GAO

EXPOSED: Return of Sue-and-Settle: State AGs, DC Swamp Preparing Biggest End-Run in History — “Green New Deal” with No Legislation, No Rulemaking Process, Just a Sweetheart Consent Decree

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

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

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

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

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

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

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

Change of Plans, Transition Teams and Secrecy Pacts

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AGs Stonewall, Confess

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

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

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

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

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

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

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

SCOTUS Brief Reveals Tort Bar, Attorneys General Coordination Pact for Nationwide Flood of ‘Purely Local’ “Climate Nuisance” Litigation

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Bloomberg-provided Attorneys Insist to Courts “Climate” Suits are Local, Not Effort at National Policymaking; Documents Show These Attorneys Were Provided to AGs to Work on “Matters of National Importance”

Brief Reveals for First Time an AGs, Tort Bar Pact to Coordinate on “Local” Climate Nuisance Lawsuits

WASHINGTON, D.C., November 23, 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, revealing troubling facts about the epidemic of “climate nuisance” lawsuits being pursued by the tort bar in state courts nationwide. The Court is considering a largely jurisdictional question that goes to the heart of whether these cases remain in state court or can be removed to federal court given their obvious objective of obtaining national policy by circumventing the policymaking process.

First, EPA’s brief documents how privately hired attorneys, arranged for by billionaire political donor and climate policy activist Michael Bloomberg, were provided to progressive state attorneys general to work on energy, environment and climate matters “of national importance”. These “Special Assistant Attorneys General” were then promptly assigned by the AGs receiving the donations – including in Connecticut, Delaware, Maryland, Minnesota, New York and Washington, D.C. – to filing lawsuits and amicus briefs insisting that climate litigation is a purely local matter and must remain in state courts which, emails show the tort bar network telling prospective clients, present the “more advantageous venue for these cases”.

In fact, the very deliberate multi-front litigation campaign is – and as EPA also documents, has repeatedly been revealed over the years to be – an effort to bring about national policy which the climate industry has failed to obtain through policymaking channels. As such, these suits were repeatedly removed to federal court, where they were dismissed for the same reason.

The tort bar, AGs and plaintiffs all adapted – together, EPA reveals in today’s brief. They shifted to claims that these suits were in fact purely local affairs involving local damages and state consumer protection laws, and so should be tried in state court. This led to absurd arguments, such as that a case seeking to penalize regulated industries for carbon (dioxide) emissions was not “really not a case about carbon emissions, it’s not a case about any kind of pollution abatement, it is not a case about national treaties, and it doesn’t implicate any federal scheme.”

Affirming the coordinated national effort, for the first time EPA’s brief also revealed two documents confessing to coordination-by-contract among attorneys general from coast to coast and with the “climate nuisance” tort bar, since at least April 2018, on “joint participation in the Climate Change Litigation to be developed, including the development of litigation strategy and the preparation of legal briefs.” The pact specifies “the Climate Change Litigation” and, as of December 2019, that list has included Mayor and City of Baltimore v. B.P. P.L.C.

These suits flooding state courts claim to be purely local affairs for one reason. As today’s EPA brief notes, “the public records Amicus EPA has obtained reveal the extraordinary efforts of various states and municipalities, and their partners in litigation, to evade American Electric Power.” That is the SCOTUS precedent confirming that federal statutory law supersedes federal common law regarding causes of action to regulate carbon dioxide emissions. Which is to say that these suits seeking federal policy stand no chance in the federal courts.

In its brief at the petition stage, EPA had already documented to the Court how two independent sets of notes obtained under a state open records law, taken during a two-day meeting in July 2019 hosted by the Rockefeller Brothers Fund at the Rockefeller family mansion at Pocantico, NY, recorded the damning “funding stream” confession by Janet Coit, a State of Rhode Island cabinet-level official.

Each of these sets of notes, 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 [Rhode Island] as having emphasized the ‘state court’ aspect of its plan.”

Rhode Island, the plaintiff in Rhode Island v. Chevron, et al., shares the same private legal counsel retained by the Mayor and City Council of Baltimore. As EPA also previously noted to the Court, “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 Fourth Circuit Baltimore case before the Supreme Court is one among many proliferating in state courts, from coast to coast. The various abuses of the judicial system in this litigation epidemic is reminiscent of another matter cited by EPA in its brief at the petition stage, quoting the U.S. District Court for the Southern District of New York in Chevron Corp. v. Donziger: “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.” As EPA’s brief details, this strategy also seeks to force defendants to be more than just golden geese, but also to become lobbyists for the “climate” policy agenda.

The records presented in today’s Amicus Curiae brief by EPA confirm that this suit and those like it represent of a coordinated, nationwide effort both to raise “sustainable funding streams” that elected representatives are unwilling to impose the taxes to obtain, and impose federal policy that has eluded the plaintiffs through the proper democratic processes.

GAO’s Matthew Hardin 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

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

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