Supreme Court Hears Cheney Energy Task Force Case

By J.R. Pegg

WASHINGTON, DC, April 27, 2004 (ENS) - The U.S. Supreme Court today will hear oral arguments on whether Vice President Dick Cheney must release internal documents detailing what role energy industry lobbyists and officials played in the work of the White House energy task force. The merits of the case have been somewhat overshadowed by concerns about the impartiality of Justice Antonin Scalia, but at issue is a fundamental pillar of the U.S. government - the separation of powers.

The case centers on a task force - officially known as the National Energy Policy Development Group - created by President George W. Bush shortly after he took office in January 2001.

The mission of the group, which was chaired by Cheney, was to "develop a national energy policy designed to help the private sector, and as necessary and appropriate federal, state, and local governments, promote dependable, affordable, and environmentally sound production and distribution of energy."

The group gave its report to Bush in May 2001 - its recommendations were the basis of an energy policy submitted to Congress the following month.

A bill containing much of this policy, which centers on further support for fossil fuels and nuclear technologies, has stalled in Congress. Cheney

Vice President Dick Cheney continues to battle allegations he let industry insiders undue influence in crafting the administration's energy policy. (Photo by David Bohrer courtesy The White House )
In the wake of media reports that energy industry officials and lobbyists were involved in the task force and after the White House declined to release information about the meetings of the group, Judicial Watch and Sierra Club each filed a lawsuit to force disclosure of relevant documents.

The suits, now consolidated, focus on the 1972 Federal Advisory Committee Act (FACA), which mandates open public access to records of advisory committees that include nongovernmental members.

In July 2003, a three judge panel of the D.C. Circuit Court of Appeals said the Bush administration is subject to "discovery" and must comply with requests for information.

In rejecting the government's arguments, the court wrote that the White House's position would "transform executive privilege from a doctrine designed to protect presidential communications into virtual immunity from suit."

The administration asked the appeals court for a rehearing, but that request was rejected in September, prompting the White House to appeal the decision to the Supreme Court.

Bush officials deny industry lobbyists and executives served as "de facto" members of the energy task force, but refuse to turn over documents that might prove this on the grounds that the White House should be able to gather information and advice without public scrutiny.

In the brief filed with the Supreme Court, U.S. Solicitor General Theodore Olson says the lower court erred in its ruling, He argues that FACA does not apply because task force members were all members of the federal government.

The lower court ruling that would force the White House to turn over documents, Olson argues, is a clear case of the judiciary overstepping its authority.

The orders from the lower court "subject the Vice President and other senior presidential advisors to discovery at least as broad and constitutionally problematic as the disclosure requirements imposed by FACA itself, in order to determine whether FACA even applies," Olson says in his brief to the court."

"Interpreting FACA to authorize such wide ranging discovery based solely on a naked assertion of unofficial, de facto members would render the statute plainly unconstitutional," Olson says. coal

Environmentalists have little time for the Bush energy policy, which they believe relies too heavily on oil, gas, coal and nuclear power rather than renewables. (Photo courtesy Ohio EPA)
The defendant groups, Judicial Watch and the Sierra Club, contend that the lower court ruling for limited discovery does not violate the separation of powers because it only involves information on the composition of the task force.

"The district court's discovery orders do not remotely resemble petitioners' characterizations of them," wrote the Sierra Club in its Supreme Court brief.

"The bottom line is that whatever constitutional problems there may be for some aspects of FACA as applied in some situations to presidential advisory committees, there is no basis for this Court to rule on the truly sweeping claims of unconstitutionality raised by petitioners," the environmental group says in the brief.

The two defendant groups, thrown together by the courts in this case, could not be more different. Judicial Watch is a Washington based legal watchdog that filed 50-plus legal actions against the Clinton administration and represented Paula Jones in her sexual harassment case against President Bill Clinton.

Founded in 1892, the Sierra Club claims 700,000 members and has the stated mission to educate and enlist humanity to protect and restore the quality of the natural and human environment.

The Supreme Court has granted a request by Judicial Watch that it and the Sierra Club be allowed to present separate arguments. Judicial Watch will focus on countering the claim that the Federal Advisory Committee Act is unconstitutional. The Sierra Club will argue that the court should not even consider the merits of the constitutionality argument.

Judicial Watch President Tom Fitton said "courts have rejected three times already Vice President Cheney's power grab and contempt for the judicial process."

"We hope the Supreme Court will do the same," Fitton said.

The Supreme Court is expected to hand down its ruling in June 2004.

The merits of the case, however, have in part been overshadowed by Justice Scalia's close friendship with the Vice President.

The Sierra Club, citing a January 2004 hunting trip the two took together with several other friends, called on Scalia to refuse himself from the case.

The environmental group, which has been a vocal critic of the Bush administration, said the trip raised legitimate questions about the justice's impartiality in the case. Judicial Watch said it did not believe there was enough evidence for recusal.

In an unprecedented 21 page memorandum released last month, Scalia provided many of the missing details of the trip and defiantly refused to remove himself from the case. Scalia

Antonin Scalia was appointed to the Supreme Court in 1986 by President Ronald Reagan and is a consistent conservative in his decisions. (Photo courtesy U.S. Supreme Court )
"The question simply put, is whether someone who thought I could decide this case impartially despite my friendship with the Vice President would reasonably believe that I cannot decide it impartially because I went hunting with that friend and accepted an invitation to fly there with him on a government plane," Scalia wrote. "If it is reasonable to that a Supreme Court Justice can be bought so cheap, the nation is in deeper trouble than I had imagined."

The Sierra Club said Scalia missed the point and added that if specific details had been provided regarding the trip when the issue first surfaced, they might never have requested the recusal.

The Bush administration is also appealing a lower court decision that ruled it violated the Freedom of Information Act when it refused to turn over documents from federal agencies regarding their role in the energy task force.

In response to a legal challenge by Judicial Watch and the Natural Resources Defense Council (NRDC), a judge ordered the Energy Department in February 2002 to turn over such records - last March another federal judge found the response to that first order was inadequate.

"The administration should stop wasting taxpayer dollars appealing and delaying, but instead come clean with the information," said NRDC senior attorney Sharon Buccino. "Some information can certainly be protected but the administration should not continue to hide what the law says it cannot."