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Court Dismisses Lawsuits Calling for Disclosure of Energy Planners' Deliberations

On its second go-round the District of Columbia Court of Appeals last Tuesday dismissed lawsuits that sought to force Vice President Dick Cheney to turn over records and documents disclosing the names of energy companies and attending task force deliberations that crafted the 2001 national energy policy.

The decision by the full appeals court came after the U.S. Supreme Court vacated the appeals court's initial decision and remanded the case nearly a year ago, saying the appeals court acted prematurely, failed to consider the "separation of powers" doctrine and had not exercised its "discretion" (see Daily GPI, June 25, 2004). The action was on a decision by a lower court that would have required the vice president to turn over documents sought by the petitioners, Judicial Watch and the Sierra Club.

The two groups claimed that energy company lobbyists had worked alongside federal officials in a National Energy Policy Development Group (NEPDG) set up by the then newly-elected president to set energy policy goals. Since private sector representatives were involved, the NEPDG should have been governed by the rules of the Federal Advisory Committee Act (FACA), which requires all records and transcripts of meetings be made public, the two groups said. Only a task force composed solely of government employees would be exempt from disclosure under the FACA.

In Tuesday's decision the court noted the president appointed only federal officials to NEPDG and only federal officials signed the group's report. While Judicial Watch and the Sierra Club claimed industry reps participated in the group's deliberations, they offered no proof that private parties were actually members of the committee with a vote or veto power, the court said, and pointed out that government, including the Congress, often calls on industry witnesses for testimony or advice.

The appeals court issued a writ of mandamus directing the district court to dismiss the complaints.

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