U.S. Proposes Removing Climate Language from the Trans-Pacific Partnership


Posted on March 17th, 2014 by Meredith Wilensky
 3 comments  

Meredith Wilensky, CCCL Associate Director & Fellow

TPPThe United States is currently negotiating the terms of the Trans-Pacific Partnership (TPP), a free trade and investment agreement, with 11 other Pacific Rim countries. From the outset of TPP negotiations, the Obama Administration has said it would “insist on a robust, fully enforceable environment chapter in the TPP.” Despite strong opposition among the negotiating parties, the U.S. has continued to advocate for meaningful and enforceable environmental obligations, including innovative conservation and marine fisheries provisions.[1]

The Administration’s proactive environmental stance in TPP negotiations excludes one key issue: climate change. The U.S. has refused to agree to the article in the environment chapter entitled “Trade and Climate Change,” even though it lacks any mandatory language. The article merely acknowledges that climate change exists, recognizes the need for cooperative action, and affirms the Parties’ commitments in other agreements.[2] The U.S. has put forth a counterproposal that renames the article “Transition to a Low-Emissions Economy,” strips the article of any mention of “climate change,” and removes references to adaptation and the United Nations Framework Convention on Climate Change (UNFCCC). [3]

At first glance the counterproposal appears to be a back step for the Administration and directly at odds with the President’s Climate Action Plan (CAP), which acknowledges that we are already experiencing the effects of climate change and recognizes the importance of international climate negotiations through the UNFCCC. However, upon further analysis, the counterproposal more likely indicates a strategic choice given partisan politics of Congress.

 The CAP arose out of the acknowledgment that federal climate action was not going to come out of Congress, where just over half of Congressional Republicans deny basic tenets of climate science. In his State of the Union address last year, President Obama announced “If Congress won’t act soon to protect future generations, I will.” Consequently, the CAP was designed to address climate change through executive power in order to circumnavigate Congress altogether.

The TPP, however, cannot be ratified without Congressional approval. President Obama is pushing for “fast-track authority,” which would streamline the approval process, requiring the Senate to either approve or deny without making amendments. In addition fast-track authority would result in the TPP being treated as a congressional-executive agreement, meaning that approval would require a majority vote of each house rather than by two-thirds vote of the Senate. A fast-track bill has been proposed, but its passage appears unlikely.  A number of Senate Democrats have expressed opposition to fast-tracking, including Majority Leader Sen. Harry Reid and Sen. Barbara Boxer. In addition, while top Republicans in the House of Representatives support fast-tracking because it increases the odds of ratifying the TPP, a number of House Representatives oppose the broad authority the bill would give the Administration.

If the President is unable to gain fast-track authority, then the Senate will be able to propose amendments and worse, filibuster. In that case, Senate Republicans would undoubtedly challenge any climate language in the TPP. Even if the Senate could agree on amendments, bringing amendments back to the negotiating countries could kill the TPP. If the fast-track is approved, TPP will require Republican support in order to get a majority vote in the House. Climate language could discourage Congressional Republicans from approving the agreement. Thus, the removal of any overt climate reference is likely a preemptory damage control measure.

The language of the counterproposal is further evidence that partisan politics motivated the rejection of the climate change provisions. In Congress, mere use of the term “climate change” has been a death sentence for legislation. This has led to creative attempts to develop legislation that reduces emissions without explicitly referring to climate change, such as through energy efficiency. The counterproposal language seems to have been crafted in the same vein. It does not remove all discussions of climate change, but instead shrouds it in the context of a “low-emissions economy” without reference to particular pollutants. Likewise, it maintains discussions of energy efficiency, sustainable transport and infrastructure, and removing fossil fuels subsidies, which, although central to climate change mitigation, have additional environmental and economic benefits.

Consequently, it appears that the U.S. counterproposal reflects a semantic battle with little practical consequence for climate policy. For example, a key concern about the TPP is that it gives foreign investors the power to bring compensatory claims against the U.S. in arbitral tribunals for measures that frustrate the “legitimate expectations” of their investment. Were foreign investors to challenge a measure intended to mitigate or adapt to climate change, a strong climate change provision would assist the U.S. in demonstrating that a reasonable investor would expect the development of climate regulations. However, the language in the counterproposal could accomplish the same end, since the agreement to work toward a “low-emissions economy” should also signal to investors that emissions reductions regulations are likely.

Nor is the counterproposal likely to result in reduced efforts to address climate change by negotiating parties, especially given that the climate change provisions as drafted are largely affirmational to begin with. Of course, there are broader concerns — to be discussed in a subsequent post — about whether the TPP as a whole will contribute to increased greenhouse gas emissions or cause a chilling effect on climate regulation among governments due to fear of liability. However, as to the counterproposal itself, the biggest risk is likely that it may raise questions about the Administration’s commitment to climate action among those who do not see the underlying political motives.

Photo credit: U.S. Government


[1] See Secret TPP Treaty: Report from Chairs of Environment Chapter for all 12 nations (WikiLeaks release: Jan. 15, 2014).

[2] Id.

[3] Summary U.S. counterproposal circulated to negotiating groups in Singapore the week of February 17, http://www.redge.org.pe/sites/default/files/20140218%20biodiversity%20climate%20change%20TPP.pdf

3 comments

  1. Excerpt from March 1st Climate Change talk on TPP and FCIP

    I have the honor of speaking on the Trans Pacific Partnership and free prior and informed consent, two subjects that—if you’re not familiar with them—are at the root of global economic policy, and have everything to do with why we are here today.

    The TPP is a 12-nation, 28 trillion dollar free trade agreement being led by the United States and represent 40% of global GDP, a third of world trade.

    Both the Tar Sands crude as well as LNG, are being sold on the global free-market and shipped from our ports. Now what you have to know is that if ratified, the TPP is a huge expansion of the investor and corporate takeover that NAFTA, the North American Free Trade Agreement had paved 20 years ago.

    Right now there are thousands of investment treaties signed between corporations and countries locked in these free trade agreements like NAFTA. And there are hundreds of disputes, where millions of tax-payer dollars have been rewarded to investors and corporations compensating them on not only their losses, but “future anticipated losses” as well.

    These investments—like the Keystone XL pipeline—have investor rights that trump our federal environmental and labor protections under NAFTA in international law and the TPP wants to expand those rights. We should all be working to stop this. A lot of individuals and groups have been organizing calls to our representatives trying to make sure that Obama does not get the authority to pass what is called fast-track legislation, the Trade Promotion Authority (TPA) to sign these secret treaties without public or congressional review.

    What separates the TPP from NAFTA, is not only the size of this agreement…

    It is not only because the 12 TPP countries encircles the Pacific as a military and economic partnership, an area 1/3rd the size of our planet;

    It is not only because the TPP seeks to control investment and trade rules to benefit the Wall St. 1%;

    It is not only because the TPP negotiators are being advised by 600 of the largest corporate advisers whose assets and revenues are larger than most countries’ GDP;

    What separates the TPP from NAFTA is that the sheer strategic economic weight and influence of this partnership is a death star aiming to control new binding global rules for trade and investment, rules that favor Wall St. and guide the IMF, the World Bank and the World Trade Organization.

    Already, the US is proposing to move us even further away from our international commitments made under the UN Framework Convention on Climate Change, towards a “low-emissions economy.” This change of language to “low emissions ” benefits LNG and Keystone XL as being “clean energy” or “clean transport,” but it strips away biodiversity, and does nothing to reduce factors contributing to Climate Change

    Already, the US is proposing to move us even further away from our international commitments made under the UN Framework Convention on Climate Change, towards a “low-emissions economy.” This change of language to “low emissions ” benefits LNG and Keystone XL as being “clean energy” or “clean transport,” but it strips away biodiversity, and does nothing to reduce factors contributing to Climate Change.

    Internationally, indigenous peoples have a tool called Free Prior and Informed Consent that came out of the United Nations Declaration on the Rights of Indigenous Peoples , a tool that by the necessity of the fate of our planet, needs to be enshrined. Free prior and informed consent is a tool that can be used to defend our lands, oceans, water and resources, a tool that should be seen as the antidote to the plague that we call neo-liberalism;

    This tool– Free Prior and Informed Consent—is already trying to be dismantled by not just TPP negotiatiors, but the World Bank, the G8, and the Mineral and Mining Consortium, are trying to weaken the consent process so that it becomes merely a consultation process.

    Coming out of the UN Declaration on the Rights of Indigenous Peoples, free prior and informed consent is an internationally recognized right that guarantees indigenous peoples the right to give or withhold their consent to projects that affect their land, territories and natural resources.

    It is a consent that is FREE from force, intimidation, manipulation, coercion and pressure.

    It is a consent that must be asked for PRIOR to governments allocating land for particular land use and PRIOR to approval of specific projects

    It is a consent that must be an INFORMED decision based on having all the information about the project that is understood by the community.

    For both indigenous and non-indigenous peoples, we must demand that this free prior and informed consent decision-making process be recognized in the same binding treaty-making agreement upheld in normative international law. Recognizing the Rights of Indigenous Peoples free prior and informed consent is a tool that can be enshrined to protect our lands, oceans, water and resources.

    Before I lose you, you should know that today across the Pacific, we are observing the 60th anniversary of “Castle Bravo” the first thermonuclear hydrogen bomb the US exploded in Micronesia in 1954.

    Since these tests began, there have been over a thousand nuclear tests in the Pacific. Fallout from these tests have had tragic consequences on the lives of the Rongelap and Bikini Islanders–Micronesians and Marshallese, tragic health factors, infant mortalities high levels of radiation in food and loss of regional bio-diversity that the US continues to downplay. All that nuclear radiation is like a Fukushima before Fukushima. In 1983, Nuclear Free Independent Pacific issued its People’s Charter and we now recognize March 1st as a Nuclear Free Independent Pacific.

    Here we are, thirty years later, and Obama announced his “Pacific Pivot.” An Asia Pacific Rebalance, transferring 60% of US military resources to the Pacific. We’re still launching our ICBMs from Vandenberg and tracking them from the Air Force base by LAX. And now we are witnessing degrading ecological destruction with the military base buildup on Jeju Island in Korea, in Guam, in Pagan, in Okinawa, and Pohakuloa, one of the spiritual centers in the Pacific on the big island of Hawaii.

    This Pacific Pivot cannot be separated from the TPP.

  2. The central point of this post is well taken. One small correction is due.
    “Like all treaties, ratification will require a two-thirds vote of the Senate.”

    Under Fast Track, TPP will not be a treaty. Rather it would be a “Congressional-Executive Agreement,” (CEA) requiring a simple majority.

    That said, TPP will determine how life is organized in 2050, making global businesses very happy. After another generation of neoliberal policies, 99% of us will be wondering how this happened, and what the crap were we thinking when we let TPP pass.

  3. Thank you for your correction. I have edited the post to clarify this point.

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