U.S. Trade Representative sued for hiding documents

Withholding Could Hamper Protection of Domestic Environment & Health Laws

March 7, 2001

WASHINGTON, DC—At the same moment the new U.S. Trade Representative, Robert Zoellick, was urging Congress to grant President Bush new international trade powers, a lawsuit was filed against him down the street in U.S. District Court. The suit challenges Zoellick’s decision to keep the public in the dark about the administration’s latest trade negotiations for the proposed Free Trade Area of the Americas, which would expand the North American Free Trade Agreement—NAFTA—to encompass the entire hemisphere.

The lawsuit, filed Wednesday by Earthjustice on behalf of the Center for International Environmental Law, seeks to force the USTR to disclose written proposals it has made to other governments concerning provisions of the FTAA agreement, a treaty that would bind the United States to powerful new trade rules. USTR refused CIEL’s request to make the documents public.

“USTR is negotiating binding rules that could affect the ability of the United States to protect the environment and human health,” said Stephen Porter, Senior Attorney with CIEL. “To hide what it is doing from concerned citizens is shameful for a government that considers itself the world’s model for democracy. The USTR is willing to give these documents to 33 foreign nations, but not the American public.”

Using the Freedom of Information Act, CIEL asked USTR to disclose documents it provided to foreign negotiators during meetings last year to discuss potential FTAA provisions protecting foreign investors. Similar provisions in the NAFTA have been the basis for a $970 million dollar challenge to a California plan to phase out the use of a harmful gasoline additive. Extending these rules to the FTAA could further weaken the ability of the United States to protect the environment and human health.

Although USTR admitted the existence of the documents, it refused to make them public, claiming they were protected by FOIA’s exemption for “inter- and intra-agency communications protected by the deliberative process privilege.” However, as CIEL made clear to USTR before filing its complaint today, the documents do not qualify for the exemption and USTR waived any privilege when it disclosed the records to foreign governments participating in the treaty negotiations. USTR did post sketchy summaries of the documents on its website, but they conceal more than they reveal, according to CIEL and Earthjustice.

“Transparency and public participation are hallmarks of democracy,” said Martin Wagner, Director of International Programs for Earthjustice. “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. The important decisions happen early in the process. We are only left to wonder what they’re trying to hide. Are US trade officials giving foreign investors the power to overturn our health and environmental laws? The Bush administration won’t say. We are suing for openness.”

A copy of the complaint is available online at www.earthjustice.org.