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.