Court Tosses Cheney Energy Suit

A lawsuit seeking to force Vice President Dick Cheney to reveal details about the energy policy task force he headed and the pro-industry recommendations it made was scuttled Tuesday by a federal appeals court.

The Court of Appeals for the District of Columbia Circuit unanimously found that two private groups that sued Cheney failed to establish that the federal government had a legal duty to produce documents detailing the White House's contacts with business executives and lobbyists.

The lawsuit, filed by the Sierra Club and Judicial Watch, alleged that energy industry officials effectively became members of the task force, while environmental groups and others were shut out of the meetings. It also argued that the task force was a federal advisory committee with an obligation to publicly disclose its operations.

The appeals court disagreed. "There is nothing to indicate that nonfederal employees had a right to vote on committee matters or exercise a veto over committee proposals," it said. The court ordered a lower court to dismiss the case.

Cheney's energy task force was not an advisory committee and "it follows that the government owed the plaintiffs no duty, let alone a clear and indisputable or compelling one," said the opinion by Judge A. Raymond Randolph.

Cheney's task force met for several months in 2001 and issued a report that favored opening more public lands to oil and gas drilling and proposed a range of other steps supported by industry. The recommendations formed the basis of the energy legislation now before Congress.

The Bush administration has succeeded in keeping secret the influence that the energy industry had in crafting the government's energy policy, David Bookbinder, a senior attorney at the Sierra Club, said.

"The decision is not going to be helpful in assuring open and accountable government," Bookbinder said.

In January arguments before the appeals court, Justice Department lawyer Paul Clement argued that forcing the White House to produce any documents about the task force would be an "unconstitutional and unwarranted intrusion on the executive branch and its internal functions."

Clement said task force members may have sought information from industry officials, but private parties had no official policymaking role. As long as the official makeup of the task force was limited to government officials, he said, federal open government laws cannot require that records be made public.

The appeals judges agreed with his reasoning, saying participation by outsiders in meetings — "even influential participation" — would not be enough to make someone a member of the committee.

"When congressional committees hold hearings, it is commonplace for the Senate or House members of the committee to bring aides with them," the court said. "The same is true when high-ranking executive branch officials serving on committees attend committee meetings. They, too, commonly bring aides with them. An aide might exert great influence, but no one would say that the aide was, therefore, a member of the committee."

Last year, Democrats hoped the Supreme Court would uphold an earlier ruling by the appeals court and force the administration to reveal potentially embarrassing details about its relationship with energy company executives — including former Enron Corp. chief executive Ken Lay — ahead of the November election.

But 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 appeals court returned the case to U.S. District Judge Emmet Sullivan for dismissal.