CIEL | November 2015

The Trans-Pacific Partnership and the environment: an assessment of commitments and trade agreement enforcement

On October 5, 2015, the White House issued a statement by the President on the Trans-Pacific Partnership (TPP) agreement claiming that the TPP “includes the strongest commitments on labor and the environment of any trade agreement in history, and those commitments are enforceable, unlike in past agreements.” This claim itself is unremarkable since proponents of almost every U.S. free trade agreement (FTA) formed in the past two decades have similarly promised meaningful and enforceable labor and environmental safeguards. Yet the reality of past U.S. FTA enforcement and the provisions included in the TPP suggest that this agreement, like those before it, will not guarantee environmental protection.

While past agreements have contained similar enforcement provisions for the environment chapter, no Party has ever brought a formal case based on the environmental provisions of any U.S. FTA—despite documented violations. In fact, the only provision related to the environment used with regularity is Investor-State Dispute Settlement (ISDS), which allows companies to sue governments for enacting and upholding environmental and other laws. The regular use of ISDS starkly contrasts the underutilization and ineffectiveness of party dispute settlement or citizen suit provisions—mechanisms that have the potential to enforce environmental obligations in FTAs.

The history of U.S. trade agreement enforcement on the environment —or lack thereof—shows that any minimal gains from new commitments on the environment under the TPP pale in comparison to the negative human and environmental effects of the commercial and investment provisions.