Environmental Slight Of Hand

If you believe press reports, governments are preparing for “serious” climate negotiations at the upcoming December UN climate conference in Paris.  I put quotes around serious because there is good reason to believe that most governments, at least the most powerful, care little about the outcome.  One indicator is their commitment to protecting the environment in two so-called free trade agreements.

For example, the Guardian newspaper recently leaked the EU proposal for the Sustainable Development Chapter of the Transatlantic Trade and Investment Partnership. Here is what the Guardian had to say:

In January, the bloc promised to safeguard green laws, defend international standards and protect the EU’s right to set high levels of environmental protection, in a haggle with the US over terms for a free trade deal.

But a confidential text seen by the Guardian and filed in the sustainable development chapter of negotiations earlier this week contains only vaguely phrased and non-binding commitments to environmental safeguards.

No obligations to ratify international environmental conventions are proposed, and ways of enforcing goals on biodiversity, chemicals and the illegal wildlife trade are similarly absent.

The document does recognize a “right of each party to determine its sustainable development policies and priorities”. But lawyers say this will have far weaker standing than provisions allowing investors to sue states that pass laws breaching legitimate expectations of profit.

“The safeguards provided to sustainable development are virtually non-existent compared to those provided to investors and the difference is rather stark,” said Tim Grabiel, a Paris-based environmental attorney. “The sustainable development chapter comprises a series of aspirational statements and loosely worded commitments with an unclear dispute settlement mechanism. It has little if any legal force.” . . .

Last year, more than a million people across Europe signed a petition calling for the Transatlantic Trade and Investment Partnership (TTIP) talks to be scrapped. Their concern was that multinationals could use the treaty’s investor-state dispute settlement (ISDS) provisions to sue authorities in private tribunals, not bound by legal precedent.

In one famous case, Lone Pine launched an unresolved $250m suit against the state of Quebec after it introduced a fracking moratorium, using ISDS provisions in the North American Free Trade Agreement (Nafta). . . .

Natacha Cingotti, a trade campaigner for [Friends of the Earth Europe], said that only a carve-out of environmental protections from the tribunal process could prevent such cases mushrooming after a TTIP deal.

“This new leak illustrates that the European commission is not serious about protecting essential safeguards for citizens and the environment in the context of the TTIP talks,” she told the Guardian. “Powerful corporate polluters are likely to get VIP treatment under it, while the only chapter that could bring strong language to protect essential regulations to build a sustainable future is weak and unenforceable.” . . .

An EU promise that TTIP would “support our climate targets, for example by promoting trade and investment in green goods and services” has already been thrown into doubt by the leak of a draft energy chapter last May. In it, Europe’s negotiators pushed for “a legally binding commitment in the TTIP guaranteeing the free export of crude oil and gas resources”.

So, in sum, the one chapter that might point to a serious stance on climate change will likely include no requirements to ratify international environmental conventions.  More importantly, the agreement would include an investor-state dispute resolution system that allows corporations to sue governments if they believe implemented environmental policies will cause them to lose expected profits.

And European governments are not alone in seeking to create a structure of regulations that will make it difficult to protect the environment and reverse climate change.  Here is what governments have to say about the environmental chapter of the US-driven Transpacific Partnership Agreement; of course this is the most hopeful perspective since it is drawn from official statements–the actual terms of the chapter remains secret.

According to a UK information service, it appears that:

the environment chapter will contain obligations related to three of the seven multilateral environmental agreements (MEAs) set forth by congressional Democrats as a minimum standard for inclusion in the final deal, but that only one of these agreements will be fully enforceable under TPP’s dispute settlement mechanism.

Specifically, [government statements] make clear that the TPP environment chapter will include an obligation for all parties to uphold their commitments under the Convention on Illegal Trade in Endangered Species of Wild Flora and Fauna (CITES), which generally requires countries to ban trade in specific endangered species.

They also suggest that the environment chapter will include obligations similar to those contained in the Montreal Protocol on protection of the ozone layer, and the Convention on the Prevention of Pollution from Ships (MARPOL) — without specifically subjecting these MEAs to the TPP dispute settlement mechanism.

Finally, the TPP environment chapter will contain a general obligation for countries to reaffirm their commitments to implementing other MEAs to which they are parties, without specifically making these enforceable under the TPP, countries have signaled.

This architecture would mean TPP falls short of the standard established in the May 10, 2007 agreement between House Democrats and the George W. Bush administration, which was that future free trade agreements would contain a commitment for countries to adopt, maintain, and implement laws and regulations that fulfill their obligations under any of seven specific MEAs to which they are a party. The May 10 language also subjected this commitment to the regular dispute settlement mechanism of the FTA.

The missing MEAs in TPP are the Ramsar Convention on Wetlands and Waterfowl; the Convention on the Conservation of Antarctic Marine Living Resources; the International Convention for the Regulation of Whaling; and the Inter-American Tropical Tuna Convention. . . .

The U.S. fact sheet says the environment chapter requires TPP countries to “[p]romote cooperative efforts to address issues such as energy efficiency; development of cost-effective, low-emissions technologies and alternative, clean and renewable energy sources; deforestation and forest degradation; and resilient development.” The joint summary says parties will cooperate to “transition to low-emissions and resilient economies.”

So, again, lots of fine words but, as revealed by the reach of the investor-state dispute resolution mechanism, it is profits before all.


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