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January 15, 2014

LEAKED: Secret Trade Document Reveals Weak Environmental Standards

TopsecretThe veil has finally been lifted from the controversial environment chapter of what could be the largest free trade pact in history, the Trans-Pacific Partnership, or TPP. Thanks to WikiLeaks, who posted a draft of the chapter today, we can finally see the text that has been kept from the public for nearly four years.

And sadly, what we're seeing is not pretty.

The environment chapter is one of 29 TPP chapters, and the third one to be leaked to the public. The leaked environment chapter is markedly different from the leaked investment and intellectual property chapters in important ways. The previous two leaks—both designed to protect corporate interests—are full of strong, binding, and legally enforceable language that undoubtedly protects big business. The leaked environment chapter is unenforceable and rife with weak language, according to an analysis of the leaked text by the Sierra Club, WWF, and NRDC.

The leaked environment chapter text falls flat on the standard for environment chapters from the past seven years. Since the May 2007 bipartisan consensus on trade by the Bush administration and Congress, the environment chapters of all U.S. free trade agreements have been legally enforceable and included a list of environmental treaties that countries committed to uphold. Today's leaked text—which is both unenforceable and does not include obligations to uphold commitments made under environmental treaties—does not meet the standard set by Congress.


As Michael Brune, executive director of the Sierra Club stated, “If the environment chapter is finalized as written in this leaked document, President Obama’s environmental trade record would be worse than George W. Bush’s. 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.”

Last fall, 24 environmental organizations sent a letter to the U.S. Trade Representative Ambassador Froman calling for a strong and legally enforceable environment chapter that includes the elimination of harmful fisheries subsidies; a ban on trade in illegally harvested timber, wildlife, and fish; and obligations to uphold domestic environmental laws and commitments under multilateral environmental agreements.  The draft environment chapter fails to deliver on the demands of civil society.

The text does confirm that the U.S. has been pushing to strengthen the chapter, but they face strong resistance from other TPP countries.

So let’s take a look at what is actually included in the text.

Multilateral Environmental Agreements
Multilateral environmental agreements (MEAs) are agreements between a set of governments designed to protect the environment. Since the May 2007 bipartisan agreement on trade, all trade pacts have obligated that countries uphold their commitments made under MEAs. This is critical, as it helps ensure that countries don't waive or weaken their obligations under MEAs in order to attract trade or investment, and ensures that a country faces consequences if it does.

However, the leaked text takes a significant step back from the May 2007 agreement. Instead of committing countries to uphold their obligations under MEAs, each TPP country is merely asked to “affirm its commitment” to implement the MEAs to which it is a Party. That's like affirming that you made New Year's Resolutions rather than actually being held accountable for keeping them.

Consultation/Dispute Resolution
The leaked environment chapter text represents an enormous rollback from the dispute resolution process laid out in the May 2007 agreement and recent trade pacts. The agreement stipulated that “all of our [free trade agreement] environmental obligations will be enforced on the same basis as the commercial provisions of our agreements—same remedies, procedures, and sanctions. Previously, our environmental dispute settlement procedures focused on the use of fines, as opposed to trade sanctions, and were limited to the obligation to effectively enforce environmental laws.”

The leaked text of the TPP environment chapter, however, sends us back to a pre-2007 world. If a country violates one of its obligations in the environment chapter, the country will receive an action plan, presumably laying out how to come into compliance with the chapter. If the action plan is ignored or not implemented adequately, there is no recourse. This vastly insufficient process is an unacceptable rollback of previous commitments and makes the obligations in this chapter meaningless.

The leaked text recognizes the role of TPP countries as major consumers, producers, and traders of fisheries products and the global problem of overfishing. The text includes actions and commitments to address the problems of overfishing and the unsustainable use of fisheries resources, but the actions in many cases are weak and, thanks to the insufficient dispute process described above, basically meaningless.

As just one example, the text does not contain any clear requirements for a ban on shark finning, even though TPP countries are notorious shark fishing nations and traders in shark fins, and U.S. law requires that the U.S. seeks such bans from other countries.

The text also includes weak language on trade in illegally harvested timber, wildlife, and fish —one of the most important issues to the Sierra Club. For example, the text requires that countries take appropriate measures that “allow it to take action” to prohibit trade of illegally taken timber, wildlife, and fish. The provision, however, stops short of requiring countries to take action to stop illegal trade that threatens communities and ecosystems.

The current state of the environment chapter is completely unacceptable. It's unbelievable to think that TPP countries have agreed to allow foreign corporations to attack public interest policies in private trade tribunals, but they can't agree to a binding environment chapter with strong commitments to help protect natural resources.

This text proves why so many Members of Congress don’t want to give the president “fast-track” authority that could help rush the TPP over the finish line with almost no Congressional input. Tell Congress to reject fast track—legislation that would strip Congress of its own ability to ensure that the TPP, including the environment chapter, actually protects communities and the environment. And the TPP governments must stop pandering to the interest of big corporations and get serious about protecting families and the environment.

--Ilana Solomon, Director of Sierra Club's Responsible Trade Program


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