Beyond Rio.

I. Introduction

For two weeks last June, broadcasts from the Earth Summit in Rio de Janeiro. Brazil, focused the world's attention as never before on the environmental challenges we face on planet Earth.(1) Even now, a year later, the 1992 United Nations Conference on Environment and Development (UNCED), as the program in Rio was known formally, still shapes the public agenda for environmental protection and, equally important, for economic development.(2) Launched originally as a way of revisiting the issues raised at the 1972 United Nations Conference on the Human Environment in Stockholm, the 1992 Rio Conference stands as a,watershed in global environmental protection, establishing new directions and priorities in environmental policy making.

As time passes, the events at Rio will be much less remembered for the agreements produced(3) and much more remembered for the symbolic emergence of the environment as a global issue of first-order importance. By galvanizing representatives of more than 170 countries (including the presidents and prime ministers of more than 110 countries) around environmental concerns, the Earth Summit will be seen as a harbinger of a major redirection of the world's attention in a post-cold War era. in this new era, divisions along East-West lines diminish in significance and North,south divisions become predominant as the tensions between developed and developing countries in Rio showed.

The Earth Summit will, moreover, be seen as establishing irrevocably the connection between environmental protection and economic growth. Indeed, it in now widely accepted that environmental concerns must be addressed in the context of development needs and economic growth efforts.(4) The lessons of Eastern Europe have been learned by ail.

The Earth Summit will also be remembered for its democratization of international affairs and foreign policy. Never have representatives of so many nongovernment organizations (NGOs) attended a major international event, presenting such a broad array of views and perspectives. A short walk through the "Global Forum"' at Rio, organized to bring NGOs together, revealed a panoply of groups and interests that were in one way or another related to the issues of environment and development: from religious groups to the Solar Box Cookers Association to Women for the Environment in Africa.(5)

Finally, and perhaps most important, the 1992 Earth Summit will be remembered for its remarkable role in worldwide environmental education. The 1972 Stockholm Conference served to educate governmental elites around the world about environmental issues.(6) In the months and years that followed, many countries set up environmental ministries, the United Nations Environment Programme began work in Nairobi, and some initial international environmental agreements were concluded, including the London Dumping Convention.(7) In contrast, Rio was an event of the masses. Not only did presidents and prime ministers have to read environmental briefing books on their long flights to Rio, but more significantly, discussions about environmental protection and its linkage to development were beamed by radio and television to every city, town, and village in the world. The delivery of the "environment and development" message into hundreds of millions of homes has left a mark that we will only begin to appreciate as time passes.

While not every citizen of our planet became a committed environmentalist, almost every person on Earth knows more today about environmental concerns than they did before the Earth Summit. The reach of this environmental education became clear to me upon returning from Rio, when my two-and-a-half-year-old daughter asked me about "biodiversity."

II. A Rio Legacy

The Rio process of integrating environmental and economic development goals has pushed the issue of trade to the fore in environmental policy making. For forty-five years, since the origin of the General Agreement on Tariffs and Trade (GATT),(8) trade and environmental policy makers worked on separate tracks with little intersection.(9) But beginning two years ago, as the integration of economic growth with environmental policies quickened(10) and the negotiation of the North American Free Trade Agreement (NAFTA) began,(11) it became clear that trade policy could profoundly affect the environment. At that point, environmental groups, which had paid little attention to the negotiation of the U.S.-Canada Free Trade Agreement, awakened to the prospect that free trade negotiations might have serious environmental implications that deserved their attention.(12) These issues came into sharp contrast in the context of the "fast-track" debate in the spring of 1991.(13)

From the NAFTA discussions emerged four trade-and-environment issues. First, environmentalists complained that signing a free trade agreement with Mexico, a country much less developed than the United States, might result in downward "harmonization" of high U.S. environmental standards.(14) This prospect created considerable concern to those who had worked assiduosly over twenty years to put the United States in a position of environmental leadership.

Second, fears about "spillover" pollution effects along the U.S.-Mexico border were advanced, particularly in light of the evidence of serious pollution problems from the maquiladora facilities that had grown up on the U.S.-Mexico border over the last fifteen years.(15) Intensified Mexican development in the border region raised the specter of further environmental degradation.

Third, the environmental community raised "process" concerns based on their believed inability to shape trade policy development in general, and the scope of the NAFTA in particular.(16) Environmentalists who knew very little about trade policy suddenly faced a trade community that had never really dealt with the environment. Overcoming this clash of cultures requires learning on both sides - an objective this special issue of Environmental Law should advance.

Finally, the issue of Mexico becoming a "pollution haven"' was raised.(17) This fear was based on the prospect that lower costs of environmental compliance in Mexico might tempt companies to either abandon existing facilities in the United States or Canada, or site new plants in Mexico to the disadvantage of U.S. workers and competitiveness.

Responses to the concerns raised in the fast-track debate have led toward initial resolution of some of the environment concerns. Addressing the concern regarding harmonizations of standards, for example, the Bush Administration committed early in the NAFTA process not to lower U.S. environmental standards through the negotiations with Mexico.(18)

The issue of spillover pollution from Mexico to the United States was addressed by the commitment of both countries to develop an integrated environmental border plan.(19) In developing the Border Plan, the EPA and its Mexican counterpart agency catalogued extensively the environmental needs, including air, water, and waste issues along their shared border. The U.S. Trade Representative (USTR)(20) also completed a review identifying the possible impacts that the NAFTA may have on the environment.(21) The environmental concerns identified in the review guided U.S. negotiators in the NAFTA negotiations, sensitizing these trade experts to environmental issues in a broad and unprecedented fashion.

The USTR also began to address the process concerns, opening up its key advisory committee, the Advisory Committee on Trade Policy and Negotiations, and a number of subsidiary advisory committees to senior officials from a range of environmental and conservation organizations.(22) The USTR, along with the EPA, moreover, undertook a record number of formal and informal consultations with Congress, congressional staff, and a full range of business, environmental, and labor organizations.

Addressing the pollution haven concern has proven the most difficult issue. The United States and Mexico committed through the Border Plan and a new environmental cooperation agreements(23) to a broad program of cooperative activities designed to enhance environmental protection on both sides of the border. In addition, the United States, Mexico, and Canada have agreed to set up a North American Commission on the Environment designed to provide (1) a mechanism for systematic consideration of environmental problems or issues arising as a result of the NAFTA; (2) a forum for regular review of the parties' environmental programs, including their enforcement efforts; (3) a mechanism for emergency consultations on critical environmental issues;(24) and (4) a focal point for public input on NAFTA-related environmental issues from business and environmental groups, labor unions, as well as state and local groups and officials.

While stops have been taken to begin to address the issues noted above, NAFTA will remain a central focus in the trade and environment debate. There exist, however, several other fora and issues that have heightened public interest in and concern about the trade-environment relationship. Most dramatically, the GATT Tuna-Dolphin panel decision(25), provided the environmental community with what it saw as a smoking gun demonstrating the GATT's environmental insensitivity. This decision, based on a challenge to the U.S. Marine Mammal Protection Act,(26) appeared to some to establish the inherently anti-environmental posture of the trade community and to provide proof that the GATT in a dark plot to undo environmental gains that have been made around the world.(27)

Perceiving itself under attack and recognizing that trade-environment issues needed attention,,the GATT in 1991 revitalized a long-dormant Working Party on the Environment, formed in 1972. The Working Party has now met several times, with an initial agenda focused on (1) the consistency of international environmental agreements and GATT principles; (2) transparency; and (3) packaging and labeling.(28) In recent weeks, the GATT Working Party members have begun to discuss the possibility of adding "UNCED follow-up" to the initial three agenda items.(29) Agenda 21 explicitly charges the GATT with implementing Agenda 21 recommendations.(80)

Further interest in the relation between the GATT and the environment has arisen in the context of the text proposed by GATT Director Arthur Dunkel to close the Uruguay Round of global trade negotiations.(31) Underlying this debate are broader questions: How should the GATT be "greened"? Do we need a GATT "Green Round"? Can the GATT Article XX environmental exceptions be expanded to encompass modern notions of environmental protection? Who should pay for the upgrading of environmental programs in developing countries? Is harmonization or convergence of environmental standards a good thing?

The Organization of Economic Co-operation and Development (OECD) in Paris presents another forum for trade and environment discussions. Since 1990, the OECD has organized "experts" meetings under the joint auspices of its trade and environment committees. These meetings bring together trade and environmental officials to analyze a range of relevant issues. The OECD analysis has focused on the potential to enhance the GATT's environmental sensitivity and to develop "guiding principles" for the integration of trade and environmental policy making.(32)

The OECD is also considering a number of other trade and environment concepts, including when and how harmonization (or, preferably, convergence) of environmental laws, standards, practices, and testing protocols might be appropriate. The OECD has recognized, furthermore, that one of the most critical dimensions of the problem relates to North-South differences in perspective; as a result, the OECD has made the special concerns of developing countries a central element of its work plan. Will developing countries be given special treatment in meeting global environmental goals? Will environmental initiatives by developed countries obstruct economic growth of less developed countries? How will the sovereignty of less developed countries be maintained? These issues become particularly important in the face of new environmental initiatives.(33)

III. Looking Forward

There obviously remains much work to be done in bringing the trade and environmental communities together. To make trade and environmental policies fully mutually reinforcing as contemplated by the high aspirations of the Earth Summit will take considerable thought and attention. The debate in this issue of Environmental Law should help to advance this process. (1.) The lengthy planning process for the Earth Summit foreshadowed the magnitude of its impact. Preparatory meetings began almost two years before the June 1992 conference, with the assignment of some 112 reporting tasks. See 1992 U.N. Conference in Brazil Called Biggest Environment Event in 30 Years, 14 [Current Reports] Int'l Envtl. Rep. (BNA) 12 (Jan. 16, 1991). (2.) Follow through continues on the UNCED efforts to integrate environmental and economic concerns, as evidenced by the recent United Nations resolution to establish a Commission on Sustainable Development. Announcing the creation of the Commission, U.N. Secretary-General Boutros Boutros-Ghali declared, "The challenge after Rio is to maintain the momentum of commitment to sustainable development, to transform it into policies and practice, and to give it effective and coordinated organizational support." General Assembly Opens Debate on New Sustainable Development Commission, 15 [Current Reports] Int'l Envtl. Rep. (BNA) 699 (Nov. 4, 1992). (3.) The Earth Summit produced a number of documents for the signatures of the delegates: No Declaration on Environment and Development, U.N. Doc. A/ CONF.151/5, reprinted in 31 I.L.M. 874, 877 (1992) [hereinafter Rio Declaration]; Framework Convention on Climate Change, U.N. Doc. A/AC.237/18, reprinted in 31 I.L.M. 849 (1992); Convention on Biological Diversity, June 5, 1992, reprinted in 31 I.L.M. 818 (1992); Non-legally Binding Authoritative Statement of Principles for a Global Consensus of the Management, Conservation and Sustainable Development of all Types of Forests, U.N. Doc. A/CONF.151/6, reprinted in 31 I.L.M. 881 (1992); and Agenda 21, U.N. Doc. A/CONF.15 1/4, reprinted in Agenda 21 & The UNCED Proceedings 47-1057 (Nicholas A. Robinson ed. 1992) [hereinafter Agenda 21). For brief descriptions of these documents, see generally Edith Brown Weiss, Introductory Note, 31 I.L.M. 814-17 (1992). (4.) "Environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it." Rio Declaration, princ. 4. (5.) The Global Forum ran concurrently with the Earth Summit in Rio de Janeiro, with some 2500 NGOs from over 150 countries participating. The NGOs used the forum to critique the progress of the Earth Summit and to negotiate 33 alternative treaties to serve as guidelines for future actions. Parallel Conference in Rio de Janeiro Viewed as Success Despite Money Troubles, 15 [Current Reports] Int'l Envtl. Rep. (BNA) 413 (June 17, 1992). (6.) For a detailed analysis of the 1972 U.N. Conference o the Human Environment at Stockholm and a thorough discussion of the subsequent development of international environmental organizations and agreements, see Lynton Keith Caldwell, International Environmental Policy (1984). (7.) Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1372, 26 U.S.T. 2403, 1046 U.N.T.S. 120. The Convention prohibits the dumping of certain wastes, requires specific permits for dumping of other wastes, and general permits for dumping of the rest. (8.) The General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. Part 5, 55 U.N.T.S. 187. (9.) The word "environment" does not appear in the GATT. There are references to issues that would be considered environmental, but protection of the environment is not a richly developed trade concept. See generally Steve Charnovitz, The Environment Versus Trade Rules: Defogging the Debate, 23 Envtl. L. 475 (1993). (10.) The potential conflict of environmental protection and international trade came into sharp focus during the debate over the California Environmental Protection Act of 1990 ballot referendum, known popularly as "Big Green," which failed to win voter approval. See (U.S. Int'l Trade Comm'n, California Pesticide Residue Initiative: Probable Effects on U.S. International Trade in Agricultural Food Products (1990). (11.) For more complete analysis of the NAFTA and environmental impacts, see Kurt Hofgard, Is This Land Really Our Land?: Impacts of Free Trade Agreements on U.S. Environmental Protection, 23 Envtl. L. 636 (1993). (12.) It also became clear at about the same time that how environmental policy was made could significantly affect opportunities for trade liberalization and economic growth. For example, questions began to be raised about the trade provisions of international environmental agreements such as the Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, S. Treaty Doc. No. 10, 100th Cong., 1st Sess., 26 I.L.M. 1541 (1987). (13.) Fast-track authority permits the executive branch to negotiate agreements with foreign governments while limiting congressional involvement to a vote on the resultant agreement without amendments. A request by the President for fast-track authority places an affirmative duty on Congress to deny such. After much debate, Congress failed to pass a resolution to deny fast-track authority for negotiation of the NAFTA. See 137 Cong. Rec. S6765-829 (daily ed. May 24, 1991). Fast-track authority is available pursuant to the Trade Act of 1974, 19 U.S.C. [subsection] 2107-2487 (1988) and subsequent amendments. (14.) See Lori Wallach & Thomas Hillard, The Consumer and the Environmental Case Against Fast Track, Public Citizen's Congress Watch, May 1991, at 9-10. (15.) "Maquiladoras" are factories located on the Mexican side of the U.S.-Mexico border, primarily owned by U.S. companies and exporting products to the United States. By siting facilities there, U.S. companies sought to take advantage of cheap labor and possibly escape enforcement of U.S. environmental laws. See Michael Salchell, Poisoning the Border, U.S. News & World Rep., may 6, 1991, at 32. (16.) See North American Free Trade Agreement Greeted with Suspicion by Environmental Groups, 15 [Current Reports] Int'l Envtl. Rep. (BNA) 561 (Aug. 26, 1992) (Lori Wallach of Public Citizen criticized the "secretive NAFTA process"). (17.) See, e.g., letter from Senator Max Baucus to Carla Hills, U.S. Trade Representative (July 6, 1992) ("We cannot afford - either economically or environmentally - to allow a pollution haven to be created in Mexico because of poor enforcement of Mexican environmental laws") (on file with Environmental Law). (18.) Responding to concerns expressed by Senator Max Baucus, U.S. Trade Representative Carla Hills declared that the NAFTA would result in no "downward harmonization" of U.S. environmental standards. Letter from Senator Max Baucus to Carla Hills, U.S. Trade Representative (June 3, 1992) (on file with Environmental Law); letter from Carla Hills, U.S. Trade Representative, to Senator Max Baucus (June 12, 1992) (on file with Environmental Law). See US. Trade Representative Sees No "Downward Harmonization" Under NAFTA, 15 [Current Reports] Int'l Envtl. Rep. (BNA) 448-49 (July 1, 1992). (19.) Office of International Activities, U.S. EPA, Integrated Environmental Plan for the Mexican-U.S. Border Area (First Stage, 1992-.94) (1992). (20.) Through the Trade Act of 1974, supra note 13, Congress established the Office of the United States Trade Representative ( USTR) within the Executive Office of the President. The USTR, appointed by the President with the advice and consent of the Senate, is the chief representative of the United States for trade negotiations, and is responsible for the administration of trade agreements. (21.) United States Trade Representative, Review of U.S.-Mexico Environmental Issues (Feb. 1992). (22.) Russell Train, current Chairman of the World Wildlife Fund and former EPA Administrator, presently serves on the Advisory Committee. Representatives from the National Wildlife Federation, Nature Conservancy, Natural Resources Defense Council, and California EPA presently serve on advisory subcommittees. (23.) Agreement Regarding the Strengthening of Bilateral Cooperation Through the Establishment of a Joint Committee for the Protection and Improvement of the Environment, Sept. 1992, U.S.-Mexico (unpublished proposed agreement, on file with Environmental Law). (24.) For example, in 1992, concerns arose about the high incidence of anencephaly (babies born without fully environmental causes one of the issues, it Texas-Matamoros, Mexico area. With environmental causes one of the issues, it would have been useful to have a mechanism to trigger urgent high-level U.S.-Mexico attention to the matter. (25.) Dispute Settlement Panel Report on UUnited States Restrictions on Imports of Tuna, Aug. 16, 1991, 30 I.L.M. b694 (1991). (26.) 16 U.S.C. [subsection] 1361-1407 (1988 & Supp. III 1991). The Act generally prohibits the harassment, hunting, capture, kill or importation of marine mammals without a federal permit. Id. [subsection] 1362, 1371. The Act further effects a ban on the "importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals ...." Id. [section] 1371(2). Mexico asserted the U.S. ban violated the GATT's prohibition on import restrictions. (27.) For a thorough discussion of the GATT and the Tuna-Dolphin panel decision, see Janet McDonald, Greening the GATT: Harmonizing Free Trade and Environmental Protection in the New World Order, 23 Envtl. L 397 (1993). (28.) Interim Report by the Chairman, Ambassador H. Ukawa, GATT Group on Environmental Measures and International Trade (Dec. 3, 1992) on file with Environmental Law). See also GATT To Focus on Trade and Environmental Link, Focus (GATT Newsletter, Geneva), Oct. 1991, at 1. (29.) See Statement by the Chairman of the Council of Representatives, Follow-up in GATT to the Results of the UNCED (Nov. 30, 1992) (on file with Environmental Law). (30.) Agenda 21 supra note 3, ch. 2, sec. 2.22. (31.) See Draft Final Act Embodying the Results of the Uruguay, Round of Multilateral Trade Negotiations, GATT Doc. MTN.TNC/W/FA (Dec. 20, 1991). Parties to the GATT have completed seven rounds of negotiations aimed at lowering barriers to international trade. The Uruguay Round began in Punta del Este, Uruguay in 1986. After two years of virtual deadlock, the Uruguay Round negotiations resumed in Geneva in November 1992. See John Schwartz, Break Out the Chardonnay, Newsweek, Nov. 30, 1992, at 60. See generally Konrad von Moltke, The Last Round: The General Agreement on Tariffs and Trade in Light of the Earth Summit, 23 Envtl. L. 519 (1993). (32.) For more on these guiding principles," see Candice Stevens, The OECD Guiding Principles Revisited, 23 Envtl. L. 607 (1993). (33.) In September 1992, Austria became the first nation to mandate labeling of all products made of or containing tropical wood. Because tropical wood represents a significant share of Malaysia's export revenues, Malaysian officials protested the labeling requirement, threatening to ban Austrian exports and considering legal challenges. While Austria maintained the labeling requirement, the protest did move the Austrian parliament to rescind a differential fee on tropical wood which it had passed earlier. See Austrian Industry, Malaysians Angered over Tropical Labeling Requirement, 15 [current reports] Int'l Envtl. Rep. (BNA) 720-21 (Nov. 4. 1992); Parliament Rescinds Tropical Wood Tax, Maintains Product Eco-label Requirement, 15 [Current Reports] Int'l Envtl. Rep. (BNA) 830-31 Dec. (16, 1992).