Citizen Health & Safety
OMB, U.S. Chamber of Commerce Hold Forum on Trade Agreements and Regulations
by Sam Abbott, 4/23/2013
On April 10, the Office of Management and Budget (OMB) co-hosted a two-day stakeholder session with the U.S. Chamber of Commerce as part of its annual High Level Regulatory Cooperation Forum. The forum provides an opportunity for members of the business community to tell American and European officials how they would like the standards and safeguards that regulate their activities to be "harmonized." For the business community, "harmonization" is generally viewed as an opportunity to move to the lowest standards, or in the language of free trade, to remove or reduce "trade irritants." The exchange at the forum was between business and government; few public interest representatives were allowed to participate.
A Public Meeting Behind Closed Doors
This year's forum generated considerably more attention and business involvement than past sessions because of the forthcoming negotiations between the United States and European Union on the Transatlantic Trade and Investment Partnership (also known as the Trans-Atlantic Free Trade Agreement, or TAFTA). The agreement will, according to the U.S. Trade Representative, focus on addressing "regulatory issues and non-tariff trade barriers." Because formal negotiations on TAFTA will begin shortly, this year's forum provided business groups a setting in which to highlight regulations they would like weakened or eliminated during the trade negotiations.
A lack of transparency has been a consistent problem with trade negotiations, and this meeting exemplified OMB's reluctance to open up proceedings to input from the public interest community.
People who RSVP'd to the event were contacted several times via e-mail with warnings that the Chamber could not handle all those who wanted to attend and urged those in Washington, DC, to monitor it via webcast. A recording of the webcast has not been made available for those who were not watching live, and the second day's events were not webcast at all. The Chamber only notified stakeholders that the second day would not be webcast via e-mail after the second day had ended. It is a violation of the administration's transparency policies for OMB to host a public event with the Chamber, encourage individuals to stay away, and then fail to provide access to view the stakeholder presentations.
Another troubling aspect of the difficult-to-attend forum is that once it began, a representative from the Chamber notified the crowd that all comments made during that day's session, a public and government-sponsored event, would be off the record. More than a week later, the Chamber released copies of less than half of the presentations made at the forum.
Some Stakeholders Are More Equal than Others
Last week's forum highlighted an ongoing problem with trade-related forums – business has greater access to negotiators and information about negotiating positions than do other members of the public. The Stakeholder Session opened with government representatives reminding the audience that the voice of industry would be heard and represented in the free-trade negotiations. Agency representatives made it clear that they were in the mood to listen, and the agenda for the day made it clear they wanted to hear from industry.
Public interest groups presented for just 40 minutes and answered questions for another 20 minutes during the entire two-day session. Business representatives, on the other hand, presented and answered questions for nine hours.
Robert Weissman, President of Public Citizen, spoke on behalf of the Transatlantic Consumer Dialogue and urged OMB to sever its partnership with the Chamber to avoid the appearance of bias in conducting the TAFTA negotiations. Weissman also urged the release of draft TAFTA texts to the public in real time during the negotiations. Currently, only government negotiators and business stakeholders can see negotiated texts.
Ben Beachy warned of the threat posed by Investor-State Dispute Resolution mechanisms, an obscure, extra-judicial system that would allow private corporations to "sue" governments over domestic regulatory policy. These "suits" would be not be heard by a court but rather by a private tribunal made up of industry's own lawyers. This means that there would be significant conflicts of interest on the panels hearing the disputes, for which there would be no protection. Governments, working under budget and resource limits, would be subject to large damage awards that they would have to pay to private corporations.
Business Themes Stress Slower Rulemaking and Weaker Standards
There were some common themes in the business presentations at the forum. Business advocated for increased reliance on cost-benefit analysis, so-called "sound science" in setting regulations, and increased involvement in the regulatory process. Business already uses these analyses to slow the rulemaking process and to weaken standards and safeguards in the United States. Their inclusion in TAFTA, however, would force Europe to use these problematic tools in an effort to weaken their public health protections.
Many businesses also voiced support for a mutual certification process in which traded goods are only tested once before they are exported. On its face, mutual certification sounds reasonable, but it masks the important question of what certification standards will apply. Public interest groups are concerned that a move toward mutual certification will prevent nations from implementing stronger product safety standards and will lead to weakening existing standards. TAFTA negotiations could result in product safety standards being "harmonized" down behind closed doors.
However, on some issues, industry trade associations opposed "harmonization." For example, representatives from the American Chemistry Council and the European Chemical Industry Council argued against harmonizing the U.S. Toxic Substances Control Act (TSCA) and the E.U. framework on Registration, Evaluation, and Authorization of Chemicals (REACH). In the case of chemical regulation, "harmonization" might require increasing the regulation of chemicals in the U.S. to higher European standards. Industry groups on both sides of the Atlantic argued for "harmonizing" the evaluation of chemical risks so that no one country can label a chemical as causing cancer unless all countries do so. In effect, this would allow the country with the lowest standards to veto the scientific evaluations of other countries.
The upcoming TAFTA negotiations pose a serious challenge to the way sovereign nations create and implement standards and safeguards. Regulatory cooperation between the United States and the European Union will play a significant role in the negotiations, and the April 10 forum provided an important opportunity for the public to speak directly to agency leaders. Unfortunately, public interest advocates were not allowed to fully participate in the day's events, and the substance of the forum was so tilted toward business interests that it provided the directors of regulatory agencies with an unbalanced view of what is at stake during the TAFTA negotiations.
The standards and safeguards that protect the American and European people are too important to negotiate away behind closed doors. A broad-based campaign to educate state and local governments, small businesses, public health, environmental, and democracy advocates about the potential threats to our regulatory system that TAFTA represents will be needed to stop this juggernaut.