GAO

CHASER: No “Swamp” to See Here — EPA Quietly Hires ‘Climate RICO’ Ringleader as “Career” Enforcer

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Can’t Spell The Swamp Without E-P-A

Following up on this gem posted earlier, the topic of properly using — or misusing — law enforcement powers is one of great interest to GAO, which also runs ClimateLitigationWatch.org. The importance of the issue has become increasingly obvious in the past, say, four years. It became more topical still with the announcement of former California Attorney General Kamala Harris as Joe Biden’s running mate. 

Expect more news in coming days and weeks on then-AG Harris’s actual role with the climate litigation industry, about which she has expressed some confusion. For now, bearing in mind the new demand for an Inspector General report on why career EPA lawyers aren’t left to run amok, harken back to the infamous March 29, 2016 press conference with investor Al Gore at which 17 state attorneys general offices were represented (including Harris’s) to announce that, given persistent democratic resistance to the “climate” agenda, AGs would use law enforcement to impose it anyway.

Massachusetts AG Maura Healey suggested that the reason the climate movement had been frustrated by the democratic process is that dark forces managed to confuse people, causing them “to misunderstand and misapprehend” the facts as she sees them. Those forces were now going to pay.

Literally. One participant, U.S. Virgin Islands AG Claude Earl Walker, wrote to his colleagues in advance of the pre-presser strategy session and hush-hush pre-briefing that, after extracting an $800 million settlement from Hess Oil, “We are interested in identifying other potential litigation targets.”

Visions of a climate settlement fund in the hundreds of billions of dollars, modeled after the tobacco settlement and again for distribution among political constituencies, danced in the AGs’ heads

Walker had just emerged from obscurity with a disgraceful torrent of subpoenas of over 100 groups and individuals in an effort to silence political opposition. As the Washington Times reported, “Mr. Walker has been the most aggressive member of AGs United for Clean Power, an unprecedented coalition of 17 attorneys general aimed at pursuing fraud accusations against Exxon Mobil and other fossil fuel companies.”

These broad subpoenas covered years of, e.g., donor information of targeted non-profit organizations, most of which had first appeared on an environmentalist pressure group’s target list. See, e.g., Valerie Richardson, “Virgin Islands Attorney General Claude Walker used Greenpeace list to target climate change skeptics: Listed names decry effort to silence climate change dissent.”

You see, he had to “make it clear …that we have to do something transformational” about climate change.  Mr. Walker also boasted of this in those same pre-meeting suggestions to the other AGs.

The press conference represented the high-water mark of a disastrous campaign to pursue political opposition to the climate agenda as racketeering, under the Racketeer Influenced and Corrupt Organizations Act, or RICO. AGs fled the coalition as open records requests poured in to reveal how these institutions came to be used this way (the answers are very ugly). The first test case, in New York, began as the Climate Trial of the Century and fizzled out as an accounting dispute, ultimately blowing up on NY OAG, whose effort the defense “eviscerated”.

Walker himself was also in for a rough ride, though he was ultimately saved from sanctions for his behavior by the District of Columbia Courts.

Mr. Walker apparently finds DC quite hospitable, having relocated there where he has been quietly brought into the Trump Environmental Protection Agency (EPA). As a Deputy Director, apparently for Criminal Enforcement of all things.

A Freedom of Information Act lawsuit against EPA by GAO on behalf of the transparency group Energy Policy Advocates produced numerous items of interest regarding this development (while not answering how this came about), including the resume Mr. Walker used to score the position. CLW was rather surprised to see his top marquee career achievement.

That important national investigation Mr. Walker launched involved a supposed anti-racketeering investigation that subpoenaed parties for sharing the common trait of having opposed the “climate” political agenda. One which collapsed the moment it was subject to open-records scrutiny.

MAJOR ACHIEVEMENT: Launched important national environmental investigation” — New Environmental Protection Agency Enforcement attorney Claude Earl Walker, on the ill-fated 2016 ‘Climate RICO’

One target of Mr. Walker’s subpoenas was the Competitive Enterprise Institute. CEI responded to Walker’s subpoenas by noting, “You are entitled to your opinions on public policy, but you have no right to wield your power as a prosecutor to advance a policy agenda by persecuting those who disagree with you.”

Another target of the subpoenas described them to a state court as “a pretextual use of law enforcement power to deter [it] from participating in ongoing public deliberations about climate change and to fish through decades of [its] documents with the hope of finding some ammunition to enhance Attorney General Walker’s position in the policy debate.”

When challenged, then-Attorney General Walker quickly withdrew this fusillade of subpoenas, though this apparent abuse of power became the subject of CEI’s move for sanctions. After which, someone decided he needs to be in a senior position of federal environmental law enforcement. If not, mind you, so much that such an otherwise very newsworthy hire warranted drawing attention to it.

One can understand the reticence, by whoever engineered this, to announce the hiring. It does make Swamp Denial a little more difficult.

Here’s to more government accountability and oversight.

 

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”

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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.

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

Pebble Mine & the Donor/Academy/Tort Bar Axis: EMail Exposes Faculty Coordination to Aid Donor Lobbying

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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:

 

RELEASE: GAO Asks Court to Force State Dept. to Stop Stonewalling on Paris Climate Treaty

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As Biden vows immediate re-entry into climate pact, State stops processing FOIA request: litigation seeks to reveal whether Memo asserting false premise for “disturbing contempt” of skirting Senate ‘advice & consent’ is genuine; “major political and legal scandal”

WASHINGTON, D.C. – Late Monday night, the public interest law firm Government Accountability & Oversight, P.C. (GAO) filed a motion asking the United States District Court for the District of Columbia to order the State Department to stop stonewalling a request under the Freedom of Information Act (FOIA) relating to the Paris climate pact, and release records including a State Department memo that stated “the United States may join the 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 not seeking Senate, despite that the Obama White House confessed that it was “the most ambitious climate agreement in history” – more ambitious than earlier, admitted climate treaties, including the Kyoto Protocol.

The plaintiff, nonprofit transparency group Energy Policy Advocates (EPA), has obtained an 18-page, undated document purporting to be the Obama State Department’s “Circular 175” memo concluding that Paris was not a “treaty”; 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 Legal Memorandum, 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, which had ignored EPA’s request, now seeks to keep these records from the public until after the U.S. “re-joins” Paris, when it will be legally “stale” and of interest only to historians.

EPA sued State on November 4, 2019 seeking the memorandum setting forth State’s “working law” claiming that the U.S. could enter Paris without obtaining the Senate approval required for treaties. State recently informed EPA that, while it was processing FOIA requests again, it would not process EPA’s seeking the Circular 175 memo, a required legal justification which State has been improperly hiding from the public.

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.

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”.

Last night’s filing notes that the history which led to Paris – materially misrepresented in a version of the memo obtained by EPA – includes the Senate instruction that all climate pacts purporting to commit the U.S. to “targets and timetables” require Senate approval. Instead, it appears the Obama State Department weaved a convoluted tale, placing a bet that the Senate would avoid institutional confrontation. This apparent 175 Memo affirms that bet’s 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.

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.

EPA’s filings make the following points:

* Paris was to serve as the next generation of international emission reduction promises succeeding the 1997 Kyoto Protocol, which the Senate did not approve but voted in advance, 95-0, to “advise” the Clinton administration to not enter.  That administration signed Kyoto anyway but never obtained the requisite political support to dare seek Senate approval. The lesson learned from Kyoto was that the United States Senate will not approve such commitments;

* The claim that Paris does not require Senate “advice and consent”, because a condition of ratifying UNFCCC was that only pacts purporting “legally binding targets and timetables” require ratification, is a false one. The State Department decision to paraphrase and very selectively quote its authority is troubling. In short, the Obama State Department misrepresented the facts to involve the U.S. in Paris, and to avoid a repeat of Kyoto by disregarding the Senate;

* 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 or until the U.S. withdraws. Now courts are holding parties to Paris to its terms. The U.S. faces the real prospect of being subjected to these terms which, evidence obtained by Energy Policy Advocates indicates, were improperly committed to in the first place. The records at issue in this matter 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.

GAO looks forward to the State Department releasing these important public records.

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

“Just Transition”: Hiding the Climate-Agenda Confession of “Substantial Job Losses” in Plain Sight

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Someone’s focus coetus is showing. Right on time with the European Union’s agonizing over how many billions to spend in a “Just Transition Fund” to help balm the self-harm of the job-killing “green deal”, we see U.S. climate activists deploying the same euphemism  for equivalent harms here.

 

What does “Just Transition” means among friends? “Substantial job losses from the movement towards a cleaner economy”.

 

h/t Energy Policy Advocates for the records of a “US Climate Alliance” planning session.

Remember this the next time advocates for “substantial job losses”, erm, “movement towards a cleaner economy” denies that.

Have no fears. Money is no object to this crowd, who once warned “before you gasp” about a budget proposal, and that was just for off-books private funding of “climate” staff and consultants for governors (the ask was $50 million for the current period).

New Records Suit Filed Against Massachusetts AG Over Refusal to Release Records re Coordination with Tort Bar, Academics in Investigating Opponents

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BOSTON, MA – Last week,  Timothy Cornell of Cornell Dolan, P.C., filed suit against Massachusetts Attorney General Maura Healey under the Commonwealth’s public records law on behalf of the nonprofit transparency group Energy Policy Advocates (EPA). This 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.

This is the second time in less than a year that Healey’s Office has forced EPA to file suit to obtain public records relating to its work with the climate industry. In 2019, OAG insisted it couldn’t release its correspondence with a private tort lawyer named Matt Pawa, who pitched AGs to pursue the same energy companies Pawa also was pursuing, “without compromising our investigation or litigation strategies”. The was risible, and after the public interest law firm, Government Accountability & Oversight, P.C, filed suit, OAG turned all of the emails over rather than defend the claims. These emails are directly related to this latest suit.

This new action involves four requests including one that OAG refused even to acknowledge, and another that it charged EPA nearly $1,000 to process, only to cash the check but not produce any records. Both requests relate to OAG’s relationships with outside activist parties, including an academic who wrote her center’s largest private funder from a meeting in Cambridge attended by five attorneys from AG Healey’s Office, explaining that they were gathered to discuss “going after climate denialism [sic]—along with a bunch of state and local prosecutors nationwide”.

EPA also seeks correspondence with an outside activist attorney named Brad Campbell. Emails released in previous litigation with AG Healey’s Office revealed that Campbell worked with tort lawyer Pawa to develop his pitch to AGs to pursue energy companies also being pursed by Pawa. The AGs’ litigation campaign has led to attorney general investigations of private parties, and targeted more than 100 research and advocacy groups, scientists and others.

EPA has learned that AG Healey has entered into contracts relevant to this suit, alternately styled as “confidentiality” and “common interest” agreements, requiring her Office to provide notice to and obtain the consent of outside parties prior to releasing certain public information, thereby contracting away the public’s access to public information as embodied in the open records law.

“The Commonwealth continues to shield its public policy choices behind the Public Records Act’s litigation exemption,” Cornell said after filing the latest lawsuit. “This makes for bad government and worse policy.”

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 Files Second Lawsuit against Minnesota AG Ellison Over Refusal to Release Records re Bloomberg-Funded “Special Assistant AGs”, Tort Bar, Secrecy Pacts

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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.

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