Center for International Environmental Law v. Office of the United States Trade Representative

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 21, 2013 Decided June 7, 2013
No. 12-5136
CENTER FOR I NTERNATIONAL ENVIRONMENTAL LAW ,
APPELLEE
v.
OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE AND
RON KIRK , IN HIS OFFICIAL CAPACITY AS THE UNITED STATES
TRADE REPRESENTATIVE ,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:01-cv-00498)
H. Thomas Byron III, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Stuart F. Delery, Principal Deputy Assistant Attorney General,
Ronald C. Machen, U.S. Attorney, and Matthew M. Collette,
Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered
an appearance.
J. Martin Wagner argued the cause and filed the brief for
appellee. Sarah H. Burt entered an appearance.
Bruce D. Brown was on the brief for amici curiae The
Reporters Committee for Freedom of the Press, et al. in support

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of appellee. Laurie A. Babinski, Jonathan D. Hart, Kathleen A.
Kirby, Eric N. Lieberman, David E. McCraw, Bruce W. Sanford,
Peter E. Scheer, and Kurt A. Wimmer entered appearances.
Before: BROWN and KAVANAUGH , Circuit Judges, and
RANDOLPH , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH .
RANDOLPH , Senior Circuit Judge:
The nature of foreign negotiations requires caution, and
their success must often depend on secrecy; and even
when brought to a conclusion, a full disclosure of all
the measures, demands, or eventual concessions, which
may have been proposed or contemplated, would be
extremely impolitic: for this might have a pernicious
influence on future negotiations, or produce immediate
inconveniences; perhaps danger and mischief, in
relation to other Powers.
So wrote President George Washington in response to a request
of the House of Representatives that he “lay before [the] House
a copy of the instructions to the minister of the United States
who negotiated the treaty with the King of Great Britain”—the
Jay Treaty—“together with the correspondence and other
documents relative to that treaty.” George Washington, Message
to the House of Representatives (Mar. 30, 1796), in 1 AMERICAN
S TATE PAPERS : FOREIGN RELATIONS 550, 550–51 (Walter
Lowrie & Matthew St. Clair Clarke eds., 1833).1 President
1 President Washington added that “all the papers affecting the
negotiation with Great Britain were laid before the Senate, when the

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Washington’s objections have a direct bearing on this appeal
from the district court’s order requiring the Office of the United
States Trade Representative to disclose a classified document
describing the government’s position during international trade
negotiations.
During the 1990s and early 2000s, the United States and
thirty-three other countries participated in negotiations seeking
to establish the Free Trade Agreement of the Americas, a
proposed agreement that would have governed international
trade and investment throughout the Western Hemisphere. In
July 2000, the Center for International Environmental Law, a
not-for-profit public-interest organization, submitted a Freedom
of Information Act, 5 U.S.C. § 552, request to the Office of the
United States Trade Representative. The Center sought, among
other things, documents circulated or tabled by the United States
during sessions of the Free Trade Agreement of the Americas
Negotiating Group on Investment held in February and May
2000. The Trade Representative identified forty-six documents
responsive to the Center’s request but withheld the documents
as exempt from disclosure. The Center sued to compel
production.
After years of litigation, only one document remains in
dispute—a white paper referred to in the district court
proceedings as “document 1.” 2 The white paper consists of the
treaty itself was communicated for their consideration and advice.” Id.
at 551.
2 A complete history of the litigation may be found in the district
court’s three opinions. See Ctr. for Int’l Envtl. Law v. Office of the
U.S. Trade Representative, 845 F. Supp. 2d 252 (D.D.C. 2012); Ctr.
for Int’l Envtl. Law v. Office of the U.S. Trade Representative, 777 F.
Supp. 2d 77 (D.D.C. 2011); Ctr. for Int’l Envtl. Law v. Office of the

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Trade Representative’s commentary on the interpretation of the
phrase “in like circumstances.” The government shared the
paper with the Negotiating Group on Investment.
The United States and the thirty-three other countries
participating in the Free Trade Agreement of the Americas
negotiations agreed that all negotiating documents produced or
received during the course of negotiations would be restricted
and would not be released to the public if any participating
government objected to disclosure. Citing this confidentiality
agreement as well as the harm to “relations with foreign
governments and foreign activities” that it believed would result
from disclosure, the Trade Representative classified the white
paper as “confidential” and invoked FOIA exemption 1, which
applies to classified materials, as the basis for withholding it.3
Exemption 1 protects from disclosure information that has
been “properly classified” in the interest of “national defense or
foreign policy.” 5 U.S.C. § 552(b)(1).4 The governing Executive
Order provides that information is properly classified as
U.S. Trade Representative, 505 F. Supp. 2d 150 (D.D.C. 2007).
3 In 2008, faced with the likely end of negotiations, the thirty-four
participating governments agreed that all negotiating documents
would be “derestricted” and available for public release on December
31, 2013, unless the government that produced a particular document
objected to its disclosure. In its brief, the Trade Representative asserts
that it intends to notify the other negotiating governments that the
white paper should remain restricted after December 31, 2013.
4 Under exemption 1, the disclosure requirements of FOIA do not
apply to matters that are “(A) specifically authorized under criteria
established by an Executive order to be kept secret in the interest of
national defense or foreign policy and (B) are in fact properly
classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1).

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“confidential” if its disclosure “reasonably could be expected to
cause damage to the national security,” Exec. Order No. 12,958,
as amended by Exec. Order 13,292, § 1.2(a)(3), 68 Fed. Reg.
15,315, 15,316 (Mar. 28, 2003), which includes “harm to the
. . . foreign relations of the United States,” id. § 6.1(j), 68 Fed.
Reg. at 15,331.5
The Trade Representative tells us that the phrase “in like
circumstances,” the meaning of which the white paper discusses,
is a key element of two nondiscrimination provisions integral to
trade and investment agreements entered into by the United
States—the “most-favored-nation treatment” and the “national
treatment” provisions.6 The phrase defines the conditions under
5 The Center and the Trade Representative agree that Executive
Order 12,958, which was in effect when the Trade Representative’s
classification decision was made, governs. We cite the amended
version of that Executive Order (found in Executive Order 13,292)
because, although the Trade Representative originally classified the
document on May 10, 2001, before this amendment was made, on
September 18, 2008, after the amendment took effect, the Trade
Representative extended the duration of the classification. Executive
Order 12,958 was later superseded by Executive Order 13,526, which
took effect during the course of the district court proceedings. See
Exec. Order No. 13,526, §§ 6.2(g), 6.3, 75 Fed. Reg. 707, 731 (Jan. 5,
2010). We need not concern ourselves with the question of which
Executive Order governs, see Campbell v. U.S. Dep’t of Justice, 164
F.3d 20, 29–30 (D.C. Cir. 1998), since the relevant classification
criteria are the same in both orders.
6 National treatment requires that each party to the agreement
“accord to investors of the other [p]arty treatment no less favorable
than that it accords, in like circumstances, to its own investors with
respect to the establishment, acquisition, expansion, management,
conduct, operation, and sale or other disposition of investments in its
territory.” Trade Promotion Agreement, U.S.-Panama, art. 10.3, June
28, 2007 (entered into force Oct. 31, 2012), available at

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which those provisions apply but is not itself defined in such
agreements. The Trade Representative submitted declarations in
the district court asserting that the “United States has routinely
avoided making public U.S. interpretations of this type
concerning ‘in like circumstances’” because of the “wide
variety of factual circumstances that could characterize
investment relationships.” The white paper, the Trade
Representative declared, was not offered as a “definitive or
exhaustive statement of U.S. views on how the concept [of ‘in
like circumstances’] should be applied outside of the [Free
Trade Agreement of the Americas] or to every situation,” and its
disclosure would limit the United States’ flexibility to “assert a
broader or narrower view of the meaning and applicability” of
the phrase in interpreting existing agreements and in negotiating
future agreements.
As an example, the Trade Representative pointed to “a
substantial risk” that foreign investors or foreign governments
http://www.ustr.gov/trade-agreements/free-trade-agreements/
panama-tpa/final-text. Most-favored-nation treatment requires that
each party “accord to investors of the other [p]arty treatment no less
favorable than that it accords, in like circumstances, to investors of
any non-[p]arty with respect to the establishment, acquisition,
expansion, management, conduct, operation, and sale or other
disposition of investments in its territory.” Id. art. 10.4. These two
nondiscrimination provisions, including the phrase “in like
circumstances,” are present in the investment chapters of many other
free-trade agreements, see, e.g., North American Free Trade
Agreement, art. 1102, 1103, Dec. 17, 1992, 32 I.L.M. 605 (entered
into force Jan. 1, 1994), as well as in bilateral investment treaties, see,
e.g., Treaty Concerning the Encouragement and Reciprocal Protection
of Investment, U.S.-Uruguay, art. 3, 4, Nov. 4, 2005, S. T REATY DOC.
NO. 109-9 (entered into force Nov. 1, 2006). The Trade Representative
advises us that the United States will seek to include these provisions
(using the same language) in future agreements as well.

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could use the interpretation set forth in the white paper to
support a claim that the United States had breached its
obligations under an existing investment agreement.
“Specifically, foreign investors could question any interpretation
of ‘in like circumstances’ that the United States offers that does
not fall within the strict confines of [the white paper].” Although
recognizing that the document is not binding on the United
States, the Trade Representative expressed concern that
“international arbitrators may nonetheless be willing to look at
[the document] for assistance in interpreting the phrase ‘in like
circumstances’ since the term is not specifically defined in trade
agreements.” That, the Trade Representative asserted, could
make it more difficult for the United States to defend its
interests.
The district court concluded that this risk of adverse
arbitration decisions was “insufficiently substantiated.” Ctr. for
Int’l Envtl. Law, 845 F. Supp. 2d at 259. Arbitrators, the court
reasoned, “are generally aware of the non-binding, preliminary
nature of the interpretive position articulated in [the disputed
document],” and “the risk that international arbitrators will
adopt the position, much less rely on it to the United States’
detriment in arbitration, is too speculative to justify a reasonable
expectation of harm to foreign relations.” Id. at 259–60.
We do not see why, in the absence of a definition in the
governing agreement, it is so implausible that an arbitrator
would look to the white paper as evidence of the United States’
interpretation of the phrase—even if that document is not
binding on the United States.
With respect to negotiating future agreements, the Trade
Representative asserted that “[e]ven if the United States was
prepared to embrace in a future agreement an interpretation of
‘in like circumstances’ identical to that reflected in [the white

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paper], U.S. negotiators might not want that interpretation to be
included in the opening U.S. position.” Rather, the Trade
Representative explained, “[t]hey might want to start with a
different offer, and then ‘negotiate up’ to the positions taken in
[the white paper].” Alternatively, the Trade Representative
explained, a negotiating partner “might first propose an
interpretation of ‘in like circumstances’ that is substantially
similar to the one reflected in [the white paper],” and “U.S.
negotiators might wish to accept ‘their’ proposal rather than
having to expend our own negotiating capital to convince the
other government(s) to accept ‘ours.’” Publicly disclosing the
white paper, the Trade Representative declared, “would prevent
the U.S. negotiators from exercising either of these
techniques—both of which are very common, and very useful,
in conducting trade negotiations”—and would thereby “damage
[the] ability of the United States to conclude future trade
agreements on favorable terms.”
The district court rejected the Trade Representative’s
argument and concluded that “[n]either of these options . . .
would be foreclosed by the disclosure of [the white paper].” Ctr.
for Int’l Envtl. Law, 845 F. Supp. 2d at 259. The Trade
Representative had explained that the position taken in the white
paper is not binding, and further that the United States does not
risk eroding the trust of its negotiating partners by altering its
positions during negotiations. From this the district court
reasoned that “the United States’ ability not to open with [the
white paper’s] interpretation in the future, or to accept it from a
negotiating partner, is not realistically imperilled by disclosure.”
Id.
We see no basis for doubting that the effectiveness of these
negotiating strategies could very well be limited if a negotiating
partner were aware of the positions the United States has taken
in the past. It is important to keep in mind that the Trade

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Representative was expressing concerns about the United States’
flexibility in future negotiations not necessarily with the
governments that participated in the Free Trade Agreement of
the Americas negotiations, but with governments that did not
take part in those negotiations. Absent disclosure of the white
paper, these other governments would not know the position the
United States had taken in the earlier negotiations.
Apparently recognizing as much, the district court
mentioned that the negotiations here extended across multiple
administrations. The court’s point was that future negotiating
partners would not have any “firm” expectation that a new U.S.
administration would adhere to the interpretation of “in like
circumstances” an earlier administration had advanced. Id. This
may be true, or it may not be. We do not know the expectations
of foreign governments or the positions future U.S.
administrations will support. But we do know that disclosure of
the white paper would reveal a position taken by the United
States in the past. It seems perfectly reasonable to think that
could limit the flexibility of U.S. negotiators.
Whether—or to what extent—this reduced flexibility might
affect the ability of the United States to negotiate future trade
agreements is not for us to speculate. The government has
determined that it would “damage [the] ability of the United
States to conclude future trade agreements on favorable terms.”
That determination has the force of history behind it. It echoes
what George Washington wrote more than two centuries ago.
Courts are “in an extremely poor position to second-guess” the
Trade Representative’s predictive judgment in these matters,
Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009)
(internal quotation marks omitted), but that is just what the
district court did in rejecting the agency’s justification for
withholding the white paper.

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The question is not whether the court agrees in full with the
Trade Representative’s evaluation of the expected harm to
foreign relations. See Gardels v. CIA, 689 F.2d 1100, 1105 (D.C.
Cir. 1982). Rather, the question is “whether on the whole record
the [a]gency’s judgment objectively survives the test of
reasonableness, good faith, specificity, and plausibility.” Id. We
conclude that it does.
The Center suggests that the Trade Representative has not
shown the “requisite degree of harm,” Appellee’s Br. 40
(quoting King v. U.S. Dep’t of Justice, 830 F.2d 210, 224 (D.C.
Cir. 1987)), asserting that the agency “has presented no evidence
that the harm from the disclosure of the content of [the white
paper] would interfere with [the Trade Representative’s]
responsibilities enough to outweigh FOIA’s policy of ‘full
agency disclosure,’” id. at 48 (quoting Dep’t of the Interior v.
Klamath Water Users Protective Ass’n, 532 U.S. 1, 16 (2001)).
But there is no such balancing test under exemption 1. The only
question is whether the disputed document is properly classified
under the applicable Executive Order. See 5 U.S.C. § 552(b)(1).
Here, the question is whether the white paper is properly
classified as “confidential.” The governing Executive Order
does not require the identification of any specific degree of harm
to support classification at the “confidential” level. See Exec.
Order No. 12,958, as amended by Exec. Order 13,292,
§ 1.2(a)(3), 68 Fed. Reg. at 15,316. While classification at the
“top secret” or “secret” levels requires that disclosure
“reasonably could be expected to cause exceptionally grave
damage” or “serious damage,” as the case may be, to the
national security, classification at the “confidential” level
requires only that disclosure “reasonably could be expected to
cause damage to the national security.” Id. at § 1.2(a), 68 Fed.
Reg. at 15,315–16. As discussed above, the Trade
Representative has satisfied its burden to explain the damage

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that reasonably could be expected to result from disclosure of
the white paper.
Because the white paper was properly classified as
confidential, the Trade Representative properly withheld the
document as exempt from disclosure under FOIA exemption 1.
Accordingly, the judgment of the district court is
Reversed.

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