Climate change governance should inform global governance more broadly\u2014including international trade and investment policy. One of the most important trade and investment agreements is the Trans-Atlantic Trade and Investment Partnership (TTIP)\u2014currently under negotiation between the European Union and United States\u2014given the role it will likely play in establishing rules for the global economy in the 21st\u00a0century.<\/p>\n
The current model that the TTIP is based on will increase carbon dioxide emissions and jeopardize the ability of Europe and the United States to put in place effective policies for mitigating climate change. Trade and investment treaties should be used to help achieve the broader climate change objectives of Europe and the United States, not hinder them.<\/p>\n
This short brief outlines how the TTIP can increase emissions and restrict the ability of nations to adequately mitigate and adapt to climate change and offers a set of recommendations that would make EU<\/span>-US trade policy more consistent with our climate change goals.<\/p>\n Given that the United States and Europe already enjoy a strong trade and investment relationship, the economic benefits of the treaty are projected to be relatively small. The most cited studies in the European debates are by Ecorys, the Centre for Economic Policy Research (CEPR) and Tufts University. The first two studies find that the treaty will boost GDP among the parties by less than one percent for the US and Europe, though the Tufts study finds that the impacts on GDP will be slightly negative in the EU.<\/p>\n Despite the small projected economic gains of the treaty, the Ecorys study projects that it will increase emissions by 11 million metric tons. The increase in emissions is just 0.07 percent from the baseline, smaller than the 0.47 increase in GDP projected by Ecorys. When multiplied by estimates of the social cost of carbon, carbon emissions would cost the European Union US$ 1.4 billion annually.[1]<\/a><\/p>\n This finding is consistent with the broader literature\u2014according to a comprehensive assessment of the literature conducted by the World Trade Organization and the United Nations, most trade and investment agreements tend to increase carbon emissions.[2]<\/a> \u00a0It should be noted that the Ecorys study is only a partial one because it does not look at the environmental impacts of many \u2018non-tariff barriers,\u2019 such as certain domestic subsidies. There has also been inadequate consideration of the potential impact of TTIP provisions that could limit the ability of governments to design and implement effective climate change policy. As we will see, it is the deregulatory aspect of the TTIP that poses the highest risk to climate change policy.<\/p>\n The TTIP could jeopardize the ability of the EU and US to put in place the proper regulations to meet climate targets. The legal effects of the TTIP could take a variety of forms, including broad restrictions on regulatory authority under investor-state dispute settlement (ISDS<\/span>) provisions, limits on carbon intensity standards, modifications of the US fossil fuel export regime, and restrictions on renewable energy programs.\u00a0 \u00a0<\/strong><\/p>\n The TTIP\u2019s investment chapter will likely provide investors with certain broad rights, including \u201cfair and equitable treatment\u201d and compensation for regulations deemed to constitute acts of \u201cindirect expropriation.\u201d\u00a0 These rights would be enforceable by private corporations, including fossil fuel companies, through a controversial process known as ISDS that could be used to challenge a wide range of government measures affecting climate change.[3]<\/a> Similar rules under other treaties have been used to challenge environment-related measures, including a claim under the Energy Charter Treaty based on Germany\u2019s regulation of a coal-fired power plant[4]<\/a> and a pending challenge under NAFTA<\/span> to Quebec\u2019s moratorium on hydraulic fracturing or \u201cfracking.\u201d[5]<\/a><\/p>\n Regulations that limit the carbon intensity of transportation fuels could also be targeted under the TTIP.\u00a0 United States Trade Representative Michael Froman has reportedly used the TTIP negotiations to pressure the European Union to weaken the carbon intensity standards of the EU\u2019s Fuel Quality Directive (FQD) in order to facilitate the export of high carbon intensity oil.[6]<\/a>\u00a0 Although the European Commission subsequently modified the FQD proposal to accommodate the dirtier oil,[7]<\/strong><\/a> the TTIP negotiations could be used to impose restrictions on future efforts to implement carbon intensity standards for fuel.[8]<\/a><\/p>\n One of the European Union\u2019s principal objectives in the TTIP negotiations is to secure \u201ca legally binding commitment\u00a0 . . . guaranteeing the free export of crude oil and gas resources [from the United States] by transforming any mandatory and non-automatic export licensing procedure into a process by which licenses for exports to the EU are granted automatically and expeditiously.\u201d[9]<\/a> Creating an \u201cautomatic\u201d and \u201cexpeditious\u201d process for US crude oil and gas exports could result in more GHG emissions than projected in quantitative analyses by promoting the production and consumption of these fuels.<\/p>\n Although natural gas is widely viewed as a lower-carbon alternative to other fossil fuels such as oil and coal, expanded exports of liquefied natural gas (LNG) could actually increase GHG emissions for several reasons.\u00a0 <\/strong>Liquefying, transporting and re-gasifying natural gas is energy-intensive, causing exported LNG to be approximately 15 percent more carbon-intensive than natural gas that is used domestically. In addition, increased LNG exports will raise the price of natural gas in the United States, potentially resulting in the use of more coal to produce electricity.\u00a0 Expanded LNG exports will also encourage increased fracking for the production of natural gas, which could cause increased accidental releases of natural gas, known as \u201cfugitive methane emissions.\u201d[10]<\/a> Given that methane is a much more powerful greenhouse gas than CO2<\/sub>, \u201cany climate benefits from increased natural gas use internationally could be dwarfed by accelerated warming caused by fugitive methane emissions.\u201d[11]<\/a><\/p>\n The TTIP could also conflict with efforts to address climate change by imposing new restrictions on policies designed to promote renewable energy. Trade rules are already being used to challenge alternative energy programs. Since 2010 about a dozen disputes have been brought over renewable energy programs.[12]<\/a> The European Union has indicated that it intends to use the TTIP negotiations to seek new restrictions targeting renewable energy programs that contain local content requirements.[13]<\/a> \u00a0Proponents of local content provisions argue that they are essential for developing the political support that will be necessary to maintain and expand renewable energy programs.<\/p>\n At the Paris Summit and in the newly crafted Sustainable Development Goals (SDGs) at the United Nations, the world\u2019s nations have pledged to \u201ctake urgent action to combat climate change and its impacts.\u201d[14]<\/a> The TTIP must not undermine this goal.<\/p>\n Both the EU and US have made strides in prioritizing climate change in other areas of global economic governance, but not in international trade and investment policy. The European Investment Bank and the European Bank for Reconstruction and Development\u2014the EU\u2019s multilateral development banks (MDBs)\u2014significantly restrict the financing of fossil fuel intensive economic activity.\u00a0 The United States also has executive orders that restrict the ability of the US to support the financing of coal projects through MDBs of which it is a member, and mandates that all projects be climate resilient.\u00a0 Such an approach is urgently needed in the TTIP.<\/p>\n The negative economic and regulatory impacts of the TTIP on climate policy noted above are not inevitable. A bold approach could be put forth where the TTIP excludes climate mitigation measures from ISDS, protects renewable energy programs and carbon-intensity standards, and discourages the production and consumption of fossil fuels.<\/p>\n As first steps in striking a new economic relationship that enhances our climate change goals, the United States and the European Union should commit to three principles:<\/p>\n As the SDGs articulate, \u201cclimate change is a global challenge that does not respect national borders. Emissions anywhere affect people everywhere. It is an issue that requires solutions that need to be coordinated at the international level.\u201d[15]<\/a>\u00a0 Trade and investment policy should not be an exception.<\/p>\n Matthew C. Porterfield is Deputy Director and an adjunct professor at the Georgetown\u00a0University Law Center\u2019s Harrison Institute for Public Law. Kevin P. Gallagher is Professor of Global Development Policy at Boston University\u2019s Pardee School for Global Studies, where he co-directs the Global Economic Governance Initiative. The authors would like to acknowledge the Wallace Global Fund for providing the support that made this policy brief possible.<\/p>\n [1]<\/a> EC<\/span> Staff Working Document, Impact Assessment on the Future of EU-US Trade Relations<\/em> (2013)(\u201cEC Impact Assessment\u201d) at 49, available at<\/em> http:\/\/trade.ec.europa.eu\/doclib\/docs\/2013\/march\/tradoc_150759.pdf<\/a>. On the social cost of carbon (SCC<\/span>), 11 million tons is multiplied by the average estimate in this comprehensive review of estimates J.C.J.M. van den Bergh and W.J.W. Botzen (2014), \u201cA lower bound to the social cost of CO2 emissions,\u201d Nature Climate Change <\/em>4, 253-258.<\/p>\n [2]<\/a> WTO<\/span>-UNEP, Trade and Climate Chang e at xii (2009), available at\u00a0https:\/\/www.wto.org\/english\/res_e\/booksp_e\/trade_climate_change_e.pdf<\/p>\n [3]<\/a> See<\/em> Gus Van Harten, An ISDS Carve-Out to Support Action on Climate Change<\/em>, Osgoode Hall Legal Studies Research Paper No. 38, Vol. 11, Issue 8 (2015), http:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=2663504<\/a>; Meredith Wilinsky, Potential Liability For Climate Related Measures Under the Trans-Pacific Partnership, 8, Columbia Center for Climate Change Law, Columbia Law School (2014), http:\/\/web.law.columbia.edu\/sites\/default\/files\/microsites\/climate-change\/wilenskytranspacificpartnership8-7-14_-_revised.pdf<\/a>.<\/p>\n [4]<\/a> See <\/em>Nathalie Bernasconi-Osterwalder and Rhea Tamara Hoffmann, International Institute for Sustainable Development, The German Nuclear Phase-Out Put to the Test in International Investment Arbitration?<\/em>\u00a0 Background to the New Dispute Vattenfall v. Germany (II) <\/em>at 4 (International Institute for Sustainable Development, June 2012), http:\/\/www.IISD<\/span>.org\/pdf\/2012\/german_nuclear_phase_out.pdf<\/a>.<\/p>\n [5]<\/a> See<\/em> Lone Pine Resources Inc. v. Canada (UNCITRAL<\/span>), Notice of Arbitration, paras. 48-52 (Sept. 6, 2013), available at<\/em> http:\/\/www.italaw.com\/sites\/default\/files\/casedocuments\/italaw1596.pdf<\/a>.<\/p>\n [6]<\/a> See<\/em> Froman Pledges to Preserve Jones Act, Criticizes EU Clean Fuel Directive<\/em>, Inside U.S. Trade (Sept. 19, 2013) (subscription) (Froman raised concerns about trade impacts of the FQD \u201cwith senior European Commission officials repeatedly, including in the context of the\u00a0 . . . TTIP negotiations.\u201d)<\/p>\n [7]<\/a> See EU Backpedals on Vehicle Fuels Policy in Face of U.S., Canadian Pressure, <\/em>Inside U.S. Trade (Oct. 10, 2014) (subscription).<\/p>\n [8]<\/a> See id.<\/em> (\u201c[O]utgoing EU Climate Action Commissioner Connie Hedegaard\u00a0 . . . signaled that the EU was leaving the door open to directly targeting tar sands . . . for penalties in the future.\u201d)<\/p>\n [9]<\/a> See<\/em> Council of the European Union, Note for the Attention of the Trade Policy Committee\u2014Non-paper on a Chapter on Energy and Raw Materials in TTIP <\/em>(27 May 2014), http:\/\/www.scribd.com\/doc\/233022558\/EU-Energy-Non-paper<\/a>.<\/p>\n [10]<\/a> World Resources Institute, What Exporting U.S. Natural Gas Means for the Climate<\/em> (May 20, 2013), http:\/\/www.wri.org\/blog\/2013\/05\/what-exporting-us-natural-gas-means-climate<\/a>.<\/p>\n [11]<\/a> Id.<\/em><\/p>\n [12]<\/a> Cathleen Cimino & Gary Hufbauer, Trade Remedies\u2014Targeting the Renewable Energy Sector<\/em> at 19 (April 2014), available at<\/em> http:\/\/UNCTAD<\/span>.org\/meetings\/en\/SessionalDocuments\/ditc_ted_03042014Petersen_Institute.pdf<\/a>.<\/p>\n [13]<\/a> See<\/em> European Commission, EU \u2013 US Trade and Investment Partnership, Raw Materials and Energy, Initial EU Position Paper<\/em>, at 3, available at<\/em> http:\/\/trade.ec.europa.eu\/doclib\/docs\/2013\/july\/tradoc_151624.pdf<\/a>.<\/p>\n [14]<\/a> United Nations Sustainable Development Goals, http:\/\/www.un.org\/sustainabledevelopment\/climate-change-2\/<\/a>.<\/p>\nTTIP will Increase Carbon Emissions<\/h2>\n
Regulatory Risks of the TTIP<\/h2>\n
a) Broad restraints on climate regulations under investment rules<\/h3>\n
\u00a0b)\u00a0Limits on carbon-intensity standards<\/h3>\n
c) Modification of the fossil fuel export regime<\/h3>\n
d) Restrictions on renewable energy programs<\/h3>\n
Putting Climate Change First<\/h2>\n
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\nAuthors<\/h3>\n
\nNotes<\/h3>\n