Legal Motion Filed to Stop FOIA Stonewalling on Paris Climate Treaty

From via press release:

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 on August 17th, 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 onsiderations, 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.


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August 18, 2020 7:21 am

I always thought it was very strange and somewhat ominous why the negotiations strictly had to be done behind closed doors, and vehemently want to keep it that way.

What don’t they want the general public to see?

Reply to  Jeff
August 18, 2020 7:54 am

Government in secret is not how a democracy is supposed to operate. But it is how liberals prefer to operate.

Gary Pearse
Reply to  Jeff
August 18, 2020 8:02 am

Why would a Trump admin resist the FOIA?

Reply to  Gary Pearse
August 18, 2020 8:29 am

Yes, it really is puzzling. Perhaps President Trump will take an interest now.

Paul Penrose
Reply to  Gary Pearse
August 18, 2020 10:10 am

Because the State department is still run mostly by career diplomats that hate this president and don’t believe they must follow his policies since they are sure he will not win reelection.

Joel Snider
Reply to  Paul Penrose
August 18, 2020 4:15 pm

That’s the problem – Obama stocked the swamp with rats, and Trump can’t be everywhere.

Reply to  Gary Pearse
August 18, 2020 4:54 pm

Do you believe that everyone who works for government is a Trump supporter?

Reply to  MarkW
August 18, 2020 8:07 pm

The ones that aren’t, have been fired! 😉

Michael Ernest Noll
Reply to  eck
August 19, 2020 8:41 am

They belong to a union. At best they are shuffled around.

Adam Gallon
Reply to  Gary Pearse
August 19, 2020 8:16 am

Big business.
Lots of money to be made from renewable energy – turbines, solar panels, distribution network & battery storage.
Lots of money from energy efficiency measures.
Then lots of money to be made replacing ICE vehicles, with EVs.
Cheeks of the same arse.

Joel O’Bryan
August 18, 2020 8:04 am

The Obama Administration grossly misrepresented something? I’m shocked.

Barack Obama was a liar and a fraud from Day One on everything he did for the next 8 years. Every substantive domestic and foreign policy his administration created and imposed were all justified around lies and half-truths to the voters and the courts when they were challenged. Every.Single.One. That Circular 175 was written after-the-fact is no surprise given how poorly his Clean Power Plan was doing in the federal courts upon challenge from the States. It was just the Senate’s treaty ratification Obama was stomping all over.
Remember, the Supreme Court put an unprecedented Stay* on the Obama Environmental Protection Agency-driven Clean Power Plan’s implementation in February 2016, 2 months prior to this 175 Circular. CPP was going to get chewed up and spit out for Obama’s unconstitutional violation of Separation of Powers in assuming Article I legislative powers to enact and force CPP on the 50 states.

* The Supreme Court vote to Stay the Obama CPP until it legality had worked its way through judicial appeals was unprecedented, and came via a 5-4 vote split along the court’s ideological divide. One week later, Associate Justice Scalia and a strong conservative voice on the Court passed away suddenly and unexpectedly. Obama thought he then had the path to success with his nomination of Merrick Garland to the vacancy on the Court. But Senate confirmation of Garland was something he couldn’t bypass, and Senate Majority Leader Mitch McConnell told Obama his Garland selection would not be given consent by the Senate. Obama and his media lap dogs threw a collective hissy-fit tantrum meltdown, but there was nothing they could do. That decision to block Garland’s confirmation had epic consequences for the eventual election of Trump and the ongoing tilt of the Supreme Court back to a constitutionally faithful court majority. But the Democrats and Obama were confident their Crooked Hillary would win in November 2016, they didn’t worry too much.

Obama had his dirty tricks political machine lined up and ready to unleash on the Trump campaign as more insurance. As a result Obama was cock-sure Hillary would follow him in the White House to ensure the Paris Agreement US participation would continue and the CPP would find favor with a Liberal Supreme Court majority with the fortuitous Scalia vacancy filled with a liberal jurist to rubber stamp the Democrat’s stomping on the US constitution.

The historical and epic consequences of McConnell’s blocking Obama from filling the sudden opening on the Supreme Court cannot be under-stated.

Joel O’Bryan
Reply to  Joel O’Bryan
August 18, 2020 8:09 am

I meant “.. cannot be overstated.”

Gregory Woods
Reply to  Joel O’Bryan
August 18, 2020 8:42 am

Sin cafe no hay vida…

Reply to  Gregory Woods
August 18, 2020 12:19 pm

Sweet nectar of the gods!

Martin Wood
August 18, 2020 8:27 am

I have no connection to Heathrow Airports Limited (HAL) however, from reports I have viewed I understand HAL are to consider an appeal to the supreme court. The appeal would be made as the Paris agreement as never been ratified by parliament and hence is not law within the UK, only an agreement in principle, and not withstanding other laws have been made providing binding targets to reduce CO2.
It also needs to be recognised that the UK supreme court is currently made up of those with a ‘liberal left’ bias.
What impact Sars-2 will have on this appeal application is yet to be seen as there is currently no requirement to expand the UK runway capacity. When may that return?

August 18, 2020 8:30 am

The fact that both the Kyoto and Paris agreements have no legally binding targets gives the bureaucrats an excuse to avoid advice and consent from the Senate. The fact that they have no legally binding targets also underscores how unserious the leaders are who signed them. It is, and always has been, political theater. Action on climate change remains very low among the priorities of most people, but the Leftists who dominate the leadership and bureaucracy of most goovernments don’t let that stop them from compelling the electorate to abide by their bizarre diktats.

Reply to  stinkerp
August 18, 2020 9:24 am

Paris is meaningless climate change virtue signaling which will have no significant effect on the growth of global average CO2 levels.

Giving money to the green slush fund is important — Obummer gave one billion because he was a fool – Trump gave nothing and that’s all that matters.

CO2 is still classified as a pollutant by the Trump EPA, meaning he has failed to reverse that junk science.

Reply to  stinkerp
August 18, 2020 11:20 am

As the actions of the British court show, just having no legally binding targets does not prevent the agreement from having binding impacts on government policies.

Reply to  MarkW
August 18, 2020 2:44 pm

It is my understanding that the UK Court of Appeal blocked the expansion of Heathrow airport based on incompatibility with The Climate Change Act 2008 (as ammended) which as it stands commits the UK to zero carbon in 2050.

We’re way too dumb here in the UK to question what the IPCC tells us, we just write it straight into law. Here is the justification for moving from an 80% to a 100% reduction in GHGs, following the IPCC Special Report “Global Warming of 1.5C”:

The Secretary of State considers that since the Act was passed, there have been significant developments in scientific knowledge about climate change that make it appropriate to amend the percentage specified in section 1(1) of the Act.

August 18, 2020 9:47 am

RG said: “CO2 is still classified as a pollutant by the Trump EPA, meaning he has failed to reverse that junk science.” +1 Ignoring that travesty won’t make it go away.

August 18, 2020 11:17 am

Speaking of lies, it appears that Sleepy Joe’s story of how he met his current wife on a blind date is a complete lie.
They first met while Jill was still married to her previous husband, and their affair started soon after. The divorce came later.

Carlo, Monte
Reply to  MarkW
August 18, 2020 12:49 pm

Biden has a long, long history of making stuff up as he goes along.

Jeff Alberts
Reply to  Carlo, Monte
August 18, 2020 8:15 pm

Within the last couple days, he said he had 5 grandchildren. He has 7. He’s lost it.

If he had 30 or so, I could see maybe losing count, but 5…7?

Tom in Florida
Reply to  Carlo, Monte
August 18, 2020 8:15 pm

And he violates the number one rule of being a good liar: have a great memory.

Adam Gallon
Reply to  Carlo, Monte
August 19, 2020 8:18 am

Politician, goes with the job.
Treat every single one of them as liars & you can’t go far wrong.

August 18, 2020 11:29 am

“GAO” and “EPA” — do these advocacy groups choose their I.D.s to deliberately confuse their activities with activities of US Federal officials ?

IF so, I’m not sure it’s helpful. Seems like a mercenary military company choosing the name United Security Service Resources (USSR) or something — wanting to make headlines if hired to involve itself in a tiny little conflict some long way off.

Carlo, Monte
Reply to  pouncer
August 18, 2020 12:53 pm

Apparently so, they are certainly not the Government Accountability Office nor the Environmental Protection Agency.

Jeff Alberts
Reply to  pouncer
August 18, 2020 8:16 pm

““GAO” and “EPA” — do these advocacy groups choose their I.D.s to deliberately confuse their activities with activities of US Federal officials ?”

My thoughts exactly. Seems like they’re being purposefully confusing.

Tom Abbott
Reply to  pouncer
August 19, 2020 5:04 am

““GAO” and “EPA” — do these advocacy groups choose their I.D.s to deliberately confuse their activities with activities of US Federal officials ?”

I don’t know, but they are confusing me. I guess it’s too late to change their name now. What were they thinking?

Eric Harpham
August 18, 2020 11:47 am

According to the Daily Telegraph today,18/8/20, in Robin Pagnamenta’s article “An algorithm isn’t needed to figure out this farrago” the following paragraph is very interesting.

An obscure article of EU data protection law that covers decisions based on algorithms says
individuals “shall have the right not to be subject to a decision based on automated processing including profiling” if it has a legal effect on them. Up until now, there has been relatively little scrutiny of the algorithms that increasingly govern our lives.

I haven’t yet found the EU law reference but will keep on looking after all “climate change” forecasts are based on algorithms , automated processing, and the decisions affect us all.

Eric Harpham
Reply to  Eric Harpham
August 18, 2020 12:35 pm

Found it. Art.22 GDPR. Gives it all in glorious legalese.

It doesn't add up...
August 18, 2020 1:52 pm

I’ve a feeling that the Vienna Convention on the Law of Treaties may also have some interesting points worth considering. Part V Section 2 has some interesting provisions on grounds for denouncing treaties through invalidity and other features, such as fraud, impossibility, corruption and coercion etc.

Flight Level
August 18, 2020 11:22 pm

As long as you have something to eat, somewhere to live and something to drive, the green mafia will do anything to take it away.

Which part is so hard to understand ?

August 19, 2020 5:37 am

“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;” …

Not if that infrastructure is wind, solar and EV charging stations.

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