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Why We Have Grave Environmental Concerns About 'Fast-Track' Trade Authority

04/20/2015 04:46 pm ET | Updated Jun 20, 2015

A "fast-track" trade bill that would expedite approval of two massive trade agreements was just introduced. We know enough about these pending trade agreements -- one between the U.S. and 11 other Pacific countries and the other with the European Union -- to reject efforts to put them on a fast lane to becoming law. These agreements could have grave impacts on our bedrock environmental laws and public-health protections. That is why we oppose this "fast-track" bill. Anyone who cares about the environment and public health should also oppose this bill.

As NRDC Executive Director Peter Lehner stated:

These trade agreements would allow foreign corporations to challenge our chemical safeguards, climate protections and food safety laws at special trade tribunals outside our normal legal system. Congress should reject any fast track legislation that allows expedited approval for trade agreements that can undercut our public health and environmental safeguards.

Senators Orrin Hatch (R-Utah) and Ron Wyden (D-Oregon) and Rep. Paul Ryan (R-Wisconsin) introduced a fast-track bill that would limit public debate on these new trade agreements, eliminate the ability of our elected officials to amend the agreements, and offer unenforceable mandates to ensure that these agreements don't undercut our public health and environmental safeguards. (For more analysis of the bill, click here.) Proponents of the bill claim that it strengthens the oversight of Congress and includes requirements that trade agreements include strong environmental safeguards and some of the strongest environmental protections to date. Unfortunately, those claims aren't guaranteed in the fast-track bill and aren't supported by the language that is in the non-binding and vague environmental "negotiating objectives." Even if those objectives were more specific -- which they aren't -- the U.S. trade representative can ignore them, as U.S. trade representatives have done in the past. And what we are seeing in the two pending trade agreements that would be covered by these fast-track rules raises major concerns that these agreements could weaken our environmental and health safeguards.

The U.S. and 11 other Pacific countries are in the final stages of a trade agreement -- the Trans-Pacific Partnership (TPP) -- that would be the biggest trade agreement in recent history. It would cover countries accounting for over 40 percent of the world's trade and economic output. It will have far-reaching implications for public-health, environmental and conservation protections in the U.S. and around the world. What environmental and conservation provisions must be in TPP are quite straightforward, as we and other environmental groups have consistently outlined. And the U.S. is separately negotiating a free-trade agreement with the European Union called the Trans-Atlantic Trade and Investment Partnership (TTIP), which could change how America and Europe maintain and strengthen bedrock environmental protections.

Here is why that fast process should raise serious concerns for anyone who cares about public health and the environment, since we know what changes could come as a result of the current trade agreements.

Companies would have expanded rights to challenge our environmental laws in a special trade tribunal outside the U.S. court system.

The TPP includes an extrajudicial court system called the investor-state dispute settlement (ISDS) system, which allows companies to challenge laws, regulations, and programs that countries implement. When a corporation feels that its investments have been impacted by the introduction of a new law or policy, this mechanism allows foreign firms to bypass domestic court systems and sue governments for financial compensation. The threat of a lawsuit can create a chilling effect on new safeguards as governments fear that they'll have huge financial payouts if they strengthen the rules. And they can lead to payouts from the country to the company that are in the hundreds of millions to billions of dollars.

Unfortunately, there are a large number of cases that have undercut a number of countries' environmental protections, and there are troubling signs ahead, as some important climate actions may be under threat. TPP would significantly expand the number of companies that can challenge America's environmental laws in these trade courts. Nothing in the leaked text (as reported by The New York Times) guarantees that our environmental safeguards will survive corporate challenges in these trade tribunals. This provision could put at risk all our environmental and public-health safeguards, including our climate safeguards, chemical laws, and food safety standards.

Safeguards against dangerous chemicals in our food and consumer products could be weakened.

A leaked "chemicals annex" for TTIP closely follows the chemical industry's agenda for TTIP to minimize regulatory differences between the U.S. and the EU in a manner that could lead to a lowering of safeguards (a race toward the bottom). The chemical industry proposals would freeze the development and implementation of stronger, more health-protective laws; derail European leadership on hormone-disrupting (endocrine-disrupting) chemicals, nanomaterials and other urgent and emerging issues; and block U.S. states and EU member states from taking action in the face of inaction by the U.S. federal government and European Commission. (For more on the leak, see our joint analysis.)

Our food health protections could be put at risk.

The TPP and TTIP include a chapter dedicated to "sanitary and phytosanitary" (SPS) measures. This chapter covers public-health policies and regulations related to food safety and safeguards related to animal welfare and plant-health regulations. This chapter could establish a ceiling on food-safety standards (not a floor), require that government regulators prove beyond a reasonable doubt that food and animal welfare safeguards are "necessary," and limit our ability to restrict unsafe imported food. (For more regarding our concerns, see (our letter with 29 groups.)

They don't do enough in the "Environment Chapter" to advance conservation issues.

Recent free-trade agreements include a separate chapter to address the environment and conservation issues. The "Environment Chapter" effectively comes down to several basic principles (as I discussed here): Ensure that there are real financial penalties and enforcement for countries that fail to live up to their environmental obligations; don't lower your environmental standards to attract trade (and strengthen them to reflect modern environmental protections); live up to obligations on key international agreements; and stop doing illegal and unsustainable things that are destroying the ocean, wildlife, and forests (and ensure that there are meaningful measures and enforcement to ensure that the dynamics on-the-ground fundamentally change).

We might see some improvements on these fronts, but what we have seen so far from a leaked text (and reading between the lines) gives us concern that these provisions will be watered down or weakened to the point that they won't noticeably change things on the ground. And since USTR has yet to bring an enforcement case for a country that violates its environmental obligations under a free-trade agreement (despite clear violations by Peru), we have low confidence that these provisions would be enforced.

When it comes to wildlife trade and fishery subsidies, in particular, the agreement might include some important provisions. However, those provisions can in no way make up for the remaining defects in the agreement.

The other chapters also impact environmental and public-health safeguards, so it is important to look beyond the "Environment Chapter" to see the full environmental impact of these agreements.

They fail to address climate change.

The countries in TPP include some of the largest carbon emitters in the world, including Japan, Australia, and the U.S., as well as major emerging emitters such as Vietnam and Peru. In addition, this is a "docking agreement," so a long list of countries would like to join after the agreement is finalized -- many of them major emitters. Free-trade agreements since the Bush administration have included a list of multilateral environmental agreements that the countries are to "adopt, maintain, and implement." The current list (as captured in the fast-track bill) includes international agreements that the U.S. is already a party to, including ones that help protect against trade in endangered species, destruction of the ozone layer, marine pollution, and international whaling. Unfortunately, we fully expect that this does not and will not include the international agreement to address climate change. Failure to even mention climate change in the Environment Chapter is a weak foundation from which to build the 21st-century trade agreement. After all, climate change is one, if not the, defining issue of this century.

And our climate rules could be subject to the special trade tribunal outside the U.S. court system. TransCanada, the company behind the Keystone XL tar-sands pipeline, is already contemplating such a challenge.

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We must not sacrifice our bedrock environmental, public-health, and climate safeguards as the price of a free-trade agreement. Unfortunately, what we have seen from the two pending trade agreements raises serious concerns that these standards could be weakened through the various provisions of these trade agreements. And that is why we are opposed to the fast-track trade bill that was just introduced.