From today’s Washington Times:

When Obama made the Paris climate agreement end run
Failure to act on its revival guarantees more such adventurism in a Biden-Harris administration

Recently, conservatives have called on President Trump to transmit the Paris climate agreement to the Senate as a treaty requiring “advice and consent” before it can in any way bind the United States, which Paris on its face so clearly is with its promises of adding ever-tightening regulations every five years, in perpetuity.

Doing so would restore the Senate’s role in our treaty process, and also protect Americans’ economy and system of governance…

Although a Freedom of Information Act lawsuit has revealed that an attorney for the Senate Foreign Relations Committee at the time of Mr. Obama’s Paris end-run decried this “disturbing contempt for the Senate’s constitutional rights and responsibilities,” the body did nothing.

Failure to act on Paris, now, guarantees we will see more such unilateral adventurism in a Biden-Harris administration on Iran and a host of other matters where Mr. Biden’s position lacks popular support.

Declaring Paris to be a treaty not only would pre-empt a President Biden from credibly “re-entering” Paris, as he vows to do on his first day in office. It also would smother in the crib the inevitable “Paris II,” with incoming “climate czar” John Kerry already loudly proclaiming, “Paris is not enough.”…

We know that progressive state attorneys general have malign intent; one of them, Massachusetts’ Maura Healey, promised Michael Bloomberg’s climate litigation group that any attorneys it provided her office would “be focused on ensuring that Massachusetts and neighboring states meet the long-term commitments set forth … in the Paris Agreement.”…

Longtime United Nations climate official Yvo de Boer acknowledged, “[t]he only way that a 2015 agreement [Paris] can achieve a 2-degree goal is to shut down the whole global economy.” That is why the Obama White House hailed Paris as more significant than all climate agreements that came before it – “the most ambitious climate change agreement in history,” more so than the Kyoto and UNFCCC treaties. It also is the reason for the audacious end-run around the Senate: The United States lacks popular support for, and indeed would never approve such commitments.

Presidential transmittal of Paris declaring it to be a treaty will undermine any claim that Paris compels U.S. action or inaction. It creates a dispute that cannot be undone by another president. Only the Senate can finally resolve it, one way or the other. And as French diplomat Laurent Fabius put it, “Whether we like it or not, if it comes to the Congress, they will refuse.”

Lacking Senate consent and with express disagreement among concurrent administrations, there would be no doubt that any claimed U.S. commitment to Paris was anything but a political commitment.

Any U.S. promises would be deemed “politically binding” at most, with no hope that adventurous courts or commissions of any gravity will issue the desired and otherwise certain rulings against U.S. economic development grounded in a supposed Paris commitment.

Mr. Obama’s Paris dare was an outrageous, brazen one that the Senate even more outrageously shied from confronting at the time. The sole cure is for Mr. Obama’s successor to restore our process, and the Senate’s role, and transmit Paris as a treaty requiring “advice and consent”.

Failing to do so, and allowing the Obama “climate coup” to stand, would enable future presidents to unilaterally adopt any treaties they and foreign elites want, simply by deeming them “not a treaty.” Such abandonment of our balance of powers in turn imperils American self-governance, and leaves U.S. energy and economic policies beholden to the demands of foreign leaders, U.N. bureaucrats and international pressure groups.

Read the entire piece here.

FOIA lawsuit seeks to highlight just how little ‘advice and consent’ went into the Paris Agreement

By Kevin Mooney

Getting documents out of a government agency is a heavy lift. That’s what the nonprofit organization Energy Policy Advocates aims to do in a Freedom of Information Act lawsuit, seeking State Department documents that describe how the Obama administration circumvented the Constitution to join a United Nations climate treaty.

A joint status report filed earlier this month suggests something of a “deep state” effort could be underway to delay the release of any such documents until after Joe Biden becomes president.

For reference, Inauguration Day is Jan. 20. In response to the suit, which was filed in November 2019, the State Department indicated it does not expect to begin releasing any of the requested documents until Jan. 26 and has proposed a deadline of Feb. 9 for another joint status report filed with the U.S. District Court for the District of Columbia.

Energy Policy Advocates has rejected the Jan. 26 deadline for the initial release of documents. The State Department, in turn, has rejected a proposed compromise date from the plaintiffs of Jan. 19 for the department to begin releasing documents and of Jan. 29 for a new joint status report…

Environmental [sic] Policy Advocates had sought to break loose the Obama-era Paris Agreement documents prior to the 2020 election so that voters could have insight into how the Obama administration sidestepped the Senate’s “advice and consent” role. But in September, the district court denied a motion for a preliminary injunction to compel the State Department to release records pertaining to the Paris Climate Agreement…

Government Accountability and Oversight, the public interest law firm that filed the FOIA suit on behalf of Energy Policy Advocates, has available on its website an 18-page document its client obtained detailing how Team Obama bypassed the constitutional process.

At issue is what’s known as a Circular 175 memo, which refers to the legal procedure that administrations follow when entering into treaties and other international agreements. If the document in question is the Circular 175 memo, then “it represents a major political and legal scandal with significant implications for U.S. participation in Paris, and the effort to bind the U.S. without following the Constitution,” Chris Horner, an attorney with GAO, says in a press release. The key arguments the Obama administration used to avoid activating the Senate’s “advice and consent” role amount to an insistence that the Paris Agreement was akin to other precedent executive agreements.

Horner is also the co-author of a report from the Competitive Enterprise Institute, a libertarian think tank in Washington, that finds “the Paris Climate Agreement is a treaty by virtue of its costs and risks …” Horner also warns in his report that it “endangers America’s capacity for self-government” since “it empowers one administration to make legislative commitments for decades to come without congressional authorization, and regardless of the outcome of future elections.”

Read the entire piece here.

Read the entire piece here.

EPA reveals AGO’s claim that records are shielded by “pending litigation,” secrecy pact directly contradicted by New York Attorney General claim to WSJ

Albuquerque, NM, December 8, 2020 – The public interest law firm Government Accountability & Oversight, P.C. (GAO) and local counsel Pat Rogers have filed a Motion to Compel answers in litigation discovery against a stonewalling New Mexico Attorney General Hector Balderas, in a lawsuit filed under the Inspection of Public Records Act (IPRA) on behalf of the government-transparency group Energy Policy Advocates (EPA). GAO seeks to end six months of AG Office obstructionism, hiding records relating to its work with outside parties to, as one document sent to a Michael Bloomberg-funded activist group that placed attorneys in Balderas’s Office puts it, “identify ‘pressure points’ on which litigation can be used to most effectively influence policy.”

AG Balderas has extended his refusal to release public documents and information, keeping secret his work and even contracts with outside activists, the tort bar and other state AGs to advance private ideological, political and financial agendas. As EPA’s Motion notes, the AG’s Office has refused to provide good faith answers and an adequate privilege log, explaining why to EPA’s lawyers in one call: “This is a very confidential matter.” This claim is irrelevant, if telling, and EPA now seeks compelled responses and sanctions against Balderas’s Office.

As the Motion notes:

The [IPRA] requests relate to a multi-state campaign by certain offices of state attorneys general to coordinate the advancement of a sweeping private policy agenda. Although this campaign was undertaken in consultation with outside activists and other parties, these AG offices are obscuring their involvement under so-called common interest agreements. These common interest agreements themselves are being withheld, now in discovery, so that the Plaintiff, the public and the Court are expected to simply trust OAG that the details of these common interest agreements—which in turn are used to justify the withholding of volumes of public documents—do represent valid common interest agreements, and are legally privileged.

Although Balderas’s Office claims that the records detailing this coordination are privileged because of imminent litigation it plans to file, the Motion notes “The author, ringleader and lead signatory of the effort to shield discussions about suing to obtain federal “climate” regulations [New York Attorney General Letitia James] has just publicly denied that the parties have moved beyond such theoretical discussions, and flatly admitted that there is no reasonably anticipated litigation Defendant can point to supporting the claim that a preposterously broad purported common interest agreement shields the records Plaintiff seeks”. This admission by New York’s James was reported in a Wall Street Journal story by reporter Tim Puko that ran just last week, seeking to dismiss the reporter’s interest in these same machinations.

The Motion also notes:

The Defendant has invoked these secret common interest agreements to withhold correspondence to and from outside parties, and at least one Power Point presentation prepared by an outside activist, while also withholding the very agreements themselves. Both the purported common interest agreements at issue in this case and certainly the correspondence with outside parties that the Defendant continues to withhold  are of enormous public interest and importance for the light they shed on the use of a critical public office and public funds to pursue and keep secret a private agenda, the actual work of the “quasi-public employees” involved and the details of the collaboration between plaintiffs’ attorneys, private partisan political donors, ideological activists and states’ attorneys general.

In New Mexico the AGO is specifically commanded by law to enforce the Inspection of Public Records Act but is now holding itself above the law it is obligated to enforce. In so doing, AGO attempts to avoid New Mexico citizens’ right to the sunlight of public disclosure by entering self-serving agreements to keep the secret operations hidden from disclosure to the public.

As EPA informed the Court, “Defendant also changed its practice of releasing the identities of outside parties to responsive correspondence, and began reflexively, automatically and improperly withholding the names and identities of all individuals from outside of the New Mexico Attorney General’s Office who were copied on correspondence the Plaintiff requested.”

This unlawful behavior is being undertaken in fealty to several secrecy pacts one of which, EPA has learned, arranges for state AGOs to serve a supporting role for private tort firms pursuing municipalities in “climate nuisance” litigation. This suggests the prospect that the records’ details have also been shared with the tort bar, and others.

Other records obtained by EPA and hidden by AGO reveal a campaign with outside activists to impose the equivalent of the “Green New Deal” on the country through the courts, “purport[ing] to memorialize an agreement to take judicial or administrative action to require the Federal Government or private parties to take action or defend the right to take action to reduce or limit greenhouse gases. More concisely, it is an agreement to share information that may be used to do something against some public or private entity or entities, under some authority and maybe the Clean Air Act or not, at some point in time, but most definitely regarding greenhouse gases. As such it is not only a parody of a common interest agreement but also a clumsy effort at a secrecy pact, implemented in this case as an instrument to provide allies notice of requests and a plausible means to delay or refuse releasing public records… This is not a common interest agreement; this is an attempt to shield the workings of the New Mexico Attorney General from public scrutiny in violation of public policy.

“The public has a right to know how public dollars and the Attorney General’s Office are being used to advance private political agendas, and what contracts it enters in the public’s name,” said GAO’s Chris Horner. “New Mexico’s AGO has engaged in unlawful and often clumsy behavior to hide precisely what they are up to, which stonewalling today’s Motion seeks to finally end.”

Government Accountability & Oversight is a 501(c)3 non-profit organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement

GAO Attorney Files Third Lawsuit against Minnesota AG Ellison Over Refusal to Release Records re Bloomberg-Funded “Special Assistant AG” Disclosures, Work with Pressure Group

What did AG Ellison Know about Bloomberg “SAAG” relationships and when did he know it?

MARSHALL, MN – Today the public interest law firm Government Accountability & Oversight, P.C. (GAO), filed a public records lawsuit in Minnesota state court against Attorney General Keith Ellison. This action, the third that the nonprofit transparency group Energy Policy Advocates (EPA) has had to file in recent months, seeks to compel the AG to release documents shedding further light on the use of law enforcement with and to advance private interests.

Specifically at issue are records reflecting what information AG Ellison did, or did not, require of privately hired attorneys he brought in to Minnesota’s OAG from an activist group established by billionaire activist and major Democratic Party donor Michael Bloomberg to recruit and privately staff AGs to support his “climate” activism. These include disclosures, otherwise required of actual OAG attorney-employees, at key points in time about relationships with outside activists now boasting of their personal knowledge of these attorneys’ work.

Ellison has brought in two Bloomberg-funded, “SAAGs,” Peter Surdo and Leigh Currie. Surdo boasted on his LinkedIn profile of being “embedded with the Minnesota Attorney General’s Office as an Environmental Litigator and Special Assistant Attorney General”. Like Surdo, Ms. Currie has represented and continues to represent OAG in public filings and comments, including as counsel of record in OAG’s June 2020 lawsuit against the American Petroleum Institute, ExxonMobil, Koch Industries and Flint Hills Resources, on which she also was the Minn. Stat. § 549.211 Acknowledgement signatory.

However, it is clear that Ellison’s Office asked precious few questions about these attorneys’ arrangement with the Blomberg group, and that at least one is coordinating with other activists.

EPA’s complaint details how the Executive Director of a climate activist group called “Fresh Energy,” Michael Noble, boasted on a Zoom call soon after this suit was filed that his group “helped put this idea in front of Attorney General Keith Ellison shortly after he was sworn in” after “a national organization who [sic] leads on this kind of climate liability, climate litigation…brought this concept to Fresh Energy the Fall of 2018”. At the same time, Noble bragged of personal knowledge including that “attorney Leigh Currie on the Attorney General’s staff and Pete Surdo have basically been working on this full time over the last few months.”

Publicly available information shows that Ms. Currie and Mr. Noble serve together on the “Advisory Board” of an environmental activist group called Climate Generation, of which both are also listed as “Former Board member/past Board Chair” (the “Wayback Machine” confirms that this refers to the governing Board of Directors, and that Ms. Currie was the first Chair).

These troubling comments suggest indiscretions including about litigation favored by an activist colleague of hers, with whom she apparently remains in close contact on the subject of their joint activism, litigation the outside activist promotes and appears to take credit for bringing to OAG.

It also raises questions about Ms. Currie’s disclosures about her work with other activists both before coming to OAG via Bloomberg’s group and as she continued her work.

Ms. Currie’s disclosures about her relationship and communications with Mr. Noble and any conflicts they suggest are of great public interest.

However, EPA has learned in other litigation that Ellison’s Office rushed into this arrangement with little consideration of the implications, including, e.g., even failing to obtain the terms of these private attorneys’ employment with the donor’s organization. For example, OAG admits that it never obtained the Bloomberg group’s engagement letters with its privately hired attorneys placed in OAG asserting the parties’ relationship, SAAGs’ tasks and compensation.

Seeking to shed light on the facts surrounding Minnesota’s involvement with Ms. Currie, and specifically what disclosures were made when about Ms. Currie’s relationship with Climate Generation, Fresh Energy and Michael Noble before being brought in to OAG, and/or before filing the lawsuit against energy companies of which Mr. Noble boasted knowledge, EPA submitted a Minnesota Government Data Practices Act request to OAG on September 4, 2020. Ellison’s office has completely ignored the request for a quarter of a year.

Ellison’s Office previously refused to answer questions about these disclosures in the discovery stage of another open records suit in the same court, Energy Policy Advocates v. Ellison (No. 62-CV-20-3985). For example, it will not disclose information about what Leigh Currie disclosed to OAG prior to beginning work, and/or prior to her filing the lawsuit against energy companies of which Noble boasted, on Ellison’s behalf, or about potential conflicts of interest, relevant ongoing advisory or volunteer activities, her role on the advisory board of Climate Generation, and/or her contemporary service on the advisory board of Climate Generation with Fresh Energy’s Noble. Ellison has also specifically refused to disclose whether Ms. Currie communicated with Mr. Noble as she worked on the investigation of the companies she sued, which Noble boasts he brought to OAG, a suit he now boasts of personal knowledge about.

The public deserve answers as to what the AG knew, and when he knew it, about the Bloomberg group’s attorney and her relationships with activists. Unfortunately, for the third time so far, Attorney General Keith Ellison’s Office refuses to provide answers.

GAO’s Matt Hardin filed suit on behalf of Energy Policy Advocates.

Government Accountability & Oversight is a 501(c)3 non-profit organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement

The Washington Post ran an item, “Perspective: Biden is building a team that looks like the people it serves”. Author Steven Miller pithily replied, “Undeniably true headline but certainly not the way they intended it.”

Exhibit A: Mary Nichols — the head of California’s Air Resources Board and rumored top-three pick for a Biden EPA Administrator — apparently was moved to get a second place of her own across the country in New York after attending Climate Week in the Big Apple. Upper West Side, stone’s throw from the Park. Nice!

Very cool indeed. For me, if not for all of thee yahoos, mind. One just can’t miss Climate Week. Or stay in some grubby Four Seasons. Expect nothing less from (Green) Royalty.

Go Bi-Coastal…for the climate! Now sit still for your next four-year lecture on the need for state-imposed privation because climate change.

Hat-tip Energy Policy Advocates.

Miracle “Not a Treaty” Paris Climate Deal Apparently to be Subject of Law Enforcement Pursuits

It was one thing when, academics being academics, some immediately invoked President Obama’s purported unilateral ratification of the Paris climate agreement as reason to compel imposition — indeed, judicial commandeering — of the “climate”/energy suppression agenda through federal policy. (This was because “The Paris Agreement reflects the broader global recognition that climate change poses significant threats to fundamental human rights and all governments have obligations to address these threats under established principles of international law.”).

That was in the Climate Kidz case, Juliana v. United States (dismissed by the 9^th Cir. on other grounds). Depending on how things proceed in coming weeks, it won’t be the last time we see a court presented with that issue.

It is another thing entirely to see that Massachusetts Attorney General Maura Healey has promised Michael Bloomberg’s group that, if it provided her Office with privately hired lawyers she would name as “Special Assistant Attorneys General”, they would “be focused on ensuring that Massachusetts and neighboring states meet the long-term commitments set forth…in the Paris Agreement.”

…

Wait huh? You may be wondering, um, what long-term commitments are states bound to meet under the Paris climate treaty? A good question. And given Healey’s activist use of her office and the courts to impose this agenda, the absence of a good answer doesn’t mean the threat is not a serious one.

Indeed, the eagle-eyed reader no doubt spotted another “innovative” vow there, to pursue consumer fraud claims against disfavored targets, which Healey did. At the request of tort lawyers and activists. Pretty ugly stuff.

And pretty relevant, in another one of those coincidences the climate litigation industry is quite full of. As Energy Policy Advocates informed a court this very day, in a filing against Healey’s Office for its refusal to let the public know more about these promises made to an activist, deep-pocketed donor:

The Bloomberg Center/SEEIC placed two SAAGs to pursue this agenda out of OAG, one of whom is named Megan Herzog. Ms. Herzog is a former staff attorney with The Conservation Law Foundation, which is the group that – records released in this matter demonstrate – coordinated with Matt Pawa on “the Exxon issue” and [“climate nuisance” lawyer Matt] Pawa’s briefing of [Healey’s Office]. [FN: “I have been in discussions with Brad Campbell of CLF about the Exxon issue and we are coordinating on this.” January 4, 2016 email from Pawa to OAG’s Christophe Courchesne and Melissa Hoffer, Subject: global warming, released by OAG on September 11, 2019 after Plaintiff filed this suit.]

The second SAAG, Nora J. Chorover, also has professional ties to CLF. [FN: See, e.g., https://casetext.com/case/conservation-law-found-inc-v-roland-teiner-co].

Small world. And — barring President Trump at long last transmitting the Paris climate treaty to the Senate — a world in which we should soon expect to see what we have all been assured would never happen: law enforcement suing to compel compliance with a purely voluntary pact that most definitely is not binding and, you can be assured, “not a treaty”.

 GAO Files Lawsuit Against Oregon AG for Refusing to Release Emails, Memos from Activists, former EPA Attorneys about Plan to Sue to Impose Climate Agenda

SALEM, OR – Today the public interest law firm Government Accountability & Oversight, P.C. (GAO) reveals it has filed suit under Oregon’s Public Records Law against Attorney General Ellen Rosenblum and the State Department of Justice (DoJ), on behalf of the nonprofit transparency group Energy Policy Advocates, seeking to compel release of withheld email discussions, at least one memo and one Power Point slide show, shared by outside activists who are advising a group of progressive state attorneys general how to sue the U.S. Environmental Protection Agency (EPA) to impose a radical climate scheme rejected by the Obama-Biden EPA.

The specific objective, of a “climate” National Ambient Air Quality Standards or NAAQS (which can be both direct and indirect under the Clean Air Act), was rejected not only by Obama’s EPA and most green-group activists as being too extreme but one prominent green attorney, attempting to dismiss the prospect of a climate NAAQS, said “hell will freeze over” before the Agency attempted that. Baby, it’s cold outside.

Documents obtained to date by Energy Policy Advocates reveal the plan’s chronology, and show the AGs and activists acknowledging that this agenda is simply unattainable through normal processes. They instead developed a lawsuit, held for months now for a new administration to defend against or, as seems to be the plan, enter a “sue-and-settle” consent decree.

Under these “sue-and-settle” deals circumventing Congress to avoid political accountability, and even to some extent the rule making process, “the EPA would often commit to imposing changes that went far beyond what the law required”. It is a way for activist plaintiffs “to impose policies they can’t get through Congress. Their allies in the EPA would invite lawsuits, then settle with the greens by agreeing to implement some or all of their policies in consent decrees. When citizens or business complained, EPA would claim its hands were tied by the settlement.”

The Trump EPA sought to ban this practice on its watch. That the AGs and former Obama-Biden EPA attorneys activists withheld what emails show is a long-planned suit raises the question whether these AGs have coordinated in any way with a political campaign on this plan.

AG Rosenblum and DoJ are withholding entire emails and at least one slide show provided by a former EPA official, turned outside activist, and portions of other records detailing a campaign developed by former career EPA Office of General Counsel lawyers as well as one political appointee from the Obama-Biden EPA – now on the Biden-Harris EPA transition team – all of whom are now working with environmental activist organizations.

Emails obtained from a half dozen AGs over nine months show that Oregon’s DoJ, in the person of privately hired, Michael Bloomberg-funded “Special Assistant Attorney General” Steve Novick, took the lead in liaising with these former EPA attorneys, turned activists.

As the complaint notes:

Energy Policy Advocates requested, in three separate Public Records Law requests, copies of Department of Justice correspondence with former U.S. Environmental Protection Agency officials. These outside, private parties are largely now regulatory policy activists and were expressly referred by another outside activist to attorneys general offices (AGO), in response to one AGO’s request for names of “EPN folks”. “EPN folks” referred to a “501(c)(3)” policy group calling itself “Environmental Protection Network”, launched “to harness the expertise of former EPA career staff and confirmation-level appointees.” All of these parties volunteered to help promote a particular national regulatory agenda, including through pressure brought by state attorneys general offices…

The requested records are of great public interest. They reflect efforts by the Department of Justice to enlist outside advocates in a campaign to impose an activist federal regulatory agenda…

These redactions in emails exchanging thoughts with various former U.S. EPA attorneys on the aforementioned policy campaign include, inter alia, apparent withholdings of discussion, volunteered by these activists, of actress Jane Fonda getting arrested protesting in favor of the desired policy agenda; discussion in that same context of a rumored future Environmental Protection Agency Administrator; the descriptive part of emails’ Subject field; at least one exchange in substantive full; and ten pages redacted in full.

The AGs, led by New York and Oregon, were first connected with these officials by Biden-Harris EPA transition official Joe Goffman. Goffman referred New York’s OAG to former EPA official John Bachmann, who provided advice and directed the AG offices to former EPA Office of General Counsel attorneys for assistance in developing this plan. Mr. Novick led those talks.

Several of these AG Offices have admitted in litigation discovery that they do not have any agreement establishing any privilege between them and these outside activists. Yet they persist in insisting that their collaboration on a political agenda is too sensitive for public scrutiny.

In September, one New Mexico OAG attorney explained that Office’s remarkably obstinate stance against releasing records and in fighting discovery requests by noting, “This is a very confidential issue.” This not an actual exemption allowing AG secrecy, but is rather telling.

Assistant Attorney General Jennifer Steele said in open court last month, again to keep these records secret, “the fact of the affirmative litigation is important here because it’s not – certainly not known to anyone.” On November 12, 2020, OR DoJ claimed secrecy over more discussions they refuse to let the public see on the grounds they were prepared “in anticipation of litigation”.

Meanwhile, in this weekend’s Wall Street Journal, Oregon’s co-lead in this enterprise, the New York Office of the Attorney General, presented a completely different tale in its effort to distract attention from their scheme: “we have no plans at this time to bring litigation seeking to promote one particular approach.”

That’s a problem. GAO attorney Chris Horner comments, “Through this and several related actions in which these AGs are telling a completely different story, EPA hopes to learn which of these irreconcilable claims represents the AGs’ their true position.”

GAO attorney Matt Hardin said about the findings to date, and AGs’ efforts to hide the rest, “This reminds us that we soon could see a revival of sue-and-settle on major progressive priorities for which, rare as it may be, there is a greater appetite among the political class for the outcome than for public credit — which of course carries the risk of political accountability.”

GAO filed suit with local counsel Shawn Lindsay of Harris Berne Christiansen.

Government Accountability & Oversight is a 501(c)3 non-profit organization dedicated to transparency in public officials’ dealings on matters of energy, environment and law enforcement

Activists who came up with plan now on Biden EPA transition team

As reported in the Wall Street Journal, a trail of emails between progressive state attorneys generals (AG) offices and former Obama-Biden and career Environmental Protection Agency (EPA) officials – obtained over nine months by Energy Policy Advocates’ dogged public record requests – reveal a plan to use the courts to impose the “climate” agenda early in the next administration, skipping Congress. The chosen approach is even more aggressive than the disastrous and politically unattainable “Green New Deal” (now rebranded as “Net Zero”) and was previously rejected by the Obama EPA and green activists as too extreme.

The plan is for an otherwise Obama-like move: an end-run around the democratic process, avoiding political sign-off or accountability for what would be a massive, painful and ideological restructuring of the U.S. economy.

Obfuscating by AG spokespeople notwithstanding, the hope appears to be to revive “sue-and-settle”, a practice by which green activists sue, e.g., the EPA to impose rules that the regulators wanted but couldn’t attain through regular means. “Instead of fighting the lawsuit, the EPA would then almost immediately surrender, agreeing to settle… consenting to whatever outrageous demands were being made by the agency’s handpicked ‘adversary.’” “When citizens or business complained, EPA would claim its hands were tied by the settlement.”

The progressive state AGs take the line in the Journal story that, when their political fortunes turned in Biden’s favor, they stood down on their plan to use the courts to impose a ‘climate NAAQS’ and otherwise the agenda through the courts — rather than turned to planing for a “sue and settle”.

Of course, they don’t dare file suit let alone acknowledge such a plan until a new EPA administrator is confirmed. Any other position than New York’s “we have no immediate plans to do so” would make for a very difficult process for, e.g., the rumored EPA pick, whose work they claim in emails to be following as a roadmap, Mary Nichols. As it still should.

There are other problems with this public straddle, not the least of which is that the AGs take the opposite position in court in refusing to release further records to Energy Policy Advocates: suit is pending, so we can’t release this! One wonders to whom the AGs are telling the truth, the courts, or the Wall Street Journal. Someone might ask.

Change of Plans, Transition Teams and Secrecy Pacts

After “cap-and-trade” legislation failed the Obama-Biden EPA sought to use the existing Clean Air Act to impose climate regulations, led by an individual named Joe Goffman. The Supreme Court, in West Virginia v. EPA, ended that effort, sending the climate industry back to the drawing board.

Now, after turning to Mr. Goffman for advice, AGs from California and Oregon to New York and Massachusetts developed an approach to impose what is called a National Ambient Air Quality Standard for climate, or NAAQS, under a Biden administration.

Conveniently, Goffman is now situated to finish preparations from his post on the Biden EPA transition team.

The plan requires massive central regulation of nearly all aspects of economic life – Obama’s “climate” agenda on steroids, a perpetual “Lockdown Economy”, requiring truly massive reductions in energy use emissions. Even Obama’s EPA Administrator Lisa Jackson rejected a climate NAAQS as not “advisable”. One prominent green attorney said “hell will freeze over” before that came to pass.

Goffman referred the AGs to other former EPA officials-turned-activists. Following their recommended plan, the AGs this past Spring entered agreements among themselves and Bill DeBlasio’s New York City, and with environmentalist pressure groups, declaring their work on the issue to be legally privileged to try and keep it secret from the public.

One of those groups with whom the AGs signed their secrecy pact is EarthJustice. EarthJustice’s Patrice Simms was named to lead the Biden EPA transition team.

Politically Toxic Lawsuit Held for “Sue-and-Settle”

These public records obtained from a half-dozen AG offices show the plan has been fully baked for months. It began to take shape in 2019 as a “Hail Mary” pass out of despair over a continued Trump presidency; despair soon turned into hope for an administration that would accommodate their demands by agreeing to a “consent decree” to implement the agenda.

It seems clear that the AGs withheld filing their suit with this in mind.

Former Vice President Joe Biden ran for the White House on a promise of imposing these same policies, and like his running mate, he calls climate change an “existential crisis”. A Biden-Harris administration would welcome this suit.

So would Nancy Pelosi and most congressional Democrats. The “climate” agenda is one of those bright-line distinctions that help clarify voters’ thinking. When counting votes for her return as Speaker of the House after the 2018 elections, Pelosi “was pressed on the need to shield centrist members from politically perilous votes… cit[ing] the cap-and-trade climate bill that House Democrats passed in 2009”.

Members who had been around longer than “AOC” recalled how that vote, which stirred great public opposition, played a significant role in the 2010 Republican House takeover.

Indeed, this time around only the Senate Republicans brought the “Green New Deal” up for a vote, exposing its own co-sponsors, including Sen. Kamala Harris, as afraid to go on record supporting it.

Filing this lawsuit in 2020 would not have been helpful to a certain party’s election prospects.

But under sue-and-settle, it would be so long, political and legal problems, hello long-sought, radical agenda as the Biden administration moves on to other things. Unless the public becomes sufficiently outraged over the abuse.

Absent that, politically, this is exceedingly clever, though it is a betrayal of our system of governance. Economically, it would be disastrous. If successful, the Biden administration would agree to impose a COVID-style economy, claiming as its authority the D.C. Circuit’s approval of the agreement struck between friends, and citing to an existing law that was never designed to allow such a thing which is what necessitated such a deal to begin with.

AGs Stonewall, Confess

Possibly this explains why, once public record requests by the group Energy Policy Advocates focused in on this scheme with outside activists, AG offices began forcing the group to go to court before releasing any further details. They needed to buy time.

In a September phone call in one of these lawsuits, a New Mexico assistant attorney general explained her Office’s remarkably obstinate stance on the matter by saying, “This is a very confidential issue”. While curious for being legally irrelevant, the claim is telling.

In open court in October, Washington State Assistant Attorney General Jennifer Steele, arguing to keep these records secret, informed the court that “the fact of the affirmative litigation is important here because it’s not — certainly not known to anyone.”

As late as November 12, 2020, these AGs claimed secrecy over the rest of the discussions they refuse to let the public see, on the grounds they were prepared “in anticipation of litigation”. So much for mystery.

Will They Get Away With It? Sue-and-Settle Tsunami?

This revolutionary act appears to be on its way, unless the public nip it in the bud with opposition of the kind shown to Obama’s rather less audacious “cap-and-trade” end run.

These revelations and the AGs’ fight to delay further releases also serve as a reminder that we could soon see a tsunami of sue-and-settle moves on major progressive priorities, on which there is more appetite for the agenda among the political class than for openly taking public credit — which is to say, accepting political accountability.