Federal District Court judge Thomas Sullivan criticized on March 28 a common practice of the U.S. Department of Energy of carrying out program and project reviews without following the requirements of the Federal Advisory Committee Act (FACA). Among other things, that Act requires that the meetings of review committees be open to the public. Although DOE does have advisory committees that follow the FACA, it also commonly conducts other reviews which it claims are not subject to FACA.

The Court said that DOE "cannot avoid FACA by permitting non-federal employees to participate as members, but simply prohibiting them from participating in the committee's ultimate deliberations." The Court cited another ruling explaining that "the two functions, i.e., information gathering and advice giving ... naturally interrelate and can only be divided artificially." Although not the subject of the March 28 ruling, DOE has in the past used this argument to claim that subpanels of its Fusion Energy Sciences Advisory Committee (FESAC) do not have to follow the FACA, only the FESAC itself. The Office of Fusion Energy Sciences (OFES) similarly uses non-public review groups to evaluate batches of proposals submitted in response to solicitations.

The Court action came in response to a suit brought by the Natural Resources Defense Council and others relating to two reviews of the DOE's National Ignition Facility (NIF): The Rebaseline Committee and the Status Review Committee. DOE is scheduled to provide Congress with the results of those reviews on March 31.

The Court preliminarily enjoined DOE from using the results of those reviews, except to allow DOE to refer to those reviews in communicating with "Congress, Congressional staff or the General Accounting Office," provided that "oral or written inquiries to such inquiries shall include" a disclaimer stating that "in forming and operating this Committee, the Department of Energy did not comply with any of FACA's requirements to ensure the committee is open to the public, balanced in terms of points of view represented, and not inappropriately influenced by any special interest."

Sources indicate that they expect DOE to transmit a report on NIF to Congress on or about March 31, with the appropriate disclaimers.