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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.

A hearing with the district court has been set for Monday, Dec. 21, to air out these differences. If State Department officials succeed in further delaying the release of FOIA documents until after the change in administration, it’s reasonable to presume that the FOIA documents might not ever be brought to light.

Environmental 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.

Under Article II, Section 2 of the Constitution, 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 …” The idea of allowing unaccountable U.N. bureaucrats to gain control over U.S. energy policy is not exactly a great idea, which helps to explain why Obama decided to bypass the Senate and join the U.N. climate treaty by way of an executive agreement. How did this happen, and what exactly went down while Biden was serving as vice president?

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.”

The president-elect has vowed to rejoin the treaty. So, what might come next?

Patrick Michaels, a senior fellow in energy and environment with the Competitive Enterprise Institute, sees a path forward to protect American independence and secure American energy. In a recent piece for the Washington Examiner, Michaels proposed that President Trump submit the Paris Agreement to the Senate as a treaty where it will most certainly fall short of the two-thirds vote needed for its approval.

This way, even if Biden proceeds to rejoin the U.N. treaty through executive action, there will be ample openings for those victimized by the regulations to challenge those regulations in court. Now would be a good time for Trump to act.

Kevin Mooney (@KevinMooneyDC) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an investigative reporter in Washington, D.C., who writes for several national publications.