(AP Photo/Andrew Harnik)
Immediately after he was inaugurated, President Trump turned infrastructure policy over to a group of his friends from the New York real estate world. In January 2017, he announced an advisory council on infrastructure led by two of his New York business associates, Steven Roth and Richard LeFrak. As real estate developers, both potentially stood to benefit from changes to the country’s infrastructure policy. While President Trump subsequently disbanded the Council after business leaders abandoned him in the wake of his Charlottesville comments, the Council’s work up to that point remains concealed behind closed doors. We sued on behalf of Food & Water Watch to bring it into the light.
Federal law requires councils of outside advisors to conduct transparent meetings with a broad range of viewpoints. By convening a small group of advisors in secret, we argued President Trump violated the Federal Advisory Committee Act (FACA), allowing him to outsource infrastructure policymaking to private interests. Our lawsuit asserted that the Council’s operation illegally deprived the public of a voice in the infrastructure policy process and skewed policymaking towards a narrow set of private interests rather than taking into account the breadth of America’s infrastructure needs.
We filed suit to end the Council’s work and expose it to public scrutiny, and the court ordered the government to answer written questions under oath. We sued President Trump and the Department of Transportation on behalf of Food & Water Watch, a non-profit organization which focuses on corporate and government accountability relating to food, water, and corporate overreach. We asked the Court to declare that President Trump’s Infrastructure Council violated FACA, and order the Council to turn over all the materials about its work to which the public is entitled, like its communications, proposals, and meeting minutes. We were able to obtain discovery from the government—a rare event—when the Court ordered the White House to respond to written questions under the oath.
While the Court ultimately dismissed our case, we forced the government to disclose additional information about the Council’s operations. Although the Court’s decision is disappointing, our lawsuit succeeded in bringing to light the more than a dozen “preliminary” meetings held by the Council purportedly in preparation for its launch.
January 21, 2017
President Trump established a Council of infrastructure advisers to guide his administration’s infrastructure policy.
The Council was to be led by LeFrak and Roth, and also included two private equity executives, Joshua Harris and William E. Ford. The government did not formally announce the council by Executive Order or in the Federal Register, but the Council immediately began work.
July 19, 2017
creation of the Presidential Advisory Council on Infrastructure (EO 13805).
This was the first time the government attempted to formalize the Council’s work.
July 25, 2017
We filed suit with Food & Water Watch to enforce the Federal Advisory Committee Act.
We argued that the Council’s work had begun long before EO 13805, and that all that work prior to the order should have been subject to FACA’s requirements. Further, we sought to invalidate any work the Council had done in violation of FACA.
August 17, 2017
Following the events in Charlottesville, VA, the White House announced the President would not move forward with the Infrastructure Council.
Then, on September 29, 2017, President Trump revoked EO 13805.
November 20, 2017
We filed an amended complaint.
We bolstered our arguments that the Council had been operating illegally, and continued to ask the court to vacate illegal actions by the Council and order the government to provide documentation of the Council’s work, as is required by FACA.
January 17, 2018
The government moved to dismiss our case.
The government argued that our client had not been harmed by the Council’s work, that the Council had not operated as an advisory committee prior to EO 13805, and that our case should be considered moot after the disbandment of the Council in August 2017.
February 14, 2018
We opposed the government’s motion to dismiss.
We argued that the Council’s work should have been subject to FACA, and we asked the Court to grant discovery into the work of the Council before dismissing the case.
June 7, 2018
After briefing and oral argument, the Court ordered the Government to respond to a set of Interrogatories about the scope and nature of the Council’s work.
It is rare for courts to grant plaintiffs what is called “jurisdictional discovery” against the government, and the Court did so here because of the confusing and inconsistent factual assertions by the government about the nature of the Council’s work.
July 23, 2018
The government responded to the Interrogatories.
The government admitted that members of the Council had met at least thirteen times to discuss infrastructure, but gave scant detail about the substance of those meetings.
August 31, 2018
We opposed the government’s motion to dismiss, and moved to compel further discovery.
In our view, the government’s interrogatory responses clearly show the work of an advisory council, and the Court should open its work up for the public to see.
September 28, 2018
The government filed its reply to our opposition to their motion to dismiss, and an opposition to our motion to compel.
December 10, 2018
The Court dismissed our lawsuit.
Although the Court's decision is disappointing, our lawsuit succeeded in bringing to light the more than a dozen "preliminary" meetings held by the Council purportedly in preparation for its launch.
In the news
Washington Post / August 12, 2017
NY Times / July 25, 2017
Inside EPA / July 25, 2017
The Hill / July 25, 2017
Triple Pundit / August 22, 2017
Litigating challenges to unlawful executive branch activity regarding immigration, civil rights, health care, education, veterans’ affairs, and more.Read the Bio
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