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April 26, 1999
This White Paper outlines a new approach to trade negotiations that would restore American leadership on trade while helping to build consensus for a trade policy that supports, rather than undermines, environmental protection. Recent trade disputes involving sea turtle protection, gasoline additives, clean air standards, and hormone-treated beef dramatize how much trade rules must change to reflect environmental principles. With plans underway for the World Trade Organization’s Second Ministerial, this is a good time to consider new approaches to Trade Negotiating Authority that would address unresolved trade and environment issues. Indeed, President Clinton has helped to set the stage for environmental reform of international trade policy. At the 50th Anniversary of the world trading system last May in Geneva, the President stated: [I]nternational trade rules must permit sovereign nations to exercise their rights to set protective standards for health and safety, the environment, and biodiversity. Nations have a right to pursue those protections, even when they are stronger than international norms. To achieve these goals requires a broad, new domestic consensus on trade. As the President stated in his State of the Union Address: I think trade has divided us and divided Americans outside this chamber for too long. Somehow, we have to find a common ground on which business and workers and environmentalists and farmers and government can stand together. We offer the following proposal on new Trade Negotiating Authority in answer to the President’s call to seek and to find common ground on which we all can stand. Restoring the Constitutional Balance on Trade To build the consensus on trade that the President seeks requires that trade negotiations become more inclusive, democratic, and accountable. The new form of Trade Negotiating Authority that we propose here would bring more voices to the table by increasing Congress’ oversight and involvement in trade talks. At the same time, our approach would preserve the President’s leadership in negotiations and provide continued assurances to our trading partners that finished trade agreements will not be dissected by "special interests." We believe the approach described here restores the constitutional balance on trade envisaged by the framers when they granted Congress exclusive authority to "regulate Commerce with foreign nations" and the President predominance in foreign affairs. The form of trade negotiating authority is vital to the content of trade agreements. While it is true that the old fast track procedures provided for frequent consultations with Congress and could have been amended at any time, in practice the cumulative effect of fast track’s multiple, self-imposed limitations sharply constrained the range of views expressed during trade negotiations. Any new grant of negotiating authority must bring more voices to the table while holding our negotiators accountable for agreements that promote, rather than undermine, environmental protection and labor rights. The concepts articulated here would go far to ensure an environmentally responsible trade policy. Authority for Trade Negotiations 1. Approval of Trade Negotiating Authority. Through simple majority votes in both Houses, Congress should approve general trade negotiating authority for a specified time period to negotiate tariff and non-tariff issues. The trade negotiating authority should set general trade negotiating objectives, including for environmental, public health, labor, human rights, and other matters. Such objectives should be established on a par with economic objectives and be prescribed for all future trade negotiations. They should also guide negotiators on revisions to existing trade agreements. On-going trade negotiations, including those provided for in the Uruguay Round agreements, should not be grandfathered, but should require a new and specific grant of negotiating authority. 2. General Environmental Negotiating Objectives. General environmental and health trade negotiating objectives covering all trade negotiations should be established to guide our negotiators. They would provide benchmarks for Congress to measure progress in amending existing trade rules and in negotiating new trade rules that incorporate environmental and health protection principles. Among other possible environmental negotiating objectives, Congress should mandate that trade and investment agreements: Sustainability
Product and Process Standards
Leveling the Playing Field
Equivalence, Harmonization, Mutual Recognition
Public Participation
New Congressional Trade Institutions 3. Congress should establish a new Special Standing Committee on International Trade (SSC). The SSC should consist of the House and Senate majority and minority leaders plus the majority and ranking members of each committee whose jurisdiction is affected by trade agreements. The SSC should be empowered to hold hearings, and conduct other functions of a regular congressional committee necessary to fulfill its tasks. 4. Congress should also establish a Congressional Trade Office (CTO), a new legislative-executive agency modeled on the Commission on Security and Cooperation in Europe, to assist the SSC in its deliberations on trade issues.0 To ensure balance and objectivity in its staffing and work products, the CTO’s Board of Directors should consist of members of the SSC plus representatives of federal agencies, evenly divided between agencies with an interest in promoting international commerce and those with an interest in promoting environmental protection, consumer health and safety, and labor rights. Review of Existing Trade Agreements 5. Within five years, the President should submit a report to the SSC on whether Congress’ general negotiating objectives have been fulfilled for current trade and investment agreements. The CTO should conduct public hearings on this report and make recommendations to the SSC on further action to ensure that the general negotiating objectives are applied retroactively. 6. Notification. The President should provide Congress with 180 calendar days notice of intent to start a specific trade negotiation, offering proposed negotiating objectives. 7. Specific Negotiating Authority. Upon such notification, Congress should review and amend the President’s proposed specific trade negotiating objectives, with special attention to ensuring their consistency with Congress’ general trade negotiating objectives. Specific negotiating objectives should be developed jointly by the House and Senate committees with jurisdiction over the subject matter. For instance, the House and Senate Agriculture and Commerce Committees should develop negotiating objectives for food safety rules in collaboration with the Senate Finance and House Ways and Means Committee. To assist in framing negotiating objectives, the committees of jurisdiction would conduct public hearings. The CTO would provide recommendations on specific negotiating objectives after public notice and comment procedures modeled on those of the APA. 8. Scoping of Potential Environmental, Health, and Legal Impacts. As the first step toward completing a full-scale Environmental Impact Statement (EIS) of the proposed trade agreement consistent with the National Environmental Policy Act (NEPA), the CTO should submit to Congress an Environmental Impact Assessment (EIA) setting forth the potential environmental, health, and legal impacts of the proposed trade agreement. The EIA should be prepared in consultation with interested members of the public and interested federal agencies, including the United States Trade Representative (USTR), the Environmental Protection Agency (EPA), the Council on Environmental Quality and others. Topics addressed in the EIA should include potential environmental impacts at home and abroad, the state of environmental law and enforcement in potential trading partner countries, and the likely impact of new trade and investment rules on environmental and public health laws. The document should also propose policy alternatives. House and the Senate Committees of jurisdiction should hold hearings on and consider the EIA in setting specific trade negotiating objectives. The USTR should be required to take anticipated environmental impacts into account in negotiations. 9. Authorization to Negotiate. The SSC should authorize a specific trade negotiation by a simple majority vote. In authorizing the negotiation, it should set forth specific negotiating objectives and provide a report stating how these objectives should fulfill Congress’ general trade negotiating objectives. 10. The USTR. In conducting trade negotiations, the USTR should be subject to the Federal Advisory Committee Act, the Administrative Procedures Act, and the National Environmental Policy Act (NEPA). 11. Public Advisory Committees. Public advisory committees to the USTR should continue to provide advice on US negotiating positions. However, all public advisory committees should be subject to FACA so that the committees are balanced among affected interests and viewpoints. Where environmental or health interests are at stake, advisory committees should include environmental and consumer representatives. 12. Congressional Participation. Staff of the CTO should represent congress in all trade negotiations. 13. Public Disclosure, Notice, and Comment. Draft trade agreements should be publicly disclosed when they are near completion. The CTO should seek public comment on the draft texts consistent with the APA and make recommendations to the USTR on US negotiating positions. 14. Congressional Review. After US negotiators have produced a finished draft text of the trade agreement, but before the President has signed the agreement, the President should submit the agreement to Congress, triggering a formal certification and impact review. 15. Draft Environmental and Legal Impact Statement. The CTO should prepare a draft Environmental and Legal Impact Statement (EIS) in consultation with the public and interested federal agencies. The Draft EIS should analyze environmental, health, and legal impacts of the proposed trade agreement on a sector by sector basis, the cumulative impacts of the proposed agreement, potential impacts both at home and abroad, and the state of environmental law and enforcement in trading partner countries. The Draft EIS should seek to determine whether the environment is better off with or without the agreement. It should also consider alternatives, including a no action alternative. The Draft EIS should be subject to judicial review consistent with NEPA. Finally, the Draft EIS should state whether Congress’ general and specific environmental negotiating objectives had been fulfilled. As part of their general review of the agreement, congressional committees of jurisdiction should hold hearings on the Draft EIS to determine whether the agreement met Congress’ general and specific negotiating objectives and to frame questions to be answered in a final EIS. The CTO should also hold hearings and accept written submissions with a view to uncovering new data for and responding to additional questions in the final EIS. 16. First Congressional Vote. Each committee of jurisdiction should vote on whether the agreement meets Congress’ general and specific environmental negotiating objectives. In a multi-sectoral trade negotiation, Congress should hold certification votes on a sector by sector basis. If each committee of jurisdiction votes that the agreement meets Congress’ general and specific negotiating objectives, the SSC should prepare a joint resolution for consideration by the full House and Senate. If any committee of jurisdiction votes that the agreement did not meet Congress’ objectives, a two-thirds majority of the SSC should be required to prepare the bill. The joint resolution would state, "The Congress of the United States certifies that [NAME OF AGREEMENT] has fulfilled Congress’ general and specific negotiating objectives and concurs in the President’s intent to conclude this agreement." A. If Approved. If Congress certifies the agreement by majority vote in both Houses, the President may sign the agreement, indicating a preliminary intent to seek ratification. Under the terms of the proposed trade negotiating authority, a congressionally certified trade agreement would be accorded no-amendments treatment, as described below, if it is submitted to Congress with implementing legislation. B. If Denied. If certification is denied, the President would have two options. Option 1: the USTR could continue negotiations with a view to addressing congressional concerns and obtaining congressional certification in the future. Once negotiations were deemed completed, the President could once more submit the agreement to Congress for a second certification review. This process could repeat itself until certification was obtained. Option 2: The President could submit a non-certified agreement to Congress under normal legislative procedures. 17. No Amendments Vote. By submitting a signed trade agreement to Congress that has already been certified by joint resolution, the President would trigger expedited approval procedures. On the President’s request, implementing legislation should be prepared by the committees of jurisdiction. Under terms of the new Trade Negotiating Authority, this legislation would contain a one-sentence statement approving US entry into the agreement. Amendments to or reservations from the agreement itself would not be allowed. 18. Final EIS. To assist the committees of jurisdiction in their deliberations, the CTO would submit a final EIS to Congress when the trade agreement is submitted. The EIS would identify potential environmental and legal impacts of the trade agreement, with a view to establishing that the agreement improved the environment. The EIS should provide a detailed description of the domestic and international laws, regulations, and standards that could be affected by the agreement. 19. If the President signs a trade agreement that has not been certified by joint resolution of the Congress, he or she can seek approval of the agreement under normal congressional rules. Trade Agreement Implementation 20. Harmonization, Equivalence, and Mutual Recognition. In the implementing bill, Congress should prescribe a number of procedural and substantive guarantees for harmonization proceedings, equivalence determinations, and Mutual Recognition Agreements. First, all substantive requirements of U.S. laws and regulations should have to be met or exceeded and environmental and public health protections never reduced. Second, the USTR and other US agencies would be subject to APA requirements for open meetings, rights of public access to documents, and public notice and comment procedures, on the record decision-making, and peer or outside review. 21. Verification. The CTO should provide a report to congress every two years on the environmental impacts, at home and abroad, of all US trade agreements. The new form of trade negotiating authority proposed here retains many of the benefits of the old fast-track concept. It would:
In addition, these recommendations would improve on the fast-track concept, helping to restore a domestic consensus on international trade. They would:
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