Trans-Pacific Partnership's Environment Chapter: How does it measure up?

For trade policy junkies, Christmas this year arrived on November 5^th. 

That’s the day the twelve Pacific Rim countries that had been negotiating the Trans-Pacific Partnership (TPP) released the text of the omnibus agreement they had concluded a month earlier in Atlanta, United States.

As regional trade agreements go, the TPP is a blockbuster, involving countries that generate almost 40 per cent of global GDP, including the United States, Canada, Mexico, Japan, Chile, Singapore, Australia, Vietnam and New Zealand (China is noticeably absent).

The TPP still faces the monumental task of being ratified in all twelve party states before it comes into force. But it is not too soon to ask how the world’s biggest and most recently-minted trade agreement performs on the issue of the environment. Its overall environmental impact is the product of the interwoven web of thirty separate chapters, but the environment chapter on its own has at least a couple of solid nuggets of gold that distinguish it from other agreements:

1. Parties commit to providing access to environmental justice. In practice this means citizens have the right to request investigations; requests must be given due consideration in accordance with domestic law; proceedings must be available for the enforcement of environmental law; they must be open to the public (with exceptions); and any party with standing must have access to those proceedings. These provisions would be a big deal in many countries.
2. Parties commit to not subsidizing fishing activities that negatively affect over-fished stocks, and to not subsidize any fishing vessel that is listed as implicated in illegal, unreported and unregulated fishing. The WTO has been unsuccessfully trying to agree to these sorts of disciplines for almost 15 years.
3. The few solid commitments that exist in the environment chapter are subject to a consultation regime, which allows Parties to raise the issue of non-compliance by others. The issues would initially be taken up in written consultations, but if unresolved could proceed through a number of steps (including Ministerial talks) to eventually use the trade agreement’s dispute resolution mechanism, which has real teeth. That possibility is unique. It’s unlikely that many cases would go through all those steps: diplomacy or cooperative efforts would seek to prevent or curtail the process (which, if it brought about change, would be a good thing; disputes themselves are never the end goal). The point is: the fact that a party’s fisheries subsidies might end up costing it trade concessions or financial penalties inevitably transforms those commitments into something heftier.
4. There is provision for public submissions by citizens concerned about their governments’ lack of implementation, and space for other Parties to chime in as well. The deliberately public nature of those complaints may do some good: it has had modestly positive results in the NAFTA context, though the TPP’s protocol for handling the submissions is far less substantial.

There is also a swarm of provisions that are framed as best endeavour efforts (i.e. the Parties “endeavour to implement, as appropriate, CITES resolutions”). Unfortunately, these sorts of commitments, which make up the overwhelming bulk of the chapter’s text, usually end up being completely ignored in practice.

A few articles that sound meaningful at the outset lose some of their gloss on closer examination. There are, for example, provisions on ozone depleting chemicals, on marine pollution from ships and on endangered species of flora and fauna. They sound at first as if the Agreement will help strengthen implementation of the multilateral environmental agreements (MEAs) that govern these issues: the Montreal Protocol, MARPOL and CITES, respectively (and in the case of CITES may even go further). But these provisions are strongly constrained. For one thing, the commitments are only breached if there is some impact on trade and investment of the other Parties. This is a small sub-set of possible impacts; the impact that should be of prime concern is environmental degradation. Still, one could imagine a Party complaining that another Party’s lack of marine pollution regulations causes unfair competition for its shipping fleet.

For the issues of marine pollution and ozone depletion, however, Parties are deemed in compliance with the Agreement if they are following their own existing environmental laws (those laws being listed in Annexes). The problem is that we have no idea whether those laws are adequate to meet their MEA commitments, or whether they’ll continue to be adequate as the MEAs evolve. By contrast, the commitment to CITES is a simple promise to abide by the obligations found in the CITES treaty.

The TPP’s environmental impact will ultimately be the product not just of the environment chapter, but of the interactions of all thirty of its chapters. The investment chapter has serious problems (see IISD’s blog here). And from a broader sustainable development perspective, there may be problems with TPP’s treatment of intellectual property rights, services, investment and other issues. But, taken on its own, the environment chapter has a few positive innovations worth noting, if governments act on them in a serious way.