Stop ‘Fast Track’

At this week’s Asia Pacific Economic Cooperation (APEC) meetings, Obama is meeting with the leaders of the 11 other countries negotiating the Trans-Pacific Partnership (TPP), a massive free trade agreement that has been written in almost complete secrecy. Obama is optimistic that by the end of APEC, a final timetable will be set for reaching the end of the deal. While Sen. Harry Reid (D-Nev.) won’t bring up Fast Track legislation to ram the TPP through Congress during the lame duck session, Sen. Mitch McConnell (R-Ky.) has already cited trade as one of the areas where he and President Obama might find common ground in 2015.

Regardless of when Fast Track legislation is introduced, during this week of action to stop Fast Track of the TPP, members of Congress must remember their commitments to uphold the rule of law and legislate in the best interest of the people. They should both oppose the process by which the TPP was negotiated and any attempts to pass Fast Track legislation.

{mosads}First, the lack of transparency with which the TPP has been negotiated is alarming. Most of what we know about the actual text of the agreement comes from leaked chapters, since it’s not available to the public. Members of Congress are able to view the text upon request, with supervision, but the text cannot leave the room. With such secrecy, it’s hard to know if the trade agreement will truly be in the best interest of the people, especially given that 85 percent of the 566 U.S. negotiators represent corporate interests. Notably, if Fast Track legislation passes, Congress will be relinquishing their Constitutional authority under the Commerce clause to regulate trade.

Second, there are several provisions central to the TPP that could fundamentally erode democracy and the rule of law. The provision of regulatory “coherence” has the potential to deeply undermine U.S labor, health, and environmental regulations that have taken decades of tireless work to enact. The aim is to make each country’s regulations consistent, thereby making trade between multiple countries “seamless and efficient.” However, it is unclear which country’s standards will become the common regulations, and how those common regulations will be chosen. How can we be sure that a race-to-the-bottom doesn’t occur, given that U.S. has stricter standards than many other participating countries?  

Congress should also be deeply concerned about is the Investor-State Dispute Settlement (ISDS) provision. Under ISDS, multinational corporations are able to sue sovereign governments for loss of expected profits. These cases, decided by secret 3-member private-sector lawyer panels, allocate tax-payer dollars to corporations, bypassing the national legal system. While ISDS cannot force a country to change a law, the threat of paying massive sums of money often motivates the country to do so.

For example, U.S. tobacco company Philip Morris International is currently using ISDS to sue the governments of Uruguay, because of their tobacco regulations, and Australia, because of their cigarette plain packaging law. Despite the World Health Organization’s praising of Uruguay and Australia’s initiatives as model public health efforts, Philip Morris is demanding compensation for lost profits. Pending lawsuits are keeping other nations from enacting similar tobacco regulations. In February 2013, New Zealand announced that it would wait to move on plain packaging legislation until the lawsuit with Australia had been resolved.

Many of the most notable ISDS cases involve multinational corporations wreaking havoc on communities in Latin America. Take the town of La Oroya, Peru, where the Peruvian government is now being sued for $800 million by Doe Run – owned by the U.S.-based Renco Group Inc. – because it asked Doe Run to clean up its metal smelting plant that had caused 99 percent of the children in La Oroya to have unsafe levels of lead in their blood.

Some might argue that ISDS lawsuits would never be brought against the U.S. However, based on other pending lawsuits, this could soon be our own reality. Vattenfall, a Swedish energy company, is now suing Germany for over one billion dollars over their decision to phase out nuclear energy, following the Fukushima disaster in 2011. Lone Pine Resources, a U.S.-based oil and gas company, is now suing Quebec for $250 million worth of “lost profits” after the citizens of Quebec passed a moratorium against fracking under the St. Lawrence River.

Members of Congress should be deeply concerned about trade agreements that give multinational corporations the power to undermine environmental and health laws democratically decided upon by communities both in the U.S. and abroad. They should call for more transparency in both the drafting and the negotiating of trade agreements. They should specify environmental, health, labor, and intellectual property principles on which they won’t compromise. In the meantime, Congress must not pass Fast Track legislation that would erode their Constitutional authority to regulate trade and harm the very people and communities they have been elected to protect.

Wirzba is policy assistant for Sustainable Energy and Environment at the Friends Committee on National Legislation, a Quaker lobby in the public interest.