The Trans-Pacific Partnership #TPP Greenwashes Dirty Politics

Matthew Rimmer and Charlotte Wood

The Trans-Pacific Partnership (TPP), a highly secretive and expansive free trade agreement being negotiated between the US and eleven Pacific Rim countries, including Australia and New Zealand, has been promoted as a boon to the environment. But the text of the Environment Chapter of the agreement, which has been negotiated in secret until it was was released this week by WikiLeaks, appears to be little more than an exercise in greenwashing.

The US trade representative maintains that the US has pushed for “a robust, fully enforceable environment chapter in the TPP”, and Andrew Robb, the Australian Trade and Investment Minister, has vowed that the TPP will contain safeguards for the protection of the environment.

But on 15 January 2014, WikiLeaks released the draft Environment Chapter of the TPP — along with a report by the Chairs of the Environmental Working Group. Julian Assange, WikiLeaks’ publisher, said the leak showed “The fabled TPP environmental chapter turns out to be a toothless public relations exercise with no enforcement mechanism.”

Far from being an ambitious 21st century agreement, the TPP provides little in the way of environmental protection of land, water, air, or the climate. New Zealand Sustainability Council executive director Simon Terry said the agreement showed “minimal real gains for nature”.

This is a concern. The TPP will cover a broad range of issues, including objectives and commitments; the relationship to multilateral environmental treaties; dispute resolution; trade and biodiversity; climate change; the regulation of fisheries; and trade and investment in environmental goods and services.

It will also give more power to fossil fuel multinationals; the leaked text reveals that the deal would, through the inclusion of Investor State Dispute Settlement (ISDS) clauses, empower corporations to sue governments in private and non-transparent trade tribunals over regulation that corporations allege reduces their profits. This means that laws and policies designed to address climate change, curb fossil fuel expansion and reduce air pollution or toxic chemicals could all be subject to attack by corporations as a result of TPP.

The TPP will undermine decades of work that progressive governments, citizens and NGOs have done to protect our climate and environment from exploitation. The burgeoning campaign for fossil fuel divestment in particular will face major obstacles, as the TPP grants the fossil fuel industry new rights to ignore any legislative wins we secure to curb fossil fuel investment and expansion.

Instead, they can claim multi-million dollar compensation claims for being refused the “right” to dig up state forests or turn the Great Barrier Reef into a coal and gas shipping highway. Using similar clauses in current US Free Trade Agreements, companies like Exxon Mobil and Dow Chemical have launched more than 500 cases against 95 governments.

Over US$3 billion has been awarded to corporations to settle these cases, 85 per cent of that money going to oil, gas, mining and natural resource industries. In fact, as we speak, Canadian oil and gas company Lone Pine is suing the Canadian government for $250 million over Quebec’s moratorium on fracking.

The Pacific Rim is a rich and diverse environment, with ecosystems such as the Great Barrier Reef, the Amazon and a third of all the threatened species on Earth. Article SS.13 of the Environment Chapter of the TPP addresses the topic of trade and biodiversity. The text recognises the “importance of conservation and sustainable use of biological diversity and their key role in achieving sustainable development”.

The text promotes access to genetic resources, benefit-sharing, and the protection of Indigenous Knowledge. The US has opposed this text on the basis that it is not a member of the Convention on Biological Diversity. As such, the TPP will do little to protect the magnificent biodiversity of the Pacific Rim.

When it comes to trade and climate change, the TPP’s language is weak and aspirational. Article SS.15 acknowledges “climate change as a global concern that requires collective action and recognise the importance of implementation of their respective commitments under the United Nations Framework Convention on Climate Change (UNFCCC) and its related legal instruments.” However, the United States and Australia have opposed the inclusion of the drafted text on climate change.

US President Barack Obama ostensibly supports domestic action on climate change, but has been unwilling to push for substantive obligations on climate change at an international level. Australia’s position against the text on climate change will no doubt harden as Prime Minister Tony Abbott winds back our domestic climate policies.

The removal of fossil fuel subsidies has also been contested by a number of countries, including Vietnam, Peru, and Malaysia: “The Parties recognise their respective commitments in APEC to rationalise and phase out over the medium term inefficient fossil fuel subsidies that encourage wasteful consumption, while recognising the importance of providing those in need with essential energy services.”

There is also a lack of consensus amongst the negotiating parties about dispute resolution over environmental matters, including enforcement, which has drawn ire from a range of commentators and authorities.

“The Environment Chapter does not include enforcement mechanisms serving the defence of the environment; it is vague and weak, and adheres to the lowest common denominator of environmental interests”, observed WikiLeaks in its analysis.

“It rolls back key standards set by Congress to ensure that the environment chapters are legally enforceable, in the same way the commercial parts of free-trade agreements are,” commented Ilana Solomon of the Sierra Club.

Professor Jane Kelsey of the University of Auckland said “the leaked text shows that the obligations are weak and compliance with them is unenforceable.”

In a petition, 350.org has emphasised the need to challenge the TPP, which would protect and secure investments in fossil fuels. The climate movement “won’t stand for foreign corporations disabling our sovereignty, democratic processes or the right to a safe future,” it reads.

“If the environment chapter is finalised as written in this leaked document, President Obama’s environmental trade record would be worse than George W. Bush’s,” said Michael Brune, executive director of the Sierra Club. “This draft chapter falls flat on every single one of our issues — oceans, fish, wildlife, and forest protections — and in fact, rolls back on the progress made in past free trade pacts.”

As it stands, the TPP will endanger the protection of the environment, the rich biodiversity of the Pacific Rim, and the climate.

Charlotte Wood is Australian Campaigns Director at 350.org.

Dr Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University, and a PhD (Law) from the University of New South Wales. He is a member of the ANU Climate Change Institute. Dr Rimmer is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is an editor of Patent Law and Biological Inventions, Incentives for Global Public Health: Patent Law and Access to Essential Medicines, and Intellectual Property and Emerging Technologies: The New Biology. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, clean technologies, and traditional knowledge. His work is archived at SSRN Abstracts and Bepress Selected Works.

Originally published at newmatilda.com on January 17, 2014.

Matthew Rimmer and Charlotte Wood, ‘Trans-Pacific Partnership Greenwashes Dirty Politics’, New Matilda, 17 January 2014, https://newmatilda.com/2014/01/16/tpp-greenwashes-dirty-politics