Trade Agreements and the Environment
State legislators are enacting important policies including addressing climate change and promoting renewable energy, regulating toxic chemicals, protecting pollinators and limiting fracking, among others. These policies could be at risk under investor lawsuit provisions in pending trade agreements, which are modeled on similar provisions in NAFTA that are being used right now to challenge the the Keystone XL pipeline permit and a fracking moratorium. Trade agreements need Congressional votes to become law, and many members of Congress remain undecided on the issue.
A primary focus of modern international trade agreements is reducing or eliminating non-tariff barriers– regulations that may increase industry costs or get in the way of business as usual. Under existing and proposed international trade agreements, transnational corporations can go around legislatures and the courts and challenge environmental laws in international arbitration tribunals, seeking money damages to pay for claimed lost profits.
Progressive state environmental policies, and the very authority of states to adopt environmental regulations that go beyond the minimum standards of federal law, or provide protections and guidance where no federal standards exist, could be impacted by two pending international treaties. The Trans-Pacific Partnership (TPP) between 12 Pacific Rim countries including the U.S., has been sent to Congress and will be voted on in 2016 or 2017. The Trans-Atlantic Trade & Investment Partnership (TTIP) with the entire European Union is still under negotiation.
Past and current WTO and NAFTA cases against Canadian provinces and U.S. states have included challenges to hydraulic fracturing moratoria, zoning and regulation of mining, renewable energy policy including local content requirements, regulating toxics in groundwater, and water pollution permitting. In fact, TransCanada is in the process of filing suit under NAFTA seeking $15 billion in damages because of the U.S. government’s decision to deny its application to build the Keystone XL pipeline.
State and local officials have limited access to vital information about trade policy decisions. Nonetheless, state legislators have actively engaged with trade negotiators, state attorneys general, and members of Congress to make sure that their views are heard, through letters, legislative resolutions, and meetings.
Below is additional information and resources for state legislators considering the impact of trade agreements on the environment.
This paper examines real world instances where trade policies conflict with climate goals, and specifically analyzes how the TPP will affect Paris climate goals. The full paper is available here.
This PowerPoint was presented at a TTIP stakeholder meeting in Miami Florida on October 21, 2015. The full presentation can be viewed here.
This paper by CIEL evaluates the Environment Chapter of the Trans-Pacific Partnership and concludes that they are weak and lack enforceability. The paper is available here.
This report by former Maine State Representative Sharon Treat and Baskut Tuncak with the Center for International Environmental Law details how provisions in the proposed Trans-Atlantic Trade and Investment Partnership threaten state sovereignty, curtailing states’ efforts to protect the public from toxic chemicals, while jeopardizing state regulation on environmental issues that exceed federal standards. The full report is available here.
This report by former Maine State Representative Sharon Treat for the Institute for Agriculture and Trade Policy details how the proposed trade agreement with the EU could preempt state legislation concerning GMO and other food labeling requirements.The full report is available here.
This report offers a critique of the EU position on chemicals under the Trans-Atlantic Trade and Investment Partnership Agreement with the US. It identifies areas where there is insufficient information to make decisions, as well as specific chemicals of concern.The full report is available here.
This fact sheet outlines how the NAFTA decision on open-pit mining project denial in a sensitive marine area in Nova Scotia has implications for US states. The fact sheet is available here.
The letter is concerning the impact of the proposed Trans-Pacific Partnership on State’s Rights, and is available here.
This document provides public comments submitted by the Center for International Environmental Law on behalf of allied organizations regarding the United States Trade Representative’s environmental review of TTIP. In particular, the document lays out concerns regarding chemical regulations and regulatory coherence. The full letter is available here.
- Testimony of Carroll Muffett, President and CEO, Center for International Environmental Law before the U.S. House Energy and Commerce Committee Statement
The full statement is available here.
- Investor-state dispute settlement under TTIP – a risk for environmental regulation? — Heinrich Boll, 2013
The Transatlantic Trade and Investment Partnership (TTIP) could include rules on investment protection, including so called investor- state dispute settlement (ISDS). This report provides a detailed rationale for excluding ISDS from TTIP. The full report is available here.