TTIP and Climate Change: How Real Are Race to the Bottom Concerns?

In the summer of 2013, the European Union (EU) and the United States (US) launched negotiations for the conclusion of a bilateral free trade agreement, the Transatlantic Trade and Investment Partnership (TTIP). There has been no information so far as to whether the parties to TTIP are discussing the inclusion in the agreement of provisions specifically related to climate change. It is also uncertain if TTIP will finally be concluded, given the strong opposition in some EU Member States and the election of Donald Trump as President of the US. The concerns underlying the discussion of TTIP however are part of a broader discourse taking place in many other fora for trade negotiations around the world. The considerations hereafter may be of relevance well beyond the case of TTIP. The article examines the impact that TTIP could have on existing and future climate policies and laws from the inclusion of provisions on investment protection including investor-to-State dispute settlement (ISDS), the reduction of non-tariff barriers and the introduction of rules for trade in energy and raw materials. It argues that from an environmental perspective, ISDS should not necessarily be seen as a regime that goes against the defence of the environment or prevention of climate change. Although it might be used to challenge policies of a home State that increase levels of environmental protection, it can also be used to contest changes in home State’s environmental policies that would reduce the protection of the environment. Benefits for the climate could further be seized from harmonisation of carbon laws at the level of the strictest regulations of two parties and provisions that promote trade in low-carbon technologies and renewables