Washington Examiner on Energy Policy Advocates’ FOIA Suit re Paris Treaty

FOIA lawsuit seeks to highlight just how little ‘advice and consent’ went into the Paris Agreement

By Kevin Mooney

Getting documents out of a government agency is a heavy lift. That’s what the nonprofit organization Energy Policy Advocates aims to do in a Freedom of Information Act lawsuit, seeking State Department documents that describe how the Obama administration circumvented the Constitution to join a United Nations climate treaty.

A joint status report filed earlier this month suggests something of a “deep state” effort could be underway to delay the release of any such documents until after Joe Biden becomes president.

For reference, Inauguration Day is Jan. 20. In response to the suit, which was filed in November 2019, the State Department indicated it does not expect to begin releasing any of the requested documents until Jan. 26 and has proposed a deadline of Feb. 9 for another joint status report filed with the U.S. District Court for the District of Columbia.

Energy Policy Advocates has rejected the Jan. 26 deadline for the initial release of documents. The State Department, in turn, has rejected a proposed compromise date from the plaintiffs of Jan. 19 for the department to begin releasing documents and of Jan. 29 for a new joint status report…

Environmental [sic] Policy Advocates had sought to break loose the Obama-era Paris Agreement documents prior to the 2020 election so that voters could have insight into how the Obama administration sidestepped the Senate’s “advice and consent” role. But in September, the district court denied a motion for a preliminary injunction to compel the State Department to release records pertaining to the Paris Climate Agreement…

Government Accountability and Oversight, the public interest law firm that filed the FOIA suit on behalf of Energy Policy Advocates, has available on its website an 18-page document its client obtained detailing how Team Obama bypassed the constitutional process.

At issue is what’s known as a Circular 175 memo, which refers to the legal procedure that administrations follow when entering into treaties and other international agreements. If the document in question is the Circular 175 memo, then “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,” Chris Horner, an attorney with GAO, says in a press release. The key arguments the Obama administration used to avoid activating the Senate’s “advice and consent” role amount to an insistence that the Paris Agreement was akin to other precedent executive agreements.

Horner is also the co-author of a report from the Competitive Enterprise Institute, a libertarian think tank in Washington, that finds “the Paris Climate Agreement is a treaty by virtue of its costs and risks …” Horner also warns in his report that it “endangers America’s capacity for self-government” since “it empowers one administration to make legislative commitments for decades to come without congressional authorization, and regardless of the outcome of future elections.”

Read the entire piece here.