IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

 

JUDICIAL WATCH, INC.

501 School Street, S.W., Suite 725

Washington, DC 20024

 

Plaintiff,

 

v.

 

 

NATIONAL ENERGY POLICY DEVELOPMENT GROUP

Office of the Vice President

Eisenhower Executive Office Building

Washington, DC 20501

 

Defendant.

 

 

 

 

 

 

 

 

Civil Action No. 01-1530 (EGS)

 

 

COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF

 

 Plaintiff, Judicial Watch, Inc., hereby files this complaint for compliance with the Federal Advisory Committee Act, 5 U.S.C. App. 2 (“FACA”), and the Freedom of Information Act, 5 U.S.C. § 552 et seq. (“FOIA”).  As grounds therefore, Plaintiff respectfully alleges as follows:

JURISDICTION AND VENUE

1.            This court has jurisdiction over this action pursuant to 28 U.S.C. § 1346(a)(2) (United States as defendant), and 5 U.S.C. § 552(a)(4)(B) (FOIA). 

2.            Venue is proper in this district pursuant to 5 U.S.C. § 552(a)(4)(B). 

       PARTIES

3.            Plaintiff, whose principal place of business is 501 School Street, S.W., Suite 725, Washington, D.C. 20024,  is organized as a non-profit corporation under the laws of the District of Columbia.  Plaintiff, who requested certain documents pursuant to the FACA and the FOIA, intends to disseminate the requested information and documents to its supporters and benefactors, government officials, appropriate news media, and to the American public at large. The information, access, and documents Plaintiff seeks are likely to contribute significantly to the public’s understanding of the operations and activities of Defendant National Energy Policy Development Group.  Plaintiff is empowered to undertake educational and other programs to promote and protect the public interest in connection with this and other matters.

4.           Defendant National Energy Policy Development Group (“NEPDG”) is an agency and entity of the United States Government.  Defendant NEPDG was created by Vice-President Cheney, at the direction of President George W. Bush, to develop a national energy plan. Defendant NEPDG has its principal place of business in Washington, DC.  Defendant NEPDG has possession of the information and documents to which Plaintiff seeks access.

FACTS

5.             Recent press reports have detailed the operations and staffing of the NEPDG. (See Plaintiff’s FOIA request dated June 25, 2001 attached as Exhibit 1).  It is clear, based on reports of closed-door meetings with private energy industry persons and lobbyists and the political appointments of energy lobbyists and attorneys to senior departmental positions within the government by the Bush-Cheney Administration, the concurrent ownership of shares of stock in energy industry enterprises by key administration and White House officials and personnel, official statements by Administration spokesmen, press reports concerning the activities of energy industry lobbying organizations, as well as other documentation obtained under the FOIA and otherwise, that the NEPDG is tantamount to and has and is functioning as a federal advisory committee as defined in the FACA. 5 U.S.C. App. 2.  As such, the NEPDG must file a charter, must allow input from interested persons, must comply with the FOIA and the Government in the Sunshine Act, must publish notice of its meetings in the Federal Register, and must have a board that is fairly balanced in terms of the points of view represented on the Committee, among other requirements of FACA.  See generally 5 U.S.C. App. 2.

6.             Plaintiff filed its June 25, 2001 FACA and FOIA request, in part, to obtain access to and information regarding the meetings of Defendant NEPDG. Among other matters, Plaintiff was particularly concerned about the effect of special energy interests in formulating the Bush-Cheney Administration energy policy, as well as the appointment of key American Petroleum Institute, (including other energy trade organizations) lobbyists, attorneys, and leaders, such as J. Steven Griles and Thomas Sansonetti, to senior Administration posts with authority bearing directly on the energy policies they represented in a private business capacity. See Exh. 1--Plaintiff’s FOIA request at 2.

7.             Individuals representing special energy interests, who donated approximately $22.5 million into the Bush-Cheney 2000 presidential election campaign, have enjoyed nearly unfettered access to NEPDG and even Vice-President Cheney and President Bush himself.  For example, Thomas Kuhn, a leading Bush fundraiser and president of the Edison Electric Institute, met with Vice-President Cheney.  Kenneth Lay, the CEO of Enron, and a friend of President Bush recently had a dinner meeting with the President. See Howard Fineman and Michael Isikoff, “Big Energy at the Table,” Newsweek, May 14, 2001, at 18, attached to Exh. 1. Such close contact by energy executives with these high ranking government officials creates the appearance that America’s energy policy is subject to advice, in secret, by large energy interests, who are political campaign contributors.

8.             The appearance of favoritism and access shown to these energy executives stands in stark contrast to the access the Bush-Cheney administration accorded to other groups who thus far have received only a single mass meeting with lower level NEPDG staffers. Id.

9.             Recent history has unfortunately seen several ethical lapses concerning conflicts of interest in The White House. For example, in Association of American Physician and Surgeons, Inc., v. Hillary Rodham Clinton, et al., 989 F. Supp. 8 (D.D.C. 1997), The White House was sanctioned for, in part, failing to comply with discovery requests concerning the applicability of the FACA. In light of this history, Plaintiff believes it is particularly in the public interest for the Bush-Cheney Administration and Defendant NEPDG to avoid even an appearance of a possible conflict of interest.       

10.            Consistent with Plaintiff’s assertion that the NEPDG is a Committee subject to the  FACA, Plaintiff requested, under the provisions of the FOIA, 5 U.S.C. 552, and its regulations, copies of all minutes and final decision documents of NEPDG meetings from January 20, 2001 to the present, as well as a listing, including addresses, of all persons and entities that participated in NEPDG meetings, either directly or indirectly through agents and/or intermediaries.  Under FACA, Plaintiff also sought to attend all future meetings of the NEPDG Committee and to be provided with future meeting schedules and contact information so that representatives of Plaintiff could attend these meetings.  Plaintiff’s request was denied in its entirety on July 5, 2001. Plaintiff also sought information and documentation about past NEPDG meetings. See Exh. 1--Plaintiff’s FOIA Request at 2.


11.             The General Accounting Office (“GAO”),  the investigative arm of Congress, has also requested that Defendant NEPDG disclose the names of individuals who met with Defendant NEPDG, but has thus far been stonewalled in its efforts. See  Joseph Kahn, “Cheney Withholds List of Those Who Spoke to Energy Panel,” The New York Times, June 26, 2001 at A17; Express Wire Services, “Cheney Won’t Give Up Names,” http://www.nydailynews.com/2001-06-26/News_and_Views/Express_Edition/a-116273.asp, June 26, 2001; Scott Lindlaw, “Congress Demands List of Participants in Cheney Energy Meetings,” AP, June 25, 2001; attached as Exhibit 2.  The GAO after several weeks of making requests, finally received some documents regarding Defendant NEPDG’s finances, but incredibly, Defendant NEPDG has, as of July 13, 2001, failed to provide a full accounting of the individuals who met with Defendant NEPDG to the GAO, Plaintiff, or to the public.

COUNT I--VIOLATION OF THE FEDERAL ADVISORY COMMITTEE ACT

12.             Plaintiff incorporates by reference the allegations contained in paragraphs 1-11 as if fully set forth herein.

13.             The NEPDG is a federal advisory committee as defined in 5 U.S.C. App.2, et seq.  (FACA), and as such is required to comply with all provisions of that law, including, but not limited to, filing a charter, allowing interested persons--such as Plaintiff--to attend and have input at meetings of the NEPDG, producing documents and other things and having open meetings in accordance with 5 U.S.C. 552 et seq., (FOIA), publishing notice of all future meetings in the federal register, and having a board that is fairly balanced in terms of the points of view represented.

14.             Plaintiff has made a request to the NEPDG that representatives of Plaintiff be allowed to attend and participate in meetings of the NEPDG, that they be given copies of certain NEPDG documents, and the NEPDG appoint at least one person with a different point of view, among other matters. See Exh. 1.

15.            Defendant NEPDG denied Plaintiff’s request by letter dated July 5, 2001. See Exhibit 3.

16.             The failure of Defendant NEPDG to comply with the FACA has harmed Plaintiff in that Plaintiff has as one of its primary functions the monitoring and safeguarding of the public trust. The activities of the NEPDG in this case have deprived Plaintiff of its right, granted by the FACA, to participate in meetings held by the NEPDG, to have advance notice of those meetings, to obtain documents generated by the NEPDG, and to have a voice in the affairs of the NEPDG. The acts of Defendant NEPDG thus frustrate Plaintiff’s ability to effectively carry out its purpose of promoting and protecting justice and social welfare, including, among other things, preventing abuse and violation of the public trust by federal officers, officials, employees, agents, and/or persons acting in concert with them.

17.             As an interested party and a representative of the public, Plaintiff has been and continues to be damaged by the operations of the NEPDG. Public confidence in the integrity of the Presidency and the executive branch as a whole has been and will be harmed by the appearance that the Vice-President and the Bush Administration as a whole are under the influence of a select few members of major oil and other energy producing corporations, many of whom contributed heavily to the Bush-Cheney Administration in the 2000 Presidential election cycle. Members of Defendant NEPDG also gain influence or favor with the executive branch to the detriment of others who do not participate in the NEPDG.

18.             Plaintiff will continue to suffer permanent and irreparable injury unless operation of the NEPDG is brought into compliance with the provisions of the FACA.

WHEREFORE, Plaintiff prays: (1) that Defendant NEPDG be found in violation of the FACA and that Defendant be enjoined, pursuant to Rule 65 of the Federal Rules of Civil Procedure, from holding meetings while it continues to be in violation of the FACA; (2) that, pursuant to 28 U.S.C. §1361 and other applicable laws, a writ of mandamus issue compelling Defendant NEPDG to comply with the FACA; (3) that Defendant NEPDG be ordered to disclose and provide to Plaintiff the information and documents requested by Plaintiff’s FOIA request; and (4) that Plaintiff be awarded the attorneys fees and costs of bringing this suit, as well as any and all other relief the Court deems proper.


COUNT II--VIOLATION OF THE FREEDOM OF INFORMATION ACT

19.             Plaintiff incorporates by reference the allegations contained in paragraphs 1-18 as if fully set forth herein.

20.            Plaintiff filed with Defendant on June 25, 2001 via facsimile and on June 26, 2001 via certified  mail, a FOIA request (see Exh. 1) in the form of a letter to Vice President Richard B. Cheney, requesting access to certain records under FOIA.  Access was requested to “copies of all minutes and final decision documents of NEPDG meetings from January 20, 2001 to the present, as well as a listing (including addresses) of all persons and entities that participated in NEPDG meetings, either directly or indirectly through agents and/or intermediaries,” among other items.

21.             By letter dated July 5, 2001, Defendant denied Plaintiff’s request. Exh. 3.

22.            Pursuant to 5 U.S.C. § 552(a)(6)(C) and 5 U.S.C. § 552(a)(6)(E)(ii)(I), Plaintiff shall be deemed to have exhausted its administrative remedies with respect to its request to Defendant.

23.            Pursuant to 5 U.S.C. § 552(a)(3), Plaintiff has a right of access to the information and  documents requested in its FOIA request, and Defendant has no legal basis for refusing to disclose this information and these documents to Plaintiff.

WHEREFORE, Plaintiff prays that this Court: (1) declare that Defendant’s refusal to disclose the information and documents requested by Plaintiff is unlawful; (2) order Defendant to make the requested information and documents available to Plaintiff; (3) grant Plaintiff’s request for a fee waiver; (4) award Plaintiff its costs and reasonable attorneys’ fees in this action; and (5) grant such other and further relief as the Court may deem just and proper.

 

 

 

 

 

Respectfully submitted,

 

JUDICIAL WATCH, INC.

 

 

___________________________

Larry Klayman, Esq.

D.C. Bar No. 334581

501 School Street, S.W., Suite 725

Washington, DC 20024

(202) 646-5172

 

Attorneys for Plaintiff