By Yogin Kothari, Union of Concerned Scientists
On Monday, Greenpeace Netherlands released 248 pages of leaked documents from the ongoing negotiations of the Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union. The documents reveal a lot of interesting information, and also seemed to confirm some of the concerns my UCS colleagues and many of our partners have had about this trade deal.
One of the leaked chapters divulges how the U.S. and Europe could address the process of developing standards, such as protecting consumers from toxic chemicals or from unsafe drugs and medical devices, in a potential trade deal. What seems clear is that the U.S. wants the E.U. to adopt a regulatory system akin to ours. That’s not necessarily a good thing, considering that we often see important science-based public health and safety standards weakened or delayed due to the structure of our system.
Following the leak, I reached out to Robert Weissman, president of Public Citizen and an expert on the rulemaking process, for his thoughts on the leaked regulatory cooperation chapter, and what it might tell us about the future of the negotiations. Weissman has followed the negotiations closely.
A transcript of our conversation, edited for length and clarity, follows.
Yogin: One of the concerns many people have with TTIP is whether it could undermine science-based safeguards and increase special interest influence over the process to develop public protections. Does the newest leak confirm these fears? How so?
Weissman: It does confirm those fears. If you focus on the regulatory cooperation chapter, it is evident that the U.S. is trying to impose its regulatory system on the Europeans. There are a lot of conflicts in the regulatory rulemaking culture between the U.S. and the E.U., but I think it’s fair to say first that the U.S. system in practice is heavily tilted towards corporate interests. At the core of the U.S. system is cost-benefit analysis [learn more here], which is in extreme tension with the core of the E.U. system, the precautionary principle [learn more here]. The U.S. cost-benefit system claims to elevate science but in fact it’s the precautionary principle that is much more grounded in science. The U.S. system says where there is uncertainty, it’s very difficult to act and regulate, and the E.U. system is much more motivated towards regulatory action to deal with uncertain but very real risks. You see that in all kinds of areas including science and non-science based regulation. You see it in financial areas, consumer protection areas, etc.
Corporations are able to use the endless analytic requirements in the U.S. rulemaking process to delay and often block the issuance of rules. These analytic requirements looking at costs typically require regulators to rely on industry estimates, even though there is abundant evidence [see silica] that industry routinely inflates costs because they fail to account for innovation and economic dynamism. So the U.S. system makes it very hard to get rules out to deal with problems big and small and it will be a very bad thing if TTIP exports that system to the E.U.
Yogin: What do you think the impacts will be on the process of putting stronger science-based health and safety protections in place if TTIP includes the language revealed by the leaked papers?
Weissman: We don’t know. The proposals from the U.S. and E.U. are not contradictory but they’re very different. The U.S. proposal is much more aggressive. It aims to impose U.S. processes on the E.U. We would absolutely see big changes in the E.U. where corporations would be given multiple bites at the European rulemaking process that they now get in the U.S. And it wouldn’t just be that they would get the right to provide input, it would be that the decision-making criteria for regulators would change and follow the U.S. style cost-benefit approach. It’s an unfortunate fact that in environmental and consumer health protection, European standards are now more stringent than the U.S., whereas the U.S. was the gold standard in many of these areas a few decades ago [see thalidomide]. We’ve been surpassed by the E.U., as well as others. But the ability of Europe to continue innovating new protective standards based on new science, technologies, challenges, and possibilities, would be greatly diminished if the U.S. proposals were put into place.
Yogin: What is your greatest concern with TTIP? Did the leaked documents make you more or less worried?
Weissman: The greatest concern is that TTIP is a disguised anti-regulatory corporate empowering agreement. The component of TTIP that is somewhat different than other trade deals is the real emphasis on the regulatory process. That is a signature concern and it’s particularly concerning because of the European partial reliance on the precautionary principle and the practice of having stronger standards than the U.S. The other most troubling feature of TTIP is the investment chapter, the creation of an investor-state dispute settlement process, which would empower tens of thousands of European companies to sue the U.S. directly over regulatory practices and equally empower tens of thousands of American companies to sue European governments over those standards. But that chapter wasn’t leaked. On the regulatory cooperation portion we did learn a lot. It shows that the U.S. proposal is quite aggressive and there’s great reason for concern. The good thing that came out of the leaks was not the text itself but the state of play memo that had been authored by the E.U., which shows that in fact the two sides are much further apart than the negotiators have been stating publicly which means that although they have worrisome issues the conclusion of the negotiations is not eminent.
What does this mean?
Besides increasing special interest influence, text in the leaked regulatory chapter suggests that the U.S. proposed deal would also impose another requirement that would require regulators to consider the impact of trade on new standards. This additional obligation could add to the delays we already face in developing important public protections.
So, for example, if the EPA attempted to improve air quality in the U.S. or regulate a chemical (assuming the pending TSCA reform legislation passes), it would now have to factor in this additional requirement that would be mandatory as a result of TTIP. Specifically, regulators could be required to justify the trade impacts of new science-based safeguards. For our European friends, if they try to manage a chemical using their gold-standard REACH program, which says chemicals have to be proven to be safe before they are sold, it may have to go through similar hurdles before being regulated.
A 2015 UCS report found that the American Chemistry Council and its European counterpart effectively lobbied to influence TTIP negotiations as part of a larger strategy to slow science-based rulemaking in the U.S. and E.U. The latest leaked language could be a boon to the chemical industry and its stated goals.
We can’t continue in this direction
If we try to export our current regulatory regime to Europe, it could undermine science-based public health, safety, and environmental protections across the Atlantic, and most likely at home too. If included in a final deal, this language could open the door for special interests to have enormous influence over a process that should benefit the public. Already in the U.S., we see trade associations rigging the game and undermining science-based protections, as they have done with chemical safety and added sugar. This trade deal could expand the current broken system in the U.S. and create even more opportunities for corporate interests to spread misinformation, weaken critical public protections, and challenge important health and safety standards, even at the state level and local level.
The latest leak confirms what we believed all along – that TTIP will probably mean science-based safeguards that are less protective of the public and more beneficial for special interests. In practice, this could mean weaker chemical safety protections and regulation of drug and medical devices, and the deal could severely impede the ability of states and the federal agencies to improve public health and safety standards.