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Category:Environmental Laws

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Environmental Law / United States

Earth and Science Politics

The recent U.S. elections have produced a 'turn-back-the-clock caucus' in the US Congress. The resulting efforts to roll back environmental laws passed with success over the yrs will present a challenge to profound green progress. We should consider again the beginning of the green era in the U.S. and successive accomplishments in law and practice that clearly deserve to be built upon, not to be dismantled by retro-policies.

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Environmental Law / Global / International

List of International Environmental Agreements

Montreal Protocol, the beginning of international environmental law - https://en.wikipedia.org/wiki/Montreal_Protocol

Due to its widespread adoption and implementation it has been hailed as an example of exceptional international co-operation, with Kofi Annan quoted as saying that "perhaps the single most successful international agreement to date has been the Montreal Protocol" ... When comparing this very success story with attempts to establish an international policy on the Earth's climate or atomic energy, the entire process from a problem formulation to a global acceptance supported by a legal framework took less than a quarter of a single human generation live span.

Among the treaty's accomplishments are: The Montreal Protocol was the first international treaty to address a global environmental regulatory challenge; the first to embrace the "precautionary principle" in its design for science-based policymaking; the first treaty where independent experts on atmospheric science, environmental impacts, chemical technology, and economics, reported directly to Parties, without edit or censorship, functioning under norms of professionalism, peer review, and respect; the first to provide for national differences in responsibility and financial capacity to respond by establishing a multilateral fund for technology transfer; the first MEA with stringent reporting, trade, and binding chemical phase-out obligations for both developed and developing countries; and, the first treaty with a financial mechanism managed democratically by an Executive Board with equal representation by developed and developing countries.



The New Environmental Regulation

MIT Press: Environmental regulation in the United States has succeeded, to a certain extent, in solving the problems it was designed to address; air, water, and land, are indisputably cleaner and in better condition than they would be without the environmental controls put in place since 1970. But Daniel Fiorino argues in The New Environmental Regulation that—given recent environmental, economic, and social changes—it is time for a new, more effective model of environmental problem solving. Fiorino provides a comprehensive but concise overview of U.S. environmental regulation—its history, its rationale, and its application-—and offers recommendations for a more collaborative, flexible, and performance-based alternative.

“This is one of the most important books on U.S. environmental policy to appear in the past twenty years. Fiorino offers a convincing analysis of its strengths and weaknesses and points the way towards a new style of regulation appropriate to the challenges of the twenty-first century.”

Legal Issues Confronting Environmental Protection Laws

Selected Issues

Investor-State Dispute Settlement / ISDS

Investor-state dispute settlement (ISDS) is an instrument of public international law, that grants an investor the right to use dispute settlement proceedings against a foreign government. Provisions for ISDS are contained in a number of bilateral investment treaties, in certain international trade treaties, such as the North American Free Trade Agreement (Chapter 11) and the Trans-Pacific Partnership (Chapters 9 and 28). ISDS is also found in international investment agreements, such as the Energy Charter Treaty. If an investor from one country (the "Home State") invests in another country (the "Host State"), both of which have agreed to ISDS, and the Host State violates the rights granted to the investor under public international law, then that investor may bring the matter before an arbitral tribunal. So, for example, if after an investor has acquired the right to sell cigarettes in a Host State, the Home State imposes a heavy tax on cigarettes (because they are carcinogenic), then the investor sue for his losses: This is a great protection for corporate investment, and a recognition of the primacy of corporate profits.

"If you wanted to convince the public that international trade agreements are a way to let multinational companies get rich at the expense of ordinary people, this is what you would do: give foreign firms a special right to apply to a secretive tribunal of highly paid corporate lawyers for compensation whenever a government passes a law to, say, discourage smoking, protect the environment or prevent a nuclear catastrophe. Yet that is precisely what thousands of trade and investment treaties over the past half century have done, through a process known as 'investor-state dispute settlement', or ISDS."

Via The Economist

Note: In early January 2016, the TransCanada corporation announced it would initiate an ISDS claim under NAFTA against the United States, seeking $15 billion in damages and calling the denial of a permit for Keystone XL "arbitrary and unjustified."

— Via The Globe and Mail

Read More:

(SJS: The legal provisions and politics of many trade agreements act to undercut and 'water down' environmental laws. The on-the-ground reality of many provisions within existing trade agreements that act against environmental law protections remain one of the foremost challenges for greens and the environmental movement. One necessity among many is to point out the problems with secret administrative rulings of trade treaties, the "ISDS" sections in the treaties, and reform/rewrite these sections to enable worker/environmental protections across economic systems and national borders. This is a "blue-green", labor-environment alliance, that needs to be continually developed for steady progress, locally and globally.)

General Agreement on Tariffs (see 'Uruguay Round') - (GATT)

International Centre for Settlement of Investment Disputes - https://en.m.wikipedia.org/wiki/International_Centre_for_Settlement_of_Investment_Disputes

International Investment Agreement - https://en.m.wikipedia.org/wiki/International_investment_agreement

North American Free Trade Agreement (NAFTA) - https://en.m.wikipedia.org/wiki/North_American_Free_Trade_Agreement

Tran-Pacific Partnership (TPP) - https://en.m.wikipedia.org/wiki/International_investment_agreement

Transatlantic Trade and Investment Partnership (TTIP) - https://en.m.wikipedia.org/wiki/Transatlantic_Trade_and_Investment_Partnership

United Nations Commission on International Trade Law - https://en.m.wikipedia.org/wiki/United_Nations_Commission_on_International_Trade_Law

World Trade Organization - https://www.wto.org/


Personal Recollections

Siterunner / SJS: Reflecting about the 1992 US presidential campaign when I served in a number of roles as a Sr advisor to Jerry Brown.

One memory comes into view as the subject of environmental laws is discussed here at GreenPolicy. This is the NAFTA controversy, the treaty that was being debated between our campaign and the Clinton campaign. We opposed the treaty as it was negotiated, the Clinton campaign and much of the 'new' Democratic party as reflected in the Democratic Leadership Council (DLC) supported it.

In the presidential debates at one point I was preparing briefing materials for Governor Brown and we were focusing on what we called the 'watering down' of worker and environmental law protections. We saw our US environmental law successes in the 60s, 70s and into the 80s, as a 25 year slate as a foundation of environmental protection laws. Many had originated in California and in Congress with California representatives) and these legal, env regulations had been hard won over the years. We aspired for them to become models for other states and countries, a framework for international progress. The treaties, however, were sliding in another way. What we were saying is that, with the passage of these treaties as written, there would be 'a race to the bottom' and trade treaties like NAFTA and GATT were costly in ways that would set back progress on multiple fronts, from jobs to environmental protection and security. Why? We began by pointing out provisions that allowed 'secret tribunals' to arbitrate and decide on disputes over 'non-tariff trade barriers', i.e, worker and environmental protection laws.

Our position resonated and we found support, but as we did we also found that there would be another anti-NAFTA candidates, one with many charts and quotable lines. The history of the 1992 campaign illustrated how the Perot campaign (which eventually received 19% of the general election vote and was instrumental in the election of Bill Clinton, who received 43% of the vote) took up the Brown campaign motto and some themes, including opposition to the NAFTA agreement, but Perot did not focus on the extra-administrative authority contained in Investor-state dispute mechanisms and so-called non-tariff trade barriers as applied to a host of environmental laws. The Brown campaign criticism on this front were prescient, as history continues to demonstrate. Our criticisms helped to produce additional negotiations, yet secret administrative tribunals for dispute resolution continue on.

The recent action by a Canadian corporation to sue the US for $15 billion in 'damages' over the US rejection of the XL gas pipeline based upon study and evidence of environmental and climate damage, is just one example of multiple instances where tribunals actions are a front- and back-end threat to progress on worker/environmental law that benefits the commons and, in the case of climate policy, is essential for global and national security.

The TransCanada lawsuit highlights the environmental issues with secret tribunals and current trade treaty provisions

January 2016


DemocracyNow interview with Lori Wallach, director of Public Citizen's Global Trade Watch, the author of "The Rise and Fall of Fast Track Trade Authority"

LORI WALLACH: Well, what it boils down to is a foreign corporation deciding that the US taxpayers ought to give them $15 billion because they don't like the outcome of our government decision that this pipeline was bad for our country and bad for the environment. And where they're going to get this money extracted from us is an extrajudicial - not US court, not US law - forum: the investor-state tribunal allowed under NAFTA. And the US has faced about a dozen of these attacks under NAFTA, all from Canada, but we have 50 agreements that have this outrageous system. Hardly any of those countries with those agreements actually have investors here. So, up to now, we haven't lost one of these cases; however, the Trans-Pacific Partnership, overnight, if implemented, would double our liability. Right now, 50 agreements, about 9,000 companies are cross-registered from one of those countries that we have the agreement with operating in the US to attack our laws in these tribunals. Overnight, the TPP would give 9,500 more companies - big multinationals from Japan, in banking, in manufacturing, mining firms from Australia - the right to do this. So this case, hopefully, is like the canary in the coal mine letting us know what we'd be getting into.

AMY GOODMAN: In May, President Obama delivered a speech at Nike in Beaverton, Oregon, where he defended the pending Trans-Pacific Partnership trade deal.

- PRESIDENT BARACK OBAMA: Critics warn that parts of this deal would undermine American regulation, food safety, worker safety, even financial regulations. This - they're making this stuff up. This is just not true. No trade agreement is going to force us to change our laws.

AMY GOODMAN: President Obama also said the TPP improves on NAFTA.

- PRESIDENT BARACK OBAMA: When you ask folks, specifically, "What do you oppose about this trade deal?" they just say, "NAFTA." NAFTA was passed 20 years ago. That was a different agreement. And in fact, this agreement fixes some of what was wrong with NAFTA by making labor and environmental provisions actually enforceable. I was just getting out of law school when NAFTA got passed.

AMY GOODMAN: Lori Wallach, your response to President Obama? He was speaking at Nike headquarters.

LORI WALLACH: Well, first of all, the making stuff up comment is going to have to get shelved, because not only is this attack by TransCanada on our domestic, democratic government decision not to have a pipeline the exact kind of case he said couldn't possibly happen - well, it just did, $15 billion being demanded by a - from a tribunal of three private sector attorneys, because this investor-state system, it's not judges. There are no conflict-of-interest or impartiality rules. These are folks who rotate between one day suing a government for a corporation and the next day being the judge. And they all hear cases amongst themselves. They call themselves "the club." And there's no outside appeal, and there's no limit on how much money they can order a government to pay. And if a government doesn't pay, by the way, the company has the right to seize government assets - seize government assets - to extract our tax dollars. So, number one, this case is exactly the kind of case President Obama said folks were making things up when they were worried about this. Well, now it's happened.

But this follows one month after the US Congress, because the WTO threatened billions in trade sanctions, gutted another consumer law. Hate to tell folks, if they didn't notice in the grocery store, but those customer meat - the country-of-origin labels we all use to figure out where our meat comes from, the WTO said we couldn't have those anymore. And so, Congress, at the face of these sanctions, said, "Oh, better get rid of that law." So, two examples, live and real, compared to what President Obama promised.

But more broadly about the TPP, here's the thing folks need to know. The actual language that TransCanada is using in this case, because they filed a brief, is the same language that, word for word, is replicated in TPP. So there are bells and whistles that have been changed between the investor-state language in NAFTA and TPP. In many ways, actually, TPP expands investor-state. It allows more kinds of challenges. Hell, it even allows challenges of government contracts for foreign companies' concessions on natural resources in foreign land. That was not in NAFTA. However, the actual claims being made by TransCanada, that language is word for word in the TPP. And you can see the analysis of that on our website, TradeWatch.org. You can look at the text now and use our analysis as basically a guided tour.

AMY GOODMAN: Lori, can you explain why they're asking $15 billion?

LORI WALLACH: So, this is a question a lot of folks asked me yesterday: "Well, wait a minute, this is supposed to" - everyone who's read the newspaper. "This is a $3 billion pipeline. How the heck can they be asking for $15 billion from us taxpayers?" And the answer is, under the outrageous investor-state system, not only can a foreign corporation get all these special rights - go around our courts, go around our laws and demand compensation - but they don't just get money for what they've spent on a project, they get to get compensated for expected future profits. Yep, they are calculating - and the brief goes through this - what they think they would have made in the future for the lifetime of the pipeline had it been allowed. And that's what we taxpayers are supposed to give them, because we had a democratic decision of our government that their commercial project wasn't in the national interest. That's the $15 billion.

AMY GOODMAN: Can you talk about how trade rules have affected how countries can deal with climate change? Like in, what, 2014, the US launched a WTO challenge against India's solar incentives.

LORI WALLACH: So, there's been really terrific work done on this by Sierra Club, NRDC, 350.org. If you go to their websites, for instance, Sierra Club has a terrific report that goes systematically through all the ways that our trade rules have undermined the efforts both to counter climate chaos, but also some of the adaptations, the efficiencies in energy policy we'd like to take on. And the overarching sum of it is, there are three problems.

One problem is, once we have a trade agreement with a country, we're no longer allowed to stop exports of, for instance, liquid natural gas. It's just deemed mandatory that we continue to send out energy. So, to the extent part of the answer to the climate disaster is we need to keep some carbon-based fuels not being processed and shipped around, we lose the right, as a policy, to do that. It's considered zero quota. We're not allowed to limit trade.

Number two, the nontrade regulatory limits in all these trade agreements - because, you know, the rule is, every country has to change its domestic laws to meet all these nontrade rules. TPP has got 30 chapters. Only six have to do with trade. There's a whole chapter on services, and it covers energy services. For instance, it does not allow you, in your policies, to discriminate between how you regulate, say, fossil fuels versus wind or solar. If it's fuel, it's fuel. And there's a whole set of specific constraints around those kind of energy and conservation policies.

And then, the third thing it does is it limits the kind of procurement policies you can have. So, typically, the government is the cutting edge in using our tax dollars when they're buying things for government to set up a market. So, you know, the car efficiency standards, fuel efficiency standards, we all know there's CAFE standards in our cars when we buy them. That started as a government program for the government fleet, so that the companies had a market to try and make efficient cars. So, right now, for instance, we have something called renewable portfolio standards, where when the government buys energy, a certain percentage has to be from renewable sources. Those kind of conditionalities are limited in the procurement chapter of an agreement like the TPP. So, basically, it hits, for the fuel industry - that's why they love it - on all grounds, in handcuffing governments with their policy options.


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