Sierra Club v. Cheney, et al.
Club v. Cheney Goes to Supreme Court
Vice President Seeks to Keep Energy Task Force Documents Secret
by John Byrne Barry
On April 27, the Sierra Club will go mano-a-mano with Vice President Dick Cheney before the Supreme Court. The Club is seeking disclosure of the role played by energy industry executives in crafting the administration's national energy policy, arguing that the secrecy of the vice president's 2001 Energy Task Force is a violation of the Federal Advisory Committee Act (FACA), a sunshine law from the Watergate era.
The District Court ruled for the Club in October 2002, rejecting the administration's contention that its actions cannot be reviewed by the courts. The D.C. Circuit Court of Appeals then ruled against the administration in July of 2003, and, when the appeals court refused to reconsider that opinion, Cheney appealed the case to the Supreme Court.
The vice president's contention, says Club attorney Sanjay Narayan, who argued the case before the appeals court, is radical and unprecedented; Cheney claims that he has some sort of executive immunity that places him above the law and beyond the reach of the courts, Congress, and the public. (The vice president is not expected to appear at the hearing. Solicitor General Ted Olson -- the administration's top Supreme Court lawyer -- will likely argue the administration's case.)
The Cheney Energy Task Force released its plan in May 2001, after a parade of energy executives and lobbyists (including former Enron CEO Ken Lay) met with the administration behind closed doors. The energy bill, which is currently being debated in Congress, was hatched from the task force and includes an industry wish list of 1950's-era prescriptions, such as opening more federal lands to oil, gas, and coal development and removing environmental protections against dangerous pollutants.
Alan Morrison, an experienced Supreme Court litigator, will argue the case on behalf of the Club. Narayan, along with the Club's Legal Director Pat Gallagher, Deputy Legal Director Alex Levinson, and Senior Attorney David Bookbinder will all attend the argument. The oral arguments are expected to last only about an hour, with each side receiving a half-hour to discuss the case with the justices. The appearance in front of the Supreme Court is often a relatively small part of the decision-making process, Narayan says. The bulk of the argument and deliberation generally occurs through the written briefs.
The energy task force case has recently been overshadowed by the controversy over Justice Antonin Scalia's refusal to recuse himself after a January duck-hunting trip with Vice President Cheney. But Narayan says the same question arises: whether or not it's fair for one party to have access to decision-makers when everyone else with a stake in the outcome is shut out of the process.
The actual oral arguments are likely to be less dramatic than the issues at stake. "The case is about openness and public accountability in a democracy, though the discussion in court may well center on a classic lawyers' issue: jurisdiction," says Narayan.
FACA requires advisory committees with private parties to conduct their affairs openly -- in essence, it prevents the government from allowing special interests to secretly write public policy. The law aims to prevent undue influence by industry groups. According to Pat Gallagher: "Beyond the legal issues, this case seeks to vindicate the core American value that our government should be open and transparent to the public."
The administration has been criticized widely for its secrecy, raising the question: Why has Cheney fought this so fiercely and refused to release the information?
"One reason may be the scandal we know about," says Narayan, "which is that energy industry executives and lobbyists were allowed to craft the nation's energy policy. plan." But a second possibility is "a scandal we don't know about." Narayan suggests that the documents could reveal something like the alleged "overlap between energy policy and 'rogue state policy,'" as reported by Jane Meyer in a February New Yorker story about Cheney and Halliburton.
Meyer cites a National Security Council document from February 3, 2001, which directed the NSC staff to cooperate with the energy task force as it "considered the 'melding' of two seemingly unrelated areas of policy: 'the review of operational policies towards rogue states,' such as Iraq, and 'actions regarding the capture of new and existing oil and gas fields."
As for the "scandal we know about," there's some evidence of improper industry influence. For example, Energy Department officials had meetings with energy executives pushing for eliminating controls on polluting power plants - and, lo and behold, out of the Energy Task Force came recommendations precisely matching industry proposals.
Bush administration allies are attempting to resuscitate the energy bill, which has died twice already, once in committee and once in a Senate vote.
When it last surfaced, the bill contained tens of billions of dollars of subsidies and tax breaks to the coal, oil and gas, and nuclear industries, and called for increased drilling on public lands and weakening of the Clean Air Act. At the same time, the bill did not include raising fuel economy standards for cars, trucks, and SUVs; or meaningful provisions promoting energy conservation and renewable energy sources.
The Sierra Club and its allies have twice defeated efforts to include oil drilling of the Arctic National Wildlife Refuge in the bill, but even without Arctic drilling, the bill would be, says Club Executive Director Carl Pope, "one of the worst environmental disasters in years."
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