Tag Archives: TTP

Environmental Concerns About the TPP

As the TPP negotiations continue to wind their way through the legal and legislative system, many of the environmental concerns expressed have largely gone ignored or stayed out of the mainstream of the public’s awareness.  This course of action; of not informing the public or politicians giving people tacit assurances, happened with the NAFTA agreement in the 90’s.  The NAFTA agreement allowed companies to avoid environmental regulation by moving their operations to out of country localities in Mexico that bordered their US market.

In the 90’s, Republicans made little effort to hide this fact and often blamed the over regulatory environmentalist lobby for moving companies out of the United States.  People bought this line and thus the NAFTA trade agreement moved through Congress and became law.  But now after many years the environmental damage of NAFTA is now a generally undisputed fact, even though most people are not aware of the extent of pollution that effects every living creature within its wake.

Now we have a public much wiser to consider the ramifications of these open trade agreements. Most people realize that these agreement enable mutli-national corporations to fatten their pockets while doing sometimes irreversible damage to our vital natural resources.  Mexico and South America has suffered with polluted water ways and land, habitat of humans and animals is constantly threatened and even our own planetary breathing apparatus; forests, are being stripped away permanently for the hardwoods they contain (many taking hundreds of years to grow).

The Citarum River, the biggest river in West Java, Indonesia provides drinking, cleaning and ... / Credits: Reuters

Here are some studies on NAFTA’s affect on environmental regulation and the environment as a result:

NAFTA : 20 Years of Costs to the Community and the Environment

Public Citizen: NAFTA’s Broken Promises, 1994-2013

Multinational Monitor – 1993 – NAFTA and the Environment: Free Trade and the Politics of Toxic Waste

New Report Reveals Environmental Costs of North American Free Trade Agreement (NAFTA), 2014

According to a short summary from the National Geographic, a leaked copy of the draft TPP already shows the extent to which business interests have trumped preserving the health of people and the planet.   Check out their resport, 4 Ways Green Groups Say Trans-Pacific Partnership Will Hurt Environment

The environmental group 360.org has a petition up based on the very specific and disconcerting charge that the TPP will put into law the ability of fossil fuel producers to sue town, city and state governments that impose environmentally conscious rules or ordinances aimed and cutting fossil fuel consumption.  This of course is translated in market speak as “if climate action hurts their profits”.  In other words, the profits of global corporations matter more than our planet staying alive.  In addition, fossil fuel companies have managed to negotiate that the government should prevent environmental oversight of fracked gas imports.

Friends of the Earth also points up a couple other troubling areas about the TPP’s possible effects on the environment.

effectively banning the regulation of chemicals used in food production such as pesticides and other compounds and enabling rules and proofs (such as cost-benefit analysis requirements before regulation could be put in place –effectively placing profit before the health of the planet and people) that regulation would not hurt the company’s bottom line.

changes in how regulatory bodies enforce rules in the treaty also effect the ability of any enforcement at all; provide for the ability to corporations to sue municipal bodies for attempts at regulation that slow down their profit stream.  The sweeping of this change is the proposal to install international regulatory bodies that would supersede the authority of United States courts.  This basically would mean that international “tribunals” would come together to install their own regulatory mechanisms and they would only have to follow the lowest-common denominator for the standard to putting in place environmental regulation in the first place.

Public Citizen, a washington watch-dog group also points up the extensive intellectual property protections inserted into the trade agreement. These protections, written by and for global corporations, would mandate the international recognition of genetic patents on living things such as plants and animal life.  This would enable corporations to place ‘ownership’ on living organisms, allow them to create and modify living organisms as they please and allow their marketing worldwide.  This threatens the integrity of our international food supply and most seriously threatens the natural practice of sustainable farming and creates a frightening dependency on corporate commercial power for our food supply.  No group of individuals or corporations should have the ability to control the food supply globally, but this trade agreement will do just.

Already American farmers have suffered the bullying tactics of Monsanto and other seed companies in an obvious strategy to create a captive market for their seed product.  While Monsanto currently uses the court system as a means to force monopoly of their product, the TPP will in fact put into law what they now must fight case by case in court.

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5 Leading Scholars Speak Out Against the Trans-Pacific Trade Agreement (TTP)

By Judith Resnik, Cruz Reynoso, Honorable H. Lee Sarokin, Joseph E.
Stiglitz and Laurence H. Tribe, Reader Supported News

09 May 15

Dear Majority Leader McConnell, Minority Leader Reid, Speaker Boehner, and
Minority Leader Pelosi:

We write out of grave concern about a document we have not been able to
see. Although it has not been made available publicly, we understand that
the Trans-Pacific Partnership (TPP) trade agreement currently being
negotiated includes Investor-State Dispute Settlement (ISDS) provisions.
ISDS allows foreign investors—and only foreign investors—to avoid the
courts and instead to argue to a special, private tribunal that they
believe certain government actions diminish the value of their investments.

Courts are central institutions in the rule of law. Americans have much to
be proud of in the evolution of our court system, which has evolved over
the centuries and now provides equal access for all persons. Courts enable
the public to observe the processes of development of law and to watch
impartial and accountable decision-makers render judgments.

We write because of our concern that what we know about ISDS does not match
what courts can provide. Those advocating using this alternative in lieu of
our court system bear the burden of demonstrating why such an exit is
necessary, and how the alternate system will safeguard the ideals enshrined
in our courts. Thus far, the proponents of ISDS have failed to meet that
burden. Therefore, before any ISDS provisions are included in the TPP or
any future agreements, including the Transatlantic Trade and Investment
Partnership (TTIP), their content should be disclosed and their purposes
vetted in public so that debate can be had about whether and if such
provisions should be part of proposed treaties. Below, we detail the ways
in which ISDS departs from the justice opportunities that U.S. courts

Our legal system rests on the conviction that every individual, regardless
of wealth or power, has an equal right to bring a case to court. To protect
and uphold the rule of law, our ideals of fairness and justice must apply
in all situations and equally to everyone. ISDS, in contrast, is a system
built on differential access. ISDS provides a separate legal system
available only to certain investors who are authorized to exit the American
legal system. Only foreign investors may bring claims under ISDS
provisions. This option is not offered to nations, domestic investors, or
civil society groups alleging violations of treaty obligations. Under ISDS
regimes, foreign investors alone are granted legal rights unavailable to
others – freed from the rulings and procedures of domestic courts.

ISDS also risks undermining democratic norms because laws and regulations
enacted by democratically-elected officials are put at risk in a process
insulated from democratic input.

Equal application of the law is another critically important hallmark of
our legal system—one that is secured through the orderly development of
law. Court decisions are subject to appeal, ensuring that conflicting lower
court decisions are resolved by a higher authority. Judges also must follow
legal precedent. The goal is uniform application of the law regardless of
which judge or court hears a case. This law development allows people,
entities, and nations alike to order their behavior according to
well-established legal principles.

In contrast, ISDS does not build in the development of the law. An ISDS
arbitral panel’s decision cannot be appealed to a court. The ISDS
provisions of which we are aware provide only limited— private—review
through a process called annulment that does not permit decisions to be set
aside based even on a “manifest error of law.”1 Moreover, ISDS
arbitrators, like other arbitrators, do not make law because their
decisions have no precedential value, and ISDS arbitrators in turn are not
obliged to follow precedent in reaching their own decisions.

None of the hallmarks of our court system would be possible without a fair
and independent judiciary. Federal judges take an oath to uphold the
Constitution and are nominated and confirmed by our democratically elected
representatives. State judges likewise commit themselves to upholding the
constitutional order. In contrast, ISDS arbitrators are not public servants
but private arbitrators. In many cases, there is a revolving door between
serving on ISDS arbitration panels and representing corporations bringing
ISDS claims. Yet, although such a situation would seem to call for
more—not less—oversight and accountability, ISDS arbitrators’ decisions
are functionally unreviewable.

As noted at the outset, we have not been able to read the terms of the
proposed ISDS chapters for the upcoming TPP and TTIP treaties. But what we
know from the past gives us many grounds for concern. During the past few
years, foreign investors have used ISDS to challenge a broad range of
policies aimed at protecting the environment, improving public health and
safety, and regulating industry. These challenges have been around the
world, including under trade agreements to which the United States is a
party. The publicly available information about these challenges raises
serious questions as to whether the United States should be entering into
more ISDS agreements with a broad array of nations.

Pharmaceutical giant Eli Lilly’s pending ISDS proceedings against Canada
provide an example of how corporations have used ISDS to challenge a
nation’s laws outside the courtroom. After a Canadian court invalidated one
of Lilly’s patents, the company initiated ISDS proceedings against Canada
under Chapter 11 of the North American Free Trade Agreement (NAFTA).2 In
seeking $500 million (Canadian), Lilly has challenged as violative of NAFTA
the standard the nation uses for granting patents.

Although ISDS tribunals are not empowered to order injunctive relief, the
threat and expense of ISDS proceedings have forced nations to abandon
important public policies. In the third ISDS proceeding brought under
NAFTA, Ethyl Corporation brought an ISDS proceeding against Canada for $251
million for implementing a ban on a toxic gasoline additive. The proceeding
took place not in a court, but before an arbitration panel of the
International Centre for the Settlement of Investment Disputes (ICSID).
After the arbitration panel rejected Canada’s argument that Ethyl lacked
standing to bring the challenge, Canada settled the suit for $13 million.
Moreover, Canada lifted the ban on the toxic additive as part of the

It is particularly noteworthy that the three NAFTA countries are each in
the top 11 most-challenged countries under the ISDS system. This high rate
of challenge in our view has little to do with a rule of law deficit in the
U.S. and Canada. Instead, it represents investors taking advantage of easy
access to a special legal right available only to them in an alternate
legal system.

ISDS weakens the rule of law by removing the procedural protections of the
legal system and using a system of adjudication with limited accountability
and review. It is antithetical to the fair, public, and effective legal
system that all Americans expect and deserve.

Proponents of ISDS have failed to explain why our legal system is
inadequate to the task. For the reasons cited above, we urge you to uphold
the best ideals of our legal system and ensure ISDS is excluded from
upcoming trade agreements.


Judith Resnik Arthur Liman Professor of Law, Yale Law School

Cruz Reynoso Professor of Law Emeritus, University of California, Davis
School of Law Former Associate Justice of the California Supreme Court

Honorable H. Lee Sarokin Former United States Circuit Judge of the United
States Court of Appeals for the Third Circuit

Joseph E. Stiglitz University Professor, Columbia University

Laurence H. Tribe Carl M. Loeb University Professor, Harvard Law School

cc: Ambassador Froman and Chairs & Ranking Members of Finance & Ways &
Means Committees

Please note: Organizational affiliation for all signatories is included for
identification purposes only; individuals represent only themselves, not
the institutions where they are teaching or other organizations in which
they are active.

h/t Mark Fernald

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