Air Date: Week of April 16, 2004

The U.S. Supreme Court will soon hear arguments about whether records from Vice President Cheney's held-behind-closed-doors Energy Task Force are to be made public. Living on Earth’s Washington correspondent Jeff Young fills us in on the dispute and what's at stake for energy policy and open government.

Transcript

CURWOOD: From the Jennifer and Ted Stanley Studios in Somerville, Massachusetts, this is Living on Earth. I’m Steve Curwood.

Many of the biggest environmental conflicts and controversies in the Bush administration have come over energy policy. And much of the administration’s energy policy has its roots in Vice President Dick Cheney’s Energy Task Force. The task force was a secretive series of meetings among top officials, industry executives and a few other outside groups early in the Bush presidency.

Its report set the stage for changes in the Clean Air Act enforcement, a push for more oil and gas from public lands, and a revival of the nuclear power industry. Environmental advocates and government watchdog groups have waged a long legal battle to learn more about the Energy Task Force – who was on it and how they arrived at their recommendations. That legal battle goes before the U.S. Supreme Court this month.

Our Washington correspondent Jeff Young joins us now to talk about the dispute and what’s at stake for energy, the environment, and the laws that require government to operate in the open. Jeff, welcome.

YOUNG: Thank you

CURWOOD: Jeff, this case is going to the Supreme Court. It drew a lot of flack over a duck hunting trip of all things. Some said that Supreme Court Justice Antonin Scalia should have recused himself from hearing about the Energy Task Force because he went hunting with Mr. Cheney. That sure put a lot of attention on this.

YOUNG: It did. Scalia eventually refused to recuse himself from hearing this, so now the groups who are bringing this suit – the Sierra Club and a conservative watchdog group called Judicial Watch – they’re focusing instead on the argument they’re going to take to the court. They say the vice president broke the law that requires open meetings. It’s called the Federal Advisory Committee Act and it basically says if people from outside government join an advisory committee, then that committee has to obey certain rules on public participation. That would mean the task force records should be more open and that the meetings of the task force back in early 2001 should also have been more open to more points of view on energy policy. But the justices are going to consider only a narrow part of this argument.

CURWOOD: And what’s that narrow piece, Jeff?

YOUNG: Well, the justices are going to decide whether the district judge who’s hearing this case should even be allowed to have access to these task force records. So what you have here is the administration not just saying the public can’t have these records, but also saying the judge can’t have them to decide if the public should have them. Now, as you can imagine, this is a great frustration for the groups who are bringing this lawsuit. David Bookbinder is legal director for Sierra Club’s Washington office.

BOOKBINDER: These are claims of an imperial presidency the likes of which we haven’t seen since the worst days of Watergate.

YOUNG: So, if the justices decide the judge should be able to look at these papers, then the case will go back to circuit court, and that will decide whether the rest of us get to see those papers.

CURWOOD: So even if that happens, it sounds like that’s going to take a long time.

YOUNG: Years, in all likelihood, even if the groups bringing the suit win in the Supreme Court. And, in any event, no records will be released until well after the election. And Bookbinder says that’s the White House’s real motivation here, to delay the release of potentially politically embarrassing material.

CURWOOD: What does the vice president himself say about his motivation here?

YOUNG: Well, to me he says nothing. Both the vice president’s press office and the press office for the Department of Justice, which argued a lot of these cases, they both declined interview requests. But in past, when the administration has talked about this, they’ve said, look, this is about principle. It’s about defending the powers of the Executive Branch within this balance of powers in our system. And he’s not alone in that thinking. Many people who follow this legal school of thought called “original intent,” about what the framers intended when they wrote the constitution. They support the vice president on this. John Eastman is a law professor at Chapman University in Orange, California

EASTMAN: Well, I agree with the vice president’s point of view and also with Alexander Hamilton’s. He was the one that initially wrote that we had created an executive that could operate with secrecy and dispatch. This politically motivated attack to try and uncover some piece of "gotcha," but at the risk of threatening that very tenuous separation of powers structural protection of our liberties, I think is a very dangerous thing. And I’m glad to see that the White House is fighting it on principled grounds.

YOUNG: So, that’s the principle at stake. And then, also, as a practical matter, Eastman says you need people who are participating in these committees, these task forces, to be able to speak very openly. And if they know that everyone out there is going to be looking at every word they say, then they’re not going to be very frank in the advice that they give. And that’s going to be harmful in the long run.

CURWOOD: Jeff, explain to us what’s going on with the other cases that are going on against the Cheney task force. This one that’s in front of the Supreme Court is not the only one.

YOUNG: Right. Well, members of Congress wanted to know more about what had happened in the task force. And so the General Accounting Office brought suit – that one was thrown out. But there’s another lawsuit that’s making a quite a bit of progress in federal district court. And again it’s the group Judicial Watch, this time partnered with the Natural Resources Defense Council. And they’re using the Freedom of Information Act to go after records from the federal agencies involved in the task force – we’re talking about Department of Energy, EPA, Commerce – lot’s of branches of government. And they’ve had some success there. They won release of some documents back in 2002. And this month, on April Fool’s Day, a D.C. district judge ordered still more records to be released.

CURWOOD: Jeff, this is really interesting, because here you have a very conservative group, Judicial Watch, paired up with NRDC and Sierra Club, environmental groups that are considered pretty liberal. Interesting to see NRDC and Judicial Watch working together here.

YOUNG: Yeah, talk about your political odd couples here. Judicial Watch, you might recall, went after the Clinton administration pretty fiercely, even representing Paula Jones who had filed a sexual harassment suit against President Clinton. But the Judicial Watch motto is "because no one is above the law" and Judicial Watch president Tom Fitton tells me “we’re going to stick to that.” It’s about the law, it’s not about partisan considerations. And he even supports the administration’s energy policy.

FITTON: You know, I may have voted for Dick Cheney, or I may have voted for George Bush, but I consider it kind of being like the cop who pulls over the mayor. You know, I voted for you, Mr. Mayor – now here’s your ticket, and show up in court. And this is the equivalent here.

YOUNG: And Fitton says there are lots of Republicans on Capitol Hill who would rather this whole issue would just go away, that the administration would drop this fight, release the documents, just be done with it. Because they think, politically, it’s just too costly to have them constantly taking hits about being secretive.

CURWOOD: Yeah, Jeff, I mean, what’s your take on this? Why does the administration persist in arguing this and taking all this heat?

YOUNG: It’s perplexing. Professor Eastman – we heard from him earlier – he says it’s a sign of virtue that the administration is willing to take all this heat in order to defend the separation of powers and the Executive Branch’s power. Not surprisingly, the Sierra Club’s lawyer, Mr. Bookbinder, he has a very different take on this.

BOOKBINDER: That’s the $64 question, and the only way we can think about it is that whatever the information is, whatever the documents are, that this may be explosive. And that the White House is willing to take political hit after political hit and media hit after media hit over this rather than let that information ever see the light of day.

CURWOOD: Now Jeff, what do we already know that happened in the task force? The documents that weren’t shrouded by the White House executive privilege, that were out of the agencies?

YOUNG: Right, well that Freedom of Information Act suit did win thousands of pages of documents. Many of them were heavily redacted, or blacked out. But you still do get a sense of the scope of the task force talks, and you see very clearly the origins of many of the most controversial actions that the Bush administration has taken when it comes to energy policy and environmental regulation.

CURWOOD: What do you have in mind?

YOUNG: Well, New Source Review is mentioned over and over in these papers. That’s a pretty complex part of the Clean Air Act that has to do with when coal fired power plants have to install fairly costly pollution control technology. And in these papers you see some of the most powerful people in the power industry asking for changes in New Source Review. And the Bush administration later did redefine New Source Review to favor the power industry.

But the item that environmentalists point to as probably the most extreme example of direct influence from the industry is an executive order that was written by the American Petroleum Institute. It had to do with having public agencies give energy issues a priority in their decision-making. And the NRDC’s lawyer, Sharon Buccino, says that went very quickly from the Petroleum Institute to the president.

BUCCINO: You have that recommendation being made in the Energy Task Force report, which is released May 17, 2001. And then the very next day you have President Bush issuing the executive order, the text of which is very similar to what had been submitted by the American Petroleum Institute.

CURWOOD: So, what do the environmental advocates and Judicial Watch want to learn more about? What do they suspect is still in there to be learned?

YOUNG: You know, it’s a little murky. You can’t know what’s unknown in there. But speculation focuses on exactly who met with whom. You know, how much access did people like Ken Lay from Enron, for example, have directly to the vice president and his staff. Things like that.

But what a lot of people find more intriguing is not about the domestic energy scene, but foreign energy. Among the documents that were won in that open records lawsuit is a series of maps that show oil fields in Middle Eastern countries, including Iraq. And they came from the Commerce Department. It includes lists of countries and companies that have contracts to produce oil from those oil fields.

And then, another record related to the task force was discovered by New Yorker reporter Jane Mayer. And this one directs the National Security Council members to cooperate with the task force as it considers, and I’m quoting here, "operational policies toward rogue states" and, quote, "actions regarding the capture of new and existing oil and gas fields."

CURWOOD: Well, that could be kind of hot and raise some eyebrows, given the controversy about the motivation for war in Iraq.

YOUNG: Yeah, for sure. And some critics immediately seized on this as evidence that this was a war about oil, and the war was being discussed way back in early 2001. Now we should stress that this is very speculative. It’s based on incomplete information. But for Fitton, the guy from Judicial Watch – who supports the war, by the way – it’s the administration’s secrecy that is fueling all that speculation.

FITTON: So, I don’t necessarily think it was the reason for war, that the Energy Task Force was a kind of war council. But because of the secrecy of the administration, people draw different conclusions. And they have been taken by many in the media and around the world as proof that the administration invaded Iraq for oil. I didn’t see it that way but people draw their own conclusions and I’m not in the position to debate them much because I’m not the administration.

CURWOOD: So Jeff, what happens in this Supreme Court case that’s coming up shortly? What are the odds that this will set some sort of important precedent?

YOUNG: Well, if Vice President Cheney loses at the Supreme Court, this would not set precedent. It would mean the justices are reaffirming the power of the open meetings law, and just sending the case back to the lower court where they’ve got to slog through arguments over the case’s merits. Professor Eastman – we heard from him earlier – he supports Cheney on this, and he says that would be bad.

EASTMAN: If the president gives in to this and leaves the executive weakened as a result, that balance of power that is the hallmark of our constitutional system is altered, and perhaps with grave consequences far beyond the particular consequences at issue in this case.

YOUNG: Now, if the justices agree with Vice President Cheney, then it likely means that the justices have something they want to say about open meetings law and the balance of powers. And the Sierra Club’s Bookbinder says that could be a major precedent-setting event and, from his point of view, not a good one.

BOOKBINDER: That would be a very unfortunate direction for us, for other litigants under Federal Advisory Committee Act, and for the future of open government in the United States.

YOUNG: So, we will learn more with oral arguments at the Supreme Court on April 27th, and then a decision expected by the end of July.

CURWOOD: Jeff Young is Living on Earth’s Washington correspondent. Thank you, Jeff.

YOUNG: You’re welcome.

CURWOOD: Our coverage of energy policy continues in just a minute. We’ll talk with an analyst who takes stock of the world’s untapped energy supplies – from oil and gas, to wind and solar. Keep listening to Living on Earth.

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