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| Sanjay Narayan |
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 is entitled to executive
immunity that places him above the law and beyond the reach of the
courts, Congress, and the public.
Within two weeks of taking office in 2001, President Bush established
a task force to formulate energy policy, headed by the Vice President
Cheney. After a parade of energy executives and lobbyists (like
former Enron CEO Ken Lay) met with the administration behind closed
doors, the task force released its plan in May 2001. The energy
bill was hatched from the task force and includes an industry wish
list of 1950s-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, argued 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, also attended the hearing.
The vice president did not appear. Solicitor General Ted Olson—the
administration’s top Supreme Court lawyer—argued the
administration’s case.
The actual oral arguments were far less dramatic than the issues
at stake, says Narayan. "The case is about openness and public
accountability in a democracy, but the discussion in court centered
on a classic lawyers’ issue: jurisdiction." The oral
presentation lasted 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 court is expected to make its ruling by July.
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 it’s essentially the same story: whether
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.
FACA requires advisory committees that include non-governmental
parties to conduct their affairs openly—in essence, 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."
Though actual details are not known, there is some clear 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.
(As Paul Krugman says in his New York Times column of April 27,
"the Bush administration is so deeply enmeshed in the energy
industry that it’s hard to know where one ends and the other
begins.")
On April 29, two days after the Supreme Court hearing, the Senate
rejected a "slimmed-down" version of the energy bill as
an attachment to an Internet tax bill.
When the bill last surfaced in its bloated entirety, it 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. Meanwhile, it
included no improvements in fuel economy standards for cars, trucks,
and SUVs, nor any 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 with Arctic drilling removed from the picture, the bill
would be, says Club Executive Director Carl Pope, "one of the
worst environmental disasters in years."
To sign a petition teling the Bush administration it’s not
above the law and should release the task force documents, see sierraclub.org/petition/supremecourt.
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