Much like the fragile natural world they were enacted to protect, the environmental laws of the United States are vulnerable to loss or destruction in numerous ways. From damaging legislative amendments, to budget appropriation riders, to deep EPA budget cuts, those laws are today at constant risk of diminution or camouflaged repeal. To this list of actual and potential dangers one more threat to the integrity of our nation’s federal environmental laws must be added: the Trans Pacific Partnership (TPP), a secretly negotiated treaty that is now pending before Congress. Long on rhetoric but short on needed international environmental protections, this agreement creates merely modest environmental benefits while including provisions with the potential to dramatically undermine urgently needed domestic environmental safeguards.

On its website, the Office of the U.S. Trade Representative describes the TPP as including “the most robust environmental commitments of any trade agreement in history.” Sadly though, the recently released text of that agreement belies that claim. Several previously ratified free trade agreements required that the parties fulfill obligations imposed under seven multi-lateral environmental agreements (MEAs). In contrast, the TPP only requires parties to it to “adopt, maintain and implement” a single MEA, the Convention on International Trade in Endangered Species of Wild Fauna and Flora.


In fairness—at least to the extent that they are actually implemented—some provisions of the treaty do appear likely to provide genuine environmental benefits. Thus, parties to the treaty must eliminate subsidies to their fishing industries that contribute to overfishing, and combat trafficking in body parts of endangered animal species. At the same time, however, the TPP contains no prohibition on commercial whaling or shark fin harvesting—practices popular in Japan and Singapore that create devastating consequences for those marine creatures.

Tellingly, the TPP contains no mention whatsoever of what is widely seen as the most pressing threat to the global environment: disruption of the earth’s climate from the release of greenhouse gases. In fact, compliance with the TPP would move the United States farther away from the responsible leadership position that our country should be taking to combat this critical problem. If it is ratified and implemented, the U.S. Department of Energy would be required to approve the exportation of liquefied natural gas. This development would encourage environmentally hazardous fracking, contribute significant quantities of additional greenhouse gases to the atmosphere, and increase long-term reliance on infrastructure designed to transport fossil fuels—all to the detriment of investment in renewable sources of energy.

The most potentially damaging threat posed to U.S. environmental laws by the TPP, however, stems from the agreement’s mechanism for the settlement of inter-party disputes: the Investor State Dispute Resolution system (ISDS). This portion of the treaty creates an enormous opportunity for multi-national corporations—acting with the cooperation of friendly nations—to bypass domestic courts and undermine national and sub-national environmental requirements by raising grievances through arbitration panels. While the treaty indicates that arbitrators must have relevant expertise, and not be affiliated with or take instructions from any party to a dispute before them, it provides scant protection against the possibility that the rosters of qualified arbitrators will be dominated by representatives of corporate interests who view national environmental laws as needless obstacles to private profit-making.

Moreover, while the TPP entitles “a third party that has an interest in the matter”—presumably a reference to financially interested business entities—to participate fully in all aspects of arbitration proceedings, it merely affords environmental non-governmental organizations an opportunity to provide written views regarding disputes for arbitration panels to “consider.” Given these provisions, it is not hard to imagine an ISDS arbitration panel imposing immense monetary penalties on parties to the treaty (including the United States) whose environmental laws are deemed by the panel to be an impairment of benefits to a large multi-national corporate polluter and its governmental sponsor.

Without much doubt—and notwithstanding some incidental environmental advantages—the TPP puts at risk vital legal protections of the air we breathe, the water we drink, fish, swim and boat in, the chemicals we are exposed to, and the climate of our planet. Now that its precise terms have at long last been made public, it merits firm rejection by the United States Congress.

Mintz is a professor of law at Nova Southeastern University Law Center and a member scholar of the Center for Progressive Reform.