Review of the NAFTA environmental side agreement: does it meet expectations?

Mary E. Kelly

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Resumen

Este artículo compara las posiciones originales que tomaron los gobiernos mexicano y estadounidense y las organizaciones ambientalistas con respecto a los acuerdos suplementarios al TLC, con el texto final de las negociaciones. El análisis se enfoca sobre trece puntos para demostrar dónde el acuerdo final se asemeja o diverge de las posturas originales. Los resultados sugieren que el proceso de negociación fue fuertemente influido por consideraciones políticas, y no por un deseo de crear instituciones transnacionales tripartitas.


ABSTRACT

This article conducts a side-by-side analysis of the initial positions of the Mexican and U.S. governments and environmental organizations on the environmental side agreement to NAFTA with the agreement text as it emerged from final negotiations. The analysis focuses on thirteen key issues to demonstrate where and how the final agreement accords or diverges from these positions, with the result seeming to suggest that the negotiation process was strongly influenced by NAFTA's political fortunes rather than a determination to establish a well-structured trinational institution.

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Referencias

These positions were taken from negotiating texts printed in the trade publication Inside U.S. Trade (B.N.A.), Special Report, May 21, 1993. The Canadian government's position is not analyzed, but the author recognizes that Canada's great reluctance to negotiate a strong environmental side agreement was a substantial factor in the outcome.

Letter of May 4, 1993, from World Wildlife Fund, Nature Conservancy, Defenders of Wildlife, National Audubon Society, Environmental Defense Fund, Natural Resources Defense Council and National Wildlife Federation. On September 15, five of these groups endorsed the side agreement, based on the text of the agreement and reported verbal promises from the U.S. Administration. Defenders of Wildlife and Nature Conservancy did not participate in the recent endorsement.

The phrase "Group of Seven" refers to those seven national environmental organizations who co-signed the May 1993 letter. Although these groups were not part of the official side agreement negotiations, their position is termed "negotiating" because it was intended to set out their conditions for endorsing the side agreement and NAFTA.

Article 2(2) of the final text states that "each party shall consider implementing in its law any recommendations developed by the Council under Art. 10(5)(b)" [related to "appropriate limits for specific pollutants, taking into account differences in ecosystems"]. Singling out only one area in which the recommendations of the Council must be considered by the countries for implementation clearly implies, according to standard judicial principles of statutory interpretation, that the countries have no obligation to consider implementing recommendations of the Council in any other of the myriad areas in which it may make recommendations.

Article 45(3).

Much of the debate surrounding the side agreement has focused on whether a NAFTA country should be subject to sanctions -trade-related or otherwise- for failure to enforce its environmental law.

This aspect of proposed Commission operations is more than a mere side-light--it is critical to the effectiveness of any commission, for without strong public access/participation procedures, the countries can agree behind closed doors to keep sensitive issues or data from the public, undermining the very essential "oversight" role originally contemplated for this new trinational body.

Closely related to citizen participation is the ability of citizens to petition the new trinational commission regarding environmental problems that are not being adequately dealt with by the governments. This process is central to the notion that such a commission would actually improve environmental enforcement in North America.

The U.S. has a fairly strong law requiring that manufacturing plants report to the public on their emissions, and access to records held by environmental agencies on specific plants is generally good. In contrast, Mexico has no such "right-to-know" law nor does it have a tradition of access to agency information on specific companies. Many believe that such "right-to-know" provisions are essential to effective public participation and to citizens' rights to protect their health and environment.

Many environmental groups had demanded that the dispute settlement procedure under NAFTA be significantly opened up to public participation, especially when environmental laws or regulations were under challenge. Under the current NAFTA text, dispute resolution is a secret process between government officials and experts.

Letter from U.S. Trade Representative Michael Kantor to John Adams, Natural Resources Defense Council, September 13, 1993, page 5.

Much of the environmental debate over NAFTA has dealt with whether NAFTA could adversely affect the rights of federal, state and local governments to set and enforce stringent environmental, resource conservation and public health standards if those standards were more stringent than "international norms" or if they had the effect, whether intended or not, of discriminating against products or services from other NAFTA countries.

Ch. 9 challenges are now theoretically possible on the grounds that a standard or regulation was not adopted in conformance with a host of cost-benefit and other tests.

Ch. 9 challenges are now theoretically possible on the grounds that a standard or regulation was not adopted in conformance with a host of cost-benefit and other tests.

The current NAFTA text protects the trade-related measures of certain international environmental agreements from challenge on the ground that they are inconsistent with NAFTA obligations. However, only 4 such agreements receive this protection under the current text.

Many had argued that citizen access to administrative and judicial remedies for pollution needed to be improved in all three countries to help ensure that the environmental impacts of trade liberalization could be addressed through a variety of procedures.

There has been some discussion as to how the side agreement would be treated -i.e., whether it would actually be submitted with NAFTA to Congress for approval or whether it would just be treated as any other executive agreement not requiring Congressional approval.

Letter from Kantor to Adams, supra, at 3-4. Apparently, the Administration has also said that the NAFTA dispute panel decision would not be admissible in a court action by the federal government against the state to overturn a state measure and that only the federal government would have the right to challenge a state measure found to be inconsistent with NAFTA (i.e., no private party challenges could be brought to enforce a dispute panel decision).

In addition to funding for border environmental issues, the issue of where the trinational commission would get necessary funds for its operation was raised during the debate. Inadequate funding of past efforts for U.S./Mexico cooperation under the 1983 La Paz environmental agreement has been a major contribution to that Agreement's ineffectiveness in addressing border pollution issues.

This position seemed to indicate that NAFTA would prevail over the side agreement, where there were inconsistencies, but did not speak to the legal status of the side agreement in the U.S.

National Wildlife Federation, The NAFTA Package: Funding Needs and Options (July 16, 1993).





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