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TPP – TISA – TransPacific Partnership

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.

The complete text of the Trans-Pacific Partnership Agreement

Download (PDF, 448KB)

Trans-Pacific Partnership Ignores Climate, Asks Countries to Volunteer to Protect the Environment

In March, the White House was touting the Trans-Pacific Partnership (TPP) on its blog stating:

“Through TPP, the Obama administration is doubling down on its commitment to use every tool possible to address the most pressing environmental challenges.”

Reviewing the environment section of the just-released TPP, one thing becomes quite clear. Climate change is not considered one of the “most pressing environmental challenges.”

In the summary of the environmental section posted by the US government it doesn’t mention the climate but does mention the “energy revolution” under the heading of “Transition to a Low-Emissions Economy”.

TPP countries recognize that the world is in the midst of an energy revolution. The agreement includes commitments to cooperate to address issues such as energy efficiency; the development of cost-effective, green technologies; and alternative, clean and renewable energy sources.

And when it comes to Multilateral Environmental Agreements (MEAs) the language promises “reinforcements” to these commitments even though they “may lack binding enforcement regimes.”

TPP countries are signatories to many MEAs covering a wide range of environmental issues. However, these agreements may lack binding enforcement regimes. By requiring MEA implementation, TPP provides valuable reinforcements to these commitments.

And, of course, there is the part about encouraging companies to volunteer to protect the environment.

The Environment chapter includes commitments to encourage companies to voluntarily adopt corporate social responsibility policies, and to use mechanisms, such as public-private partnerships, to help to protect the environment and natural resources.

So, it appears that the TPP doesn’t consider climate change an important issue but as the world continues its “energy revolution” that countries can volunteer to protect the environment.

As reported by the Sydney Morning Herald, Matthew Rimmer, Professor of Intellectual Property and Innovation Law at the Queensland University of Technology, told Fairfax Media it looks like US trade officials have been “green-washing” the agreement.

“The environment chapter confirms some of the worst nightmares of environmental groups and climate activists,” Dr Rimmer said.

Jake Schmidt, International Program director at the Natural Resources Defense Council, concurred in a statement:

“This trade agreement would allow foreign corporations to challenge our health, safety and environmental protections in a foreign tribunal outside our legal system, and it would weaken those bedrock safeguards in the United States. While there are some positive conservation measures, the agreement’s substantial shortcomings should lead Congress to reject it.”

Climate change missing from full Trans-Pacific Partnership text

The final text of a huge 12-country trade agreement has confirmed the “worst nightmares” of environmental groups, with no mention of climate change in its lone environment chapter and weak enforcement mechanisms, Australian academics say.

The text of the Trans-Pacific Partnership (TPP) agreement was finally released on Thursday, with Trade Minister Andrew Robb saying the deal will deliver “substantial benefits for Australia” in the rapidly growing Asia Pacific.

The TPP is the biggest global trade deal in 20 years, involving 12 countries in the Pacific region which collectively represent over 40 per cent of world GDP.

Last month, Prime Minister Malcolm Turnbull called the deal “a gigantic foundation stone” for the economy which will deliver jobs and growth while avoiding aspects that would have seen increased costs to the taxpayer for medicines.

But this is the first time Australians have had a chance to see what the federal government has been negotiating on their behalf for over five years.

Matthew Rimmer, Professor of Intellectual Property and Innovation Law at the Queensland University of Technology, told Fairfax Media it looks like US trade officials have been “green-washing” the agreement.

“The environment chapter confirms some of the worst nightmares of environmental groups and climate activists,” Dr Rimmer said.

“The agreement has poor coverage of environmental issues, and weak enforcement mechanisms. There is only limited coverage of biodiversity, conservation, marine capture fisheries, and trade in environmental services. The final text of the chapter does not even mention ‘climate change’ – the most pressing global environmental issue in the world.”

Controversially, the deal includes a clause giving foreign companies the right to sue Australian governments if they introduce laws they say have harmed their investments.

Dr Patricia Ranald from the Australian Fair Trade and Investment Network said the “safeguards” Mr Robb claimed he had won to prevent foreign tobacco companies suing Australian governments for pursuing anti-smoking policies do not appear strong enough.

“The general ‘safeguards’ in the text are similar to those in other recent agreements which have not prevented cases against health and environmental laws,” Dr Ranald said.

“Public health groups have influenced governments to include in the text the option of more clearly excluding future tobacco control laws from ISDS cases, which is important and has angered the tobacco lobby. But this also begs the question of how effective are the general ‘safeguards’ for other public health and environmental laws.”

Dr Rimmer also criticised the investment chapter, saying it was one of the most “labyrinthine” in the agreement.

But he also said the general exceptions chapter provided the opportunity for countries to carve out tobacco from the ISDS regime for tobacco control measures.

“That will be significant given Australia’s pioneering plain packaging of tobacco products,” he said.

Mr Robb has issued a statement heralding the deal, saying Australians now have a chance to examine the text for themselves.

“Along with the landmark North Asian bilateral trade agreements we have concluded with China, Japan and South Korea, the TPP forms a transformational series of agreements that will contribute substantially to the diversification of our economy in this critical post-mining boom phase,” Mr Robb said.

However, the text is still missing some important documents. Many of the side letters with details of last-minute bilateral deals between particular governments have not been released.

Dr Ranald said these side letters are likely to favour the largest economies with greater bargaining power, “and should have been released for public scrutiny with the main text.”

Mr Robb said as these side letters are finalised they will be made available to the public.

Bryan Clark, the Director of Trade and International Affairs at the Australian Chamber of Commerce and Industry, said he was “very pleased” the text had finally been released because industry will have a chance to review it.
“Now we can scrutinise it, and engage in the public discussion over its content,” he said.

The text shows 98 per cent of all tariffs will be eliminated across everything from beef, dairy, wine, sugar, rice, horticulture and seafood through to manufactured goods, resources and energy.

It has also removed barriers to Australian goods exports, services and investment abroad in the region.

Global trade officials hope the deal will establish a ‘model’ for future trade agreements, by setting commonly-agreed rules and promoting transparency of laws and regulations.

Its open architecture allows for other members – such as China – to join in the future.

What Drives Governments to Keep TISA, TPP and TTIP Secret?

12 Jun 2015

Joe Emersberger

Basically, these trade agreements are being kept secret because they violate regulations and national laws for the sole benefit of large corporations.

On this web page, the Canadian government asks if we are “Looking for a brief recap of the Trans-Pacific Partnership (TPP) negotiating rounds?“ This is a representative sample of what it offers to explain two years worth of negotiations since Canada joined other governments in writing the TPP:

“Among the topics discussed in Washington were legal and institutional issues, textiles, rules of origin, state-owned enterprises, environment, goods market access, technical barriers to trade, and e-commerce.”

Feel better informed? They might as well have said “we talked about a lot of stuff” and left it at that. Here is something way more informative to read: a list of the 605 (overwhelmingly corporate) official “advisers” in the U.S. who have seen, and helped write, the TPP. In the USA, members of Congress and a limited number of aides can see the text provided they agree not to take notes or discuss the details publicly. Apologists for this undemocratic idiocy become irate when the TPP is called a “secret”, but, at the same time, justify hiding it from the public by claiming it improves governments’ bargaining position. Apparently we should assume that governments and their corporate “advisers” have spent years secretly fighting like demons on behalf of cab drivers, factory workers and the unemployed. In Australia, MPs are only allowed to see the TPP text if they sign a confidentiality agreement saying they won’t divulge details to the public for four years. What if the TPP is passed? Are they then allowed to talk what they saw? No. The agreement says “these confidentiality requirements shall apply for four years after entry into force of the TPP, or if no agreement enters into force, for four years after the last round of negotiations…” In the USA, the public is supposed to be impressed that Obama is required to release the full text (in exchange for getting “fast track” negotiating authority) sixty days before signing the agreement – the complex agreement government officials and hundreds of corporate insiders spent several years writing behind closed doors. Could contempt for the public, and for democracy, be any more obvious? This site jokingly claims the TPP has been already released by the Obama administration. It sums the absurdity up very succinctly. Secrecy aside, would most of the public understand the TPP – the parts that have been leaked by Wikileaks that is, or the seventeen chapters of TISA (Trade in Services Agreement) that have also been leaked by Wikileaks? No. These deals are written in technical language that requires lawyers and economists – or others who have spent a lot of time researching – to fully grasp. Now there are legal experts and economists who are not in the pockets of powerful western governments and big corporations. Such people could credibly explain what the implications of these agreements are for 99.999 percent of the public who are not among the insiders. Unfortunately, the battle doesn’t end when the details of these secret agreements, thanks to Wikileaks and other activists, are made public long before governments want them to be. We are still faced with a struggle against the corporate media that is very good at marginalizing those who explain exactly why governments and corporate insiders worked in secrecy for so many years. The secrecy is disgusting and revealing but it is also rather ineffective at this point. The leaked sections that have been published, and our experience with previous agreements like NAFTA, tells us essentially what the negotiating governments are after – ways to stuff the pockets and expand the power of the insiders at the expense of everyone else. The corporate media, not secrecy, is actually the more important barrier to fair and open debate. Dean Baker explained “TPP and TTIP are about getting special deals for businesses that they would have difficulty getting through the normal political process. For example, oil and gas companies that think they should be able to drill everywhere may be able to get rules that prevent national or state governments from restricting their activities. This could mean, for example, that New York State would have to compensate potential frackers for the ban that Governor Cuomo imposed last week. Similarly, the financial industry will be looking to roll back the sort of regulations put in place through Dodd-Frank and similar legislation in other countries. Again, if governments want to ensure that their financial system is safe, they may have to pay the banks for the privilege.” Everyone owes a special thanks to Canada’s Finance Minister for being brazen enough to argue that the US should loosen up financial regulations adopted since crash of 2008 in order to be in compliance with NAFTA. As Lori Wallach explained about TISA in this Democracy Now interview, governments and their small army of corporate insiders are working on ways to set the clock back on financial regulation – to about the 1990s! She describes a provision that is actually called the “standstill” in the text of the agreement. It is explicitly designed to prevent governments for bringing in new financial regulations that corporations don’t like. Does the public support a new ban a particular type of derivative that is going to be a disaster? Does the public want new rules that protect their privacy online? Too bad. TISA will make many new rules, and even existing ones, into trade violations. No wonder governments have insisted on keeping these agreements secret for so many years.

White House Reveals Desperate Lack of Support for TPP

Washington – The White House has published a handful of comments from “environmental groups” implying widespread support for the Trans-Pacific Partnership and other corporate trade agreements. Yet these cherry-picked comments from some of the most conservative, corporate-funded environmental groups actually reveal the administration’s desperation to find any support for such deals.

Indeed, the reality is that scores of major environmental organizations including Sierra Club, Natural Resources Defense Council, League of Conservation Voters, Defenders of Wildlife, Union of Concerned Scientists, Greenpeace, Friends of the Earth,, and many others oppose fast-track for the TPP. Many recognize the TPP is a backward step for environmental protection that will help push the world over the tipping point for climate change.

The White House’s false image of environmental support for the TPP

The White House is having a hard time generating any momentum for fast-track trade authority for the TPP and other agreements. The Obama administration pushed to stop the Seattle City Council from opposing fast-track legislation and the TPP, but instead got a unanimous vote against them from a major port city that trades with Asia.

One of the key issues that has fostered opposition to the TPP is the impact of the agreement on the environment. In order to counter the reality of broad environmental opposition, the White House published an article seeking to spin reality. The White House carefully selected environmental groups that are heavily corporate-funded and then cherry-picked quotes inaccurately portraying their position. In fact, all the groups quoted by the White House have said they have not endorsed the TPP and are waiting to see what the agreement says.

In response to the White House effort Karthik Ganapathy, a spokesman for said: “So many groups and organizations who care about climate change have repeatedly bashed this corporate giveaway — and suggesting otherwise is nothing short of misleading cynicism.” And, Jake Schmidt, director of the Natural Resources Defense Council’s international program said: “The White House took some of their statements and spun them out. There are a large number of environmental groups that came out pretty clearly and said … ‘What we’ve seen on TPP doesn’t look good.'”

The first quote comes from Carter Roberts, CEO of the World Wildlife Fund. WWF, which is viewed as one of the most conservative environmental groups, receives more than $50 million in grants from the government, making up 19 percent of its funding. Corporate Watch accuses WWF of being too close to businesses to campaign objectively. WWF was one of seven environmental groups that provided cover for President Clinton to fast track NAFTA. In 2010 WWF received $80 million from corporations, including many heavy-polluting industrial or energy companies. Some donors are actively involved in deforestation and other environmental abuses, and WWF has hired executives from those companies.

Jeffrey St. Clair wrote for Counterpunch in 2002 that WWF “functions more like a corporate enterprise than a public interest group.” He continued, reporting that it “rakes in millions from corporations, including Alcoa, Citigroup, the Bank of America, Kodak, J.P. Morgan, the Bank of Tokyo, Philip Morris, Waste Management and DuPont. They even offer an annual conservation award funded by and named after the late oil baron J. Paul Getty. It hawks its own credit card and showcases its own online boutique. As a result, WWF’s budget has swelled to over $100 million a year and it’s not looking back.”

From this corporate/government enterprise the White House picks a quote that claims the TPP is “one of those potentially game-changing solutions . . . to help protect our planet.” This quote was lifted from a blog post that WWF CEO Roberts penned for the Huffington Post in January 2014, right after the leak of the environmental chapter which showed no environmental enforcement in the TPP.

Yet Roberts also notes in his post that the TPP could protect the environment if it “includes strong environmental obligations [that] could provide critical new protections for some of our planet’s important natural resources.” And he asks: “Do they keep their promise to create an ambitious 21st century trade deal with a fully enforceable environment chapter or do they abandon real environmental protections for weak, voluntary promises?”

Despite the promises of U.S. Trade Representative Michael Froman, it seems the TPP wouldn’t even pass WWF’s test because it lacks an environmental enforcement mechanism.

The next quote, which continues to use phrasing like “if the administration can deliver,” comes from a March 16 letter to President Obama from several organizations including the Nature Conservancy, the largest and most corporate environmental group in the Americas with assets of $6.14 billion in 2014 and $1.1 billion in revenue. President and CEO Mark Tercek is a former managing director of Goldman Sachs. The Nature Conservancy has ties to roughly 1,900 corporate sponsors. Its funders include notorious polluters such as Arco, Archer-Daniels-Midland, BP, DuPont and Shell. Its governing board consists of numerous executives and directors of oil companies, chemical producers, auto manufacturers, mining concerns, logging operations, and electric utilities.

Indeed, the Nature Conservancy has a reputation for remaining silent on key environmental issues that involve business practices in general. But it has been known to sometimes work with corporations to weaken environmental laws, as with the rewrite of the Endangered Species Act. The Nature Conservancy’s stated mission is to preserve land, yet it permits oil drilling, timbering, mining, and natural gas drilling on land donated to the organization and has been involved with controversial land deals.

The excerpt from that letter is followed by a snippet from a March 20 statement from the Humane Society, which boasts $229 million in assets and $125 million in annual income. While there is a constant presence of dogs and cats in its fundraising, the Humane Society is not affiliated with local animal shelters. It gives less than 1 percent of its funding to animal shelters, spending more on its pension plan and lobbying. Positive comments from the Humane Society are especially strange, since one of the goals of the agreement, according to Friends of the Earth, is “to undercut consumers’ right to know what is in their food and whether the food is produced in a humane manner protective of animal welfare.”

Other statements pointed to in the White House Blog come from Bloomberg Philanthropies and The Center for American Progress, a virtual White House think tank, whose former director, John Podesta, served as chief of staff to President Clinton and as counselor to President Obama.

The reality: Broad opposition in the environmental and climate justice communities

The White House is well-aware of the vast environmental and climate justice opposition to the TPP and fast-track trade authority, so it is intentionally trying to deceive the public. Forty-four environmental groups expressed their opposition to fast track for TPP and other deals like it in a Jan. 21 letter to Congress. The letter begins:

“As leading U.S. environmental and science organizations, we write to express our strong opposition to ‘fast track’ trade promotion authority and to urge you to oppose any legislation that would limit the ability of Congress to ensure that trade pacts deliver benefits for communities, workers, public health, and the environment.”
The letter goes on to specifically describe how the deals being negotiated would undermine the environment rather than protect it, and they urge a totally new approach to trade that creates a race to the top for environmental, health, jobs and other areas, rather than a race to the bottom. This new approach needs to be transparent and participatory, not secret, rushed and without broad participation, they assert.

When the letter was released, Michael Brune, executive director of the Sierra Club, said, “Trade should be done right — not just fast — to protect our families and neighbors from pollution and climate disruption. Fast tracking flawed trade pacts is a deal-breaker. With fast track, we would be trading away clean air, clean water, and safe communities.”

Likewise, Peter Lehner, the Natural Resources Defense Council’s executive director, said, “Congress shouldn’t give a fast lane to trade pacts that don’t protect our public health and climate. These trade bills would give foreign corporations and governments the right to challenge our bedrock protections for clean air, safe drinking water, healthy food and proper chemical safeguards.”

In a recent report, Teamster Mike Dolan writes that NRDC was one of seven environmental groups that provided cover to President Clinton when he fast-tracked NAFTA through Congress.

The environmental chapter of the TPP was published by WikiLeaks in January 2014. It was a major setback for the TPP and fast-track because it solidified opposition to the trade agreements among environmental and climate justice advocates. Indeed, the leak showed that the TPP represents a step backward from the Bush-era deals because it provides no environmental enforcement mechanism. A joint analysis of the leaked environment chapter by Sierra Club, World Wildlife Fund, and NRDC notes, “[T]he leaked text takes a significant step back from the May 2007 agreement.”

“Environmental protections are only as effective as their enforcement provisions, and a trade agreement with weak enforcement language will do little or nothing to protect our communities and wildlife,” Lehner said, further noting, “Considering the dire state of many fisheries and forests in the Asia-Pacific region and the myriad threats to endangered wildlife, we need a modern trade agreement with real teeth, not just empty rhetoric.”

As a result of the environmental community’s strong reaction to the leak, a month later more than 120 members of Congress sent a clear message to U.S. Trade Representative Froman: They could not support the TPP trade pact unless it had a robust, fully enforceable environment chapter addressing the core conservation challenges of the region.

To make matters worse, another leak revealed that the U.S. Trade Representative is actually trying to weaken language in the pact that deals with climate disruption and biodiversity. The U.S. negotiating position seeks to eliminate even a reference to climate change and the international forum designed to address the climate crisis — the United Nations Framework Convention on Climate Change.

Desperate moment for the White House on trade

Why would the White House put out such a weak statement falsely implying environmental support? The administration knows that the environmental and labor impacts of the TPP and other deals are the two biggest areas of concern surrounding the deal. If there is opposition from the environmental and labor movements, it becomes very difficult to pass fast-track legislation. Yet the White House could not put out a stronger statement because there is no real support in the environmental and climate justice movements for fast track or TPP-type deals. Indeed, this misleading statement from corporate-environmentalists was the best they could do.

This is not the first time the White House has been caught attempting to mislead on an important fast-track or TPP issue. Indeed, dishonesty seems to have become a tactic:

The U.S. Trade Representative has been making false claims that the TPP will create 650,000 jobs. For this claim, the Washington Post, which generally supports trade agreements, gave the Obama administration four Pinocchio noses, the highest dishonesty score possible.

The administration is building on the jobs lie, with some of Obama’s political operatives creating a fake advocacy group, Progressive Coalition for American Jobs, to advertise the falsehood that TPP creates jobs.

Regarding the power of corporations to sue governments when laws passed in the public interest undermine corporate profits, the administration dishonestly claims this is not a loss of sovereignty.

And recently, when U.S. Trade Representative Froman met with Democrats in Congress to try to fudge the international trade deficit, Rep. Mark Pocan (D-WI) described the dishonesty as attempts at “baffling” Democrats “with bullshit.”

Froman, appointed by President Obama, is negotiating three massive trade agreements in secret under the current administration. Now the president is pushing to rush thousands of pages of legalese through Congress without any congressional hearings and no real opportunity for citizen input — only brief arguments on the floor of Congress and then an up or down vote without amendments.

It is bad enough to secretly negotiate rigged corporate trade deals for six years, classify it as a secret so it can’t be discussed and attempt to fast track it through Congress without any real debate, now to justify secret agreements with misleading statements shows it is time for President Obama to give up on passing fast track for corporate rigged agreements. The response is clear – the American people are not buying it. We need a completely new approach to trade, one that is transparent and participatory and that puts people and planet before profits.