Climate & Energy Blog

Don't fast track a polluters' bill of rights

Posted Jan. 24, 2014 / Posted by: Bill Waren

Friends of the Earth opposes the “Bipartisan Congressional Trade Priorities Act” (HR 3830/S 1900), so-called “Fast Track” legislation sponsored by Representative Dave Camp (R-Mich.) and Senator Max Baucus (D-Mont.). The Camp/Baucus bill would undercut the constitutional authority of Congress over trade policy and would be used to rush the environmentally hazardous Trans Pacific and Trans Atlantic trade deals past Congress, without amendment or significant debate. The Camp/Baucus bill would amount to a major power shift from Congress to the executive, undermining the founders’ intention to provide checks and balances in our government through the separation of powers.

If approved, The Camp/Baucus bill would expedite, without proper consideration, congressional approval of a massive and controversial trade deal, the Trans Pacific Partnership, as well as a similar deal on the same model now being negotiated with the European Union, the Transatlantic Trade and Investment Partnership (or the Trans Atlantic free trade agreement as it is sometimes called). These trade agreements would allow big corporations and wealthy financiers to sue for millions in compensation for the cost of complying with environmental and other public interest regulations. More generally, the TPP and TTIP (TAFTA) deals could trump sensible safeguards related to food safety, toxic chemicals, and global warming, among many others

TPP & TTIP threaten sound environmental policy

TPP and TTIP would allow foreign investors to seek awards of money damages from business-friendly tribunals in compensation for the cost of complying with environmental and consumer regulations -- even the “cost” of lost opportunities for future profits. Mining, oil drilling and infrastructure construction, like ports and pipelines, are all frequent topics of litigation under existing international investment agreements. For example, La Oroya, Peru, is one of ten most polluted places on earth. Renco, a U.S. company, has repeatedly failed to meet its contractual and legal deadlines to clean up the pollution caused by its metallic smelter at La Oroya. Renco has sued Peru before an international investment tribunal, seeking $800 million in damages for the cost of complying with Peru’s environmental and mining laws.

Climate measures are also put at risk by the TPP and TTIP investment chapters. A wide array of energy policies could be challenged, conceivably including TPP attacks on any decision to stop construction of the Keystone XL pipeline. In the same way, local efforts to block fossil fuel export terminals in the U.S. might well be challenged before tribunals at the World Bank or the Permanent Court of Arbitration, applying investor rights under TPP or TTIP.

Other provisions in the agreements would undercut essential environmental and climate initiatives. Regulatory coherence and other chapters of the TPP and TTIP encourage inappropriate use of cost-benefit analysis, inhibiting government regulators from applying the “precautionary principle” when assessing the safety of toxic chemicals, food imports and genetically engineered products, among others. Overbroad concepts of “discrimination” could lead to TTIP challenges to the European Fuel Quality Directive for its unequal treatment of tar sands oil from North America based on its threat to the climate. Regulatory constraints on high carbon exports of oil and liquefied natural gas could run afoul of prohibitions on export controls in international trade law.

The privatization of nature would also be encouraged. As just one  example, a leaked version of the TPP chapter on intellectual property provides international legal protections for patents on plants and animals, giving corporations monopolies over the use of parts of the genetic code that are our common natural and human heritage. Corporate control of water resources is another threat.

Fast track undermines the constitutional authority of Congress

Under the Camp/Baucus bill, the TPP and TTIP could be pushed through Congress under rules providing for mandatory and expedited floor votes in the House and Senate, without amendment. Congress would have no authority to approve or veto selection of negotiating partners, even with countries like Vietnam that are repeat violators of labor, human rights and environmental standards. The president and U.S. Trade Representative would also be authorized to finalize the legal text of the TPP and TTIP, regardless of whether negotiating objectives identified by Congress have been satisfied. Congressional negotiating objectives are unenforceable in the Camp/Baucus bill.

Also, the Camp/Baucus bill would empower the executive branch to write domestic legislation implementing trade deals and push it through Congress under fast track rules. Large swaths of federal law would be rewritten and a multitude of state laws would be preempted based on the mere allegation by the U.S. Trade Representative that they are inconsistent with the TPP or TTIP. The likely result would be a roll back of environmental safeguards and other public interest measures at both the federal and state levels.

Fast Track can be stopped

People power is the way to stop the Camp/Baucus bill or any similar Fast Track legislation that may be introduced in the future.  Concerned citizens can make a difference by reaching out to friends and neighbors, communicating to the local press and local elected officials, and by sitting down with their members of Congress to talk about the threat that Fast Track poses to the environment and democracy itself.

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