administration violated the Federal Advisory Committee Act (FACA). The other suit involves NRDC (Natural Resources Defense Council) and Judicial Watch against the federal agencies that participated in the energy task force for violating the Freedom of Information Act (FOIA). (In the latter case, two federal judges have found that the administration violated FOIA in its refusal to release the task force's energy records.)
"In shaping its energy policy, the Bush administration listened only to a select few -- its friends in the energy industry," says NRDC senior attorney Sharon Buccino. In fact, the White House rebuffed repeated requests from environmentalists regarding energy efficiency and conservation measures that could protect public health, limit catastrophic climate change, and promote energy independence. "The White House didn't want to listen, and it still doesn't want to tell," adds Buccino.
Below is a brief overview of the FOIA and FACA lawsuits -- their connection and their differences.
Freedom of Information Act (FOIA)
It is the free flow of information that holds public officials accountable to the public they serve. It is access to information that ensures that public officials serve the common good, rather than the profits of a few. First signed into law by President Lyndon Johnson in 1966, and significantly expanded following Watergate, FOIA is intended to let the public know "what its government is up to." The statute provides for disclosure to the public of all agency records that are not specifically exempt. 5 U.S.C. § 552(a)(3)(A).
FOIA carefully balances the need for disclosure with the need for open and frank discussions among government officials. The statute exempts from disclosure documents that are part of the government's deliberations. 5 U.S.C. § 552(b)(5). It protects "inter-agency or intra-agency" records leading up to a final agency decision. This exemption, however, does not extend to communications to and from outside parties. Dep't of Interior v. Klamath Water Users Protective Assoc., 531 U.S. 425 (2001).
Pending Litigation: The FOIA case has been decided on the merits. Not one -- but two federal judges -- have held that the Bush administration violated FOIA. In February 2002, Judge Gladys Kessler ordered the Department of Energy to release its records related to the Energy task force. NRDC v. DOE, 191 F.Supp.2d 41 (D.D.C. 2002). Recently, Judge Paul Friedman found that the response to this first order was inadequate. NRDC v. DOE (and consolidated cases), Civ. 01-2545 (March 31, 2004). Most significantly, the government failed to search the records of the most important Energy Department employees, including task force executive director Andrew Lundquist, who staffed the energy panel. The administration has asked Judge Friedman to reconsider his decision and in the alternative for a stay pending appeal. Unless it obtains a stay, the administration must release the records ordered by the court by June 1.
Federal Advisory Committee Act (FACA)
Another open government law, FACA was enacted in 1972 to limit the influence of advisory committees, made up of special interest groups, on government decision-making. Where an advisory committee includes non-governmental members, its meetings and its records must be open to the public. 5 U.S.C. App. II § 10(a) & (b). These provisions are designed "to prevent the surreptitious use of advisory committees to further the interests of any special interest group." H.Rep.No. 1017, 92d Cong., 2d Sess. 6 (1972), reprinted in 1972 U.S. Code Cong. & Admin. News 3491.
Pending Litigation: The fundamental issue before the U.S. Supreme Court in the FACA lawsuit against Vice President Cheney and others is whether the public should have access through discovery to records of the energy task force to determine whether FACA was violated. Neither the district court nor the D.C. Circuit determined that the administration had violated FACA, but both held that the plaintiffs had the right to access the information that could prove such violations. The discovery ordered is narrow and the government was given the opportunity to assert various privileges, including executive privilege, to prevent disclosure of specific documents. Yet the government has argued that it should not have to assert its privileges for "any discovery... would violate the separation of powers." (Govt's Opening Brief, p. 41, emphasis in original). The case is not about the scope of any privileges, but instead represents the White House's attempt to shield itself completely from inquiry.
Documents at Stake
While the legal issues are different in each case, the undisclosed records at issue are similar. The discovery at issue in the FACA case seeks information regarding who met with the energy task force and when. In addition to who and when, the substance of what was discussed is also at issue in the FOIA case. No basis whatsoever exists under FOIA for keeping secret communications in any form between the staff of the energy task force and energy industry lobbyists.
While some revealing documents have already been released, the administration continues to withhold the most telling records. The energy task force records that the administration is now under court order to release should provide even more concrete evidence of what specific individuals and companies asked for in a national energy policy. The documents at issue in the FOIA case relate to both the formation of the energy task force recommendations and their implementation. While many industry requests are included in the energy bill being considered by Congress, the administration has already delivered many others, such as rolling back pollution control requirements for the nation's dirtiest power plants and opening up the West's public wildlands to oil and gas drilling.
No matter what the Supreme Court decides regarding whether discovery is appropriate in the FACA case, the Bush administration remains on the hook to disclose the records under FOIA. In light of the most recent court order in that case, NRDC senior attorney Sharon Buccino says, "The administration should stop wasting taxpayer dollars appealing and delaying, but instead come clean with the information." The principle Bush officials say they are standing up for -- protecting frank and open government deliberations -- is already accounted for in FOIA. "Some information can certainly be protected," Buccino says, "but the administration should not continue to hide what the law says it cannot."
NRDC is represented by the Washington, D.C. law firm of Meyer & Glitzenstein.