No. 03-475: Cheney v. U.S. District Court

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No. 03-475

In the Supreme Court of the United States RICHARD B. CHENEY, VICE PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COUMBIA JOINT APPENDIX VOLUME I THEODORE B. OLSON Solicitor General Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 Counsel of Record for Petitioner ALAN B. MORRISON Public Citizen Litigation Group 1600 20th Street, N.W. Washington, D.C. 20009 JAMES F. PETERSON Judicial Watch, Inc. 501 School Street, N.W. Suite 500 Washington, D.C. 20024 Counsel of Record for Respondent PETITION FOR WRIT OF CERTIORARI FILED: SEPT. 30, 2003 CERTIORARI GRANTED: DEC. 15, 2003 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (WASHINGTON, DC) Nos. 01:01-cv-01530-EGS JUDICAL WATCH, INC., ET AL , PLAINTIFF v. NATIONAL ENERGY POLICY DEVELOPMENT GROUP ET AL, DEFENDANT Filed: July 16, 2001 DOCKET ENTRIES _______________________________________________ _ DOCKET DATE NUMBER PROCEEDINGS 7/16/01 1 COMPLAINT against NATIONAL ENERGY POLICY DEVELOPMENT GROUP (Filing fee $150 ). Filed by JUDICAL WATCH, INC.,. (mjk, ) (Entered: 07/25/2001) * * * * * 2/15/02 24 AMENDED COMPLAINT. Filed by JUDICAL WATCH, INC.,. (Orfanedes, Paul) (Entered: 02/15/2002) * * * * * _______________________________________________ _ DOCKET DATE NUMBER PROCEEDINGS 4/5/02 54 ORDER consolidating Civil Action No. 01-1530 (EGS) and Civil Action No. 02-631 (EGS) and ordering all future pleadings to be filed under docket number 01-1530 (EGS).Signed by Judge Emmet G. Sullivan on 4/5/2002. (lcegs2, ) (Entered: 04/05/2002) * * * * * 05/28/02 80 AMENDED COMPLAINT Second. Filed by JUDICAL WATCH, INC.,. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11) (Orfanedes, Paul) (Entered: 05/28/2002) * * * * * 7/11/02 92 MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on 7/11/2002. (lcegs2,) (Entered: 07/11/2002) _______________________________________________ _ DOCKET DATE NUMBER PROCEEDINGS 7/11/02 93 ORDER. Signed by Judge Emmet G. Sullivan on 7/11/2002. (lcegs2, ) (Entered: 07/11/2002) 7/19/02 94 STATUS REPORT - DISCOVERY PLAN by SIERRA CLUB. (Attachments: # 1 Exhibit A # 2 Exhibit B) (Gallagher, Patrick) (Entered: 07/19/2002) * * * * * 8/2/02 101 ORDER approving plaintiffs' proposed discovery plan and scheduling Status Conference for 9/13/2002 10:00 AM in Courtroom 1. Signed by Judge Emmet G. Sullivan on 8/2/2002. (lcegs2, ) (Entered: 08/02/2002) * * * * * 9/3/02 120 MOTION for Protective Order by RICHARD CHENEY. (Millet, Thomas) (Entered: 09/03/2002) _______________________________________________ _ DOCKET DATE NUMBER PROCEEDINGS 9/3/02 121 MOTION for Protective Order Memorandum in support by RICHARD CHENEY. (Millet, Thomas) (Entered: 09/03/2002) 9/3/02 122 AFFIDAVIT re 120, 121 by Karen Knutsen by RICHARD CHENEY. (Millet, Thomas) (Entered: 09/03/2002) * * * * * 10/17/02 154 ORDER denying Motion for Protective Order 120, denying Motion for Protective Order 121, setting briefing schedule and hearing date for motion to stay. Signed by Judge Emmet G. Sullivan on October 17, 2002. (lcegs2) (Entered: 10/17/2002) * * * * * _______________________________________________ _ DOCKET DATE NUMBER PROCEEDINGS 10/21/02 158 MOTION to Stay Pending Appeal by Andrew Lundquist and by JOSHUA BOLTON, RICHARD CHENEY, LARRY LINDSEY, NATIONAL ENERGY POLICY DEVELOPMENT GROUP. (Paisner, Jennifer) (Entered: 10/21/2002) 10/23/02 159 MOTION for Leave to Appeal Pursuant to 28 U.S.C. sec. 1292(b) and for Expedited Consideration Of This Motion by Andrew Lundquist and by JOSHUA BOLTON, RICHARD CHENEY, LARRY LINDSEY, NATIONAL ENERGY POLICY DEVELOPMENT GROUP. (Paisner, Jennifer) (Entered: 10/23/2002) * * * * * 11/01/02 02 Minute Entry: Ruling held on 11/1/2002 before Emmet G. Sullivani; order to be issued electronically (Court Reporter Jackie Wood, Miller.) (clv,) (Entered: 11/01/2002) _______________________________________________ _ DOCKET DATE NUMBER PROCEEDINGS * * * * * 11/7/02 181 NOTICE OF APPEAL re order of 11/1/02 [172], order of 10/17/02 135, and order of 9/9/02 154 by RICHARD CHENEY. Filing fee (government waived). counsel notified. (cdw,) Modified on 11/14/2002 (td,). (Entered: 11/12/2002) 11/13/02 182 ORDER on Defendants' Motion to Stay 158. Signed by Judge Emmet G. Sullivan on November 13, 2002. (lcegs2) (Entered: 11/13/2002) * * * * * 11/27/02 190 ORDER denying 159 160 Motion for Leave to Appeal pursuant to 28 U.S.C. 1292(b). Signed by Judge Emmet G. Sullivan on November 26, 2002. (lcegs2) (Entered: 11/27/2002) _______________________________________________ _ DOCKET DATE NUMBER PROCEEDINGS * * * * * 9/30/03 199 ORDER denying without prejudice 143 Motion to Compel, denying without prejudice 144 Motion to Compel, and denying without prejudice 145 Motion to Compel, and administratively removing cases from the active calendar of the Court. Signed by Judge Emmet G. Sullivan on September 30, 2003. (lcegs2) (Entered: 09/30/2003) * * * * * UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (WASHINGTON, DC) No. 01:02-cv-0631-EGS SIERRA CLUB , PLAINTIFF v. RICHARD CHENEY, VICE PRESIDENT, DEFENDANT Filed: April 4, 2002 DOCKET ENTRIES _______________________________________________ _ DOCKET DATE NUMBER PROCEEDINGS * * * * * 4/4/02 4 COMPLAINT against all defendants ( Filing fee $0 ). Filed by SIERRA CLUB. (jeb, ) (Entered: 07/26/2002) 4/5/02 2 ORDER consolidating Civil Action No. 01-1530 (EGS) and Civil Action No. 02-631 (EGS) and ordering all future pleadings in these consolidated cases to be filed under No. 01-1530.Signed by Judge Emmet G. Sullivan on 4/5/2002. (lcegs2, ) (Entered: 04/05/2002) _______________________________________________ _ DOCKET DATE NUMBER PROCEEDINGS * * * * * 11/7/02 6 NOTICE OF APPEAL re orders of 11/13/02 182, 10/17/02 154 and 9/9/02 135 filed in 01cv1530. Filing Fee: (government waived). (td, ) (Entered: 11/14/2002) 11/27/02 7 ORDER denying defendants' motion to certify pursuant to 28 U.S.C. 1292(b). Signed by Judge Emmet G. Sullivan on November 26, 2002. (lcegs2) (Entered: 11/27/2002) * * * * * UNITED STATES COURT APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Nos. 02-5355 and 02-5356 SIERRA CLUB, PLAINTIFF -APPELLEE v. RICHARD B. CHENEY, VICE PRESIDENT OF THE UNITED STATES, DEFENDANT-APPELLANT NATIONAL ENERGY POLICY DEVELOPMENT GROUP; ANDREW LUNDQUIST, EXECUTIVE DIRECTOR; SPENCER ABRAHAM, SECRETARY FOR DEPARTMENT OF ENERGY; DONALD L. EVANS, SECRETARY OF COMMERCE; GALE A. NORTON, SECRETARY OF INTERIOR; ANN M. VENEMAN, SECRETARY OF AGRICULTURE; JOHN W. SNOW, SECRETARY OF TREASURY; NORMAN Y. MINETA, SECRETARY OF TRANSPORTATION; CHRISTINE TODD WHITMAN, ADMINISTRATOR OF ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS -APPELLEES JUDICIAL WATCH, INC., PLAINTIFF-APPELLEE v. NATIONAL ENERGY POLICY DEVELOPMENT GROUP, DEFENDANT -APPELLEE RICHARD B. CHENEY, VICE PRESIDENT OF THE UNITED STATES, DEFENDANT -APPELLANT JOHN W. SNOW, SECRETARY OF THE TREASURY; GALE A. NORTON, SECRETARY OF THE INTERIOR; ANN M. VENEMAN, SECRETARY OF AGRICULTURE; DONALD L. EVANS, SECRETARY OF COMMERCE; NORMAN Y. MINETA, SECRETARY OF TRANSPORTATION; SPENCER ABRAHAM, SECRETARY OF ENERGY; COLIN L. POWELL, SECRETARY OF STATE; JOSEPH M. ALLBAUGH, DIRECTOR, FEDERAL EMERGENCY MANAGEMENT AGENCY; CHRISTINE TODD WHITMAN, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY; PAT WOOD, III, CHAIRMAN, FEDERAL ENERGY REGULATORY COMMISSION; MITCHELL E. DANIELS, JR., DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET; JOSHUA BOLTON, ASSISTANT TO THE PRESIDENT AND DEPUTY CHIEF OF STAFF FOR POLICY; LARRY LINDSEY, ASSISTANT TO THE PRESIDENT FOR ECONOMIC POLICY; JOHN D. ASHCROFT, U.S. ATTORNEY GENERAL, DEFENDANTS -APPELLEES Filed: November 13, 2002 DOCKET ENTRIES _________________________________________________ DATE PROCEEDINGS _________________________________________________ 11/13/02 CIVIL-US CASE docketed. Notice of Appeal filed by Appellant Richard B. Cheney. [713654-1] (sha) [02-5356] _________________________________________________ DATE PROCEEDINGS _________________________________________________ 11/13/02 CLERK'S ORDER filed [713686] to consolidate cases [713686-1]. [Entry Date: 11/14/02] [02-5355, 02-5356] (sha) [02-5355 02-5356] * * * * * 12/6/02 PER CURIAM ORDER filed, considering the motion for stay pending appeal [713212]. It is ORDERED, on the court's own motion, that case Nos. 02-5354, 02-5355, and 02-5356 be consolidated [718152-1], It is FURTHER ORDERED, on the court's own motion, that the Clerk schedule these cases for oral argument in the normal course [718152-2]. The cases will be considered on the basis of the pleadings previously filed by the parties. It is FURTHER ORDERED, on the court's own motion, that the district court's orders under review in these actions be stayed pending further order of the court [718152-3]. The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the case and should not be construed in any way as a ruling on the merits. [SEE THE ORDER FOR MORE DETAILS] Before Judges: Edwards, Sentelle, and Tatel. [Entry Date: 12/6/02]. [02-5354, 02-5355, 02-5356] (jth) [02-5354 02-5355 02-5356] _________________________________________________ DATE PROCEEDINGS _________________________________________________ * * * * * 4/17/03 ORAL ARGUMENT HELD before Edwards, Randolph, Tatel . [02-5354, 02-5355, 02-5356] (vew) [02-5354 02-5355 02-5356] * * * * * 7/8/03 JUDGMENT dismissing the petition for mandamus and granting the motions to dismiss for the reasons in the accompanying opinion. Before Judges Edwards, Randolph, Tatel. [Entry Date: 7/8/03] [02-5354, 02-5355, 02-5356] (mcm) [02-5354 02-5355 02-5356] 7/8/03 OPINION filed [758760] (20 pgs) for the Court by JudgeTatel, CONCURRING OPINION (5 pgs) filed by Judge Edwards, DISSENTING OPINION (12 pgs ) filed by Judge Randolph [02-5354, 02-5355, 02-5356] (mcm) [02-5354 02-5355 02-5356] * * * * * _________________________________________________ DATE PROCEEDINGS _________________________________________________ 8/8/03 PETITION FOR REHEARING [765608-1], PETITION FOR REHEARING EN BANC [765608-2] in Nos. 02-5354, 02-5355, and 02-5356 (20 copies) filed by Petitioner /Appellants Richard Cheney, et al. (certificate of overnight mail service dated 8/8/03) [02-5354, 02-5355, 02-5356] (jth) [02-5354 02-5355 02-5356] * * * * * 9/10/03 PER CURIAM ORDER, En Banc, filed [771393] denying suggestion rehearing en banc [765608-2] filed by Richard B. Cheney. Before Judges Ginsburg, Edwards, Sentelle,* Henderson,** Randolph,* Rogers, Tatel, Garland, Roberts.* [Entry Date: 9/10/03] [02-5354, 02-5355, 02-5356] (*Circuit Judges Sentelle, Randolph and Roberts would grant the petition for rehearing en banc) (**Circuit Judge Henderson did not participate in this matter) (mcm) [02-5354 02-5355 02-5356] 9/10/03 PER CURIAM ORDER filed [771397] denying petition rehearing [765608-1] filed by Richard B. Cheney. (Mandate may issue or after 9/18/03) Before Judges Edwards, Randolph,* Tatel. (Circuit Judge Randolph would grant the petition _________________________________________________ DATE PROCEEDINGS _________________________________________________ for rehearing) [Entry Date: 9/10/03] [02-5354, 02-5355, 02-5356] (mcm) [02-5354 02-5355 02-5356] * * * * * 9/30/03 PER CURIAM ORDER (w/ attached statement) filed [775055] denying motion stay mandate [772667-1] filed by Richard B. Cheney, et al. (Mandate to issue on 10/7/03 in 02-5355, in 02-5356) Before Judges Edwards, Randolph,* Tatel. (Circuit Judge Randolph would grant the motion to stay the mandate) (A separate statement of Circuit Judge Edwards, concurring in the denial of the motion to stay the mandate, in which Circuit Judge Tatel joins, is attached) [Entry Date: 9/30/03] [02-5355, 02-5366] (mcm) [02-5355 02-5356] * * * * * 10/29/03 MANDATE ISSUED to Clerk, District Court [781556-1] [02-5355, 02-5356] (mcm) [02-5355 02-5356] * * * * * IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Civil Action No. 01-1530 (EGS) JUDICIAL WATCH, INC., PLAINTIFF v. NATIONAL ENERGY POLICY DEVELOPMENT GROUP; THE HON. RICHARD B. CHENEY, VICE PRESIDENT OF THE UNITED STATES; PAUL O' NEILL, SECRETARY OF THE TREASURY; GAIL NORTON, SECRETARY OF THE INTERIOR; ANN M. VENEMAN, SECRETARY OF AGRICULTURE; DONALD EVANS, SECRETARY OF COMMERCE, NORMAN MINETA, SECRETARY OF TRANSPORTATION; SPENCER ABRAHAM, SECRETARY OF ENERGY; COLIN POWELL, SECRETARY OF STATE; JOSEPH M. ALLBAUGH, DIRECTOR, FEDERAL EMERGENCY, MANAGEMENT AGENCY; CHRISTINE TODD WHITMAN, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY; PATRICK H. WOOD, III, CHAIRMAN, FEDERAL ENERGY REGULATORY, COMMISSION; MITCHELL E. DANIELS, JR., DIRECTOR, OFFICE OF MANAGEMENT AND BUDGET; JOSHUA BOLTON, ASSISTANT TO THE PRESIDENT AND DEPUTY CHIEF OF STAFF FOR POLICY; LARRY LINDSEY, ASSISTANT TO THE PRESIDENT FOR ECONOMIC POLICY; MARK RACICOT; HALEY BARBOUR; KENNETH LAY; THOMAS KUHN; JOHN AND JANE DOE NOS. 1-99, CERTAIN UNKNOWN NON-FEDERAL EMPLOYEES, AND/OR MEMBERS OF THE NATIONAL ENERGY POLICY DEVELOPMENT GROUP, DEFENDANTS SECOND AMENDED COMPLAINTPlaintiff, Judicial Watch, Inc., pursuant to the Court's Order of May 23, 2002, hereby files this second amended complaint for compliance with the Federal Advisory Committee Act, 5 U.S.C. 5 App. 2 ("FACA"), the Administrative Procedure Act, 5 U.S.C. § 701 et seq. ("APA"), and the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"). Plaintiff also seeks a writ of mandamus and a declaratory judgment pursuant to 28 U.S.C. §1361 and 28 U.S.C. §§ 2201 and 2202, respectively. As grounds therefore, Plaintiff Judicial Watch, Inc., ("JW") respectfully alleges as follows:

JURISDICTION AND VENUE

1. This court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 (action arising under the laws of the United States), 28 U.S.C. § 1346(a)(2) (United States as defendant), 5 U.S.C. § 552(a)(4)(B) (FOIA), 28 U.S.C. §1361 (mandamus), 5 U.S.C. § 701 (APA).

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, SW, Suite 725, Washington, D.C. 20024, is organized as a non-profit corporation under the laws of the District of Columbia. Plaintiff undertakes educational and other programs to promote and protect the public interest in matters of public concern. To this end, Plaintiff requested certain documents pursuant to the FACA and the FOIA and 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 Defendants.

4. Defendant National Energy Policy Development Group ("NEPDG") is an agency and entity of the United States Government. Defendant NEPDG was created by President George W. Bush and headed by Vice President Richard B. Cheney 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.

5. Defendant Richard B. Cheney ("Cheney") is the Vice President of the United States. Defendant Cheney is the director of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

6. Defendant Paul O'Neill ("O'Neill") is Secretary of the Treasury. Defendant O'Neill is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

7. Defendant Gail Norton ("Norton") is Secretary of the Interior. Defendant Norton is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

8. Defendant Ann M. Veneman ("Veneman") is Secretary of Agriculture. Defendant Veneman is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

9. Defendant Donald Evans ("Evans") is Secretary of Commerce. Defendant Evans is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

10. Defendant Norman Mineta ("Mineta") is Secretary of Transportation. Defendant Mineta is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

11. Defendant Spencer Abraham ("Abraham") is Secretary of Energy. Defendant Abraham is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

12. Defendant Colin Powell ("Powell") is Secretary of State. Defendant Powell is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

13. Defendant Joseph M. Allbaugh ("Allbaugh") is the Director of the Federal Emergency Management Agency. Defendant Allbaugh is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

14. Christine Todd Whitman ("Whitman") is the Administrator of the Environmental Protection Agency. Defendant Whitman is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

15. Patrick H. Wood, III, ("Wood") is the Chairman of the Federal Energy Regulatory Commission. Defendant Wood is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

16. Mitchell E. Daniels, Jr., ("Daniels") is the Director of the Office of Management and Budget. Defendant Daniels is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

17. Joshua Bolton ("Bolton") is Assistant to the President and Deputy Chief of Staff for Policy. Defendant Bolton is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

18. Larry Lindsey ("Lindsey") is Assistant to the President for Economic Policy. Defendant Lindsey is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

19. Mark Racicot currently is Chairman of the Republican National Committee, 310 First Street, S.E. , Washington, DC 20003 and has served as a lobbyist for Enron Corporation. On information and belief, Defendant Racicot is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

20. Haley Barbour is a lobbyist for electric utilities at Barbour, Griffith & Rodgers, 1275 Pennsylvania Avenue, N.W., Washington, DC 20004. Defendant Barbour formerly served as Chairman of the Republican National Committee. On information and belief, Defendant Barbour is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

21. Kenneth Lay is the former Chairman of Enron Corporation ("Enron"), of Houston, Texas. On information and belief, Defendant Lay is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

22. Thomas Kuhn is the President of the Edison Electric Institute, 701 Pennsylvania Avenue, N.W., Washington, DC 20004. On information and belief, Defendant Kuhn is a member of NEPDG and has possession of the information and documents to which Plaintiff seeks access.

23. John and Jane Does Nos. 1-99 are currently unknown, non-federal employees who are members of the NEPDG and have possession of the information and documents to which Plaintiff seeks access.

STATEMENT OF FACTS

24. On January 29, 2001, President Bush established the NEPDG, whose mission was to "develop a national energy policy designed to help the private sector, and as necessary and appropriate Federal, State and local government, promote dependable, affordable, and environmentally sound promote dependable, affordable, and environmentally sound production and distribution of energy." President Bush directed the NEPDG to "gather information, deliberate, and . . . make recommendations to the President."

25. On information and belief, non-federal employees, including Thomas Kuhn, Kenneth Lay, Marc Racicot, Haley Barbour, representatives of the Clean Power Group, and other private lobbyists (John and Jane Does 1-99), regularly attended and fully participated in non-public meetings of the NEPDG as if they were members of the NEPDG, and, in fact, were members of the NEPDG.

26. Specifically, non-federal employees representing special energy interests, who donated approximately $22.5 million into the Bush-Cheney 2000 presidential election campaign, have reportedly enjoyed nearly unfettered access to and close contact with the NEPDG, Vice President Cheney, and even President Bush himself. Thomas Kuhn, a leading Bush fundraiser and president of the Edison Electric Institute, reportedly met with Vice President Cheney. Kenneth Lay ("Lay"), the former CEO of the now bankrupt Enron and a friend of President Bush, had a dinner meeting with the President. See Howard Fineman and Michael Isikoff, "Big Energy at the Table," Newsweek, May 14, 2001, attached hereto as Exhibit 1 at 18.

27. In March 2001, Lay reportedly also met with Defendant Cheney to discuss energy policy. See Howard Fineman and Michael Isikoff, "A New Capitol Clash," Newsweek, February 11, 2002, attached as Exhibit 2. Bush administration officials subsequently admitted to five additional meetings between Enron officials and Vice President Cheney's staff in March 2001. Id. In addition to these six meetings in March 2001, a top aide to Defendant Cheney, Andrew Lundquist, met with members of the "Clean Power Group" -a coalition of five power companies, including Enron. Id.

28. In April 2001, Lay also reportedly met with Defendant Cheney to discuss the Bush Administration's response to the California energy crisis. See David Lazarus, "Memo Details Cheney-Enron Links," San Francisco Chronicle, January 30, 2002, attached as Exhibit 3. During this meeting, Lay reportedly handed Cheney three page memorandum urging federal authorities to refrain from imposing price caps or other measures to stabilize electricity prices. Id. Recommendations from this memorandum subsequently became a part of the NEPDG's proposed energy plan. Id.

29. On May 3, 2001, former Montana Governor Marc Racicot and former Republican Party Chairman Haley Barbour, both of whom serve or have served as lobbyists for electric utilities, attended a NEPDG meeting chaired by Vice President Cheney. See Michael Weisskopf and Adam Zagorin, "Getting the Ear of Dick Cheney," Time, February 11, 2002, attached as Exhibit 4. At that time, Barbour also was involved heavily in fundrasing activities on behalf of President Bush. Id. Racicot currently is the Chairman of the Republican Party.

30. On May 4, 2001, David S. Addington, Counsel to Vice President Cheney, admitted in a letter to Reps. W.J. "Billy" Tauzin and Rep. John Dingell of the House Committee on Energy and Commerce, and Reps. Dan Burton and Henry Waxman of the Committee on Government Reform, that during so-called "stakeholder meetings," staff members of NEPDG held "have met with many individuals who are not federal employees to gather information relevant" to the NEPDG's work. See May 4, 2001 Letter from David S. Addington, attached as Exhibit 5 (emphasis added). All of the NEPDG so-called "stake-holder meetings" with non-governmental parties are covered by the FACA and the FOIA.

31. Vice President Cheney has been evasive in describing the staffing and operations of the NEPDG. During a July 25, 2001 on the ABC television program "Nightline," Vice President Cheney admitted that the NEPDG met with members of private organizations and/or companies regarding energy policy, but failed to identify the names of those individuals:

[TED] KOPPEL: You've made reference to the enormous amount of experience that you bring to this job. So, I have to ask you, as someone who knows Washington as well as you do, and who knows that the one thing that drives Congress crazy, the one thing that drives the press crazy, the one thing that is always going to be trouble is secrecy.

Vice Pres. CHENEY: Mm-hmm.

KOPPEL: Well, why did you run your-your energy study, your energy meetings the way that you did? Why to this day haven't you revealed who participated in those meetings and what they had to tell you?

Vice Pres. CHENEY: Well, that's simply not accurate, Ted. There's been this charge that it was run in secret. But it was run the same way we do everything else with respect to policy. Same way we make economic policy or education policy. It was a group of Cabinet officials and agency heads. This is the report we produced. We published thousands of them. It has not been secret. The folks that were responsible for putting it together are all listed right up here in the front. It's the Cabinet and the agency heads. . .

KOPPEL: What about the experts that you consulted? I mean, you-you know . . .

Vice Pres. CHENEY: But we didn't-I mean, there's-there was this allegation that somehow we did what the Clintons did back in '93 on health. We did not.

KOPPEL: Exactly.

Vice Pres. CHENEY: We were very sensitive to that and very careful of it. When you. . .

KOPPEL: Tell me where the-tell me where the difference is?

Vice Pres. CHENEY: Well, the-it's when you bring in . . . KOPPEL: What was different about what you did and what Hillary Clinton . . .

Vice Pres. CHENEY: . . . outsiders and incorporate them in the policy-making process, that then certain requirements with respect to federal advisory committees kicks in and certain requirements have to be met. We didn't do that. We did this exactly the same way, for example, that we put together the economic policy or tax policy. And there's been this claim that it was done in secret, but it wasn't. It wasn't anymore secret than anything else we do.

KOPPEL: The inference that people have drawn-but, before I get to that, let me just ask you, what-what is different about what Hillary Clinton did with the health program from what you folks did with the energy policy?

Vice Pres. CHENEY: She brought in outsiders, people who were not government employees, who were not full-time. . .

KOPPEL: You didn't do that?

Vice Pres. CHENEY: No.

KOPPEL: No outsiders?

Vice Pres. CHENEY: Well, not as part of the deliberating pro-process.

KOPPEL: Well . . .

Vice Pres. CHENEY: No, that's very important.

KOPPEL: . . . are you finessing that just a little bit too finely?

Vice Pres. CHENEY: No. No, you're mis-misreading what the statute says. There's a big difference. We meet all the time behind closed doors to make economic policy or to make education policy. Now, you may deal with outside groups. They may have points of view they want to represent. We heard from energy people. We heard from many environment people. We heard from consumer groups. I met with congressman and senators and governors. We heard from a broad variety of folks out there, but they were not in the meetings where we put together the policy and made recommendations to the president. That's the big difference.

KOPPEL: Isn't-isn't that a fine point?

Vice Pres. CHENEY: That's a very important point.

KOPPEL: In other words, if we-if we have one meeting here . . .

Vice Pres. CHENEY: Mm-hmm.

KOPPEL: . . .with a bunch of people, and because of your background and the president's background in the energy industry yourselves . . .

Vice Pres. CHENEY: Mm-hmm.

KOPPEL: . . . the assumption is that you did consult with a lot of your pals in the-in the energy industry. If you consult with them in this room, and then you adjourn to the next room to make policy, that-that . . .

Vice Pres. CHENEY: That's not the way it works.

KOPPEL: That satisfies the law?

Vice Pres. CHENEY: That is-that is not the way it worked. In fact, we heard from a wide variety of different groups. But we did not trigger the statute that specifically provides for how you deal with advisory committees, for formally constituted advisory committee that's making policy, like the Social Security Commission, for example. There's a classic example of a group of outside people, not full-time government employees, who are meeting to deliberate and to come up with a policy recommendation. They meet in open session. The press is present. You don't do that when you sit down, for example, with the-the secretary of the treasury and the Council of Economic Advisers and director of OMB to make major budget decisions, or make . . .

KOPPEL: But why not just take the wind out of the sails of all your critics and say, 'Here's a list of the people we consulted'?

See Transcript of ABC News: Nightline dated July 25, 2001, at 2-4 attached as Exhibit 6 (emphasis added).

32. On January 30, 2002, the General Accounting Office ("GAO") issued a decision concerning the NEPDG in which it specifically found that NEPDG had met with "selected non-governmental parties" in its efforts to develop a proposed national energy policy. See Decision of the Comptroller General Concerning NEPDG Litigation, January 30, 2002, attached as Exhibit 7.

33. 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. See Exhibit 1.

34. Recent history has unfortunately seen several ethical lapses concerning conflicts of interest in The White House and violations of the FACA. In Association of American Physicians and Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) ("AAPS"), the DC Circuit remanded the case to the district court for discovery on the issue of whether the working group of the President's Task Force on National Health Care Reform constituted an advisory committee under FACA, despite sworn claims by one of the heads of the Task Force put forth by the Clinton-Gore Justice Department that it did not so qualify. In ordering this discovery to proceed, the DC circuit stated:

We simply have insufficient material in the record to determine the character of the working group and its members . . . [A]s we have indicated, because we differ with the district court concerning the Task Force, we believe further proceedings, including expedited discovery, are necessary before the district court can confidently decide whether the working group is a FACA committee.

AAPS, 997 F. 2d at 915-916. When discovery proceeded in the district court, plaintiffs uncovered facts which conclusively showed that the working group of the Task Force did qualify as an advisory committee under the FACA. The White House was sanctioned for, in part, failing to comply with discovery requests concerning the applicability of the FACA, and for misleading the court about who was and who was not a member of former First Lady Hillary Rodham Clinton's Health Care Task Force:

The Department of Justice has a long tradition of setting the highest standards of conduct for all lawyers, and it is a sad day when this court must conclude, as did the United States Attorney in his investigation, that the Department of Justice succumbed to pressure from White House attorneys and others to provide this court with "strained interpretations" that were "ultimately unconvincing." This court goes further than the United States Attorney, however, because this court cannot agree that the Department of Justice never relied upon the "all-employee" exemption for the working group. Having been presented the "all-employee" facts in the Magaziner declaration, the Court of Appeals specifically found that defendants had made that argument. Neither the briefs on appeal, nor any transcript of the oral argument on appeal, was before this court. Yet the Department of Justice sat back and never told this court that it was not making, and had not made, such an argument, and never corrected any of the factual inaccuracies in the Magaziner declaration. The United States Attorney reported that this was a conscious decision because attorneys in the White House refused to allow any supplemental information to be provided to the court. It seems that some government officials never learn that the cover-up can be worse than the underlying conduct. Most shocking to this court, and deeply disappointing, is that the Department of Justice would participate in such conduct. This was not an issue of good faith word games being played with the court. The United States Attorney found that the most controversial sentence of the Magaziner declaration-"Only federal government employees serve as members of the interdepartmental working group"-could not be prosecuted under the perjury statute because the issue of "membership" within the working group was a fuzzy one, and no generally agreed upon "membership" criteria were ever written down. Therefore, the Magaziner declaration was actually false because of the implication of the declaration that "membership" was a meaningful concept and that one could determine who was and was not a "member" of the working group. This whole dishonest explanation was provided to this court in the Magaziner declaration on March 3, 1993, and this court holds that such dishonesty is sanctionable and was not good faith dealing with the court or plaintiffs' counsel. It was not timely corrected or supplemented, and this type of conduct is reprehensible, and the government must be held accountable for it.

AAPS, 989 F. Supp. 8, 16-17 (D.D.C. 1997). In light of this history, Plaintiff believes it is particularly in the public interest for Bush-Cheney Administration officials and the NEPDG to avoid even an appearance of a possible conflict of interest, by acknowledging the application of FACA and the FOIA to all NEPDG meetings.

35. On June 25, 2001, Plaintiff sent a letter to Vice President Cheney, pursuant to the provisions of the FOIA and the FACA, 5 U.S.C. §§ 552 and App.2, requesting copies of all minutes and final decision documents of NEPDG meetings from January 20, 2001 to that date, as well as a complete listing, including addresses, of all persons and entities that participated in NEPDG meetings, either directly or indirectly through agents and/or intermediaries. See June 25, 2001 Letter to The Hon. Richard B. Cheney, attached as Exhibit 8. Plaintiff also sought to attend all future meetings of the NEPDG pursuant to the FACA, and asked to be provided with future meeting schedules and contact information so that representatives of Plaintiff could attend these meetings. Id. Plaintiff's request was denied in its entirety on July 5, 2001. See July 5, 2001 Letter to Larry Klayman, attached as Exhibit 9.

36. GAO the investigative arm of Congress, also requested that the NEPDG disclose the names of individuals who met with the 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," June 26, 2001; Scott Lindlaw, "Congress Demands List of Participants in Cheney Energy Meetings," AP, June 25, 2001, attached collectively as Exhibit 10. After several weeks of making requests, the GAO finally received some documents regarding Defendant NEPDG's finances, but incredibly, Defendant NEPDG has, as of May 28, 2002, failed to provide a full accounting of the individuals who met with Defendant NEPDG to the GAO, Plaintiff, or to the public.

37. Along with Plaintiff, the GAO, and various members of the media, legal commentators have advocated a broad reading of the FACA's language which on its face does appear to cover a vast number of communications between agencies and non-governmental parties. In a widely cited article on the FACA, Michael H. Cardozo reasons:

In principle, any group of individuals, however selected or constituted, that considers governmental matters and furnishes views and conclusions to government officials or agencies, is a governmental advisory committee. The FACA however, is concerned only with "public advisory committees," that is groups containing at least some members who are not government employees. Thus a committee containing any number of officers of government is not covered by the Act unless its membership includes outsiders, representatives of the "private sector."

Michael H. Cardozo, "The Federal Advisory Committee Act In Operation (Administrative Law Review, Vol. 33, 3 (1981) (emphasis added). Mr. Cardozo further reasons:

A key part of the definition of "advisory committee" is the expression "established or utilized." Superficially this means that the origin of the group is not material in determining whether it is an advisory committee covered by the act. It must be a "group," however, meaning more than one person, and someone must bring them together. That act, whether done formally or informally, "establishes" the group. However the Act does not expressly require the establishment to be performed by a government official or agency. Under the strict language of the Act, even a group formed by private industry becomes an advisory committee if it is "utilized" by the president or by one or more agencies of the government.

Id. at 12-13. (Emphasis added.) Categorizing the types of advisory committees, Mr. Cardozo writes: "A committee in any of the five functional categories may be assigned an 'operational' as well as an 'advisory' responsibility. Id. at 32. Examples of the types of advisory committees include those which provide: (1) policy advice; (2) technical advice; and (3) fact finding. Id. at 33, 37, 39. (Emphasis added.)

38. On information and belief, the NEPDG still is in existence. In a January 3, 2002 letter to Rep. Henry Waxman, Counsel to the Vice President David Addington conceded that an unidentified member of NEPDG's staff had met with Enron representatives on October 10, 2001 and discussed energy policy matters. See January 3, 2002 letter from Counsel to the Vice President David Addington to Rep. Henry Waxman, attached as Exhibit 11. On information and belief, other meetings between both federal and non-federal members of the allegedly defunct NEPDG have occurred and are still occurring to this day to continue discussions on formulating a national energy policy. Id. Consequently, despite the alleged termination of Defendant NEPDG on September 30, 2001, Plaintiff's FACA and FOIA requests are not moot, and Plaintiff still has a right to the documents it has requested pursuant to the FACA and FOIA.

39. At a February 12, 2002 hearing in this matter, Defendants admitted that, despite the alleged termination of NEPDG, documents generated by the NEPDG are still in the custody of Defendant Cheney and that other NEPDG records "are within all of those eight agencies pertaining to the work of their agency heads, their agency heads' work on the committee." See Transcript of February 12, 2002 Motions Hearing at 5-6. Indeed, the Court ordered that these records be preserved. Consequently, despite the alleged termination of Defendant NEPDG, documents responsive to Plaintiff's FACA and FOIA requests obviously still exist. Plaintiff's FOIA and FACA requests are not moot, and Plaintiff still has a right to the documents it has requested pursuant to the FOIA and FACA.

COUNT I

(Violation of the Federal Advisory Committee Act)

40. Plaintiff incorporates by paragraphs 1-39 as if fully set forth herein.

41. The NEPDG is a federal advisory committee as defined under the FACA, 5 U.S.C. App. 2, 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 the FOIA, 5 U.S.C. § 552, 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.

42. 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 Exhibit 8.

43. Defendant NEPDG denied Plaintiff's request by letter dated July 5, 2001. See Exhibit 9.

44. The failure of Defendants 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 Defendants 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 Defendants have thus frustrated 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.

45. 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.

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

COUNT II

(Violation of the Freedom of Information Act)

47. Plaintiff incorporates paragraphs 1-46 as if fully set forth herein.

48. Plaintiff filed with Defendant on June 25, 2001 via facsimile and on June 26, 2001 via certified mail, a FOIA request (see Exhibit 8) 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.

49. By letter dated July 5, 2001, Defendant Cheney denied Plaintiff's request. See Exhibit 9.

50. 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.

51. 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 Defendants have no legal basis for refusing to disclose this information and these documents to Plaintiff.

COUNT III

(Violation of the Federal Advisory Committee Act/Mandamus)

52. Plaintiff incorporates paragraphs 1-51 as if fully set forth herein.

53. The Cheney Energy Task Force and Task Force Sub-Groups are advisory committees as defined under FACA.

54. The defendants have violated FACA as follows:

a. By failing open each meeting of the Cheney Energy Task Force and Task Force Sub-Groups to the public. (Violation of FACA §10(a)(1)).

b. By failing to publish timely notice of each meeting of the Cheney Energy Task Force and Task Force Sub-Groups in the Federal Register. (Violation of FACA §10(a)(2)).

c. By failing to allow Plaintiff and other interested persons to attend, appear before, or file statements with the Cheney Energy Task Force and the Task Force Sub-Groups. (Violation of FACA §10(a)(3)).

d. By failing to make available for public inspection and copying the records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for by the Cheney Energy Task Force and Task Force Sub-Groups. (Violation of FACA §10(b)).

e. By failing to keep detailed minutes of each meeting of the Cheney Energy Task Force and Task Force Sub-Groups, certified as accurate, that contain a record of the persons present, a complete and accurate description of matters discussed and conclusions reached and copies of all reports received, issued, or approved by the Cheney Energy Task Force and Task Force Sub-Groups. (Violation of FACA §10(c)).

f. By establishing the Task Force Sub-Groups without specific authorization by statute or by the President and without a determination published in the Federal Register, that establishing the Task Force Sub-Groups is in the public interest. (Violation of FACA §9(a)).

g. By allowing the Cheney Energy Task Force and Task Force Sub-Groups to meet and take action without filing an advisory committee charter containing the information required by FACA (Violation of FACA §9(c)).

55. The Defendants have a nondiscretionary duty to comply with the procedural requirements of FACA including but not limited to those set forth in the preceding paragraph as items (a) through (g).

56. This Court has jurisdiction to compel the Defendants to perform a nondiscretionary duty pursuant to the Mandamus and Venue Act, 28 U.S.C. §1361.

COUNT IV

(Violation of the Federal Advisory Committee Act/Administrative Procedure Act)

57. Plaintiff incorporates paragraphs 1-56 as if fully set forth herein.

58. By violating the FACA as set forth in paragraph 54, the agency Defendants have acted arbitrarily and capriciously and not in accordance with law, and without observance of procedure required by law, in violation of 5 U.S.C. §706(2)(A) and §706(2)(D).

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prayers for relief and judgment as follows:

1. That the Court enter a judgment declaring Defendants to be in violation of the FACA and the APA;

2. That the Court enter a writ of mandamus ordering Defendants to comply with the FACA, the FOIA, and the APA;

3. That the Court grant Plaintiff a fee waiver under the FOIA;

4. That the Court enter a permanent injunction prohibiting Defendants from convening, conducting or holding any meeting or engaging in any other activities that are not in full compliance with the FACA, the FOIA, and the APA;

5. That the Court enter a permanent injunction ordering Defendants to provide to Plaintiff, within ten working days and at no cost to Plaintiff, a full and complete copy of all records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for Defendant NEPDG, irrespective of whether any such document otherwise is or could be exempt from disclosure under the FOIA;

6. That the Court enter a permanent injunction ordering Defendants to prepare and deliver to Plaintiff, within ten working days, detailed minutes of each meeting of Defendant NEPDG, certified as accurate, that contain a record of persons present, a complete and accurate description of matters discussed and conclusions reached, and copies of all report received, issued, or approved by Defendant NEPDG; and

7. That the Court award Plaintiff attorneys fees and its costs of suit, as well as any and all other relief the Court deems appropriate.

Respectfully submitted,JUDICIAL WATCH, INC. ___________________________ Larry Klayman, Esq. D.C. Bar No. 334581 Suite 725 501 School Street, S.W. Washington, DC 20024 (202) 646-5172 Attorney for Plaintiff Judicial Watch, Inc. CERTIFICATE OF SERVICE I hereby certify that on May 28, 2002 a true and correct copy of the foregoing SECOND AMENDED COMPLAINT was served by first class mail, postage prepaid, on the following: Counsel for Plaintiff Sierra Club: Patrick Gallagher, Esq. Alex Levinson, Esq. Sierra Club 85 Second Street San Francisco, CA 94104 Counsel for Amicus NRDC: Howard M. Crystal, Esq. MEYER & GLITZENSTEIN 1601 Connecticut Ave., NW Suite 700 Washington, DC 20009 Counsel for Federal Defendants: Anne L. Weismann, Esq. David O. Buchholz, Esq. U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch P.O. Box 883 Washington, DC 20044 Counsel for Defendant Thomas Kuhn: Robert S. Litt, Esq. ARNOLD & PORTER 555 12th Street, NW Washington, DC 20004-1206 Counsel for Defendant Haley Barbour: Paul C. Rauser, Esq. WILLIAMS & CONNOLLY 725 12th Street, NW Washington, DC 20005 Counsel for Defendant Mark Racicot: Richard D. Horn, Esq. BRACEWELL & PATTERSON, LLP 2000 K Street, NW Suite 500 Washington, DC 20006-1872 _________________________ Jason AldrichATTACHMENT 1

I OF I STORY

_______________________________________________

Newsweek

May 14, 2001, U.S. Edition

SECTION: NATIONAL AFFAIRS; Pg. 18

LENGTH: 1622 words

HEADLINE: Big Energy at the Table

BYLINE: By Howard Fineman and Michael Isikoff; With Mark Hosenball, T. Trent Gegax and Rich Thomas in Washington

HIGHLIGHT:

Winning support for your agenda is easy when your allies fill out administration's top chairs

BODY:

If you were in the oil and gas business, it was a meeting that dreams were made of. Nine days before George W. Bush was inaugurated, energy lobbyists gathered at the American Petroleum Institutets offices in downtown Washington. Their agenda: to write a wish list. One participant remembers it fondly. "The tone was, 'OK, what do you guys want? You are going to have the ear of this white House'." In came an easel and a whiteboard, and ideas flowed: looser rules for drilling on federal lands; more drilling for oil and gas in Alaska and the Gulf of Mexico; lower royalty payments for tapping offshore wells. After a while, the mood in the room grew giddy. The man from the wildcatters' association suggested going All the Way. It was time, he said, to rethink the Endangered Species Act.

That was a wish too far. But many items on that board-and other lists scribbled by other energy lobbyists in other offices around town-found their way into the recommendations that the president will unveil to the nation next week. The API list, in fact, was forwarded to George Bush's transition team, which sent it to the Interior Department. On March 20, Interior sent many of the same ideas to the Energy Task Force that Vice President Dick Cheney had convened on Jan. 29. To close the loop, key leaders from that API meeting have since been appointed to pivotal positions in Bush's administration-among them J. Steven Griles, an energy lobbyist and the new second in command at Interior, and Thomas Sansonetti, an energy lawyer recently named the top environmental cop at the Justice Department. The two, in effect, will help administer policies they helped to write.

If the Bush administration is homecoming weekend for the energy industry, Dick Cheney's task-force report is the pregame tailgate party. Not since the rise of the railroads more than a century ago has a single industry placed so many foot soldiers at the top of a new administration. While the report will recommend an array of what one White House aide advertises as "high-tech, 21st-century conservation ideas," its core will be a call to find and use new sources of fossil fuels, as well as a renewed commitment to nuclear power. What voters need to hear "loud and clear," the president declared last week, "is that we are running out of energy in America."

Is there a national "Crisis"? California faces rolling summer-electricity Blackouts. In New York City, officials are scrambling to add small gas-fired generators to handle peak demand. Natural-gas prices have doubled in the past year. The numbers on signs at filling stations are skyrocketing, and could hit $3 a gallon this summer in the Midwest. In a West Wing interview with NEWSWEEK, Cheney shied away from the C word. "I think the potential is there for it to adversely affect the economy," he said.

But voters are using the word. In a NEWSWEEK Poll, 71 percent of those surveyed say there is an "energy crisis" in California; 53 percent agree there now is one in the country as a whole. Given an either-or choice between "protecting the environment" and "developing new sources of energy," those polled selected energy by 52 to 41 percent, compared with a 49-44 ratio just one month ago,

There's something to be said for turning to energy-industry alums in this situation-and Cheney, who like Bush is a son of the oilfields, is not shy about saying it. "The fact of the matter is you get a lot of expertise with people who have been dealing with these issues for a long time," he told NEWSWEEK. In his own case, he said, his time at Halliburton, the globe-girdling oil-services company taught him "a hell of a lot about the technology of the business," such as benign new ways to drill in Alaska's Arctic National Wildlife Refuge.

But Americans are skeptical of industry motives -and, by extension, of Bush's ties. When asked to name who had contributed "a lot" to the current energy situation, those polled named two sets of villains: the U.S. energy companies (66 percent) and overseas energy suppliers, such as OPEC. Bush himself gets his lowest approval marks for his handling of energy and environmental issues. Democrats, naturally, are pouncing on what they see as a populist hole in Bush's armor. Late last week House Minority Leader Dick Gephardt was stumping in Chula Vista, Calif.; with transmission lines as a backdrop, he vowed to impose new federal caps on electricity rates-an idea Cheney flatly opposes.

The administration may well have raised the political risk via the process it used to draft its plan. The Bushies used a secretive, believers-only process reminiscent of another such enterprise: Hillary Rodham Clinton's effort to write a national health-care plan in 1994. Since the group comprises only government officials, White House aides say, it is entitled to keep its deliberations private. Still, industry leaders -who dumped $22.5 million into GOP coffers in the last election-enjoyed constant contact with the task force. Cheney met with a group of utility executives at the Edison Electric Institute, whose president, Tom Kuhn, was a leading Bush fund-raiser. No one has enjoyed better access than Enron CEO Ken Lay, who recently had dinner with his good friend the president.

The environmental community, meanwhile, got one mass meeting with the staff a month ago (and the promise of another this week with EPA Administrator Christine Todd Whitman). Efforts to meet with Cheney were rebuffed. Cheney himself confirmed he had not met with a single spokesman for the greens. That dynamic has only fueled suspicions among enviros about what's going on behind closed doors. "They're drumming up a fake energy crisis that doesn't exist," says Phil Clapp of the National Environmental Trust.

To be sure, the Cheney report will make many nods in the direction of conservation and renewable resources. Cheney confirmed that it will call for tax credits for both. The plan will herald and encourage the advent of less intrusive, high-tech means for finding and extracting oil and gas and for burning more coal. White House spinners have decided to divide the report into five parts-only two of which will deal with the extraction and the transmission of new sources of traditional types of fuel. The conservation measures will be high tech and optimistically can-do about using Yankee ingenuity to give Americans all the cars and appliances they want while using less electricity from state-of-the-art power plants. But there will be no paeans to the kind of pantywaist, tree-hugging self-abnegation the Bushies think President Carter sermon- ized about a generation ago. "This isn't about not bathing or turning off your lights," said a top Cheney aide. "This is about finding environmentally safe ways to make sure we have the energy we need,"

That's not enough, environmentalists say, given the rising threat of global warming the green community is convinced comes from burning fossil fuels. "The test of any energy plan will she what it does to limit greenhouse gases," says Fred Krupp of Environmental Defense. The Union of Concerned Scientists, concerned about global warming, says that renewables and conservation could displace 20 percent of traditional electricity demand by the year 2020-and greatly lessen the need for new power plants. Cheney thinks otherwise. In that span, he said, reliance on renewables could indeed triple-a "fairly optimistic" scenario but one that would still meet only 6 percent of total electricity needs. But that estimate does not include imposing tough new mileage standards on SUVs or mandating more efficient appliances. "Part of our task," he said, "is to focus on reality, and reality is not 'Well, gee, we'll conserve our way out, we don't have to produce any more,' or 'Wind and solar will take care of it, so we don't need fossilfuels anymore'."

Now comes the hard part: selling the plan to the public and to Congress. Some GOP strategists are sanguine about overcoming environmental concerns. "Nothing like $3-a-gallon gasoline to help make the case," said one. But it's probably not that simple. White House strategists are looking for clues on how best to hawk the package in polls done for them by the Republican National Committee. The surveys show that voters know very little about where energy supplies come from or how they now are distributed in what has become a relatively deregulated marketplace. "Voters out there think that the government guarantees cheap, abundant energy," said one worried Republican polltaker, "and that's not the way it works anymore." Other insiders worry less about the Democrats than the news media, which they regard as addicted to showing videotape of belching smokestacks. "Bush will have the bully pulpit," says GOP consultant Alex Castellanos, "but it's not an easy sell."

But sell Bush must. He'll take his show on the road next week, joined by a fleet of cabinet secretaries. They will declare that action is needed after years of Clinton-administration neglect. They will say that there are no quick fixes, and tout their market-based, supply-side, long-term answers. They may use real-world vignettes about energy shortages. (on request, the Natural Gas Supply Association provided the White rouse some.) But politics is lived in the short term, and Bush late last week suddenly found himself in the role of conservation advocate. He ordered federal facilities in California to turn up thermostats, and pledged that they would reduce electricity use by 10 percent. Cheney, the interview over, hurried to the Cabinet Room for the announcement. It turns out that conservation matters a great deal, at least in California, at least for now.

GRAPHIC PHTO: Inner circle Cheney presiding over a meeting of the Energy Task Force last week in the vice president's ceremonial office; PHOTO: The outsider: Clapp claims the Bushies may he ginning up a fake energy crisis; GRAPHIC: (Chart) Energy Advocates in the Bush Pipeline (Graphic omitted)

LOAD-DATE: May 9, 2001

ATTACHMENT 2

Newsweek

A NEW CAPITOL CLASH

Enron continues to roll Washington. Next up: a constitutional showdown

By Howard Fineman and Michael Isikoff

NEWSWEEK

Feb. 11 issue-For security reasons, George W. Bush and Dick Cheney are not supposed to spend much time together. But they made an exception last Tuesday afternoon for a hoary ritual of life in the capital: the briefing of the network anchors. Just hours before Bush's State of the Union address, Peter Jennings, Dan Rather, Tom Brokaw & Co. were ushered into the Old Family Dining Room in the private quarters of the White House to hear the president and his veep spin the speech.

ONE OF THE FIRST questions was about Enron, and Cheney's refusal to turn over logs of his energy task force's secret contacts with energy executives. "Won't this get in the way of the message of the speech?" one of the anchors asked. "Why not just give Congress the information and get it over with?" Before Cheney could answer, Bush cut in. Pounding the table, he insisted that a fundamental right of the presidency was at stake: the ability to get information and private, candid advice from anyone, any time. Bush fully backed Cheney's refusal to comply with the General Accounting Office's demand for the lists. What about the GAO's threat to file a suit? For Bush, it was a Texas Ranger moment. "Bring it on," he said.

David Walker is getting ready to do just that. The GAO chief, who now says he will sue to get the documents, insists he wasn't looking for a showdown with Cheney. Last summer two House Democrats asked the GAO probe whether the energy task force was unfairly influenced by industry lobbyists. Walker complied, sending the White House a sharply worded "demand letter" requesting all notes and minutes of its meetings.

SCALING BACK

A plain-spoken Republican who worked in Ronald Reagan's Labor Department and later as an Arthur Andersen executive, Walker tells NEWSWEEK he concluded that the demands were too intrusive. "Out of respect for the vice president," Walker says, he "personally" scaled back the request, asking only for a list of people who advised the task force and the topics of their conversations. But Cheney sill refused. Then Enron collapsed late last year, and Walker's cause suddenly became a whole lot more interesting. "This all got Enronized," says one administration aide with a sigh. Walker, who has hired a Washington law firm to handle the case, says his investigation "isn't an Enron issue." Congress, he says, "has the right to know who from the outside is seeking to influence" White House policy. "I'm not seeking a confrontation. We just need the information."

As the trash talk between the two sides escalates- ["]Talk is cheap," Walker sneers at Cheney's chin-out attitude-the case has become in part a classic Washington showdown between two powerful, bullheaded men. Yet the feud frames a wider clash between two worlds: a White House with an instinct for secrecy and Washington's Axis of Inquiry-lawyers, journalists, courts and congressional investigators. That clash will only intensify in the coming days, as former Enron CEO Ken Lay heads for the Hill and the Justice Department proceeds with its criminal probe of the troubled energy company.

The White House has hung tough, but the administration made a limited tactical retreat as pressure increased to fully disclose its ties to Enron. Cheney acknowledged that he had personally discussed energy policy in a March 2001 meeting with Lay-and officials admitted that there were five other meetings between Enron representatives and Cheney's staff. In fact, there was at least one more. NEWSWEEK has learned that on March 29 of last year, Cheney's top energy aide, Andrew Lundquist, met with members of the Clean Power Group-a coalition funded by five power companies that included Enron. The group wanted the task force to replace some environmental rules with a plan that would allow industries to trade "pollution credit" among themselves. Enron stood to make hundreds of millions of dollars if the plan was adopted.

'WHO CARES'?

The meeting was arranged by Brad Card, the Clean Power Group's outside lobbyist and brother of White House chief of staff Andrew Card. So why didn't the White House disclose the meeting in its list of Enron contacts? A White House aide says Lundquist "has no recollection" of being told that Enron was part of the group. (Brad Card's associate Mark Irion tells NEWSWEEK he made clear to Lundquist at the outset that Enron was a member.) Cheney spokeswoman Mary Matalin says its doesn't matter, since the proposal never made it into the energy plan. "Who cares if there were a hundred meetings?" she says. The Justice Department might. On Friday, Justice officials ordered the administration to preserve all documents related "in any way" to Enron.

Democrats, and even some Republicans, on the Hill are standing shoulder to shoulder with Walker's demands for still more disclosure. Their argument: when the White House or government agencies make policy, they are supposed to use a procedure that guarantees public access to keep officials from being secretly influenced by private-so-called ex parte-conversations.

The White House insists that all meetings of the task force are exempt from this kind of disclosure. Why? Because Cheney-a "constitutional officer" as vice president-is exempt, and therefore, they say, so is the task force he ran. White House aides say they designed the task force to avoid the problems that Hillary Clinton's health-care group faced in 1994. To insulate the group within the constitutional limits, aides say, Cheney himself chaired it, only government officials served on it and only task-force members-not the whole group-met with industry lobbyists. Critics complain that's a loophole big enough to drive an oil rig through.

Bush and Cheney are unimpressed. For years Cheney has loudly lamented the steady erosion of presidential power at the hands of Congress and the press. And Bush is the son of a CIA director and third-generation Skull and Bones man: a kid to secrets born. The Cheney-Bush kinship has been strengthened by the war on terror, with its emphasis on sealed lips. "It's a horse race between them," says a top White House aide, "to see who can take a tougher stand."

The president's political advisers aren't nearly so confident. For months GOP strategists have been urging the White House to ease up or risk looking as if it has something to hide. "If we released everything, we would look better," admits one Bush aide. But in his increasingly tense stare-down with Walker, Cheney isn't about to be the one who blinks first.

With Martha Brant and Tamara Lipper

ATTACHMENT 3

THE ENRON COLLAPSE Memo details Cheney-Enron links THE ENRON COLLAPSE Memo details Cheney-Enron links Company's suggestions resembled elements of the administration's energy policy David Lazarus, chronicle Staff Writer Wednesday, January 30, 2002 2002 San Francisco Chronicle URL: http://www.sfgate.com/egi-bin/article.ccgi? file=/chronicle/archive/2002/01/30/MN46204.DTL

MEMO

While the White House insists that details of its talks with Enron officials remain secret, a memo outlining those discussions reveals the extent to which the Houston energy giant lobbied to influence government policy.

The memo, a copy of which was obtained by The Chronicle, was handed by former Enron Chairman Ken Lay to Vice President Dick Cheney last April when the two met to discuss the administration's response to California's energy crisis.

The White House acknowledged last night that aspects of the memo resembled elements of Cheney's energy plan, but it refused to say whether the document was included in notes that Cheney now refuses to divulge to congressional investigators.

The General Accounting Office is threatening to sue the administration if it doesn't disclose. details of its talks with Enron officials.

The three-page document contains eight points spelling out Enron's case for why federal authorities should refrain from imposing price caps or other measures sought by California officials to stabilize runaway electricity prices.

A number of the positions in the memo subsequently made it into Cheney's energy plan or were reflected in comments by senior administration officials.

"Events in California and in other parts of the country demonstrated that the benefits of competition have yet to be realized and have not yet reached consumers," the memo argues.

"The following actions need to be taken," it continues, outlining positions on a series of matters. Some of the topics, such as equal access to transmission grids and interconnection of power networks, are largely technical in nature.

ENRON FROWNED ON PRICE CAPS

The key point as far as California was concerned was whether soaring wholesale power prices should be limited or whether such prices were merely a reflection of normal supply-and-demand dynamics.

"The administration should reject any attempt to re-regulate wholesale power markets by adopting price caps or returning to archaic methods of determining the cost-base of wholesale power," the memo says.

It adds that even temporary price restrictions "will be detrimental to power markets and will discourage private investment."

The memo blames California officials for having made only "limited progress" in tackling the state's power woes. It says that if the administration were to follow all of Enron's recommendations, the measures "would mitigate this crisis."

An Enron spokesman confirmed that the memo had been given by Lay to Cheney during their one-on-one talks.

Mary Matalin, an adviser to the vice president, said Cheney's energy plan included input from many sources. "Just because some of the things (in the memo) are included in the plan doesn't mean they were from the talks" between Cheney and Lay, she said.

LIMITS CALLED 'A MISTAKE'

Still,, as far as price caps go, the administration was quick to fall into lockstep with Enron's opposition to any federal regulatory moves. "We think that's a mistake," Cheney said just weeks after his meeting with Lay.

Nevertheless, federal regulators finally imposed price limits in June based on the cost of the least-efficient, and thus most expensive, generating plant. Democrats in Washington had threatened to act on their own if the regulators did not come up with a remedy for California's troubles.

Cheney also echoed Enron's position on the culpability of California's leaders in exacerbating the state's energy problems.

"When the problem became obvious last year, over a year ago, they didn't respond," he said in May.

Noting that California had experienced rolling blackouts and the bankruptcy of its biggest utility, he also said, "I don't think that's a sterling record of leadership, I would guess, on their part."

SHARED FAITH IN DEREGULATION

To be sure, Cheney, Lay and President Bush, as well as other industry players, shared a belief in deregulation well before the lights went out in California. But the memo underscores the broad kinship between Enron and the administration in drafting official policy.

Steve Maviglio, a spokesman for Gov. Gray Davis, said it came as no surprise that Enron had substantial clout in formation of the Bush administration's stance on California's difficulties.

"What the federal government did during the energy crisis was pretend that the problem didn't exist and say that the markets can solve everything, and that's the same thing Ken Lay told the governor," Maviglio said.

He added that "the administration was espousing what Enron was espousing-that the markets should fix themselves."

Whatever else, it's extraordinary for a private company, particularly one accused by California officials of having gouged the state with wildly inflated energy prices, to have played such a prominent role in the White House's response to the crisis.

'CONSUMERS SHOULD BE OUTRAGED'

"If the administration was allowing Enron to guide its policy during the California energy crisis, consumers should be outraged," said Janee Briesemeister, senior policy analyst at Consumers Union in Austin, Texas.

"It's not unusual for a company to hand policymakers their ideas for what should be done," she added. "Things break down when policymakers reffuse to admit that they used what was brought to them by industry."

Cheney's argument, as he told an interviewer Sunday, is that revealing details of his talks with Enron would undermine "the ability of the president and the vice president to solicit advice from anybody they want in confidence."

Bush echoed this sentiment a day later, saying that confidential talks are necessary to "get good, sound opinions." He reiterated that stance yesterday in a meeting with congressional leaders.

Craig McDonald, director of Texans for Public Justice, a watchdog group, called it laughable for the administration to cast its secrecy as a defense of high-minded principle.

"All they're fighting for is to keep the wraps on how much clout Enron had over Dick Cheney's energy plan," he said.

SF Gate: Multimedia (image)

THE ENRON COLLAPSE / Memo details Cheney-Enron links / Company's suggestions resembled elements of the administration's energy policy This memo was given to Vice President Dick Cheney by Enron's then-CEO Ken Lay last April. It spells out Enron's case for why federal authorities should refrain from imposing price caps or other measures sought by California officials to stabilize runaway electricity prices. Image File: 270 Kbytes

National Energy Policy: Priorities

The 1992 Energy Policy Act (EPA) intended to introduce competition into the wholesale market for electric power by providing transmission access. Events in California and in other parts of the country demonstrated that the benefits of competition have yet to be realized and have not yet reached consumers. To realize the vision set forth in the EPA the following actions need to be taken:

1. Fair Transmission Access

ln Order No. 888, the FERC attempted to formulate fair terms and conditions of access to the transmission grid for all users. How ever, the FERC failed to extend its jurisdiction to transmission services bundled together with retail sales. Consequently, distinct rules apply to different parties for use of the same transmission asset and such rules provide vertically integrated utilities the opportunity to use their transmission assets to disadvantage independent third party generators and wholesalers.

To achieve robust competition in wholesale power markets, the FERC must actively exercise jurisdiction over all aspects of electricity transmission in inerstate commerce and place all uses of the grid under the same rates, terms, and conditions. Moreover, FERC jurisdiction must extend to the terms of access applicable to transmission systems owned and operated by non-FERC jurisdictional entities including Federal Power Marketing Associations (PMAs), states and municipalities.

To improve reliability, the FERC has encouraged utilities to combine transmission facilities into large regional Transmission Organizations (RTOs) and to assign the responsibility for operating RTOs to an indepenent management team. Properly structured RTOs can ease the movement of power between states and between users within a state, and will enhance reliability, commercial activities, and competition in the energy industry.

However, the FERC has refused to make RTO participation mandatory. This, coupled with the lack of non-discriminatory open access terms, has weakened the RTO initiative. Therefore, the Administration must encourage the FERC to approve only those RTOs with sufficient size and scope and with non-discriminatory terms and conditions for access and to require that all transmission owners participate in an RTO. Finally, the Administration should revise those tax provisions that prevent the transfer of assets to new, stand alone independent, for profit transmission companies (Transcos).

2. Independent Energy Reliability Organizations

Governance of the North America Electric Reliability Council (NERC) is cumbersome and places new market entrants at a competitive disadvantage. There is a necessary role for FERC oversight of a new Independent Reliability Organization (IRO).

Legislation to establish a new IRO is required. However, the "consensus" reliability language in the proposed Murkowski bill is ineffective since it establishes an unsatisfactory procedure to resolve conflicts between the IRO and the various RTOs established by the FERC.

Legislation that permits the FERC to delegate authority to develop reliability standards and enforce standards, establishes an appropriate funding mechanism, includes a limited States' savings clause and provides the IRO participants with anti-trust immunity will accomplish the shared goal of establishing an effective IRO.

3. Wholesale Market Price Caps or Cost-Based Wholesale Rates

The Administration should reject any attempt to re-regulate wholesale power markets by adopting price caps or returning to archaic methods of determining the cost-base of wholesale power. Price caps, even if imposed on a temporary basis, will be detrimental to power markets and will discourage private investment by significantly raising political risk. Similarly, a return to cost-based wholesale rates will be extremely difficult to implement and will effectively negate significant investments made by new market entrants made in reliance on the presence of deregulated wholesale power markets.

4. Interconnection Policy

Competitive generation (including Distributed Generation "DG") and wholesale power markets have been hindered by grid interconnection policies and procedures that restrict new entry. The lack of a uniform and effective interconnection policy creates uncertainty, delay and unnecessary costs in development of new generation capacity and standardized, non-discriminatory interconnection procedures.

5. Federal Transmission and Generation Siting Policy

An efficient and reliable interstate wholesale market requires construction of new transmission and generation facilities. Siting and permitting problems have frustrated construction of new facilities. Consistent with rules for certification of natural gas facilities, granting condemnation rights to private parties that have obtained federal authorization to construct facilities can significantly reduce these problems. In addition, Federal Agencies and Tribunal Governments should streamline the regulatory processes to enable expedited construction and efficient operation of energy infrastructure.

6. Demand Reduction Incentives

The Administration should mandate the creation of a regional demand exchange (implemented by mandatory RTOs) that would allow large consumers to post bids for the reduction of demand. If implemented expeditiously, such a mechanism can have an immediate impact in reducing demand this summer.

7. California Power Crisis

The political leadership in California has made limited progress in solving its power crisis. All of the above items would mitigate this crisis.

8. Natural Gas Supply Outlook

There are concerns that natural gas supplies may not be adequate to meet market demand. Yet all studies indicate that remaining economically recoverable resources in North America are ample for decades to come. These supplies can be further supplemented by imported liquified natural gas. This will allow natural gas to continue to provide an increasing share of the total energy needs to the U.S.

ATTACHMENT 4

HEADLINE Getting The Ear Of Dick Cheney

BYLINE Michael Weisskopf and Adam Zagorin

Dick Cheney has taken a hard line against the General Accounting Office, refusing its efforts to get information on meetings held by his energy task force. Critics suspect that Cheney is stonewalling to conceal the Administration's links with bankrupt energy giant Enron. But Cheney may be hiding more than that. Several other energy companies had opportunities to influence the Administration's energy policy, with both persuasion and money. A key task-force meeting, sources tell TIME, was held by Cheney in the White House on May 3. Among attendees were two lobbyists for electric utilities: former Montana Governor and now G.O.P. chairman Marc Racicot and former G.O.P. Chairman Haley Barbour. Two weeks later, Cheney's report gave the lobbyists much of what they wanted, including a re-evaluation of a costly clean-air rule, called the new-source review, which requires new pollution controls when power plants are expanded. While he was lobbying for these energy interests, Barbour was also raising at least $ 250,000 for a May 21 G.O.P. gala honoring President Bush. The group of utilities Barbour was representing, led by Southern Co., gave $ 150,000 to the event. The night before the gala, Cheney held a glitzy reception at the vice presidential mansion for hundreds of the fete's sponsors and longtime party donors.

Another company that had entree to the Cheney task force was Peabody Energy, a coal behemoth whose holding company and top officer have given nearly

$ 200,000 to the President and his party since Bush took office, including $ 25,000 for the May gala. Sources say Peabody chairman Irl Engelhardt and other energy executives met in March with two task-force members, Energy Secretary Spencer Abraham and Bush economic adviser Larry Lindsey. Cheney's group also heard in March from officials from the nuclear-energy industry-whose trade association, the Nuclear Energy Institute, contributed $ 100,000 to the Bush event. Both coal and nuclear power got major endorsements in the task-force report.

Racicot, who stopped lobbying after taking over the G.O.P. last month, said he didn't raise funds for the Bush bash. Barbour did not return calls for comment. Cheney spokeswoman Mary Matalin denied any link between task-force access and fund raising, saying the Veep had no idea who was financing the gala.

-By Michael Weisskopf and Adam Zagorin

ATTACHMENT 5

OFFICE OF THE VICE PRESIDENT WASHINGTON May 4, 2001 The Honorable W.J. "Billy" Tauzin, Chairman The Honorable John D. Dingell, Ranking Minority Member Committee on Energy and Commerce House of Representatives Washington, D.C. 20515 The Honorable Dan Burton, Chairman The Honorable Henry A. Waxman, Ranking Minority Member Committee on Government Reform House of Representatives Washington, DC 20515

Gentlemen:

This is in response to the letter of April 19, 2001 from the ranking minority members of your Committee to Mr. Andrew Lundquist, Executive Director of the National Energy Policy Development Group (NEPDG). The letter sought information regarding compliance with the Federal Advisory Committee Act (FACA) (5 U.S.C. Appx. 2) by the NEPDG. Please be advised that the FACA does not apply to the NEPDG, noting especially that FACA by its own terms does not apply to a group "composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government."

As a matter of comity between the legislative and executive branches, with due regard for the constitutional separation of power and the rights of Americans to petition their government, and reserving all legal authorities and privileges that may apply, we are pleased to provide the enclosed information, which will enable you to conclude independently that the establishment and activities of the NEPDG are not inconsistent with the FACA.

Sincerely,

/s/ DAVID S. ADDINGTON DAVID S. ADDINGTON Counsel to the Vice President

Enclosure as stated.

RESPONSES OF ANDREW LUNDQUIST, EXECUTIVE DIRECTOR FOR THE NATIONAL ENERGY POLICY DEVELOPMENT GROUP TO QUESTIONS FROM THE RANKING MINORITY MEMBERS OF THE HOUSE COMMITTEE ON GOVERNMENT REFORM AND THE HOUSE COMMITTEE ON ENERGY AND COMMERCE

COMMITTEE QUESTION (1): (1) It is our understanding that you are directing a task force charged with examining and formulating energy policy.

RESPONSE (1): The mission of the National Energy Policy Development Group established on January 29, 2001 is 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. To carry out that mission, the Group gathers information, deliberates and makes recommendations to the President. Ultimately, the Group is to report its recommended national energy policy to the President.

COMMITTEE QUESTION (1)(a): (a) Please provide a complete list of task force members and staff assigned to the task force, identifying the employer of the member or staff. In the case of federal employees, please identify the department or agency for which the member or staff works.

RESPONSE (1)(a): The National Energy Policy Development Group consists of the following officers of the Federal Government: the Vice President, Secretary of the Treasury, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Transportation, Secretary of Energy, Director of the Federal Emergency Management Agency, Administrator of the Environmental Protection Agency, Assistant to the President and Deputy Chief of Staff for Policy, Assistant to the President for Economic Policy, and Assistant to the President for Intergovernmental Affairs. The Vice President may invite the Chairman of the Federal Energy Regulatory Commission to participate. The Vice President may invite the participation of the Secretary of State when the work of the Group involves international affairs and, as appropriate, other officers of the Federal government. The Vice President has invited the Director of the Office of Management and Budget to participate. The Vice President presides at the meetings of the Group and directs its work. The Group is supported by five professionals employed by the Department of Energy and assigned for this purpose to the Office of the Vice President: an Executive Director, a Deputy Director, two Senior Professional Staff Members, and a Professional Staff Member.In addition, an individual appointed as a White House Fellow who is assigned to the Office of the Vice President provides support to the Group.

COMMITTEE QUESTION (1)(b): (b) Please identify any task force members and staff who are not full-time federal employees. In the case of any member or staff who is a part-time federal employee, identify the hours per week that person works for the federal government and when that person began working for the federal government.

RESPONSE (1)(b): The National Energy Policy Development Group consists solely of officers of the Federal Government. The six individuals identified in Response (1)(a) above who provide support to the Group (hereafter "Group support staff") are all full- time Federal employees. For brief periods the employment status of two of the six individuals (from February 1 through 12, 2001 in the case of the Executive Director, and from February 7 through 12, 2001 in the case of the Deputy Director) was as consultants to the Department of Energy while the Department was processing their entrance-on-duty papers; they had no employer other than the Department of Energy during those brief periods. Please note that the Government officers who are on the departments and agencies who help them with review and drafting of materials and may attend Group meetings with them. Those departments and agencies could advise on the personnel status of those assistants if it were material.

COMMITTEE QUESTION(1)(c): (c) Please identify any task force member or staff who, at the time of any task force meeting, was serving as a contractor to, or temporary full time employee of, the federal government while on leave from non-federal employment. For each member or staff identified, please include the name of that person's non-federal employer.

RESPONSE (1)(c): None of the government officers who compose the National Energy Policy Development Group, nor any of the individuals on the Group's support staff, was at the time of any Group meeting, serving as a contractor to, or temporary full time employee of, the federal government while on leave from non-federal employment.

COMMITTEE QUESTION (2): (2) It is our understanding that the task force has conducted a series of "stakeholder meetings" on energy policy and legislation at federal facilities over the past few months.

RESPONSE (2): The National Energy Policy Development Group has not held such meetings, Individuals on the Group support staff have met with many individuals who are not Federal employees to gather information relevant to the Group's work, but such meetings do not involve deliberations or any effort to achieve consensus on advice or recommendations. These meetings by the Group's staff were simply forums to collect individual views rather than to bring a collective judgment to bear. The Group's staff held such meetings with a broad representation of people potentially affected by the Group's work, including individuals involved with companies or industries (e.g., in the electricity, telecommunications, coal mining, petroleum, gas, refining, bioenergy, solar energy, nuclear energy, pipeline railroad and automobile manufacturing sectors); environmental, wildlife, and marine advocacy, State and local utility regulation and energy management, research and teaching at universities; research and analysis at policy organizations (i.e., think-tanks); energy consumers, including consumption by businesses and individuals; a major labor union; and about three dozen Members of Congress or their staffs.

COMMITTEE QUESTION (2)(a): (a) Please provide a list of all task force meetings held, including the date and location of each meeting.

RESPONSE (2)(a): The Vice President has convened the National Energy Policy Development Group on the following dates in the year 2001, and all such meetings have been in the White House Complex: January 29, February 9 and 16, March 12 and 19, April 3, 11, and 18, and May 2.

COMMITTEE QUESTION (2)(b): (b) Please describe in detail the purpose of these meetings. For each meeting, please explain if the meeting was conducted in order to obtain advice or recommendations about policy or proposed legislation. Please explain whether each meeting had a fixed agenda and/or a defined purpose.

RESPONSE (2)(b): The National Energy Policy Development Group, consisting only of Government officers, has met at each of its meetings for the purpose carrying out its mission to develop a national energy policy designed to help the private sector, and necessary and appropriate Federal, State and local governments, promote dependable, affordable, and environmentally sound production and distribution of energy. At those meetings, to carry out its assigned mission, the Group has reviewed relevant information, deliberated, and formulated potential recommendations. With regard to meetings with individuals involving the Group's support staff, please see Response (2).

COMMITTEE QUESTION (2)(c): (c) Please describe the outcome of each meeting. Please explain to what extent each meeting resulted in the formulation of specific proposals or recommendations. Please specify to what extent the task force incorporated or adopted any suggestions of advice received at each meeting from non-federal "stakeholders", or to what extent it modified its proposals based on input received from non-federal "stakeholders" at the meeting.

RESPONSE (2)(c): Each of the National Energy Policy Development Group's meetings to date have advanced its mission as set forth in Response

(1). Each of the meetings of the Group's support staff described in Response (2) gathered, in support of the Group's mission, information relevant to the Group's work.

COMMITTEE QUESTION (2)(d): (d) For each task that has occurred to date, please provide a complete accounting of all attendees. Please include the name and employer of each attendee as well as the name of all clients represented by each person for the purpose of any particular task force meeting. Please indicate if any participants received any compensation for their involvement in a meeting or meetings.

RESPONSE (2)(d): The officers of the Government constituting the National Energy Policy Development Group attended the Group's meetings. The Group's support staff attended the Group's meetings. Other employees on the staff of the Vice President attended the Group's meetings. The Government officers who constitute the National Energy Policy Development Group have assistants at their departments and agencies who attended the Group's meetings with them.

COMMITTEE QUESTION (3): (3) The Federal Advisory Committee Act (FACA) defines an advisory committee as "any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . which is . . . established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for . . . one or more agencies or officers of the Federal government . . ." The Act requires that the meetings of such advisory committees be noticed in advance, open to the general public, and on the record, except under certain limited circumstances.

RESPONSE (3): Section 3(2) of the FACA provides that the term "advisory committee" as used in the FACA excludes "any committee that is composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government." The National Energy Policy Development Group is composed wholly of full-time officers of the Federal Government. Accordingly, the FACA requirements to which Committee Questions (3)(a) through (3)(f) refer do not apply. See also Response (2).

COMMITTEE QUESTION (3)(a): (a) Was advance notice of these task force meetings provided to the general public?

RESPONSE (3)(a): See Response (3).

COMMITTEE QUESTION (3)(b): (b) How many of these task force meetings took place on federal property or involved the attendance of federal personnel?

RESPONSE (3)(b): See Response (3).

COMMITTEE QUESTION (3)(c): (c) Were these meetings open to the general public?

RESPONSE (3)(c): See Response (3).

COMMITTEE QUESTION (3)(d): (d) If these meetings were not open to the general public, why not and under what authority?

RESPONSE (3)(d): See Response (3).

COMMITTEE QUESTION (3)(e): (e) Were any transcripts or detailed minutes of these meetings kept by you or any other attendee or participant?

RESPONSE (3)(e) : See Response (3).

COMMITTEE QUESTION (3)(f): (f) If no transcripts or minutes were kept, please explain why not and under what authority?

RESPONSE (3)(f): See Response (3).

COMMITTEE QUESTION (4): (4) As stated previously, we have been informed that only certain "stakeholders" were invited to participate in these meetings.

RESPONSE (4): The National Energy Policy Development Group has not held such meetings. To support the Group in the performance of its mission, one or more of the individuals on the Group's support staff have met with many individuals who are not Federal employees to gather from them information relevant to the Group's work. The non-Federal employees from whom the Group's support staff has thus far sought information constitute a broad range of sources of information; see Response (2).

COMMITTEE QUESTION (4)(a): (a) Was any executive branch agency or any of its personnel responsible in any way for determining who would or would not be invited to participate in these meetings?

RESPONSE (4)(a): See Response (4).

COMMITTEE QUESTION (4)(b) : (b) Please provide a detailed explanation of the process by which each non-federal participant in these meetings was determine to be a "stakeholder" in energy policy.

RESPONSE (4)(b): See Response (4).

COMMITTEE QUESTION (4)(c): (c) Please provide a detailed explanation of the process by which the task force decided not to meet with any private citizens or groups.

RESPONSE (4)(c): See Response (4).

COMMITTEE QUESTION (4)(d): (d) Was the governor of any state invited to participate in these meeting? If so, which? If not, why not?

RESPONSE (4)(d): See Response (4).

COMMITTEE QUESTION (4)(e): (e) Were any state public utility commissioners invited to participate in these meetings? If so, which? If not, why not?

RESPONSE (4)(e): See Response (4).

COMMITTEE QUESTION (4)(f): (f) Were any representatives of organized labor invited to participate in these meetings? If so, which? If not, why not?

RESPONSE (4)(f): (f) See Response (4).

COMMITTEE QUESTION (4)(g): (g) Were any representatives of consumer advocacy groups invited to participate in these meetings? If so, which? If not, why not?

RESPONSE (4)(g): See Response (4).

COMMITTEE QUESTION 4(h): (h) Was the National Federation of Independent Businesses or any other small business representative invited to participate in these meetings? If not, why not?

RESPONSE (4)(h): See Response (4).

COMMITTEE QUESTION 4(i): (i) Did the Department of Energy notify any Member of Congress about the task force's meetings prior to the first meeting or invite any Member of congressional staff to attend any of the "stakeholder" meetings?

RESPONSE (4)(i): To the best of my knowledge, no such notifications or invitations by the Department of Energy occurred with regard to any Group support staff meetings with non-Federal employees, nor would the Department of Energy have had a role with regard to such meetings that would have called for the Department of Energy to make such notifications or invitations.

/s/ ANDREW LUNDQUIST Date: 5/4/01 ANDREW LUNDQUIST, Executive Director National Energy Policy Development Group ATTACHMENT 6 Search - 75 Results - nightline vice president cheney Source: All Sources > News > Transcripts Terms: nightline vice president cheney (Edit Search.) ÂSelect for FOCUSTM or Delivery o ABC News -July 25, 2001 Wednesday Copyright 2001 Burrelle's Information Services ABC News SHOW: ABC News: Nightline (11:35 PM AM ET) - ABC July 25, 2001 Wednesday TYPE: Interview LENGTH: 4176 words HEADLINE: A Conversation With Dick Cheney, Cheney discusses his first six months in office ANCHORS: TED KOPPEL BODY:

Announcer: July 25th, 2001.

Vice President DICK CHENEY: (From file footage) That I will support and defend the Constitution of the United States.

TED KOPPEL, host:

It's been six months since he became Vice President of the United States.

Vice Pres. CHENEY: And my doctors tell me that I'm not-not up to the task, I'd be the first one to hang it up. The idea that any member of Congress can demand from me a list of everybody I meet with-there's been this claim it was done in secret, but it wasn't.

KOPPEL: I'm reminded of what one of your predecessors once famously said about the office of the vice presidency not being worth a bucket of warm spit. Only, I don't think he . . .

Vice Pres. CHENEY: I think you cleaned it up.

KOPPEL: . . . used the word spit.

Tonight, A Conversation With Dick Cheney.

Announcer: From ABC News, this is NIGHTLINE. Reporting tonight from the White House, Ted Koppel.

KOPPEL: Congressman, White House chief of staff, secretary of defense and, for the past six months, Vice President of the United States, Dick Cheney is a substantive man in what over the years has sometimes been a largely ceremonial job. If anything, Vice President Cheney is occasionally given too much credit when it comes to doing the heavy lifting in this administration. That has focused an extraordinary amount of attention on his health. Is he doing too much? What would happen if he couldn't continue in the job? Tonight he will talk about his health and the public's appetite to know about it in some detail. He will also answer charges that he and other members of the Bush administration wrap the same cloak of secrecy around the creation of their energy policy that Hillary Clinton once used while formulating a new health plan. He doesn't buy the analogy. He'll explain why.

Dick Cheney is the man who once rallied Republican supporters by pointing to what he said was an under-funded US military, and promising that help is on the way. Now it is the joint Chiefs and some senior civilians at the Pentagon complaining about what's in the Bush/Cheney military budget. The Vice President will talk about a major change in US military strategy. No longer will the United States have the ability to fight two simultaneous wars. All of that and more in a wide-ranging interview with Vice President Cheney, conducted earlier today at the executive office building right next to the White House.

You talk about the pros and cons. In other words, the-the-the vice presidency is said to be an enormously frustrating job because you're not the boss.

Vice Pres. CHENEY: Mm-hmm.

KOPPEL: This president has given you a lot of authority, given you a lot of power. Talk about the good and the bad.

Vice Pres. CHENEY: Well, I-I find it to be virtually all good. I never planned to come back to government. This is my fifth tour, my third time in the White House, and I really thought I'd completed my time in government. And to have the opportunity to come back now at my stage in life, 60 years old, and get to do it one more time, sort of correct all those mistakes you made earlier in your career, is really a . . . (unintelligible).

KOPPEL: Making policy.

Vice Pres. CHENEY: And a chance to pol-participate in a policy-making process, he has given me a lot of responsibility. We function very much as a team, which is exactly what he said he wanted when I signed on.

KOPPEL: You've made reference to the enormous amount of experience that you bring to this job. So, I have to ask you, as someone who knows Washington as well as you do, and who knows that the one thing that drives Congress crazy, the one thing that drives the press crazy, the one thing that is always going to be trouble is secrecy.

Vice Pres. CHENEY: Mm-hmm.

KOPPEL: Well, why did you run your-your energy study, your energy meetings the way that you did? Why to this day haven't you revealed who participated in those meetings and what they had to tell you?

KOPPEL: What about the experts that you consulted? I mean, you-you know . . .

Vice Pres. CHENEY: But we didn't-I mean, there's-there was this allegation that somehow we did what the Clintons did back in '93 on health. We did not.

KOPPEL: Exactly.

Vice Pres. CHENEY: We were very sensitive to that and very careful of it. When you . . .

KOPPEL: Tell me where the-tell me where the difference is?

Vice Pres. CHENEY: Well, the-it's when you bring in

. . .

KOPPEL: What was different about what you did and what Hillary Clinton . . .

Vice Pres. CHENEY: She brought in outsiders, people who were not government employees, who were not full-time . . .

KOPPEL: You didn't do that?

Vice Pres. CHENEY: No.

KOPPEL: No outsiders?

Vice Pres. CHENEY: Well, not as part of the deliberating pro-process.

KOPPEL: Well . . .

Vice Pres. CHENEY: No, that's very important.

KOPPEL: . . . are you finessing that just a little bit too finely?

KOPPEL: Isn't-isn't that a fine point?

Vice Pres. CHENEY: That's a very important point.

KOPPEL: In other words, if we-if we have one meeting here . . .

Vice Pres. CHENEY: Mm-hmm.

KOPPEL: . . . with a bunch of people, and because of your background and the president's background in the energy industry yourselves . . .

Vice Pres. CHENEY: Mm-hmm.

KOPPEL: . . . the assumption is that you did consult with a lot of your pals in the-in the energy industry.

If you consult with them in this room, and then you adjourn to the next room to make policy, that- that . . .

Vice Pres. CHENEY: That's not the way it works.

KOPPEL: That satisfies the law?

KOPPEL: But why not just take the wind out of the sails of all your critics and say, 'Here's a list of the people we consulted'?

Vice Pres. CHENEY: Well, there's-there's an-there isn't anybody we met with there that would be at all surprising. But there's an important principle here, I think, Ted, and that's the fact that what we have is a request from a congressman for a list of all the people we met with, not just in terms of the energy or everybody I met with, for example, during that period of time, as well as what they talked to me about. In effect, what we're saying here, if in fact we were to respond to that request, is that any member of Congress can demand to know who I meet with, what I talk to them about on a daily basis. I would have no ability to meet with anybody in confidence.

KOPPEL: So, on a-on a matter of principle then you are not going to-you're not going to reveal that list.

Vice Pres. CHENEY: I think it's going to have to be resolved in court, and I think that's perfectly appropriate. I think, in fact, this is the first time the GAO has ever issued a so called demand letter to a president/vice president. I'm a duly elected constitutional office. The idea that any member of Congress can demand from me a list of everybody I meet with and what they say to me strikes me as-as inappropriate, and not in keeping with the Constitution . . . (unintelligible).

KOPPEL: You're saying-you're saying to Congressman Waxman, then, 'See you in federal court.'

Vice Pres. CHENEY: I think that's-may well be how it gets resolved, unless he decides he wants to back off. We, in fact, have responded to a lot of what they requested. We've given them financial records, how we spent money. We thinks that's an appropriate question for the GAO to ask. And, as I say, none of this is secret. These are the 105 recommendations, the product of the task force is all right here. All of that's been public. So, we've complied to a large extent. But this request that in fact we're suppose to provide him with this information with respect to people we consult with or people who come see us., as well as give him information on what was said and those meetings in the executive branch between the vice president and other individuals strikes me as-as inappropriate, and we think he's out of line in making that request.

KOPPEL: We've got to take short break. A related question on OPEC when we come back.

Vice Pres. CHENEY: Yeah.

KOPPEL: Back with Vice President Cheney in just a moment.

Announcer: This is ABC News: NIGHTLINE, brought to you by . . .

(Commercial break)

KOPPEL: We are, I've just been informed, in the ceremonial office of the vice president. Thank you for having us here. Here with Vice President Dick Cheney.

We've been talking about energy policy. So I guess it's appropriate to ask you about OPEC's apparent intent to cut production by one million barrels a day in September. That's going to be problematic, isn't it? I mean, you know, just as we see the price of gasoline going down, just as it looks as though the energy crisis was not as severe, at least in the immediate sense as we may have thought, here comes OPEC and-and the president was indicating he's not happy about it.

Vice Pres. CHENEY: Well, what the president said is that the key force is to avoid price spikes. If you get a big run-up in fuel prices, that clearly could adversely effect the American economy. That'll adversely effect the global economy. What's really in our interest as consumers, as well as in the interest as suppliers, is stability over time. When you get these sharp swings in prices everybody may say hurrah if oil goes down to $10 a barrel again, but what happens when that occurs is you drive out a lot of marginal production, which is in the US, shut it in. You lose that, become more dependent on foreign sources. Plus, you also lose the investment that would otherwise occur in non-OPEC sources overseas. And when we get these rapid run-downs in price, it really isn't in anybody's interest. It's always followed eventually by a-you know, if it hits $10, it's only a matter of months before we're back up to 30 or 35.

KOPPEL: Particularly in this community, perception of reality is often more important than objective reality itself. Perception is that you folks are a little hard on the environment. Perception is that you were-you were late to the mantra of saving energy rather than new energy production.

Vice Pres. CHENEY: Mm-hmm.

KOPPEL: I know you claim you've-you've always been an advocate of that. But, again, that's not the way you've been perceived. Your mistake? Our mistake?

Vice Pres. CHENEY: Well, I would argue, first of all, that we've been very sensitive right along to the environment and to the need for conservation and renewables. If you look at our report, virtually all of the financial incentives, for example, that we've recommended to the Congress, involve conservation and renewables. We don't have any big financial package in there for conventional production. When we put the report together we right up front made a decision the very first meeting, we had to spend a lot of time on those issues or we wouldn't have a credible report. And we've never changed that.

Now the critics, including The New York Times, for example, editorialized against the report before they ever saw it, have made the allegation that all we care about is production and supply. And that's just not true. We have made the point repeatedly that conservation doesn't close the gap. It doesn't get us there, but it's a very important part of our overall strategy. It's one of the reasons we've gotten to where we are. As a country, we've significantly increased our energy efficiency over the years. And the charge, frankly, isn't true, but it often times it gets picked up and carried, sometimes by the press, and as well as used by our opponents as a way to attack the report.

But the report, just to give you a for instance, Ted, out of 12 recommendations the Sierra Club came up with not long ago on energy, in their own energy plan, 11 of them are in our report. So the notion that somehow we've created a report here that is anti-environment, you'd have to say, 'Well, the Sierra Club is anti-environment, too.' And it's just not true.

KOPPEL: Let's talk about military budget for a moment. And you have been criticized by one of the most conservative magazines in town, indeed the Weekly Standard.

Vice Pres. CHENEY: Mm-hmm.

KOPPEL: You probably read the-the editorial. The Weekly Standard is suggesting to the secretary of defense and his deputy, Paul Wolfowitz, they may want to step down, because what you guys, you and the president, are doing to the military budget is a far cry from that clarion cry of Dick Cheney during the campaign, "Help is on the way." They're saying, in point of fact, help is not on the way. You guys are gutting the military budget.

Vice Pres. CHENEY: They're wrong. And the man who wrote the editorial was not a supporter of ours in the campaign, anyway. There are big changes that are needed in the military. And it was mistreated, I think, for the last eight years during the Clinton administration. We're still very much saddled with the old Cold War force, and there has not been any new investment in new capabilities moving forward. What Don Rumsfeld has been asked to do, and I think he has a good start on, is putting together a military that makes sense for the 21st century. That'll mean a new strategy, a new set of assumptions about what we need to defend against, and what the threats are out there and what our priorities ought to be in terms of spending.

KOPPEL: Don Rumsfeld came to you asking for a $35 billion increase. He got 18.

Vice Pres. CHENEY: I don't know a Cabinet member who wouldn't like to have more money in their budget, but he got more than 18. He got 18 in this most recent go around, but we provided a supplemental in '01 of. . .

KOPPEL: Of five.

Vice Pres. CHENEY: . . . almost 5.6 billion, particular.

KOPPEL: But of the initial increase . . .

Vice Pres. CHENEY: We have provided an increase, as well, to cover inflation. And we put in extra money that the president pledged over and above the 18 during the course of the campaign for military pay. And all of that's been-been folded in. Now, we'd like to do more, but it's the biggest percentage increase in the defense budget since about 1985.

KOPPEL: If, in fact, you guys are going to be spending 50, 100, 200, who knows, maybe as high as $500 billion on the-the defense initiative, the . . . .

Vice Pres. CHENEY: Ballistic missile defense.

KOPPEL: . . . ballistic missile defense initiative, the money has got to come out of somewhere, doesn't it?

Vice Pres. CHENEY: Mm-hmm.

KOPPEL: Where is it going to come from?

Vice Pres. CHENEY: Well, we need to do a much better job of managing the Defense Department. It's become very, very hard to run the Defense Department these days. When I was secretary 10 years ago, the defense authorization bill was 70 pages long. Today it's 900 pages long. These are earmarks, red tape requirements that the Congress has loaded over the years onto the Defense Department, forces you to keep bases open you don't need, to operate installations at inefficient levels, 40 or 50 percent of capacity, to buy things you don't need, to buy equipment at the least efficient rate, instead of going out and buying what you need.

KOPPEL: We've got to take a short break. When we come back, I want to talk to you about the-the two war premise that has always existed . . .

Vice Pres. CHENEY: OK.

KOPPEL: . . . over the past 40 or 50 years. Back with the vice president in just a moment.

(commercial break)

KOPPEL: And we're back for our final segment with the vice president of the United States, Dick Cheney.

Mr. Cheney we were talking before, very briefly, about the-the two war scenario. The premise ever since the Cold War and before has been that the United States military has got to be capable of simultaneously fighting wars in two different theaters. Do you still subscribe to that?

Vice Pres. CHENEY: Well, the-the assumption that's out there now is one I put in when I was secretary of defense. When the Cold War ended, we went from the posture of having the forces in place to fight an all-out global conflict with the Soviet that could go nuclear. When the Soviet Union went away, we then moved to this two major theater contingency, based upon the notion, for example, of defending in the Gulf-Persian Gulf and simultaneously Korea.

KOPPEL: Korea.

Vice Pres. CHENEY: I think now we can afford to change that, but that's a question that Don Rumsfeld has been asked to look at and spend a lot of time on. But I think we're today in a-in a radically different situation with respect to-to world threat situation. I think

. . . for example, one of the things we need to focus more on today than we have in the past is this notion of homeland defense. It's hard, if you took out around the globe, to find a nation out there today that can mount a significant conventional assault against the United States or our forces. There are few places that are sensitive, obviously, but nothing like what we faced all those years of the Cold War, or even when we were dealing with Saddam Hussein in the Gulf.

KOPPEL: Let me use the last couple of minutes that we have together to bring you back to this notion of nothing drives Washington crazier than secrecy. No one can argue that the-the individual, the man, Dick Cheney, has a right to keep what's between him and his doctor private. But you're the vice president of the United States. People would like to know what medicines you're on. People would like to know what you're EKG rate is. People would like to know-there's a lot of stuff people would like to know, and you're saying, in effect, 'Yeah, you'd like to know it, but I'm not going to tell you.' Why?

Vice Pres. CHENEY: Well, I would argue, Ted, that we have provided an enormous amount of information. I can't-when I get a head cold that's-that's news. I go to the grocery store, what I buy is in the newspapers. If I go to the restaurant, what I eat shows up in the Reliable Source column in The Washington Post,

KOPPEL: That's because you're vice president of the United States.

Vice Pres. CHENEY: Well. . . .

KOPPEL: We-we-we think we have a claim to your private life.

Vice Pres. CHENEY: My-that's right, and my doctors have on at least three occasions given extensive press briefings. The most recent when I went in and had a pacemaker defibrillator implanted here a few weeks ago. They stood up and answered questions for a very long time afterwards, from the most aggressive folks in the press corp, talking exactly about my case and my circumstance, my situation. I'm probably the best known heart patient in America. I think we've provided a vast amount of information.

KOPPEL: Then why not provide the rest?

Vice Pres. CHENEY: Well, I think we've provided virtually everything? What does he want to know, my cholesterol level? It's 170.

KOPPEL: Well . . .

Vice Pres. CHENEY: You know, my pulse rate is perfectly normal. My blood pressure perfectly normal, 88 over 120.

KOPPEL: And what-what medications are you on?

Vice Pres. CHENEY: I'm on a wide variety of traditional heart medications.

KOPPEL: Do you ever, when you're coming to work,. do you ever feel, 'I'm pushing this a little hard.'

Vice Pres. CHENEY: That I'm pushing it hard?

KOPPEL: Yeah, that you're-I mean . . .

Vice Pres. CHENEY: No, I'm-Ted, this may be a big deal for you or for others who are watching, but I've lived with this for well over 20 years, since 1978, and I, you know, I'm used to it. I pace myself. I take care of myself. I do those things I need to do. But, I have-say we have provided a vast amount of information to people. If I ever reach a point where I can't do the job or my doctors tell me that I'm not-not up to the task, I'll be the first one to hang it up. I don't need the grief. But I am here to do a job for the president. I think I am able to do it perfectly acceptably, that there's no reason in this day and age why somebody with coronary artery disease can't live a perfectly normal life, and I think I'm proof positive of that.

KOPPEL: You took as though you've lost a little weight, have you?

Vice Pres. CHENEY: I have. I have.

KOPPEL: All right, how much weight have you lost?

Vice Pres. CHENEY: Over 20 pounds.

KOPPEL: Good for you. In the area of information that some people would like to have, Senator Lieberman would like to have some information from you and he's threatening to throw out a few subpoenas. Do you got any thoughts on that?

Vice Pres. CHENEY: He's, I guess, issued subpoena threats to some federal agencies in recent days.

KOPPEL: Right.

Vice Pres. CHENEY: You know, I look at that, I think the departments and agencies have been very forthcoming. I think we're back, sort of, the witch hunt mode now in Washington. We're working hard to try to change the tone and what we see there, I think, is-it's politics, as usual.

KOPPEL: You realize, of course, the Democrats would say, 'Wait a second, witch hunt mode? You-you

guys. . .'

Vice Pres. CHENEY: Well . . .

KOPPEL: '. . . were the ones who were throwing out subpoenas last time around.'

Vice Pres. CHENEY: Well, let's-let's look at it, though. The subpoenas that, in fact, the Republicans went after, there were very serious allegation of campaign finance wrongdoing. There were serious other problems, which we won't enumerate tonight. I'm sure your show covered them adequately when they were-were hot. But there were serious questions about possibility of illicit or improper conduct that the Congress was legitimately looking at. There's no such allegation here now. There hasn't been any such allegation, and, in fact, the administration has cooperated. We've provided a great deal of information to-to, the Congress and will continue to do so.

KOPPEL: Mr. Vice President, we're out of time. I thank you for your hospitality. Thank you for talking to me and hope to see you again soon.

Vice Pres, CHENEY: Thank you, Ted.

KOPPEL: I'll be back in a moment.

Announcer: To receive a daily e-mail announcement about each evening's NIGHTLINE and a preview of special broadcasts, logon to the NIGHTLINE page at abcnews.com.

(commercial break)

KOPPEL: And that's our report for tonight. I'm Ted Koppel at the White House. For all of us here at ABC News, good night.

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Date/Time: Tuesday, November 13, 2001 - 5:15 PM EST