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The Planet
Club, Cheney Face Off at Supreme Court

Vice President Seeks to Keep Secret Energy Task Force Documents Secret

By John Byrne Barry

On April 27, the Sierra Club went mano-a-mano with Vice President Dick Cheney before the Supreme Court. The Club is demanding that Cheney reveal 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 9th 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.

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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