Clear The Air News Blog Rotating Header Image


TPP: This Election Could Decide If Companies Can Sue Australia Over Environmental Policy

Experts are warning that the Trans Pacific Partnership could get in the way of effective action on climate change, and Australia’s international obligations, at a symposium being hosted by the Queensland University of Technology.

The apprehension comes as political players take different positions on the controversial Pacific Rim trade deal, ahead of the July 2 poll which could prove critical to Australia’s involvement. The Labor Party has taken a dim view of aspects of the deal, but is yet to rule out voting for it.

Central to widespread concerns about the deal is what’s known as an Investor State Dispute Settlement (ISDS) clause, which would allow foreign companies to sue the Australian government in offshore tribunals that sit outside the judicial system.

“In the same way the tobacco companies are sort of grasping onto every last straw they can to save their business model, the energy companies are going to do the same thing,” said Dr Kyla Tienhaara, a Research Fellow at the Australian National University.

She said regulatory interventions like a moratorium on coal seam gas, or governments rejecting a coal mine because of the emissions it would create, could fall foul of the ISDS clause.

Challenges to government policies can be brought if they materially impact on the profits a company reasonably expected to make. The tribunals which companies can appeal to are presided over by investment lawyers, who have the power to determine what compensation may be owed.

“The essential problem is these cases are decided very much on the ideology of the arbitrators that sit on the panel, and there’s no precedent. They can pick the words they like and ignore the words they don’t like, and there’s no process of appeal,” Dr Tienhaara said.

That makes it difficult to predict outcomes, and can lead to a chilling affect on the sort of bold regulation that’s needed to reduce carbon emissions and give affect to the international climate deal struck in Paris last year.

Deals like the North American Free Trade Agreement have led to governments being sued for making decisions on public policy in order to protect the environment. The Labor Party has expressed serious reservations about ISDS clauses, and said it would not enter into any new ones if it wins government later this year. Since it’s already been negotiated, it’s not clear whether they would reject the TPP on this basis.

The Opposition has said it will try to get out of ISDS provisions, or at least renegotiate them. It’s unlikely the text of the deal could be substantially changed at this point, but before the TPP becomes binding, Australia’s Parliament would need to pass enabling legislation.

The Greens and Nick Xenophon take a similarly dim view of the ISDS provisions, and have vowed to oppose the Trans Pacific Partnership in its current form. With these two players likely to hold the balance of power, their opposition could prove significant. The Coalition, on the other hand, has negotiated a steady stream of ISDS provisions in trade deals, and presented them as an essential element of their ‘jobs and growth’ mantra.

“I don’t think the current government is particularly worried about it,” Dr Tienhaara said. “I think the Coalition sort of sees it as they’re open for business, and they’re not likely to be hit with this.” One of the issues with this mentality is that it’s often state government policies that come into conflict with companies claiming lost profits.

Because international trade agreements are the purview of the Commonwealth, however, it’s the Federal Government that would end up in a tribunal.

Dr Abbe Brown has also been speaking at the QUT symposium about the possibility that international agreements signed onto by the Commonwealth, like the Paris climate deal, could be overridden by the Trans Pacific Partnership. One example is that the Paris agreement encourages the sharing of renewable energy technology, but the ISDS clauses in the TPP could be used by companies to attack states on intellectual property grounds.

The Australian Government could ultimately end up forking out millions of dollars, as Canada has after being hit with more than 35 ISDS challenges. Many of those cases have been brought by US companies, which tend to be the most litigious.

Australia was recently hauled into a tribunal by tobacco giant Phillip Morris, which challenged Labor’s plain packaging laws under a bilateral agreement with Hong Kong.

Whether the world’s biggest trade deal, the TPP, will go ahead in the end is still highly uncertain. Both presumptive American Presidents, Hillary Clinton and Donald Trump, have expressed opposition to it, and President Barrack Obama has had trouble passing the deal.

At home, the Labor party could yet foil it, and the Greens and Nick Xenophon could potentially stand in the way of implementing legislation too.

The Coalition, however, will do what it can to see the deal passed, despite the negative consequences experts are warning that might have for environmental policy.

Australian and Chinese researchers clear the air on pollution problems

Top Australian and Chinese experts have teamed up to tackle the global problem of air pollution.

Queensland University of Technology (QUT) is a driving force behind a new transnational research centre that is investigating the science of, and solutions to, all forms of air pollution.

The Australia-China Centre for Air Quality Science and Management was launched on Friday December 5 at Beijing’s Chinese Research Academy for Environmental Sciences (CRAES).

Among its founding directors is QUT’s Professor Lidia Morawska, an internationally renowned pollution expert with the Institute for Future Environments (IFE) and Institute for Health and Biomedical Innovation, who said air pollution was a large, complex and borderless problem.

“It already does immense damage to people and the environment, and that damage is expected to intensify as the populations, economies and cities of China and other developing countries expand over the coming decades,” she said.

“Pollutants from vehicles, factories and power plants, as well as airborne dust from deserts and exposed soil, cause or contribute to many health problems, especially cardiovascular and respiratory diseases as well as cancer.

“The health bill from these problems is significant for every country. In Australia, the cost equates to 9.4% of the country’s GDP, with about $5 billion of this spent on respiratory diseases alone.”
QUT has a strong air pollution research program through its World Health Organization-designated International Laboratory for Air Quality and Health. Led by Professor Morawska, the laboratory has contributed to all WHO global policy documents on this topic since 1996.

In addition, the QUT Biofuels Engine Research Facility plays a key role in examining the impact of new bio-based hydrocarbon fuels on emissions. Much of this work at QUT is led by Professor Zoran Ristovski who collaborates closely with Chinese colleagues in Shanghai, Beijing and Hong Kong.

Professor Morawska said the new Australia-China collaboration would expand this research effort and enhance its impact on the real world, particularly in the Western Pacific region.

“There’s so much we still need to learn about the causes and effects of air pollution,” she said.

“We will study its different origins and scales and how it affects human health and the environment; we will develop new technologies and techniques to better monitor, prevent and mitigate air pollution.

“We’ll be participating in national and international policy discussions about air pollution to help governments find the most efficient and effective ways to control it.

“The centre will also nurture the next generation of Australian and Chinese scientists, developing the people and knowledge the world needs this century to beat the problem of air pollution.”

The centre is the culmination of years of discussions and collaborations between QUT and more than twenty universities and government agencies in Australia and China.

Executive Director of the IFE Professor Ian Mackinnon, who played a key role in planning the new centre, said the scale of the problem – more evident in China but equally of concern in many Western Pacific countries – demanded a massive international and interdisciplinary response from researchers and governments.

“The only way to address these problems effectively is through collaboration – between researchers from different disciplines and different countries and between universities, governments and industry,” he said.

“We need physicists, chemists, statisticians and modellers working with doctors, engineers and urban planners – and all of them talking to politicians and public servants.”

About the Australia-China Centre for Air Quality Science and Management

The inaugural directors are: Professor Lidia Morawska, QUT; Professor Fahe Chai, CRAES; Professor Chris Chao , Hong Kong University of Science and Technology. QUT’s Associate Professor Xiang-Yu (Janet) Hou, Director of Research Development in North Asia, also played a key role in planning and establishing the new centre.

Numerous other supporting organisations have been involved in setting the strategic direction of the Centre including: the World Health Organisation; the Chinese Ministry of Environmental Protection; Clean Air Asia; and the Queensland Department of Industry, Science, Innovation, Technology and the Arts.

The following organisations and government departments were represented at the centre’s December 5 launch: QUT; Chinese Research Academy of Environmental Sciences; Shanghai Academy of Environmental Sciences; Tsinghua University; Peking University; East China University of Science and Technology; Fudan University; Hong Kong University; Hong Kong University of Science and Technology; Hong Kong Polytechnic University; Hong Kong City University; CSIRO Marine and Atmospheric Research; The University of Sydney; The University of New South Wales.

About the QUT Institute for Future Environments

QUT’s IFE brings together researchers and students from across the fields of science, engineering, law, business, education and the creative industries to study our natural, built and virtual environments. The IFE’s mission is to generate knowledge, technology and practices that make our world more sustainable, secure and resilient.