Abid Aslam

WASHINGTON, May 11 2005 (IPS) — The White House has won a court decision shielding it from having to turn over documents to advocacy groups which claimed in a lawsuit that corporations swayed Vice President Richard Cheney’s task force on U.S. energy policy.

The Sierra Club environmental organisation and Judicial Watch, a conservative legal pressure group, had sought the documents in a suit alleging that Kenneth Lay, then chairman of failed energy trader Enron Corp., and other business executives and lobbyists unduly influenced the task force.

The panel, which Cheney chaired, produced a report calling for tax breaks for energy companies, increased oil and gas drilling – even on previously protected public lands – and changes in regulations designed to spur growth in nuclear power generation. That report provided the basis for energy legislation currently before the U.S. Congress.

The Washington, DC federal appeals court, in a widely expected decision Tuesday that capped four years of legal wrangling, told a lower court to throw out the advocacy groups’ suit. In effect, the court said the White House’s right to confidentiality was greater than the public’s right to know.

The ruling appeared to put an end to a closely watched test of civil society organisations’ ability to demand public disclosure from the White House and thus to secure access for non-governmental groups to future task forces charged with advising the president on key issues.

Specifically, the appeals court accepted government assurances that private players were consulted but did not serve as official members of the panel. Therefore, their consultations were immune to laws requiring public disclosure.

"In making decisions on personnel and policy, the president must be free to seek confidential information from many sources, both inside the government and outside," Judge A. Raymond Randolph wrote in the eight-judge panel’s unanimous ruling.

Randolph said the White House was within its rights to form a committee composed of only federal employees. The internal communications of such a group would remain confidential so long as the right to vote or a veto was not later given to non-governmental employees, he added.

The dismissal of the case had been expected after the U.S. Supreme Court refused last June to require that task force records be disclosed. It sent the case back to the appeals court.

The Sierra Club and Judicial Watch had argued that Cheney, a former chief executive of energy and construction company Halliburton Co., drafted a policy that favoured industry by consulting executives and shutting out environmental and citizens’ groups.

”Here the Bush administration has succeeded in locking the public out and letting industry and corporate special interests call the shots,” said Carl Pope, the Sierra Club’s executive director.

Cheney’s office applauded the decision as a key ruling preserving the constitutional principle allowing a president to seek confidential advice on important issues.

Judicial Watch and the Sierra Club said it would have a chilling impact on public disclosure.

”The American people have a right to know whether lobbyists became de facto members of the energy task force,” Judicial Watch President Tom Fitton said in a statement.

Outside participation made the task force a federal advisory committee with a legal obligation to disclose its operations, the groups had argued. But the court rejected their position.

The non-governmental National Security Archive, which filed court briefs in support of the advocacy groups’ suit, assailed what it described as the appeals court’s ready acceptance of White House assurances that outsiders did not actually serve on the task force.

”Since the plaintiffs never were able to conduct any discovery, they were never able to get behind the bland assurances in the declaration,” the organisation said in an assessment of the appeals court ruling.

As the legal saga played out in seemingly interminable courtroom proceedings, it was endowed with political intrigue in the public eye by Lay, then the Enron chief, and Supreme Court Justice Antonin Scalia.

Scalia fanned the controversy when it was revealed he had taken a hunting trip with Cheney while the task force case was pending before the high court. He then strongly rejected calls for him to step aside and let the Supreme Court’s other eight justices rule on the matter.

Lay caused a stir by meeting with Cheney, a fact that the White House acknowledged to Congress in 2002, only after Enron had tumbled under the weight of accounting and political scandals.

Lay’s contact was among six meetings between Enron executives and Cheney or his task force aides, it was later revealed.

The day after meeting with Lay, Cheney said the Bush administration would not support price caps on wholesale energy sales in California.

What followed was one of the worst energy crises in U.S. history as vast swathes of California and other Western states were plunged into darkness as they incurred billions of dollars in losses to pay energy prices set at artificially high levels by traders who manipulated energy supplies to stoke perceptions of shortages.