U.S. Court of Appeals Rules in Government Secrecy Case

Decision allows U.S. trade agency to continue denying public access to document related to protection of environment and public health


Martin Wagner, Earthjustice, (415) 217-2000


Carroll Muffett, Center for International Environmental Law, (202) 425-2934


Amanda Kistler, Center for International Environmental Law, (339) 225-1623

A panel of federal judges last week ruled that the U.S. Trade Representative (USTR) was justified in keeping secret a document that set out U.S. positions on the interpretation of international trade laws that affect the environment.

The Center for International Environmental Law (CIEL) sued to force USTR to make the document public, a move necessitated by USTR’s insistence that U.S. positions in international trade negotiations be kept secret, no matter how great the potential effect of the outcome of those agreements on the environment, public health or other matters of public concern. The U.S. Court of Appeals for the District of Columbia Circuit held that the document from the U.S. negotiations of a possible free trade area of the Americas, or FTAA, in 2000 was "properly classified" in the interest of "national defense or foreign policy."

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.”

“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,” said Earthjustice attorney and director of international programs Martin Wagner. “This case was about giving people a role in the creation of the laws that govern their lives.”

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.

At oral arguments in February, the lawyers for the administration noted that the U.S. Trade Representative has a long-standing policy of not revealing its position on the "in like circumstances" language. In particular, they argued, such a disclosure could adversely affect future negotiations.

The 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.

Although the terms of international trade agreements like the FTAA affect the ability of the United States to protect public 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.

Earthjustice has represented CIEL in suing to gain access to the document.

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