Dick Cheney’s Energy Task Force and the Energy Policy Act of 2005
Conner Crane PP 101
Background:
On August 8th, 2005, President George W. Bush signed the Energy Policy Act into law. The law was a legislative measure to combat America’s growing energy problems and decrease the nation’s dependence on foreign oil, especially from the Middle East. Despite creating and incentivizing federal and state programs dedicated to energy efficiency and the growth of a renewable energy industry, the act has recently been the target of criticism from many environmentalists. In the 322 section of the bill, an amendment was added that exempted natural gas companies from disclosing the chemicals used during the hydraulic fracturing process from the Clean Air Act, Clean Water Act, and the Safe Drinking Water Act, thus stripping the Environmental Protection Agency of their regulatory powers(Proquest Congressional CRS Report). This provision is infamously known as the Halliburton loophole for Dick Cheney’s, former CEO of Halliburton, personal involvement in its passage. In this memo, I will discuss the unorthodox legislative process by which President Bush’s creation of the National Energy Policy Development Group, a team similar to the Republican health care task force created in 1999, allowed for the Halliburton loophole’S inclusion in the Energy Policy Act of 2005.
National Energy Policy Development Group:
After Secretary of Energy Spencer Abraham declared “America faces a major energy supply crisis over the next two decades” in his 2001 Energy Summit speech, President Bush created an energy task force officially known as the National Energy Policy Development Group. The task force was established with the intentions “to develop a national energy policy designed to help the private sector, and, as necessary and appropriate, State and local governments, promote dependable, affordable, and environmentally sound production and distribution of energy for the future.”(May 16th NEPDG Report) This task force was chaired by former Halliburton CEO and Vice President Dick Cheney and was composed of the Secretaries of State, Treasury, Interior, Agriculture, Transportation, and Energy as well as other senior-level administration officials including Christine Whitman, administrator of the Environmental Protection Agency. Over the course of the year, much of the task force’s work was done by a lean six-man staff led by Andrew Lundquist, former aide to Senator Ted Stevens and current lobbyist to BP, Duke Energy and the American Petroleum Institute.(Papers Detail Industry’s Role in Cheney’s Energy Report, Washington Post, 7/18/07) Lundquist and his team met with 300 groups and individuals including Exxon, BP, CONOCO, Shell Oil, and Enron. It was in these meetings that the contents and suggestions of the 2001 National Energy Policy that was approved by the Republican majority Congress were formed. While the National Energy Policy acknowledged the government’s role in both providing energy and protecting the environment, the influence of the natural gas interest groups was clear as the policy advised the creation of 38,000 miles of new pipeline and 255,000 miles of distribution lines. When it came time to generate the Energy Policy Act of 2005, Congress looked to the expertise and reports of Cheney’s task force.
Controversy:
Shortly before the National Energy Policy gained Congressional approval, the existence of the National Energy Policy Development Group went public. Numerous questions of the group’s actions were asked in the House, but the Bush administration took a firm stance on keeping the documentation of the group’s meetings a secret. Following investigation and lawsuits from Judicial Watch, a non-government watchdog group, and the Sierra Club, an environmentalist organization, alleging “that the advisory committee had violated the Federal Advisory Committee Act (FACA) by not making public all the documents that it had generated.”(Cheney vs. U.S. District Court, oyez.org) Arguing that the task force’s meetings included private lobbyists, Judicial Watch and the Sierra Club believed Cheney’s team was not exempt from disclosure. On December 15, 2003, this suit was taken to the Supreme Court. In a 2004 decision, the Rehnquist Court ruled 7-2 in favor of Cheney on the basis that the disclosure of the documentation of the task force’s meetings violates the Constitutional doctrine of separation of powers. The Court’s decision to deny disclosure heavily influenced the Energy Task Force’s ability to draft the pro-business the Energy Policy Act of 2005 without the intensive Congressional oversight.
Environmental Protection Agency:
In a 2004 study evaluating the impacts of hydraulic fracturing to underground sources of drinking water, the Environmental Protection Agency concluded that “there there was little to no risk of fracturing fluid contaminating underground sources of drinking water during hydraulic fracturing of coalbed methane production wells.”(EPA Hydraulic Fracturing of Coalbed Methane Reservoirs Study 2004) Cheney’s energy task force was able to use this study in persuading Congress to keep the Halliburton loophole which exempted the natural gas and oil industry from the Safe Water Drinking Act. Recently, environmental interest groups have attacked the legitimacy of the study after Ben Grumbles, former Bush EPA official, released a statement contending the gas and oil exemption went too far as officials misused the hydraulic fracturing study of 2004. In an interview with Pro Publica, Grumbles described the exemption as “unnecessary”, but if the legislation were to move through “it should have included some broader recapture provision that allowed for regulation under the Safe Drinking Water Act” in case a problem developed that would nullify the exemption. Grumbles also illustrates the political environment under which the law was written stating “environmental laws and programs don’t always trump … If the mood of the nation is to increase energy independence and energy supply, some of the environmental provisions can be viewed as constraints or barriers to that process.”(Pro Publica, Abram Lustgarten, 3/9/11) This interview is congruent with the Washington Post’s 2007 article uncovering the task force’s meetings. The article recounts a meeting where Jack Gerard, with the National Mining Association, advises Cheney and his team to “keep the issue away from the Environmental Protection Agency, which could issue regulations.”(Papers Detail Industry’s Role in Cheney’s Energy Report, Washington Post, 7/18/07) The Energy Task Force heeded Gerard’s warning as they carefully exploited the EPA’s 2004 report not only to include the Halliburton loophole, but also erase the agency’s ability to regulate the industries in the future.
Counterfactual:
Due to the favorable conditions in both the political stream(Republican majority in both chambers of Congress as well as the presidency) and the problem stream (the nation’s foreign dependence continued to increase), I believe a version of the Energy Policy Act could have been produced through a more conventional process. That being said, I struggle to imagine a scenario where this law, passed through orthodox legislation, contains pro-industry provisions such as the Halliburton loophole without the under the table work of Vice President Dick Cheney and his energy task force. It is evident that without a favorable Supreme Court ruling keeping the actions of the task force secret and politically guided EPA report, environmentalist representatives such as Henry Waxman of California and Tom Fitton, president of Judicial Watch, would have been able to convince the provisions be taken out before the bill left Congress. (Papers Detail Industry’s Role in Cheney’s Energy Report, Washington Post, 7/18/07)
