Because the suit was filed before the agreement was finalized, the documents made public today do not include the final text of the U.S.-Chile agreement. Although USTR has refused to make public the final terms of the agreement, the court's decision in this case would require release of the text in response to a request under the Freedom of Information Act, a step environmentalists are considering.
"This is about democracy," said Stephen Porter, an attorney with the Center for International Environmental Law. "Under Fast Track rules, congressional debate on the wisdom of concluded trade deals is sharply truncated, no amendments or improvement are permitted and Congress must vote the agreement up or down. Unless the negotiating process is open to the American people, public debate on the policy implications of international trade and investment rules will be entirely foreclosed."
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 new international trade and investment rules could weaken an array of U.S. and Chilean environmental, health and other policies. U.S. District Judge Paul Friedman ordered the US government to make the documents public in a decision on December 17, 2002 (see decision http://www.dcd.uscourts.gov/01-2350.pdf).
"These documents represent negotiating positions that the U.S. had already shared with foreign governments – in this case, Chile – but had refused to show to U.S. citizens," said Martin Wagner, an attorney with Earthjustice who represented the coalition in court. "If citizens are kept in the dark until negotiations are completed, as they were in this case, the public will never be able to provide useful advice concerning rules that will directly affect their lives and health."
"Thanks to this ruling, it will be more difficult for U.S. negotiators to trade away U.S. environmental and consumer safeguards on the sly," said Lori Wallach, director of Public Citizen's Global Trade Watch. "Requiring some public sunshine on trade negotiations will benefit the public, the press and elected officials."
Using the Freedom of Information Act, the groups asked USTR to disclose documents shared between U.S. and Chilean negotiators during meetings over the last two years. Among items 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 provisions in NAFTA were 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 payment by the Mexican government to the U.S.-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.
"The Bush administration will now hopefully get the message that negotiations and proceedings must not stay behind closed doors," added David Waskow, trade policy coordinator for Friends of the Earth.
Free Trade Area of the Americas Negotiations Next Target for Sunshine
Another lawsuit was filed in March 2001 to obtain the documents for ongoing negotiations between U.S. and Latin American governments for a Free Trade Area of the Americas (FTAA) agreement. The court set a legal precedent in the U.S.-Chile case for a more transparent and democratic process. Public interest groups hope this will lead to more openness in the process.
"The federal court has now come down decidedly in favor of transparency and public participation in trade negotiations. We now expect the Bush administration to reveal the negotiating position for future trade negotiations, including the FTAA, to avoid these fruitless legal battles. The administration should start with the final text of the U.S.-Chile Free Trade Agreement," said Wagner of Earthjustice.