U.S. Trade Agreement with Asia-Pacific Countries Must Have Strong Environmental Provisions

Trans-Pacific Partnership Ministers Meet in Brunei | Les ministres du Partenariat transpacifique se rencontrent à Brunéi

The U.S. and eleven other countries are in the final stages of a trade agreement - the Trans-Pacific Partnership (TPP) - that would, if completed, be the biggest trade agreement in recent history. It would cover countries accounting for over forty percent of the world's trade and economic output. It will have far reaching implications for public health, environmental and conservation protection in the U.S. and around the world. If it is to truly reflect a "21st Century Trade Agreement" as President Obama has outlined, it will need to include meaningful, binding, and enforceable environmental provisions and not include back-door mechanisms that undercut bedrock protections for people's health and the planet. That was the message in a letter that leading environmental and conservation groups recently sent to the U.S.

This trade agreement is being negotiated with Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, U.S., and Vietnam. These countries are major actors on key environmental and conservation issues facing the world. TPP countries account for over a third of the global fisheries catch and deploy a number of unsustainable fishing practices; are significant exporters and importers of a wide range of wildlife products (such as rhino horn and other parts from critical endangered species); are key timber producer, processing, and consumer countries, including several associated with illegal logging and trade; and account for around one-quarter of the world's global warming pollution that is driving climate change.

As a result, any trade agreement with these countries must address the key environmental and conservation challenges facing us in the 21st century, such as destruction of our oceans, wildlife, forests, public health, and climate. The U.S. has pushed for a minimum set of conservation protections in the TPP Environment Chapter - just one of 29 TPP chapters. But the devil is in the details and there are a number of aspects that the U.S. has resisted including in the agreement and provisions that could undermine key environmental safeguards. Unfortunately due to arcane rules pushed by the U.S., we have no idea what is in this agreement and won't know until the final deal is reached as the documents are kept secret. But we do have some insights into a couple of aspects, including the Environment Chapter, thanks to leaks of earlier versions of the negotiating documents. And the signs from those leaks were troubling enough that NRDC, Sierra Club, and WWF raised serious concerns back in January about the reported language in the Environment Chapter.

So as negotiators make a final push to wrap up agreements this year, thirteen leading environmental and conservation groups - including NRDC, Sierra Club, WWF, League of Conservation Voters, and Oceana - sent a letter to the U.S. government articulating basic minimum conservation protections that need to be included in the final TPP environment chapter. On top of that a number of groups, including NRDC, have raised concerns about other TPP provisions including the inclusion of secret courts that would give new rights to corporations to challenge environmental and other public interest policies in un-transparent trade tribunals and the exclusion of key environmental agreements that address climate change or mercury pollution. At the same time, these trade agreements don't establish minimum environmental safeguards that each participating country must meet, such as protecting their citizens from dangerous pollution. Here is a basic summary of my organization's minimum requirements for the TPP. Unfortunately the leaked documents fall well short of these principles.

Ensure that there are real financial penalties and enforcement for countries that fail to live up to their environmental obligations. All recent U.S. trade agreements have included an enforcement mechanism in which countries that fail to live up to the environment provisions be held accountable on the same terms as countries which violate the commercial chapters of the agreement. That means that if a country fails to comply with the environment provisions they can be subject to significant financial penalties through trade sanctions. This is meant to be a deterrent and a tool to ensure that bad actors are penalized. So if a country is found to weaken its environmental laws or cheat on its environmental obligations it can be financially penalized. Even the Bush administration - no friend to the environment - agreed to that minimum standard.

While such an enforcement mechanism is critical, it is only effective if it is actually utilized. After all, penalties with no enforcement is like having a speed limit but cops that don't ever write tickets (or cameras that don't ever catch the violations) as people dangerously blow by speed limits in a school zone. Unfortunately, we have yet to see the U.S. government utilize this penalty system to challenge governments that are not complying with their environmental obligations despite, for example, the troubling signs that Peru has violated the environmental obligations in the US-Peru Free Trade Agreement.

Don't lower your environmental standards to attract trade (and strengthen them to reflect modern environmental protections). Countries often change their laws to attract more outside investment. This is an unfair trade practice as countries then damage their own people and the planet in order to attract more trade. Trade agreements then become a race-to-the-bottom as everyone competes to see who can trample basic rights the quickest. In order to avoid this, all recent U.S. trade agreements have included a provision that obligates countries to not weaken their standards in order to attract trade or investment. Unfortunately without strong enforcement this provision lacks muscle and even the principle is often only vaguely enshrined in trade agreements. Again, even the Bush administration agreed to this principle.

At the same it is important to recognize that trade agreements don't necessarily require countries to bring their environmental standards up to a "gold standard" that reflects 21st century principles to "not pollute their citizen's air, water, land, or food." A true 21st century agreement would require a race-to-the-top in environmental protection. No country seems to be pushing for this basic principle or a legally enforceable pathway even though it is clear that lower environmental standards unfairly impact trade between countries.

Live up to the International Agreements that you have already agreed to implement (including ones confronting climate change and mercury pollution). Free trade agreements since the Bush administration have included a list of multilateral environmental agreements that countries are to "adopt, maintain, and implement" its obligations under these agreements. The list 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 hole, marine pollution, and international whaling.

Unfortunately the list of agreements in recent trade pacts isn't complete for addressing key 21st century issues. After all, the list of international agreements in recent trade pacts was negotiated with the Bush Administration so it didn't include climate change even though the U.S. is a Party to that agreement. And the U.S. has become a Party to additional agreements such as the agreement to address mercury pollution. Given that President Obama has made addressing climate change a top priority and was the first government to join the mercury agreement. it is logical to include these agreements.

Stop doing illegal and unsustainable things that are destroying the ocean, wildlife, and forests (and ensure that there are meaningful measures and timelines for these provisions). As the letter from the thirteen leading groups stated :

There are significant conservation challenges in the Asia-Pacific region, such as fisheries depletion, shark finning, the illegal harvest and trade in timber, and poaching and illegal trade in wildlife that could be exacerbated by increased trade. It is therefore critical that the TPP include legally binding provisions to mitigate the risks of increased stress on natural resources and loss of biodiversity and to support legal and sustainable trade.

These thirteen groups have pushed for strong provisions and meaningful timelines for key conservation issues such as: illegal logging and associated trade; wildlife trafficking; illegal, unreported, and unregulated fishing; disciplines on fisheries subsidies; and fisheries management and shark fin trade.

Scrap the ability of secret courts to undercut bedrock environmental and conservation laws that protect people and the planet. The U.S. continues to insist that trade agreements include a closed and extra-judicial court system called investor-state dispute settlement that 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. 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. This system could undercut future bedrock environmental laws and should be eliminated from this agreement and future ones.


A 21st century trade agreement must ensure that key environmental protections that our citizens depend upon aren't directly or indirectly undercut. And it should ensure that countries become leaders on key environmental challenges such as destruction of our oceans, wildlife, land, forests, and climate. President Obama should only bring back a trade agreement with the Asia and Pacific countries that meet these basic standards. Now isn't the time for 20th century trade agreements.

* This was originally posted on HuffingtonPost

About the Authors

Jake Schmidt

Director, International program

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