The Trans Pacific Partnership (TPP) is the latest multinational trade deal. Such deals often include clauses to protect industries investment and potential losses. A new legal proposal is designed to prevent countries by being sued by companies, eg oil companies, when making policies to protect the climatee which may stymie those companies development plans. In other words, putting the climate above corporate concerns.

The Trans Pacific Partnership (TPP) is the latest multinational trade deal. Such deals often include clauses to protect industries investment and potential losses. A new legal proposal is designed to prevent countries by being sued by companies, eg oil companies, when making policies to protect the climatee which may stymie those companies development plans. In other words, putting the climate above corporate concerns.
Photo Credit: CBC

Legal protection for climate change actions

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When does national and international concern over the environment trump private corporations concerns over lost profits?

In some trade deals there are clauses giving corporations the power to sue for lost profits when government policies stop their development plans.

A law professor at York University has proposed a legal way of preventing corporations, primarily oil and gas companies, from suing governments when concerns over the environment trump their exploration and exploitation plans.

Gus Van Harten (PhD, LLB) at York’s Osgoode Hall Law School in Toronto.

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Professor Gus Van Harten (Right) meeting with Austrian Chancellor Werner Faymann in 2014. Professor Van harten is an internationally respoected legal expert teaching at Osgoode Hall Law School in Toronto
Professor Gus Van Harten (R) meeting with Austrian Chancellor Werner Faymann (L) in 2014. Professor Van harten is an internationally respoected legal expert teaching at Osgoode Hall Law School in Toronto © supplied

Recently, a major international trade deal was signed among twelve nations of the Pacific, including Canada, the US, and Mexico.

Those three countries already have a significant trade deal called the North American Free Trade Agreement (NAFTA)

Within these deals however are clauses that give corporations the power to sue governments for potential lost profits.

One example, of many, is the Lone Pine Resources lawsuit under NAFTA and the “investor rights” clause claiming a loss of $250 million when the province of Quebec placed a moratorium on fracking under the St Lawrence.

Professor Van Harten’s  proposal would prevent such “investor-state dispute resolution (ISDS) lawsuits.

He has proposed specific wording in a document called “An ISDS Carve-Out to Support Action on Climate Change”, which would prevent oil companies and others from seeking damages related to climate change initiatives taken by governments.

ISDS-lawsuits-trade deals and Canada

The idea is that governments should not fear massive expensive legal challenges when considering action to deal with the urgent issue of climate change and reducing greenhouse gas emissions.

Calgary-based Lone Pine Resources through iits American offices has sued the Canadian government for $250 million under ISDS clauses in NAFTA in regard to Quebec's ban on fracking. the lawsuit filed in 2013, continues.
Calgary-based Lone Pine Resources through iits American offices has sued the Canadian government for $250 million under ISDS clauses in NAFTA in regard to Quebec’s ban on fracking. the lawsuit filed in 2013, continues. © Associated Press

The European Parliament has adopted his wording in its own formal position on such lawsuits which attempt to target climate change policies by governments.

The resolution passed by the European Parliament calls on the European Commission and member states to ensure that any climate change measure adopted as part of the pending Paris Agreement (Nov. 30 to Dec. 11) includes wording that precludes investor-state dispute settlement.

The wording is such that any party signing on to the Paris Agreement and any measure on limiting greenhouse gasses would be precluded from ISDS-based challenges.

“Considering the urgency of such action, concerns about the protection of foreign-owned fossil fuel reserves are more appropriately addressed in state-to-state adjudication and the courts, not a lopsided and costly process of foreign investor claims against countries that is based on generous entitlements to public compensation without any actionable responsibilities for major resource companies,” says Van Harten.

The next step would be for the European Commission  to follow up on the European Parliament’s resolution and propse the concept at the Paris negotiations on climate change set for December as part of the U.N. Framework Convention on Climate Change, also known as the 21st Conference of the Parties (COP 21)

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3 comments on “Legal protection for climate change actions
  1. Avatar Janet Hudgins says:

    It’s incredible that millions have to find ways to protect themselves from the elected (in the case of the west) politicians who design these pacts to suit the purposes of themselves and big business. If, at last, after many deals have passed into law and many more in abeyance, the millions get a chance to call the hacks on their attempt to colonize, it would give us some hope of some control, at last. Let’s do it.

  2. Avatar Joan Alvarez says:

    Environmental protection has to come first. Any trade agreement that states otherwise should be rendered null and void. Any such trade agreement should have to be re-written with every assurance that the environment is to be protected and that no corporation, business of any kind, individual can interfere with the protection of the environment for any reason whatsoever. Corporations should not be allowed to sue for lost profits and should be held fully responsible for any damage they do cause to the environment.

  3. Avatar mememine69 says:

    Will you liberals please un-muzzle your science gods and allow them to finally end this debate to save the planet and at last say; ‘PROVEN’ for a CO2 ARMAGEDDON?
    Hopefully before it’s to late to say it!