Bright Light Must Shine on Energy Policymaking

Last month, after voices as diverse as the Wall Street Journal and the Nation magazine, the Sierra Club and the Cato Institute blasted the Bush administration’s omnibus energy bill as a massive betrayal of the public trust, a group of senators led by California Democrat Barbara Boxer and Arizona Republican John McCain stalled its consideration for this session of Congress. That’s a good thing. Now, perhaps, members of the House of Representatives, which had passed a version of the 1,100-page bill, will have a chance to actually read what they voted for.

But we can be certain, given the powerful economic forces poised to reap billions of dollars in subsidies and environmental giveaways from it, that the bill will be back.

In addition, just down the street, the United States Supreme Court is about to consider a related matter. The court decided last week to review a petition from the Bush administration to slam the door on a lawsuit brought by the Sierra Club and Judicial Watch (a conservative watchdog group) against Vice President Dick Cheney that contests the secrecy under which his National Energy Policy Development Group operated.

That task force, heavily influenced by energy executives with a strong financial interest in the legislation, formulated the original version of the energy bill passed by the House. When it rules, the Supreme Court may well determine whether the United States returns to the kind of secrecy in the executive branch that most of us thought had ended with Watergate.

The lower courts have consistently upheld the right of the Sierra Club and Judicial Watch to challenge the secrecy surrounding the energy task force. An open-government law from the Watergate era, the Federal Advisory Committee Act, prohibits policymaking at private meetings between high-level government officials and private parties. Such meetings, the act says, should be in the open, and the public should have access to documents disseminated to or prepared by the committee.

Since its passage, the law has been applied to liberals and conservatives alike. During the Clinton administration, it was employed in a successful challenge to First Lady Hillary Clinton’s health insurance task force. Now, it has a chance to play an important role once again. As trial judge Emmet G. Sullivan commented at an earlier hearing on the lawsuit, “Why should these defendants

In spite of this, the Bush administration has repeatedly said it is exempt, claiming in one brief that “fundamental separation of powers principles ... bar application of [the act] to the [task force] or the vice president.”

The administration’s action is consistent with its general reluctance to be scrutinized. In October 2001, U.S. Atty. Gen. John Ashcroft ordered executive agencies to find any plausible excuse to reject public and media requests for information under the Freedom of Information Act -- and the administration’s appointees have been very creative in finding such excuses. The White House recently announced that it would no longer answer legislative inquiries coming from members of the Democratic Party on the House and Senate appropriations committees.

For nearly three years, this administration and its Justice Department have aggressively resisted all efforts seeking disclosure of what occurred at the energy task force meetings. They have even resisted requests for information from the congressional watchdog, the General Accounting Office. Why, in a democracy, is there so much resistance to public scrutiny of the working of our government? Why does the White House apparently believe that national energy policy is like growing mushrooms -- best done in the dark?

It is common knowledge that the panel met almost exclusively with executives from well-connected polluting industries. In addition to Cheney, himself a onetime oilman, the task force included Commerce Secretary Donald L. Evans (former CEO of Tom Brown Inc., a Denver-based natural gas and oil company), then-White House economic advisor Lawrence B. Lindsey (a former advisor to Enron Corp.) and then-Federal Emergency Management Agency Director Joe M. Allbaugh, whose lobbyist wife was paid $20,000 by each of three giant electric companies. According to media reports, 18 of the 25 largest Bush campaign contributors were consulted by the task force.

So what is left to hide? The answer may lie in the embarrassing, obsequious way Cheney sought advice from industry. Take, for example, an e-mail about “national energy policy” that has come to light from Energy Department Senior Policy Adviser Joseph Kelliher to energy lobbyist Dana Contratto: “If you were King, or Il Duce, what would you include in a national policy, especially with respect to natural gas issues?”

There also might be a damaging bombshell or two that would come to light. One set of papers released during court proceedings, for instance, showed that as early as March 2001, long before Sept. 11, the Cheney task force had an interest in Iraqi oil. Included in the papers was a detailed map of Iraq’s oil fields, terminals and pipelines, plus a document titled “Foreign Suitors of Iraqi Oilfield Contracts.”

Then there is the possibility of awkward or even improper self-enrichment on the part of task force participants. The world’s largest coal company, Peabody Energy, one of the companies consulted, managed to time a stock offering to take advantage of publicity surrounding the release of the task force’s recommendations, and admitted to the Los Angeles Times that the task force report helped pump up the price. Perhaps it wasn’t what the companies told Cheney that is being hidden but what kind of insider information Cheney gave the companies. And task force records might shed light on why former Treasury Secretary Paul O’Neill so deftly put off his promise to sell his $100-million stake in Alcoa until the task force report was released, providing an additional upward bump in the price of Alcoa’s shares.

Our guess is that the documents would reveal that the shortsighted and dangerous policies crafted behind closed doors by the energy task force were simply an effort to guarantee big campaign contributors an adequate return on their investment. How else to explain an energy bill that has been described by the Detroit Free Press as “an oinking mastodon” and by McCain as stemming from a philosophy of “no lobbyist left behind,” and that even the Wall Street Journal acknowledged required the Republican leadership to grease “more wheels than a NASCAR pit stop”?