By Meredith Wilensky, CCCCL Associate Director & Fellow
The United States is currently negotiating the terms of the Trans-Pacific Partnership (TPP), a free trade and investment agreement, with 11 other Pacific Rim countries. From the outset of TPP negotiations, the Obama Administration has said it would “insist on a robust, fully enforceable environment chapter in the TPP.” Despite strong opposition among the negotiating parties, the U.S. has continued to advocate for meaningful and enforceable environmental obligations, including innovative conservation and marine fisheries provisions.
The Administration’s proactive environmental stance in TPP negotiations excludes one key issue: climate change. The U.S. has refused to agree to the article in the environment chapter entitled “Trade and Climate Change,” even though it lacks any mandatory language. The article merely acknowledges that climate change exists, recognizes the need for cooperative action, and affirms the Parties’ commitments in other agreements. The U.S. has put forth a counterproposal that renames the article “Transition to a Low-Emissions Economy,” strips the article of any mention of “climate change,” and removes references to adaptation and the United Nations Framework Convention on Climate Change (UNFCCC). 
At first glance the counterproposal appears to be a back step for the Administration and directly at odds with the President’s Climate Action Plan (CAP), which acknowledges that we are already experiencing the effects of climate change and recognizes the importance of international climate negotiations through the UNFCCC. However, upon further analysis, the counterproposal more likely indicates a strategic choice given partisan politics of Congress.
The CAP arose out of the acknowledgment that federal climate action was not going to come out of Congress, where just over half of Congressional Republicans deny basic tenets of climate science. In his State of the Union address last year, President Obama announced “If Congress won’t act soon to protect future generations, I will.” Consequently, the CAP was designed to address climate change through executive power in order to circumnavigate Congress altogether.
The TPP, however, cannot be ratified without Congressional approval. President Obama is pushing for “fast-track authority,” which would streamline the approval process, requiring the Senate to either approve or deny without making amendments. In addition fast-track authority would result in the TPP being treated as a congressional-executive agreement, meaning that approval would require a majority vote of each house rather than by two-thirds vote of the Senate. A fast-track bill has been proposed, but its passage appears unlikely. A number of Senate Democrats have expressed opposition to fast-tracking, including Majority Leader Sen. Harry Reid and Sen. Barbara Boxer. In addition, while top Republicans in the House of Representatives support fast-tracking because it increases the odds of ratifying the TPP, a number of House Representatives oppose the broad authority the bill would give the Administration.
If the President is unable to gain fast-track authority, then the Senate will be able to propose amendments and worse, filibuster. In that case, Senate Republicans would undoubtedly challenge any climate language in the TPP. Even if the Senate could agree on amendments, bringing amendments back to the negotiating countries could kill the TPP. If the fast-track is approved, TPP will require Republican support in order to get a majority vote in the House. Climate language could discourage Congressional Republicans from approving the agreement. Thus, the removal of any overt climate reference is likely a preemptory damage control measure.
The language of the counterproposal is further evidence that partisan politics motivated the rejection of the climate change provisions. In Congress, mere use of the term “climate change” has been a death sentence for legislation. This has led to creative attempts to develop legislation that reduces emissions without explicitly referring to climate change, such as through energy efficiency. The counterproposal language seems to have been crafted in the same vein. It does not remove all discussions of climate change, but instead shrouds it in the context of a “low-emissions economy” without reference to particular pollutants. Likewise, it maintains discussions of energy efficiency, sustainable transport and infrastructure, and removing fossil fuels subsidies, which, although central to climate change mitigation, have additional environmental and economic benefits.
Consequently, it appears that the U.S. counterproposal reflects a semantic battle with little practical consequence for climate policy. For example, a key concern about the TPP is that it gives foreign investors the power to bring compensatory claims against the U.S. in arbitral tribunals for measures that frustrate the “legitimate expectations” of their investment. Were foreign investors to challenge a measure intended to mitigate or adapt to climate change, a strong climate change provision would assist the U.S. in demonstrating that a reasonable investor would expect the development of climate regulations. However, the language in the counterproposal could accomplish the same end, since the agreement to work toward a “low-emissions economy” should also signal to investors that emissions reductions regulations are likely.
Nor is the counterproposal likely to result in reduced efforts to address climate change by negotiating parties, especially given that the climate change provisions as drafted are largely affirmational to begin with. Of course, there are broader concerns — to be discussed in a subsequent post — about whether the TPP as a whole will contribute to increased greenhouse gas emissions or cause a chilling effect on climate regulation among governments due to fear of liability. However, as to the counterproposal itself, the biggest risk is likely that it may raise questions about the Administration’s commitment to climate action among those who do not see the underlying political motives.
Photo credit: U.S. Government
 See Secret TPP Treaty: Report from Chairs of Environment Chapter for all 12 nations (WikiLeaks release: Jan. 15, 2014).
 Summary U.S. counterproposal circulated to negotiating groups in Singapore the week of February 17, http://www.redge.org.pe/sites/default/files/20140218%20biodiversity%20climate%20change%20TPP.pdf
Reprinted with permission from Climate Law Blog
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