Why we have grave environmental concerns about "fast track" trade authority

A "fast track" trade bill was just introduced that would expedite approval of two massive trade agreements. We know enough about these pending trade agreements - one between the U.S. and eleven other 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 that cares about the environment and public health should also oppose this bill.

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As NRDC's 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 Hatch (R-UT) and Wyden (D-OR), and Representative Paul Ryan (R-WI) 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 offers unenforceable mandates to ensure that these agreements don't undercut our public health and environmental safeguards (for more analysis of the bill see 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 they 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 eleven other 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 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. What environmental and conservation provisions must be in TPP are quite straight forward 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) that could change how America and Europe maintain and strengthen bedrock environmental protections.

Here is why that fast process should raise serious concerns for anyone that 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 extra-judicial court system called Investor-State Dispute Settlement (ISDS) 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. 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 NY Times) guarantees that our environmental safeguards will survive corporate challenges in these trade tribunals. This provision could put at risk all of 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 towards the bottom). The chemical industry proposals would freeze the development and implementation of stronger, more health-protective laws; derail European leadership on hormone (endocrine) disrupting chemicals, nanomaterials and other urgent and emerging issues; and block US 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.

Put at risk our food health protections. The TPP and TTIP include a chapter called "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.

Not 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 upon environmental and public health safeguards so it is important to look beyond the "Environment Chapter" to see the full environmental impact of these agreements.

Fails 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 are 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 hole, 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 put 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.

We hope that you will join us in urging your Member of Congress to reject this bill.

About the Authors

Jake Schmidt

Director, International program

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