CETA, climate change, energy and environment

Introduction

While the climate emergency requires a strong and international coordinated policy action, CETA evades environmental concerns which are key-issues of our century.

The preamble of the text is not referring to the Paris Agreement or to the need to reduce greenhouse gas emissions. Aside from chapter 24 entitled “Trade and Environment”, references to climate are evasive, those to ecology are absent while the text aims at pushing the ecological crisis into the background.

The formulas used in chapters 22 and 24 entitled on development and environment are not legally binding. While article 24.3 states that trade or investment cannot weaken or reduce the level of protection of environmental law, procedures for enforcing this level of protection must not be “unnecessarily complicated or too expensive”.

While a new parallel private and supranational jurisdiction is provided for trade and investment, no sanction mechanism is provided for the infringement of environmental rules. Relations between States on this issue will be based on non-legally binding principles of cooperation and exchange of best practices.

Beyond the legal weakness of the terms used in this chapter, this text may also constitute a real deterrent call to fight against climate change by making environment a sub-sector of liberalization of trade.

As for other goods and services, standards and rules of environmental goods and services will be perceived as possible barriers to trade.

Pursuing this liberal logic, all goods in the energy sector including oil and gas will be exempted from customs duties and may be imported. A prescient event of the regulatory harmonization by the bottom that CETA will introduce has already occurred in September 2014. After the completion of negotiations on CETA, the European Union has finally excluded Canadian tar sands oil from the scope of the European directive on fuel quality.

CETA will also render it impossible to restrict the importation of these goods once they have been authorized and a State will not be able to avoid the trade commitments it has previously contracted, even in the case of major environmental and energy crisis. This trade commitments favour big corporations of the energy sector to the detriment of a citizen energy recovery. But above all, this trade support to fossil fuels is totally contradictory to the necessary energy transition to renewable energy and low carbon economic system.

Most of the CETA provisions, which have an impact on climate and environment, are incorporated in various other chapters of the CETA text. CETA is a leaving agreement so many of what we could fear is not explicitly mentioned in the treaty itself but exist through different mechanisms. The existence of a regulatory cooperation mechanism, which objective is to harmonize legislations from both side of the Atlantic, could prevent de facto new legislations on many climate and environmental issues. Indeed any piece of legislation found incompatible with the CETA text by the regulatory cooperation body will have to be modified accordingly or simply abandoned. If, despite the regulatory cooperation body recommendations, a party to the Treaty would go ahead with its legislation found incompatible, then private investors from the other party to the treaty would have the possibility to sue them. This mechanism is included in the investment chapter of the Treaty and has acted a powerful tool to pressure government and local authorities to withdraw their legislation.

This chapter is thus characterized by the absence of protective clauses, specific goals or instruments assigned to the fight against climate change. Moreover, its philosophy reflects a sectorial vision of the environment that does not take into account the economic and financial system which have fed and exacerbated the climate and energy crisis. Above all, CETA is an obstacle to the transition to a clean, fair and democratic energy system.

 

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