FOIA
“China’s Green Offensive”: GAO FOIA Suit Featured in Series
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.”
Horner observes,
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.”
Read the entire piece here, and the series beginning here.
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.
Pebble Mine & the Donor/Academy/Tort Bar Axis: EMail Exposes Faculty Coordination to Aid Donor Lobbying
The below image is from a recent document production in Government Accountability & Oversight, P.C. v. Board of Regents, an open records suit confronting UCLA Law School’s role in the advocacy industry, specifically through its Emmett Institute on Climate Change & the Environment. It is an email thread among the Institute’s Andrew Sabin Chaired professor Cara Horowitz and Andrew Sabin, copying Dan Emmett. Horowitz updates Messrs. Sabin and Emmett that she is coordinating on talking points for Sabin’s meeting with the Trump EPA in opposition to the Pebble Mine, with Columbia Law School’s Sabin Center Executive Director Michael Burger (who, like Emmett Center’s Ann Carlson, also has joined the climate litigation industry as a consultant to “climate nuisance” plaintiff’s lawyers):
This adds some interesting context to a high-profile battle to stop the mine from being permitted.
The New York Times calls Sabin “a precious metals magnate and Trump donor.” Sabin’s Sabin Metals. Corp. recovers precious metals like palladium, gold and silver. Pebble would produce more palladium, gold and silver. This presumably would impact the price of those metals. Less scarcity seems to be something that would impact Sabin’s business.
There is no indication which EPA official(s) Sabin sought to influence against the mine. Sabin seems to think lobbying the Trump administration has led to a reversal back to the Obama EPA’s position, blocking the mine’s owners from developing their property:
This thread is pregnant with suggestions about donor-financed centers at universities being helpful to donors. Their use in general — and the Harvard and UCLA Emmett Centers’ use specifically — is already a subject of scrutiny thanks in part to moments such as these:
GAO Files Second Lawsuit against Minnesota AG Ellison Over Refusal to Release Records re Bloomberg-Funded “Special Assistant AGs”, Tort Bar, Secrecy Pacts
Complaint reveals existence of AG efforts to contract away public’s rights under records act; agreement to share information with “climate” tort bar that also recruited OAG to file suit
ST. PAUL, MN – For the second time in recent months, the public interest law firm Government Accountability & Oversight, P.C. (GAO) filed suit against Minnesota Attorney General Keith Ellison under that state’s public records law on behalf of the nonprofit group Energy Policy Advocates (EPA). Today’s suit seeks to compel the AG to reveal details about the use of law enforcement to advance private interests, its own coordination with other outside parties, and an organized effort by certain attorneys general to keep records about all of this from the public.
At issue are records detailing how AG Ellison brought two privately hired lawyers into his office to advance the donor’s priorities, including a lawsuit the office just filed against energy companies. The complaint cites to records showing Ellison offering to get more active on matters of importance to this donor – a group established by billionaire climate activist Michael Bloomberg to place its own lawyers in AG offices – if only he had more resources than the legislature found appropriate to provide.
Other records sought include certain materials reflecting these attorneys’ work coordinating with outside activists to impose an extreme agenda in the name of climate change via the courts. The complaint notes that:
The Executive Director of a local pressure group called “Fresh Energy”, Michael Noble, who has acknowledged 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,” has publicly boasted that [Bloomberg-financed attorneys] “Leigh Currie on the Attorney General’s staff and Pete Surdo have basically been working on this full time over the last few months.”
Today’s complaint also reveals that Ellison has entered into contracts, alternately styled as “confidentiality” and “common interest” agreements, requiring his Office to provide notice to, and obtain the consent of, outside parties prior to releasing certain public information. These contracts cover records relating to its lawsuit against ExxonMobil, Koch Industries, Flint Hills Resources and the American Petroleum Institute recently filed by the two “Special Assistant Attorneys General” (SAAGs) hired and placed in Ellison’s Office by billionaire climate activist Michael Bloomberg.
About these pacts, GAO attorney Chris Horner comments that “They likely are void as against public policy including that underlining open records laws, and probably violate obligations of state attorney generals to the people of their states by purporting to contract away the public’s right to access to public information such as is embodied in the MGDPA.”
Remarkably, as the complaint also reveals, these contracts also claim a “common interest” in “public nuisance” climate litigation filed in other jurisdictions by private tort firms against the same or similar parties. Brazenly, Ellison’s Office is not only relying on these agreements to avoid release of records at issue in this matter but refusing to release the pacts themselves.
GAO filed suit with local counsel Douglas Seaton of the Upper Midwest Law Center.
GAO Files Lawsuit against Michigan Attorney General Nessel Over Records Involving Secrecy Pacts, Relationships With Outside Activists & Tort Bar Recruiting AGs
AG caught unlawfully using fees as barrier to access public records; tripled demand after coordinating with other AG offices under ‘Get Out of FOIA Free’ pacts; suit asks for sanctions
LANSING, MI, May 28, 2020 – Yesterday, on behalf of the transparency group Energy Policy Advocates (“EPA”), the public interest law firm Government Accountability & Oversight, P.C. (“GAO”) filed suit over Michigan Attorney General Dana Nessel’s refusal – in coordination with other state attorneys general offices – to release records about her office’s work with outside activists, the tort bar, and ideologically aligned state AGs to advance a shared political agenda.
The suit addresses the Department of the Attorney General’s (“DAG”) dealings with tort lawyers, green groups and former senior Obama administration officials on matters including a coordinated effort with AGs to file suit to impose the “Green New Deal” through the courts; investigate and sue energy companies over “climate change”; and block pipeline construction.
The Freedom of Information Act suit also seeks withheld information involving bills from an outside consultant brought on as a “Special Assistant Attorney General”, who became liaison to the AG’s Office for all such parties as well as Michael Bloomberg’s AG operation.
Key among the withheld information are numerous purported “common interest agreements” by which AGs hope to withhold production of otherwise public records unless all parties consented to their release — exempt or privileged records need no such agreement to be withheld and no such agreement can create an exemption or a privilege. As such, these pacts are troubling.
The story of what EPA had discovered, before the AGs’ coordinated effort slammed the door shut on further compliance with public records laws, was first covered in February by the Washington Times. Since then, AGs’ panic over further exposure has gotten so great that DAG has even begun withholding in full emails with outside advocates that it had already released.
DAG’s newly inspired clampdown on records, claiming privilege, extends to correspondence with certain members of the “climate” tort bar, a particularly egregious decision not only because DAG claims it has no agreement with the firm. Remarkably, DAG is even now withholding as privileged its emails with these outside advocates that it had previously released.
Matthew Hardin, Energy Policy Advocates’ counsel in public records suits in Vermont, Washington State, Maryland, and the District of Columbia, said “The majority of the public record requests covered by today’s Freedom of Information suit were met with either total denials of access or significant redactions, some of which EPA has already proved were improper. Despite previous judicial findings that a secrecy pact similar to those we found DAG has entered was not a valid common interest agreement, and not privileged, AGs have lately decided to hide records in the name of such agreements, and even the agreements themselves, forcing public record requesters to litigate if they get too close to certain information.”
Another troubling aspect of these deals emerged when, after coordinating with other AG offices with which it had entered these pacts, DAG demanded a fee for several months worth of such agreements that was three times what it first demanded to process an entire year’s worth.
DAG not only maintains that these records — which are merely purported contracts entered into on behalf of the state — shield certain public records from disclosure, but are themselves beyond public scrutiny. This refusal is particularly remarkable in that the agreements have all been shared with other states, and perhaps even private parties.
Public records obtained by EPA show that the deals involve assisting the “climate nuisance” tort bar, and have recently been invoked to hide coordination with former senior Obama administration appointees and career Environmental Protection Agency employees to use the courts to revive and impose a shared, failed policy agenda. DAG is thus hiding from Michigan taxpayers what it freely gives its political allies.
Hardin added, “The behavior of DAG and its allies raises serious questions of propriety, generally and about these arrangements. Michigan’s refusal to comply with clear mandates of the FOIA certainly demonstrates the need to bring these matters into public view.”
GAO attorney Neal Cornett filed suit with local counsel Zach Larsen of Clark Hill PLC.
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
Transparency Group Files SCOTUS Amicus Brief with Records Proving State “Climate” Lawsuit Is to Obtain “Sustainable Funding Stream”
Same two sets of notes from July Rockefeller-hosted meeting, confessing the revenue-raising motive, at were recently accepted by 1st Circuit over objection by plaintiff’s tort counsel
WASHINGTON, D.C., April 30, 2020 – The transparency group Energy Policy Advocates (“EPA”) today filed a Friend of the Court brief with the Supreme Court of the United States in BP P.L.C. et al. v. Mayor and City Council of Baltimore, providing public records showing the epidemic of “climate nuisance” lawsuits being pursued by the plaintiff’s tort bar in state courts across the country is a pursuit by governments for a “sustainable funding stream.” The tort bar recently turned to state courts after having their campaign shut down in the federal courts by SCOTUS in American Electric Power v. Connecticut, 564 U.S. 410 (2011).
This campaign was already confessed by the tort bar to be an effort to obtain unpopular “climate” policies denied their clients by the democratic process. It now is burdened by notes proving it to be an effort to raise hundreds of billions of dollars from the consumer, hiding the politically risky move to raise the revenues openly through taxes which, the documents presented to the Court also affirm, also are politically unattainable. Both are impermissible uses of the courts, and reflect a movement pinning its hopes for a radical agenda on state court bias. As such, the brief argues, belong in federal court.
Today’s Amicus Curiae brief argues that:
“States and municipalities are engaged in a campaign through the courts to overturn ‘unpopular federal laws.’ Rather than recognizing the Constitution and federal laws as supreme, governmental ‘climate nuisance’ plaintiffs are applying ‘narrow, grudging’
interpretation of the removal statute to seek to overturn federal law through imposing ostensible tort liability in state courts.” And
“This Court should prevent litigants from seeking the most favorable forum to obtain political and policy ends by judicial means.”
In the memo accompanying its motion, EPA provided the Court with two independent sets of notes obtained under a state open records law and which purport to record a damning confession by Janet Coit, a senior State of Rhode Island official: the objective of this litigation is to obtain a “sustainable funding stream” for the State’s spending ambitions, having failed to convince the voters’ elected representatives to provide one. Each of these, independently, “document the State’s concession that Rhode Island’s elected representatives are insufficiently moved by the State’s claims of loss and looming disaster to enact laws raising the revenues the State’s executives desire; and, that Plaintiff is thus ‘looking for [a] sustainable funding stream’, having been reduced to ‘suing big oil’ for its ‘Priority – sustainable funding stream’. Notably, both sets of notes capture the Plaintiff as having emphasized the ‘state court’ aspect of its plan.”
These notes were taken during a two-day meeting in July 2019 hosted by the Rockefeller Brothers Fund at the Rockefeller family mansion at Pocantico, NY, as a forum for policy activists and their funders to coordinate with senior government officials from 15 states. It is to these officials the Director Coit made her confession, captured at the time by two participants.
Rhode Island, in Rhode Island v. Chevron, et al. shares the same legal counsel with the Mayor and City Council of Baltimore. EPA presented the United States Court of Appeals for the First Circuit with these same records recently in that action, over the opposition of Rhode Island and its lawyers, Sher Edling.
Today’s brief noted, “That Rhode Island and the City of Baltimore share not only claims and legal strategies but legal counsel, whose recruiting team has emphasized to targeted governmental entities the desire to keep these matters in state court as the ‘more advantageous venue for these cases,’ given this Court’s ruling in American Electric Power, raises concerns that the climate nuisance plaintiffs also share the hope for state court biases in the campaign to eliminate budgetary shortfalls and otherwise make policy through tort litigation.”
The brief proceeded to cite emails obtained under open records laws in which “a lobbyist hired to assist with recruiting more governmental plaintiffs for Sher Edling passed along a note of encouragement to one prospective client whose counsel had expressed concern over [yet another federal judge dismissing a ‘climate nuisance’ case…that] flatly stated (or forwarded) the team’s position that state courts are the ‘more advantageous venue for these cases.’” (citations omitted)
Baltimore’s outside tort counsel ultimately agreed to consent to today’s Amicus brief, having previously and unsuccessfully filed a brief in opposition to the First Circuit seeing these records.
The Fourth Circuit Baltimore case before the Supreme Court is one among many proliferating in state courts, from coast to coast, an epidemic that now is admittedly about obtaining the “sustainable funding stream” that elected representatives are unwilling to impose the taxes to obtain. Quoting the U.S. District Court for the Southern District of New York in Chevron Corp. v. Donziger, which involved an infamous abuse of the judicial process, EPA highlighted a consideration relevant to the climate litigation tsunami: “The point of the multi-front strategy thus was to leverage the expense, risks, and burden to [defendant] of defending itself in multiple jurisdictions to achieve a swift recovery, most likely by precipitating a settlement.” That opinion was later upheld at Chevron Corp. v. Donziger, 833 F.3d 7 4 (2d Cir. 2016), cert. denied at 137 S. Ct. 2268 (2017).
Matthew Hardin, who represents GAO in numerous lawsuits, filed on EPA’s behalf.
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
Vermont Attorney General Sued to Compel Release of Improper Secrecy Pacts with other Attorneys General
AGO entered at least six contracts giving other states’ AGs veto power over Vermonters’ right to see Vermont public records, forcing requesters to sue; claims the pacts themselves are secret
MONTPELIER, VT, April 27, 2020 – Today the public interest law firm Government Accountability & Oversight, P.C. (GAO) filed suit against the Vermont Office of the Attorney General (AGO) under Vermont’s Public Records Law, on behalf of the transparency group Energy Policy Advocates (EPA). The lawsuit, filed in the Superior Court for Washington County by GAO board member and attorney Matthew Hardin, aims to compel the AGO to release several secrecy pacts with other state AG offices. This suit was brought after AGO made the remarkable claim that it has contracted its way out of the legal obligation to provide the public with their own records.
On March 27, 2020, EPA requested four categories of records, only one category of which is at issue in this lawsuit. Specifically, EPA requested that AGO provide copies of certain “common interest agreements” signed in 2019 or 2020 concerning the “climate” agenda.
AGO denied this request, claiming that six purported common interest agreements are exempt from disclosure as attorney-client communications or attorney work product. EPA filed the required administrative appeal, which AGO upheld in favor of itself on April 23, 2020, stating, “The agreements are subject to attorney-client privilege because they are confidential communications between the parties’ attorneys to facilitate the rendition of legal services to clients. In addition, the agreements constitute attorney work product because they were prepared by attorneys in anticipation of litigation. Furthermore, the agreements are subject to the common interest privilege as they were made in furtherance of the parties’ shared interests and strategies.”
The complaint notes that “Although the Public Records Act reflects the legislative intent of making records available to the public on a liberal basis, and Chapter 1, Article 15 of the Vermont Constitution provides that only the legislature has the power to suspend the laws of the State of Vermont, AGO has admitted in the exhibits mentioned above that it has entered into at least six purported “Common Interest Agreements” during 2019-2020, which it uses to shield records from the public eye, while nevertheless sharing such records with” third parties.
Hardin previously won several open records cases fighting “a bogus effort” by Vermont’s AGO to hide records from the public on the same topic, also including a similar secrecy pact among the same parties (the New York courts rightly acknowledged that purported common interest agreement was no such thing, and not privileged, in Competitive Enterprise Institute v. The State of New York. N.Y.App.Div., 161 A.D.3d 1283 (2018), 76 N.Y.S.3d 640).
About that pact, Vermont’s Deputy AG Scot Kline had written to New York’s AGO expressing concern over adopting “an affirmative obligation to always litigate” record requests looking into their efforts. The actions prompting today’s suit prove that AGO concluded that releasing records about its political alliances poses the greater risk, making requesters file suit after – as other public records show – contracting to give other states’ AG offices a veto over the release of Vermont records.
The Caledonian-Record, in an editorial “AG Smackdown,” captured a key and highly relevant moment from those prior AGO open records cases Hardin litigated:
“We get a request from [a group] and so one thing we might consider is where are they — who are these people?” [Chief Assistant Attorney General Bill] Griffin said in a transcript of the hearing. “Where are they going with this? And we Google them and we find, you know, coal or Exxon or whatever — and so we’re thinking this is — we better — we better give this some thought before we — before we share information with this entity.”
“Or it might be a news organization and we think, well, what are they going to do with it?” he continued. “Well, they’re going to publish it to the world. So that would be — I mean, that would be my mental impression and, you know, let’s exercise some caution. Is there some public interest publishing this information at this time? Probably not.”
To Griffin’s first argument, Vermont Judge Mary Miles Teachout asked… “So is that your argument?… That the Attorney General’s Office never has to comply with any public records request because it is the attorney for the state of Vermont?”
To which Griffin replied “We have to determine what’s in the best interest of the state.”
History, and that same unlawful bunker mentality, appears to be repeating itself here.
About today’s suit Hardin noted, “The Attorney General is improperly hiding contracts with other states, entered into on behalf of Vermont’s citizens yet designed to hide otherwise public records from those same citizens. The notion that a public office can shield from the public a contract, particularly one purporting to create a double wall of secrecy allowing that office to shield still more records from the public, has no support in Vermont’s Public Records Act or any other law.”
“The public has a right to know how its institutions are being used, and what contracts it enters into in the public’s name,” said Hardin.
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
Virginia Attorney General Sued to Compel Release of Improper Secrecy Pacts with other Attorneys General
AGO hiding at least four contracts giving other states’ AGs veto power over Virginians’ right to see Virginia public records, claiming the secrecy pacts themselves are secret
CHARLOTTESVILLE, VA, April 29, 2020 – Today the public interest law firm Government Accountability & Oversight, P.C. (GAO) filed suit against the Virginia Office of the Attorney General (AGO) under Virginia’s Freedom of Information Act, on behalf of Commonwealth citizen and GAO board member Chris Horner. The lawsuit, filed in the General District Court for Albemarle County by GAO attorney and board member Matthew Hardin, aims to compel the AGO to release several secrecy pacts with other state AG’s offices by which it claims to have contracted its way out of the legal obligation to provide the public with their own records.
On April 2, 2020, Horner requested any common interest agreement signed in 2019 or 2020 by Environmental Section Chief Paul Kugelman, Jr. AGO took an extension of ten business days before denying the request in full, withholding every word of every such agreement. Remarkably, Virginia’s AG stated that “The Office has identified approximately four (4) records responsive to your request. These records, in their entirety, constitute attorney-client privileged communications and/or attorney work product.”
The complaint notes that those privileges in Virginia exempt “advice of legal counsel”, “mental impressions” and “legal memoranda,” none of which the request sought. Also, Horner “only requested signed agreements, not draft or other inchoate records. Thus, the responsive records can only possibly include contracts to which the Commonwealth is a party. Having entered into contracts to deprive the citizens of Virginia of access to their own records, OAG now wants to keep the citizens from seeing the secrecy contracts as well.”
Hardin, a former Commonwealth’s Attorney for Greene County, VA, previously won several open records cases fighting “a bogus effort” by Vermont’s AGO to hide records from the public on the same topic, also including a similar secrecy pact, to which Virginia AGO was also a party (the New York courts rightly acknowledged that purported common interest agreement was no such thing, and not privileged, in Competitive Enterprise Institute v. The State of New York. N.Y.App.Div., 161 A.D.3d 1283 (2018), 76 N.Y.S.3d 640).
About that earlier pact also joined by Virginia, Vermont’s Deputy AG Scot Kline had written to New York’s AGO expressing concern over the AG offices adopting “an affirmative obligation to always litigate” record requests looking into their efforts. The actions prompting today’s suit prove that AGO concluded that releasing records about its political alliances poses the greater risk, making requesters file suit after – as other public records show – contracting to give other states’ AG offices a veto over the release of Virginia records.
About today’s suit Hardin noted, “The Attorney General is improperly hiding contracts with other states, entered into on behalf of Virginia’s citizens yet designed to hide otherwise public records from Virginia’s citizens. The notion that a public office can shield from the public a contract, particularly one purporting to create a double wall of secrecy allowing that office to shield still more records from the public, has no support in Virginia’s or any other law.”
“The public has a right to know how its institutions are being used, and what contracts it enters into in the public’s name,” said Hardin. “AGs have tried to hide these same kinds of secrecy pacts in the past and failed. This instance should prove no exception.”
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
![cop21-paris[1]](https://govoversight.org/wp-content/uploads/2019/11/cop21-paris1-1160x665.jpg)
GAO files lawsuit over Paris Accord “not a treaty” Obama shenanigans
PRESS RELEASE:
November 4, 2019 8:00 AM
Citing Newly Obtained Paris Climate Treaty Memo, GAO Files Suit against State Dept. Seeking Obama Administration Documents
As President Trump prepares to formally withdraw from Paris a newly obtained Memorandum of Law, if genuine, represents “major political and legal scandal”, “unlawful entry” to treaty
WASHINGTON, D.C. – Today the public interest law firm Government Accountability & Oversight, P.C. (GAO) filed suit against the United States Department of State under the Freedom of Information Act, seeking improperly withheld documents relating to the Paris climate treaty. The suit, on behalf of the nonprofit group Energy Policy Advocates (EPA), seeks records requested in June 2019, including the memorandum setting forth State’s “working law” claiming that the U.S. could enter Paris – what the Obama White House called “the most ambitious climate agreement in history” – without obtaining Senate approval required of treaties.
The complaint notes that EPA has come into possession of a document purporting to be the Obama State Department’s “Circular 175” memo, a required legal justification which State has been improperly hiding from the public. GAO’s Chris Horner, co-author of a 2017 paper “The Legal and Economic Case Against the Paris Treaty”, notes 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.
This memo demonstrates the Obama administration’s unlawful entry into the Paris treaty.
This 18-page memo bases its argument that Paris need not face Article II, Section 2 “advice and consent” in key part on a gross and material misrepresentation of the history of prior climate agreements supposedly authorizing Pres. Obama’s unilateral “ratification” of Paris. The memo falsely asserts that the U.S. Senate, in ratifying the UN Framework Convention in 1992, limited agreements that “would need to be submitted to the Senate for advise and consent (Exec. Rept. 102-55, p. 14)” to those that claim to have “legally binding targets and timetables”. This is demonstrably false, and likely related to the secrecy with which State has treated this document.
Damningly, on this one point the advocacy-heavy “Memorandum of Law” curiously avoids quoting the cited page 14 of Exec. Rept. 102-55, “Report to Accompany Treaty Doc. 102-38”, which in fact says something very different. There the Senate clearly set forth two, distinct hypothetical agreements requiring Senate approval, one of which is any decision “to adopt targets and timetables” – not just those purporting to be “legally binding” (e.g., Kyoto, Paris).[1]
The mystery since 2015 of how the Obama administration skirted this reality is now solved: the memo legally justifying U.S. participation in the Paris Agreement without Senate approval misrepresents the U.S. Senate position. It did so by sleight-of-hand, in a parenthetical invention:
“‘targets and timetables’ [was] understood in that context to mean legally binding targets”[2].
This is unsupported, and in Rept. 102-55 the Senate used both terms deliberately, to describe two distinct scenarios: first, any decision “to adopt targets and timetables would have to be submitted to the Senate for its advice and consent before the United States could deposit its instruments of ratification for such an agreement”, which of course describes Paris; “further”, any attempt to convert the UNFCCC’s non-binding promise then before the Senate into “legally binding targets and timetables …would alter the ‘shared understanding’ of the Convention between the Senate and the executive branch and would therefore require the Senate’s advice and consent.”
In short, the Obama administration misrepresented the facts to involve the U.S. in Paris, and to avoid a repeat of the Kyoto “accord” which died when the Senate refused to even consider it.
The Obama White House played Paris both ways: acknowledge that Paris was more ambitious than two prior treaties that came before it –requiring ever-tightening emission reductions, every five years, in perpetuity – while denying it was a treaty. The Clinton-Gore administration acknowledged that Kyoto was a treaty, which confronted popular resistance and proved that any such deal is a non-starter in the U.S. Senate, where it must go.
This lesson led the Obama administration to opt for a convoluted tale and placing a bet that the Senate would avoid institutional conflict. This new memo affirms that bet’s brazenness: although a Senate lawyer decried this “disturbing contempt for the Senate’s constitutional rights and responsibilities” by circumventing the body’s constitutional treaty role on Paris, as with the Iran “JCPOA” deal the institution shrunk from a constitutional fight. However, as Horner notes:
This memo affirms the political and constitutional imperative for President Trump to withdraw the U.S. from this unlawfully entered pact. The records EPA seeks in the suit filed by GAO are critical components of the coming, necessary and long overdue debate.
Key excerpts from EPA’s complaint include:
The records requested include and relate to the required “Circular 175” analysis of whether an agreement is a treaty. …
As EPA noted in its request, “These records are of immense public interest. The Obama White House declared the December 2015 Paris agreement the “most ambitious climate change agreement in history”, therefore more ambitious than two predecessor climate agreements acknowledged by all parties to be treaties. Most parties have ratified Paris as a treaty under their own systems but, regardless, for U.S. purposes Paris has every appearance of being a treaty under Circular 175, and has been ratified as a treaty by legislatures around the world — if “deemed” into existence by then-heads of government of a small number of outlier countries, including the United States and North Korea.”
Plaintiff has come into possession of a document purporting to be the Paris Circular 175 memorandum of law that is responsive to plaintiff’s request.
This document materially misstates, while studiously avoids quoting the actual, referenced text of the history of the agreements purportedly enabling the claim that Paris need not be subject to Article II, Section 2 “advice and consent”.
As such, if authentic, this document represents a significant legal and political scandal. Records responsive to plaintiff’s request would allow the public to evaluate this information and are the only means that would allow the public to do so.
GAO looks forward to the State Department releasing these records the public has a right to see.
The lawsuit in full is here: Case 119-cv-03307 (PDF)
The press release in PDF form:
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
[1] This is confirmed in “Treaties and other International Agreements: The Role of the United States Senate, A Study Prepared for the Committee on Foreign Relations, United States Senate, by the Congressional Research Service, Library of Congress” (see p. 276).
[2] This is not supported in the memo, and is debunked in S. HRG. 102-973 – cited in the memo itself – at p. 119 (“Some targets were meant to be legally binding; others were “goals” or “aims” and included numerous caveats.”)