PREEMPTING THE PUBLIC INTEREST How TTIP Will Limit US States’ Public Health and Environmental Protections i THE CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW © 2015 Center for International Environmental Law (CIEL) About CIEL Founded in 1989, the Center for International Environmental Law (CIEL) uses the power of law to protect the environment, promote human rights, and ensure a just and sustainable society. CIEL is dedicated to advocacy in the global public interest through legal counsel, policy research, analysis, education, training, and capacity building. “Preempting the Public Interest: How TTIP Will Limit US States’ Public Health and Environmental Protections” by the Center for International Environmental Law is licensed under a Creative Commons Attribution 4.0 International License. Acknowledgements This report was prepared by Sharon Anglin Treat, former legislator for the state of Maine, in collaboration with Baskut Tuncak, senior attorney at CIEL. Many thanks to David Azoulay and Carroll Muffett for helpful insights and perspectives. A special thanks to Amanda Kistler and CIEL intern Melissa E. Shapiro for their assistance and contributions. PREEMPTING THE PUBLIC INTEREST ii Contents 1 Executive Summary 2 Key Messages and Recommendations 3 I. Introduction 4 II. US State Regulation of Chemicals and Pesticides State policy on chemicals and consumer products State pesticides policy 9 III. Details of the EU’s TTIP Regulatory Cooderation Proposal US states and EU member nations (“non-central governments”) would be covered by most of the provisions of the EU’s proposed Chapter on Regulatory Cooperation Federal government oversight of US state compliance with regulatory cooperation Scope of legislation and regulations covered Enforcing the regulatory cooperation obligations 13 IV. Details of Potential USTR Regulatory Coherence Proposal Applicability to US state governments 14 V. The Impact of EU and USTR Proposals on US States 18 VI. The Impact on Public Health and Environmental Protections: The Case of Toxic Chemicals and Pesticides The regulatory compatibility and harmonization provisions will be used to attack state environmental regulations The procedural provisions of the Regulatory Cooperation Chapter will likely delay US state regulation of chemicals while increasing opportunities for industry influence and reducing the transparency of regulatory decisions 21 Conclusion 22 Endnotes iii THE CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW Abbreviations AmCham EU — US Chamber of Commerce in Europe CIEL — Center for International Environmental Law CLA — CropLife America CPSC — US Consumer Products Safety Commission EPA — US Environmental Protection Agency ECPA — European Crop Protection Association EU — European Union FDA — US Food and Drug Administration FIFRA — Federal Insecticide, Fungicide and Rodenticide Act FFDCA — Federal Food, Drug, and Cosmetic Act FQPA — Food, Quality Protection Act ISDS — Investor-State Dispute Settlement MRL — Maximum Residue Levels NAFTA — North America Free Trade Agreement OIRA — Office of Information and Regulatory Affairs RCB — Regulatory Cooperation Body REACH — Registration, Evaluation, Authorisation and Restriction of Chemicals SPS — Sanitary and phytosanitary measures TBT — Technical barriers to trade TPP — Trans-Pacific Partnership Agreement TSCA — Toxic Substance Control Act TTIP — Trans-Atlantic Trade and Investment Partnership Agreement UBA — German Environment Agency US — United States USCIB — United States Council for International Business USTR — US Trade Representative PREEMPTING THE PUBLIC INTEREST 1 Executive Summary he proposed chapter on Regulato- sumers from potentially hazardous products. ticipated by the US Constitution, and in the ry Cooperation in the Trans-At- Likewise, as the US federal government has process pose significant risks not only to our lantic Trade and Investment Part- failed to respond to fracking concerns, states capacity to regulate to protect public health nership (TTIP) Agreement, the have filled the regulatory void; in 2015 alone, and environment, but also to our democratic Tlargest bilateral trade agreement in history, 226 bills addressing hydraulic fracturing were institutions. threatens the authority and independence of proposed in 33 states. US state governors, legislators, and executive The Regulatory Cooperation chapter not only agencies, and would fundamentally alter how US states have also extended regulatory au- disrupts the US legislative pathways by weak- environmental policy is developed, enacted, thority over pesticides, implementing bans, ening state regulatory authority, but it will and implemented in the United States. overseeing registrations and labels, and im- also threaten the independence of state agen- posing restrictive use standards. The US Fed- cies and regulatory bodies. The chapter would TTIP’s regulatory cooperation provisions are eral Insecticide, Fungicide and Rodenticide institutionalize new avenues for private inter- intended to reduce the cost of doing business Act (FIFRA) is actually designed to promote ests to seek to influence decision-making be- by minimizing regulation, promoting conver- co-regulation between the federal and state fore legislation is introduced and to suppress gence of regulatory standards, and defaulting governments, yet states are the predominant laws and regulations before they are enacted. to international standards developed with sig- regulator under this Act. This often leads to Industries will no longer be limited by the nificant involvement of the regulated indus- stricter standards and more stringent proto- democratic process of a legislature with public tries. These goals can only be achieved by pre- cols at the state level. New York and Califor- hearings and opportunities to provide testi- venting US states from adopting health and nia have banned several pesticide products mony, but can instead influence an unelected, environmental regulations that go beyond US deemed acceptable by the EPA, and Kansas unaccountable, and currently ill-defined in- federal standards. and Iowa are among many states that require ternational trade oversight body. more rigorous registration, application, and This regulatory agenda is being pushed by the use standards than those federally required. As proposed by the EU, an “early warning” largest chemical and manufacturing corpora- system will inject additional, behind-the- tions on both sides of the Atlantic. Largely TTIP’s Regulatory Cooperation chapter scenes industry influence that will promote frustrated in their past attempts to have the threatens to undermine these protections to newly required alternatives and trade impact US Congress preempt US state standards that public health, welfare, and safety by explic- analyses and drive a race to the bottom based go beyond federal minimums, these corpora- itly targeting US state laws and regulations on preferred “least trade restrictive” policies. tions have now turned to international trade throughout. The US has not publicly re- In addition to “paralysis by analysis,” these agreements, including TTIP, to undermine sponded to these detrimental impacts, nor harmonization requirements could also lead state regulations by other means. In the ab- addressed several of TTIP’s ambiguities that to a freeze on future protections as US states sence of comprehensive federal standards, require clarification. For example, it remains seek to avoid legal challenges by transnation- state legislatures have become the primary ve- unclear whether Investor-State Dispute Set- al corporations seeking millions of dollars in hicle for much of the United States’ chemical tlement (ISDS) arbitration will serve as an av- compensation in special arbitration proceed- regulation. Interference with state regulatory enue for recourse for non-compliance claims. ings. authority will have major implications on public health, safety, and welfare in the US. Although there have been limited efforts to The ultimate outcome of these provisions promote “good regulatory practices” and in- will dramatically impair health and environ- During the past three decades, while the fed- ternational cooperation in prior US trade and mental protections across the US, and erode eral Toxic Substance Control Act (TSCA) has investment agreements, the US regulatory the authority of US states to regulate in the proven egregiously ineffective, US states have framework has never before faced the unex- public interest. Not only is this result contrary adopted more than 250 laws and regulations pected and novel challenges that TTIP pres- to the historic role of states as the frontline protecting humans and the environment from ents. The proposals for regulatory cooperation protectors of public health and safety, it will exposure to toxic chemicals, and they have and coherence in TTIP delve deeply into the halt the innovation and responsiveness of state taken the lead in enforcing stricter pesticide internal legislative and regulatory decisions policy-makers to emerging technologies and standards. California is one of several states and choices of US states, as well as the fed- health threats, leaving millions of Americans to design chemical policies to protect con- eral government. They do so in ways not an- at risk. 2 THE CENTER FOR INTERNATIONAL ENVIRONMENTAL LAW Key Messages and Recommendations Ø The TTIP Regulatory Cooperation chap- Ø US states have wide latitude to regulate protections from toxic chemicals in the ter proposed by the EU will comprehen- to protect