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Court backs Cheney on energy meetings

Experts who helped form energy policy can remain anonymous, an appeals court rules.

By wire services
Published May 11, 2005

WASHINGTON - In a victory for the Bush administration, a federal appeals court on Tuesday unanimously ruled that Vice President Dick Cheney does not have to divulge details on how White House energy policies were shaped.

In an 8-0 decision, the U.S. Circuit Court of Appeals for the District of Columbia ruled Cheney does not have to disclose the names of energy industry officials he consulted in forming policy in President Bush's first term.

The task force met in 2001 and produced recommendations for sweeping energy legislation now before Congress. The Bush administration fought to keep the panel's workings secret, saying public disclosure would make it difficult for any White House to solicit candid advice on important policy issues.

The two private groups that brought the lawsuit, the Sierra Club and Judicial Watch, had said the energy industry people were so deeply involved in formulating the administration's policy that they became de facto members of Cheney's National Energy Policy Development Group - and therefore their identities were subject to disclosure under the open-government Federal Advisory Committee Act.

The appeals court dismissed that argument.

"Neither Judicial Watch nor the Sierra Club explicitly claimed that any nonfederal individual had a vote on the NEPDG or had a veto over its decisions," the court held in a decision written by Judge A. Raymond Randolph.

The only people actually named to the energy development group were federal officials, the court noted, and only they signed the group's final report. The judges also disagreed with arguments that participation - "even influential participation" - in the energy development group's meetings somehow made outsiders members of the group.

It is commonplace in Washington, the court noted, for House and Senate members of a committee to bring aides with them and for executive branch officials to bring their aides to meetings.

"The outsider might make an important presentation, he might be persuasive, the information he provides might affect the committee's judgment," U.S. Appeals Court Judge A. Raymond Randolph wrote. "But having neither a vote nor a veto over the advice the committee renders to the president, he is no more a member of the committee than the aides who accompany congressmen or Cabinet officers to committee meetings."

The appeals court directed U.S. District Judge Emmet Sullivan to dismiss the case. Sullivan earlier had ordered the White House to produce some documents.

The vice president's office said it was pleased by Tuesday's appeals court decision, saying it would help preserve the confidentiality of advice given to a president and vice president.

David Bookbinder, an attorney for the Sierra Club, said the decision "is not going to be helpful in assuring open and accountable government."

Bookbinder said he would study Tuesday's decision in hope of finding grounds to get the appeals court to reconsider, or perhaps ask the Supreme Court to review the case.

Democrats had asked the Supreme Court to uphold an earlier ruling by the appeals court and force the administration to reveal potentially embarrassing details about its relationship with energy company executives ahead of the November election.

The high court sent the case back on a 7-2 vote, saying there was a "paramount necessity of protecting the executive branch from vexatious litigation."

The justices held that the Court of Appeals had acted prematurely in ruling that the plaintiffs were entitled to enough pretrial discovery to determine whether, in fact, the energy industrialists ought to be deemed de facto members of Cheney's task force.

Proponents of the administration's energy policy say it will strengthen the U.S. by reducing reliance on oil imports and by encouraging environmentally sensitive exploration for new fuel sources. Critics say the legislation includes too many favors to industry, including the prospect of opening the Alaska National Wildlife Refuge to oil exploration.

Information from the New York Times, Associated Press and Washington Post was used in this report.

[Last modified May 11, 2005, 00:47:09]