At issue in the court's order were documents requested by public interest organizations that the U.S. had already shared with foreign governments – in this case, Chile – but had refused to show to U.S. citizens. While the U.S.-Chile trade agreement was finalized last week and now heads to Congress for approval, this decision sets a legal precedent for a more transparent and democratic process that has been sought by public interest and environmental organizations for years but denied by both the Bush and Clinton administrations.
The court's order was the result of a lawsuit filed in November 2001 by Earthjustice on behalf of the Center for International Environmental Law, Friends of the Earth, and Public Citizen. These groups are concerned that the new international trade rules could weaken U.S. and Chilean environmental and health standards.
"This ruling raised the bar for transparency in future free trade negotiations like the Free Trade Area of the Americas," said Martin Wagner, director of international programs for Earthjustice. "From now on the government can no longer negotiate in secret, hiding its actions from the public until it's too late to change the terms of the agreement. The court's decision will give the public the information it needs to make sure the government is truly negotiating in the people's interest."
Marcos Orellana of the Center for International Environmental Law said, "This ruling will finally provide an entry point for meaningful public participation in trade negotiations. The public can only provide meaningful input if the trade negotiation process is open and transparent."
Using the Freedom of Information Act, the groups asked USTR to disclose documents shared between US and Chilean negotiators during meetings over the last two years. Under discussion were investment provisions of the proposed trade agreement that would limit the ability of U.S. federal, state, and local governments to protect their own health standards and environmental laws. Similar investment provisions in NAFTA have been the basis for a $1 billion challenge to a California plan to phase-out the use of the harmful gasoline additive MTBE, and a $16 million award to the US-based Metalclad corporation after it was denied a construction permit for a hazardous waste dump by a Mexican municipality. Extending these rules in an agreement with Chile could further weaken the ability of the United States and Chile to protect the environment and human health.
David Waskow, trade policy coordinator for Friends of the Earth, said, "This decision sends a strong message to the Bush administration that negotiations and proceedings must not stay behind closed doors. It's now up to the administration to take the issue of transparency seriously and make the rhetoric of public participation a reality."
"I would hope USTR would not appeal this decision and finally see the writing on the wall," said Mary Bottari, Director of Public Citizen's Harmonization Project. "The public deserves a voice in trade policy, especially when these commercial agreements contain provisions that could trump state and local environmental and public health laws."