by Shelley Pineo-Jensen, Ph.D.
What is preemption?
The quick answer is that preemption is the power of a higher level of governmental body to override the ability of a lower level of government to make laws. According to the on-line Merriam-Webster Dictionary, preemption is “a doctrine in law according to which federal law supersedes state law when federal law is in conflict with a state law [or] a policy of launching a preemptive attack in order to prevent a suspected imminent attack.” The concept of “states’ rights” has been used as a defense against preemption by the federal government over a state’s laws.
Leaked text from the Trans-Pacific Partnership (TPP) revealed the inclusion of an Investor-State Dispute Settlement (ISDS) that would allow foreign companies to challenge U.S. laws at an international arbitration board with the power to level millions and even billions of dollars in damages against cities, counties, states, or the federal government. The judges on this court of no appeals would be stocked with highly paid corporate lawyers; corporations can sue for loss of “expected future profits” that a law might impede. ISDS arbitration has already been used by corporations to halt raising the minimum wage in Egypt, the reduction of nuclear power in Germany, and the implementation of tobacco regulations in Uruguay.
For a more comprehensive analysis of preemption, click on this LINK to check out the on-line Legal Dictionary article on the topic.
Why should you care about preemption?
At the state level, transnational corporations including Monsanto are using preemption to circumvent local control of GMO agriculture. Nestle has set its sights on control of water supplies so they can bottle it in single-use plastic containers and ship it around the world; preemption is a tool Nestle can use to bypass the needs and desires of local communities to have access to local water supplies. State level preemption is facilitated by the so-called DARK Act, which makes it illegal for a state to legislate GMO labeling of food or restrict GMO crop production.
At the national level, preemption is currently imposed by The World Trade Organization (WTO). The TPP would further empower international preemption of national laws.
How is preemption being used?
Clean Air Act – In 1993, the United States rolled back U.S. Clean Air Act regulations on gasoline cleanliness standards after they were successfully challenged by Venezuela and Mexico at the international General Agreement on Tariffs and Trade (GATT), the predecessor to the WTO.
Fuel Efficiency – in 1994, The U.S. altered auto fuel efficiency Corporate Average Fuel Economy (CAFE) standards that were successfully challenged by the European Union at GATT.
Pharmaceutical Patents – With the 1995 Fast Tracked legislation that implemented the WTO came the implementation of a patent extension sought by pharmaceutical interests that consumer groups had successfully defeated for decades. The Uruguay Round Agreements Act amended the U.S. patent law to provide a 20-year monopoly – replacing the 17-year term in U.S. law and increasing medicine prices by billions of dollars.
Bechtel’s Privatization of Water – In 1997, the World Bank forced Bolivia to privatize its water development in La Paz and Cochabamba. Bechtel won the contract in a secret process where they were the only bidder. Within a few weeks, Bechtel’s company raised water rates by an average of more than 50%, sparking a citywide rebellion that has come to be known as the Cochabamba Water Revolt. In April 2000, following a declaration of martial law by the President, the army killing of a seventeen-year-old boy, and more than a hundred wounded, the citizens of Cochabamba refused to back down and Bechtel was forced to leave Bolivia. Bechtel then filed a $50 million dollar lawsuit with the World Bank but after years of protests, they dropped their lawsuit.
Sea Turtles – In 1998, the WTO forced modifications to the U.S. Endangered Species Act rules relating to shrimping techniques that kill sea turtles after a successful challenge by Malaysia and other nations.
Nestlé’s Privatization of Water – Around the world, Nestlé has been working to privatize and control public water resources. In 2005, Nestlé’s Chairman of the Board, Peter Brabeck, famously explained his views “The one opinion, which I think is extreme, is represented by the NGOs, who bang on about declaring water a public right. That means as a human being you should have a right to water. That’s an extreme solution.”
The remark was widely criticized and Brabeck has backtracked, but his company, Nestlé, has not. Around the world, Nestlé is forcing communities into giving up control of their water. In California they continued to pull water out of the ground to produce single-use plastic containers of water while agriculture and citizens were on serious water rationing. They managed to do this legally because their pumps here on reservation land. In Oregon, Nestle has been trying to build a 250,000 facility in Cascade Locks to extract 118 million gallons of water a year from Oxbow Springs to sell at a profit in single-use plastic containers. State environmentalists has fought the project since 2008; in order to get their hands on the water, Nestlé will need to convince the Oregon Department of Fish and Wildlife to trade water rights from the Herman Creek aquifer. All this to sell something that people should not be using in the first place – single-use disposable bottles of water that is no better than tap water anywhere in the country. (For more information about where those empty plastic bottles end up Google “garbage gyre.”)
Dolphin-safe Tuna – In May 2012, the WTO ruled against voluntary “dolphin-safe” tuna labels. These labels had allowed consumers to choose to buy tuna caught without dolphin-killing fishing practices and this helped to dramatically reduce dolphin deaths.
National Monsanto Protection Act – In Spring of 2013, the so-called “Monsanto Protection Act” was slipped into the spending bill that President Obama signed. Many legislators had no idea this language was in the must-pass budget bill, as there were no hearings on the topic, but President Obama was well aware of it by the time he signed the bill into law – Food Democracy Now gathered over 200,000 signatures objecting to it and protestors demonstrated in front of the White House for days. The bill, written by Monsanto in collusion with Senator Roy Blunt (Republican-Missouri), effectively barred “federal courts from being able to halt the sale or planting of GMO or GE crops and seeds, no matter what health consequences from the consumption of these products may come to light in the future.”
State Monsanto Protection Act – In October of 2013, Oregon passed a Monsanto Protection Act that was slipped into a completely unrelated emergency-session bill-package relating to educational funding. The bill was thought to have been written by GMO, pesticide and aerial spray industries including Monsanto, DuPont and Syngenta, and preempted the GMO banning law that was to be voted on in Jackson County.
Mexican Trucking in the U.S. – In January 2015, after losing a North American Free Trade Agreement (NAFTA) challenge and being threatened with sanctions on more than two billion in U.S. trade, the Obama administration announced it would allow long haul trucks from Mexico on all U.S. highways. Consumer groups warned that the trucks pose significant safety threats, while environmental groups warned that they do not meet U.S. emissions standards.
Meat Labeling – In May of 2015, the WTO Appellate Body (a transnational court) ruled that the U.S. must abandon country-of-origin-labeling (COOL) labeling of pork and beef sold in the U.S. or face trade sanctions. NAFTA put the trade agreement in place; the WTO adjudicates complaints of violations of the U.S., Canada, and Mexico trade agreement.
90% of Americans support country-of-origin-labeling; consumers want to know where the meat is born, raised, and slaughtered. The Appellate Body decided that the U.S. COOL policy constitutes a technical barrier to trade, creating less favorable treatment to cattle and hog imports from Canada and Mexico. The ruling is not subject to further appeal.
The Republican chairman of the House of Representatives Committee on Agriculture, Michael Conaway, called for swift action. “It is more important now than ever to act quickly to avoid a protracted trade war with our two largest trade partners,” he said.
DARK Act – In July of 2015, the U.S. House of Representatives passed the Safe and Accurate Food Labelling Act of 2015. In an unusual move, a procedural amendment following the passage of the bill was offered by Rep. Jared Polis, D-Colo., to rename the bill the Deny Americans the Right to Know Act, or the DARK Act. It was voted down.
The DARK Act would vacate state GMO labeling, making labeling voluntary only. It would preempt Vermont’s labeling law, set to go into effect in 2016, as well as the GMO labeling laws in Connecticut and Maine that are only enacted if other states join the labeling movement. The bill is being promoted by the lobbying group Coalition for Safe Affordable Food; Monsanto is one well-heeled member. Around 90% of Americans favor mandatory GMO labels on food. The Senate will vote on it soon.
Where Does Bernie Sanders Stand?
Bernie Sanders helped lead the fight against NAFTA. He has called the TPP “a disastrous trade agreement designed to protect the interests of the largest multi-national corporations at the expense of workers, consumers, the environment and the foundations of American democracy,”
In 2013, Bernie Sanders introduced legislation that would require food labeling for products with genetically engineered ingredients. “People have a right to know what is in the food they’re eating,” said Sanders. “You have deregulated the GMO industry from court oversight, which is really not what America is about,” said Sanders. The legislation did not pass.
Bernie Sanders has a consistent voting record in support of preserving the environment and is rated 90% by the League of Conservation Voters as well as earning a 100% rating by the Humane Society Human Scorecard which tracks pro-animal welfare voting records.
In March 2015, he voted against a budget amendment that would have prohibited placing limits on exercising water rights as a condition for using or developing public lands. Notably, this law makes drought crises, such as those in California, much worse by prohibiting setting limits on the usage of water. A couple months later, Bernie spoke out against drilling in the Chukchi Sea, which the Department of Interior estimated could have a 75 percent chance of a large oil spill.
Most importantly, Bernie Sanders is not a tool of the transnational corporations that corrupt politicians in a mindless, soulless, heartless pursuit of profit. Monsanto is not donating to Bernie Sanders. Monsanto IS supporting Hillary Clinton; one of Clinton’s chief fundraising “bundlers” is Jerry Crawford, a lobbyist for Monsanto. Monsanto is Crawford’s only lobbying client dating back to at least 2009.
What Can You Do?
- Get involved.
- Start by going to the Bernie Sanders 2016 webpage and learn more about him.
- Then click the “Volunteer” button and join the “Bernie Believers” and “Feel the Bern.”
The New York Times reported on the recently resolved TPP agreement: Trans-Pacific Partnership Is Reached, but Faces Scrutiny in Congress
Learn more about the Community Rights Movement: Corporate “Rights” and State Preemption
Community Environmental Legal Defense Fund (CELDF) offers Democracy Schools to become more active in Community Rights in your area: Democracy School
Bloomberg Politics – Lobby Lobbyists for Monsanto, ExxonMobil Raise Money for Hillary Clinton; Registered lobbyists brought in more than $2 million in fundraising for the Clinton campaign, recent filings show.
CNN “The Lead” by Jake Tapper – Millions protest genetically modified food, Monsanto, organizers say
Democracy Center – Bechtel vs Bolivia: Details of the Case and the Campaign
Farm Futures – House approves voluntary GMO labeling bill, H.R. 1599 http://farmfutures.com/story-house-approves-voluntary-gmo-labeling-bill-hr-1599-0-130222
Feel the Bern – Bernie Sanders on Environmental Protection
International Business Times – Furor Growing against Obama Over ‘Monsanto Protection Act’
International Business Times – ‘Monsanto Protection Act’: 5 Terrifying Things To Know About The HR 933 Provision
On The Issues – Bernie Sanders on Environment
The Hill – WTO shoots down US meat-labeling rule
The Story of Stuff Project – Nestlé’s water privatization push http://action.storyofstuff.org/sign/nestle_water_privatization_push/
The Washington Post “Opinion” – The Trans-Pacific Partnership clause everyone should oppose by Senator Elizabeth Warren