The Natural Resources Defense Council held close ties to the Obama administration, providing advice on joining the Paris Agreement while simultaneously maintaining ties to China, according to attorneys and policy analysts who have reviewed email records obtained through a Freedom of Information Act request.
While many of the emails are heavily redacted, they provide insight into how the NRDC, a nonprofit environmental advocacy group, and its close associates in Beijing, sought to maneuver the United States into an international climate change accord that has all the "hallmarks of a treaty" without the "advice and consent" of the Senate, Bonner Cohen, a senior fellow with the National Center for Public Policy Research, explained in an interview.
The United Nations' Paris Agreement, which took shape in December 2015, figures prominently in emails between Jake Schmidt, the NRDC’s director of international programs, and several State Department officials including Todd Stern, who was a special envoy for climate change at the time of his correspondence with Schmidt in 2014 and 2015.
Cohen calls the agreement "an instrument to redistribute wealth, through higher energy prices, from middle- and lower-income people to well-heeled renewable-energy providers and investors in developed countries, while spreading some largesse to elites in poorer countries via the U.N.'s Green Climate Fund."
President Obama took executive action to have the United States become part of the international agreement in September 2016, which requires participating countries to establish their own "nationally determined contributions" toward what the U.N. describes as a "global response to the threat of climate change." The nationally determined contributions (NDCs) detail how much each country plans to reduce its greenhouse gas emissions. In June 2017, President Trump announced during a White House ceremony that the United States would withdraw from the Paris Agreement. The president said the treaty was unfair to American workers and taxpayers.
Chris Horner, an attorney with Government Accountability and Oversight, a nonprofit, public interest law firm, said he would still like to see the White House submit the agreement to the Senate as a treaty in need of ratification.
"Paris is a treaty according to all historic and common-sense considerations," Horner said in an email to the Free Beacon. "The 'legal form' stunt pretending otherwise that the Obama administration pulled satisfied a publicly stated priority of the French hosts of the Paris talks, of the Obama White House and State Department, and of NRDC which, emails suggest, was the State Department's adviser on that issue."
"Behind that move lies a 'Circular 175 memo,' which is required prior to the U.S. entering any agreement and which must address that very question of 'legal form,'" Horner explained. "Whatever that memo said, it reflected NRDC's role and input and served as the justification for the Obama claim that an obvious treaty—adopted by all of our supposed models under their procedures for treaties, as opposed to 'agreements'—was actually not a treaty for U.S. purposes."
Horner filed a FOIA lawsuit against the State Department last August on behalf of the Institute for Energy Research, a nonprofit based in Washington, D.C., that advocates for free market policies in the energy sector.
"The subject matter at the heart of this request is a topic of increasing public interest, specifically, the relationship between U.S.-based environmentalist pressure groups’ advocacy work to influence U.S. environmental and resource policy and their relationships with foreign entities, as well as any implications thereof," the FOIA lawsuit states.
Horner is encouraging congressional figures and the Trump administration to push for the release of more State Department documents including the Circular 175 memo.
"That memo represents one of the key written records that any Member of Congress interested in this issue specifically, and protecting constitutional integrity and/or Senate prerogatives more generally, must obtain," he said. "Also, it appears exceedingly likely that other informative records include the redacted State correspondence with NRDC's 'legal form' advocate Jake Schmidt that we obtained."
"The redactions aren't conceivably subject to any 'deliberative' privilege," Horner points out, "since Schmidt had no official role in the deliberations—and it can’t very well claim that Schmidt was the Obama State Department's adviser on the stunt—so State claims the withheld portions represent 'personal' communications [the claimed Exemption 6]. Context suggests this is a spectacular fib."
Horner said the exemption rule cited in the FOIA records protects information about individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy," according to the Department of Justice description of Exemption 6.
The redactions don't seem to square with this exemption rule, Horner notes, because those portions of the email messages that were not withheld demonstrate that the State Department correspondence with the NRDC clearly involves the crafting of the Paris Agreement.
"They aren't saying it's government stuff that you shouldn't be privy to," he said. "They're actually saying this collusion with activists is none of our business."
Some of the email messages from the NRDC to the Obama State Department revealed by the FOIA lawsuit are completely redacted with the entire body of message blanked out. This includes an Oct. 21, 2014, message from Schmidt to Stern with the word "question" in the subject line. Others are more revealing of NRDC’s interactions with the Obama administration despite the redactions. For example, there is a Feb. 9, 2015, email from Schmidt addressed to Stern and other State Department officials where Schmidt discusses his time spent on climate change policy in India.
"I just spent a couple of days in India talking to government officials, key partners, and others…" Stern goes on to name some of the government officials including "Modi," presumably a reference to Prime Minister Narendra Modi of India who has been in office since 2014.
"See this news story on Modi's recent remarks about foreign policy with specific reference to climate change," Stern wrote.
The message concludes with a reference to India's "Intended Nationally Determined Contributions" to the Paris Agreement (INDCs). The remainder of the message is largely redacted.
There are, however, other messages left intact that detail the legal arguments the NRDC advised State Department officials pursue to assist the Obama administration in its efforts to sign off on the Paris Agreement without Senate approval. (Under Article II of the Constitution, the president can enter into treaties, but only with the "advice and consent" of the Senate and only if "two-thirds of senators present concur.")
In a chain of communications beginning on Feb. 20, 2015, Elliot Diringer, the executive vice president of the Center for Climate Energy Solutions, forwards a message to Stern containing an original message from David Wirth, a professor at Boston College Law School. Wirth's email dated Feb. 19, 2015, is addressed to Diringer with Schmidt, the NRDC official copied. The subject of Wirth's message is titled: "Jake Schmidt; Paris Deal as Executive Agreement for the U.S."
Wirth, who previously worked as an attorney with the NRDC and the State Department, refers Diringer to an "attached piece" set for publication in the Harvard Environmental Law Review.
"The piece makes the argument that the President already has the legal authority to enter into binding commitments in Paris, at least in certain areas, without the necessity for either Senate advice or consent or congressional participation in the form of new legislation or otherwise. As indicated in the acknowledgments, it has proven to be 'airtight' in any number of venues before audiences highly knowledgeable about the law involved. The argument is especially relevant given the imminent release of the U.S. INDC."
Tom Pyle, president of the Institute for Energy Research, is not surprised to see the NRDC wield such significant influence over public policy decisions in the Obama administration. His organization recently unveiled a new database that tracks how and where foundations "spend billions of dollars supporting aggressive climate litigation." The NRDC stands out as one of the top recipients.
"IER's Big Green, Inc. database reveals NRDC received more than $87 million since 2008 from a core group of extreme left foundations that frequently fund this type of work," Pyle said in an interview. "And that's just the tip of the iceberg in terms of their funding."
The NRDC was one of several environmental advocacy groups that were on the receiving end of correspondence last year from the House Natural Resources Committee inquiring about their relationship with China's government and how their interaction with high-level Chinese officials impacted their advocacy work in the United States.
The letters, signed by then-chairman Rob Bishop (R., Utah) and Rep. Bruce Westerman (R., Ark.), who chaired the Subcommittee on Oversight and Investigations, also asked the environmental groups if they were complying with foreign agent registration requirements. In a letter dated June 5, 2018, addressed to Rhea Suh, the NRDC president, the congressmen made the point that when "engaging on environmental issues concerning China the NRDC appears to practice self-censorship" and avoids any criticism of China. Conversely, the NRDC "takes an adversarial approach" toward the United States, Bishop and Westerman wrote.
The congressmen also make the point that in the past two decades the NRDC has repeatedly filed lawsuits against the U.S. Navy "to stop or drastically limit naval training exercises in the Pacific arguing that naval sonar and anti-submarine warfare drills harm marine life." But, at the same time, the environmental group has failed to engage in any "similar efforts" to curtail China's naval exercises, the letter says.
The Free Beacon contacted the NRDC's media representatives and asked if the environmental group had any comment on the FOIA results and the interactions their staff members had with State Department officials. The NRDC and other environmental groups that received letters from the House committee have all denied operating as foreign agents. The NRDC did not respond to the Free Beacon's inquiry.
Pyle remains skeptical that the NRDC is complying to foreign agent registration rules.
"While the organization boasts of suing the U.S. federal government 'about once every 10 days' since President Trump's inauguration, NRDC and its China office appear to take a flattering stance towards the communist government of the world's largest polluter," said Pyle. "This was exhibited best when NRDC praised China's business-as-usual pledge for the Paris Agreement but pushed for extreme commitments from the United States. By supporting the Paris Agreement and urging Obama State Department officials to do the same, NRDC advocated for the U.S. to become economically disadvantaged to the benefit of China and other economic competitors. There are questions that simply must be answered in regards to NRDC's compliance with FARA and who is really driving the group's advocacy."
The State Department declined to comment for this story. The Free Beacon also reached out to individuals who sent and received emails individually and through their respective organizations. Schmidt is still on staff at the NRDC, Wirth is a professor of law at Boston College Law School, Stern is now a distinguished fellow at the World Resources Institute, a self-described "global research" nonprofit headquartered in Washington, D.C., that was also a recipient of congressional inquiries last year probing into the group's relationship with China. At the time this story went to press, WRI declined to offer any further comment and none of the individuals responded.
The fact that the NRDC has filed lawsuits to "undermine U.S. Navy training exercises in the Pacific citing environmental risks, while uttering not a peep about similar exercises by the Chinese Navy is very suggestive," said Bonner Cohen, the energy policy analyst.
"NRDC's opposition to America’s fossil-fuel development comports with China's goal of hamstringing its chief global rival," said Cohen. "The Paris Climate Agreement heavily restricted U.S. energy development, which is exactly what NRDC and Beijing want."