The United States District Court in Seattle last week ordered the Bush administration to comply with a court order and appoint an environmentalist to a federal committee that advises the government on international trade in chemicals. The Bush administration had rejected a nominee proposed by the environmental community, instead appointing an academic with deep industry ties to serve as the ‘environmental’ representative. The chemical panel, known as ISAC-3, is one of 17 sectoral advisory committees whose members shape U.S. policy and have access to confidential trade texts and documents. This ruling marks the third decision against the Bush administration on trade issues since mid-December, 2002.

“International commercial agreements like NAFTA and the WTO have significant impacts on public health and the environment. When U.S. trade policy is dictated by an advisory board dominated by industry, those issues get short shrift. This decision will help balance the playing field,” said Earthjustice attorney Patti Goldman.

“This is the third time in the last month that a court was needed to check the outrageous and illegal behavior of the U.S. Trade Representative,” said Mary Bottari, director of Public Citizen’s Harmonization Project. “How many times must the USTR be told by federal courts that closed-door decision-making must end?”

The ruling follows an action taken by attorneys at Earthjustice, representing Public Citizen, the Washington Toxics Coalition and the Asia Pacific Environmental Exchange on Dec. 18 to protest the appointment of Brian Mannix. The groups asked the court to order the Bush administration to follow through on its commitment made in prior litigation to appoint an environmentalist to the 23-member committee, which is already packed with chemical industry executives. Mannix, a fellow at the Mercatus Center, a conservative research center at George Mason University, had also served as research director for the Manufacturers Alliance for Productivity and Innovation and has often opposed regulatory approaches to environmental problems.

The Court found that the appointment of Mannix fell short of achieving the Federal Advisory Committee Act’s (FACA) requirement that appointments to federal advisory committees be “fairly balanced in terms of the points of view represented.”

In her decision, Judge Barbara Rothstein said that there is nothing to indicate that Mr. Mannix, “has ever been affiliated with any environmental group or ever advocated on behalf of protecting the environment. The court is, therefore, unpersuaded that Mr. Mannix’s appointment provides a voice for the environmental community on ISAC-3.”

On June 29, 2001, at the groups’ urging, Greenpeace USA nominated Rick Hind, the legislative director for its toxics campaign, for the position. On Dec. 16, 2002, 18 months after his nomination, Hind received official notice that he would not be appointed to the committee. Although Mr. Hind’s nomination was supported by a broad range of environmental organizations, USTR provided no explanation why he was not an acceptable candidate. Mannix’s appointment was announced Dec. 17, 2002.

The environmental community will now nominate a new member to the Chemicals and Allied Products Advisory Committee.

STRIKE THREE

This decision comes as the third ruling against the Bush administration on trade in recent weeks.

On January 16, the U.S. 9th Circuit Court of Appeals ruled that the Bush administration violated federal environmental law by opening the border to Mexico-domiciled trucks without first reviewing the possible environmental impacts. The administration had announced last November it was opening U.S. highways to long-haul trucks from Mexico in order to comply with the North American Free Trade Agreement. In this case, the Ninth Circuit Federal Appeals court ruled: “Although we agree with the importance of the United States’ compliance with its treaty obligations … such compliance cannot come at the cost of violating United States law.” For more information visit: here

On December 19, 2002, a U.S. District Court in Washington, D.C. ordered the Bush administration to make public documents revealing U.S. and foreign government positions in U.S.-Chile trade negotiations with potential impacts on domestic public health, labor, and environmental laws. “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,” said Martin Wagner of Earthjustice, who represented a coalition of environmental and consumer groups in that case. For more information visit: here

LITIGATION FOR ADVISORY COMMITTEE FAIRNESS BEGAN IN 1999

This litigation began over the imbalance of environmental and public health representatives on key trade advisory committees and follows on several lawsuits undertaken by Public Citizen in the mid-1990s. The Trade Act of 1974 directs the USTR and the Department of Commerce (DOC) to obtain advice and information from a series of trade advisory committees on the administration of U.S. trade policy, including negotiating objectives, bargaining positions, and the implementation and ongoing operation of trade agreements.

Among the trade advisory committees organized and utilized by the USTR and DOC are the Industry Sector Advisory Committees. The mission of ISAC-3 on Chemicals and Allied Products encompasses virtually all aspects of the development and implementation of U.S. trade policy relating to chemicals, including specific strategies and bargaining positions regarding regulation.

Nearly every member of ISAC-3 is either an executive of a chemical or allied products company or a representative of a chemical or allied products trade association such as DuPont, Eli Lilly and 3M. Yet FACA requires agency heads and other federal officials creating advisory committees to ensure that the membership of the committee is balanced in terms of the points of view represented. The Trade Act expressly provides that the FACA fair balance requirement shall apply to all ISACs.

In April 2000, Public Citizen, the Washington Toxics Coalition and the Asia Pacific Environmental Exchange sued the Clinton administration in federal court in an effort to force some element of balance on the chemicals committee. Patti Goldman of Earthjustice represented the groups. Because the groups had been successful in related suits, both the Clinton and Bush administrations agreed to appoint an environmentalist rather than continue to litigate the issue.