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We’ll always have Paris? How the Trans Pacific Partnership threatens Canada’s climate commitments

Canada’s environmental commitments can only be successful if they’re not undermined by other policies. In April of this year Canada signed the Paris Agreement, which binds us to hold the increase of average global temperature to less than 2 ºC, and to pursue efforts to limit the increase to 1.5 ºC. Canada’s simultaneous commitment to signing the Trans-Pacific Partnership Agreement (TPP) is completely at odds with our greenhouse gas reduction goals.

At its most basic, the TPP would reduce tariffs and other barriers on goods traded among the countries party to the agreement. On the local markets, each party is committing to “national treatment” of goods from a member party, meaning that goods originating from another party cannot be treated less favourably than locally-produced goods.

But the TPP is far from just a trade agreement. Some of its provisions could prove disastrous to the environment, including those mandating the removal of technical barriers to trade, and the investor state dispute settlement (ISDS) mechanism.

Suppose Canada decides to implement a law to protect the environment – a national carbon tax, for example. A foreign investor from a country party to the TPP will be able to appeal to the private arbitration tribunal created under ISDS and, if successful, receive compensation for Canadian environmental laws or policy changes that the investor thinks are unfair.

Under a similar provision of the North American Free Trade Agreement, Canada has been the most-sued country, awarding more than $170 million in compensation. Investors have previously challenged a ban on a neurotoxin gasoline additive, wildlife conservation measures, a ban on a cosmetic herbicide, and the Québec moratorium on fracking, among others. Many authors have discussed how free trade rules and ISDS will impair the ability of party governments to enact environmental policies to mitigate climate change. For more detail, please see the work of the Sustainability Council of New Zealand, and law professor Gus Van Harten, to start.

On the other hand, Canada’s commitment under the Paris Agreement has to be backed by laws that mandate a significant reduction of Canada’s greenhouse gas emissions in order to be meaningful. Canada is very far from meeting its carbon reduction goal. Ratifying the TPP will be like trying to reach that goal with hands tied behind one’s back, and running in the opposite direction.

Our climate cannot afford the constraint on policymaking powers that ISDS aims to achieve. We need swift action to transition to a decarbonized economy, without the threat of hundred-million-dollar damage claims from foreign investors.

The negative impact of the TPP is not saved by its environment chapter, which does not establish any new, meaningfully-enforceable environmental standards. CELA counsel Jacqueline Wilson explores the inadequacy of the environmental chapter in her paper “Bait-and-Switch: The Trans-Pacific Partnership’s Promised Environmental Protections do not Deliver,” concluding that the weak and discretionary language will not provide any protection.

Notably, an earlier version of the TPP environmental chapter did mention climate change, but the term did not make it into the final cut. Even weaker than some of the language used to address other environmental issues, Article 20.15 calls on Parties to “acknowledge that transition to a low emissions economy requires collective action.” As far as commitments go, it’s hard to tell whether this actually qualifies as one.

Implementing the TPP will also exacerbate countless other environmental problems. Unlike the prohibitions on restricting trade, enforcement of the environment chapter is not realistic: only a country that is party to the agreement is able to bring forward a claim, and only if the violation of the environmental provision is restricting that country’s trade.

Witnessing the public consultation meeting of the House of Commons Standing Committee on International Trade left me with the impression that this discrepancy is not widely acknowledged in the debates about the TPP. The stakes are high, as we have less than five years before we use up our global carbon budget that allows us a good chance of staying below 1.5 ºC. Almost a decade ago, the Secretary General Ban Ki Moon of the United Nations referred to climate change as "the defining challenge of our age." Now that Canadian politicians seem to be shifting towards recognizing the importance of mitigating greenhouse gas emissions, the defining challenge in Canadian climate policy has become consistency.

Pretending that Canada can adhere to both the Paris Agreement and the TPP is delusional. These international agreements do not operate in isolation, and I urge everyone to consider how Canada’s commitments will play out once they inevitably conflict. The TPP is more than a trade agreement: it can undermine many of the positive strides in environmental law we hope to achieve in the future.