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Hullabaloo


Saturday, January 09, 2016

 

Oh, but poor people...

by Tom Sullivan


"Greedy Humpty Dumpty" (Fleischer, 1936).

So now TransCanada is suing the United States under NAFTA for $15 billion over President Obama's rejection of the Keystone pipeline deal:

In filing the NAFTA claim, TransCanada said it “had every reason to expect its application would be granted” as it had met the same criteria the U.S. State Department used when approving other similar cross-border pipelines.

It's like suing for breach of promise. Except America never promised. Think Progress has this:

In the notice to submit a claim for arbitration, TransCanada notes that two previous pipelines, carrying oil from the same tar sands region across the U.S. border, were both approved. This, TransCanada claims, suggests that the denial was political in nature, which is prohibited under NAFTA.

So, government of, by, and for the people that interferes with corporate profits is prohibited? Sovereignty means you're sovereign (to borrow from George W. Bush), except when it gets in the way of bidness. This raises the question, Who gets to sue when a war (politics by other means) ravages a local economy, but international arms merchants make out like bandits?

Lori Wallach of Public Citizen spoke about the suit with Democracy Now's Amy Goodman:

LORI WALLACH: Well, what it boils down to is a foreign corporation deciding that the U.S. taxpayers ought to give them $15 billion because they don’t like the outcome of our government decision that this pipeline was bad for our country and bad for the environment. And where they’re going to get this money extracted from us is an extrajudicial—not U.S. court, not U.S. law—forum: the investor-state tribunal allowed under NAFTA. And the U.S. has faced about a dozen of these attacks underNAFTA, all from Canada, but we have 50 agreements that have this outrageous system. Hardly any of those countries with those agreements actually have investors here. So, up to now, we haven’t lost one of these cases; however, the Trans-Pacific Partnership, overnight, if implemented, would double our liability. Right now, 50 agreements, about 9,000 companies are cross-registered from one of those countries that we have the agreement with operating in the U.S. to attack our laws in these tribunals. Overnight, the TPP would give 9,500 more companies—big multinationals from Japan, in banking, in manufacturing, mining firms from Australia—the right to do this. So this case, hopefully, is like the canary in the coal mine letting us know what we’d be getting into.

AMY GOODMAN: In May, President Obama delivered a speech at Nike in Beaverton, Oregon, where he defended the pending Trans-Pacific Partnership trade deal.

PRESIDENT BARACK OBAMA: Critics warn that parts of this deal would undermine American regulation, food safety, worker safety, even financial regulations. This—they’re making this stuff up. This is just not true. No trade agreement is going to force us to change our laws.
AMY GOODMAN: President Obama also said the TPP improves on NAFTA.

PRESIDENT BARACK OBAMA: When you ask folks, specifically, "What do you oppose about this trade deal?" they just say, "NAFTA."NAFTA was passed 20 years ago. That was a different agreement. And in fact, this agreement fixes some of what was wrong withNAFTA by making labor and environmental provisions actually enforceable. I was just getting out of law school when NAFTA got passed.

AMYGOODMAN: Lori Wallach, your response to President Obama? He was speaking at Nike headquarters.

LORI WALLACH: Well, first of all, the making stuff up comment is going to have to get shelved, because not only is this attack by TransCanada on our domestic, democratic government decision not to have a pipeline the exact kind of case he said couldn’t possibly happen—well, it just did, $15 billion being demanded by a—from a tribunal of three private sector attorneys, because this investor-state system, it’s not judges. There are no conflict-of-interest or impartiality rules. These are folks who rotate between one day suing a government for a corporation and the next day being the judge. And they all hear cases amongst themselves. They call themselves "the club." And there’s no outside appeal, and there’s no limit on how much money they can order a government to pay. And if a government doesn’t pay, by the way, the company has the right to seize government assets—seize government assets—to extract our tax dollars. So, number one, this case is exactly the kind of case President Obama said folks were making things up when they were worried about this. Well, now it’s happened.

But this follows one month after the U.S. Congress, because the WTO threatened billions in trade sanctions, gutted another consumer law. Hate to tell folks, if they didn’t notice in the grocery store, but those customer meat—the country-of-origin labels we all use to figure out where our meat comes from, the WTO said we couldn’t have those anymore. And so, Congress, at the face of these sanctions, said, "Oh, better get rid of that law." So, two examples, live and real, compared to what President Obama promised.

But more broadly about the TPP, here’s the thing folks need to know. The actual language that TransCanada is using in this case, because they filed a brief, is the same language that, word for word, is replicated in TPP. So there are bells and whistles that have been changed between the investor-state language in NAFTA andTPP. In many ways, actually, TPP expands investor-state. It allows more kinds of challenges. Hell, it even allows challenges of government contracts for foreign companies’ concessions on natural resources in foreign land. That was not inNAFTA. However, the actual claims being made by TransCanada, that language is word for word in the TPP. And you can see the analysis of that on our website,TradeWatch.org. You can look at the text now and use our analysis as basically a guided tour.

AMYGOODMAN: Lori, can you explain why they’re asking $15 billion?

LORI WALLACH:: So, this is a question a lot of folks asked me yesterday: "Well, wait a minute, this is supposed to"—everyone who’s read the newspaper. "This is a $3 billion pipeline. How the heck can they be asking for $15 billion from us taxpayers?" And the answer is, under the outrageous investor-state system, not only can a foreign corporation get all these special rights—go around our courts, go around our laws and demand compensation—but they don’t just get money for what they’ve spent on a project, they get to get compensated for expected future profits. Yep, they are calculating—and the brief goes through this—what they think they would have made in the future for the lifetime of the pipeline had it been allowed. And that’s what we taxpayers are supposed to give them, because we had a democratic decision of our government that their commercial project wasn’t in the national interest. That’s the $15 billion.

You've got to hand it to these "producers." The very idea that they get paid for not producing. That's a real heads, we win, tails, you lose arrangement, ain't it? (A rigged system, if you want to get all Elizabeth Warren about it.) Isn't that just the kind of "takers" behavior conservatives cry loudly about over feeding poor people? And lessee, $15 billion is almost a quarter of what we spent last year on helping (mostly) the working poor who don't have enough to eat. As I asked last year,

If corporations can sue over loss of "expected future profits" they didn't earn, can people get food over loss of "expected future work"?

But then, NAFTA, TPP, TiSA, etc. are not crafted to serve people who breathe, eat, vote, and pay taxes, only corporate people that consume.