WikiLeaks Release of Secret Trans-Pacific Partnership Agreement (TPP)



Environment Chapter Consolidated Text

(November 24, 2013)

Environment Chapter

Consolidated Text

The following draft Trans-Pacific Partnership (TPP) environment text is without prejudice to the positions of any TPP Party. It responds to the request by TPP Ministers that Canada draft a consolidated text after bilateral consultations with other TPP Parties to determine concerns and redlines and possible landing zones.

November 24, 2013

This document contains TPP Confidential Information

Modified Handling Authorized

November 24, 2013



Chapter SS

Environment

For purposes of this Chapter:

environmental law means any statute or regulation of a Party, or provision thereof, including any that implement its obligations under a multilateral environmental agreement, the primary purpose of which is the protection of the environment, or the prevention of a danger to human life or health, through:

the prevention, abatement, or control of the release, discharge, or emission of pollutants or environmental contaminants;

the control of environmentally hazardous or toxic chemicals, substances, materials, and wastes, and the dissemination of information related thereto; or

the protection or conservation of wild flora or fauna, including endangered species, their habitat, and specially protected natural areas ,

but does not include any statute or regulation, or provision thereof, directly related to worker safety or health, nor any statute or regulation, or provision thereof, the primary purpose of which is managing the subsistence or aboriginal harvesting of natural resources.

statute or regulation means:

[AU: for Australia, an act of the Commonwealth Parliament, or a regulation made by the Governor-General in Council under delegated authority under an Act of the Commonwealth Parliament, that is enforceable at the central level of government.]

[BN: for Brunei, an Act, Order or Rule promulgated pursuant to the Constitution of Brunei Darussalam, enforceable by the Government of His Majesty the Sultan and yang Di-Pertuan of Brunei Darussalam.]

[CA: for Canada, an Act of the Parliament of Canada or regulation made under an Act of the Parliament of Canada that is enforceable by the central level of government.]

[MY: for Malaysia, an act of Parliament or regulation promulgated pursuant to an act of Parliament that is enforceable by action of the federal government.]

[MX: for the United Mexican States, an act of Congress or regulation promulgated pursuant to an act of Congress that is enforceable by action of the federal level of government.]

[PE: for Peru, a law of Congress or Decree or Resolution promulgated by the central level of government to implement a law of Congress that is enforceable by action of the central level of government.]

[US: for the United States, an act of Congress or regulation promulgated pursuant to an act of Congress that is enforceable by action of the central level of government.]

[VN: for Vietnam, a law of the National Assembly, an ordinance of the Standing Committee of the National Assembly, or a regulation promulgated by the central level of government to implement a law of the National Assembly or an ordinance of the Standing Committee of the National Assembly that is enforceable by action of the central level of government.]

Drafter’s note: Language relating to equivalency in scope of coverage is attached. Placement is to be determined.

The objectives of this Chapter are to: promote mutually supportive trade and environment policies; promote high levels of environmental protection and effective enforcement of environmental laws; and enhance the capacities of the Parties to address trade-related environmental issues, including through cooperation.

Taking account of their respective national priorities and circumstances, the Parties recognize that enhanced cooperation to protect and conserve the environment and sustainably manage their natural resources brings benefits which can contribute to sustainable development, strengthen their environmental governance and complement the objectives of the TPP.

The Parties further recognize that it is inappropriate to set or use their environmental laws or other measures in a manner which would constitute a disguised restriction on trade or investment between the Parties.

The Parties recognize the importance of mutually supportive trade and environmental policies and practices to improve environmental protection in the furtherance of sustainable development.

The Parties recognize the sovereign right of each Party to establish its own levels of domestic environmental protection and its own environmental priorities, and to set, adopt or modify accordingly its environmental laws and policies.

Each Party shall strive to ensure that its environmental laws and policies provide for and encourage high levels of environmental protection and shall strive to continue to improve its respective levels of environmental protection.

No Party shall fail to effectively enforce its environmental laws through a sustained or recurring course of action or inaction in a manner affecting trade or investment between the Parties, after the date of entry into force of this Agreement.

The Parties recognize that each Party retains the right to exercise discretion and to make decisions regarding: (a) investigatory, prosecutorial, regulatory, and compliance matters; and (b) the allocation of environmental enforcement resources with respect to other environmental laws determined to have higher priorities. Accordingly, the Parties understand that with respect to the enforcement of environmental laws a Party is in compliance with paragraph 4 where a course of action or inaction reflects a reasonable exercise of such discretion, or results from a bona fide decision regarding the allocation of such resources in accordance with priorities for enforcement of its environmental laws.

decision regarding the allocation of such resources in accordance with priorities for enforcement of its environmental laws. Without prejudice to paragraph 2, the Parties recognize that it is inappropriate to encourage trade or investment by weakening or reducing the protections afforded in their respective environmental laws. Accordingly, a Party shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from, such laws in a manner that weakens or reduces the protections afforded in those laws in order to encourage trade or investment between the Parties.

Nothing in this Chapter shall be construed to empower a Party’s authorities to undertake environmental law enforcement activities in the territory of another Party.

The Parties recognize 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.

The Parties stress the need to enhance mutual supportiveness between trade and environment laws and policies through dialogue between the Parties on trade and environment issues of mutual interest, particularly with respect to negotiations and implementation of relevant multilateral environmental agreements and trade agreements.

If a Party is found to be in non-compliance with its obligations under a multilateral environmental agreement through applicable compliance procedures under such agreement , and such non-compliance is in a manner affecting trade or investment between the Parties, any other Party whose trade or investment is affected and is party to the same multilateral environmental agreement may request that the Committee be convened to consider the issue by delivering a written request to each national contact point. The Committee shall convene to consider whether the matter could benefit from cooperative activities under this agreement, with a view to facilitating the relevant Party coming into compliance with its obligations under the multilateral environmental agreement.

Montreal Protocol

The Parties recognize that emissions of certain substances can significantly deplete and otherwise modify the ozone layer in a manner that is likely to result in adverse effects on human health and the environment. To that end, each Party affirms its commitment to take measures to control the production and consumption of, and trade in, such substances by implementing its obligations under the Montreal Protocol of Substances that Deplete the Ozone Layer, including its amendments.

Each Party shall promote public awareness of its environmental laws, regulations and policies, including enforcement and compliance procedures, by ensuring that relevant information is available to the public.

Each Party shall ensure that interested persons residing in or established in the territory of such Party may request the Party’s competent authorities to investigate alleged violations of its environmental laws, and that the competent authorities shall give such requests due consideration, in accordance with the Party’s law.

Each Party shall ensure that judicial, quasi-judicial, or administrative proceedings for the enforcement of its environmental laws are available under its law and are fair, equitable, transparent, and comply with due process of law. Any hearings in such proceedings shall be open to the public, except where the administration of justice otherwise requires, and in accordance with its applicable laws.

Each Party shall ensure that persons with a recognized interest under its law in a particular matter have appropriate access to proceedings referred to in paragraph 3.

Each Party shall provide appropriate sanctions or remedies for violations of its environmental laws for the effective enforcement of those laws. Such sanctions or remedies may include a right to bring an action against the violator directly seeking damages or injunctive relief, or a right to seek governmental action.

Each Party shall ensure that, in the establishment of the sanctions or remedies referred to in paragraph 5, appropriate account is taken of relevant factors. Such factors may include the nature and gravity of the violation, damage to the environment, and any economic benefit the violator has derived from the violation.

Each Party shall seek to accommodate requests for information regarding the Party’s implementation of this Chapter.

Each Party shall make use of existing, or establish new, consultative mechanisms, such as national advisory committees, to seek views on matters related to the implementation of this Chapter. Such mechanisms may comprise persons with relevant experience, as appropriate, including experience in business, natural resource conservation and management, or other environmental matters.

Each Party shall provide for the receipt and consideration of written submissions from persons of that Party regarding its implementation of this Chapter. Each Party shall respond in a timely manner to such submissions in writing, and in accordance with domestic procedures, and make the submissions and its responses available to the public, such as by posting on an appropriate public website.

Each Party shall make its procedures for the receipt and consideration of written submissions readily accessible and publicly available, such as by posting on an appropriate public website. These procedures may provide that, to be eligible for consideration, the submission should: be in writing in one of the official languages of the Party receiving the submission; clearly identify the person making the submission; provide sufficient information to allow for the review of the submission including any documentary evidence on which the submission may be based; explain how, and to what extent, the issue raised affects trade or investment between the Parties; not raise issues that are the subject of ongoing judicial or administrative proceedings; and indicate whether the matter has been communicated in writing to relevant authorities of the Party and the Party’s response, if any.

Each Party shall notify the other Parties of the entity or entities responsible for receiving and responding to any written submissions referred to in paragraph 1 within 180 days after this Agreement enters into force.

Where a submission asserts that a Party is failing to effectively enforce its environmental laws and following the provision of the written response by that Party, any other Party may request that the Committee discuss that submission and written response with a view to further understanding the matter raised in the submission and, as appropriate, to consider whether the matter could benefit from cooperative activities.

At its first meeting, the Committee shall establish procedures for discussing submissions and responses referred to it. Such procedures may provide for the utilization of experts, or existing institutional bodies, for the purpose of developing a report for the Committee comprised of information on facts relevant to the matter.

No later than three years after the date this Agreement enters into force, and thereafter as agreed to by the Parties, the Committee shall prepare a written report for the Commission on the implementation of this Article. For purposes of preparing this report, each Party shall provide a written summary regarding its implementation activities under this Article.

Each Party should encourage enterprises operating within its territory or jurisdiction, to adopt voluntarily, into their policies and practices, principles of corporate social responsibility related to the environment, consistent with internationally recognized standards and guidelines that have been endorsed or are supported by that Party.

The Parties recognize that flexible, voluntary mechanisms, such as voluntary auditing and reporting, market-based incentives, voluntary sharing of information and expertise, and public-private partnerships, can contribute to the achievement and maintenance of high levels of environmental protection and complement domestic regulatory measures. The Parties further recognize that such mechanisms should be designed in a manner that maximizes their environmental benefits and avoids the creation of unnecessary barriers to trade.

Therefore, in accordance with its domestic laws, regulations or policies, and to the extent it considers appropriate, each Party shall encourage: the use of such flexible and voluntary mechanisms to protect natural resources and the environment in its territory; and its relevant authorities, businesses and business organizations, non-governmental organizations, and other interested persons involved in the development of criteria used in evaluating environmental performance, with respect to such voluntary mechanisms, to continue to develop and improve such criteria.

Further, where private sector entities or non-governmental organizations develop voluntary mechanisms for the promotion of products based on their environmental qualities, each Party should encourage those entities and organizations to develop such mechanisms that among other things: are truthful, not misleading and take into account scientific and technical information; where applicable and available, are based on relevant international standards, recommendations or guidelines, and best practices; promote competition and innovation; and do not treat a product less favorably on the basis of origin.



The Parties recognize the importance of cooperation as a mechanism for implementation of this Chapter and enhancing its benefits and to strengthen their joint and individual capacities to protect the environment and to promote sustainable development as they strengthen their trade and investment relations.

Taking account of their national priorities and circumstances, and available resources, the Parties shall cooperate to address matters of joint or common interest among the participating Parties related to the implementation of this Chapter, where there is mutual benefit from such cooperation. Such cooperation may be carried out on a bilateral or plurilateral basis between or among the Parties and, subject to consensus by the participating Parties, may include non-government bodies or organizations and non-Parties to this Agreement.

Each Party shall designate the authority or authorities responsible for cooperation related to the implementation of this Chapter to serve as its national contact point on matters relating to coordination of cooperation activities and shall notify the other Parties in writing within 90 days of entry into force of this Agreement of its contact point. On notifying the other Parties of its contact point, or at any time thereafter through the contact points, a Party may: share its priorities for cooperation with the other Parties, including the objectives of such cooperation; propose cooperation activities related to the implementation of this chapter to another Party or Parties.

Where possible and appropriate, the Parties shall seek to complement and utilize their existing cooperation mechanisms and take into account relevant work of regional and international organizations.

The Parties agree that cooperation may be undertaken through modes such as dialogues, workshops, seminars, conferences, collaborative programs and projects, and technical assistance to promote and facilitate cooperation and training; the sharing of best practices on policies and procedures; and exchange of experts.

In developing cooperative activities and programs, each Party shall, where relevant, identify performance measures and indicators to assist in examining and evaluating the efficiency, effectiveness and progress of specific cooperative activities and programs and share those measures and indicators, as well as the outcome of any evaluation during or following the completion of a cooperative activity or program, with the Parties.

The Parties, through their national contact points for cooperation, shall periodically review the implementation and operation of this Article and report their findings, which may include recommendations, to the Committee to inform its review under Article SS.11(3)(c). The Parties, through the Committee, may periodically evaluate the necessity of designating an entity to provide administrative and operational support for cooperative activities. In the event that the Parties agree to establish such an entity, the Parties shall agree on the provision of funds on a voluntary basis to support its operation.

Each Party shall promote public participation in the development and implementation, as appropriate, of cooperative activities. This may include activities such as encouraging and facilitating direct contacts and cooperation among relevant entities and the conclusion of arrangements among them for the conduct of cooperative activities under this Chapter.

All cooperative activities under this Chapter shall be subject to the availability of funds and of human and other resources, and to the applicable laws and regulations of the participating Parties. The funding of cooperative activities shall be decided by the participating Parties on a case-by-case basis.

Each Party shall designate a national contact point from its relevant national authorities within three months of the date of entry into force of this Agreement, in order to facilitate communication among the Parties in the implementation of this Chapter. Changes to the national contact point shall be communicated promptly to the other Parties as they occur.

The Parties hereby establish an Environment Committee (“Committee”) which shall comprise senior government representatives, or their designees, of the relevant trade and environment national authorities of each Party responsible for the implementation of this Chapter.

The purpose of the Committee is to oversee the implementation of this Chapter and its functions shall be to: provide a forum to discuss and review the implementation of this Chapter; provide periodic reports to the [Trans-Pacific Partnership Commission] regarding implementation of this Chapter; provide a forum to discuss and review cooperative activities pursuant to this Chapter; consider and endeavor to resolve matters referred to it under Article SS.12 [Consultations]; coordinate with other Committees under the Agreement as appropriate; and perform any other functions as the Parties may agree.

The Committee shall meet within the first year of entry into force of this Agreement. Thereafter, the Committee shall normally meet every two years unless the Committee decides otherwise. The Chair of the Committee and the venue of its meetings shall rotate among each of the Parties in English alphabetical order, unless the Committee decides otherwise.

All decisions and reports of the Committee shall be made by consensus, unless otherwise agreed, or unless otherwise provided in this Chapter.

All decisions and reports of the Committee shall be made available to the public, unless otherwise decided by consensus.

During the fifth year after the entry into force of this Agreement, the Committee shall: review the implementation and operation of this Chapter; report its findings, which may include recommendations, to the Parties and the [Commission]; and undertake subsequent reviews at intervals to be agreed by the Parties.

The Committee shall provide for public input on matters relevant to the Committee’s work, as appropriate, and shall hold a public session at each meeting.

The Parties recognize the importance of resource efficiency in the implementation of this Chapter and the desirability of utilizing, wherever possible, new technologies to facilitate communication and interaction among the Parties and with the public.

The Parties shall at all times endeavor to agree on the interpretation and application of this Chapter, and shall make every effort through dialogue, consultation, exchange of information, and, where appropriate, cooperation to address any matter that might affect the operation of this Chapter.

Any Party (“the requesting Party”) may request consultations with any other Party (“the responding Party”) regarding any matter arising under this Chapter by delivering a written request to the national contact point designated in accordance with Article SS.11 (Institutional Arrangements) of this Chapter. The request shall contain information that is specific and sufficient to enable the responding Party receiving the request to respond, including identification of the matter at issue and an indication of the legal basis for the request.

The requesting Party shall inform the other Parties through the national contact points, of its request for consultations. A Party other than the requesting or responding Party that considers it has a substantial interest in the matter (“a participating Party”) may participate in the consultations by delivering a written notice to the national contact point of the requesting and responding Parties within seven days of the date of delivery of the request for consultations. The participating party shall include in its notice an explanation of its substantial interest in the matter.

Unless they otherwise agree, the requesting and responding Parties (“the consulting Parties”) shall enter into consultations within 30 days after the receipt of the written request.

The consulting Parties shall make every effort to arrive at a mutually satisfactory resolution to the matter, which may include appropriate cooperative activities. The consulting Parties may seek advice or assistance from any person or body they deem appropriate in order to examine the matter.

If the consulting Parties fail to resolve the matter pursuant to Article SS.12.1 (Environment Consultations), any consulting Party may request that the Committee representatives from the consulting Parties convene to consider the matter by delivering a written request to the national contact point of the other consulting Party and circulating it to the national contact point of other Parties.

The Committee representatives from the consulting Parties shall meet no later than 90 days following the delivery of the request and shall seek to resolve the matter including, where appropriate, by gathering relevant scientific and technical information from governmental or non-governmental experts. Committee representatives from any other Party that considers it as a substantial interest in the matter may participate in the consultations.

If the consulting Parties have failed to resolve the matter pursuant to Article SS.12.2 (Committee Consultations), any of the consulting Parties may refer the matter to the relevant Ministers of the consulting Parties who shall seek to resolve the matter.

Consultations pursuant to Articles SS.12.1, SS.12.2, and SS.12.3 may be held in person or by any technological means available agreed by the consulting Parties. If in person, consultations shall be held in the capital of the responding Party, unless the consulting Parties otherwise agree.

Consultations shall be confidential and without prejudice to the rights of any Party in any future proceedings.

If the consulting Parties have failed to resolve the matter within 90 days of the request made pursuant to Article SS.12.3 (Ministerial Consultations), the complaining Party may request in writing the establishment of an arbitral tribunal under this Chapter.

The complaining Party shall circulate the request to all Parties through the national contact points designated in accordance with Article SS.10 (Institutional Arrangements) of this Chapter.

An arbitral tribunal shall be established upon delivery of a request.

The complaining Party shall include in the request to establish an arbitral tribunal an identification of the measure or other matter at issue and a brief summary of the legal basis of the complaint sufficient to present the problem clearly.

A Party that is eligible under paragraph 1 to request the establishment of an arbitral tribunal regarding the same matter may join the arbitral tribunal proceedings as a complaining Party upon delivery of a written notice to the other Parties. The Party joining the proceedings shall deliver the notice at the earliest possible time and in any event no later than seven days after the date of delivery of the request for the establishment of an arbitral tribunal.

Where there is more than one dispute on the same matter arising under this Chapter against a Party, the disputes may be joined, subject to the agreement of all disputing Parties.

Unless the disputing Parties otherwise agree, the terms of reference of the arbitral tribunal constituted under paragraph 1, shall be:

“to examine, in the light of the relevant provisions of the Environment Chapter, the

matter referred to in the request for the establishment of the arbitral tribunal and in any

notice to join the arbitral tribunal proceedings pursuant to Article SS.12.4, and to issue a report, in accordance with Article BBB.16 (Final Report) of Chapter BBB (Dispute Settlement), making recommendations for the resolution of the matter.”

For purposes of selecting an arbitral tribunal, the following procedures shall apply: the arbitral tribunal shall comprise three members; within 20 days of receiving the request to establish an arbitral tribunal under Article SS.12.4 Request of the Arbitral Tribunal, the complaining Party or Parties and the responding Party shall each select one arbitrator; if one Party fails to select its arbitrator within such period, the other Party shall select the arbitrator from among qualified individuals who are nationals of the Party that failed to select its arbitrator; the following procedures shall apply to the selection of the chair: the responding Party shall provide the complaining Party with the names of three qualified candidates. The names shall be provided within 20 days of receiving the request to establish the arbitral tribunal; the complaining Party may choose one of the individuals to be the chair or, if the names were not provided or none of the individuals are acceptable, provide the responding Party with the names of three individuals who are qualified to be the chair. Those names shall be provided no later than five days after receiving the names under subparagraph (i) or 25 days after the receipt of the request for the establishment of the arbitral tribunal, whichever is earlier; and the responding Party must choose one of the three individuals to be the chair within five days of receiving the names under subparagraph (ii).

Members of the arbitral tribunal shall: have specialized knowledge or expertise in environmental law, issues addressed in this Chapter and, to the extent possible, the resolution of disputes arising under international agreements; be chosen on the basis of objectivity, reliability and sound judgment; be independent of, and not be affiliated with or take instructions from any Party; and

comply with a code of conduct established by the Parties under Article BBB.X of Chapter BBB (Dispute Settlement).



The Rules of Procedure under Article BBB.11 (Rules of Procedure {for Arbitral Tribunals}) of Chapter BBB (Dispute Settlement) shall apply to arbitral proceedings under this Chapter.

Drafter’s Note: This provision to be reviewed once Article BBB.11 is agreed.

A Party that is not a disputing Party, and that considers it has a substantial interest in the matter before the arbitral tribunal, shall, on delivery of a written notice to the disputing Parties, be entitled to attend all hearings, to make written submissions, to present views orally to the arbitraltribunal, and to receive written submissions of the disputing Parties. The delivery of the written notice shall occur no later than 10 days after the date of circulation of the request for the establishment of the arbitral tribunal pursuant to paragraph 1 of Article SS.12.4 (Arbitral Tribunal).

At the request of a disputing Party or on its own initiative, the arbitral tribunal may seek information and technical advice from any person or body that it deems appropriate, provided that the disputing Parties so agree and subject to such terms and conditions as the disputing Parties may agree. The disputing Parties shall have an opportunity to comment on any information or advice so obtained.

The arbitral tribunal shall present to the disputing Parties an initial report in accordance with Article BBB.15 (Initial Report) of Chapter BBB (Dispute Settlement). For the purposes of thisChapter, the initial report shall contain: