On January 23, President Donald Trump signed an executive order pulling the United States out of the Trans-Pacific Partnership Agreement. For environmentalists, the death of the TPP is a small victory at a point in time when there will be few things to celebrate for the next four years. Environmentalists are facing a Republican President, Republican majorities in both houses of Congress, Republican Governors in 33 states, and Republican-dominated state legislatures across the country. Though the Democrats are traditionally more receptive to environmental issues, the Democratic establishment, as demonstrated during the Standing Rock protests of the Dakota Access Pipeline, rarely get behind environmental issues and movements aside from symbolic gestures for political benefit.
The Investor State Dispute Settlement (ISDS) system, which was included in the TPP and has been added to nearly every U.S. trade agreement since NAFTA, would have made environmental regulations unenforceable by enabling corporations to seek restitution from foreign governments for any profits they lose due to environmental regulations. “Similar rules in existing pacts have enabled corporations like ExxonMobil and Chevron to bring more than 600 investor-state cases against more than 100 governments,” wrote Sierra Club Executive Director Michael Brune in a New York Times op-ed.
TransCanada is currently pursuing a lawsuit against the United States for $15 billion in response to the rejection of the Keystone XL pipeline, which falls under the NAFTA Investor State Dispute Settlement system. President Trump announced that the U.S. would be entering renegotiation of NAFTA with Canada or Mexico, but it remains unclear whether the ISDS provisions will be impacted. The lawsuit became virtually meaningless as Trump signed an executive order on January 24 to continue construction of the Keystone XL and Dakota Access Pipeline, two major blows for environmentalists.
“In his effort to ‘re-negotiate’ NAFTA, Trump is going to have to decide how to deal with ISDS rules. On the one hand, ISDS rules are the antithesis of Trump’s “America First” philosophy by granting foreign corporations the right to dictate U.S. law and policy,” said Jesse Swanhuyser in an interview with the Observer. Swanhuyser is the the legal coordinator for those environmental groups involved in responding to the Keystone XL pipeline, including the Sierra Club, Natural Resource Defense Council, Center for Biological Diversity, Friends of the Earth, Greenpeace, and other organizations. “On the other hand, ISDS rules were created by transnational business entities to undermine environmental and social regulations. We may learn a lot about which of these priorities—putting America first versus gutting public interest protections—Trump values more in how his team deals with NAFTA’s Chapter 11.”
The TPP would have provided further incentive for corporations to circumvent environmental regulation and increase the exportation of natural gas. Additionally, seeing as provisions to protect the oceans, wildlife, and forests from logging were unlikely to be enforced, corporations would not have the fear of reprimand.
For several years, environmental organizations have rallied against the TPP and other similar trade agreements because they have threatened to undermine the progress made through public policy to develop environmental regulations and protections. The mobilization of the organizations helped push Hillary Clinton and many Democratic Party leaders to vocally oppose the deal, despite their initial support for it, until Trump won the presidential election. Though Trump and his supporters opposed the TPP for different reasons than environmental groups, the death of the agreement is welcomed as a small victory. After all, Trump’s administration is unlikely to give environmentalists much to cheer about in the future.
“The next four years will not be easy, but we have fought hostile administrations before,” said Friends of the Earth Media Relations Manager Kate Colwell in a statement. “Under President George W. Bush, the environmental community took the battle to the courts and Congress and watchdogged political appointees; we blocked attacks on the environment; we galvanized the public to take action. After the more recent fights to kill the Keystone XL pipeline, ban fracking and shut down coal plants, the environmental movement is stronger than we have ever been.”