Appeals Court Ruling Favors Cheney in Energy Task Force Case

by J.R. Pegg

(ENS) WASHINGTON -- In a major victory for the Bush administration, a federal appeals court May 10 dismissed a lawsuit that sought information about the secret White House energy task force overseen by Vice President Dick Cheney in the early months of the administration's first term.

The court determined the plaintiffs "failed to establish any duty, let alone a clear and indisputable duty, owed to them by the federal government" to release information about the 2001 energy task force, which helped craft the administration's energy policy.

The unanimous ruling by the eight judges of the U.S. Court of Appeals for the D.C. Circuit is a blow to environmentalists, who believe the administration allowed industry representatives to exercise undue influence in developing its energy plan.

"The Bush administration has succeeded in locking the public out and letting industry and corporate special interests call the shots," said Sierra Club President Carl Pope. "Now the American people will never learn how the polluting energy policy that President Bush continues to push was crafted."

The ruling is the latest in a three year bid by the Sierra Club and Judicial Watch to force the White House to release information about the 2001 task force, officially known as the National Energy Policy Development Group.

The group's industry friendly recommendations, which largely center on increased support for fossil fuels and nuclear power, were the basis of an energy policy first submitted to Congress in June 2001.

Legislation containing many of the recommendations has stalled in Congress despite intense lobbying by the White House, although the administration has moved forward on several fronts to open energy development on public lands.

In the wake of media reports that energy industry officials and lobbyists were heavily involved in the task force -- and after the White House declined to release information about the meetings of the group -- Judicial Watch and the Sierra Club each filed suit to force disclosure of relevant documents.

In October 2002, a U.S. District Court handed the plaintiffs a partial victory and ordered Cheney to turn over some documents about the group's members or to assert executive privilege.

The Bush administration refused to comply with the order. Rather than arguing over the scope of the information requested by the public interest groups, the White House said the ruling was unconstitutional and violated the separation of powers.

In July 2003, a three judge panel of the D.C. Circuit Court of Appeals agreed with the lower court ruling, prompting the Bush administration to appeal to the Supreme Court.

By a 7-2 margin, the Supreme Court ruled that the appeals court did not fully weigh the merits of the administration's argument and should fully determine whether the task force is subject to the 1972 Federal Advisory Committee Act (FACA).

The law mandates open access to records of advisory committees that include non-governmental members.

The public interest groups argued that industry representatives were active participants in the task force and that the group was in effect an advisory committee and thus subject to FACA.

In Tuesday's 13 page ruling, the appeals court disagreed because it determined that simple participation in task force meetings does not equal membership.

"There is nothing to indicate that non-federal employees had a right to vote on committee matters or exercise a veto over committee proposals," Judge A. Raymond Randolph wrote for the court.

Concerns about the separation of powers between the branches of the federal government "strongly support this interpretation of FACA," Randolph wrote. "In making decisions on personnel and policy, the president must be free to seek confidential information from many sources, both inside the government and outside."

Judicial Watch President Tom Fritton said the court's ruling is "contrary to the intent of the law."

"Further, it means that, going forward, the public will simply have to take the word of the government that no outsiders are improperly influencing the decisions of their government," Fritton said.

The Sierra Club's Pope said, "Had the Bush administration not shut out the public along with consumer and environmental groups, perhaps we would have seen some of the common sense technological solutions like increased efficiency, renewable energy like wind and solar power, and better automotive fuel economy become the centerpiece of an energy policy every American could get behind. Instead, the House of Representatives just passed an energy bill that vainly attempts to drill and dig our way to energy independence and ignores solutions."

The plaintiffs could still try to get the court to reconsider its decision or appeal the ruling to the Supreme Court.