Sustainability Council: TPPA lets investors sue over climate change policies

Written By: - Date published: 7:30 am, January 22nd, 2016 - 97 comments
Categories: climate change, democracy under attack, global warming, Globalisation, national/act government, sustainability, you couldn't make this shit up - Tags:

TPPA protest-9

You know how Paris and COP21 was meant to mark a new beginning, that climate change denial was dead and that man made anthropogenic change was now accepted to be real and that to address this most important of issues urgent action needed to be taken?  Well no one told the people negotiating the Trans Pacific Partnership agreement.

The Sustainability Council has reported that the Trans Pacific Partnership Agreement will allow investors to sue the Government should it take steps to address climate change in a way that affects corporate interests.  And that references to climate change were washed out of an early draft of the agreement.

From the Sustainability Council website:

Close scrutiny of the final TPPA text reveals that its impact on the environment is even worse than had been expected from leaked drafts.

A new paper, prepared by Simon Terry as part of a series supported by a New Zealand Law Foundation grant, concludes that the environment is a significant casualty under the TPPA.

Analysis of the final text shows that the gains for the environment are few and small scale. By contrast, foreign investors can sue the Government for compensation if they believe new environmental protections will reduce their future profits, and this is a serious threat.

When challenged on the need for such Investor State Dispute Settlement (ISDS) rules, ministers have repeatedly said that there would be no restraint on the government’s ability to regulate in the public interest. However, the text fails to protect the Government from being sued when taking such action.

The justification provided by the Government is essentially weasel words.  Just as the TPPA would not result in increased prescription charges for individuals because the Government (that is the taxpayer) would pick up the tab and/or the quality of pharmaceuticals would go down, the government would have us believe that there will be no restraint on it being able to regulate, as long as it is willing to pay the cost of doing so.

The full report notes that there are provisions that protect governments from being sued for acting to reduce smoking but no similar protections when it comes to climate change.  Clearly the absence of these safeguards means that almost anything goes as far as corporate litigation is concerned.

The report refers to the legal action taken by TransCanada against US Government for the vetoing of approval of the Keystone XL pipeline and suggests that this is an example of what may happen under the TPPA’s investor state dispute resolution procedure.

Two weeks ago, a Canadian company announced that it will use very similar rules to sue the US government for US$15 billion after President Obama vetoed approval for a pipeline that would have carried oil made from tar sands to the US.

In this country, ISDS rules could be used to sue the government if it increased emissions charges under the ETS, or restricted the mining of fossil fuels.

And the report notes that “climate change” is not mentioned in the TPPA text, and that global measures to address climate change are completely disconnected from the treaty.  It is all about trade and nothing but trade and does not protect the Government from doing anything except for the limited exception relating to smoking.

To make matters worse apparently “climate change” was mentioned in an earlier draft but was taken out through the redrafting process.  This passage

The Parties acknowledge climate change as a global concern that requires collective action and recognize the importance of implementation of their respective commitments under the United Nations Framework Convention on Climate Change (UNFCCC) and its related legal instruments …

became this …

The Parties acknowledge that transition to a low emissions economy requires collective action.

How crazy that action a government takes to address the world’s most pressing environmental issue may result in it paying compensation to corporations that pollute.  And how bizarre that some of the most sophisticated nations in the world should negotiate a treaty which provides this result.

97 comments on “Sustainability Council: TPPA lets investors sue over climate change policies”

  1. Paul 1

    TPPA’s Effect On The New Zealand Environment

    Some examples of environmental protection measures which could be affected by ISDS if New Zealand signs up to the TPPA are:

    Our Emissions Trading Scheme (ETS), which is designed to reduce New Zealand’s contribution to global climate change, and to meet our obligations under the Kyoto protocol. The government has proposed legislation that will extend the transition period for full implementation of the ETS indefinitely. If New Zealand were to sign-up to the TPPA with the ETS in such a weakened form, any future changes to the scheme to seriously address climate change would risk ISDS litigation from overseas companies invested in New Zealand farming or industrial operations.

    Water quality regulation.
    Water quality in New Zealand’s rivers is decreasing, in large part because of an intensification of dairy farming. Increased regulation of dairy run-off will be required in future years if New Zealand is to have waterways safe for swimming, and to retain our clean green image. A recent landmark decision of the Environment Court shows this process is already underway. Under the TPPA, any tightening of water quality regulation will open the door to ISDS law suits from investors linked to the other ten countries.

    Agricultural water use.
    Commercial, industrial, and domestic water-users in New Zealand increasingly have to pay for water they use, but farmers are able to use water sources flowing through their land for free. This arrangement has significant implications for downstream water users, and has been criticised by the OECD. If New Zealand were to adopt the OECD recommendation of pricing argicultural water usage, that decision could be challenged by investors from the TPPA countries.

    Dirty energy regulation.
    If New Zealand were to introduce measures in addition to the ETS to shift us away from fossil fuels, such as altering electricity regulation, it could face significant challenges under ISDS. These risks are highlighted by an ISDS case for Euro 1.4 billion brought by Swiss power company Vattenfall against Germany. In that case, a coal electricity plant owned by Vattenfall was made to comply with environmental regulations around climate change and water quality. The parties settled out of court on unknown terms.

    Regulation of deep-sea drilling in New Zealand’s Exclusive Economic Zone (EEZ).
    The government has recently introduced a new management system for New Zealand’s EEZ which, in the words of the Sustainability Council of New Zealand, has “the spine of a jellyfish”, and according to Greenpeace, is “declaring an open season for deep water drilling along our coastlines”. If the TPPA is in place, changing this law ( as Labour is suggesting it will) would risk major claims from the overseas corporations lining up to drill in our waters. New laws limiting fracking could face similar challenges.

    Hazardous substances regulations:
    If New Zealand brought in new rules to restrict the use of hazardous substances, overseas investors from TPPA countries could seek compensation under ISDS. This happened in Canada when the giant US chemical company DowAgroSciences sued Quebec for banning the use of a pesticide, using an agreement called NAFTA that introduced ISDS into free trade treaties. Although the Quebec government was ultimately successful, by bringing the case Dow Agro Sciences was able to continue to sell its product in Canada for three years while the case was resolved.

    http://itsourfuture.org.nz/tppas-effect-on-the-new-zealand-environment/

  2. Andre 2

    A brief look into the cases where investors have used ISDS procedures under NAFTA in Canada and Mexico suggests that when a country does attempt to regulate to protect the environment and its citizens health, it will be sued.

  3. Pat 3

    “Most people would see that New Zealand was going to do well out of an FTA that better linked a country of 4.5 million with hundreds of millions of income-consumers.”

    income consumers….is that the new name for corporations?

    http://www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=11577635

  4. Detrie 4

    Your last statement says it all. “How crazy that action a government takes to address the world’s most pressing environmental issue may result in it paying compensation to [the] corporations that pollute… ”

    The corrupt nature of todays politicians only interested in pandering to corporate interests on the other side of the planet – To ‘look good’ and to appease to some bizarre neo-liberal economic ideology long proven to have failed the majority.

  5. Sacha 5

    Any NZ business organisations supporting TPP need their heads examined. The deal gives foreign-owned companies/farms/investors rights to sue or undermine regulation through threats that their local equivalents do not have. Hardly a level playing field. Bravo, Timmy. Top job.

  6. grumpystilskin 6

    Yet again in regards to this deal, I can now ask all my friends that laughed at me when I told them of the possible impending outcome for NZ to apologise.
    sigh..

    It’s interesting that all the talk about it refers to us being able to access more markets, never that our doors are wide open too.

    • Sacha 6.1

      Yes, the government has been very sly on that – trumpeting how big NZ companies like Orion and Datacom will be able to supply services in Vietnam etc without acknowledging that our growing companies may well be outmuscled here before they have a chance to develop enough scale to bid for overseas work themselves.

      I’m not convinced that the low estimate of benefits to the US takes into account their likelihood of scoring more state-funded contracts here and elsewhere.

  7. ianmac 7

    “The essence of the chilling process is the threat, not necessarily the actuality, of repercussions. The TPPA’s last-minute exclusion of big tobacco from the dispute process has only grazed the tip of a very large iceberg.”
    Just one of the comments from “Research paper: The Economics of the TPPA found on Scoop.
    And “It is striking how little the TPPA will deliver. Without the TPPA, our GDP will grow by 47% by 2030 at current growth rates. The TPPA would add only 0.9%”, says Barry Coates, who co-authored the section on modelling with Tim Hazledine.
    So tell me why we (they) are signing TPPA?
    http://www.scoop.co.nz/stories/PO1601/S00118/research-paper-the-economics-of-the-tppa.htm
    Hope that by quoting Scoop here does not interfere with their business model?

  8. Tc 8

    Hope the opposition have some short snappy slogans ready as natz and their msm mates will be going hard to smudge this and other shite aspects of this deal.

    TPPA is basically large corporates wanting a single market with lowest cost to them possible so the trashing of soverignty and a nations ability to place its own values on them had to go.

  9. Paul Campbell 9

    Off to read the TPPA to see if individual citizens can counter sue companies …. if we can’t the TPPA isn’t a level playing field

    • ianmac 9.1

      After an ISDS resolution there is no appeal. Decision made by the Tribunal is final and binding. Imagine being sued by a massive corporation against our tiny resources.

    • Bill 9.2

      If you want to sue a company, you have to go through local courts and national legal systems. It takes years and many $$$$.

  10. Gosman 10

    Say the NZ Government implements it’s side of the Paris agreement and puts in place policies to reduce Greenhouse gas emissions and a Investor takes a case against NZ and wins. Who would enforce the ruling given they judicial system would be controlled by parties also subject to the same Climate change agreement?

    • mickysavage 10.1

      The trouble with the arbitration system is that it is not bound by the terms of the Paris agreement. All references to the agreement were taken out before the TPPA was signed. Get that? We are protected from being sued by the tobacco industry but not by any corporate who has to pay an increased carbon tax/emissions trading scheme payment.

      • b waghorn 10.1.1

        Would the likes of Shanghai Peinxing be able to sue if agriculture comes under a carbon tax.

        • Lanthanide 10.1.1.1

          I’m not sure if the China FTA includes an ISDS clause; I think it it doesn’t.

          China isn’t a party to the TPPA so any Chinese company wouldn’t be able to file a suit under it.

          • acrophobic 10.1.1.1.1

            “New Zealand’s BITs with China (implemented in 1989) and
            Hong Kong (1995) include ISDS, as do a number of its
            FTAs. Once the recent Korea FTA enters into force, New
            Zealand will have ISDS provisions with 13 economies.
            The bulk of these ISDS agreements have occurred more
            recently, however, including in our FTAs with China
            (2008), ASEAN and Australia (2009) and South Korea
            (2015).9 As noted above, although the mechanism has
            existed for some time, no claims have been filed against
            New Zealand.”

            “Despite having had ISDS with 13 countries over the past
            27 years,12 the New Zealand government has never been
            sued by a foreign investor under an international treaty.
            That is likely to be due in large part to its open trade and
            investment regime, respect for the rule of law and clear
            and transparent legislative processes.
            It may also reflect the fact that launching ISDS claims isn’t
            cheap (firms can expect multi-million dollar costs), the
            probability of a win is low (see Figure 2) and the expected
            return per winning claim is just three cents on the dollar. ”

            https://nzier.org.nz/static/media/filer_public/bc/21/bc21a5b2-3a6b-4ba2-8cf7-2f90fd5c6909/isds_and_sovereignty.pdf

            This is a another spectacular piece of scare mongering by the SC.

            • Lanthanide 10.1.1.1.1.1

              Yes, and how comprehensive are those existing ISDS clauses, compared to the the one in the TPPA?

              It appears the TPPA allows us to make laws against smoking, but anything else is fair game.

            • Bill 10.1.1.1.1.2

              There is a huge difference in how ISDS provisions are drawn up now, and how they become actionable now, compared with 1989…or the 1950s when the first one was entered into.

              • acrophobic

                Most likely the latest ISDS provisions favour governments more than previously.

                http://www.iea.org.uk/blog/proposed-isds-changes-risk-stacking-the-cards-against-investors

                • mickysavage

                  That is referring to the EU treaty. Are you sure that our representatives were as good at negotiating? Gawd it is like saying “look over that is green therefore this in front of me will be green too”.

                  Any comment about the Keystone pipeline litigation or the Phillip Morris litigation that the Australian Government was subject to? I know they won that case but they still spent tens of millions on legal fees.

                  Edit: Your link is to a think tank that proudly describes itself as being “free market”. Got anything better?

                  • acrophobic

                    “That is referring to the EU treaty. Are you sure that our representatives were as good at negotiating? ”

                    Yep.

                    “Got anything better?”

                    The link I provided is clear. Or would you like me to find one from a socialist source? Here, this may help:

                    “More than 3000 bilateral investment treaties and other international agreements include ISDS. In fact the number of agreements providing ISDS protections for foreign investors greatly exceeds the number of cases brought under them over the years.

                    According to the United Nations Conference on Trade and Development (UNCTAD), which monitors them, by the end of last year 356 investor-state cases had been concluded, of which 37 per cent were decided in favour of the state and 25 per cent ended in favour of the investor with monetary compensation awarded.

                    About 28 per cent of cases were settled and a further 8 per cent discontinued for other reasons. In the remaining 2 per cent, a treaty breach was found but no monetary compensation was awarded to the investor.”

                    http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=11445026

                • Bill

                  ISDS were originally intended to compensate a company if (essentially) their plant and machinery were trashed. Not now.

                  • acrophobic

                    Now rather than just post the link, extract a single citation from any of the papers that supports your concerns. Because I doubt you’ve even read them!

            • Tony Veitch 10.1.1.1.1.3

              Ah, but we’ve never been in bed with the most litigious country in the world before! That’s the difference – as exemplified by this interactive map of all ISDS cases!

              http://teamdata.oneworld.nl/projects/isds/movementmap-claimants/

              Anyone who believes this country won’t be sued by an American corporation, is living in cloud cuckoo land!

              • acrophobic

                We’ve been trading with the US for decades. We’ve had ISDS provisions in free trade agreements for decades. We’ve never been sued.

                The expected return per winning claim is 3c in the $.

                Anyone scaremongering over this should read the SC claims about the China FTA from 2014. No sign of a lawsuit yet.

                • Scott M

                  Acrophobic – can you say with 100% certainty that NZ govt will not be sued once part of TPPA with US.

                  Its a rhetorical question.

                  • Paul

                    Nonstop 12 hours sound of dogs barking.
                    Marginally less annoying than acrophobic.

                  • acrophobic

                    No. Can you for certainty that a asteroid will not hit the planet in 2016?

                    • Scott M

                      Does the TPPA include clauses on asteroids? If not, please try to stay on topic.

                    • acrophobic

                      No, but it’s about as a silly a question as the one you asked.

                    • Scott M []

                      Not silly at all. Youre preaching “alls fine, nothing to worry about here”. And yet you cant guarantee that NZ wouldnt be sued under the TPPA. Therefore your down playing of the risk is pure BULLSHIT.

                    • acrophobic

                      “And yet you cant guarantee that NZ wouldnt be sued under the TPPA. Therefore your down playing of the risk is pure BULLSHIT.”

                      No, I am accurately representing the risk, based on the facts.

                      “More than 3000 bilateral investment treaties and other international agreements include ISDS. In fact the number of agreements providing ISDS protections for foreign investors greatly exceeds the number of cases brought under them over the years.

                      According to the United Nations Conference on Trade and Development (UNCTAD), which monitors them, by the end of last year 356 investor-state cases had been concluded, of which 37 per cent were decided in favour of the state and 25 per cent ended in favour of the investor with monetary compensation awarded.

                      About 28 per cent of cases were settled and a further 8 per cent discontinued for other reasons. In the remaining 2 per cent, a treaty breach was found but no monetary compensation was awarded to the investor.”

                      http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=11445026

                      You, on the other hand, are buying the spectacular level of hysteria being spread by a group of anti-trade alarmists.

                    • Pat

                      “According to the United Nations Conference on Trade and Development (UNCTAD), which monitors them, by the end of last year 356 investor-state cases had been concluded, of which 37 per cent were decided in favour of the state and 25 per cent ended in favour of the investor with monetary compensation awarded.”

                      what you fail to note is on top of the 356 completed cases there are a further 252 (as of Dec 2014….and theres a few since then including the latest Canadian pipeline) yet to be heard….and the number of cases is growing exponentially….strangely the biggest increase shows a relationship to the introduction of NAFTA

                    • acrophobic

                      “…what you fail to note is on top of the 356 completed cases there are a further 252 (as of Dec 2014) yet to be heard…”

                      So? Doesn’t change the facts, and the facts are clear. The alarmism is nothing more than hysteria.

                    • Scott M []

                      Yes irrespective of the case numbers is the point that ISDS is completely inappropriate. A straight forward provision saying assets couldnt be confiscated by governments would suffice. Instead we have far reaching agreements like TPPA which seek to severely curtail democracy.

                      Obviously democracy is a trifling matter to you?

                    • acrophobic

                      “Yes irrespective of the case numbers is the point that ISDS is completely inappropriate. A straight forward provision saying assets couldnt be confiscated by governments would suffice. Instead we have far reaching agreements like TPPA which seek to severely curtail democracy.”

                      So you have zero understanding of trade, or of international business. Read this, it may help.

                      https://nzier.org.nz/static/media/filer_public/bc/21/bc21a5b2-3a6b-4ba2-8cf7-2f90fd5c6909/isds_and_sovereignty.pdf

                    • Scott M []

                      Just as you have zero understanding of the importance of democracy?

                      TPPA/ISDS is a complete over reach by foreign investors. Investors profits are not more important than the wishes of citizens. It is the “indirect appropriation” that is most problematic and which in effect seeks to restrict the law making powers of governments.

                    • acrophobic

                      “TPPA/ISDS is a complete over reach by foreign investors.”

                      Wrong again. Did you read the cite?

                  • Bill

                    I can say with certainty (I’ll only give you odds- on in any bet) that the public purse will be ‘right royally screwed’ if ANYTHING gets in the way of profit.

                • Tony Veitch

                  Note the dichotomy – we’ve been trading with the US for decades.
                  We’ve had ISDS provisions in free trade agreements for decades.
                  BUT we’ve never had a free trade agreement with the US which contained IDSD provisions before!
                  As a country we should be shit scared of this TPP!

                  • acrophobic

                    Why? The evidence is there are very few ISDS cases, with a very low success rate. Evidence based answers please. Not hysteria.

          • b waghorn 10.1.1.1.2

            Oh that’s right China isn’t part of it tppa thanks.

            • Pat 10.1.1.1.2.1

              nor does the China/NZ FTA haveISDS provisions

              • acrophobic

                “New Zealand’s BITs with China (implemented in 1989) and Hong Kong (1995) include ISDS, as do a number of its FTAs. Once the recent Korea FTA enters into force, New Zealand will have ISDS provisions with 13 economies. The bulk of these ISDS agreements have occurred more
                recently, however, including in our FTAs with China (2008), ASEAN and Australia (2009) and South Korea (2015). As noted above, although the mechanism has existed for some time, no claims have been filed against
                New Zealand.”

                https://nzier.org.nz/static/media/filer_public/bc/21/bc21a5b2-3a6b-4ba2-8cf7-2f90fd5c6909/isds_and_sovereignty.pdf

                • Bill

                  And the wording and coverage of those ISDS clauses then,and now?

                  • acrophobic

                    …has improved, with greater transparency in the process.

                    “Many hearings are now highly transparent. Some are open to the public and are available to be viewed online. New Zealand’s FTA with Korea requires ISDS proceedings to be open to the public, for example. Importantly, the UN Commission on International Trade Law (UNCITRAL) has developed a set of rules on transparency which expressly require hearings to be accessible to the public, either physically or via the internet. As these rules become standard practice, transparency will increase further, and as with any international system of dispute resolution, practices are always developing and improving. Best practice ISDS clauses now promote transparency and ensure interested parties may participate by way of amicus briefs.”

                    https://nzier.org.nz/static/media/filer_public/bc/21/bc21a5b2-3a6b-4ba2-8cf7-2f90fd5c6909/isds_and_sovereignty.pdf

              • Pat

                I’ll rephrase that ….the disputes settlement provisions in the two agreements are very different…particularly it would appear in terms of compensation.

                • acrophobic

                  NZ has many trade agreements that include ISDS clauses, concluded over a period of decades, the most recent being in 2005 (Korea). ISDS clauses have evolved considerably in that period, as shown in my cite above.

                  If you have specific knowledge of a particular weakness in the TPP ISDS, please cite it.

                    • acrophobic

                      I asked if YOU have specific knowledge of a particular weakness in the TPP ISDS. I’m happy to review what you have, but sending me a link to papers that in some cases bear no relation to the topic is wasting my time. And try to avoid Jane Kelsey if possible. She’s been well and truly debunked elsewhere here.

                    • acrophobic

                      That’s the same link.

                    • Sacha

                      From paper # 2, p17:

                      “So far, and through a combination of BITs and FTAs, New Zealand has given binding consents to arbitrate potential claims by investors from China, Hong Kong, the ASEAN countries and Korea.

                      New Zealand’s involvement in the investment treaty arbitration system will expand significantly through the TPPA, as will its exposure to claims.

                      The increased exposure to claims results not just from the large number of TPPA parties, but also
                      (a) from the fact that a significant proportion of investment into New Zealand is sourced from TPPA countries, including the most litigious in this arena – the United States,
                      (b) the wider scope of the investor protections in Section A, relative to the other FTAs to which New Zealand is a party, and
                      (c) the application of Section B to investment contracts and authorizations.”

                      But braying dunces will always believe whatever suits them.

  11. SGThree 11

    The reference to the TransCanada case is misleading. It suggests that TransCanada is suing simply because the President vetoed approval for the pipeline.
    In fact, if you read the claim, it becomes apparent that the action alleges that the President acted beyond his statutory powers in vetoing the approval. It is not alleging that he breached the NAFTA, but that he breached the Constitution. That is where the claim lies.
    If his is proved to be correct, then the action is quite justified. If it is proved that the President didn’t act beyond his powers, TransCanada will lose. The anti-TPPA brigade would argue that agreements like NAFTA and TPPA mean that valid actions of a Government can be over-ruled by the ISDS provisions. There is some irony in the fact that if the actions of the President are found to be valid, then the claim fails.

  12. While I agree the wording would open businesses to try and sue under the ISDS, I think the scare factor here is less the idea that they would win, (the trade lawyers would have to be suicidal to rule for compensation in that kind of case, it would literally scupper the TPPA on its own) and more the fact that the government would have to spend time and money on defending itself. (although potentially if the case is really obvious they might get awarded costs like the Aussie govt did against Phillip Morris in the plain packaging ISDS case)

    • Sacha 12.1

      The NZ govt’s reaction to the Philip Morris case shows the effect does not depend on winning.

    • Scott M 12.2

      Matthew – its the principle here that matters. The TPPA puts corporations ABOVE the law.

      That is totally inappropriate.

  13. Bill 13

    I’ve said as much elsewhere on recent threads. CC is a ‘hot potato’ that states are happy enough to chuck into an international arena where no-one and nothing is accountable.

    When it all comes down, you and I, (as abstracted ‘rationally optimising economic units’ and as ‘consumers’) will be told we only have ourselves to blame…which amounts to saying that no-one and everyone is to blame. And so, governing institutions and their authority will persist.

  14. acrophobic 14

    If anyone is genuinely worried about NZ’s sovereignty, then the TPP pales into insignificance compared to Paris.

    http://judithcurry.com/2016/01/20/the-trojan-horse-of-the-paris-climate-agreement/#more-20951

  15. millsy 15

    Where’s Wayne?

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