Last week, the U.S. Court of Appeals for the District of Columbia Circuit ruled that trade deals can be exempted from federal disclosure laws. The case revolved around a classified document related to an FTAA (Free Trade Area of the Americas) that contained information about environmental and public health and safety concerns.
The suit was filed by EarthJustice and the Center for International Environmental Law (CIEL), with CIEL President Carroll Muffett issuing the following statement after the ruling: “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.”
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 Court claims that the negotiations in the trade deal were exempt from federal disclosure, even if the information is pertinent to public safety, health, and the environment, in the interest of “national defense and foreign policy.” It is worth noting that the majority on the DC Court of Appeals were appointed by Republican presidents, many of whom have served for more than 25 years. There are currently three vacancies on the Court, which has sparked a political battle in Washington.
The ruling has broad and potentially dangerous impacts for American citizens. Not only will it allow the government to keep secret details about potential hazards to our health, but it will also mean that the public will lose the ability to effectively weigh in on projects. Take, for example, the Keystone XL Pipeline: the public submitted comments and opinions to the State Department based on the information that had been presented during administration negotiations – and one million signatures and comments were delivered in opposition to the pipeline. Under the D.C. Court’s ruling, the public might still get to make comments, but they would be based on half-truths and guesswork.
The ruling also illustrates the mentality that has swept the government - in the name of “national security,” all bets are off. Privacy, transparency, and even our own health is being sacrificed in the name of “national security,” and the sad truth is that we're losing our security as a nation as a result.