“1001” Reasons Congress Needs More Information
A timeline of events surrounding Elizabeth Klein’s appointment as Senior Counselor to the Secretary of the Interior sheds some light on the Department’s ethical lapses and raises even more questions.
January 21, 2021 Elizabeth Klein, recent-former Deputy Director of the Michael Bloomberg group created to plant activist attorneys in state AG offices to, among a very few other things, file suit against federal agencies including the Department of the Interior, joins the Department of the Interior, per Klein’s LinkedIn page.
April 24, 2021 WaPo reports that bipartisan Senate opposition has scuttled Klein’s expected appointment to be Deputy Secretary of the Interior.
Representative Boebert: Ms. Klein, the White House pulled your potential nomination to be the Deputy Secretary because your conflicts of interest were so severe that you faced bipartisan opposition. Has the ethics office at the Department provided you with a recusal list? Yes or no.
Ms. Klein: Thank you for that question. Yes, I have been consulting on an ongoing basis with our ethics officials and am taking my responsibilities and ethics requirements seriously and I have an ethics agreement that I operate under.
Representative Boebert: So, you have been provided with a recusal list. Who and what matters are you currently recused from and would you provide the Committee with that full list?
Ms. Klein: I am happy to provide the list.
June 3, 20201 Reps. Westerman, Gosar and Boebert send letter to Klein/DoI reminding them of this exchange and the promise to produce, noting there has been no production, and requesting records by COB June 10, 2021. These include:
- A copy of Ms. Klein’s signed ethics pledge.
- A copy of the information Ms. Klein provided to DOI’s Ethics Office describing her work at SEEIC.
- A document describing the role and responsibilities of the Deputy Director of SEEIC during Ms. Klein’s tenure in the position.
- A document listing the regulatory challenges supported or advocated by SEEIC or its legal fellows.
- A document listing the matters and actions on which Ms. Klein advised or supported through her work at SEEIC.
- A document listing the decisions, deliberations, and actions that include Ms. Klein’s participation as a DOI employee from January 20, 2021 to June 2, 2021.
June 4, 2021 DoI provides Klein with “Ethics Guidance on Recusal Obligations”, “supplement[ing] and replac[ing] the interim ethics guidance on recusal obligations provided to you in earlier draft memoranda”.
June 5, 2021 (Saturday) Klein provides a signed and dated (that day) “Ethics Recusals & Screening Arrangement” stating, inter alia, “this memorandum fulfills the requirement established in Section 4(a)(iii) of Executive Order 13989 entitled, “Executive Order on Ethics Commitments by Executive Branch Personnel” (Jan. 20, 2021) (Ethics Pledge).”
June 10, 2021 DoI writes to the Committee to provide these documents, seemingly affirming in its cover note that Ms. Klein had no ethics agreement in place at the time she testified that she was operating under an ethics agreement. This raises concerns, particularly given 18 USC §1001 (which sets forth criminal penalties for providing false information to the U.S. Government).
May 28, 2021 Days after Ms. Klein’s appearance, United States District Court for DC Judge James Boasberg schedules a hearing for June 4, 2021 on Energy Policy Advocates’ (EPA) motion for a preliminary injunction to compel DoI to release Klein’s ethics recusals letter and related documents, under a federal FOIA request and lawsuit filed by EPA.
At the hearing Judge Boasberg orders the case to proceed under an expedited briefing schedule, moving it forward on the calendar by many months.
This makes Ms. Klein’s ethics records, including any pledge in effect on May 25, 2021, and all back-and-forth in preparing any ethics and recusal agreement and other related documents, subject to a federal court’s order for expedited consideration.
As such, regardless of any follow-up legislative oversight, further records informing a conclusion about this testimony should become available in coming weeks.
The Biden Environmental Protection Agency (USEPA) has released selected, often heavily redacted records pertaining to the conflicts and recusals for Principal Deputy Assistant Administrator, and Acting Assistant Administrator for Air and Radiation (i.e., “climate”), Joe Goffman.
The recusal statement is notable for what it does and does not include. As for the redactions, they appear to be heavy-handed given past EPA practice. The refusal in full to release draft recusals appears to be an improper withholding of the “back-and-forth” known to be subject to release.
Readers may recall Energy Policy Advocate’s amicus brief in State of New York et al., v EPA, which revealed Goffman’s role consulting for progressive attorneys general on particular regulatory matters presently before USEPA, and under Goffman’s present remit. For example, the scheme to use the “NAAQS” regime to sneak in what the Wall Street Journal called “Biden’s ‘Back Door’ Climate Plan”.
There is no mention of any such work or recusal in what USEPA did release…including the recusal statement (it seems that learning what the drafts contain will require litigation). As such, these records sharpen the question — increasingly appropriate for Biden’s climate “all-star” team — of what Goffman disclosed about his prior work to his ethics officer(s) and when he he disclosed it.
The release is timely, incomplete though it may be. Appointees can remain in an “Acting” capacity for a limited number of days. There is scuttlebutt that the Biden White House intends to game the law and calendar to keep Goffman in place as “Acting” AA for as long as possible to put off or even avoid subjecting him to the scrutiny/accountability of the confirmation process.
The “Back Door Climate Plan” and the past consulting with AGs adverse to USEPA in litigation on matters in Goffman’s portfolio may well be two reasons for that.
In an interview last week with Politico — he is getting around these days (and ducking the same question, as well as at least one question about the NAAQS scheme) — Goffman dodged a question whether he expects a change in his status as only one of two confirmable USEPA appointees about whom the White has yet to produce paperwork.
Do you want to be nominated to be the assistant administrator for air and radiation?
I haven’t thought about that in quite a while. I’m extremely content with what I’m doing now on a day-to-day basis.
The recusal letter and what it contains — as well as what it does not — seems likely to be an issue in the event the Biden Administration seeks to formalize Mr. Goffman’s role and subject him to the required accountability. Given the increasingly obvious reluctance to facilitate congressional oversight and exploration of these activities, presumably the Senate Environment and Public Works Committee plans to schedule a hearing on its own.
You likely have heard that the Supreme Court reached the right decision today in BP plc et al. v. City of Baltimore. That opinion concerns a mildly weedy procedural mater (whether the 4th Cir. erred in holding that it lacked the power to consider all of the defendants’ grounds for removal), but a critical one given the circumstances, and an opinion which should help in removing these cases to federal court where they belong.
All of these suits represent transparent attempts to manufacture state jurisdiction for a campaign whose proponents previously admitted was a national one to substitute verdicts for Congress’s refusal to adopt certain policies. This opinion serves as another reminder of the importance of the state vs federal jurisdictional issue in the wave of “climate” litigation washing over state courthouses around the country.
In the City of Baltimore case, GAO client Energy Policy Advocates (EPA) filed amicus briefs establishing what it had obtained, at the time, showing what these suits were about: obtaining a “sustainable funding stream” to underwrite governmental spending ambitions, and to coerce the defendants into becoming lobbyists for and funders of further lobbying for a national “climate” regulatory regime targeting hydrocarbon energy for extinction.
Tomorrow, EPA will release a report that reveals, for the first time, damning details confirming who is actually conducting this purportedly governmental litigation campaign and how they are doing it, as described in the parties’ own hand.
EPA’s work under state freedom of information laws has now made it no longer credible to continue questioning who is really bringing these nominally governmental suits into being. Specifically, this puts to rest forever an unfortunate claim by a federal judge almost precisely three years ago of “a missing link between the activists and AGs.” Not anymore.
This should be relevant to all pending state climate litigation, and other efforts such as Exxon Mobil’s move currently before the Texas State Supreme Court to obtain pre-suit discovery, and learn what is behind these raids by, e.g., California cities on Texas-based companies to fill the municipal coffers, and the plaintiffs’/advisors’ associated advocacy. Given what EPA has now learned and produced for public education, it seems inevitable that such efforts would be replicated to examine other suits filed in the Midwest and on the East Coast.
On remand to the Fourth Circuit — and in other fora in coming months — EPA looks forward to shedding more light on these improper litigation tactics.
Timely milestone for one of the most cynical documents obtained during the Obama administration
With the signs increasing that the Biden EPA plans to use National Ambient Air Quality Standards (“NAAQS”) to impose its climate agenda without the political peril of congressional votes, GAO wishes an infamous Obama-Biden memo a Happy, Very Timely Anniversary.
This particular memo, titled “Strategic Communications Conversation” to which PR advisor Allyn Brooks-LaSure attached a “Non-Paper” (that also was non-provided), was dated on this date in the early months of the Obama-Biden EPA, and broken on January 26, 2015. It turned up in the “Richard Windsor” trove of records obtained by the Competitive Enterprise Institute from then-Administrator Lisa Jackson’s false-identity email account, an account used promiscuously by current Biden officials Gina McCarthy and Joe Goffman.
It’s quite something to read this memo, written at precisely this point in the Obama-Biden administration, and with new sue-and-settle examples, erm, “reconsidering” Bush regulations piling up (more on that later).
This is particularly important given signs detailed to the DC Circuit here, laid out here, and very nicely summarized in today’s Wall Street Journal here, that EPA is preparing to issue a secondary ozone “NAAQS”, in a brilliantly craven move to even further obscure what it is up to on CO2. (Recall, 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. Well, Texas just froze over, at least, and with the help of this very agenda.)
What this memo shows is EPA’s recognizing it had to move its global warming campaign away from the failed model of discredited Big Green pressure groups and their “mascots” the polar bears and polar ice caps, that “climate” has proved “consistently — an unpersuasive argument to make.” In it we see the birth of the breathtakingly disingenuous “shift from making this about the polar caps [to] about our neighbor with respiratory illness…”.
Doubling down on the cynicism, it continued:
Children:…By revitalizing our own Children’s Health Office, leading the global charge on this issue, and highlighting the children’s health dimension to all of our major initiatives – we will also make this issue real for many Americans who otherwise would oppose many of our regulatory actions.
Here we see the conviction, manifested, that if they yell “clean air” and “children” enough about something they, the media and the green groups will ultimately get their way.
Which perfectly segues into today’s blockbuster Wall Street Journal editorial, “Biden’s ‘Backdoor’ Climate Plan,” about how “Democratic AGs, green groups and a top Biden environmental regulator are colluding on a plan to impose the Green New Deal on states through a back regulatory door” — “to hasten a replacement ozone rule that regulates CO2” — “because they know they can’t pass it through the front in Congress.”
As far back as June 2020 progressive AGs already banded together to make sure promiscuous claims of a so-called COVID “emergency” didn’t unleash projects that were actually “shovel ready”. Could lead to economic recovery.
Shut down the economy in the name of a COVID emergency? How dare you question that.
Spend trillions for the same reason? Absolutely.
Suspend laws in the name of a “climate emergency”? Of course.
But expediting those things that (even the very same) politicians insist are their top priority — infrastructure projects — to, you know, actually put people back to work and get them built? Don’t get crazy.
H/t Energy Policy Advocates.
Capital Research Center has published a series by investigative journalist Kevin Mooney, “China’s Green Offensive”.
This item, “China’s Green Offensive: The Obama State Department”, includes reference to an important suit brought under the federal Freedom of Information Act (FOIA) on behalf of the Institute for Energy Research. Excerpts:
Natural Resources Defense Council. In particular, Jack Schmidt, NRDC’s director of international programs, exchanged several messages with Obama State Department officials including Todd Stern, who was a special envoy for climate change at the time of correspondence in 2014 and 2015. Several messages are heavily redacted in the FOIA records, making it difficult to flush out key details. But as noted in an interview with this author, Chris Horner, an attorney for Government Accountability and Oversight, finds there is enough information to show that the NRDC had a hand in formulating the Obama administration’s approach to the Paris Agreement.
“Paris is a treaty according to all historical and common-sense considerations,” Horner says. “Pretending otherwise satisfies a publicly stated priority of the French hosts of the Paris talks, of the Obama White House and the Obama State Department, and of the NRDC, which emails suggest was the State Department’s adviser on this issue.”
Under Article II of the U.S. Constitution, the president can enter into treaties, but only with the “advice and consent” of the Senate and only if “two-thirds of senators present concur.”
After reviewing the FOIA records, Cohen concluded that the back and forth between the NRDC and the State Department demonstrate that the Obama administration received and accepted legal advice from green activists who were searching for a way to maneuver the U.S. into what was effectively a treaty while bypassing constitutional requirements. He credits President Trump for withdrawing from the Paris Agreement, but also expressed his concern that too many U.S. policymakers are slow to awaken to the dangers posed by green activists who are advancing policies that undermine the U.S. while benefiting China.
“NRDC’s opposition to America’s fossil-fuel development aligns with China’s goal of crippling its primary global rival,” Cohen said. “The Paris Agreement constrains American energy development, which is exactly what the NRDC and Beijing want.”
Horner is not impressed with the legal rationale State Department officials used to redact large portions of the correspondence. The exemption rule cited in the FOIA records protects information about individuals in “personnel and medical files and similar files” when the disclosure of such information would “constitute a clearly unwarranted invasion of personal privacy,” according to the Department of Justice’s description of Exemption 6.
He’s not buying the rationale because the sections of the released emails highlight the NRDC’s role in shaping the Paris Agreement. “They’re not saying it’s government information that we shouldn’t be privy to,” Horner explained. “What they’re actually saying is this collusion is none of our business but it is very much in the public interest.”
Of particular interest to Horner is the Circular 175 memo that Obama State Department used to enter into the Paris Agreement. This type of legal document outlines the legal process department officials use prior to a U.S. administration’s decision to join an international agreement or treaty. It is typically used as an action item by bureaus within the State Department to request authority from department leaders to “negotiate, conclude, amend, extend or terminate an international agreement.”
Whatever the memo said about the Paris Agreement, it reflected NRDC’s role and input and served as the justification for the Obama claim that an obvious treaty, adopted by all of our supposed models under their procedures for treaties as opposed to agreements, was actually not a treaty for U.S. purposes.
The NRDC, headquartered in New York, “is one of the nation’s largest environmentalist groups” and “has more than $180 million in assets to fund its programs,” according to InfluenceWatch.…
The fact that the NRDC is so lawyered up might help to explain why so much of the correspondence between Schmidt and Stern, and others, is concealed in FOIA documents.
World Resources Institute. The World Resources Institute, which operated as a conduit for Chinese interests, appears to have made the mistake of being more overt in its electronic communications with Team Obama. The tight personnel connections between government agencies and green pressure groups lend themselves to a smooth flow of communications.
After leaving the State Department, Stern went on to serve as a distinguished fellow with the WRI for a period of time, which is instructive. He’s no longer on staff, but the incestuous relationship between the WRI and State Department officials from the Obama era is instructive. So is the original FOIA request from the Institute for Energy Research (IER), a nonprofit group that favors free market policies in the energy sector.
The FOIA request dated June 26, 2018, asks for all correspondence between a list of State Department employees and someone named Jennifer Morgan. Morgan is currently the international executive director for Greenpeace, a position she has held since April 2016. Before that, she was the global director of the Climate Program at WRI. A press release from IER announcing its FOIA lawsuit describes her as a “green group lobbyist” with close ties to China’s National Center for Climate Change Strategy and International Cooperation (NCSC):
Public records indicate the Obama State Department leapt to assist WRI’s effort to aid the Chinese government even after being told precisely what the group had been asked to do and for whom. The requested records would shed further light on what that help constituted, and what role Ms. Morgan and WRI played on behalf of China’s government relevant to U.S. policy.
The records IER obtained in response to its FOIA lawsuit highlight a coordinated approach to climate change policy in which Morgan by her own acknowledgment operated at the behest and encouragement of Chinese officials.
An email dated April 15, 2015, from Morgan to Stern, the State Department’s special envoy for climate change, and Clare Sierawski, a chief of staff in the office of special envoy for climate change, demonstrates how China’s makes use of willing accomplices in the environmental movement.
In her message, Morgan describes how she was “approached” by a Chinese government entity to “pursue a dialogue” that would bring U.S. and Chinese officials together:
We think the interest stems from Chinese recognition that this Administration is coming to an end soonish and their desire to open up channels in DC that are additional to the ones that are working well now. As you will see, they are also interested in long-term ideas that one could imagine being discussed with the next Administration (depending of course who it might be).
Morgan even names some of the Chinese officials who could be in on the conversations.
In her April 2015 message, Morgan also tells State Department officials that her Chinese contacts were also looking for an opening to “share ideas around the Paris Agreement” and to recruit think tanks in the U.S. for the purpose of examining what “different approaches or packages could look like for Paris.”
RELEASE: Court Denies Request to End State Dept. Stonewall on Documents Behind Obama Evasion of Senate “Advice & Consent” for “most ambitious climate agreement in history”
As Biden vows immediate re-entry into climate pact, State has stopped processing critical FOIA request; Plaintiff argued to Court that next 60 days present the sole opportunity for public to debate the question whether Paris was in fact legally “entered” by Obama/Biden’s Pen-and-a-Phone Strategy
Court Nonetheless Urges State to Release Three Remaining Documents by October 15
WASHINGTON, D.C. – This afternoon, the United States District Court for the District of Columbia denied a Motion for a Preliminary Injunction to compel the State Department to release three Obama-era records relating to the Paris climate agreement, in time for the voters to assess the propriety of the Obama/Biden backdoor “pen and phone” means of purportedly ratifying Paris, which former Vice President Biden vows to replicate on his first day in office if he prevails in November 3 election.
Judge Trevor N. McFadden ruled in favor of State against the nonprofit transparency group Energy Policy Advocates (EPA), represented in the Freedom of Information Act (FOIA) suit by public interest law firm Government Accountability & Oversight, P.C. (GAO), which sought the emergency injunction.
At issue are records including a State Department memo that stated, “the United States may join the [Paris] Agreement as an executive agreement (as opposed to a treaty requiring the Senate’s advice and consent) as a matter of domestic legal form”. This was the basis for Obama/Biden avoiding a Senate vote, despite the Obama White House confession that Paris is “the most ambitious climate agreement in history” – more ambitious than earlier, admitted climate treaties, including the Kyoto Protocol.
In support of its Motion seeking emergency relief, EPA’s filings make the following points:
* The United Kingdom Court of Appeal recently cited the expansion of transportation infrastructure as incompatible with the Paris agreement, blocking expansion of Heathrow International Airport and placing all infrastructure projects in doubt as violative of Paris’s commitment to reduce greenhouse gas emissions; this is an opinion whose logic most assuredly will soon be argued against projects in the United States in the event the U.S. purports to re-enter Paris using a “pen and a phone”, as Joe Biden promises to do on his first day in office;
* Mr. Biden has chosen to make “re-entry” into Paris, and therefore these records, of critical and timely importance to the public. Mr. Biden combined the vow to re-enter Paris with a promise to spend $2 trillion on infrastructure, which surely will be challenged as impermissible under Paris;
* The requested records will allow the public to make an informed decision during what is the sole policy debate that ever will take place over this matter, now that candidates for the two highest political offices in the land have vowed to immediately re-commit the United States to Paris by purely executive means if elected;
* Paris’s terms include a promise of ever-tightening constraints, every five years, in perpetuity. Now courts are holding parties to Paris to its terms. The U.S. faces the real prospect of being subjected to these terms which, an apparently leaked Memo indicates, were improperly committed to in the first place. These records are the only source of this information available to the public, at this, the sole if fleeting moment when the public is at long last asked to consider that position as well as its gravity.
EPA sued State on November 4, 2019. State recently informed EPA that, while it was processing FOIA requests again, it would not process EPA’s seeking the Obama State Department’s Circular 175 memo, a required legal justification which State has been improperly hiding from the public and which apparently advised the Obama White House why it could claim that Paris was not a “treaty”.
EPA has obtained an 18-page, undated document purporting to be that Legal Memorandum; emails indicate it was produced in April 2016, or five months after the then-Secretary of State John Kerry had publicly declared the administration would not call whatever was agreed to in Paris a treaty. The Memo, seemingly a self-serving conclusion in support of the Obama White House’s predetermined conclusion, is based on a false claim about Senate conditions established when ratifying a prior climate pact. State seeks to keep the records from the public until they are not a threat but of interest only to historians.
The memo grounds the bizarre claim that unlike other climate treaties, “the most ambitious climate agreement in history” need not obtain Article II, Section 2 “advice and consent”, in a gross and material misrepresentation of the history of prior climate agreements.
In fact, the December 2015 Paris Climate Agreement is by its lineage, custom and practice and other considerations, including level of detail and purported commitment, a treaty. That is why other nations treated Paris as a treaty when entering it; the “not a treaty” fiction was limited to the United States. French diplomats not only signaled the constitutional end-run in advance, but helpfully made clear it was because of U.S. domestic political opposition.
GAO’s Chris Horner, co-author of a 2017 paper “The Legal and Economic Case Against the Paris Treaty”, comments that:
If this document EPA has obtained is in fact the actual Circular 175 memo, 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. But only if the public is able to see this history during this one, sole public policy debate over “re-entry”.
EPA’s Motion noted that the history which led to Paris – materially misrepresented in the Memo version obtained by EPA – includes the Senate instruction that all climate pacts purporting to commit the U.S. to “targets and timetables” require Senate approval. It appears the Obama State Department instead weaved a convoluted tale, placing a bet that the Senate would avoid institutional confrontation. Other records reaffirm the brazenness: although a Senate Foreign Relations Committee lawyer decried this “disturbing contempt for the Senate’s constitutional rights and responsibilities” by circumventing its constitutional treaty role on Paris, the institution shrunk from a constitutional fight.
GAO’s Horner said, “In response to EPA’s motion for an emergency injunction, this State Department dismissed the importance of allowing the public to learn about these unprecedented machinations before making a choice that both candidates say should be influence by their respective positions on the Paris treaty.” State acknowledged that “It is true that, on very rare occasions, courts have granted preliminary injunctions in FOIA cases on a finding that the subject of the underlying request relates to a matter of national debate implicated in an upcoming election.” However, State insisted, there’s just no urgency here, ignoring the threat to the treaty process.”
Despite the Court siding with State, Judge McFadden urged State to process the three, key documents by EPA’s requested deadline of October 15, 2020, and instructed the parties to report back to the Court by October 17, 2020. State’s attorneys indicated reluctance to accede to the Court’s request. As the matter proceeds, GAO strongly urges all parties to read the Memo’s key misrepresentation on its page 14.