On Monday, the U.S. Supreme Court offered Vice President Dick Cheney a possible escape hatch from the great Energy Task Force imbroglio. The high court agreed to hear an appeal from Cheney, who for more than a year has been defying a federal judge's order to pony up documents about his infamous 2001 task force. Those behind the lawsuit against the veep are certain the documents will reveal that the White House was canoodling with industry interests behind closed doors as it worked to establish a national energy policy.
The legal saga began in December 2001, when a funny bipartisan duo, the Sierra Club and Judicial Watch, a D.C.-based conservative ethics watchdog group, teamed up to file a lawsuit against the White House. The goal of the suit: to find out whether Cheney's clandestine task force negotiations were illegally influenced by energy industry kingpins from companies like Enron, Southern Co., and Cheney's own pride and joy, Halliburton. Cheney's Justice Department lawyers, who declined comment, have repeatedly insisted that Cheney can ignore the court order to release the papers because of the constitutional separation of powers.
What exactly does that mean? Not much, according to Sierra Club lawyer David Bookbinder. "The White House is claiming that simply by virtue of his executive status, the vice president is fundamentally immune from having to appear in front of any federal court and give any information or account of his activities. Period. It's that preposterous," he said.
Tom Fitton, president of Judicial Watch, is equally appalled: "This is a completely unprecedented attempt to overextend executive privilege," he said. "It calls into question the integrity of the court system in this country -- particularly because we're 3-and-0 right now." In other words, first the U.S. District Court for the District of Columbia, where the lawsuit was originally filed, ordered Cheney to release the documents; second, after the vice president appealed the case to a federal appellate court three-judge panel, he was again ordered to show his cards; and third, after Cheney steamrolled on to the full nine-judge appellate court, it refused to even reconsider the matter. With this track record, it's difficult to understand why the Supreme Court would agree to hear the case.
For some, it is an ominous sign. "We're totally screwed," said one lawyer close to the case against Cheney who asked to remain anonymous. "The Supreme Court took the case to kill it. They did not take the case for any other reason than to drive a big spike through it." The lawyer went on to explain that if the Supreme Court agrees to take a case, it means that at least four of the justices believe that the original D.C. circuit court got its ruling wrong. "The outcome of this case is all but predetermined," said the lawyer.
Fitton is more hopeful, calling the Supreme Court's consent to hear the case a professional courtesy: "There is traditionally deference to the executive branch when the high court is asked to take on cases like this." Moreover, there are several Supreme Court rulings that suggest that the kind of executive immunity Cheney is requesting is flat-out unconstitutional -- among them, United States vs. Nixon and Clinton vs. [Paula] Jones, which forced presidents Nixon and Clinton, respectively, to be treated in the judicial system like any other American. "If the Supreme Court upholds the letter of the law," said Fitton, "then we will very clearly win." And if the Supreme Court forces Cheney to come clean, it's almost a given that the evidence will be damning: The media has already reported that Kenneth Lay and other energy honchos not only met with Cheney on task force-related matters but also, in the case of Lay, submitted an eight-item wish list for the administration's new energy policy.
But in the end it may not matter that much, because the Bush team will likely get exactly what it is looking for: extra time. According to Bookbinder, this whole strategy comes right out of the Karl Rove playbook. "This Bush administration is basically trying to stall the whole process for another year," said Bookbinder, "so that when the ruling comes out -- if it does -- it won't interfere with the November elections."
There's a certain poetic justice in the fact that former U.S. EPA administrator Christie Todd Whitman's home state of New Jersey -- maligned by some as the "armpit of America" because of its heavy industry -- is leading a defiant counterassault on the Bush administration's mercury rollback. On Dec. 10 Bradley Campbell, commissioner of the New Jersey Department of Environmental Protection, proposed new rules that would reduce mercury emissions from power plants, iron and steel smelters, and municipal solid-waste incinerators by between 75 and 95 percent by 2007.
By contrast, a Bush administration proposal officially unveiled this week only calls for a 70 percent mercury reduction overall by 2018. "The Bush administration's proposed mercury rules ignore science and will damage public health," said Campbell. "The [EPA has] very clearly chosen to neglect the environmental and human problems caused by mercury, leaving it to states alone to shoulder the responsibility of protecting its citizens." The states that are doing so include not only New Jersey but also Connecticut, Massachusetts and Wisconsin, all of which have proposed tough new standards for emissions of mercury, a dangerous neurotoxin that can cause developmental problems. And dozens more states have good reason to follow suit, given that more than 40 states issue fish-consumption advisories warning their citizens about dangerous mercury levels in fish caught in state waterways.
If New Jersey's rules were enacted nationally, annual mercury emissions from coal-fired power plants would decline from approximately 48 tons to about five tons in the next three years. That, Campbell says, is one reason the federal government should follow his state's lead. "No matter what we do at a state level, a patchwork of local programs distributed all over the country is no substitute for an aggressive federal plan," he said. "This is a problem that by definition must be addressed at a federal level because air emissions travel between states." Indeed, more than a third of New Jersey's mercury pollution creeps in from neighboring states.
The EPA, however, insists on the virtues of its mercury plan, calling it far more economically feasible than the Maximum Achievable Control Technology standards put forward by the Clinton administration, which would have required plants to install the best available pollution filters and resulted in a 90 percent drop in mercury emissions by 2008. "The MACT standards don't have the flexibility that our cap-and-trade program has," said EPA spokesperson Cynthia Bergman. "We're proposing instead a 70 percent cut in mercury emissions over time, which will achieve steep reductions without hitting consumers with spikes in electricity prices."
But Campbell counters that of the 10 coal-fired power plants in his state, three have already been retrofitted with technologies to achieve 90 percent mercury reductions, and the average rise in electricity bills related to those plants was negligible. And anyway, he notes, money isn't always the bottom line: "Even if the costs were higher, which in our case, I repeat, they are not, it's reckless to be dickering about consumer prices when the alternative is brain damage!"
Swimming Against the Tides
The archconservatives are up in arms about liberal foundations -- the type whose philanthropic dollars help keep environmental organizations (including Grist) afloat. The object of the most recent attack was the new Pittsburgh-based branch of the Tides Foundation, which is partly funded by the Vira Heinz Endowment and the Howard Heinz Endowment, chaired by Teresa Heinz Kerry (the wife of Democratic presidential contender Sen. John Kerry). The new Tides branch was lambasted in an Issue Alert entitled "Secretive Left-wing Group Has Ties to Heinz Endowments," which, strangely, was sent out this week to everybody on the e-mail list of the House Resources Committee press office.
"We just forwarded it on [to] our press release [list] as an informational piece," said Matthew Streit, who works in the press office. The Resources Committee is chaired by Rep. Richard Pombo (R-Calif.), who is so notorious for berating environmentalists in press releases that his announcements are known in environmental circles as "Pomblasts."
This particular Pomblast was written by Gretchen Randall, a researcher at the right-wing consulting firm Winningreen, which claims to be "dedicated to the development and promotion of sound environmental public policy." It was derived from an Op-Ed that Randall's husband Tom published in the Pittsburgh Tribune-Review and a report the couple wrote jointly for the D.C.-based right-wing organization Capital Research Center. "Money," the report begins, "is to the Tides Foundation and Center what water is to the tide. You can't be sure from what source any part comes. You can't be sure where any part goes. But it can knock you off your feet and pull you down. And there is an ocean of it."
Tom Randall's opinion piece attacks the Tides Foundation's "secretive funneling of cash from private foundations" to "extreme left-wing activist groups whose interests include exclusion of humans from both public and private land." Those "extreme left-wing activist groups" include the Union of Concerned Scientists and the Natural Resources Defense Council. According to the report, other worrisome causes supported by the Tides Foundation include antiwar protests, gun control, abolition of the death penalty, pro-choice activism, opposition to free trade, and gay, lesbian, bisexual and transgender advocacy.
Christopher Herrera, the spokesperson for Tides Foundation, was nothing but amused by the attack: "Essentially they are describing the substance of what we do to a T -- only in strident, arch-conservative language [and] completely inventing this notion that we're engaged in secretive, illegitimate financial schemes."
Indeed, the fiscal operations of the Tides Foundation are secretive, but they are all done by the book -- the same financial mechanisms used by the vast majority of some 600 or more community foundations across the country, such as the New York Community Trust, as well as for-profit entities that have philanthropic arms, including Charles Schwab and Fidelity. The mechanism used by all of these institutions, including Tides, is called the "donor-advised fund," meaning the organization receives money from people who want to give to charitable organizations anonymously. "This is standard accounting," says Herrera. "Our books are impeccably kept -- what more likely concerns these [critics] is that our books are so full."
In the end, the conservatives might just be unhappy that the left is learning how to play the right's own games. "While Tides may deplore the free market," the report snaps, "it certainly knows how to maneuver within it."