Trade and environment in the Western Hemisphere: expanding the North American Agreement on Environmental Cooperation into the Americas.

I.   INTRODUCTION
II.  BACKGROUND AND THE NAFTA EXPERIENCE
     A. The Structure: NAFTA, the NAAEC, and the CEC
     B. Nature of Environmental Concerns
        1. NAFTA's Impacts on Environment Revisited
        2. NAAEC Regional Impact
           a. Mexico
           b. Canada
           c. United States
     C. A Regional Voice for Environmental Cooperation
        1. Impact on Trade and Trade Policy
        2. How CEC's Trade/Environment Linkage Impacts
           the NAAEC Model
           a. Failing to Anticipate, Monitor, and Assess
              Compositional and Scale Effects
           b. Economic Integration Without Environmental
              Policy Convergence
III. THE NEXT FRONTIER: THE FREE TRADE AREA OF THE AMERICAS
     A. Overview of Parties and Process
     B. Environmental Considerations in the Free Trade Area of the
        Americas
        1. Latin America and the Caribbean: An Ecological Treasure
           Trove
        2. Scale and Compositional Effects
IV.  TOWARDS THE FTAA: INVESTING IN ENVIRONMENTAL PROTECTION AND
     STRENGTHENING AND EXPANDING THE CEC
     A. Ignoring Developmental Needs Will Undermine U.S. Efforts to
        Promote the Effective Enforcement of Environmental Law
        in Latin America
     B. The Need to Adapt the Mandate, Structure, and Procedures of
        the NAAEC for FTAA Expansion
        1. Fine-Tuning the NAAEC Mandate: Strengthening
           Citizen Submissions
        2. Reinforcing Secretariat's Autonomy to Recommend and
           Prepare Factual Records
        3. Considering Allegations that Specific Trade Policies or
           Practices Are Harming or Threatening to Harm National or
           International Efforts to Protect Human Health and the
           Environment
V.  CONCLUSION

I. INTRODUCTION

When the North American Free Trade Agreement (NAFTA) (1) and its environmental side accord, the North American Agreement on Environmental Cooperation (NAAEC), (2) came into force in 1994, free trade promoters labeled NAFTA the "greenest" trade agreement on record. Nearly ten years later, the Bush Administration hopes to expand the so-called "free trade zone" throughout most of the Western Hemisphere by negotiating an accord known as the Free Trade Area of the Americas (FTAA). The U.S. government has again committed to including consideration of environmental issues in the negotiation of the accord, this time by including several provisions in the so-called "fast track" authority allowing the President to present a comprehensive take-it-or-leave-it FTAA package to Congress.

The Bush Administration has moved quickly to negotiate regional free trade agreements since having gained trade promotion authority from Congress in August 2002. A draft agreement with Chile awaits formal presentation to Congress, and the United States Trade Representative is quickly closing in on a similar package of NAFTA-type trade liberalization and investment measures with countries in Central America. Overall, the approach U.S. trade negotiators are taking on environmental issues is similar to the approach taken in NAFTA: They are eliciting commitments for maintaining high levels of environmental protection and including monetary enforcement penalties for engaging in a pattern of failure to effectively enforce environmental laws.

Free trade may one day deliver many of the economic benefits promised by its supporters. Indeed, ten years into NAFTA, the region has posted impressive trade and investment figures, and the direst predictions about pollution havens and environmental dumping have yet to materialize. All the same, increased trade and investment has so far failed to generate the additional resources necessary to strengthen the institutional capacity to protect the environment and health in developing countries. During this transitional period, vital nonrenewable natural resources, ecosystems, and human health in vulnerable populations are at great risk. Technological advances in extracting, processing, and transporting natural resources, combined with global demand, may have a devastating effect on poorly managed resources. This is particularly worrisome in the FTAA region, where developing economies have sought to expand export markets by exploiting their comparative advantage in natural resource industries such as timber, mining, and fisheries.

Much is at stake. Latin America is a veritable treasure trove of ecological bounty, though its marine and terrestrial ecosystems face a host of threats, including unsustainable harvesting practices and destructive land-use patterns, respectively. The potential impacts of free trade on these ecological assets have been inadequately studied as countries train their scarce research resources on predicting economic outcomes in specific sectors or product areas.

As countries search for a means of accessing global markets while safeguarding the environment and health, NAFTA has taught us that domestic policy matters. Greater efforts must be made to assess and anticipate the impacts of free trade on health and the environment, and domestic policies buffering adverse impacts must be in place prior to accepting the constraints on domestic policy that free trade measures may impose.

Above all, FTAA countries should link selected liberalization measures to the attainment of specific environmental and health benchmarks. These objectives should include milestones that ensure the infrastructure of environmental and health protection in vulnerable areas is ready to accommodate the demands of free trade. At the same time, meaningful incentives should be included in the FTAA to ensure that countries adopt compatible and, in some cases, harmonized environmental laws and regulations to ensure that environmental and health measures are mutually supportive across the region.

Once trade and investment measures are effectively linked to environmental and health indicators and benchmarks in the FTAA, a strengthened NAFTA-type environmental framework could help ensure that free trade and environmental goals are mutually supportive. An adequately funded regional body could conduct sustainability assessments, monitor and assess trade and environment relationships, and evaluate countries' abilities to effectively enforce environmental laws. The NAFTA experience has taught us that a regional environmental body must have considerably more financial resources and independence to exert influence in order to confront unsustainable practices related to trade.

Environmental provisions in the FTAA should include a "citizen submission" mechanism similar to that of the North American Agreement on Environmental Cooperation. Based on the success of the efforts of the North American Commission for Environmental Cooperation (CEC) to assess the impacts of NAFTA on the environment, a similar citizens' mechanism should be established to allow groups or individuals to allege that a specific trade or investment measure or practice has an adverse impact upon human health or the environment. However, the process must be strengthened by reinforcing the Secretariat's independence and insulating the Secretariat from government intrusions, eliminating the Council voting procedure, and allowing the Secretariat to "connect-the-dots" in its factual records. Well-substantiated complaints would be assessed by panels of experts in a process that will further our understanding of environment-economy-trade linkages, while at the same time assisting developing countries to assess the impacts of free trade on health and the environment.

Part II of this Article summarizes the environmental provisions of NAFTA, its environmental side accord, or NAAEC, and the Commission for Environmental Cooperation (CEC). It then reviews the accomplishments and shortcomings of this commission, both at the regional and national level. The author extracts the environmental "lessons learned" from the commission's work on understanding the linkages between trade and environment in the region.

Part III introduces the FTAA initiative to create a free trade zone throughout the Western Hemisphere. It then examines the environmental goals and objectives of the Bipartisan Trade Promotion Authority Act of 2002 (TPA). (3) The author identifies the primary environmental considerations in the region in light of the NAFTA experience and the region's economic and ecological features.

Part IV advocates for stronger environmental safeguards in the Free Trade Area of the Americas, including investments in environmental infrastructure and linking tariff reductions in sensitive areas to ecological and developmental benchmarks. The author calls for a stronger regional environmental organization based on the CEC model, including a mechanism for examining allegations that specific trade measures are adversely affecting health or the environment.

Finally, Part V concludes by recognizing that this may be our last and best chance to secure adequate resources in Latin America for environmental protection and to promote sustainable economies across the hemisphere.

II. BACKGROUND AND THE NAFTA EXPERIENCE

A. The Structure: NAFTA, the NAAEC, and the CEC

Since NAFTA took force in 1994, trade in goods between the three countries has almost doubled, from approximately $350 billion to over $700 billion in 2000. (4) Mexico alone has seen a four-fold increase in both exports and imports, growing from $40 billion to more than $170 billion. (5) Canada buys more products from the United States than the fifteen members of the European Union combined. (6) During the six-year period from 1994 to 2000, total foreign direct investments in NAFTA countries reached nearly thirty percent of total world foreign investments. (7) During this period, foreign direct investment more than tripled in each NAFTA country. (8) The NAFTA region currently produces over $11 trillion worth of goods and services, making it the largest trading block in the world. (9)

For all its impressive numbers, NAFTA promised more than simply increased trade and investment. Concerns about the impact of trade liberalization on the environment led to the negotiation of several provisions addressing environmental issues in the text of NAFTA, as well as the execution of a parallel environmental accord devoted entirely to this concern.

NAFTA contains several provisions bearing on environmental matters. (10) The Preamble alone contains three references to the environment, including promotion of sustainable development and strengthening of environmental laws and regulations. (11) Additionally, the Preamble states that NAFTA measures seek to ensure a predictable commercial framework "in a manner consistent with environmental protection and conservation." (12)

The body of NAFTA clarifies the relationship between the provisions of the free trade agreement and those of selected multilateral environmental agreements (MEAs) which may contain measures restricting or prohibiting trade. NAFTA provides that the enumerated MEAs take precedence over the trade provisions of NAFTA, so long as the party invoking the MEA employs the least trade-inconsistent measure available. (13) Additionally, NAFTA chapters establishing sanitary and phytosanitary standards (SPS) and technical barriers to trade (TBT) include subtle but important textual modifications that, on balance, strengthen a party's ability to set its own standards for protecting health and the environment. (14) Similarly, the SPS and TBT dispute settlement provisions are comparatively more environment-friendly than current World Trade Organization (WTO) procedures. (15) NAFTA also contains novel, though non-binding, language providing consultations in the event a party suspects its trade partner is encouraging investment by relaxing domestic health, safety, or environmental measures. (16)

Finally, NAFTA's Chapter 11 establishes rules pertaining to investments and investors, including a dispute settlement mechanism allowing private investors to challenge NAFTA governments directly for breach of the investment provisions of Chapter 11. Without question, both the procedural and substantive provisions of Chapter 11 have proven to be the most controversial provisions of NAFTA to date, eliciting a raft of unanticipated environmental concerns. (17)

In addition to NAFTA, Canada, Mexico, and the United States created a self-standing agreement, the NAAEC, which establishes a broad, comprehensive framework for regional environmental cooperation. (18) The NAAEC creates an international organization, the CEC, composed of a Council, Secretariat, and Joint Public Advisory Body. The Council is the governing body of the CEC, headed by the cabinet-level environmental official of each NAFTA country. The Montreal-based Secretariat acts as the technical, administrative, and operational arm of the Council, and possesses some autonomous investigatory and reporting authority. The Joint Public Advisory Committee consists of fifteen individuals--five members from each country--appointed by the head of state in each NAFTA party to advise the governments on any matter within the scope of the NAAEC.

As a framework agreement, the NAAEC establishes broad areas of cooperation bounded loosely by a broad conception of "environment" and by the ability of the Council to reach consensus on priorities and lines of action. (19) The agreement is anchored by two key articles committing each party to ensure that its laws and regulations provide for "high levels" of environmental protection and to "effectively enforce" its environmental laws through appropriate government action. (20)

Two mechanisms underscore the NAAEC's emphasis on enforcement. First, the citizen submission process provides an avenue for groups or individuals to allege that a party to the agreement is falling to effectively enforce its environmental laws. Following a recommendation by the Secretariat, the parties can instruct the Secretariat by two-thirds vote to prepare a "factual record," describing the party's enforcement practices and record pertaining to the issues raised in the submission. (21) Second, a party-to-party procedure allows a complaining party to seek the imposition of a monetary assessment if a party is found by a tribunal to have engaged in a "persistent pattern" of failure to enforce with potential competitive effects in the NAFTA region. (22) If the party in breach fails to implement an action plan to address the enforcement failures, the monetary assessment is applied to help correct enforcement deficiencies in the party in question. (23)

Four other CEC functions are of relevance in considering how the FTAA should address environmental matters. First, the NAAEC acknowledges the need for, and value of, comparable environmental data across national boundaries, including the preparation of state of the environment reports. (24) Second, the NAAEC provides a means through which environmental experts and officials can provide information to trade bodies on the environmental aspects of potential or actual disputes. (25) The institutional interface between trade and environment officials includes an obligation to consider "on an on-going basis" the environmental effects of NAFTA. (26) Third, the NAAEC empowers the Secretariat to prepare independent reports on non-enforcement related matters. (27) Fourth, the agreement recognizes the need to establish a process for achieving greater compatibility of environmental technical regulations, standards, and conformity assessment procedures. (28)

The NAAEC is a hybrid agreement, twining concerns that surfaced in the United States over economic competitiveness with broader goals of fostering the improvement of the environment in the region. (29) The NAAEC preoccupation with enforcement arises from the concern that a party might intentionally relax its enforcement of environmental laws to retain or attract industry. (30) In order to harvest the congressional votes required for passage in the United States, NAFTA negotiators faced enormous pressure to satisfy environmental constituencies on one hand, and get the deal done on the other. (31) Under these circumstances, the Clinton Administration reviewed the environmental laws of Canada and Mexico, concluding that, if enforced, each provided for the requisite "high level of protection" promised in NAAEC Article 3. (32)

Given the origins of the side agreement, it was surprising to many that the NAAEC deals less with trade, and trade policy, than regional environmental and governance issues. Though many of the subject areas hold the potential to intersect with trade policy, only a few NAAEC articles directly make the connection. (33) The drafting reveals a number of key considerations that negotiators will again face with the FTAA. First, trade negotiators and many advocates of free trade opposed a direct linkage between the environmental side agreement and NAFTA itself, some being skeptical of genuine trade and environment connections and others fearing the agreement could foster "green protectionism." (34) The dynamic pitting of muscular trade ministries against their weaker counterparts in environmental departments is already evident in FTAA negotiations, where environmental concerns have been lumped into an anemic committee on "civil society." (35) Second, the preponderance of developing countries engaged in the FTAA negotiations, coupled with a notable chill in several Latin American countries' embrace of neoliberal economic policies, enhances the likelihood that developmental considerations, such as capacity building and technical cooperation, will gain parity with, or perhaps even predominate over, U.S.-driven competitiveness concerns. As we will see, this represents a significant opportunity for those seeking to link developmental objectives with the liberalization of trade.

B. Nature of Environmental Concerns

While important distinctions among the prospective parties to the FTAA should be recognized, generally speaking, the accord pairs the highly developed northern economies of Canada and the United States with the less-developed economies of its partners to the south. Because the profile of many of the FTAA countries bears resemblance to Mexico, many of the environmental concerns relating to the FTAA are similar to those expressed about NAFTA, with some notable refinements. Observers have had nearly a decade to assess the short-term impacts of NAFTA, and the claims and arguments relating to the effects of the trade agreement have evolved accordingly. (36)

Advocates of free trade contend that trade liberalization will benefit the environment in several ways. The most oft-heard contention asserts that the general welfare gains acquired through trade liberalization will enable less developed countries to afford stronger environmental protection and better defend their environment. (37) A related argument posits that a more efficient allocation of productive resources in-line with a country's comparative advantage will reduce unnecessary pollution and conserve wasted inputs. Additionally, free trade may accelerate the diffusion of technology and best practices, countering any impacts from increased production or consumption. Other benefits may include a "democratizing" element, promoting better access to information and more transparent decision making, presumably leading to public pressure to maintain environmental quality. (38)

Environmental concerns about trade are drawn from multiple hypotheses, applicable in varying degree to the FTAA region. Some of these contentions seek to rebut fundamental assumptions relied on by free trade advocates, while others raise new issues. These concerns are summarized by identifying four effects most commonly included in assessing the positive or adverse impacts of trade liberalization on the environment. Below, these effects are presented in the negative, that is, with respect to their potential for harming human health and the environment.

Scale effects consider the potentially adverse environmental effects of increased economic activity generated by greater levels of trade, especially through increased inputs from natural resources and increased emissions arising from the production of goods and services. If not offset or mitigated, more production and consumption may generate more pollution, or more rapidly deplete nonreplenishable resources. (39)

Compositional effects are often analyzed alongside scale effects. As trade liberalization reallocates resources, countries may specialize in pollution- or resource-intensive activities/sectors. These activities may, in turn, overtax a nation's environmental infrastructure and regulatory capacities. Where environmental externalities are strong, both scale and compositional effects may add fuel to what was a slow-burning fire, accelerating unsustainable or environmentally damaging practices. (40)

Inquiries into competition effects examine the extent to which companies reduce environmental expenditures when exposed to greater international competition in free markets. In similar fashion, governments may relax the promulgation, monitoring, and enforcement of environmental laws and regulations to attract companies, or to keep them at home. The shorthand labels for these assertions are "regulatory chill" and "race to the bottom," respectively. Certain industries may relocate to take advantage of lax enforcement or lower standards, among other things, giving rise to "pollution haven" concerns.

Finally, many environmental advocates are concerned about the regulatory effects of trade liberalization. Regulatory effects include the extent to which trade rules trump or constrain the development of environmental regulations and market measures. Traditionally, this concern focused on the rules pertaining to technical barriers to trade and sanitary and phytosanitary measures. More recently, however, serious concerns are arising over the impact of investment rules enabling private investors to challenge government measures as "tantamount to expropriation" or on other grounds. (41)

To some degree, the FTAA initiative implicates all of the theories and concerns identified above. As discussed below, however, the NAFTA experience has provided an opportunity to test and refine these hypotheses in North America. Accordingly, the author will highlight the nonregulatory issues that are emerging as paramount concerns, given the economic, social, and ecological characteristics of many countries in the FTAA region.

1. NAFTA's Impacts on Environment Revisited

If the first decade of NAFTA has failed to produce the kind of Chicken Little environmental impacts some opponents had forecast, it also failed to bolster many free traders' contention that higher incomes in Mexico would inexorably fuel an appetite for greater environmental protection. (42) Despite some evidence of rising per capita income in Mexico, SEMARNAT (the Mexican Ministry of Environment) remains grossly underfunded and major environmental indicators show little, if any, improvement. (43)

The truth about how liberalizing trade in North America has affected the environment lies somewhere between the extremes, but just where remains hard to pinpoint. Not only is it difficult to assess the environmental effects of free trade, but it is also an arduous task to determine the counterfactual proposition--estimating how much worse (or better) things would be in the absence of free trade or NAFTA's environmental side accord. In the case of the NAAEC, assessments are even murkier respecting the many CEC initiatives that have little or nothing to do with trade.

Hard as it may be, policy makers must nevertheless attempt to evaluate the strengths and weaknesses of the NAAEC as one of the few models potentially applicable to the greater hemisphere in the FTAA. This need is accentuated by the TPA having imported a number of NAAEC-inspired provisions into the FTAA negotiating objectives, a signal that the United States will seek to replicate many of the NAAEC's elements in the hemispheric accord. (44)

Opinions on the impact of the NAAEC are plentiful and varied. At the edges, hard-held views remain consistent with the positions advanced during the debate on NAFTA and the environment prior to its coming into force. Even if few people have changed their minds about the approach taken on environmental matters in NAFTA, it is worthwhile to distinguish between the actual impact of the NAAEC on environment and trade policies in the region, and the potential utility of the approach or model employed in the NAAEC. The distinction is important in determining whether the NAFTA approach itself is flawed, or if its full implementation merely lacks political support, including adequate funding.

2. NAAEC Regional Impact

Early concerns that the side agreement and its sunlight mechanisms constituted an intrusive hindrance to trade in the region appear entirely unfounded. (45) If anything, the CEC and its initiatives remain invisible to most business interests and the public at large. Indeed, few CEC actions directly impact specific trade interests. (46) For precisely that reason, a number of commentators have expressed disappointment in the implementation of the environmental side agreement, especially those who had hoped the accord would help avoid or mitigate adverse impacts, or channel trade flows into more sustainable pathways. (47)

Despite its inconspicuous public profile, over the past decade the successes and shortcomings of the CEC have drawn considerable attention from scholars, advisory committees, and others. (48) Most commentators conclude that the impact of the CEC on major issues of regional concern has been modest, at best. (49) Some welcome the emergence of the new institution as a much needed voice in regional environmental affairs. (50) A less charitable opinion of the CEC is expressed by those who measure its accomplishments against the growing list of serious environmental issues calling for regional solutions. (51) Those who expected NAFTA and the CEC to tackle these major areas of concern early on are understandably underwhelmed by the results so far.

Below, the author evaluates the impact of the NAFTA environmental accords on a handful of specific policies in NAFTA countries, as well as on less tangible, but no less legitimate, notions of "good governance." Here, a more nuanced picture emerges, with the CEC affecting Mexico, Canada, and the United States in descending order of impact.

a. Mexico

A number of Mexican nongovernmental organizations (NGOs) and policy analysts attest to the positive impact the CEC has made on transparency in governmental decision making and access to information, as well as certain aspects of domestic environmental policy. (52) The CEC's access to information policies, decision making records, citizen submission process, and public Council sessions have helped shape Mexican citizens' expectations for the conduct of government business for national agencies and public institutions. (53) That the Mexican Environmental Ministry is regarded as one of the more open and transparent Mexican government agencies is in a small, but not inconsequential way, due to its intense interaction with the CEC and civil society.

In similar fashion, the historic reticence of Mexican government officials to engage in open and public debate has relaxed considerably. This is especially true in settings where Mexican citizens or others may air grievances, or level criticism of government bodies, in public fora. Initially, the Mexican government often attempted to exercise a good deal of control over the participants to, and the conduct of, CEC public meetings and events. (54) Today, unscripted public meetings are routine, and robust debate and disagreements are no longer viewed as treasonous or embarrassing. In this sense, the maturing of the democratic process in Mexico has allowed Canadians and Americans to become a greater part of Mexico's extended North American community. Ultimately, a well-informed civil society will be key to urging reforms that require regional cooperation.

The CEC has made a few noteworthy contributions affecting specific policies and laws in Mexico. (55) For example, the institution played a considerable role in building capacity and catalyzing support for Mexico's effort to require and implement a national pollutant release and transfer registry comparable to those of Canada and the United States. (56) Likewise, the CEC Sound Management of Chemicals Initiative helped create the first office of toxic substances with the environmental ministry, leading to the banning of DDT and chlordane. (57) A revolving pollution prevention fund has demonstrated the viability of reducing waste in a cost-effective manner in medium- and small-sized industries. (58) Though modest when measured against the vast needs in Mexico, these accomplishments indicate the potential for more substantive results if these programs were scaled-up and adequately funded.

b. Canada

If nothing else, the CEC has generated a surprising amount of noise in Canada during the past decade. From the beginning--and despite the Canadian government's discomfort with the appellation--Canadian media has regarded the CEC as the "NAFTA environmental watchdog." (59) At times, CEC reports have received wide coverage, often highlighting unfavorable comparisons between Canadian environmental practices or policies and those of their neighbors to the south. On a few occasions, independent CEC-funded reports have sparked public policy debates contributing to specific legal or policy reforms. (60)

The CEC came into being during a period of economic austerity in Canada, leading to major federal and provincial budget cuts for environmental programs. During this same period, the exercise of federal jurisdiction contracted in deference to provincial governments. Environmental advocates lament that a diminished Environment Canada--the federal Canadian environmental agency--is often ranged against a weighty collection of other departments, many of whom would prefer the CEC to maintain a lower profile and behave more like an environmental statistician than an accountability mechanism. (61)

One of the unanticipated outcomes of this situation is that Canada has harvested a surprising number of citizen allegations that it is failing to effectively enforce its environmental laws. (62) By and large, the Canadian government has responded defensively to these allegations, and has sought to impose additional limits and constraints on the citizen submission process in general, and on the Secretariat's fact-gathering powers in particular. (63) In truth, the Canadian government has demonstrated much more enthusiasm for the so-called "cooperative" programs of the CEC than its citizen submission process, though they have made a conscientious effort to respond seriously to its imputations.

While hardly a household name, the CEC has nonetheless managed to maintain an independent profile in Canada and, at times, has assisted the federal government to raise the profile of regional environmental issues of concern. Environment Canada has also, at times, welcomed the CEC's ability to call attention to specific practices or policies in individual provinces--recognition which may strengthen the federal government's hand in spurring reform efforts. On balance, Canada's predilection for consensus-based, multilateral solutions has been a stabilizing and positive force in the CEC, often placing Canada in the role of honest broker, mediating more contentious matters arising between the United States and Mexico. Indeed, after several years of mixed signals, Canada appears to have found its voice in the CEC and is more deliberately employing the organization as a means to promote key environmental priorities in the region.

c. United States

Given the size, power, and other preoccupations of the United States, one would not expect the environmental side agreement to exert much influence on U.S. national policy. Indeed, with the exception of a handful of state-based initiatives and the stillborn effort to reach agreement on transboundary environmental impact assessment, the CEC has had little measurable impact on the United States or its trade policy. In particular, the much hoped for institutional collaboration between trade and environmental bodies mandated by Article 10, section 6 of the NAAEC has so far failed to materialize.

In addition to the many geopolitical factors that dilute the CEC's impact in the United States, cooperative ventures are also retarded at times by a hint of institutional arrogance that taints U.S. participation in collaborative endeavors. Individual government officials might act personably and in a culturally sensitive manner, but there is a sense that, in the end, the United States is not likely to accommodate its neighbors by bringing its policies, laws, or standards closer to Canada or Mexico, irrespective of the environmental benefits that could accrue from such action. (64) If this perception of intransigence persists, Canada and Mexico may be less willing to take on new responsibilities, compromising the ability of the CEC to improve environmental law and policy in the region.

After winning a contentious battle with the Department of State, the Environmental Protection Agency (EPA) was granted oversight authority over the CEC. (65) EPA's ability to employ the CEC as a tool for regional environmental improvements has proven challenging. In terms of administrative muscle, EPA enjoys relative parity with other departments, at least in areas over which EPA traditionally has exercised authority. However, EPA's strong domestic footing is considerably weaker in international terrain, especially with regard to trade policy. (66) Despite the best efforts of its staff, the International Affairs office of EPA remains far from the locus of power within the agency. Consequently, CEC initiatives are typically not assimilated well into the programs and budgets of other departments, nor have its reports and other products been disseminated effectively throughout EPA and its regional offices.

CEC's influence on U.S. policy probably has been greatest in the area of environmental assessments of trade and trade agreements (discussed below). Also, CEC's "soft" power to convene scientists, policy makers, NGOs, and others surely has helped raise awareness among a variety of stakeholders about specific regional environmental issues, though the value of this service defies quantitative analysis.

C. A Regional Voice for Environmental Cooperation

The CEC has also made some headway in providing many citizens with a fuller appreciation of "North American" or regional issues. As nonstate actors assume a growing role in public policy matters, the CEC provides a unique venue for nongovernmental bodies to forge alliances and develop regional campaigns. The heightened awareness of social, ecological, and economic connectedness and an increasing openness and trust between governmental and nongovernmental actors should, in the long run, help establish the foundations for finding enduring solutions to the seemingly intractable problems the region faces. (67)

1. Impact on Trade and Trade Policy

Perhaps most disappointing to a number of environmental groups who supported the NAAEC has been its inability to impact everyday trade or trade policy in any noticeable way. The provisions enabling the CEC to provide expertise in enviromnent-related trade disputes, as well as to proactively take measures to help avoid such disputes, have fallen into disuse after little more than quivering into life with a few procedural gatherings and a series of aborted attempts to organize a trade and environment ministerial summit. Similarly, the CEC has been sidelined in the tri-national discussions over how to address growing concerns about the application of the investor-state provisions contained in NAFTA Chapter 11. (68)

In the eyes of many of those who supported the side accord, the NAAEC must either improve environmental laws, policies, infrastructure, and capacities, as a bulwark against unsustainable trade patterns, or intervene directly by promoting environmental measures that may affect trade. At minimum, the CEC must provide independent information monitoring the environmental impacts of free trade in a timely and complete fashion. Yet, the CEC lacks rulemaking or adjudicative powers and, with its budget forever stuck at nine million dollars, has little monetary clout. Faced with these limitations, the organization has attempted to influence public policy by becoming an authoritative voice on a few key subjects. Against considerable odds, the CEC has managed to develop and apply a useful framework for assessing the impacts of free trade. (69) Even if the CEC's analytical efforts have yet to yield many real world policy outcomes, the lessons learned from developing and applying the framework stand as one of the less heralded achievements of the CEC. In the long-term, these lessons hold the potential to refine and reshape the nature of environmental concerns with trade agreements.

2. How CEC's Trade/Environment Linkage Impacts the NAAEC Model

The CEC NAFTA-effects work establishes a proving ground to test a number of NAFTA/environment hypotheses, including concerns such as "pollution havens" and the regulatory "race to the bottom." The findings on these issues should help to define key issues of concern for the FTAA, while deemphasizing others. Taken together, the body of work provides valuable insights into foreseen and unforeseen trade-related issues that should be addressed in the FTAA. (70)

NAAEC Article 10, section 6 commits the parties to consider "on an ongoing basis" the environmental effects of NAFTA. (71) In furtherance of this Article, the CEC Secretariat developed a framework for assessing the environmental impacts of free trade in the NAFTA region, held two public symposia to apply and refine the approach, and published numerous working papers and monographs on the subject. (72) The project, initially clothed as an academic exercise focused on methodological issues, quietly evolved into a potent source of information on a diverse range of important issues. (73) To date, the Secretariat has been able to pursue its publicly-driven research agenda despite the reluctance and, earlier, outright hostility of some officials from trade and other departments. (74)

The CEC's body of trade-related work reveals two critical findings that must be addressed in the text of any future trade and environment agreements with developing countries. First, though most of the attention in the early years since NAFTA has focused on the hypotheses related to "pollution havens" and lax enforcement, addressing the scale and compositional effects of free trade deserve at least as much attention as competitive effects. Countries need to make a much better effort to predict and buffer sectoral and interregional impacts resulting from major shifts in the pattern and composition of trade. Oh environmental issues, this is especially important during transitional periods which can place vulnerable, nonrenewable resources at maximum risk. Second, the clear trend towards convergence of competition, trade, and investment policies in major sectors liberalized in NAFTA has not always triggered parallel efforts to harmonize environmental policies and standards in these same areas. As discussed below, economic integration without concomitant efforts to ensure complementary regulatory policies in the health and environment realm entails risks.

a. Failing to Anticipate, Monitor, and Assess Compositional and Scale Effects

Countries enter into free trade agreements fully aware that lowering trade barriers will produce domestic winners and losers. Over time, the losses are presumed to be outweighed by overall welfare gains attained by a more efficient economy competing in global markets. (75) To the extent possible, individual countries will attempt to predict certain economic outcomes, and will put policies in place to minimize economic and social costs, as well as to maximize benefits. More recently, environmental assessments of trade agreements have attempted something similar by evaluating the likely environmental outcome of predicted economic behavior. (76)

Countries with substantial resources at their disposal have a number of tools to mitigate or avoid some negative economic, environmental, or other impacts. If NAFTA has taught us anything, it is that domestic policy matters. (77) Transitional policies and compensatory schemes can address any number of issues including: promoting key structural and institutional reforms in preparation for free trade, enhancing deficient infrastructure, retraining or relocating displaced workers, or addressing glaring market imperfections. Transitional policies can be facilitated by the phased elimination, or reduction over a number of years, of many tariffs and other barriers. Such policies can also be tied to clear developmental goals, so that they are not phased out or discontinued until specific benchmarks or performance markers are attained. In extraordinary circumstances, safeguard measures enable parties to temporarily delay or suspend agreed-upon actions on the manifestation of specified events, such as severe injury to domestic producers.

A poor understanding of linkages between the environment and the economy, coupled with weak national institutions and regulatory capacity, negate the possibility of implementing mitigation strategies, much less avoiding severe environmental stress altogether. Negative scale and compositional effects--such as increasing demand on unsustainably managed fisheries or intensifying the harvesting of tropical hardwood--may overburden environmental infrastructure and regulatory capacities. This is especially true where spikes in trade flows or increased foreign investment generate considerable economic activity in developing countries. (78) Consequently, resource-intensive exporting countries are particularly vulnerable during the transition period when demand for, and access to, nonreplenishable resources increases, but government monitoring and regulatory budgets do not.

In many cases, lack of available data on environmental media impedes our ability to gain a clear sense of what is going on. (79) Presumably, countries would ensure that an adequate monitoring and assessment network is in place to observe and react to selected impacts of trade liberalization. Regrettably, this has not been the case. Studies analyzing the post-NAFTA trade-environment interface, for example, are almost always hampered by the lack of reliable data necessary to make trade and environment correlations. (80) Most monitoring and assessment budgets have declined or remained static in the decade since NAFTA, and despite recent progress on developing harmonized core environmental indicators, less headway has been made identifying data sets necessary to formulate local or regional economy-environment correlations. (81)

A major shift in trade patterns can trigger a complex cascade of social, economic, and environmental impacts. For example, Mexico now recognizes it was unprepared for the elimination of tariffs on some produce in the heavily subsidized U.S. agricultural sector. (82) Similarly, Mexico has raised serious concerns about the impacts of liberalized trade of pork and poultry products, most of which is produced in the United States employing industrial-scale intensive livestock operations. (83) While much has been made of the social and economic implications of this phenomenon, only recently have researchers begun to elucidate the environmental implications of liberalized trade in the agricultural sector. (84) In retrospect, it is likely Mexico would have done more to adapt its agricultural policies to buffer these impacts, in addition, perhaps, to securing adequate regulatory approaches to address the serious environmental impacts of certain industrial agricultural and livestock practices.

More generally, evidence of greater regional income disparities within Mexico, particularly in isolated rural communities, has led economists to focus on the failure of anticipatory domestic policies to "ready" the country for rapid liberalization policies. (85)

The extent to which whole regions within Mexico are more or less left out of both the benefits and burdens of free trade raises a series of complex and unanswered questions. For example, many of the poorer southern regions in Mexico such as Oaxaca, Chiapas, and the inland expanse of Yucatan host some of the most biologically rich areas in the country and, indeed, the world. Afflicted by chronic poverty, poor sanitation, and inadequate public services, many communities in this region also suffer from political instability and violence, often related to conflicts over land tenure and resource exploitation. For security reasons, federal environmental officers largely avoid these vast, remote areas.

Simply identifying the compound "market imperfections" that impede NAFTA's reach into such regions understates the magnitude of the political and developmental task at hand. Corrective "tinkering" with market mechanisms alone will not do the trick, and may produce much harm. For example, the most popular "market imperfections" to remedy usually address energy, transportation, and communications infrastructure resulting in the building or improving of power sources and transmission lines, canals, highways, and airports. Seldom are these amenities accompanied by a commitment to beefing up environmental regulatory capacities. What impact on forest health and biodiversity might result from enhancing physical infrastructures--allowing "markets" to function more smoothly--without first establishing a strong and stable regulatory presence in these areas? How can resources be sustainably managed without settling long-seething land ownership disputes? Would such infrastructure inevitably enable environmental regulatory officials currently shut out from the region to exercise increased authority there? If so, how long would it take? And how much would be lost in the interim?

No one is suggesting maintaining impoverished communities in isolation and distress only to protect the environment. Arguably the environment is not faring well in these areas because poor inhabitants have little recourse but to overexploit natural systems. The point is that one of NAFTA's lessons is that a more comprehensive and far-reaching set of developmental policy objectives must be conceived of, and implemented, before agreeing to a liberalization schedule that may tie policy makers' hands when the time comes to act. (86) In this remote region beyond NAFTA's current reach, it really is too early to tell whether free trade will allow unfettered access to nonreplenishable resources before effective policies to promote sustainable development and conservation take hold. Many critical ecosystems in Latin America may face similar questions in the future.

b. Economic Integration Without Environmental Policy Convergence

In at least one key economic sector, the CEC has concluded that incompatible environmental approaches can render domestic environmental policies less effective, increase the likelihood of environment-related trade disputes, and heighten competitive concerns such as "pollution havens." (87) Despite the NAAEC commitment to support sustainable development "based on cooperation and mutually supportive environmental and economic policies," (88) no comprehensive attempt has been made to determine both the need, and opportunity, for assessing the compatibility of environmental and economic policies in the region. For example, despite several important carve-outs for Mexico, Chapter 6 of NAFTA contains several provisions liberalizing trade in electricity and related services. (89) The manner in which electricity is traded on a continental scale has important environmental dimensions because its generation, transmission, and use have a considerable impact on both human and ecosystem health. (90)

These impacts often have an important regional and transboundary component because airborne emissions may be transported into regional airsheds, or even across entire continents for some pollutants. (91) Yet, despite an acute need for more seamless regional airshed management regimes, the NAFTA region is home to a staggeringly complex array of air pollution regulations. (92) While some regional variations are necessary, the current patchwork of regulatory approaches has the real potential to work at cross-ends, in some cases rendering domestic laws less effective. (93) As a result, North American electricity-generation siting decisions are creating increasing friction, with renewed concerns of regional "hotspots" and "pollution havens." (94) Lack of compatible or harmonized emission standards for trucks has also led to controversy and legal challenges. (95)

Despite the benefits of greater compatibility and, in some cases, outright harmonization of environmental policies and regulations, the NAAEC provides little in the way of meaningful incentives to achieve this outcome. (96) Instead, the agreement offers a watered-down provision for "establishing a process for developing recommendations on greater compatibility of environmental technical regulations, standards, and conformity assessment procedures in a manner consistent with ... NAFTA." (97) Attempts to establish such a process have been tentative and largely ineffective. (98)

In the trade arena, numerous NAFTA committees and technical working groups are hard at work implementing the agreement, often by seeking to harmonize or make compatible regulations affecting trade. Many of the issues under consideration by these bodies feature a significant environmental dimension, including, for example, automotive emissions and pesticides. (99) Yet a CEC study found that most of these groups were not making a deliberate effort to implement their work in a manner "consistent with environmental protection and conservation" or to "promote sustainable development" as the NAFTA Preamble provides, either because they were unaware of the language or because it fell outside their terms of reference. (100) Despite the relevance of NAFTA committee work to a number of environmental issues, environmental interest groups are largely absent from their deliberations and meetings. In some cases, the U.S. government continues to resist efforts to include representative environmental groups within these bodies. (101)

III. THE NEXT FRONTIER: THE FREE TRADE AREA OF THE AMERICAS

A. Overview of Parties and Process

The FTAA seeks to unite 800 million people (102) and the economies of thirty-four countries in the Western Hemisphere into the world's largest free trade area by the year 2005. According to its guiding principles, the agreement will progressively eliminate barriers to trade and investment in a manner both consistent with the rules and disciplines of the WTO and attentive to the developmental needs of smaller economies in the region. Greater economic integration, FTAA promoters believe, will generate economic growth and prosperity in the region as well as strengthen democracy.

Trade liberalization shines as the lodestar in the broader constellation of goals and objectives identified by heads of state in the Summit of the Americas process launched in Miami in 1994. (103) The critical role free trade plays in achieving these broader social and economic objectives stands out in the Declaration of the Sixth Meeting of the Ministers of Trade of the Hemisphere, which reads in part:

   We recognize the significant contribution that economic
   integration, principally through the FTAA, will make to the
   attainment of the broader objectives in the Summit of the
   Americas process, including strengthening democracy, creating
   prosperity and realizing human potential. We reiterate that the
   negotiation of the FTAA will continue to take into account the
   broad social and economic agenda contained in the Miami and
   Santiago Declarations and Plans of Action with a view to
   contributing to raising living standards, improving the working
   conditions of all people in the Americas and better protecting
   the environment. We reiterate that one of our general objectives
   is to strive to make our trade liberalization and environmental
   policies mutually supportive.... (104)

At the time of this writing, trade ministers have met eight times to hold the parties to their ambitions negotiation timetable. Trade ministers exercise oversight and management of the negotiations, which are led by a rotating chair. To date, nine FTAA negotiating groups have formed to draft the various chapters of the agreement. Three additional committees and groups address "horizontal" issues related to the negotiations. This latter group includes the Committee of Government Representatives on the Participation of Civil Society, created to facilitate the input of the business community, labor, environmental, academic groups, and others who wish to present their views on the issues under negotiation in a "constructive" manner.

Hailing free trade as a victory for the American economy, (105) on August 6, 2002, President George W. Bush signed into law the Bipartisan Trade Promotion Authority Act of 2002 (TPA). (106) Equating trade agreements to security pacts during the Cold War, Congress declared the expansion of international trade as "vital to the national security of the United States." (107) Lest anyone question the patriotism of free trade advocates, Congress boldly proclaimed that trade win "create new opportunities for the United States and preserve the unparalleled strength of the United States in economic, political, and military affairs." (108) Congress further stated that United States leadership in international trade "fosters open markets, democracy and peace throughout the world." (109)

The TPA authorizes the Executive to negotiate comprehensive trade accords before submitting the entire trade package to Congress for a single thumbs up or down vote. TPA section 2101 enumerates both the "overall" and "principal" trade negotiating objectives established to guide trade negotiators in FTAA and other trade negotiations. (110) The overall objectives contain two critical references to environment, firmly embedding trade and environment linkages directly into any trade accords negotiated under the auspices of the TPA. Section 2101(a)(5) ensures that trade and environment policies are "mutually supportive" as well as seeking "to protect and preserve the environment and enhance the international means of doing so, while optimizing the use of the world's resources." (111) Section 2101(a)(7) identifies the need "to seek provisions in trade agreements under which parties strive to ensure that they do not weaken or reduce the protections afforded in domestic environmental and labor laws as an encouragement for trade." (112)

The principal trade negotiating objectives also make explicit mention of environmental considerations. Section 2102(b)(11)(A) seeks to ensure that a party to the trade agreement does not gain a trade advantage by failing to "effectively enforce" its environmental law in a "recurring course of action or inaction." (113) Section 2102(b)(11)(D) states the objective of strengthening the capacity of the United States trading partners "to protect the environment through the promotion of sustainable development." (114) Additionally, the provisions seek to "reduce or eliminate government practices or policies that unduly threaten sustainable development" (115) as well as other provisions supporting the United States's "environmental technologies, goods and services." (116) The TPA further outlines principal trade negotiating objectives bearing on important environmental matters in sections on foreign investment, (117) transparency, (118) and dispute settlement. (119)

Much of the environmental content of the TPA is from the NAAEC, and NAAEC-inspired language in the United States-Jordan, and United States-Chile free trade agreements. (120) The lack of specific direction to negotiators on how to best fulfill the objectives related to environment provides the administration wide latitude in interpreting these objectives. Free trade advocates hostile to including significant environmental content in trade accords will no doubt contend that the alleged beneficial effects of free trade on the environment will in large part ensure that the environmental objectives of any agreement are met. In other words, liberalizing trade will establish the economic and investment climate necessary to improve environmental protection and conservation. It is risky, however, for the United States Trade Representative (USTR) to incline too far towards such cavalier certitudes. In the end, USTR interprets the TPA at its peril because a Congress of unknown composition will have the final say in determining the extent to which the administration hews to the letter and spirit of the overall and principal trade negotiating objectives. Without question, the NAAEC will represent a critical benchmark against which the environmental objectives will likely be measured.

B. Environmental Considerations in the Free Trade Area of the Americas

Implicit in many of the concerns regarding free trade is the notion that most developing countries lack the legal, institutional, and technical infrastructure necessary to protect vulnerable resources from the voracious appetites of northern consumers, or from the overexploitation of local elites. After all, one seldom hears environmental concerns voiced about free trade with the Nordic countries or Monaco. The often unstated worry is that these countries will be plundered of their natural riches long before rising incomes induce citizens to place more value on environmental assets like biodiversity or neotropical forests. (121)

1. Latin America and the Caribbean: An Ecological Treasure Trove

Latin America and the Caribbean rank among the world's most bountiful, diverse, and fragile regions, hosting nearly half of the earth's plant and animal species. (122) The region supports nearly one-quarter of the world's forest cover, covering nearly half of the total land area. (123) Seven of the world's twenty-five most biologically rich terrestrial ecoregions are found here. (124) The Amazon Basin, with its more than nineteen different rainforest types, boasts the world's most extensive tropical rainforest. In addition, it is considered among the world's richest ecosystems in terms of biodiversity. (125) Latin America's river systems, lakes, and vast coastal areas also represent productive habitats with a high diversity of species. The Caribbean alone contains approximately 12,000 square miles of magnificent coral reefs, around seven percent of the world's total. (126)

Despite its natural bounty, the region is plagued by the familiar litany of environmental threats. The rate of deforestation in Latin America and the Caribbean is one of the highest in the world, averaging a loss of 0.48% annually. (127) Conversion of forest land and forest degradation pose a serious threat to biodiversity, and to the long-term economic viability of many areas. (128) As a consequence of habitat conversion and loss, 31 of the 178 ecoregions in Latin America and the Caribbean "are in a critical state of conservation, 51 are endangered and 55 are vulnerable." (129) Despite having more than thirty percent of the world's renewable freshwater resources, per capita water availability is decreasing, and the region faces numerous threats to surface and subsurface water quality. (130) Urban air quality, municipal and hazardous waste disposal, overexploitation of fisheries, and illegal trade in wildlife also represent major challenges in many parts of region.

2. Scale and Composition Effects

The environmental effects of increased trade in the FTAA region will depend significantly on which areas of Latin America's economies expand or contract and by how much--so-called "compositional effects and scale effects." For example, whether a country exploits its comparative advantage to produce and export more computer software or tropical hardwood obviously impacts areas where environmental stresses may be felt due to the nature of the specialization a country pursues. Specialization in some areas may implicate other issues. To illustrate, cultivating a smaller number of crops may diminish the gene pool in a region, and increase the "instability of the ecological system." (131) Though working through these scenarios requires careful analysis and robust data sets, some generalizations for the region are nonetheless warranted. (132)

In general, macroeconomic reforms favoring export-driven growth in Latin America have created incentives for investment, production, and export in natural resource-intensive industries. (133) The United Nations Environment Programme's GEO-2000 notes that "[m]ost Latin American economies still rely on the growth of the export sector and on foreign capital inflows, regardless of the consequences to the environment." (134) Indeed, in 1996, natural resource-based products dominated the export profile of almost every country in the region--except Mexico and Nicaragua--with the share of five leading products in total exports often constituting over one-half of all exports. (135) "During the 1990s, the export volumes of a number of sectors with obvious environmental impact (such as primary products and environmentally sensitive industries) increased by factors of 2 or 3 in most of the Mercosur and Andean Community countries [free trade zones]." (136) South America has specialized in "environmentally sensitive and natural-resource-intensive industries, but has suffered a relative loss in the ability to compete in knowledge-intensive or high-technology sectors." (137)

The thicket of complexities that besets those attempting to assess the environmental impacts of liberalized trade need not distract us from a few fairly straightforward observations about many of the nations in the FTAA region. Several FTAA countries possess immensely valuable natural resources, yet often lack the means to safeguard protected areas (so-called "paper parks"), as well as to implement and enforce environmental and land-use laws. Environmental ministries in the region are chronically underfunded and their power and influence is usually dwarfed by their counterparts holding trade and economic portfolios, including key sectors such as natural resources and agriculture. Additionally, environmental officials and staff often lack technical skills, and capacity building efforts remain badly undernourished.

In the policy realm, crosscutting policies favoring sustainable development are seldom effectively integrated into national policies. Land tenure and property rights are often ill-defined, disputed, or both. (138) Worse yet, a number of FTAA countries contain large, virtually ungovernable areas--often rich in natural resources--outside the control of elected governments. These areas are usually inaccessible, a condition that often contributes to their biological and cultural diversity.

A free trade agreement that fails to take cognizance of this reality and simply leaves it to markets to address environmental deficiencies could accelerate the despoilment of some of the most treasured places remaining on earth. Yet developed countries can hardly deprive other countries access to markets on the sole grounds that they do not want to hasten the demise of threatened ecological and cultural assets. In many cases, these resources are not currently being managed in a sustainable manner and forestalling trade may just buy a little time by suppressing demand. In others, free trade may relieve pressure from vulnerable areas by substituting for resources located somewhere else. Faced with such daunting complexities and paradoxes, a politically expedient response by free trade advocates simply may be to shrug their shoulders and toss a few token dollars at conservation and capacity-building programs. By giving short shrift to the developmental challenges facing Mexico, some might conclude that the woefully underfunded NAFTA environmental side agreement essentially does just that.

IV. TOWARDS THE FTAA: INVESTING IN ENVIRONMENTAL PROTECTION AND STRENGTHENING AND EXPANDING THE CEC

In current FTAA negotiations, U.S. officials have made the enforcement of environmental laws the most visible plank in their strategy to meet the environmental objectives set out in the TPA. While enforcement remains an important consideration, the CEC's work on the impacts of free trade suggest greater attention should be placed on assessing and, if necessary, improving a country's environmental infrastructure, including its technical and legal capacities. As discussed, increased trade may stress or overwhelm a developing country's immediate capacity to adequately protect its environment. Since there is no indication that welfare gains generated by free trade quickly translate into increased budgets and resources for environmental and health authorities, future trade agreements should recognize the role of free trade in both exacerbating and, potentially, solving this problem.

In light of the NAFTA experience, an increasing number of commentators are urging policy makers to make a more determined effort to address the developmental components that exacerbate environmental market failures in free trade zones. (139) The NAAEC framework embraces developmental issues, but cannot take on this challenge without a massive infusion of capital and political will. (140) Those who take stock in Ministerial Declarations will be heartened that FTAA countries consistently have promised to "take into account" the broad social and economic objectives outlined in the Miami Summit process and elsewhere. The often elusive notions of "sustainable development" are firmly embedded in these broader objectives. Similarly, the TPA recognizes the need to build capacity in developing countries and nods in the direction of mutually supportive trade and environment policies.

Yet there are already unmistakable signs that the broader social and ecological objectives enshrined in the Miami Summit process are being shunted back onto what can only be labeled "slow track." The United States and Chile have agreed to a NAFTA-type accord for free trade, and the United States is in the advanced stages of concluding similar agreements with the Central American region. (141) Neither address the "readiness" concerns relating to natural resource conservation or environmental protection, nor do they sequence liberalization in sensitive areas with reference to ecological or developmental benchmarks. In short, they put off the key developmental issue of the method by which Latin American countries will scare up the resources to protect and conserve their environments until later. Meanwhile, the beleaguered FTAA Committee of Government Representatives on the Participation of Civil Society has utterly failed to act as an effective proxy for bringing broader developmental and environmental issues to the table.

Clearly, some FTAA countries appear to regard the execution of trade and investment accord as a necessary precondition to pursuing the broader economic and social goals alluded to in the Miami Summit process. It follows that such goals will be pursued in a traditional manner, outside the trade arena, where such efforts usually founder for lack of funding and political impetus. In the end, this line of action rests on the risky assumption that, in the near term, increased trade will generate the resources needed to foster basic environmental and health improvements.

Just as the United States openly seeks to extend free trade in order to preserve its unparalleled global economic, political, and military strength, surely Latin American countries can set out to achieve specific developmental objectives, including those espoused in the Bolivia Summit Plan of Action for the Sustainable Development of the Americas and the Implementation Plan of the World Summit on Sustainable Development in Johannesburg. The pace and depth of economic integration in key areas plagued by market failures and institutional deficiencies should be sequenced and tied to making progress towards meeting specific ecological goals and benchmarks. In some measure, the worst nightmare of the most zealous free trade advocates is to see the free trade agenda hijacked by developmental concerns. But even the TPA can be read to support this linkage, and politicians and bureaucrats at the highest levels have consistently given lip service to the pursuit of broad social, economic, and environmental goals in the Miami Summit process. (142)

Despite the TPA's avowed goals of improving the environment in developing countries, the Unites States almost certainly will oppose efforts to sequence liberalization in selected areas based on developmental benchmarks. Instead, it will be up to Latin American and Caribbean countries to insist on such an approach. The transformation of the political landscape in Argentina, Brazil, Ecuador, Peru, and Venezuela may relax these countries' firm embrace of neoliberal trade policies, establishing a more solid front for linking developmental objectives to trade policy in the FTAA. At the same time, these countries traditionally have exhibited distrust towards the "green" trade agenda of developed countries. However, understanding the environmental impacts of liberalizing trade in sectors such as agriculture, mining, fishing, forestry, or energy and ensuring that adequate policies are in place to buffer significant adverse impacts should not be confused with more contentious aspects of the broader North-South trade and environment relationship. (143) To the contrary, including mechanisms to address such impacts into trade agreements is an imperative of the most basic tenets of sustainable development, a concept embraced by every nation in the Americas. At minimum, Latin American countries should take stock of recent experience with NAFTA and undertake a more searching assessment to assure that basic domestic policies safeguarding environmental, health, and social goals are in place prior to adopting aggressive liberalization measures in a handful of sensitive environmental sectors. (144)

A. Ignoring Developmental Needs Will Undermine U.S. Efforts to Promote the Effective Enforcement of Environmental Law in Latin America

Without addressing the institutional and technical shortcomings that impair a country's ability to protect its environment and its citizens' health, Latin American countries will surely not meet the U.S. goal of maintaining a level playing field by effectively enforcing their environmental laws. Enforcement is the end product, not starting point, for a stable regulatory program with a robust monitoring, inspection, and compliance regime. Without adequate legal, institutional, and technical capacity--the "building blocks" of environmental protection--enforcement is likely to remain anything but effective. (145)

B. The Need to Adapt the Mandate, Structure, and Procedures of the NAAEC for FTAA Expansion

The NAAEC will be considered as a potential model of regional environmental cooperation as free trade expands into the Americas, even if the environmental provisions of the FTAA are embedded directly into the text of the trade agreement. Some will argue that, as part of the trade agreement, any environmental provisions should be housed in and administered by the relevant governmental departments, without the need for a new international organization or one overseen by the Organization of American States (OAS). Advocates for environmental and health concerns will call for an independent Secretariat as an institutional counterweight to muscular trade bodies. Still others may regard the NAAEC as best suited for promoting cooperation between bordering states only. (146)

Whatever form it takes, our deeper understanding of the ecological connections across the continent call for an expansion of those aspects of the NAAEC that address transboundary environmental issues more than bilateral in nature. Even an organization with continental reach will find it challenging to prioritize among the many regional issues on the crowded agenda. (147)

Ultimately, our growing understanding of ecological connections and interdependencies may bedevil all but the simplest formulation of transboundary spillovers. For example, even the most traditional exercise of sovereign rights to allocate development rights and regulate local land-use practices may have a direct and substantial impact on regional environmental issues, as in the case of habitat loss in critical wintering grounds of the Monarch butterfly (Danaus plexippus) or impaired migratory songbird habitat. The slippery slope to connectedness descends further when considering the lifecycle impacts of traded goods or services, including impacts on biodiversity, land, air, and water--systems that seldom respect national boundaries. Rather than exclude, a priori, consideration of less obvious issues of multilateral concern, an expanded agreement should identify some early priorities and establish a relevance test to ensure that its activities bear a strong relationship to an important transboundary matter of concern in the FTAA region.

In the end, it is not that important whether the CEC is merged into a pan-American organization or relates to other regions organized and operated under similar principles. The argument that the language of the NAAEC is best suited for North American border countries does not hold up under scrutiny, as many of the more successful CEC initiatives could be, and in some cases are being, expanded further south. (148) Adding additional countries presents some fairly straightforward managerial, organizational, and administrative challenges. Most of these challenges can be addressed by establishing regional working groups and action plans adapted for geographic, economic, cultural, and ecological circumstances.

Finally, the FTAA should provide meaningful incentives for greater harmonization and compatibility of environmental standards, particularly where failing to achieve compatibility can diminish the effectiveness of other strategies or lead to trade and environment disputes. Compatibility efforts should be guided by the commitment to maintain high levels of environmental protection, and those undertaking them should receive adequate resources to carry out their work in a manner similar to the many working groups and committees established under NAFTA. (149)

1. Fine-Tuning the NAAEC Mandate: Strengthening Citizen Submissions

The Article 14 citizen submission process empowers citizens to allege that a party to NAFTA is failing to effectively enforce its environmental laws. (150) The mechanism is regarded as perhaps the most innovative aspect of the NAAEC. (151) However limited, the citizen submission process opens a window for civil society to interact with an international organization in areas formerly reserved only for nation-states. It provides a fresh, if brittle, accountability and transparency mechanism that begins to address some of the growing concerns about the governance of international institutions in the era of globalization.

Inclusion of a citizen submission procedure into the FTAA represents no small challenge, as developing countries are likely to regard the enforcement-related focus as aimed primarily at them, further intruding on traditional areas of national sovereignty. (152) The concern that citizen submission proceedings may lay the groundwork for monetary enforcement proceedings (sanctions) brought by states further complicates the inclusion of similar provisions in the FTAA. Indeed, the prospects for including the novel citizen submission procedure in the FTAA is inseparably tied to the fate of monetary enforcement assessments for persistent failures to effectively enforce environmental law. (153)

It is important to push hard for inclusion of a strengthened citizen submission process in the FTAA, even at the expense of the hard-won state-to-state sanctions provisions. For one thing, it will be very difficult to persuade FTAA countries to agree to sanctions for the same reasons Mexico strenuously resisted them in the NAFTA negotiations. U.S. negotiators are unlikely to make concessions in other areas to gain leverage for such a demand, and the ability of the United States to strong-arm reluctant parties is diminished with so many players hostile to the idea. (154) Moreover, the obtuse design and lack of implementation of the current provisions appears calculated to ensure that such claims are never brought in the first place. (155)

The notion that countries only take seriously the citizen submission procedure out of fear that the facts aired in the process may later become a predicate to a state-sponsored sanctions claim is not lightly dismissed. From time to time officials have stated this concern off the record, and the CEC Council's recent efforts to limit the scope of factual inquiries to particularized claims may have the effect--and perhaps the intent--of undercutting investigations into persistent patterns of nonenforcement.

Without sanctions for persistent failures to enforce environmental laws, environmental advocates are understandably loathe to rely on the good faith of governments to implement the citizen submission process. So far, their misgivings have proven well-founded. The success of the submitters' (and media's) efforts to call attention to serious enforcement-lapses holds the key to determining the utility of the process. In the end, the extent to which the process empowers groups or individuals concerned about enforcement matters will, in turn, depend on whether the mechanism can trigger the accountability dynamics of democratic societies. In other words, it reduces to the simple question of whether anyone will give a hoot. (156)

2. Reinforcing Secretariat's Autonomy to Recommend and Prepare Factual Records

As discussed above, the NAAEC citizen submission process grants civil society an avenue for raising concerns related to free trade directly to the attention of an international organization. To build confidence, trust, and legitimacy in the eyes of the public, the citizen submission process must be strengthened to restore and insulate the Secretariat's independent authority to review submissions and develop factual records. Regrettably, the parties have not demonstrated the restraint required to give the process breathing room, and recent encroachments on Secretariat autonomy threaten to undermine the process entirely. (157)

In the FTAA, the Secretariat should have full authority to prepare, develop, and release factual records based on allegations that a party has failed to effectively enforce its environmental laws without need to submit recommendations for developing or making public a factual record to Council vote. Permitting the Council to vote on factual records injects an unwelcome political dimension to a mechanism designed to independently assess government action or inaction. Trade tribunals rendering binding decisions on multimillion dollar claims against governments by investors face no such hurdle; certainly a nonadjudicative, fact-gathering procedure should not either.

Dispensing with the two-thirds voting arrangement for factual records will avoid politicizing decision making in this area, while at the same time expediting the process considerably. (158) Moreover, in an expanded FTAA Council of Ministers, the current two-thirds voting arrangement makes little sense. The FTAA should not squander valuable resources in determining whether, say, Uruguay will vote to authorize a factual record against Canada. Such a procedure would invariably lead to back room bargaining over other issues, consuming scarce energy and resources better directed elsewhere.

Finally, Articles 14 and 15 should be rewritten to strengthen the Secretariat's ability to develop factual records. Currently, factual records are not to include conclusions or recommendations, a restriction draining the vitality out of investigations and drawing the parties and Secretariat into Kantian discourses on what constitutes a fact. The current ambiguities over the scope and content of factual records invites gamesmanship between the Secretariat and Council, with the public losing out on a clear and constructive airing of relevant enforcement issues. With the Damocles sword of enforcement sanctions no longer looming over the FTAA parties, an independent Secretariat should be able to connect the dots and reach conclusions about alleged failures to enforce environmental laws.

3. Considering Allegations that Specific Trade Policies or Practices Are Harming or Threatening to Harm National or International Efforts to Protect Human Health and the Environment

The NAAEC citizen submission process arose out of specific concerns about enforcement practices and their relation to economic competitiveness. Nearly a decade of experience under NAFTA should lead us to adopt a similar public procedure to examine in an open and transparent fashion the alleged adverse impacts of free trade on the environment and human health.

Assessment of potential environmental impacts of liberalized trade is now required in Canada and the United States prior to entering into trade agreements. (159) The U.S. assessments are typically evaluated in a generic, top-down process driven by trade officials, and are only required to evaluate the often de minimis impact on the environment of the United States. Rather than examine regional and local impacts in specific ecosystems, these studies generalize from aggregated national data. Acknowledging the utility of such macro studies, the CEC nonetheless concluded that many key local or regional impacts are lost if these macro studies are not supplemented by local, regional, or sectoral studies. (160) Often local impacts are best identified at the local level, where stresses on local forests, watersheds, airsheds, or ecosystems are more likely to escape the attention of those looking at aggregated figures covering huge territories. In the first instance, local communities are often in the best position to judge whether an impact is indeed feared or felt. Pressures on a local hardwood forest, coastal fishery, or aquifer are not likely to be reflected in studies lumping all such natural resources into aggregated national categories.

Naturally, such claims should meet appropriate screening criteria, including a threshold level of substantiation. (161) Once the threshold criteria is met, the Secretariat would undertake further study, and if warranted, empanel experts to assess the claim and recommend preventative or remedial measures to address major impacts.

The fact that FTAA trade practices or policies may be only one of many contributing factors to environmental degradation or adverse health impacts is hardly a reason not to undertake such studies. The FTAA body empowered to assess alleged trade impacts would spend considerable resources addressing concerns only where experts determined that trade or investment is likely to be a substantial factor causing or aggravating the harm to human health or the environment. Even where strict causality proved elusive, a discussion of relevant variables and relationships would deepen our understanding of environment-health-economy linkages and inform a much more robust FTAA regional environmental monitoring and reporting regime.

Granting citizens a voice in calling attention to possible environmental or health impacts of free trade may appear to radically depart from current practice, though in fact the departure is one of degree and not class. For several years now the CEC Secretariat has managed an independent process to assess the environmental impacts of free trade. (162) To test the assessment framework, the CEC invites the public to provide information on linkages between trade, the economy, and the environment. The CEC has also offered limited funding to a wide variety of institutions whose studies and findings are presented and critiqued at public symposia. (163) Governments should institutionalize this valuable process in addition to funding meaningful follow-up for priority issues.

Broadening the avenue for the public to monitor and assess the local, regional, and hemispheric impacts of free trade will balance the agreement's preoccupation with competitive effects with its overarching goal of improving environmental conditions in the region. Equally important, granting the public an expanded role in agenda-setting will help legitimize the functions of the institution as it heightens awareness of the complex interdependencies of globalized trade and sustainable development.

Based on the experience with the NAAEC, such a mechanism should be politically feasible. To date, the parties have supported independent reports developed by the Secretariat in sensitive areas exploring trade impacts. (164) The process enables less-developed regions in all FTAA countries to gain an audience for evaluating important, and sometimes unforeseen, issues. The process would help build capacity for analyzing important trade-economy-environment relationships, and could also debunk harmful public perceptions about some alleged trade and environment connections that lack foundation or prove baseless. Calling attention to such issues will also attract resources and contribute to more holistic and comprehensive solutions to these complex areas of public policy.

Opponents of allowing publicly-driven inquiries into trade and environmental relationships are bound to point out that a country may already justify trade restrictive measures necessary to protect health or the environment by availing itself of the "environmental or public health" exceptions of Article XX of the General Agreement on Tariffs and Trade (GATT), (165) or their NAFTA (or FTAA) equivalents. But trade panels have been extremely reluctant to construe these exceptions in a permissive manner, and the fact remains that developing countries scarcely have the resources to develop the foundational case for invoking the exceptions, nor do they have the leverage to apply countervailing duties if they prevail. This mechanism would act proactively long before a party would have to take recourse to formal trade rules by creating a forum with an extensive regional network of environmental experts to analyze environmental and health conditions. A small subset of such studies might help establish a foundation for invoking the Article XX exceptions, or adopting other trade measures to remedy or mitigate harmful effects. Fully vetting the issue would probably help get the attention of policy makers at a much earlier stage, allowing governments to address serious issues cooperatively.

After all the inevitable carping about the creation of such a process, ultimately the question comes down to this: If private investors are to enjoy the ability to sue nation-states directly for allegedly depriving them of the fruits of their investments, is it too much to ask that citizens be provided a means of alleging that specific trade practices are harmful to their health or environment?

V. CONCLUSION

Traditionally, environment and trade policies have defied the integrative logic of sustainable development by remaining on distinctly separate tracks. (166) The European Union's notable break from this tradition is unlikely to signal a trend. The United States has reacted coolly--if not outrightly indifferent--to Mexican President Fox's proposals for a North American common market based on something akin to the European Union model.

Advocates of integrating environmental considerations into free trade agreements are left with little alternative other than trying to siphon off a tiny fraction of the multitrillion dollar trade flow to fund hemispheric environmental prerogatives. Conditioning free trade on meaningful support for environmental and health systems may draw charges of "greenmail" from free trade advocates reluctant to see trade accords encumbered by "other" issues. However characterized, the NAFTA experience confirms the linkage in certain circumstances between environmental institutional infrastructure and local capacity and trade impacts. There is little doubt that the pace of environmental change is accelerating and we need rapid response capability based on timely and reliable information. If we are serious about avoiding major impacts from allowing unfettered access to markets, ultimately we cannot avoid addressing those root causes associated with trade. For the growing number of those recognizing the urgent need to improve environmental institutions and infrastructure to handle the demands of free trade in a globalized economy, the FTAA may be our last clear chance to get it right.

(1) North American Free Trade Agreement, Dec. 8, 11, 14, & 17, 1992, Can.-Mex.-U.S., 32 I.L.M. 289 [hereinafter NAFTA].

(2) North American Agreement on Environmental Cooperation, Sept. 8, 9, 12, & 14, 1993, Can.-Mex.-U.S., 32 I.L.M. 1480 [hereinafter NAAEC].

(3) Bipartisan Trade Promotion Authority Act of 2002, Pub. L. No. 107-210, 116 Stat. 933 (to be codified at 19 U.S.C. [subsection] 3801-3813).

(4) SCOTT VAUGHAN & GREG BLOCK, COMMISSION FOR ENVIRONMENTAL COOPERATION OF NORTH AMERICA, FREE TRADE AND THE ENVIRONMENT: THE PICTURE BECOMES CLEARER 7 (2002) [hereinafter VAUGHAN & BLOCK], available at http://www.cec.org/files/pdf/ECONOMY/FreeTrade-en-fin.pdf.

(5) Id.

(6) Id.

(7) Deputy U.S. Trade Director Peter Allgeier, The NAFTA Experience and Hemispheric Integration, Address at the Parliamentary Summit for Hemispheric Integration 3 (Nov. 19, 2002) (transcript available at http://www.ustr.gov/speech-test/assistant/2002-11-19_Allgeier.PDF).

(8) Id.

(9) VAUGHAN & BLOCK, supra note 4, at 7.

(10) The negotiating history of NAFTA and its environmental side accord is well documented and has attracted considerable scholarly attention. See NAFTA & THE ENVIRONMENT: SUBSTANCE AND PROCESS 3-6 (Daniel Magraw ed., 1995); JOHN AUDLEY, GREEN POLITICS AND GLOBAL TRADE: NAFTA AND THE FUTURE OF ENVIRONMENTAL POLITICS (1997); BARBARA HOGENBOOM, MEXICO AND THE NAFTA ENVIRONMENT DEBATE: THE TRANSNATIONAL POLITICS OF ECONOMIC INTEGRATION (1998); FREDERICK W. MAYER, INTERPRETING NAFTA: THE SCIENCE AND ART OF POLITICAL ANALYSIS (1998); PIERRE MARC JOHNSON & ANDRE BEAULIEU, THE ENVIRONMENT AND NAFTA: UNDERSTANDING AND IMPLEMENTING THE NEW CONTINENTAL LAW (1996); Gustavo Alanis-Ortega & Ana Karina Gonzalez-Lutzenkirchen, No Room for the Environment: The NAFTA Negotiations and the Mexican Perspective on Trade and the Environment, in GREENING OF THE AMERICAS: NAFTA'S LESSONS FOR HEMISPHERIC TRADE 41 (Carolyn Deere & Daniel Esty eds., 2002) [hereinafter GREENING OF THE AMERICAS]; DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY (2d ed. 2002). Only recently have commentators begun to assess the merits of expanding the approach deeper into the Americas. See generally GREENING OF THE AMERICAS, supra (exploring the economic and environmental impacts of NAFTA and analyzing options for the FTAA negotiations); see generally ENVIRONMENTALLY SOUND TRADE EXPANSION IN THE AMERICAS: A HEMISPHERIC DIALOGUE (Robin L. Rosenberg ed., 2000) (discussing challenges and opportunities in trade expansion in the Americas); THE GREENING OF TRADE LAW: INTERNATIONAL TRADE ORGANIZATIONS AND ENVIRONMENTAL ISSUES (Richard Steinberg ed., 2003) [hereinafter GREENING OF TRADE LAW]; JAN GILBREATH, AMERICAS PROGRAM CTR. FOR STRATEGIC & INT'L STUDIES, ENVIRONMENT AND TRADE: PREDICTING A COURSE FOR THE WESTERN HEMISPHERE USING THE NORTH AMERICAN EXPERIENCE (2001), available at http://www.csis.org/americas/pubs/pp_gilbreath.pdf.

(11) NAFTA, supra note 1, pmbl., 32 I.L.M. at 297.

(12) Id.

(13) Id. at 297-98. The trade agreements listed include: the Convention on International Trade in Endangered Species of Wild Fauna & Flora, the Montreal Protocol on Substances that Deplete the Ozone Layer, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, and two bilateral environmental cooperation agreements.

(14) See Julie Soloway, NAFTA: Alternative Models of Managing Trade and the Environment, in GREENING OF TRADE LAW, supra note 10, at 161-47 (discussing these provisions).

(15) Id. For example, NAFTA places the evidentiary burden on the party challenging an SPS measure as inconsistent with the Agreement. NAFTA, supra note 1, art. 723(6), 32 I.L.M. at 382. Articles 2014 and 2015 allow expert scientific evidence to be considered by panels on any issue that may affect environmental health or safety. NAFTA, supra note 1, arts. 2014 & 2015, 32 I.L.M. at 696-97.

(16) NAFTA, supra note 1, art. 1114, 32 I.L.M. at 642.

(17) See HOWARD MANN & KONRAD VON MOLTKE, INTERNATIONAL INSTITUTE FOR SUSTAINABLE DEVELOPMENT, NAFTA's CHAPTER 11 AND THE ENVIRONMENT: ADDRESSING THE IMPACTS OF THE INVESTOR-STATE PROCESS ON THE ENVIRONMENT 1, 38 (1999), available at http://iisd.ca/pdf/nafta.pdf. The Public Broadcasting Service featured a special hosted by journalist Bill Moyers on NAFTA Chapter 11. Now with Bill Moyers: Trading Democracy, the Other Chapter 11 (television broadcast, Feb. 1, 2002), available at http://www.pbs.org/now/transcript/transcript_tdfull.html. For a less apocalyptic take on Chapter 11, see Sanford E. Gaines, Protecting Investors, Protecting the Environment: The Unexpected Story of NAFTA Chapter 11, in GREENING NAFTA: THE EXPERIENCE AND POTENTIAL OF THE NORTH AMERICAN COMMISSION FOR ENVIRONMENTAL COOPERATION (David L. Markell & John H. Knox eds., forthcoming September 2003) (manuscript at 264, on file with author) [hereinafter GREENING NAFTA]. Some of these concerns have found their way into the FTAA negotiating objectives. See Bipartisan Trade Promotion Authority Act of 2002, Pub. L. No. 107-210, [section] 2102(b) (3), 116 Stat. 933, 995 (to be codified at 19 U.S.C. [section] 3802(b)(3)) (addressing the interpretation of investment provisions in a manner consistent with U.S. law, transparency, and accessibility of trade tribunals).

(18) The Preamble of the NAAEC recognizes the interrelationship of the environments of the three countries, acknowledges the growing economic and social links between them, and underscores the essential role of cooperation for conservation, protection, and enhancement of the environment for future and present generations.

(19) See, e.g., NAAEC, supra note 2, art. 10, 32 I.L.M. at 1485-87 (providing a non-exhaustive list of potential areas for regional cooperation); see also Greg Block, The CEC Cooperative Program of Work: A North American Agenda for Action, in GREENING NAFTA, supra note 17 (manuscript at 50-51, 61, 66, on file with author).

(20) NAAEC, supra note 2, arts. 3, 5, 32 I.L.M. at 1483-84. The NAAEC also requires the parties to publish their environmental laws, allow persons appropriate access to legal proceedings for the enforcement of laws, and ensures that legal proceedings are fair and open. NAAEC, supra note 2, arts. 4, 6-7, 32 I.L.M. at 148-85.

(21) NAAEC, supra note 2, arts. 14-15, 32 I.L.M. at 1488-89. This "sunlight mechanism" has drawn considerable attention from scholars, nongovernmental organizations, and the media. See generally John Knox, A New Approach to Compliance with International Environmental Law: The Submissions Procedure of the NAFTA Environmental Commission, 28 ECOLOGY L.Q. 1 (2001); David Markell, The CEC Citizen Submission Process: On or Off Course? in GREENING NAFTA, supra note 17 (manuscript at 422-23, on file with author); Paul S. Kibel, Awkward Evolution: Citizen Enforcement at the North American Environmental Commission, 32 Envtl. L. Rep. (Envtl. L. Inst.) 10,769 (2002).

(22) NAAEC, supra note 2, art. 24, 32 I.L.M. at 1490-91.

(23) Id. annex 34(3), 32 I.L.M. at 1496.

(24) Id. art. 2, [section] 1(a), 32 I.L.M. at 1483; Id. art. 10, [subsection] (2) (a)-3, 32 I.L.M. at 1485-86; Id. art. 12, [section] 3, 32 I.L.M. at 1487.

(25) Id. art. 10, [section] 6(a)-(e), 32 I.L.M. at 1486.

(26) Id. art 10, [section] 6(d).

(27) Id. art. 13, 32 I.L.M. at 1487-88.

(28) Id. art. 10, [section] 3(b), 32 I.L.M. at 1486. The agreement merely establishes the Council's authority to develop "recommendations" on such processes.

(29) Both of these goals are restated in the TPA as U.S. negotiating objectives for the FTAA. See infra notes 111-16.

(30) Such conduct would not currently be considered an "actionable subsidy" justifying the imposition of countervailing duties under trade law. See generally David A. Gantz, A Post-Uruguay Round Introduction to International Trade Law in the United States, 12 ARIZ. J. INT'L & COMP. L. 7, 48-53, 81-85 (1995).

(31) For discussion of this predicament, see supra note 10.

(32) NAAEC, supra note 2, art. 3, 32 I.L.M. at 1483.

(33) See, e.g., id art. 10, [section] 6, 32 I.L.M. at 1486.

(34) See Alanis-Ortega & Gonzalez-Lutzenkirchen, supra note 10, at 51-56 (discussing Mexico's distrust of U.S. intentions during NAFTA negotiations); Monica Araya, Mexico's NAFTA Trauma: Myth and Reality, in GREENING OF THE AMERICAS, supra note 10, at 62-66, 71, 73 (discussing how Mexican trade officials' concern about environmental considerations may disguise protectionist intentions); Eric Miller, Did Mexico Suffer Economically from the NAFTA Environmental Provisions?, in GREENING OF THE AMERICAS, supra note 10, at 79, 92 (discussing Mexican officials' concerns about "green protectionism"). Generally speaking, South American countries are wary of U.S. extraterritorial measures such as those imposed in the highly publicized United States-Mexico Tuna-Dolphin dispute, in addition to fearing the eventual imposition of U.S. production and process standards. In the North, some free trade advocates question trade-environment linkages and argue against cluttering up liberalization efforts with extraneous issues. See AUDLEY, supra note 10, at 64-95 (exploring the interactions of political actors in the negotiation of NAFTA and its environmental side accord).

(35) The Working Committee remains detached from key negotiating committees and most environmental advocates dismiss the Committee as window dressing. See Carolyn L. Deere & Daniel C. Esty, Trade and the Environment: Reflections on the NAFTA and Recommendations for the Americas, in GREENING OF THE AMERICAS, supra note 10, at 341.

(36) For some, even a decade is too short a time frame to draw many conclusions from NAFTA. Some tariffs have yet to be eliminated and a few critical non-NAFTA macroeconomic events such as the "Tequila Crisis" of 1995 have complicated establishing causal relationships. A report commissioned by the regional chief economist's office of the Latin American and Caribbean Department of the World Bank provides more information. See WILLIAM EASTERLY ET AL., NAFTA AND CONVERGENCE IN NORTH AMERICA: HIGH EXPECTATIONS, BIG EVENTS, LITTLE TIME 25 (2003) (evaluating the impacts of events like the Tequila Crisis on Mexico), http://wbln0018.worldbank.org/LAC/LACInfoClient.nsf /1daa46103229123885256831005ce03b/300b9612b240d0f585256c4b006d6651 /$FILE/Easterly%20Fiess%20Lederman%20NAFTA%20and%20 Convergence%20in%20North%20America%20V10.pdf.

(37) For example, upon signing the TPA, President Bush stated, "History shows that as nations become more prosperous, their citizens will demand, and can afford, a cleaner environment." Press Release, The White House Office of the Press Secretary, Remarks by the President at Signing of the Trade Act of 2002 (Aug. 6, 2002), http://www.tpa.gov/WH-Pres-TPA-signing.htm.

(38) For two good summaries of how trade liberalization may harm or benefit the environment, see ERIC NEUMAYER, GREENING TRADE AND INVESTMENT: ENVIRONMENTAL PROTECTION WITHOUT PROTECTIONISM 103-109 (2001), and HAKAN NORDSTROM & SCOTT VAUGHAN, WORLD TRADE ORGANIZATION, SPECIAL STUDIES 4: TRADE AND ENVIRONMENT 35-46 (1999), http://www.wto.org/english/tratop_e/envir_e/environment.pdf.

(39) "Technology effects" may, for example, improve environmental performance if cleaner and more efficient technologies are adopted The same holds true for more efficient and less polluting management techniques and "best practices." See, e.g., NEUMAYER, supra note 38, at 104.

(40) Rapid advances in extractive, processing, and transportation technologies, combined with the advent of truly global markets, can have a swift and dramatic impact on vulnerable natural resources, such as fisheries and forests. The plight of the magnificent bluefin tuna (Thunnus thynnus) provides a vivid illustration of the potential impact of technology and global markets on badly managed resources. Enhanced sonar and fish detection technologies and aerial surveillance enabled fishermen from the United States and around the world operating in the Atlantic to decimate stocks of bluefin. See CARL SAFINA, SONG FOR THE BLUE OCEAN: ENCOUNTERS BENEATH THE SEA AND ALONG THE WORLD'S COASTS 16, 17-18, 40 (1998) (discussing these technologies). Fishermen sought the premium paid onshore, before the fish were whisked by airfreight to the lucrative Japanese sushi market. Id. at 14. In the famous Tsukiji fish market, a single 715-pound fish could bring up to $180,000. Id. Similarly, once inaccessible tracts of timber in remote areas can now be "hell-logged," a process employing powerful new helicopters to dead lift felled trees. See, e.g., Posting of Alistair Sarre, [e-mail], to [e-mail] (Jul. 25, 1996), http://www.metla.fi/archive/forest/1996/07/msg00147.html (discussing pros and cons of heli-logging); see also Jim Willis, Va. Coop. Extension, Getting the Wood Out" Helicopter Logging in SW Virginia, 15 VA. FOREST LANDOWNER UPDATE (2001), available at http://www.cnr.vt.edu/forestupdate/Volume15/15_3_2.htm (describing heli-logging in the western United States). If effectively employed, such technologies could improve sustainable practices by, for example, improving monitoring of fish stocks or, in the case of heli-logging, selectively harvesting, timber without access roads. See, e.g., SWEET HOME, OREGON, COMMUNITY INFORMATION: HELICOPTER LOGGING, http://www.sweet-home.or.us/forest/helicopter (describing a training course for heli-logging that promotes the method as "environmentally sensitive") (last visited July 19, 2003).

(41) See Gaines, supra note 17, (manuscript at 264, on file with author).

(42) For a good sampling of the predicted impacts of NAFTA on environment and business, see generally COUNCIL FOR ENVIRONMENTAL COOPERATION AND TRADE SERIES NO. 2, NAFTA EFFECTS: CLAIMS AND ARGUMENTS 1991-1994 (1996). See also, HOGENBOOM, supra note 10, at 124-39. The World Bank Group provides a useful economic profile of Mexico at http:/lnweb18.worldbank.org/External/lac/lac.nsf /d5c7ea5f436e705852567d6006b50ff/45f0f54a7 e98f5aa852567ed00478f47?OpenDocument (last visited July 19, 2003).

(43) For a review of recent environmental data and trend lines, see COUNCIL FOR ENVIRONMENTAL COOPERATION, THE NORTH AMERICAN MOSAIC: A STATE OF THE ENVIRONMENT REPORT (2001) [hereinafter THE NORTH AMERICAN MOSAIC], available at http://www.cec.org/files/PDF/PUBLICATIONS/soe_en.pdf. The World Bank shows Mexican per capita GDP rising from $5,000 in 1982 to more than $8,000 in 1999. Kevin P. Gallagher, Industrial Pollation in Mexico: Did the NAFTA Matter?, in GREENING OF THE AMERICAS, supra note 10, at 121 (citing the World Development Indicators Database, World Bank 2000); Kevin P. Gallagher, The CEC and Environment Quality:. Assessing the Mexico Experience, in GREENING NAFTA, supra note 17 (manuscript at 187-91, on file with author) [hereinafter Gallagher, in GREENING NAFTA] (explaining that despite predictions to the contrary, economic growth did not always benefit the environment in Mexico).

Researchers face considerable difficulties in reconstructing past budgets for environmental departments in Mexico, largely due to multiple reorganizations and the lack of clarity in how budgets are aggregated under the "environment and natural resources" heading. A current official of the Mexican environmental ministry provided the following data: Environment and Natural Resources Sector Original Authorized Proposal

Year   Amount in Millions of Pesos

1995   4,221.8
1996   6,526.5
1997   9,198.8
1998   12,949.9
1999   13,316.0
2000   14,269.5
2001   14,400.5
2002   14,852.9
2003   17,404.2

E-mail from Daniella Aburto Valle, Researcher, to Greg Block, 2002-2003 Distinguished Environmental Law Scholar at Lewis and Clark Law School, (Mar. 21, 2003, 00:32:31 CST) (on file with author). The official Mexican government website reports the Official 2002 SEMARNAT budget is approximately 364 million pesos, or roughly $33.5 million. See MEXICO GOBIERNO DE LA REPUBLICA, PRESUPUESTO DE EGRESOS DE LA FEDERACION PARA EL EJERCICIO FISCAL 2002, at http://www.gob.mx/wb2/egobierno/egob_Presupuesto_de_Egresos_Federales (last visited July 19, 2003).

Spending on the environment has grown, but remains the lowest of all Organisation for Economic Cooperation and Development (OECD) countries. In relation to GDP, the average OECD country spends three times more than Mexico, and per capita the average OECD country spends six times more than Mexico. Gallagher, in GREENING NAFTA, supra (manuscript at 194, on file with author).

(44) See infra note 113. Similarly, both the United States--Jordan and United States--Chile Free Trade Agreement (not yet submitted to Congress) contain NAAEC-inspired provisions. See id.

(45) See, e.g., Miller, supra note 34, at 91 (suggesting that Mexico has not been harmed economically by the CEC).

(46) CEC-funded studies documenting increased exports of hazardous wastes from the United States to the Provinces of Ontario and Quebec due to less stringent treatment and disposal regulations, and the resulting Canadian government actions to address the trend, stand out as perhaps the best illustration of consequential trade-related CEC actions. See Mary E. Kelly & Cyrus Reed, The CEC's Trade and Environment Program: Cutting Edge Analysis, but Untapped Potential, in GREENING NAFTA, supra note 17 (manuscript at 171-72, on file with author) (discussing Ontario's decision to increase hazardous waste disposal restrictions in light of a study showing lax restraints as cause for an increase in exports of hazardous wastes from United States to Canada).

(47) See, e.g., Laura Carlsen & Hilda Salazar, Limits to Cooperation: A Mexican Perspective on the NAFTA's Environmental Side Agreement and institutions, in GREENING OF THE AMERICAS, supra note 10, at 222-26; PUBLIC CITIZEN, NAFTA'S BROKEN PROMISES: THE BORDER BETRAYED 65 (1996).

(48) The first CEC review initiated by the Secretariat was chaired by former Chair of the Senate Environment Committee, Sen. John Chafee (R-R.I.). Subsequently, the NAFTA parties commissioned three individuals to review the operation and effectiveness of the institution at the four-year mark, as mandated by NAAEC Article 10, section 1(b). INDEPENDENT REVIEW COMMITTEE, COMMISSION FOR ENVIRONMENTAL COOPERATION, FOUR-YEAR REVIEW OF THE NORTH AMERICAN AGREEMENT ON ENVIRONMENTAL COOPERATION: REPORT OF THE INDEPENDENT REVIEW COMMITTEE (1998). No fewer than twenty authors have published reviews of the institution. See, e.g., Carlsen & Salazar, supra note 47, at 239 11. For two of the latest and most comprehensive assessments, see generally GREENING NAFTA, supra note 17, and GREENING OF THE AMERICAS, supra note 10.

(49) See, e.g., Carlsen & Salazar, supra note 47, at 226; see also John H. Knox, The CEC and Transboundary Pollution, in GREENING NAFTA, supra note 17 (manuscript at 143-45, on file with author).

(50) John H. Knox & David L. Markell, The Innovative North American Commission for Environmental Cooperation, in GREENING NAFTA, supra note 17 (manuscript at 34-35, on file with author); J. Owen Saunders, NAFTA and the North American Agreement on Environmental Cooperation: A New Model for International Collaboration on Trade and the Environment, 5 COLO. J. INT'L. ENVTL. L. & POL'Y 273, 273-74 (1994); see also Blanca Torres, The North American Commission on Environmental Commission: Rowing Upstream, in GREENING OF THE AMERICAS, supra note 10, at 201.

(51) See PUBLIC CITIZEN, supra note 47, at 53-65. The list of grievances would include, among others, transboundary spillovers from the long range transport of atmospheric pollutants, regional air quality issues, unsustainable border surface and subsurface water management regimes, issues arising from the storage, transport, and disposal of hazardous waste, environmental issues regarding the maquiladora duty-free zones, and an array of threats to biodiversity. Id. at ix-x, 3, 12, 20, 29, 42.

(52) See, e.g., Torres, supra note 50, at 201-20 (arguing that the CEC encouraged awareness of environmental issues in Mexico).

(53) Greater openness and transparency in governmental affairs and decision making dates back to a handful of policies promoted by Mexico's former Environment Secretary, Julia Carabias, and has been reinforced and codified into law by the Fox Administration and its commitment to democratize public institutions. However, serious access to information and transparency issues remain as Mexico struggles to find resources to implement its ambitious goals. Carlsen & Salazar, supra note 47, at 224; Torres, supra note 50, at 201.

(54) Early on in the post-NAFTA years, Mexico often attempted to handpick pro-government attendees of CEC tri-national events or approached potential dissenting voices prior to such gatherings to "tone down" their message.

(55) Gallagher, in GREENING NAFTA, supra note 43 (manuscript at 187, on file with author).

(56) Mark S. Winfield, North American Pollutant Release and Transfer Registries: A Case Study in Environmental Policy Convergence, in GREENING NAFTA, supra note 17 (manuscript at 77-83, 87-88, on file with author).

(57) REPORT OF THE EXECUTIVE DIRECTOR, COMMISSION FOR ENVIRONMENTAL COOPERATION, REGULAR SESSION OF THE CEC COUNCIL 2 (2001), http://www.cec.org/files/pdf/COUNCIL/SR01-00r3-finalEN_EN.pdf.

(58) Gallagher, in GREENING NAFTA, supra note 43 (manuscript at 197-202, on file with author).

(59) Andrew Duffy, Protection of B.C. Rivers Inadequate, Panel Says, OTTAWA CITIZEN, June 13, 2000, at D18 (stating that "the CEC was created as an environmental watchdog under a side deal to the North American Free Trade Agreement"); Andrew Duffy & Mark Brown, Canada's Fish Habitat Protection Criticized" A NAFTA Environmental Panel Says the 'Ad Hoc' Approach Doesn't Properly Oversee B.C. Hydro, VANCOUVER SUN, June 13, 2000, at A6 (stating that "the CEC was created as an environmental watchdog under a side deal to NAFTA"); Dennis Hryciuk, NAFTA Council Won't Check Fish Habitat Yet, EDMONTON JOURNAL, May 23, 2000, at A6 (stating that "NAFTA's environmental watchdog has deferred a decision on whether to investigate a complaint that Canada fails to enforce its laws protecting fish habitat"); Andrew Duffy, Canada kills Two NAFTA Environmental Probes, MONTREAL GAZETTE, May 18, 2000, at A15 (stating that "Canada [had] torpedoed two investigations by an international commission that [was] supposed to be the environmental watchdog of the North American free-trade deal").

(60) See Kelly & Reed, supra note 46 (manuscript at 162, 171, on file with author).

(61) The Departments of Foreign Affairs and International Trade, Industry Canada, the Department of Fisheries and Oceans, and Natural Resources Canada often weigh in on multijurisdictional issues addressed in the CEC.

(62) NORTH AMERICAN COMMISSION FOR ENVIRONMENTAL COOPERATION, CITIZEN SUBMISSIONS ON ENFORCEMENT MATTERS, at http://www.cec.org/citizen/status/index.cfm?varlan=english (last visited July 19, 2003). As of June 19, 2003, the CEC had received a total of 40 submissions distributed as follows: Mexico 19, Canada 13, United States 8. Id.

(63) The United States steadfastly declined the invitation to weaken Article 14 until Bush Administration officials considered a submission lodged against the United States. Following rancorous interagency debates, the United States ultimately proposed measures of its own which are being employed to considerably narrow the scope of factual records. A number of recent articles raise serious concerns about the direction in which the process is heading. See generally Markell, supra note 21 (manuscript at 420-26, on file with author); John D. Wirth, Perspectives on the Joint Public Advisory Committee, in GREENING NAFTA, supra note 17 (manuscript at 305-07, on file with author); Kibel, supra note 21, at 10,769-70, 10,773-80. Chris Tollefson, Games Without Frontiers: Investor Claims and Citizen Submissions Under the NAFTA Regime, 27 YALE J. INT'L L. 141, 176-78 (2002).

(64) For example, Canadian and Mexican negotiators were discouraged by the United States's unwillingness to take serious steps to induce states to agree to assess the environmental impacts of projects not subject to federal assessments, where such projects have the potential to adversely impact the territory of Canada or Mexico. John H. Knox, The Myth and Reality of Transboundary Environment Impact Assessment 96 AM. J. INT'L L. 291, 306-07 (2002) (describing status of North American negotiations for an agreement on environmental transboundary assessment). In the Sound Management of Chemicals program, it appeared to many that the United States merely agreed (in regional action plans) to measures its states were taking anyway pursuant to domestic processes, while Canada and Mexico had assumed additional commitments. See Block, supra note 19 (manuscript at 59, on file with author) (noting that actions taken to date have fallen primarily on Mexico).

(65) The NAAEC is administered by the Office of International Affairs within EPA. During the critical early years, William Nitze served as the Assistant Administrator for EPA's Office of International Affairs. His term was characterized by his unsparing defense of the independent role of the Secretariat in the citizen submission and independent reporting processes, his willingness to confront contentious issues of regional importance, and his sincere belief in the benefits of deepening regional environmental cooperation.

(66) At its founding, both EPA and the State Department sought oversight responsibilities for the newly created institution. Ultimately, the President's Council on Environmental Quality settled the dispute in EPA's favor. Interagency relations have remained fractious over the years, as the CEC touched on areas outside of EPA's jurisdiction. For a description of EPA's role in administering the environmental side accord, see AUDLEY, supra note 10, at 124-25.

(67) John H. Knox & David L. Markell, Conclusions, in GREENING NAFTA, supra note 17 (manuscript at 437, on file with author).

(68) Gustavo Alanis Ortega, NAFTA Chapter 11 and the Future, TRIO (Spring 2003), http://www.cec.org/trio/stories/index.cfm?ed=9&ID=113&varlan=english. The Joint Public Advisory Committee (JPAC) of the CEC has attempted to fill the void by commissioning a study and holding public meetings on Chapter 11, however, it remains to be seen how, if at all, these activities will influence ongoing discussions between the parties on its interpretation and effects, The study and related JPAC documents are available at http://www.cec.org/news/details/index.cfm?varlan=english&ID=2503.

(69) See Kelly & Reed, supra note 46 (manuscript at 162-86, on file with author); see also COMMISSION FOR ENVIRONMENTAL COOPERATION, THE ENVIRONMENTAL EFFECTS OF FREE TRADE: PAPERS PRESENTED AT THE NORTH AMERICAN SYMPOSIUM ON ASSESSING THE LINKAGES BETWEEN TRADE AND ENVIRONMENT (OCTOBER 2000) (2002) [hereinafter ENVIRONMENTAL EFFECTS OF FREE TRADE], available at http://www.cec.org/files/PDF/ECONOMY/symposium-e.pdf (analyzing the environmental effects of free trade on natural resources, environmental policies, transportation corridors, services, and the public sector); see also VAUGHAN & BLOCK, supra note 4, at 10-23 (summarizing lessons learned in the testing of the methodology to assess the environmental impacts of free trade). A complete listing of CEC trade and environment publications and program activities can be found at http://www.cec.org.

(70) See VAUGHAN & BLOCK, supra note 4, at 25-27. The authors identify six key considerations emerging from the assessment of the environmental effects of NAFTA. These include: designing trade/environment assessments to yield policy-relevant outcomes without ignoring non-trade-related driving forces; supporting macro or large scale studies with region-specific, environmental media-specific and sector-specific analysis; considering the impacts on environmental infrastructure and policy implementation resulting from increased trade flows; overcoming the lack of high quality environmental data hampering analysis of trade/environment linkages; integrating sectoral policies more effectively; and underscoring the importance of evaluating economy-environment linkages in an "open, transparent and inclusive manner." Id. See Ken generally ENVIRONMENTAL EFFECTS OF FREE TRADE, supra note 69.

(71) NAAEC, supra note 2, art. 10, [section] 6, 32 I.L.M. at 1486.

(72) See generally Kelly & Reed, supra note 46 (manuscript at 164-65, on file with author).

(73) Id. The CEC has embarked on studies examining, for example, the growing concentration of vertically integrated industries in the agricultural sector, the potential emergence of regional air pollution "hot spots" resulting from developments in the energy sector, the export of U.S. hazardous waste to Canada, and air pollution in NAFTA's transport corridors. ENVIRONMENTAL EFFECTS OF FREE TRADE, supra note 69, at 161-214, 299-334, 391-122; COMMISSION FOR ENVIRONMENTAL COOPERATION, NORTH AMERICAN TRADE AND TRANSPORTATION CORRIDORS: ENVIRONMENTAL IMPACTS AND MITIGATION STRATEGIES (2001), available at http://www.cec.org/files/PDF/POLLUTANTS/Trade_Corridors_Final-e1_EN.PDF.

(74) See Kelly & Reed, supra note 46 (manuscript at 165-66, on file with author). At the outset, the CEC Council agreed that the project must be open, transparent, and independent to overcome public skepticism about the willingness of the NAFTA parties to analyze the impacts of a trade agreement they vigorously defend and support. Id. at 165. On at least one occasion, heightened media attention beat back attempts by one or more governments to suppress the studies or redirect ongoing research. See, e.g., Anthony DePalma, NAFTA Environmental Lags May Delay Free Trade Expansion, N.Y. TIMES, May 21, 1997, at A4 (reporting on Mexican trade officials' attempt to block or censor the independent study of NAFTA effects).

(75) Economists speak of income "convergence" between developed and developing trade partners and per capita income groups. See generally EASTERLY ET AL., supra note 36. However, a number of economists are concerned with growing evidence for "divergence" within regions resulting, essentially, in the rich getting richer. Id.

(76) Although both Canada and the United States have committed to the preparation of assessments of the environmental impacts of trade agreements, the use of environmental assessments has yet to substantially influence the provisions of trade agreements. In addition, their sweeping use of aggregated data limits their current effectiveness. For a discussion of U.S. practice in this area, see James Salzman, Executive Order 13,141 and the Environmental Review of Trade Agreements, 95 AM. J. INT'L L. 366, 366-77 (2001).

(77) See EASTERLY ET AL., supra note 36, at 25-27; ANTONIO YUNEZ-NAUDE & FERNANDEZ BARCEINAS PAREDES, WORLD BANK, LESSONS FROM NAFTA: THE CASE OF MEXICO'S AGRICULTURAL SECTOR 29 (2002) (evaluating the effects of NAFTA on Mexico's agriculture), available at http://wbln0018.worldbank.org/lac/lacinfoclient.nsf /e7fa9f9c5de82e6e8525694d007a6689/2e11a4 d12a57e2ee85256c4d006d9b66/$FILE/Yunez%20Text%20Final.pdf.

(79) A straightforward example occurred subsequent to NAFTA, as many Mexican export industries expanded operations and foreign direct investment surged. Increased economic activity multiplied several fold the number of activities requiring an environmental permit and impact assessment. These requests overtaxed the processing, monitoring, and oversight capabilities of Mexican permitting authorities, who lacked adequate resources to meet the task. Interview with Pedro Carlos Alvarez-Icaza Longoria, former Mexican Director of the Office of Impact Assessment, in Montreal, Canada (Winter 1998).

(79) Reliable information is central to better decision making. Just as no physician would prescribe treatment without monitoring the vital signs of his/her patient, environmental policy makers must analyze the best available data before recommending a course of action. The challenges involved in compiling and synthesizing comparable cross-border environmental data remains considerable. The CEC faced the difficulty of evaluating environmental data in the absence of harmonized regional indicators in its North American State of the Environment Report, THE NORTH AMERICAN MOSAIC, supra note 43, at 8-10.

(80) The lack of comparable data--especially within select geographic regions, sectors, or by media--drew considerable attention at the First Symposium on the Environmental Effects of Trade held in Washington, D.C., in October 2000. See VAUGHAN & BLOCK, supra note 4, at 26-27. To illustrate, a recent CEC comparative-regulations study compiled approaches from selected federal, state, and provincial jurisdictions for addressing the significant environmental impacts of large scale confined agricultural feedlot operations (CAFOs). See generally JERRY SPEIR ET AL., COMMISSION FOR ENVIRONMENTAL COOPERATION, COMPARATIVE STANDARDS FOR INTENSIVE LIVESTOCK OPERATIONS IN CANADA, MEXICO, AND THE UNITED STATES (2002), available at http://www.cec.org/files/PDF/LAWPOLICY/CAFOs_en.pdf. Identifying anecdotal evidence that U.S. CAFO investors were enthusiastic about establishing operations in Mexico, researchers were unable to glean from data on foreign direct investment where in Mexico CAFOs had been established. Id. at xv, xvii, 116-17. Had such data been available, policy makers would have had a simple and reliable means of alerting Mexican regulatory officials of the challenges posed by CAFOs in specific regions, as well as to acquaint relevant regulators with North American "best practices" for addressing their environmental impacts. Id. at 41, 116-17.

(81) Alternative methodologies for assessing trends and interpreting available data are discussed in SECRETARIAT OF THE COMMISSION FOR ENVIRONMENTAL COOPERATION, UNDERSTANDING AND ANTICIPATING ENVIRONMENTAL CHANGE IN NORTH AMERICA: BUILDING BLOCKS FOR BETTER PUBLIC POLICY 4-5, 19-22, 33-36, 44-49 (2003), available at http://cec.org/files/PDF/ECONOMY/Trends_en.pdf.

(82) Mexico to Study Renegotiation of NAFTA Agricultural Provisions, Trade Official Says, BNA INT'L TRADE REP. ARCHIVES, Jan. 9, 2003, at http://www.bna.com/itr/arch178.htm [hereinafter Mexico to Study Renegotiation of NAFTA Agricultural Provisions]; Ginger Thompson, NAFTA to Open Floodgates, Engulfing Rural Mexico, N.Y. TIMES, Dec. 19, 2002, at A3; Elisabeth Malkin, Mexican Leader Aims to Offset Tariff Cuts, N.Y. TIMES, Nov. 19, 2002, at A15.

(83) Mexico to Study Renegotiation of NAFTA Agricultural Provisions, supra note 82.

(84) See, e.g., SCOTT VAUGHAN & ZACHARY PATTERSON, COMMISSION FOR ENVIRONMENTAL COOPERATION, CHANGING BIODIVERSITY, CHANGING MARKETS: LINKS BETWEEN AGRICULTURAL TRADE, MARKETS AND BIODIVERSITY 10-29 (2001), http://www.cec.org/files/PDF/ECONOMY/agritrade-biodiv_EN.PDF; KEVIN GALLAGHER, COMMISSION FOR ENVIRONMENTAL COOPERATION, ENVIRONMENTAL REVIEWS OF TRADE AGREEMENTS: ASSESSING THE NORTH AMERICAN EXPERIENCE 6, 19-21 (2001), http://www.cec.org/files/PDF/ECONOMY/enviroreviews_EN.pdf; CHANTAL LINE CARPENTIER, COMMISSION FOR ENVIRONMENTAL COOPERATION, TRADE LIBERALIZATION IMPACTS ON AGRICULTURE: PREDICTED VS. REALIZED (2001), http://www.cec.org/files/PDF/ECONOMY/pastpresent_EN.pdf; ACKERMAN ET AL., TUFTS UNIVERSITY, ENVIRONMENTAL IMPACTS OF THE CHANGES IN US-MEXICO CORN TRADE UNDER NAFTA (2001), http://www.cec.org/files/PDF/ECONOMY/Tufts-corn_EN.PDF; see also ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, DOMESTIC AND INTERNATIONAL ENVIRONMENTAL IMPACTS OF AGRICULTURAL TRADE LIBERALISATION (2000), http://appli1.oecd.org/olis/2000doc.nsf/c5ce8ffa41835d64c125685d005300b0 /c125692700623b74c125699100438e25/$FILE/00085762.PDF. The author is unaware of recent studies examining the potential environmental consequences of displacing small Mexican farmers and replicating U.S. agribusiness models in Mexico.

(85) See, e.g., J. EDWARD TAYLOR, TRADE INTEGRATION AND RURAL ECONOMIES IN LESS DEVELOPED COUNTRIES: LESSONS FROM MICRO ECONOMY-WIDE MODELS WITH PARTICULAR ATTENTION TO MEXICO AND CENTRAL AMERICA 1 (2002), available at http://wbln0018.worldbank.org/LAC/lacinfoclient.nsf /1daa46103229123885256831005ce0eb/528ef 92d9b1e463085256c3d00744e4a/$FILE/Taylor%20Integration% 20and%20rural%20ec%20in%20LD C.pdf (concluding that "[h]igh transaction costs and lack of access to capital and new product markets exclude poor rural households from many benefits of trade liberalization and may exacerbate poverty in the wake of trade reforms").

(86) Mexico would face the unenviable prospect of meeting the narrow environmental exceptions to the WTO and NAFTA if it now attempted to invoke trade restrictive measures to address the growing list of rural environmental threats. Mexico's "Plan Puebla-Panama," designed to enhance sustainability and commerce in these southern regions, represents an example of an attempt to construct a comprehensive and integrated policy for sustainable development. See INTER-AMERICAN DEVELOPMENT BANK, PUEBLA-PANAMA PLAN: BACKGROUND, http://www.iadb.org/ppp/background.asp (last visited July 19, 2003) (explaining the plan and its antecedents).

(87) SECRETARIAT OF THE COMMISSION FOR ENVIRONMENTAL COOPERATION OF NORTH AMERICA, ENVIRONMENTAL CHALLENGES AND OPPORTUNITIES OF THE EVOLVING NORTH AMERICAN ELECTRICITY MARKET: SECRETARIAT REPORT TO COUNCIL UNDER ARTICLE 13 OF THE NORTH AMERICAN AGREEMENT ON ENVIRONMENTAL COOPERATION viii (2002) [hereinafter ENVIRONMENTAL CHALLENGES AND OPPORTUNITIES OF THE EVOLVING NORTH AMERICAN ELECTRICITY MARKET], available at http://www.cec.org/files/PDF/CEC_Art13electricity_Eng.pdf; see also COMMISSION FOR ENVIRONMENTAL COOPERATION, TRACKING AND ENFORCEMENT OF TRANSBORDER HAZARDOUS WASTE SHIPMENTS IN NORTH AMERICA: A NEEDS ASSESSMENT ix (1999), available at http://www.cec.org/files/pdf/LAWPOLICY/HazW-Ang.pdf (noting that the "[c]ompatibility [a]mong [d]omestic and [i]ntenational [t]racking [s]ystems and [d]ata [s]ources" is a serious problem, stating that "the most critical limitation of existing [hazardous waste] tracking systems ... is their inability to track a single shipment 'from cradle to grave' when the cradle is in one country and the grave is in another").

(88) NAAEC, supra note 2, art. 1(b), 32 I.L.M. at 1483. The TPA contains similar commitments. Bipartisan Trade Promotion Authority Act of 2002, Pub. L. No. 107-210, [section] 2102(b)(11), 116 Stat. 933, 1000 (to be codified at 19 U.S.C. [section] 3802(b)(11)).

(89) Electricity is a "good" under NAFTA. GARY HORLICK ET AL., SECRETARIAT OF THE COMMISSION FOR ENVIRONMENTAL COOPERATION OF NORTH AMERICA, NAFTA PROVISIONS AND THE ELECTRICITY SECTOR 4 (2002).

(90) In the United States alone, the electricity sector emits approximately 25% of all N[O.sub.x] emissions, roughly 35% of C[O.sub.2] emissions, 25% of total mercury emissions, and almost 70% of S[O.sub.2] emissions. ENVIRONMENTAL CHALLENGES AND OPPORTUNITIES OF THE EVOLVING NORTH AMERICAN ELECTRICITY MARKET, supra note 87, at 5.

(91) Id. at 7-11. See also SECRETARIAT OF THE COMMISSION FOR ENVIRONMENTAL COOPERATION OF NORTH AMERICA, CONTINENTAL POLLUTANT PATHWAYS: AN AGENDA TO ADDRESS LONG-RANGE TRANSPORT OF AIR POLLUTION IN NORTH AMERICA 4 (1997), available at http://www.cec.org/files/pdf/polluten_EN.pdf (noting, for example, that "some PCBs can stay aloft for decades, traveling throughout the global atmosphere").

(92) The CEC maintains a comparative North American law online database at http://www.cec.org/pubs_info_resources/law_treat_agree /index.cfm?varlan=english. For a survey of U.S. regulation of fossil-fuel electric power generating plants, see Arnold W. Reitze, Jr., State and Federal Command-and-Control Regulation of Emissions from Fossil-Fuel Electric Power Generating Plants, 32 ENVTL. L. 369 (2002).

(93) For example, the United States's national S[O.sub.2] cap-and-trade program takes no account of upwind facilities located in the border area with Mexico, despite the fact that these facilities emit directly into the same airsheds. Avoiding a cap, mitigation requirement, or other environmental provision by locating in a nearby jurisdiction in the same airshed is bound to generate conflict.

(94) ENVIRONMENTAL CHALLENGES AND OPPORTUNITIES OF THE EVOLVING NORTH AMERICAN ELECTRICITY MARKET, supra note 87 at 19.

(95) See, e.g., Pub. Citizen v. Dep't of Transp., 316 F.3d 1002, 1009 (9th Cir. 2003) (holding that the U.S. Department of Transportation failed "to conduct the requisite environmental analyses prior to promulgating three regulations, the combined effect of which will permit Mexico-domiciled motor carries to operate within the United States beyond the current limited border zones, thus fulfilling the United States's obligations under the North American Free Trade Agreement").

(96) The European Union (EU) confronts this issue head on by promulgating harmonized environmental directives in major liberalized sectors, such as energy. At the same time, the EU funds environmental infrastructure and capacity building in less developed EU economies through multibillion dollar structural and cohesion support programs. See, e.g., DG REGIO, EUROPEAN COMMISSION, ISPA IN A NUTSHELL (2002), http://europa.eu.int/comm/regional_policy/funds/ispa/pdf/ispa_nutshell.pdf (describing the EU's "Instrument for Structural Policies for Pre-Accesaion" to help candidate countries develop "infrastructure projects in the fields of transport and environment"). These programs help avoid the kind of competitive concerns over a "race to the bottom" or "pollution havens" that arise where free trade is embraced without parallel efforts to at least make environmental policies compatible. See generally Damien Geradin, The European Community: Environmental Issues in an Integrated Market, in GREENING OF TRADE LAW, supra note 10, at 117 (describing the "increasingly sophisticated policies" the European Community has developed to protect the environment). For a good description of the European Union harmonization strategies in the electricity sector, see LISA NICHOLS, SECRETARIAT OF THE COMMISSION FOR ENVIRONMENTAL COOPERATION OF NORTH AMERICA, EUROPEAN ELECTRICITY GENERATING FACILITIES: AN OVERVIEW OF EUROPEAN REGULATORY REQUIREMENTS AND STANDARDIZATION EFFORTS (2002), available at http://www.cec.org/files/PDF/6_nichols-e.pdf. Interestingly, the European Union-Mexico Free Trade Agreement neither provides for harmonized environmental measures, nor an NAAEC-type side accord to address environmental concerns. The text of the EU-Mexico Free Trade Agreement, signed on March 23, 2000 in Lisbon, Portugal, is available at http://europa.eu.int/comm/trade/issues/bilateral/countries /mexico/docs/en2_decision_goods.pdf.

(97) NAAEC, supra note 2, art. 10, [section] 3(b), 32 I.L.M. at 1486.

(98) For example, after assessing the need for greater compatibility in the tracking and enforcement of transborder hazardous waste shipments, governments have taken little action, commissioning yet another study. TRACKING AND ENFORCEMENT OF TRANSBORDER HAZARDOUS WASTE SHIPMENTS IN NORTH AMERICA: A NEEDS ASSESSMENT, supra note 87, at 1. The CEC twice has attempted to launch a compatibility process for North American environmental laboratories, though neither attempt prospered.

(99) See, e.g., NAFTA TECHNICAL WORKING GROUP ON PESTICIDES, STATUS OF HARMONIZATION OF DATA REQUIREMENTS AND TEST PROTOCOLS FOR PESTICIDE REGISTRATION 1-3 (2000), http://www.hc-sc.gc.ca/pmra-arla/english/pdf/nafta /archive/Nafta_Env-Fate1-e.pdf (describing the group's progress towards the "[h]armonization of pesticide regulatory requirements"); SECRETARIAT OF THE COMMISSION FOR ENVIRONMENTAL COOPERATION OF NORTH AMERICA, NAFTA'S INSTITUTIONS: THE ENVIRONMENTAL POTENTIAL AND PERFORMANCE OF THE NAFTA FREE TRADE COMMISSION AND RELATED BODIES 14 (1997) [hereinafter NAFTA'S INSTITUTIONS], available at http://www.cec.org/files/pdf/ECONOMY/NAFTen_EN.pdf (describing the role of the Automotive Standards Council in addressing vehicle emissions standards).

(100) See NAFTA'S INSTITUTIONS, supra note 99, at 13, 15-18 (identifying some fifty NAFTA committees, technical working groups, and consultative bodies whose work includes a significant environmental dimension).

(101) See, e.g., Northwest Ecosystem Alliance v. Office of the U.S. Trade Representative, No. C99-115R, 1999 WL 33526001 at * 8 (W.D. Wash., Nov. 9, 1999) (ordering the U.S. Trade Representative to "make a good faith effort to expedite the appointment of at least one properly qualified environmental representative" to two separate Federal Advisory Committees).

(102) The Office of the United States Trade Representative refers to nearly 800 million "consumers" within a region whose combined Gross Domestic Product totals nearly $13 trillion. See OFFICE OF THE U.S. TRADE REPRESENTATIVE, TRADE FACTS: FREE TRADE AREA OF THE AMERICAS--THE OPPORTUNITY FOR A HEMISPHERIC MARKETPLACE (2003), available at http://www.ustr.gov/regions/whemisphere/ftaa2002 /2003-02-11-tradefacts-english.PDF.

(103) Free Trade Area of the Americas Sixth Meeting of Ministers of Trade of the Hemisphere, Ministerial Declaration, Buenos Aires, Argentina (Apr. 7, 2001) [hereinafter Ministerial Declaration], available at http://www.ftaa-alca.org/ministerials/Bamin_e.asp.

(104) Id.

(105) Press Release, White House Office of the Press Secretary, Remarks by the President at Signing of the Trade Act of 2002 (Aug. 6, 2002), at http://www.tpa.gov/WH-Pres-TPA-signing.htm.

(106) Bipartisan Trade Promotion Authority Act of 2002, Pub. L. No. 107-210, 116 Stat. 933 (to be codified at 19 U.S.C. [subsection] 3801-3813).

(107) Id. [section] 2101(b)(1) (to be codified at 19 U.S.C. [section] 3801(b)(1)).

(108) Id. [section] 2101(b)(2) (to be codified at 19 U.S.C. [section] 3801(b)(2)).

(109) Id. [section] 2101(b)(1) (to be codified at 19 U.S.C. [section] 3801(b)(1)).

(110) Id. [section] 2101 (to be codified at 19 U.S.C. [section] 3802).

(111) Id. [section] 2102 (to be codified at 19 U.S.C. [section] 3802(a)(5)).

(112) Id. [section] 2102(a)(7) (to be codified at 19 U.S.C. [section] 3802(a)(7)).

(113) Id. [section] 2102(b)(11)(A) (to be codified at 19 U.S.C. [section] 3802(b)(11)(A)). Section 2102(b)(11)(B) recognizes a party's "right to exercise discretion with respect to investigatory, prosecutorial, regulatory and compliance matters," to prioritize the allocation of enforcement resources, and to establish domestic "levels of environmental protection." Compare NAAEC, supra note 2, art. 45, [section] 1(a)-(b), 32 I.L.M. at 1494-95 with id. art. 3, 32 I.L.M at 1483 (including virtually identical language). The United States-Jordan Free Trade Agreement and the United States-Chile Free Trade Agreement contain similar provisions. See OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, FREE TRADE WITH CHILE: SUMMARY OF THE U.S.-CHILE FREE TRADE AGREEMENT 1-9 (2002), at http://www.ustr.gov/regions/whemisphere/samerica/2002-12-11-chile_summary.pdf (summarizing United States-Chile Free Trade Agreement).

(114) Bipartisan Trade Promotion Authority Act of 2002 [section] 2101(b)(11)(D) (to be codified at 19 U.S.C. [section] 3802(b)(11)(E)).

(115) Id. [section] 2102(b)(11)(E) (to be codified at 19 U.S.C. [section] 3802(b)(11)(E)).

(116) Id. [section] 2102(b)(11)(F) (to be codified at 19 U.S.C. [section] 3802(b)(11)(F)).

(117) Id. [section] 2102(b)(3) (to be codified at 19 U.S.C. [section] 3802(b)(3)).

(118) Id. [section] 2102(b)(5) (to be codified at 19 U.S.C. [section] 3802(b)(5)).

(119) Id. [section] 2102(b)(12) (to be codified at 19 U.S.C. [section] 3802(b)(12)).

(120) See supra note 113 (describing other free trade agreements).

(121) One reason the observation is not often stated may be the concern that it would be perceived as paternalistic in the implicit assumption that developing countries will be incapable of implementing measures to protect their own interests.

(122) UNITED NATIONS ENVIRONMENT PROGRAMME, OVERVIEW GEO-2000: GLOBAL ENVIRONMENT OUTLOOK 2000, at 9 (2000).

(123) UNITED NATIONS ENVIRONMENT PROGRAMME, GLOBAL ENVIRONMENTAL OUTLOOK 3, at 107 (2002).

(124) Id. at 137.

(125) Id. at 107.

(126) Id. at 137.

(127) Id. at 107. This represents nearly half of the natural forest lost worldwide over the past 30 years. Id.

(128) Id. at 107-108.

(129) Id. at 137.

(130) Id. at 167.

(131) Gil Nolet, Institutional Cooperation on Trade and the Environment, in ENVIRONMENTALLY SOUND TRADE EXPANSION IN THE AMERICAS: A HEMISPHERIC DIALOGUE, supra note 10, at 82.

(132) United Nations Economic Commission for Latin America and the Caribbean Economic Affairs Officer Marianne Schaper identifies a number of the variables relevant to assessing the environmental implications of a nation's export structure. These include, inter alia, environmental institutional and technical capacity, trade composition, income distribution, enforcement of environmental norms, interest group pressure, geographical density of economic activity, levels of education, and the income elasticity of demand for environmental quality. Marianne Schaper, The Environmental Characteristics of South American Exports, in GREENING OF THE AMERICAS, supra note 10, at 255.

(133) Id. at 247; German Cardenas Garcia, Environmental Competitiveness and Clean Production, in ENVIRONMENTALLY SOUND TRADE EXPANSION IN THE AMERICAS: A HEMISPHERIC DIALOGUE supra note 10, at 43; Nolet, supra note 131, at 82.

(134) UNITED NATIONS ENVIRONMENT PROGRAMME, OVERVIEW GEO-2000: LATIN AMERICA AND THE CARIBBEAN 1 (2000), available at http://www.unep.org/geo2000/ov-e/0007.htm (last visited July 19, 2003).

(135) Nolet, supra note 131, at 82.

(136) Schaper, supra note 132, at 249.

(137) Id. at 255; see Nolet, supra note 131, at 82 (stating that "[t]heory tells us that given [Latin America's] relative endowment of natural resources, trade liberalization will result in an increase in the share of exports based on natural resources, especially for exports to countries that are relatively less endowed with natural resources, such as the Organisation for Economic Cooperation and Development (OECD) countries" (citing ROBERT DEVLIN & RICARDO FRENCHDAVIS, TOWARDS AN EVALUATION OF REGIONAL INTEGRATION IN LATIN AMERICA IN THE 1990s, OCCASIONAL PAPER NO. 1 (1998))).

(138) See, e.g., UNITED NATIONS ENVIRONMENT PROGRAMME, GLOBAL ENVIRONMENTAL OUTLOOK 3, at 108 (2002).

(139) CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE ISSUE BRIEF, OPPORTUNITIES AND CHALLENGES TO ADVANCE ENVIRONMENTAL PROTECTION IN THE U.S.-CENTRAL AMERICAN FREE TRADE NEGOTIATIONS 1-2, 5-8 (2003), available at http://www.ceip.org/files/pdf/TED-CAFTA-and-environment.pdf; Kelly & Reed, supra note 46 (manuscript at 174, on file with author).

(140) The CEC budget has been frozen at $9,000,000 annually since its first full year of operations in 1995. Gallagher, in GREENING NAFTA, supra note 43 (manuscript at 198, on file with author).

(141) The United States Trade Representative heralds the United States-Chile agreement for its inclusion of provisions for state-to-state environmental enforcement sanctions within the text of the main agreement, rather than a side agreement as is the case with NAFTA. As noted below, however, the sanction provisions still lay dormant in NAFTA after a decade, and more fundamentally, Latin American governments are still unlikely to improve enforcement records without first addressing legal, regulatory, and resource issues. The United States appears to have adopted a "divide and conquer" approach to isolating Brazil and Argentina in an effort to promote the NAFTA, rather than the MERCOSUR, approach to hemispheric trade liberalization.

(142) Ministerial Declaration, supra note 103, at 1.

(143) Finding its roots in the acrimonious Tuna-Dolphin dispute between the United States and Mexico, most of the traditional mistrust arises from developing countries fearing the imposition of U.S. environmental standards. These same countries should recognize the value of leveraging trade negotiations to increase the flow of developmental funds to improve environmental and health systems.

(144) Linking trade liberalization measures to environmental benchmarks may be accomplished in a variety of ways. For example, a country concerned about promoting sustainable fisheries or forest programs can adopt credible third-party labeling schemes such as the Forest Stewardship Council or Marine Stewardship Council approaches. Countries can also form committees or regulatory boards composed of national and international experts, NGOs, business, academic, and indigenous representatives to assess the adequacy of environmental programs and capacity as well as to certify the sustainability of sensitive sectors, or areas. Latin American policy makers may also condition liberalization measures, or sequence the implementation of such measures, on specific performance criteria in much the same way as the Bush Administration's Millennium Challenge account conditions foreign assistance to countries who can meet a rigorous set of performance criteria concerning controlling corruption, defending political rights, investing in health care and education, and promoting free trade. James Dao, With Rise in Foreign Aid, Plans for a New Way to Give It, N.Y. TIMES, Feb. 3, 2003, at A5.

Global and regional frameworks and declarations provide a good foundation for identifying key issues and themes. See, e.g., WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT, PLAN OF IMPLEMENTATION (2002), available at http://www.johannesburgsummit.org/html/documents /summit_docs/2309_planfinal.htm; DECLARATION OF SANTA CRUZ DE LA SIERRA AND PLAN OF ACTION FOR THE SUSTAINABLE DEVELOPMENT OF THE AMERICAS, http://www.oas.org/EN/PROG/BOLIVIA/sumiteng.htm (last visited July 19, 2003). Countries could also look to the World Conservation Union (IUCN) and other international and regional conservation organizations to devise a credible means of certifying that its network of protected areas cover critical priority areas and are well managed and maintained.

(145) Reliance on market-based mechanisms for environmental regulation will not allow countries to forgo developing comprehensive regulatory regimes with key command-and-control elements. The U.S. experience demonstrates that even the most effective market-driven environmental policies--such as the cap-and-trade program for S[O.sub.2] emissions--call for rigorous governmental monitoring, reporting, and verification efforts.

(146) Proponents of retaining the NAAEC may be concerned that expanding the model southward risks diluting its North American focus, as well as encumbering its agile and responsive voting arrangements with torpid, Organization of American States-type decision making.

(147) An indicative group would include, for example, the long-range transport of atmospheric contaminants, impairment of cross-border wildlife corridors, harmonized certification and verification regimes, regional environmental monitoring and assessment, aquatic and terrestrial invasive species, law and policy compatibility studies, et cetera.

(148) Central American health and environment officials are becoming increasingly involved in the work of the Sound Management of Chemicals, and the CEC is collaborating with the United Nations Environment Programme's Latin American offices on ongoing trade and environment assessment work. COMMISSION FOR ENVIRONMENTAL COOPERATION OF NORTH AMERICA, NORTH AMERICAN AGENDA FOR ACTION: 2003-2005, at 54-61 (2002).

(149) See generally NAFTA's INSTITUTIONS, supra note 99 (reviewing the various committees and working groups established under NAFTA).

(150) Edith B. Weiss, Preface to GREENING NAFTA, supra note 17 (manuscript at 4, on file with author); Donald McRae, Trade and the Environment: The Issue of Transparency, in GREENING NAFTA, supra note 17 (manuscript at 362, on file with author).

(151) The procedure has attracted considerable attention in the growing body of NAAEC-related literature, and until recently has consumed much of the time the CEC Council devotes to NAAEC matters at its annual meetings. Recent reviews of the citizen submission process include: Markell, supra note 21; Kibel, supra note 21, at 10,769-70, 10,773-80; Knox, supra note 21, at 12, 59-85.

(152) The erosion of sovereignty occasioned by such environmental provisions pales in comparison to the investor-state provisions empowering investors to sue states outside of their domestic courts for claims alleging a breach of Chapter 11 of NAFTA. See generally Gaines, supra note 17 (manuscript at 260-86, on file with author).

(153) The articles embodying the hard-fought Chapter V sanctions for persistent failures to enforce environmental law remain dormant with little near-term prospects for its application in North America. No party even hinted at its potential use, and the negotiation of the rules of procedure called for by NAAEC Article 28 stalled out after several years of puttering along. NAAEC, supra note 2, art. 28, 32 I.L.M. at 1491-92.

(154) The costs U.S. arm-twisting exacts on the cooperative functions of the CEC are described in Frederick W. Mayer, Negotiating the NAFTA: Political Lessons for the FTAA, in GREENING OF THE AMERICAS, supra note 10, at 97. Chile's acceptance of these provisions may soften, but is unlikely to overcome, resistance to sanctions.

(155) No party has shown much enthusiasm for concluding the negotiations necessary to develop the rules of procedure called for in the NAAEC. Discussions stalled a couple of years after the NAAEC came into force, and periodic meetings of government attorneys have produced little in the way of progress. NAAEC, supra note 2, art. 28, 32 I.L.M. at 1491-92.

(156) A handful of submissions over the past 8 years appeared to hold the interest of the media, and consequently, the public and government, though limitations on the process and recent efforts to further constrain the fact gathering process appear to be neutralizing this effect. Markell, supra note 21. In order to make the entire process more consequential, the parties should establish a dedicated fund for conducting follow-up activities on factual records, including ongoing monitoring and reporting.

(157) Id. at 406.

(158) Government delays in voting on authorizing factual records accounts for much of the lag in processing submissions. See COMMISSION FOR ENVIRONMENTAL COOPERATION, CITIZEN SUBMISSIONS ON ENFORCEMENT MATTERS, at http://www.cec.org/citizen/index.cfm?varlan=english (last visited July 19, 2003) (providing dates and tables pertaining to each citizen submission).

(159) See Salzman, supra note 76, at 368.

(160) VAUGHAN & BLOCK, supra note 4, at 25-27.

(161) The U.S. government has not shied away from examining the often complex economy-wide causal relationships arising from free trade. For example, the Trade Adjustment Assistance Reform Act of 2002 provides for payments, allowances and other benefits for workers and firms who can demonstrate that they have been adversely impacted by the Free Trade Agreement. Trade Adjustment Assistance Act of 2002, Pub. L. No. 107-210, [subsection] 101, 111-125, 131, 141-143, 151, 201-203, 116 Stat. 933, 935-72 (to be codified in scattered sections of 19 U.S.C., 26 U.S.C., and 42 U.S.C.).

(162) The CEC Secretariat has also exercised its ability to prepare reports for the Council under NAAEC Article 13 to address trade impacts and is currently examining the possible environmental impacts of transgenic maize on Mexican germplasm and biodiversity. COMMISSION FOR ENVIRONMENTAL COOPERATION, MAIZE & BIODIVERSITY: THE EFFECTS OF TRANSGENIC MAIZE IN MEXICO, at http://www.cec.org/files/PDF//MaizeAdvGrpTOR_en.pdf (last visited July 19, 2003).

(163) Related CEC publications and documents from both symposia are available at http://www.cec.org/pubs_docs/scope/index.cfm?varlan=english&ID= 14.

(164) For example, Mexico strongly supported the ongoing CEC examination of the impacts, and potential unintended release, of genetically modified corn in Mexico. Canada backed the CEC's independent assessment of the environmental implications of the evolving North American Electricity Market, and the United States supported a controversial sustainability assessment in the Upper San Pedro Watershed. All reports were developed pursuant to Article 13 of the NAAEC, which empowers the Secretariat to prepare independent reports for Council on matters within the scope of program of work. NAAEC, supra note 2, art. 13, 32 I.L.M. at 1487-88.

(165) General Agreement on Tariffs and Trade 1994, art. XX, reprinted in DOCUMENT SUPPLEMENT TO LEGAL PROBLEMS OF INT'L ECONOMIC RELATIONS 45 (John J. Jackson et al. eds., 3d ed. 1995).

(166) Ironically, the NAFTA commitments to bridge the trade and environment gulf are made in separate or "parallel" agreements. The state of affairs is fairly well summarized by comparing the flaccid follow-up to the ambitious and unfunded goals of the Bolivian Summit on Sustainable Development to the equally ambitious, but generously funded, drive to expand free trade throughout the Americas.

GREG BLOCK, [c] Greg Block, 2003. Distinguished Environmental Law Scholar at Lewis and Clark Law School, 2002-2003. From 1994-2002, the author served as Head of the Legal Division, and later as Director of Programs, at the North American Commission for Environmental Cooperation (CEC), headquartered in Montreal, Canada. There, he established the unit responsible for investigating allegations that a NAFTA party had failed to effectively enforce its environmental laws, and oversaw the CEC's cooperative program area. In 1992, Mr. Block taught environmental law in Mexico under the auspices of a Fulbright Lecture Grant. From 1987-1992, he litigated environmental cases with a private law firm in San Francisco, California. The author would like to acknowledge and thank the following individuals for contributing their time and energy to this article: Janine Ferretti, John Knox, Geoff Carver, Katie Jo Keppinger, Scott Vaughan, and Chris Wold.