Tuesday, June 11, 2013

Center For International Environmental Law v. U.S. Trade Rep.

Jun 7: In the U.S. Court of Appeals, D.C. Circuit, Case No. 12-5136. Appealed from the United States District Court for the District of Columbia. In this FOIA case, the Appeals Court begins its opinion with a quote from President George Washington, stating in part that, ". . .The nature of foreign negotiations requires caution, and their success must often depend on secrecy. . ." In overturning the district court decision and upholding the Trade Representative's ability to withhold a document that Earthjustice, representing Center For International Environmental Law (CIEL) said,  ". . .set out U.S. positions on the interpretation of international trade laws that affect the environment."
    The Appeals Court explains that during the 1990s and early 2000s, the United States and thirty-three other countries participated in negotiations seeking to establish the Free Trade Agreement of the Americas, a proposed agreement that would have governed international trade and investment throughout the Western Hemisphere. In July 2000, the Center for International Environmental Law, a not-for-profit public-interest organization, submitted a Freedom of Information Act, 5 U.S.C. § 552, request to the Office of the United States Trade Representative. The Center sought, among other things, documents circulated or tabled by the United States during sessions of the Free Trade Agreement of the Americas Negotiating Group on Investment held in February and May 2000. The Trade Representative identified forty-six documents responsive to the Center's request but withheld the documents as exempt from disclosure. The Center sued to compel production.
    After years of litigation, only one document remains in dispute -- a white paper referred to in the district court proceedings as "document 1." The Trade Representative classified the white paper as "confidential" and invoked FOIA exemption 1, which applies to classified materials, as the basis for withholding it. The district court concluded that the risk of adverse arbitration decisions was "insufficiently substantiated" and said, Arbitrators, "are generally aware of the non-binding, preliminary nature of the interpretive position articulated in [the disputed document]," and "the risk that international arbitrators will adopt the position, much less rely on it to the United States' detriment in arbitration, is too speculative to justify a reasonable expectation of harm to foreign relations."
    However, the Appeals Court concluded, ". . .the Trade Representative has satisfied its burden to explain the damage that reasonably could be expected to result from disclosure of the white paper. Because the white paper was properly classified as confidential, the Trade Representative properly withheld the document as exempt from disclosure under FOIA exemption 1. Accordingly, the judgment of the district court is reversed."
    CIEL President Carroll Muffett said, "It is with great irony that at a time when reports about government intrusion into individual privacy are escalating by the day, the U.S. government would go to such lengths to protect the confidentiality of its trade negotiations -- the terms of which will have real impacts on its citizens. By denying the public access to these negotiations, the US has created a fundamental barrier to the development of democracy. Most troubling, we have already seen the US aggressively pushing information in a similar black box in other trade negotiations, like the recently announced Transatlantic Trade and Investment Partnership with the European Union." Earthjustice attorney and director of international programs Martin Wagner said, "Transparency and public participation are hallmarks of democracy. If citizens are kept in the dark until negotiations are completed, they will never be able to provide useful advice concerning rules that would directly affect their lives and health. This case was about giving people a role in the creation of the laws that govern their lives."
    According to an Earthjustice release, at issue was a document that contains the U.S. Trade Representative's interpretation of "in like circumstances," meaning when the United States must treat foreign investors as favorably as it does domestic ones. CIEL argued that weak provisions in the North American Free Trade Agreement (NAFTA) led to a successful billion-dollar challenge to California's plan to phase out a toxic gasoline additive. Earthjustice indicates, the  Free Trade Area of the Americas (FTAA) "would have extended NAFTA-type rules throughout the Western Hemisphere. The document contains the U.S. interpretation of terms that would determine the extent of government's ability to prevent threats to human health and the environment. . . USTR's refusal prevented the public from having a voice in how much power the United States should surrender in the negotiations."
    Access the complete opinion (click here). Access the release from Earthjustice (click here). [#CADC, #All]
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