Howard Richman, 12/20/2015
In this commentary, we respond to a CATO Institute critique (that appeared in American Spectator) of two of the arguments that we had made in an earlier commentary. We begin:
In a commentary in the American Spectator on December 16, "No one is Going to Enforce The Paris Climate Treaty through TPP," K. William Watson of the Cato Institute contributed to the ongoing discussion of the Trans Pacific Partnership (TPP). Watson addressed two of the arguments that we had made in our American Thinker commentary "What's Actually in the Trans Pacific Partnership?" Although Watson made some useful points that highlight important nuances, at best, he defeated a straw man that was not our argument....
Watson saw the part of the environmental chapter which enforces multilateral environmental agreements (such as the Paris Climate Agreement) as "hortitory fluff." He had written:
Article 20.4 in the Environment Chapter does not require the United States to abide by any international environmental agreements. It merely states that each party "affirms" its commitments under such agreements. The provision is legally meaningless hortatory fluff. In fact, one of the biggest complaints about the TPP from environmental activists is that it does not do what this theory claims. The last four U.S. free trade agreements before the TPP did require parties to abide by their environment commitments under other treaties subject to dispute settlement. The TPP intentionally does not.
But we demonstrated, by quoting the agreement, that it is enforceable:
The Commission could issue an interpretation that this provision of TPP includes the Paris Agreement. The Environment Chapter of TPP begins with a definition that explicitly includes regulations promulgated pursuant to an international agreement as part of the environmental law that this chapter of TPP focused on enforcing. Specifically, Article 20.1 states:
For purposes of this Chapter: environmental law means a statute or regulation of a Party, or provision thereof, including any that implements the Party's obligations under a multilateral environmental agreement, the primary purpose of which is the protection of the environment, or the prevention of a danger to human life or health[.]
And Article 20.23 of the Environment Chapter explicitly provides for dispute resolution:
If the consulting Parties have failed to resolve the matter under Article 20.20 (Environmental Consultations), Article 20.21 (Senior Representative Consultations) and Article 20.22 (Ministerial Consultations) within 60 days after the date of receipt of a request under Article 20.20 (Environmental Consultations), or any other period as the consulting Parties may agree, the requesting Party may request consultations under Article 28.5 (Consultations) or request the establishment of a panel under Article 28.7 (Establishment of a Panel).
Any country that is a party to TPP can charge any other country with violating TPP. After evidence is presented to an arbitration panel and after due deliberations, the panel would issue a final report, which would determine whether the charged country was out of compliance. Article 28.18 specifies:
If in its final report the panel determines that: (a) a measure at issue is inconsistent with a Party's obligations under this Agreement; (b) a Party has otherwise failed to carry out its obligations under this Agreement; or (c) a Party's measure is causing nullification or impairment in the sense of Article 28.3(c) (Scope); the responding Party shall, whenever possible, eliminate the non-conformity or the nullification or impairment.
If the charged party fails to come into compliance with TPP, Article 28.19 specifies that the panel can levy fines. Specifically:
If a monetary assessment is to be paid to the complaining Party, then it shall be paid in U.S. currency, or in an equivalent amount of the currency of the responding Party or in another currency agreed to by the disputing Parties in equal, quarterly installments[.]
Click here to read the entire commentary.
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