Judicial Watch v. National Energy Policy Develop.

Decision Date11 July 2002
Docket NumberNo. Civ.A. 01-1530(EGS).,No. Civ.A. 02-631(EGS).,Civ.A. 01-1530(EGS).,Civ.A. 02-631(EGS).
Citation219 F.Supp.2d 20
PartiesJUDICIAL WATCH, INC., Plaintiff, v. NATIONAL ENERGY POLICY DEVELOPMENT GROUP, Defendant. Sierra Club, Plaintiff, v. Vice President Richard Cheney, et al., Defendants,
CourtU.S. District Court — District of Columbia

Larry Klayman, Judicial Watch, Inc., Washington, DC, for plaintiff Judicial Watch.

Patrick Gallagher, Alex Levinson, San Francisco, CA, for plaintiff Sierra Club.

Anne L. Weismann, Thomas Millet, Jennifer Paisner, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for federal defendants.

Howard M. Crystal, Meyer & Glitzenstein, Washington, DC, for amicus NRDC.

Robert S. Litt, Arnold & Porter, Washington, DC, for defendant Thomas Kuhn.

Paul Christian Rauser, Williams & Connolly, Washington, DC, for defendant Haley Barbour.

Richard D. Horn, Bracewell & Patterson, LLP, Washington, DC, for defendant Mark Racicot.

MEMORANDUM OPINION

SULLIVAN, District Judge.

Plaintiffs Judicial Watch, Inc. and Sierra Club filed these now-consolidated lawsuits against Vice President Richard Cheney, the National Energy Policy Development Group ("NEPDG"), various other federal officials,1 and private individuals2 to enforce the requirements of the Federal Advisory Committee Act ("FACA"), 5 U.S.C.App. 2, the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq, and the federal mandamus statute, 28 U.S.C. 1361. While the claims raised by each plaintiff differ in relevant and important ways, there is substantial overlap between the two complaints. Both plaintiffs seek information concerning the activities of the NEPDG and its members in developing and recommending to President George W. Bush a national energy policy. Both plaintiffs allege that private individuals were given a significant role in developing this energy policy, and as a result, the confidentiality under which the NEPDG operated violated the requirements of FACA. Defendants have moved to dismiss both complaints, raising a number of jurisdictional, statutory, and constitutional objections to these suits.

This case comes before the Court on federal defendants' motions to dismiss the Judicial Watch and Sierra Club complaints, as well as three private defendants' motions to dismiss the Judicial Watch complaint. Upon consideration of these motions, the responses and replies thereto, the oral argument of counsel, the applicable statutory and case law, the Court grants in part and denies in part the federal defendants' motions, and grants the private defendants' motions.

BACKGROUND
I. The National Energy Policy Development Group

On January 29, 2001, President George W. Bush issued a Memorandum establishing the National Energy Policy Development Group. See Sierra Club Compl. at ¶ 16; Defs.' Mem. of Points & Authorities in Support of Defs.' Mot. to Dismiss filed on 3/8/2002, Attach. A ("Bush Mem."). The Presidential Memorandum mandated that the NEPDG was to be established within the Executive Office of the President and was tasked with developing a national energy plan. Id. The mission of the NEPDG was to "develop a national energy policy designed to help the private sector, and as necessary and appropriate Federal, State, and local governments, promote dependable, affordable, and environmentally sound production and distribution of energy." Id. The expressly delineated functions of the NEPDG were to gather information, deliberate, and make policy recommendations to the President. Id. The President assigned the NEDPG the task of submitting reports to the President on the difficulties in ensuring the country's energy needs and setting forth a recommended national energy policy consistent with the group's mission. Id. The NEPDG was given a limited duration and was authorized to act only through the end of the 2001 fiscal year. Id.

Vice President Cheney was tasked with directing the group, presiding at meetings, and establishing any subordinate groups to assist the NEPDG in its work. Id. The memorandum appointed the following individuals as members of the group: Vice President Cheney, the Secretary of the Treasury, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Transportation, the Secretary of Energy, the Director of the Federal Emergency Management Agency, the Administrator of the Environmental Protection Agency, the Assistant to the President and Deputy Chief of Staff for Policy, the Assistant to the President for Economic Policy, and the Assistant to the President for Intergovernmental Affairs. Id. The memorandum also stated that the Vice President could also invite, when appropriate, the Chairman of the Federal Energy Regulatory Commission to participate, as well as the Secretary of State, and "other officers of the Federal Government." Id. Funding and support staff were to be provided by the Department of Energy ("DOE"), and if necessary, by the National Economic Council and other appropriations available to the President.

On May 16, 2001 the NEPDG issued a public report that recommended a set of policies in the form of administrative actions and proposed legislation. See "Reliable, Affordable, and Environmentally Sound Energy for America's Future," Report of the National Energy Policy Development Group, available at www.whitehouse.gov/energy/National-Energy-Policy.pdf. That report was approved by the President as the National Energy Policy. Id. The authority for the NEPDG terminated at the end of the 2001 fiscal year, September 30, 2001. See Bush Mem. at 2.

As alleged in Judicial Watch's Complaint, from the start, the NEDPG gained the attention of the national media. In particular, the public demand for information about the energy policy development process and identity of the participants in that process has been great. That attention has only intensified with the recent controversy over the highly publicized bankruptcy of the Enron Corporation and allegations of contacts between former Enron Chief Executive Officer Kenneth Lay and the NEDPG. Both plaintiffs allege that private individuals and corporations had access to the NEPDG and participated as members of the NEPDG. Sierra Club also alleges that Sub-Groups of the NEPDG were created, which also had private individual members. Both plaintiffs made requests on behalf of their members for information about the NEPDG and had those requests denied by defendants.

II. Procedural History of the Judicial Watch and Sierra Club Lawsuits

On June 25, 2001, plaintiff Judicial Watch wrote to Vice President Cheney expressing its opinion that the NEDPG was required to comply with FACA, asking to attend all future NEPDG meetings, and requesting copies of minutes and other documents under FACA and FOIA. Judicial Watch is a self-described non-profit public interest law firm the mission of which includes promoting open government. The Office of the Vice President responded by letter on July 5, 2001 denying Judicial Watch's request and informing Judicial Watch that the NEPDG was not subject to either FACA or FOIA.

On July 16, 2001, Judicial Watch filed this lawsuit. Judicial Watch initially sued only the NEDPG, alleging violations of FACA and FOIA. After receiving several extensions of time to file a responsive pleading from this Court, on October 17, 2001, defendant NEPDG moved to dismiss. Defendant NEPDG originally argued that Judicial Watch's complaint failed to state a claim under FACA because the NEPDG consisted solely of federal officials, and that it would violate Article II of the Constitution to apply FACA to this group.

On January 31, 2002, this Court issued an Order setting forth constitutional issues to be briefed in advance of a hearing on the NEPDG's motion to dismiss. That briefing was completed on February 11, 2002. On February 12, 2002, this Court held a hearing at which the Court discussed with government's counsel several problems with the briefs filed by the government in this case. First, although moving to dismiss the complaint, the government had attached and relied on evidence outside the Complaint to support its arguments. This Court inquired why it should not convert the government's motion to a motion for summary judgment pursuant to Federal Rules of Procedure 12 and 56 and proceed immediately to discovery. Furthermore the Court discussed several serious deficiencies in the legal arguments raised by the government, particularly the government's failure to cite controlling adverse authority from the D.C. Circuit on the issue of mootness, despite government's counsel having also been counsel in those cases. In addition, the Court discussed what appeared to be government counsel's mischaracterization of Supreme Court precedent on the constitutional separation of powers issue. Defense counsel conceded that it had argued for the application of a constitutional standard that did not reflect controlling law without informing the Court that it was doing so. See Tr. 2/12/2002 at 33:17 - 34:1; 35:8 - 35:23; 36:15 - 38:7; 38:20 - 39:1; 39:9 - 40:16.

At that hearing, government's counsel admitted to this Court that the briefs submitted did not represent the government's best efforts, and requested further opportunity to research and brief the important issues raised by this case. Plaintiff also requested the opportunity to amend its complaint to include additional defendants, in light of arguments made by the government with respect to the termination of the sole defendant NEPDG. Despite the serious inadequacies in the government's briefing to date, the Court found that it was in the interest of justice to allow the plaintiff to amend its complaint and the defendant to re-brief its motion to dismiss.

Judicial Watch filed its First Amended Complaint on February 15, 2002, naming Vice President...

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