Harold Meyerson writes today about something called the Investor-State Dispute Settlement provision, a feature of most trade agreements since the Reagan administration. Basically, it means that if, say, a Mexican company objects to a regulation in Texas, it can sue Texas. But not in a US court. Instead the case is heard in a special extra-governmental tribunal:
The mockery that the ISDS procedure can make of a nation’s laws can be illustrated by a series of cases. In Germany in 2009, the Swedish energy company Vattenfall, seeking to build a coal-fired power plant near Hamburg, used ISDS to sue the government for conditioning its approval of the plant on Vattenfall taking measures to protect the Elbe River from its waste products. To avoid paying penalties to the company under ISDS (the company had asked for $1.9 billion in damages), the state eventually lifted its conditions.
Three years later, Vattenfall sued Germany for its post-Fukushima decision to phase out nuclear power plants; the case is advancing through the ISDS process. German companies that owned nuclear power plants had no such recourse.
After Australia passed a law requiring tobacco products to be sold in packaging featuring prominent health warnings, a Philip Morris subsidiary sued the government in Australian court and lost. It also sued the government through the ISDS, where the case is still pending. The health ministry in next-door New Zealand cited the prospect of a Philip Morris victory in ISDS as the reason it was holding up such warnings on cigarette packages in its own country.
Meyerson wants to know why Democratic presidents continue to support ISDS, but I’m more interested in why the tea party crowd hasn’t yelled itself hoarse over this. After all, this is a tailor-made example of giving up US sovereignty to an unaccountable international organization, something that normally prompts them to start waving around pocket copies of the Constitution and going on Hannity to complain that President Obama is trying to sabotage America. Agenda 21, anyone?
So why not this time? I guess it’s because ISDS is normally used by big corporations to challenge environmental laws. So which do you hate more? The EPA or an unaccountable international organization? Decisions, decisions….