Environmental Provisions of the Trans-Pacific Partnership (TPP)

Jonathan Brun

The Trans-Pacific Partnership (“the TPP”) is a free-trade agreement that proposes to liberalize trade and investment between 12 Pacific Rim countries. The rationale for most free-trade agreements is to allow different countries to exchange goods and services without or at a reduced tax, which, in the lexicon of trade, is known as a tariff.  Although present trade agreements are negotiated by government officials, this was not always the case.  In fact,  the origins of trade can be found in spice markets. Spice markets were public places where people of different regions came to a common area to trade in the spices, textiles and other specialities of their region.  Yet another concept important to understanding trade is that of the nation-state.  Without borders defining the contours of a particular country, there is no need for agreements to define what is allowed in or out of a particular area. The first trade agreements were “bilateral” , involving two countries.  Modern trade agreements are often multilateral, involving many countries. The TPP then, is a multi-lateral trade agreement that cover various goods and services, including those affecting the environment.

In the preamble of the TPP, the countries who are party to it (“the Parties”), agree to “Promote high levels of environmental protection, including through effective enforcement of environmental laws, and further the aims of sustainable development, including through mutually supportive trade and environmental policies and practices”1. Further, the Parties commit to effectively enforce environmental laws and not change or repeal environmental laws in order to attract trade. To meet these objectives, there are 3 main mechanisms by which the TPP affects the environment:

  1. Implementation of environmental laws to support multilateral environmental agreements;
  2. The liberalization of environmental goods and services; and
  3. Regulation of fisheries and wildlife species.

Implementation of environmental laws to support multilateral environmental agreements

Multilateral environmental agreements are those often negotiated by the United Nations which are comprehensive in jurisdictional coverage and aim to achieve ambitious environmental results.  However, they all too often lack effective enforcement mechanisms.  The TPP seeks to fill this enforcement gap by requiring TPP signatories to enact domestic legislation to support multilateral environmental agreements.  Those supported by the TPP include:

  1. The Montreal Protocol on Ozone Depleting Substances
  2. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (aka CITES)
  3. The International Convention for the Prevention and Pollution from Ships, 1973 (aka MARPOL)

Liberalization of environmental goods and services

In terms of liberalization of environmental goods and services, the TPP will allow for environmental services to be traded between pacific rim countries without a tariff. This means that a small environmental consulting firm based from Toronto would be able to provide services in Tokyo without incurring an extra tariff.

The regulation of fisheries and wildlife species

The TPP requires the establishment of a fisheries management system with the goal of reducing over-fishing or the catching of non-target species, the end of government aid for fisheries that are already over-fished and mechanisms to end illegal fishing. Species-specific protections are also made for sharks, turtles, seabirds and other keystone marine species.

Considering these mechanisms which appear to reinforce environmental protections, why has the agreement garnered so much controversy?  A main answer lies in the establishment of Investor-State Dispute Settlement System (ISDS), which is a type of court that will decide on how different countries are meeting their obligations under the TPP. Judgement will be made by lawyers, not judges. It is further unclear how these lawyers will be chosen, what jurisprudence they will use and how appeals may be processed.  The methodology by which the ISDS under the TPP will balance the requirements needs of economic liberalization with environmental protections is unclear and is a major source of consternation for those concerned with issues affecting the environment.

TPP signatories have promoted the agreement as being the first trade deal of its kind to incorporate broad-ranging protections for the environment, such as support for multilateral environmental agreements, the liberalization of environmental goods and services and the regulation of fisheries and wildlife species.  The agreement is signed and government leaders must now persuade their citizens of the benefits of the agreement. A major area of contention for those citizens concerned with environmental issues is the establishment of ISDS, how this agreement will serve to reinforce environmental protections. In most countries, public consultations on the ISDS, environmental protections and a whole range of other issues touched upon by the TPP are now being conducted.