The legal powers that global companies would gain under huge Pacific and Atlantic trade deals could erode efforts to combat global warming, the Sierra Club said Wednesday. The environmental group said the two pacts championed by Washington would allow foreign investors to use private tribunals to challenge public policies aimed at restricting the use of fossil fuels.
"Forty-five of the 50 private corporations historically responsible for the most climate-disrupting emissions would be empowered to challenge climate policies" if the two trade deals are implemented, the Sierra Club said in a new report. The report took aim at investor-state dispute settlement (ISDS), one of the most contentious provisions in the already-agreed Trans-Pacific Partnership (TPP) treaty, and the Transatlantic Trade and Investment Partnership (TTIP) still in negotiation.
ISDS offers companies access to international arbitration of disputes with the countries they invest in. That can expand their protection against unfair treatment, but critics claim it would allow them to override country's justice system and national policies. ISDS is already in place in bilateral US trade deals but would be greatly expanded under the 12-country TPP and under TTIP, which would govern trade and investment between the United States and the European Union.
The Sierra Club said ISDS opens the way for mining and energy companies to claim compensation if government policies hinder their plans for investment in fracking, offshore and onshore drilling, and pipelines. It notes that, under the existing North American Free Trade Agreement (NAFTA), Canada's TransCanada has threatened to seek $15 billion in compensation via an ISDS tribunal after the US government last year blocked its Keystone XL oil pipeline project.
It also cited US oil fracking company Lone Pine Resources' 2013 NAFTA arbitration challenge against Canada's Quebec province for the allegedly arbitrary revocation of its "right" to drill for oil and gas under the St. Lawrence River. With TPP and TTIP, claims like this could soar, said Ben Beachy, a senior policy advisor on trade at the Sierra Club. "No previous trade deal has granted such broad rights to firms with such broad interests in maintaining US fossil fuel dependency."
"The corporations that would gain this ability are the world's largest polluters," he said. Defenders of the trade deals say that the TPP explicitly gives governments the right to implement policies on the environment and health in the public interest. "Countries retain the right to regulate in the public interest," the office of the US Trade Representative has said. But the Sierra Club report calls the TPP provisions "far too weak to offer adequate protection" and still allows investors the right to bypass domestic courts.