President Donald Trump's new trade deal with Canada and Mexico makes no mention of climate change, but it's likely to have lasting implications for North America's energy future.
In many ways, the deal extends features of the North American Free Trade Agreement (NAFTA) that environmentalists say promote fossil fuel development and polluting practices. But it also contains new provisions that could make it easier for corporations to challenge climate and environment regulations in the three countries even before they're adopted.
In this way, the new United States-Mexico-Canada Agreement (USMCA) has the potential to enshrine the Trump administration's anti-regulatory agenda into one of the country's most important trade agreements, environmental advocates said.
"Trump's NAFTA deal could have the effect of prolonging his polluting legacy for years after he leaves office," said Ben Beachy, director of the Sierra Club's responsible trade program.
The deal won quick support from the oil and gas industry. In a statement released Monday, a day after the agreement was announced, the American Petroleum Institute's president and chief executive, Mike Sommers, urged Congress to approve the deal.
Climate and environment advocates pointed to several ways the agreement could make it harder for the U.S., Mexico and Canada to reduce the greenhouse gas emissions that are causing climate change.
Outsourcing Pollution to Other Countries
The agreement's text recognizes that "air pollution is a serious threat to public health, ecosystem integrity, and sustainable development." It also makes a nod to climate change in a section on forestry, which recognizes the important ecosystem services that forests play, including carbon storage.
But Beachy and others say the language is weak, and the enforcement mechanisms even weaker.
For example, while the agreement recognizes the problem of air pollution, it contains no specific measures to reduce it. "It's almost insulting that the parties recognize the problem without addressing it," Beachy said.
Gordon Laxer, an emeritus professor of political economy at the University of Alberta and a critic of NAFTA, called the environment chapter "totally useless."
The agreement would continue to allow companies to move polluting practices to jurisdictions with weaker environmental regulations.
When the U.S. tightened limits on lead pollution, some companies moved lead-polluting operations to Mexico rather than comply with the new standards. Similar outsourcing could occur if any of the countries were to adopt a carbon tax or limits on greenhouse gas pollution, Beachy said.
That's already happening to some extent with carbon emissions. As developed nations import more raw materials like steel and cement from China and other countries with lower wages and looser environmental regulations, they have effectively outsourced the emissions. One recent report found that the U.S. is far and away the leading "outsourcer" of climate pollution.
Making It Easier for Polluters to Block New Regulations
The most worrisome new provisions come in a chapter called "good regulatory practices," Beachy said. The section lays out a series of measures countries must follow with their own regulatory procedures.
Under the section, companies would be guaranteed a chance to comment on proposed regulations across borders, and governments would have to publish data to support to the regulations. It also says governments also would have to develop processes to promote consideration of the burdens regulations place on small businesses as well as any "unnecessary restrictions on competition."
Beachy said this would be the first U.S. trade agreement to guarantee companies can use this method to challenge and delay climate or other environmental regulations.
He also said it could help entrench the Trump administration's anti-regulatory agenda even after Trump leaves office. When a new U.S. government starts to restore the health and climate protections that the Trump administration is now erasing, it will be up against onerous rules that will make it hard to make strong, swift changes, he said.
Another provision of NAFTA that consistently drew condemnation from public advocacy groups was a dispute system established for corporations to challenge environmental and other regulations. Under the system, called investor state dispute settlement, companies can sue for damages if they claim a regulation would cost them future profits.
TransCanada, the company behind the Keystone XL pipeline, used this clause to pursue a $15 billion claim against the U.S. government after President Barack Obama rejected the project. The company dropped the suit after Trump approved the pipeline. All told, Canada has paid nearly CAN$220 million to U.S. investors through the system, according to an analysis by the Canadian Center for Policy Alternatives.
While the new deal largely eliminates this system, American companies in several sectors—including oil and gas—will still be able to use the dispute settlement system against the Mexican government. "It's just a shameful handout to oil and gas," Beachy said.
Environmentalists say the threat of claims has deterred officials from adopting stricter regulations. Companies in the power generation, transportation and telecommunications sectors that have contracts with the Mexican government can also continue to use the dispute settlement process.
Blocking Challenges to Natural Gas Exports
The new agreement would continue another NAFTA provision that has long irritated environmentalists: the nearly automatic approval of natural gas exports to Mexico.
Normally, opponents of gas exports can challenge a project by arguing that it doesn't serve the public interest.
Gas exports to Mexico are exempt, however, and Beachy said this clause has hamstrung efforts to generate more electricity from renewable energy sources like wind and solar.
One Change Could Help Canada Cut Emissions
To the north, another export clause environmentalists opposed would be eliminated.
NAFTA had compelled Canada to export a certain amount of oil and gas into the U.S.—the provision was a legacy of a brief attempt by the federal government to exert more control over its oil industry. Canadian critics of the clause have long argued that it undermined the country's sovereignty and promoted development of the Canada's tar sands, which produces oil that is largely destined for the U.S.
Laxer said that while the change will not have any immediate effect, it would free a future Canadian government to more dramatically limit its emissions and oil production.
"It means in the 2020s and 2030s," he said, "the Canadian government could actually reduce the production of tar sands oil for export and fracked gas."
Canadian officials had said early in the trade negotiations that a new agreement to replace NAFTA would have to address climate change, but that largely fell by the wayside in recent weeks. While talks with the U.S. were underway, Canada did add a climate clause to its trade deal with the European Union.