As if you needed one, this article points out another reason to distrust the Trans Pacific Partnership, which our government seems to be in a blind rush to ratify. It will increase the powers of corporations to sue governments when the state’s environmental or social policies get in the way of their profits. It’s already happening under the weaker provisions of NAFTA.
In November 2015, just after President Obama finally stood up to the fossil fuel industry and rejected the TransCanada Corporation’s application for its tar sands pipeline through the United States, I issued a warning: In The Hill, I applauded the Obama decision and laid out the reasons why, under current trade and investment rules, TransCanada had grounds to sue the United States under the 1994 North American Free Trade Agreement (NAFTA). I hardly need remind readers that NAFTA launched the modern era of corporate-biased investment rules, and serves as the model for the investment chapter in the TransPacific Partnership (TPP) that now awaits votes in the U.S. Congress and in the legislative bodies of the 11 other TPP countries.
Lo and behold, TransCanada came to the same conclusion that I did. They hired a giant corporate “K Street” law firm, Sidley Austin, and in January 2016, the fossil-fuel giant put the U.S. government on notice of a potential lawsuit under the investment chapter of NAFTA. To get the U.S. government’s attention, they claimed to have suffered $15 billion in losses because of the rejection. In TransCanada’s “notice of intent,” they argue that the United States has never before rejected a cross-border pipeline and that repeated studies by the U.S. State Department showed that the pipeline would not have a deleterious environmental impact on climate. They conclude that the U.S. rejection of their pipeline, some seven years after their application, is a political decision and is not permitted under the NAFTA rules.
It is vital that people pause and ponder: TransCanada, in its legally justified yet totally outrageous reaction, is reminding us of the reality of the investment rules our governments, under heavy pressure from global corporations, have inserted into thousands of trade and investment agreements. And, we need to contemplate the assault on democracy that these rules and the TransCanada complaint represent.