Leaked TAFTA/TTIP Chapter Shows EU Breaking Its Promises On The Environment

from the toxic-trade-deal dept

As far as trade agreements are concerned, the recent focus here on Techdirt and elsewhere has been on TPP as it finally achieved some kind of agreement -- what kind, we still don't know, despite promises that the text would be released as soon as it was finished. But during this time, TPP's sibling, TAFTA/TTIP, has been grinding away slowly in the background. It's already well behind schedule -- there were rather ridiculous initial plans to get it finished by the end of last year -- and there's now evidence of growing panic among the negotiators that they won't even get it finished by the end of President Obama's second term, which would pose huge problems in terms of ratification.

One sign of that panic is that the original ambitions to include just about everything are being jettisoned, as it becomes clear that in some sectors -- cosmetics, for example -- the US and EU regulatory approaches are just too different to reconcile. Another indicator is an important leaked document obtained by the Guardian last week. It's the latest (29 September) draft proposal for the chapter on sustainable development. What emerges from every page of the document, embedded below, is that the European Commission is now so desperate for a deal -- any deal -- that it has gone back on just about every promise it made (pdf) to protect the environment and ensure that TTIP promoted sustainable development. Three environmental groups -- the Sierra Club, Friends of the Earth Europe and PowerShift -- have taken advantage of this leak to offer an analysis of the European Commission's real intent in the environmental field. They see four key problems:

The leaked text fails to provide any adequate defense for environment-related policies likely to be undermined by TTIP. For example, nothing in the text would prevent foreign corporations from launching challenges against climate or other environmental policies adopted on either side of the Atlantic in unaccountable trade tribunals.

The environmental provisions are vaguely worded, creating loopholes that would allow governments to continue environmentally harmful practices. The chapter lacks any obligation to ratify multilateral agreements that would bolster environmental protection and includes a set of vague goals with respect to biological diversity, illegal wildlife trade, and chemicals.

The leaked text includes several provisions that the European Commission may claim as "safeguards," such as a recognition of the "right of each Party determine its sustainable development policies and priorities" but none would effectively shield environmental policies from being challenged by rules in TTIP.

There is no enforcement mechanism for any of the provisions mentioned in the text. Even if one were included, it would still be weaker than the enforcement mechanism provided for foreign investors either through the investor-state dispute settlement mechanism or the renamed investment court system.
The environmental groups have produced a detailed five-page document (pdf) that goes through each of these points in turn, and it's well-worth reading. But it's striking that the central problem is Techdirt's old friend, corporate sovereignty, aka investor-state dispute settlement (ISDS):
Nothing in the text would prevent foreign corporations, on either side of the Atlantic, from challenging climate or other environmental policies via an "investor-state dispute settlement" (ISDS) mechanism or via the European Commission's proposed "Investment Court System." Both enable foreign investors to challenge environmental policies before a tribunal that would sit outside any domestic legal system and be able to order governments to compensate companies for the alleged costs of an environmental policy. While the Commission claims that its new investment "reforms" would protect the right to regulate, States could still be "sued" if foreign investors considered that a policy change violated the broad, special rights that the Commission’s "reformed" investment proposal would give them.
In other words, at the heart of the European Commission's philosophy is the implicit acceptance that investors' rights take precedence over the public's rights -- in this case, those concerning the environment. Everything in the leaked sustainable chapter is couched in terms of aspirations -- the US and EU are encouraged to do the right thing as far as sustainable development is concerned, but there are few, if any, obligations or enforcement mechanisms. When it comes to protecting investors, on the other hand, everything is compulsory, backed up by supranational tribunals that can impose arbitrarily large fines, payable by the public. Although it is true that governments are given the "right" to legislate as they wish when it comes to the environment, investors are given the "right" to sue those governments black and blue if they attempt to do so.

Nor is this mere theory. Research carried out last year by Friends of the Earth Europe shows that of the 127 known ISDS cases that have been brought against 20 EU member states since 1994, fully 60% concern environment-related legislation. In other words, if the European Commission's proposals or something like them became part of the final TTIP agreement, it would almost guarantee a torrent of litigation aimed at blocking or neutering environmental legislation on both sides of the Atlantic.

This is an important leak because it reveals, once more, that a central problem of TAFTA/TTIP is the corporate sovereignty that is inherent in ISDS -- the fact that companies are allowed to place the preservation of their future profits above any other consideration, such as the environment, health and safety or social goals. The EU's sustainability chapter -- an area that is widely recognized as increasingly important in a world where lack of sustainability poses all kinds of problems -- is framed entirely in outdated, 20th-century terms: boosting trade and maximizing profits are the only metrics that matter. The European Commission's willing embrace of that approach confirms both its contempt for the 500 million Europeans it supposedly serves, and the fact that, far from protecting the environment, TAFTA/TTIP is shaping up to be a very toxic trade deal.

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  • identicon
    Anonymous Coward, 27 Oct 2015 @ 4:11am

    No way this article is true!

    growing panic among the negotiators that they won't even get it finished by the end of President Obama's second term

    But it's striking that the central problem is Techdirt's old friend, corporate sovereignty, aka investor-state dispute settlement (ISDS)

    Look, I keep reading here about all the ways the Dems are run by corporate America and this is not true. That is solely the domain of the Repubs. The Dems are earth loving, little guy serving, good peoples. If I keep reading about Dems being corporate puppets I will leave this blog for good!

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 27 Oct 2015 @ 5:10am

      Nice try, but no

      Points for trying the classic 'My tribe vs. Your tribe' misdirection trick, because that certainly never gets old, but maybe be a little more subtle about it next time. Both parties are responsible for the mess, and at this point the only people who don't realize this are either the gullible or those intentionally using the trick as a way to distract people from properly blaming both.

      reply to this | link to this | view in chronology ]

  • identicon
    annonymouse, 27 Oct 2015 @ 4:40am

    I first read that as sarcasm but you are serious.
    So.... door. .. glutes. ... avoid impact.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 27 Oct 2015 @ 4:53am

    Ok, so what's the democratic process for getting rid of the EC?

    It's obvious that the European Commission has spiraled out of democratic control and it's not sufficient that some of their results need parliamentary approval since they can just refuse to put up anything corresponding to the will of the people or even the parliament.

    So it seems inevitable to rein in the "independency" of this European panel of experts and bring their work and directions back unto parliamentary control.

    As opposed to the thoroughly corrupted political system in the U.S., a significant amount of democratic influence on the European Parliament can be attested.

    The problem being that democracy makes it into the parliament but does not get out again. It's like granting hens democracy so that they can choose which fox to let into their hen house.

    And so the European Commission presents one fox after the other. It's clear that this goes nowhere, so the EC needs to be put in a position in the hierarchy of decisionmaking where the proposals they prepare actually are bound to match directions set by the parliament.

    What parties/votes/actions would be necessary for moving towards that result? Because it's obvious that things won't magically fix themselves. Presenting a viable exit strategy from all power getting concentrated in a lobbying focus outside of democratic control would be sure to gather some popular support. Shouting alone will not result in changes.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 27 Oct 2015 @ 5:18am

    A very simple rule of thumb:

    If an agreement, treaty, or anything similar includes corporate sovereignty provisions, toss it. The mere fact that it's included means the agreement is not meant to benefit the public, it's meant to benefit private corporations at the public's expense.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 27 Oct 2015 @ 5:44am

      Re: A very simple rule of thumb:

      But how do you propose to keep the foxes guarding the hen house when there is no equitable representation of their legitimate interests?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Oct 2015 @ 12:14pm

      Re: A very simple rule of thumb:

      Even if TTIP doesn't make it the whole ISDS stuff is in the CETA (EU-Canada). That means that US companies can sue the EU via Canada because most of them have a branch there.

      reply to this | link to this | view in chronology ]

  • identicon
    Wendy Cockcroft, 27 Oct 2015 @ 5:49am

    Although it is true that governments are given the "right" to legislate as they wish when it comes to the environment, investors are given the "right" to sue those governments black and blue if they attempt to do so.

    See? It's a fair and balanced agreement!

    Seriously, though, we need to be emailing and calling our reps and telling them to stop this monstrosity.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Oct 2015 @ 7:16am

    one of the other things it shows is how dangerous and completely anti-the people, the Planet, the environment the European Commission is! it is there to do nothing except profitise the coffers of businesses, corporations and industries, with the added option of being able to screw any and every country that has the audacity to do something that benefits the people rather than a company!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Oct 2015 @ 12:31pm

    Understandable

    "In other words, at the heart of the European Commission's philosophy is the implicit acceptance that investors' rights take precedence over the public's rights"

    Those in charge of the negotiations just do what the people who put them in power want them to do. You can't blame them if they do their job.
    In case you are wondering why I think that they got their job from the corporations and not the people, let me quote the person in charge of the agreement on EU side, trade commissioner Cecilia Malmström:

    "I do not take my mandate from the European people."

    http://www.independent.co.uk/voices/i-didn-t-think-ttip-could-get-any-scarier-but-then-i-spo ke-to-the-eu-official-in-charge-of-it-a6690591.html

    reply to this | link to this | view in chronology ]


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