President’s Infrastructure Council Dissolved – If It Ever Existed

August 24, 2017

As part of the backlash against President Trump’s remarks relating to the Charlottesville, Virginia rioting, the White House will not be moving forward with a Presidential Advisory Council on Infrastructure – but it is not clear if this means that a new council will not be created, or an existing council will be disbanded.

Even before he took office, Trump told the Wall Street Journal on January 13 that he was appointing two New York real estate developer friends, Richard LeFrak and Steven Roth, to run a council of 15 to 20 businessmen to oversee his infrastructure proposal, and implied that they would actually be involved in selecting projects to get federal funding: “Some of the projects they’ll throw out. Some of the projects they’ll expand. But all of the projects, they’ll make sure we get a tremendous bang for the buck.”

Obviously, evaluating and selecting projects to receive federal funding is a role for the federal government, not private citizens, and some sort of formal structure would need to be set up to allow such people input into the process. But Trump’s interview with the WSJ was the last public statement from the White House on a “council on infrastructure” until President Trump issued Executive Order 13805 on July 19.

That order formally established the Council, which was to have not more than 15 non-governmental members with expertise in the fields of “(i) real estate; (ii) finance; (iii) construction; (iv) communications and technology; (v) transportation and logistics; (vi) labor; (vii) environmental policy; [and] (viii) regional and local economic development.” The President was to appoint two co-chairs.

The Council was to report to the Commerce Secretary, and the order added all the boilerplate language necessary to comply with the Federal Advisory Committee Act (FACA) and other laws.

The White House did not announce any appointments to the Council, and then post-Charlottesville, after corporate CEOs started bailing out of other White House advisory councils, Bloomberg was first to report on August 17 that the Council on Infrastructure would not move forward, either.

However, a little-noticed lawsuit filed July 25 against the Administration calls into question whether or not the Council was already in existence without formal authorization. A complaint filed in federal court in Washington D.C. by an offshoot of Public Citizen alleges that the LeFrak-Roth council “is currently reviewing the incoming project proposals and advising Defendants on which projects to fund” and says that “Upon information and belief, the Infrastructure Council has met on numerous occasions since January 20, 2017 to provide advice and recommendations on infrastructure policy to Defendants.”

The lawsuit then goes on to say that unofficial advisory councils, whether at the agency level of the Presidential level, violate FACA because they don’t comply with the following requirements of FACA (quoted from the lawsuit):

(1) before acting or meeting, an advisory committee must file a charter with the Administrator or head of the agency that created the committee

(2) the make-up of the committee must “be fairly balanced in terms of the points of view represented and the functions to be performed,”

(3) all meetings must be open to the public

(4) notice of each meeting must be published in the Federal Register

(5) all interested persons must be allowed to attend, appear before, or file statements with the advisory committee

(6) all records, reports, transcripts, minutes, appendices, working papers, drafts, studies, agendas, and other documents made available to or prepared for or by the advisory committee must be made available to the public, and

(7) detailed minutes of each meeting must be kept.

So it is not certain whether the publicly acknowledged advisory council established in the Executive Order will not move forward, or if the unacknowledged private advisory council (if it ever existed) is being disbanded…

(Update: NYC real estate news website TheRealDeal says it has an exclusive post-Charlottestville interview with LeFrak in which he says that Trump’s remarks were “inappropriate” but that he was still willing to stick with the Council. In the interview, LeFrak says that “The infrastructure committee was never formaly stood up. It was different than [Blackstone CEO Stephen] Schwarzman’s committee and the manufacturing committee in that it required a presidential executive order, a charter, an agency under which it would function and approximately 15 members that would come with a variety of opinions, industries and diverse backgrounds. The thought in the White House was that since the other two committees had dispersed, there was little point to going forward with the third. We had a brief discussion with the president about it, but that decision was made by the White House. I still stand ready to do everything I can to improve infrastructure.”)

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