Will the Trans-Pacific Trade Pact Deepen Our Climate Change Nightmare?


When Justice Ruth Bader Ginsburg spoke recently at the Georgetown University Law Center in Washington DC, she said that if she had to pick one case to undo, her choice would be the 2010 Citizens United ruling. Two years after that decision, one poll found that 62% of Americans also opposed it. Among progressives, there is even broader consensus that it represented a sea change for democracy.

Bader remains optimistic that one day, there will be more sensible campaign finance restrictions. She quoted her late husband, Georgetown law professor Martin Ginsburg, who said, “The true symbol of the United States is not the eagle, it’s the pendulum. When it swings too far in one direction, it will swing back.”

But while that has been true throughout American history, it can only continue to happen if the pendulum doesn’t get into the wrong hands. That’s why maintaining democracy in the post-Citizens United era demands a higher order of vigilance.

That brings us to the new breed of global trade deals, the first of which is slated to come up in the Senate some time this month. Until recently, these deals have eluded public notice, shrouded in secrecy, dense with complex provisions and branded with obscure initials like TPP and TTIP. But if their critics are right, these deals are slated to function as the next logical step in a deconstruction of democracy on the same continuum as Citizen United.  

Most people assume that both Congressional and public oversight will occur prior to signing. Not true. Bypassing that evaluation via “Fast Track,” a straight up or down vote, without any debate, review, or changes, is core to the strategy for passing the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP). That is why Sen. Bernie Sanders (I-VT) is asking the President to “make the full text of all pending trade agreements public.

The deals have been secretly negotiated by multinational corporations in treaty language that runs to thousands of pages. They have been leaked in bits and pieces. This makes it easy for mainstream media pundits like Paul Krugman to miss crucial issues. They typically zero in on a specific aspect (such as trademark law or generic medicines) while missing the key provisions that alarm environmentalists— ones that contravene grassroots initiatives on climate change, food quality, fracking, and toxic chemical regulation.

“To a certain extent these international agreements are about trade but they are even more about deregulation, about rolling back the health and environmental safeguards that we depend upon to take care of ourselves and the planet,” says William Waren, the former policy director at the Forum on Democracy and Trade, currently a senior trade analyst at Friends of the Earth.

The treaties provide corporations with a golden opportunity to make unilateral global agreements to permanently remove “barriers to trade.” All major corporations have their wish lists. Here are just a few samples of what is on the table:

  • The chemical industry wants to gut international toxic chemicals safety regulations.
  • The food industry wants to gut international food safety regulations.
  • The gas and oil industry wants to remove obstacles to coal, LNG and tar sands oil exports.

“This is a climate change nightmare,” says Jason Kowalski, policy director for 350.org. “These are trade deals written in the backroom by oil companies. We need a transparent process that brings the provisions into the light of day. Once this becomes more public, the public will oppose it.”

Given that Fast Track may be launched this month, to get the treaties ratified before the public knows what’s in them, people need to get familiar quickly.

First, a primer on the problems with tinkering with the American democratic pendulum.

Nearly all advocacy initiatives function by pressuring elected officials to act on the public will via laws, regulations, local ordinances, bans, referenda, and subsidies. When vested parties flood elections with untraceable cash, it shifts power toward the donors and away from the people. As activists on many fronts have found, that’s how the Citizens United ruling has eroded the U.S.’ 250-year-old democratic process.

Since FDR’s time, the ultra-right has sought deregulation, rolling back Roosevelt-, Kennedy-, Johnson-, and Carter-era laws. According to an article in the New Republic, near the top of the Republican wishlist for the new Congress is axing the EPA, with its unwelcome potential to nix hazardous industrial activities and limit carbon pollution.

Still from let’s say, the Koch perspective, it’s less efficient to lobby for (or against) each and every one of the thousands of bills filed each year, than it is to buy the officials and craft legislation for them, which ALEC (the American Legislative Exchange Council) does. According to the website ALECexposed, ALEC hosts “global corporations and state politicians [who] vote behind closed doors to try to rewrite state laws…. These so-called 'model bills' reach into almost every area of American life and often directly benefit huge corporations.”

To my untrained eye, the biggest difference between ALEC’s working M.O. and the treaty negotiations are that the former are more likely to occur in Nevada, and the latter in Brussels. The former seek to modify American law, the latter to overrule it.

If you have ever wondered why elected officials are less responsive to public opinion than in the past, it may be because their ears are swiveled toward those who put them in office. Thanks to political advertising, PR and media influence, public opinion can be bought. This was seen in the 2014 Oregon GMO labeling referendum. The Grocery Manufacturers Association (GMA) spent $20 million on misleading television advertising to defeat the vote to label by a mere 857 votes.

The public opposition to the Keystone XL pipeline, the recent fracking ban in New York State, and the campaign to preserve net neutrality reveal that, despite Citizens United, the pendulum of democracy may still be in motion. Currently, the public still has the power to interfere with multinational corporations’ well-laid plans. Deal critics say the uber-treaties represent a long-term strategy to permanently override that power, by allowing corporations to nullify the public will wherever it lessens their profits.

To see how this works, consider the passage of the 2014 bill to label GMO foods in Vermont. The GMA, the same food industry trade group that defeated labeling in Oregon, decided to sue the state of Vermont. The GMA, which includes General Mills, ConAgra, Nestle, Kellogg, SynGenta, Dupont, Pepsico, Merck, and Monsanto, claims the new law undermines these corporations’ right to free speech.

Now that a corporation is designated a person, its product information is supposed to be governed by the First Amendment. In the aftermath of Citizens United, each new incursion must be understood as more than just another bad idea. It must be seen as to whether or not it advances the ongoing movement toward corporate encroachment—the seizing of the pendulum.

In a recent phone call with advocacy groups, Naomi Klein, the author of This Changes Everything (and a board member of 350.org) says the new treaty playbook can be also be seen in recent events in Quebec.

Heeding a grassroots citizen movement to protect from fracking, the National Assembly of Quebec issued a moratorium on fracking in the St. Lawrence River. A Canadian fracking company called Long Pine Resources used a corporate address in the US to claim status as a U.S. investor in Canada under the North Atlantic Free Trade Agreement (NAFTA.) This allowed Long Pine to file suit before an investor-state tribunals, asking for tens of millions of dollars in compensation.

Suits like these could deter or outright prevent fracking bans, labeling bills, and a host of other protections and initiatives, in ways difficult to foresee. Many now common initiatives could simply be prohibited by the secret deals.

“The investor-state tribunals, these treaties will instate, replace our courts. Only corporations have access to them. The new agreements will give these companies the right to claim damages in the millions and billions of dollars in compensation for their current and future lost profits,” says Friends of the Earth’s William Waren. (Listen to my complete interview with him.)

Citizens United, ALEC, the GMA, and Long Pine examples make it clearer why the details of agreements negotiated in secret by multinational corporations must be subject to public scrutiny—before they pass into law. Why the fear of revealing them? Perhaps the deals are totally kosher. Or maybe not. 

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