US Government sued over failure to disclose trade documents

by Danielle Knight

Washington, 7 Mar 2001 (IPS) -- As concerns increase over a proposed trade agreement for the Americas, an environmental law organisation here has filed suit against the US government to force it to disclose recent trade proposals concerning the accord that would expand trade throughout the hemisphere.

The lawsuit, filed here Wednesday in the US District Court, seeks to push the US Trade Representative (USTR) to disclose written proposals it made to other governments concerning the Free Trade Area of the Americas (FTAA) agreement, which seeks to economically integrate the hemisphere’s 34 nations.

Previous attempts by the Center for International Environmental Law to get the government to release the documents were denied by the trade agency.

“To hide what it is doing from concerned citizens is shameful for a government that considers itself the world’s model for democracy,” says Stephen Porter, senior attorney with the Center for International Environmental Law.

Environmental organisations have been closely following the negotiations surrounding the hemispheric trade agreement.

They worry that the accord will include provisions similar to the ones in the North America Free Trade Agreement (NAFTA), which have allowed corporations to sue countries over environmental and health laws that prohibit trade.

Dubbed the “little WTO” and the “bigger and meaner NAFTA”, the Americas trade agreement could further weaken the ability of governments to pass and maintain conservation and public health laws, says Porter. “The USTR is negotiating binding rules that could affect the ability of the United States to protect the environment and human health,” he says.

Because the US government had not made the details of the international negotiations public, in July 2000 environmentalists tried to use the US Freedom of Information Act to force the agency to disclose documents it provided to other countries during meetings last year.

While the USTR admitted the existence of the documents, it refused to make them public, claiming they were protected by an exemption in the Freedom of Information Act for communications between and within government agencies.

But Porter argues that the documents do not qualify for the exemption because it disclosed the records to foreign governments participating in the treaty negotiations.

“The USTR is willing to give these documents to 33 foreign nations, but not the US public,” he says.

The trade agency (office of the USTR) did not return requests for comment on the lawsuit.

Martin Wagner, director of international programmes at Earthjustice, an environmental law organisation based in California, says it is important to know what governments are negotiating now because many of the important decisions happen early in the process.

“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,” he says.

Environmental groups worry that the new trade agreement will contain provisions present in the NAFTA agreement known as Chapter 11, which were designed to ensure that a corporation’s investment would not be expropriated.

Critics charge that the provision has become a strategic offensive weapon against environmental, public safety and health laws.

In one instance, the Canadian-based Methanex Corporation filed suit against the United States under the Chapter 11 provisions, claiming the state of California’s decision to phase out the use of its gasoline additive methyl tertiary butyl ether (MTBE) cost the company $970 million.

California’s governor, Grey Davis, ordered a ban on the additive by the end of 2002 after studies revealed unusually high - and potentially harmful - levels of MTBE in California’s drinking water supply. Methanex’s claim is still pending.

Last August, an international trade tribunal based here in Washington ruled that Mexico violated NAFTA’s Chapter 11 investor provisions and ordered the government to pay $16.7 million to a US company.

The tribunal said Mexico violated the trade agreement because it did not allow the California-based Metalclad Corporation to open a hazardous waste treatment and disposal site in San Luis Potosi, a state in central Mexico.

While local government opposed the project, arguing it violated local environment laws, the tribunal said the decision amounted to expropriation of the company’s profits.

In another case, the US-based Ethyl Corporation attacked a Canadian ban on the inter-provincial sale and import of a gasoline additive it produces known as MMT. Ethyl claimed $250 million in damages for expropriation, or seizure of its potential profits. In July 1998, Canada withdrew the ban and paid the company $13 million in damages.

The filing of the lawsuit on Wednesday against the USTR is just one of the legal battles between the government agency and environmentalists over openness and public participation.

Several years ago, half a dozen environmental groups, including the Pacific Environment and Resources Center and the Sierra Club, successfully sued the USTR for excluding representatives of the environmental activist community from participating in two panels that advise the agency on international trade policy.

The industry-dominated advisory panels, whose meetings are held in secret, give advice on far-reaching issues, including trade in wood and paper products and chemicals, which advocacy groups say, can have serious environmental consequences.

In 1999, a federal judge ruled that the membership of the advisory committees did not provide a “fair balance of viewpoints”, as required by the law. Now, two representatives from environmental groups have been formally appointed to trade advisory panels that discuss trade in lumber and paper products.