State Department stonewalling on Paris Accord FOIA docs, gets sued, again

Competitive Enterprise Institute Sues State Department Again Over Paris Climate Agreement Records

Monday, Nov. 13th, the Competitive Enterprise Institute (CEI) filed its second lawsuit against the State Department to obtain illegally withheld documents related to the 2015 Paris climate agreement. In October 2017, CEI submitted a Freedom of Information Act (FOIA) request for emails of two State Department officers involved in the Obama administration’s maneuvering to circumvent the Senate in order to join the Paris agreement, Trigg Talley and Alexandra Costello.

Trigg Talley and Alexandra Costello were both members of the State Department when the decision was made to avoid characterizing the Paris agreement as a treaty. Talley is presently in Bonn at the Paris treaty talks as Director of the Office of Global Change at State Department. Costello was a State Department Capitol Hill liaison during the Obama administration tasked with managing relations between the Senate and the administration.

The Obama administration cut the Senate out of the treaty process in order to join the Paris agreement. Documents obtained under a previous FOIA production show Costello correspondence with a lawyer for Senate Foreign Relations Committee Chairman Bob Corker.  In response to an August 2014 New York Times report about Obama’s plan to circumvent the Senate, the lawyer said this news “indicate[s] a disturbing contempt for the Senate’s constitutional rights and responsibilities.” Yet, Chairman Corker never publicly opposed Obama’s circumvention of the Senate. CEI seeks to learn just why this silence occurred.

The FOIA request seeks certain text message and email correspondence to and from Talley and Costello. To date, the State Department has provided no production of records, prompting CEI to sue.

“As the Senate and now two administrations continue to remain silent about how our treaty process was ignored in order to claim the U.S. was a party to the Paris climate treaty, CEI continues to seek relevant information to learn how this came about,” said CEI Fellow Chris Horner. “The Trump administration should carefully examine what led to our signing of the agreement without seeking Senate advice and consent, and what steps should be taken next given what their own records show. Critically, the new administration should allow the public to see this information, no longer abetting the Obama administration’s many FOIA stonewalls.”

See more about the case here.

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63 thoughts on “State Department stonewalling on Paris Accord FOIA docs, gets sued, again

    • Somebody should be doing some serious time over this rot. As it is, it is just the same nose thumbing over and over and over again. The State Dept. needs to get potty trained.

      • i agree with you mike. the state department is a body of public servants. they are there to serve the public . any member of the public should be able to get any information they like as long as it does not concern matters of national security.
        the public servants in this instance are known by name. they should be hounded untiul they oprovide the information requested and if they do not they should be thrown in jail until they do.

      • Bob Corker is also not a fan of the Trump Administration, and may be part of the “Swamp” himself. Nick, I know you keep up to date on climate, but clearly you are not so up on politics (not necessarily a bad thing). And this is not Trump’s State Department yet (it’s barely Tillerson’s). It’s history of under-the-radar swamp creatures is legend, and there is likely plenty in these emails they would like to hide. “Sunlight is the best disinfectant…”

      • There’s Corker’s name popping up in another controversial area. Corker also neglected to prevent Obama’s nuclear deal with Iran.

        I guess those are some reasons Trump doesn’t have much good to say about Corker.

        Corker is a swamp creature. He will be drained at the next election.

      • Wikipedia says he has announced he will not run again in 2018. Seems like no great loss. Creatures from the lagoon come in all sorts of political flavor.

      • This isn’t Trumps State Department.

        This, like all other bloated departments, is above all else a powerful self serving institution that lets the administrators inject their biases into all decisions. Decisions that prioritize self protection first and foremost.

        If Trump is around long enough to clear out the existing administrative bias & insert his own bias, you would be saying the same thing 8 years from now. (except with the blinders you use to keep away the “unwanted distractions” you wouldn’t realize it is the same).

        There are repeated scare arguments that if we lose Trigg (and others) from State, we will lose invaluable institutional knowledge. My question is, why do Trigg (and others) want to hide their valuable knowledge? To make themselves more valuable, or to hide something that shows that they are weaselly, lying, selfish, biased, operators of their own little kingdom?

      • michael hart November 14, 2017 at 11:05 am: An excellent film, I watched it in 3D some years ago. I recommend that experience.

      • “clearly you are not so up on politics “
        I keep up enough to know that Corker is not an Obama administration holdout. He is a Republican Senator. And it is perfectly possible for Tillerson to direct the release of these materials. The suit is CEI vs the State Department. The Federal Government. Obama isn’t running it any more. Trump was elected to do that. See, I do keep up.

      • Nigel S, I watched it when it was originally released. Still think that for its time, it was an exceptional film with a very life like creature – usually at that time any “rubber suit creature” looked and moved strange. I also always felt it was wrong to kill it since it was in its own domain. Now I feel the same way about me as the wackos try to kill off all of those that “don’t fit the plan.”

      • ‘Bob Corker is also not a fan of the Trump Administration, and may be part of the “Swamp” himself.’

        I’m sure he knows. This is called being deliberately obtuse.

      • Taylor Pohlman November 14, 2017 at 10:41 am

        Bob Corker is also not a fan of the Trump Administration, and may be part of the “Swamp” himself.

        He’s one of the ROUS who live in the swamp. It is routine for such critters to vote against the interest of the voters who elected them.

        The President has one more year to prove that he is working for the forgotten people. If he actually works for the benefit of those who elected him, the Republicans stand a good chance in the mid-terms and he stands a good chance of being reelected. Otherwise, it is entirely that someone will come along who makes Donald Trump look like a paragon of moderation and diplomacy.

      • The President has one more year to prove that he is working for the forgotten people.

        I just stumbled over this story that indicates that blue collar wages are doing rather well. Good news for the President. Perhaps some of the Republicans, like Corker, who oppose him will see the writing on the wall.

      • Awww, how cute. Nick wants to play American politics.

        Why is Bob Corker the name you cherry-picked from the article? He’s a Senator and not part of the State Dept. He has no control over this FOIA.

        Yes, CEI is suing the State Department. “…The FOIA request seeks certain text message and email correspondence to and from Talley and Costello. To date, the State Department has provided no production of records, prompting CEI to sue…”

      • Bob Corker is not an Obama Administration holdout. Um, except he is. A lot like McCain, who has pretended to be a conservative. We call them RINOs (republican in Name Only). They say some of the right things when trying to get elected, then when it’s time to vote, AND their vote will count, they show their colors. Like any Democrat, they are for whatever will get them good press. Fortunately, both of them have limited days in office. Mouthy McCain will still toot from the sidelines, but no one will care. Press only loved him because he could be relied on to stab the GOP in the back when it really mattered. But they still couldn’t love him as much as any properly labeled Democrat.

    • The war on Gorebal Warming will never be over as long as there are taxpayer funds to snuffle out of the trough and gullible voters who are willing to fear their own shadows.

  1. If I could offer any advice to the Obama Administration loyalists it would be to take on Phil Jones on a consultancy deal. There is but no one who knows more about ducking FOI requests and avoiding jail time when finally run to ground.

      • I think Cephus0 means as an advisor . . .
        Plainly Phil Jones has talents beyond meteorology – and he may be willing to share some of those with ‘swamp cvreatures’.
        For a fee, perhaps . . .

        Ah – might Cephus0 be Phil Jones’ agent? [joke!]

        Auto

  2. Loyalists be damned, hang ’em by their thumbs. It doesn’t make sense that the Trump administration is providing cover for Obama, or that that knucklehead is at the conference now.

    • He (Talley) is probably having social fetes with Jerry Brown, the self-anointed “President of California” and discussing strategy on how to be better accepted by the “proper people” who take the politically correct view of climate action. Get him and his cohorts out of this administration before they cause more damage…

      • You know, If Jerry Sunshine wants to play that he is still part of the Paris Accord, he should know that not only does he have to de-carbonize, he needs (along with all the other states) to come up with the $5bn which is really what the accord is about – wealth redistribution. I’m sure California can just pull that amount out of petty cash…
        What do they say? Follow the money.

      • Taylor Pohlman – ” the politically correct view of climate action ”

        I just heard a radio segment about the current climate meetings, and I’m left confused with the ‘politically correct view of climate action’. One speaker was lamenting the state of Puerto Rico, 56 days after the hurricane Maria devastation. He excoriated President Trump’s administration for not making more of an effort to restore their power, while at the same time excoriating President Trump’s administration for not deterring climate change. Seems that the speaker has the solution at hand by mandating that Puerto Rico become a zero emission island. That way Puerto Rico gains self virtue, and President Trump doesn’t need to get involved.

      • Can you imagine what state Puerto Rico would be in if they were trying to get by on 100% wind power when the hurricane hit?

      • Good point John H. I saw the pictures of the totally devastated solar farms. That sure looks like money well spent. :-)
        Sarc,

  3. “our signing of the agreement ”

    Our didn’t sign it; Obama did. Let those who have a complaint take it up with him.

  4. A carnival side show. As a matter of well settled US law, any international agreement with an opt out is NOT a treaty under constitution Article 2 section 2.2. This is settled law going back to when Thomas Jeferson was secretary of state. Paris has an opt out.
    The relevant question is whether Paris is a pact requiring majority approval of both houses of Congress, or a mere executive agreement which does not. Since congress approved the UNFCCC pact, and Paris came under its aegis, there are two separate lines of legal reasoning that it is a mere executive agreement.

    • Questions. Do executive agreements (or orders) carry over to subsequent presidencies, and if so, can a subsequent president simply nullify a prior executive order with an executive order?

      • Re: Executive Orders, Yes. That is their greatest weakness, that is why most Presidents have not tried to use them for anything too consequential. Anything that one President can do with a simple signature, another President can undo with another signature. (Except get the $400 billion back from Iran, that money is gone forever)

        What’s more, Congress can override any Executive Order if it wishes. The President could veto that bill, but Congress can override the veto.

        Executive Orders only stand as long as the next President agrees with them and the Congress chooses to ignore them. That’s why any foreign country would be very foolish to rely on the permanence of anything that had nothing but one President’s signature on it.

      • Why is there talk then that the US must wait until 2020 before withdrawing from the agreement? It would seem that Trump could simply sign an order stating that the Paris agreement is null and void. In other words, how can there be a process to exiting an agreement that has been nullified?

      • No, they don’t, or they shouldn’t. I believe the constitutionality of the Paris “Agreement” is questionable on that ground alone. The so-called “opt-out clause” is there, but won’t go into effect until 2020.
        Because of the possibility of abuse, executive agreements should be abolished. No president should ever be allowed to get away with what Obama did, ever again.

      • Yes, he could; in fact it is often pointed out that the easiest way to leave any treaty is to openly violate it, such as when Germany repudiated the Versailles Treaty of 1918 by invading Poland in 1939. Treaties, in the end, are nothing more than pieces of paper, and what really matters is what the various parties are going to do about it after one side rips it up.

        In the current case, since we have many commercial connections with the Euro’s who are pushing for this treaty, the President and his team have decided that it is less disruptive politically to use the withdrawal mechanism that is built into the Paris Accord, and thus appear to be leaving the accord in accordance with the appropriate formalities. That’s where the four years comes from. Is it stupid? Of course it’s stupid, but it avoids a huge blowup with the Europeans when we still can use at least some support from them in the Middle East and with the North Korean situation.

        Everything affects Everything else, and Everything is political. That’s the world we live in. Maybe in a hundred years people will actually be able to do things because they make scientific and economic sense, but not now.

        Make that two hundred years.

      • WWS – I have read some of the executive orders – they are NOT for things that “aren’t too consequential.” Most would be unconstitutional to start with. Now, having said that and having read what you wrote, I am still looking for the authority under the Constitution that allows a president to “write law,” for that is exactly what an enacted executive order that allows the government, as an example, to take and use personal property without compensation, as it sees fit would be. In fact there is no authority, under the Constitution, for Congress to write such a law. However, we don’t have a Constitutional government, do we, so those points are mute I suppose. Still, I recognize the President can write an executive order that affects the executive branch, but I do not see the authority to bypass the House, which is the only Constitutionally recognized authority to “write law,” and issue an executive order that affects the nation as a whole. And where does the $400 billion come from, as that is no number that I have ever seen regarding the Iran nuclear deal that the Iranians appear to be upholding even though Israel doesn’t want us to say they are.

      • first – sorry for the typo with respect to the Iranian deal, the planeload of cash that was sent as part of that Executive Agreement was $400 Million, not Billion. (($400 billion would take quite a few C-5’s, probably) Another $1.7 billion was given to the Iranians in other ways.

        The constitutional problem with Executive orders is that they are not strictly “constitutional” or “unconstitutional” – they fit into the category of actions that are usually called “extra-constitutional”.

        Meaning mainly that the practice exploits a gray area in the law, and a President can get away with anything that the Congress lets him get away with. There have, in fact, been quite a few legal challenges to various executive orders, and the courts will almost always rule “Well, Congress didn’t do anything about it, so Congress must not object, and we won’t override the other two branches.” And so the President gets to act like a King and do whatever he wants, since the other two branches won’t lift a finger to do anything about it.

        Whenever you see people talking about the Imperial Presidency, and how it keeps getting stronger no matter which candidate or party is in office, this is what they’re talking about.

    • you’ve repeated a common internet myth; but in fact that claim only comes from one archived letter of Thomas Jefferson, and has never been ratified by the Supreme Court. Meaning that it is far from “settled law” – the best that can be said is that it’s an open question.

      What IS settled law is that any international agreement that is submitted to the Senate for Ratification is considered a “treaty” under US law, no matter it’s terms; and any agreement that is NOT submitted to the Senate is NOT considered to be a “treaty” under US Law.

      We come in the end to the same point – if it’s not a treaty, but just an agreement, then the current President has the power to scrap it with no more than his signature. That’s why “agreements” like the Paris Accord are so weak.

      https://www.law.berkeley.edu/library/dynamic/guide.php?id=65

      • WWS, I ommented on what I learned in Con Law at HLS, and then double checked in several legal references when exiting Paris first came up. A treatupybis immutable save by mutual consent. A pact (like NAFTA) has a opt out but requires Congressional approval. An exutive agreement applies in three specific areas: some aspects of foreign policy (recognizing a countrynor ambassador), as commander in chief, and pusuant to the faithfully uphold the laws clause (Article 2 section 3). Obama signing Paris was this last, the arguement being faithfully upholding CAA after the endangerment finding.
        An executive order is none of the above. It is the president using his authority as executive branch CEO, or (as with the immigration order) authority delegated to the executive branch by act of congress.

      • First, I should note that we both agree that the Paris Accord is not a treaty. So, how we treat it is just a matter of semantics, as to which method is the best way to kill US participation in it.

        on a broader scale:

        “A treaty is immutable save by mutual consent.”

        It’s funny how we all still like to pay lip service to that nice piece of idealism, when in fact the US has ripped up dozens of treaties that were supposed to be “immutable”, and so has every other nation that does exist or that has ever existed. In reality, treaties last as long as both sides view the costs of leaving them to be greater than the costs of staying in them. Once that is no longer the case, then nations walk out and tell the other members “well, you can negotiate or we can go to war.” Since most nations wish to avoid war, they usually renegotiate, or just agree to disagree.

        And also, it’s an interesting observation – any nation’s reluctance to avoid violating a treaty with some other country is always directly proportional to the size and readiness of that other countries military forces.

      • WWS, I commented here on this issue previously. I wont look up everything again, so apologies if memory is a little faulty. paris opt out is if I recall correctly section 28,which has three parts. Parts one and two provide a three year from opt mechanism—mirroring UNFCCC. But part 3 says one year if also withdraw from UNFCCC. Now UNFCCC section 25 opt out has essentially language similar to 28:1-2 in Paris. Except its part three specifies that after three years, it is a one year to exit. So exiting UNFCCC auto exits Paris after 1year.
        This is, IMO, desirable since the green climate fund was set up at Copenhagen under UNFCCC. Want to escape Fiji and Tuvalu US lawsuits extorting GCC billions from US, exit UNFCCC.
        There is an easy excuse. A US law passed in 1994 prohibits any US support of a UN organization recognizing Palestine. UNFCCC admited Palestine as a full member April 2016. The easiest way to withdraw support is to withdraw, period.
        Unfortunately, the Trump admin seems a bit confused on these details.

    • Ristvan

      “This is settled law going back to when ….”

      Before defining it as settled, don’t we need to define what opt out means. This specific opt out includes specific requirement to be met before you are indeed out. Yes you can opt out, but you are restricted as to how that happens.

      First question is, are the opt out requirements significant enough that they are indeed more than an opt out. For example, If opt out required significant cash settlement then it is not an opt out. If opt out requirements are accepted being “too much” by that individual in charge of making such decision then it is not a simple “opt out”.

      If I’m in charge of the decision, the required “opt out” time frame included in the agreement is excessive (and created for political party reasons), and as such doesn’t even come close to being settled.

  5. Looks like the CEI is ensuring all tracks are covered for Trumps EO reversing Obama’s EO. And taking a jab at Chairman Bob Corker for sweeping it under the rug on his watch as (Republican) Chairman of the Foreign Affairs Committee for the optics of not taking it up with the House/Senate at the time. Killing two birds with one stone. At least this is the way it looks to me.

    The fact that Obama signed an EO ordering the USA sign the Paris Accord/Agreement speaks volumes in his actions were to clearly evade the House/Senate. If the legislators had been given that chance in 2015 under Obama, it would have never passed. The world should have known at that moment, that according to US law, the Paris Agreement had no standing as a legal document in the USA and that no court including SCOTUS, could uphold that agreement. This is why the EO by Trump won’t be seriously challenged in a court, and what good what it do anyway since it would take 5 years or more to wind its way through the courts.

    Trump would have been much wiser to throw it back to the House and Senate for approval earlier this year, where it would have similarly failed, and his fingerprints wouldn’t have been as complicit in killing Paris for the USA. Maybe Trump wanted that glory for himself but it would have really made that decision much more effective if it would have come from a wider spectrum in the entire USA Gov’t, and no blame ever would have been accredited directly to Trump for its failure. And it would have really been dead as a doornail after that. It will be one more things that the Dems will use against Trump and the Republicans in the mid terms, and it is looking like they are going to need all the help they can get, as most mid terms are not kind to the current ruling party in the WH.

    • From thousands of miles away the unprecedented campaign against Trump, not only for his Paris nonaction, appears to be organised mainly by losers , McCain, Gore and Clinton , losers for the biggest prize in the game , ie that of POTUS. I think Trump is just the symbol of their anger and frustration at being derived that honour . After all compared to previous Presidents he has not done much to anger anyone .
      He has not resisted and neutralised a powerful union like Reagan and the air traffic controllers.
      He has not invaded a foreign power for regime change , as did Kennedy (Bay of Pigs ) , Reagan (Grenada), or Bush Jnr (Iraq).
      Unlike Kennedy he has not brought the world to the point of nuclear annihilation by actively opposing the Soviets (1962) .
      He has not built a wall, removed Obamacare or stopped illegal immigration .
      In fact he is a pretty passive President . He is basically the soft punchbag that these losers like to punch when their frustration gets the better of them .The treatment given to him over the Paris agreement is just one such example.
      Trump does not deserve that treatment from such ungraceful or disgraceful losers IMO .

  6. These emails between Talley and Costello to Senator Bob Corker could be a smoking gun. Normally, an international “treaty” must be ratified by a 2/3 vote of the Senate, and Obama would never get 67 votes for the Paris climate treaty in a Senate with only 46 Democrats (in 2015).

    Senator Corker essentially rescued Obama by proposing a “law” that would prevent the implementation of the Paris climate accord in the United States, which passed the House but was filibustered by Democrats in the Senate. This failed “law” basically reduced the number of Senators needed to approve the Paris treaty from 67 (according to the Constitution) to 41 (the minimum to sustain a filibuster in the Senate), allowing the treaty to survive in limbo until President Trump “opted out” in 2017. If Hillary Clinton had won the Presidency in 2016, her administration could have continued to use the EPA to enforce the Paris accords for another four years, thanks to Senator Bob Corker.

    So Corker was able to save the Paris accord for over a year by pretending to be against it, and let all of Congress (instead of the Senate only, according to the Constitution) decide its fate. Corker himself circumvented the Constitutional role of the Senate to ratify treaties by a 2/3 vote. Did Talley and Costello suggest this to Corker?

    By the way, when the Kyoto accords were submitted to the Senate for ratification in 1995, the vote was 0-97 against. The Paris accord should have been submitted to the Senate for a similar result, although by a smaller margin.

  7. The problem with the State Department is that other than Tillerson it really run by Obama Vietcong who need to be flame-thrower(ed) out of existence.

  8. By the Human Rights, United Nations should respect the will of the people of Unites States of America:

    “Article 21.
    (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections …».

    The constitution of United States is by definition the will of the people of the US. The will of the people is:
    «The President… shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur….»
    ARTICLE II, SECTION 2, CLAUSE 2

    By the human rights, United Nations should strive to promote respect for these rights.

    “Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”

    Even within business, it is normal procedure to ensure that a signee is entitled to sign a contract.

    United Nations was well aware of this issue, and should have questioned if Obama was acting in accordance with the will of the people when signing that agreement. Clearly – he was not.

    • “Even within business, it is normal procedure to ensure that a signee is entitled to sign a contract.

      United Nations was well aware of this issue, and should have questioned if Obama was acting in accordance with the will of the people when signing that agreement. Clearly – he was not.”

      The UN didn’t care if Obama signing the agreement followed U.S. law. They knew as long as Obama was in Office, the deal was good, and they were expecting Hillary to continue with the deal.

      Then ole Trump came along and upset this lucrative UN applecart. No money for you, says Trump! How sweet it is!

  9. I just looked at Mr. Talley’s bio – typical reptile in the Swamp. I would not have him represent the United States in any capacity.

  10. another stitch-up, if true…how come it takes years to get out, but it would only take 30 days to be back in?

    9 Nov: CNET: Al Gore to the tech world: Help me fix the climate crisis
    by Katie Collins
    The US is still signed up to the Paris agreement until at least 2020, he (Gore) said, adding: By the way, if there is a new president, a new president can simply give 30 days notice and the US is back in the agreement.”…
    https://www.cnet.com/google-amp/news/al-gore-to-the-tech-world-help-me-fix-the-climate-crisis/

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