Could Nevada beat big mining?
Most large mining companies operating in Nevada are Canadian, and U.S. Sen. Elizabeth Warren of Massachusetts is using a dispute involving one of them to make her case against the Trans-Pacific Partnership trade agreement. She argues that investor-state dispute settlement (ISDS) procedures under trade agreements can override national and local mining regulation. ISDS is a means of international law that can allow investors to use dispute settlement against a government without going to court.
In an essay released last week, Warren wrote, “I'll give you a recent example of how it works: A big mining company wanted to do some blasting off the coast of Nova Scotia. The Canadian government refused to provide permits because it thought the blasting would harm the local environment and scare off fish that local fishermen needed to make a living.
“Thanks to an ISDS provision in a past trade agreement, that mining company didn't have to go to a Canadian court to challenge the permit decision—they went right to a special ISDS panel of corporate lawyers. Last month, the international panel ruled in favor of the mining company, and the decision cannot be challenged in Canadian courts.
“Now the Canadian taxpayers may be on the hook for up to $300 million in ‘damages' to the mining company—all because their government had the gall to stand up for its environment and the economic livelihood of its local fishermen. And the next time a foreign company wants a blasting permit, what will the Canadian government do?”
Warren said there were similar outcomes in disputes in Egypt, Germany, and the Czech Republic.
“Philip Morris is using ISDS right now to try to stop countries like Australia and Uruguay from implementing new rules that are intended to cut smoking rates—because the new laws might eat into the tobacco giant's profits,” she wrote.
She also wrote, “ISDS isn't a one-time, hypothetical problem—we've seen it in past trade agreements.”
Reinforcing that point, Warren this week issued another report, “Broken Promises: Decades of Failure to Enforce Labor Standards in Free Trade Agreements,” based on information from the General Accountability Office and federal agencies. In the report, Warren said that the Obama administration has not acted to police earlier trade agreements, undercutting the president's claim that TPP would be a forward-looking agreement.
“The United States does not enforce the labor protections in its trade agreements,” the report says.
“Guatemala was named ‘the most dangerous country in the world for trade unionists' five years after entering a trade agreement with the U.S. In Colombia, despite the existence of a special ‘Labor Action Plan' put in place to address long-standing problems and secure passage of the Colombia FTA [free trade agreement], 105 union activists have been murdered and 1,337 death threats have been issued since the Labor Action Plan was finalized four years ago.”