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