A federal judge last week rejected environmental groups’ efforts to make public the meetings of a government body that facilitates private overseas development in poorer nations.
In a ruling Friday, Judge Christopher Cooper of the U.S. District Court for the District of Columbia declared that the Government in the Sunshine Act does not apply to the International Development Finance Corp., or DFC. The organization abruptly stopped holding public meetings in 2020 despite its predecessor having regularly convened in public.
“At bottom, the plain text of the Sunshine Act provides that the statute applies only if a majority of an agency’s board members are appointed to such position by the President with the advice and consent of the Senate,” wrote Cooper, an Obama appointee.
Eight of the 15 board members of the Overseas Private Investment Corp., the predecessor organization, met this criteria.
Cooper then determined, though, that the International Development Finance Corp.’s nine-member board included only four members who met the Sunshine Act’s criteria for qualifying as an agency. Cooper found that a fifth member, the CEO, did not count as having been appointed.
But in an intriguing side note, Cooper stressed that he was bound by an old precedent set by a federal appeals court, which he all but invited to reconsider the issue.
“The Sunshine Act is ‘founded on the proposition that the government should conduct the people’s business in public,’” Cooper stated, adding that “today’s Circuit might find it appropriate to reexamine” the issue and might “see more leeway to revisit the application of its precedent.”
The ruling was a defeat for the Center for Biological Diversity, Friends of the Earth and the Center for International Environmental Law, which have sought to monitor the overseas development activities (Climatewire, June 4, 2021).
“For example, [the environmentalists] allege that on September 9, 2020, the DFC held a private board meeting at which the board voted to approve funds for the Rovuma Liquified Natural Gas project in northern Mozambique,” Cooper wrote.
Cooper added that Doug Norlen, director of Friends of the Earth’s economic policy program, “attests that he has tracked this project since 2015, but was unable to participate in the meeting or provide comments because … [he] only learned of the meeting on the day it was scheduled to occur.”
The Sunshine Act requires covered agencies to hold meetings “open to public observation,” with certain exceptions. They must also publicly announce the time, place and subject matter of meetings at least a week in advance and prepare a complete transcript or electronic recording of meetings that are closed for any reason.
Congress created the DFC in 2018 to replace the Overseas Private Investment Corp., or OPIC.
In April 2020, the new organization published a rule exempting itself from the Sunshine Act because, in its view, it did not meet the law’s definition of an “agency.” It did not issue a proposed rule prior to publishing the final rule, and the rule did not go through the usual notice and comment procedures.
Prior to the change, the environmental groups attended OPIC meetings and weighed in on overseas projects. For example, when OPIC existed, staff from the Center for Biological Diversity said, they “relied on Federal Register notices of meetings, minutes of meetings, transcripts of meetings, and records of meetings.”
This information “allowed Center staff to monitor the workings of OPIC and participate more effectively in the agency’s decision-making process,” the environmental group said in a legal filing.
