May 04, 2012

Member Scholars Urge U.S. Trade Representative to Protect the Environment in Trade Agreements

In the nearly 20 years since the North American Free Trade Agreement (NAFTA) entered into force, the linkages between trade and environmental harm have become clearer than ever.  Trade agreements can lead to significant adverse environmental impacts, particularly when countries do not have sufficient environmental laws, policies, and institutions—and trade alone will not increase the demand for higher environmental standards.  Instead, free trade agreements (FTAs) may lead to significant increases in pollution and serious adverse impacts from certain economic sectors. 

CPR Member Scholars Carmen Gonzalez, David Hunter, John Knox, and I sent a letter today to U.S. Trade Representative Ron Kirk to express our concerns. We argued that when the Office of the U.S. Trade Representative drafts trade promotion authority legislation to implement the Trans Pacific Partnership and other future trade agreements, it should include strong environmental protection provisions.   We make eight recommendations for draft trade promotion authority that would ensure that free trade agreements (FTAs) improve trade-environment linkages:

  1. “Country Readiness.”  Prior to the adoption of any FTA, the USTR should evaluate the institutional and legal capacity of the prospective trading partner in the context of assessing a country’s readiness to enter into an FTA with the United States.  Any problems should be resolved prior to signing the FTA.
  2. Environmental Impact Assessment. To inform and assist with the evaluation of a country’s institutional and legal capacity, the United States should assess the potential environmental impacts of an FTA on the prospective trading partner.
  3. Post-Implementation Impact Monitoring. Once the FTA is in effect, the United States should evaluate the environmental impacts of the FTA to determine whether any adjustments should be made to (a) the FTA’s core trade obligations; (b) legislation, institutions, and institutional structures needed to implement the FTA; and (c) the type and amount of capacity building given to U.S. trading partners.
  4. Multilateral Environmental Agreements. The United States should include provisions in the TPP and future FTAs that exempt trade restrictions in multilateral environmental agreements from trade challenges.
  5. Citizen Submissions on Environmental Matters. The United States should continue including citizen submission processes in trade agreements and to ensure that a secretariat or other body has the independence to determine the scope of the factual record and a monitoring mechanism is included in the process.
  6. Transparent Dispute Settlement. The United States should make all dispute settlement in both State-to-State and investor-State disputes subject to open, public hearings in which all documents are made public.
  7. Representative Trade Advisory Committees.  The United States should provide Congress, Trade and Environmental Policy Advisory Committee, and other trade advisory committees with meaningful opportunities to contribute to the U.S. position.
  8. International Institutions.  The United States should include an independent secretariat as part of any FTA package, including a dedicated source of funding and a joint public advisory committee.  This secretariat would assist with the citizen submission process and would promote transparency in the trade-environment field.

The full letter is here.

Chris Wold, Professor of Law, Lewis & Clark College Law School. Bio.