No One Is Going to Enforce the Paris Climate Treaty Through the TPP

Now that the Trans-Pacific Partnership negotiations have concluded, a lot of people across the political spectrum are going to have insightful and intelligent things to say about the agreement.  Their analyses may argue for opposing positions, but the public will be better off and more informed for having listened to any of them.  On the other hand, some opponents of the deal will rely on baseless fearmongering.

Fear of the unknown is a natural (and largely beneficial) human extinct.  When people feel like they don’t understand how something works, they’re more likely to imagine that it does something horrible.  This is why opponents of trade liberalization constantly exaggerate the secrecy of negotiations why they focus their rhetoric on things like transnational corporate agendas, loss of national sovereignty, or lower food safety—things that most people don’t understand very well but are afraid of. 

Most often, fantastic predictions about the consequences of free trade arguments are put forward by the Left.  They have claimed that the TPP will kill dolphins, allow corporations to bypass government regulations, cause global warming, or force us all to eat GMOs.  None of this is true, but anti-trade groups are making fairly persuasive arguments based on inaccurate and exaggerated claims.

Anti-trade groups on the political right use similar methods.  The easiest target for these groups has been apprehension among conservative voters over the intentions of President Obama, focusing on things like immigration and gun control.  Conservative protectionists adopted the term “Obamatrade” to refer—interchangeably, in order to profit from confusion—to the TPP, trade promotion authority, and even the WTO.  During the debate earlier this year over trade promotion authority, a number of politicians fell for the simplistic but inaccurate argument that TPA would enable Obama to secretly liberalize America’s immigration laws.

The most recent right-wing, anti-trade boogieman is the idea that the TPP will enable Obama to implement the Paris climate treaty without getting approval from Congress.  Unfortunately, this theory has gained traction among respectable commentators.  Most publicly, the National Review’s Kevin Williamson, an eloquent advocate for genuine free trade, cited the back door climate treaty theory as a reason free traders should oppose the TPP.

Since it’s already doing real damage to the public debate over the TPP, let me explain the theory and why it’s wrong.  The source of the theory appears to be an article at americanthinker.com that was predictably picked up by Breitbart.com.  I’ve quoted the relevant parts below:

It turns out that Senator Jeff Sessions was correct when he said that the treaty creates a new legislative body called the “Commission,” a term meant to invoke the European Commission, known for its recent decision to require that all the countries of the European Union take in Moslem [sic] refugees from the Middle East.

. . .

Chapter 20, the environmental chapter of the TPP, already requires compliance with previous multilateral environmental agreements that have been negotiated. So, the terms of the climate treaty will likely be incorporated into the TPP when the Commission first meets after the TPP passes. This is more or less specified in Article 20.4 which states:

1. The Parties recognise that multilateral environmental agreements to which they are party play an important role, globally and domestically, in protecting the environment and that their respective implementation of these agreements is critical to achieving the environmental objectives of these agreements. Accordingly, each Party affirms its commitment to implement the multilateral environmental agreements to which it is a party.
   . . .

When President Obama finished negotiating the Iran Nuclear Deal, he went first to the UN Security Council, not to Congress, to get the deal approved. More or less the same thing could happen with the multilateral environmental agreement that Obama negotiates in Paris. It will be incorporated into the TPP, whether Congress agrees with its terms or not.

In summary, they’re claiming that the TPP creates a Commission that could amend the TPP at Obama’s urging to incorporate the climate agreement without Congressional approval, and so if Congress approves the TPP, it will open the door for Obama to unilaterally implement the climate treaty.

The theory relies on flatly inaccurate readings of the TPP’s text to concoct a complex conspiracy where none exists.

First, the “TPP Commission” is not a powerful legislative body that can alter the TPP agreement.  It is just a name for a meeting of the members’ representatives.  Chapter 27 of the TPP envisions the Commission meeting regularly to discuss certain topics.  It is not and will never become a supranational government unaccountably changing U.S. laws. 

Second, U.S. obligations under the TPP cannot be amended without Congress’s approval.  Chapter 30 of the agreement explains that any amendments must be “approved in accordance with the applicable legal procedures of each Party.”  That means it must be ratified by Congress.  The TPP doesn’t enter into force for the United States until it’s ratified by Congress, and amendments must follow the same procedures.  The TPP is not a conspiracy to bypass the U.S. Constitution.

Finally, 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.

The back door climate treaty theory may be well designed to scare conservatives who already distrust President Obama into opposing the TPP, but it is not supported by a well-reasoned argument.  

Needless to say, these sorts of exaggerations and conspiracy myths don’t help the debate.  There are, in fact, plenty of things actually in the TPP that free market advocates should oppose, though they may not be sufficient reasons to oppose the whole package.

How can you tell the difference between a reasonable complaint and a false one?  For starters, keep reading the Cato blog!  Cato scholars have been and will continue to highlight the positives and negatives of the TPP and free trade agreements generally.

But also, everyone should be especially skeptical of complaints that build on existing narratives—like Obama’s executive overreach—that are unrelated to trade policy.  These may be attempts to misdirect the debate away from relevant issues—like whether free trade is good—where popular opinion lines up with supporting the TPP.