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Is this land really our land? Impacts of free trade agreements on U.S. environmental protection.

I. Introduction

A new economic order of liberalized trade for the North American continent is imminent, but it might usher in a bleak new environmental, order. Negotiations for the North American Free Trade Agreement (NAFTA) concluded on October 9, 1992, when the trade ministers of the United States, Canada, and Mexico initiated the agreement.(1) Now, then national legislatures of the three countries must ratify NAFTA, in order to implement the agreement as viable international law. Congress must balance the United States sovereign right to protect it's citizen health and environmental integrity, with Canada's and Mexico's rights to be free from unfair U.S. trade practices disguised as environmental or health protection measures. Will Congress accept the position set forth in the NAFTA before it?

Consider the potential economic benefits of NAFTA for North America: 360 millicn potential consumers,, a gross continental product of over six trillion dollars,(2) numerous new markets as tariffs drop, abundant investment opportunities, and the stability and vitality to compete with European, and possibly Asian, trading blocks. Advocates of a general free trade agreement between the three nations optimistically view such an agreement as a "win-win" scenario for everyone involved. They hold forth the United States-Canada Free Trade Agreement (FTA) as proof that bilateral trade agreements between the United States and its neighbors soon either will complement or replace multilateral agreements such as the General Agreement on Tariffs and Trade (GATT). In 1990, two-way, trade between the United States and Canada totalled $175 billion, up from $167 billion in 1989.(3) The FTA effectively reduced tariffs on approximately 400 products for a combined savings of six billion dollars.(4)

NAFTA advocates claim that extending more-favorable-than-most-favored-nation status to Mexico will fan Mexican development efforts into full-scale industrialization. New capital investment from the United States will infuse Mexico's infrastructure with strength and vitality. Mexican goods will find a highly lucrative, duty-free market in its northern neighbors, and capital from the United States and Canada will create new jobs for Mexican workers. Conversely, Mexico, with a rapidly growing population of over eighty-eight million, presents a favorable market for U.S. goods and services, as well as a fertile source of labor and natural resources. Advocates tout NAFTA as a "foundation for expanded trade, expanded Prosperity, [and] expanded jobs into the next century,"(5) NAFTA might lead to other free trade agreements with other Western Hemisphere countries in line with the Bush Administration's "Enterprise for the Americas" initiative.(6)

But general free trade agreements do not necessarily make everyone a winner, especially where the environment is concerned.(7) In particular, legitimate environmental policies and regulations became the endangered prey of the FTA's vague nontariff barrier provisions because the agreement did not address specific environmental issues adequately. In Canada, conservationist energy policies were largely abandoned, subsidies for pollution abatement have been challenged as unfair nontariff barriers and stringent pesticide Policies are threatened by harmonization clauses under the FTA. Adverse Impacts for the United State include challenges by the Canadian government of U.S. Environmental Protection Agency (EPA) regulations for phasing out the use of asbestos and temporary lower border inspection standards for meat. Indirectly, the FTA is also hampering efforts to get U.S. citizens to conserve energy by offering them cheap nonrenewable resources, such as oil and natural gas, from Canada.

Congress, before exercising all-or-nothing power over a final NAFTA under the fast-track process,(8) should take these lessons to heart when looking at U.S.-Mexican trade and environmental links. Negotiators apparently did not learn from the environmental failures of the FTA, because provisions in NAFTA endanger and exploit North American people and resources. In particular, NAFTA as its now stands(9 could have adverse impacts on U.S. efforts to regulate pesticide residues on agricultural imports and to uphold protective measures for marine life. Congress has the last word on whether NAFTA becomes binding on the United States as international law; it should use that power to condition ratification of NAFTA on renegotiation of the treaty to ensure sovereignty in environmental protection.

Section II serves as a general introduction to the link between world trade and environmental concerns, and between U.S. international trade obligations and national legal structures. Section III looks at the environmental consequences of the FTA for those two countries. Section IV looks at two specific issues, marine mammal protection and pesticides, where the U.S. environment might be affected by free trade between the United States and Mexico, and draws conclusions about the role of free trade environmental protection. Section VI concludes by suggesting alternative approaches to environmental protection in NAFTA.

II. World Trade and the Environment

A. GATT and Nontariff Barriers

Free market economies such as those of the United States, Canada, and Mexico base their international trade relations on the General Agreement on Tariffs and Trade (GATT), an economic agreement signed in 1947(10) GATT is authoritative international trade law for approximately ninety percent of world trade among almost 100 countries.(11) Many of the provisions in the FTA, and NAFTA were modeled after GATT. GATT's initial purpose was to lower tariffs between member nations, giving those nations "most-favored-nation" status in relation to each other. Seven rounds of negotiations have eliminated most overt tariffs. Current negotiation efforts at the Uruguay Round are aimed at reducing nontariff barriers (NTBs) to trade between member nations.(12)

NTBs, defined broadly, are conditions existing in a particular country, other than tariffs, that unreasonably impede foreign imports from competition in that country's market. GATT parties frequently challenge other parties' regulations, subsidies, tax breaks, import quotas, and inspection standards as unallowable NTBs under GATT. In its Article XX, GATT purports to safeguard member nations against other members' unfounded NTB allegations when legitimate environmental protection or other health and welfare" import or export policies are at stake.(13)

GATT strikes a precarious balance in attempting to uphold legitimate Article XX domestic measures, such as environmental laws affecting trade, while disallowing unfair NTBs disguised as Article XX measures. Some domestic measures, such as Thailand's former ban on U.S. cigarettes while allowing sale of its own domestic brands,(14) are blatant attempts to protect domestic industry from import competition disguised as Article XX measures. Thailand's policy violated a basic tenet of international trade law because its ban, which applied unequal standards to domestic products and imports, was aimed primarily at improving domestic economic conditions rather than addressing environmental or health problems.(15) However, arguably legitimate environmental and natural resource protective measures have been characterized as NTBs in trade actions, as in Mexico's GATT challenge of the U.S. Marine Mammal Protection Act(16) as an NTBT.(17)

In reality, therefore, each GATT member's NTB claims can limit other GATT members' sovereign discretion over domestic environmental conditions. Because GATT lacks a clear definition to distinguish between NTBs disguised as environmental measures and legitimate environmental protective measures, nations increasingly use NTB accusations to assail other countries' environmental standards in international economic competition.(18) For example, one nation might claim that another's subsidies or tax breaks to domestic industries for pollution cleanup or abatement are NTBs.(19) GATT is particularly detrimental to members' efforts to protect the international environment.(20) GATT served as a model for the FTA and NAFTA; therefore, GATT's treatment of environmental protection as NTBs sets disturbing precedent for U.S. protective measures under NFTA.(21)

Unfortunately, neither GATT nor most other trade agreements explicitly incorporate the over 300 international environmental agreements signed since the pioneering Stockholm Convention of 1972. In recognition of the increasing linkage between trade and the environment, the governing council of GATT recently revived the Working Group on Trade and the Environment, which had not met since its founding twenty years ago. However, the working group's resurrection seems directed toward addressing how environmental regulation will encroach on free trade rather than looking at how trade law and custom could benefit the environment(22) There is a tendency for trade negotiators to ignore environmental issues or deal with them in general phraseology such as that found in GATT. The FTA was no exception to this tendency, and the Bush Administration, in negotiating NAFTA, insisted on "parallel" environmental agreements rather that direct incorporation of environmental issues into trade talks.(23) Such textual segregation fails to recognize the negative impacts that trade agreements can have on nation's environmental policies.

B. International Trade Law versus Domestic Environmental


Failure to recognize the interdependence of domestic environmental protection and international trade unnecessarily pits these two objectives against each other. It presents the United States and other GATT members with the dilemma of conflicting national goals. A developed country such as the United States might have international economic goals of increased free trade with neighboring countries, increased opportunities for investment in foreign markets, and more importation of foreign goods for domestic consumers. It also might have environmental goals of efficient and effective domestic environmental regulation, guarding global commons against misuse by multinational entities, and guarding citizens and the environmental against goods from countries unacceptably low environmental standards. Unfortunately international trade agreements entered in pursuit of the economic goals often characterize environmental measures as unallowable NTBs.

Although congressionally ratified treaty obligations are on par with federal statutes,(24) trade treaty obligations will often preempt national environmental protection measures in a practical sense. If a treaty is adopted that contravenes an earlier federal statute, the treaty will preempt the statute because when there is a conflict between a treaty and federal statute, the last adopted will control.(25) Furthermore, Congress is unlikely to pass new legislation that interferes with a previously adopted treaty and the international obligations it created. Therefore, because treaties limit both past and future law, the FTA and NAFTA (when ratified) are likely to remain controlling law in the United States. Negotiators did not depart from the flawed GATT and FTA models, and NAFTA could soon become the law of the land. Now, at the ratifying stage, is the time for the U.S. Congress to ensure that NAFTA does riot turn out to be as detrimental to U,.S. environmental protection as GATT and the FTA,(26)

III. The U.S.-Canada Free Trade Agreement: Environmental


Lessons gleaned from the U.S.-Canada experience can be applied to forecast the possible effects of NAFTA on environmental issues in the United States because the United States and Canada are both involved in NAFTA and because NAFTA incorporates much of the existing language and goals of the U.S.-Canada accord.(27) Although the FTA. bestowed substantial economic benefits on both countries,(28) the adverse environmental effects of the FTA threaten to overshadow the economic gains.(29)

A. FTA Environmental Impacts in Canada

1. Energy Policy

One of the FTA's primary goals was to open up Canada's vast energy reserves for use by both countries. Canada, with its wealth of natural gas and petroleum resources, is a convenient, close, and cheap source of energy for the United States voracious energy appetite. The two countries shared the world's largest two-way energy trade even before the FTA.(30) In negotiating the FTA, the Mulroney and Reagan administrations set out to secure an energy resource for the United States and a stable Canadian energy export market. Both parties came to the table intending to deregulate and exploit natural resources, but did not seriously consider long-range sustainable energy use and development(31) or environmental safeguards. Furthermore, the FTA compromises Canada's sovereignty over its natural resources and it increases the likelihood that the United States will exploit Canada's energy resources in the same short-sighted manner that it exploited its own, thereby worsening international environmental problems.

Several articles of the FTA embody these blind deregulatory philosophies concerning natural resources because: * Article 902 prohibits minimum import and export price requirements, restrictions and fees for energy resources;(32) * Article 903 eliminates export taxes unless the same tax is applied to domestic users;(33) * Article 904 forces one country (Canada), in a supply constraint or international crisis, to provide the other country (the United States) with the same proportion of energy as is consumed domestically by refraining from energy export control policies.(34) * Article 905 curtails federal energy agency discretion in both countries by codifying "energy regulatory action" as grounds for a FTA cause of action;(35) and * Article 906 gives protection to government oil and gas exploration incentives against FTA actions, a protection afforded only to defense, and not given to government programs that promote renewable energy development or conservation measures.(36)

The first three provisions attempt to reduce or eliminate government control over energy exports and imports. This supports free trade because governments often use export and import quotas, taxes, and price requirements to unfairly promote domestic industries or to disadvantages foreign importers.(37) However, the vague language of Articles 902-903 does not consider legitimate conservation rationales for pricing regulations. It also strips Canada of important tools needed to maintain control over these resources in the face of high demand from the United States.(38) Article 904 proscribes restrictions on energy exports and imports to such a degree that Canada is unlikely to ever apply such restrictions; Canada would have to match any export cutbacks with equivalent domestic cutbacks.(39)

Canada's National Energy Board (NEB), the regulatory agency in charge of national energy policy implementation, has lost much of its power to act in the public interest due to Article 905 of the FTA. This loss is greatest in natural gas regulation. Canada's total natural gas reserves are estimated to be approximately 99.6 trillion cubic feet (cf); domestic production was approximately 2.96 trillion cf in 1986(40) Before the FTA, Canada claimed around five percent of the United States natural gas market, but exports to the United States had already been increasing (up forty percent in, 1987 to 92.8 billion cf.) and were predicted to double.41 If new reserves are not discovered within the next hundred years, Canada may run out a current production rates.

The FTA has allowed accelerated consumption by removing NEB's effective export control over these resources. The agency acquiesced to most export licenses for the development of a 1200 mile pipeline from the Canadian Arctic that will export an estimated eighty-seven percent of its output to the United States. Canadian and U.S. companies exploiting the reserves explained that the only reason for building the line is to serve the hungry U.S. market.(42) When the NEB refused to grant one license, U.S. companies threatened to challenge them in Canadian Federal Court under the FTA. The NEB then granted the license.(43) It is no wonder that the NEB backed down. Even if the Canadian court had decided in NEB's favor, the U.S. companies could have appealed to the U.S. government to enter into consultation with the NEB according to Article 905, or to refer the matter to one of the binational dispute resolution panels created by the FTA, The United States claimed an impressive 16-0 record through 1990 in trade disputes.(44) This usurpation of the NEB's power by the FTA, is especially disturbing because it might undercut Canada's recent efforts to promote conservation in its national "Green Plan."(45) Meanwhile the United States populace, instead of being pushed into intense domestic conservation policies and renewable energy research, is being lulled into a familiar sleep. Apparently the U.S. assumes that it can continue its highly consumptive patterns because there is an exploitable cheap energy source next door.

Finally, Article 906 presents a prime example of the environmental shortsightedness of the FTA. The FTA allows existing and future government incentives for oil and gas exploration to continue. but does not explicitly allow such incentives for renewable development.(46) As a result, future government subsidies and tax breaks for renewable development could be challenged by Canadians as unfair trade barriers to the entry of Canadian renewable technology into the United States, but subsidies and tax breaks for oil and gas are protected by the FTA. Such unequal treatment of energy options goes against a wiser conservationist policy of encouraging renewable energy development.

The energy provisions of the FTA do not present any immediate environmental problems for the United States (although petroleum and natural gas use could contribute to the international environmental problem of the greenhouse effect). For Canada, however, the FTA might spell the end of wise management and protection of the pristine areas where these energy sources are located. Admittedly, the FTA does not directly prohibit Canadian conservation. Canada is free to pursue conservation to protect pristine areas, but the FTA discourages such action, In a national conservation strategy, decreasing exports of surplus resources would seem the logical first step, but the FTA eliminates this option for Canada. The FTA mandates that Canada reduce its domestic supply to the game level as that which Canada exports to the United States. Canadians therefore have less of an incentive to conserve if they cannot directly enjoy the fruits of the first step of a conservation strategy.

Although the United States appears to have achieved the better end of the deal this time, the lesson to be learned is that free trade agreements can compromise a nation's sovereignty over its natural resources to a point where conservation is undermined in order to fulfill trade obligations. NAFTA may require the United States to hand over control of national environmental integrity to the unpredictable world market in the same way that the FTA has limited Canada.

2. Subsidies for Pollution Control

U.S. industries have directly assailed Canadian pollution control policies under the auspices of the FTA. This is a prime example of how free trade policy can not only be indifferent to sovereign environmental and conservationist concerns, it can be overtly hostile to sound environmental policy. As discussed above, unfair government subsidies to particular domestic industries are considered NTBs in GATT and the FTA, and can be legitimate grounds for countervailing duties (CVDs) against the subsidizing government.(47) Canada and its provinces have historically followed a more centralized, command-and-control governing philosophy than the United States; therefore, subsidies and direct government operation of industries are common governing methods. In international trade, the United States has historically viewed foreign subsidies as unfair advantages to foreign producers. Legislation for the FTA reflects this view by allowing U.S. industries to petition the U.S. government to investigate and take possible retaliatory trade action in the form of CVDs against Canadian entities that they suspect are unfairly subsidizes.(48)

Unfortunately, U.S. industries can use this provision against arguably legitimate Canadian environmental subsidies, and they have threatened to do so. For example, the U.S. nonferrous metal industry argued for exclusion from the FTA because of alleged unfair competition from Canadian producers. U.S. producers felt they were at a double disadvantage because they have to comply with stricter U.S. environmental regulations and because they do not receive subsidies comparable to their Canadian counterparts, who receive subsidies for pollution control, smelter modernization, and other measures for reducing emissions and improving workplace safety.(49) In April 1989, the U.S.-based Non-ferrous Metals Producers Committee (NFMPC), representing United States primary producers of copper, lead, and zinc, petitioned the U.S. Trade Representative (USTR) to take action on Canadian federal and provincial subsidies to their Canadian counterparts.(50) The USTR considered the U.S. industries reasonably likely to face subsidized imports, and agreed to compile evidence related to such subsidies.(51) However, the USTR did not go any further than investigating and releasing of information to the U.S. industries to help them lobby the FTA Working Group on Subsidies.(52) Currently, Canada is watching the activities of the NFMPC and the U.S. government closely in anticipation of possible CVDs against Canadian nonferrous metal producers in retaliation for the environmental subsidies.(53)

It seems unfair that U.S. nonferrous metal producers must shoulder the burden of installing pollution control equipment that the Canadian government provides for Canadian industry. But to sacrifice environmental protection in order to obtain a more level playing field places the economic goal of free and fair trade over the goal of reducing harmful pollutants from Canadian smelters. Understandably, the NFMPC, as a special interest group, has used the petition and the threat of CVDs as effective tools to call attention to the industries' economic problems. Fault lies primarily with the FTA and its implementing legislation which allows parties to challenge another country's legitimate environmental protective measures. Different language in the FTA could have encouraged the United States to raise its environmental standards, or implemented the means to fund pollution-abation efforts in both countries. Instead, the FTA acts as a negative force by discouraging Canada from improving its environment in the most direct and practical way consistent with its system of government. Canadian subsidies for emission reduction from nonferrous smelters are important components in that nation's fight against acid rain and air pollution. Now, in the face of possible retaliatory trade measures under the FTA, Canada might choose to reduce or eliminate the subsidies.

Canada has chosen to abandon environmental programs in the past under pressure from the United States. For example, when the U.S. timber industry claimed that Canadian reforestation [programs were unfair subsidies, Canada cut the programs.(54) The U.S. Congress should take a cue from this incident and ensure that NAFTA will not allow U.S. sovereignty over its own environmental protection to be compromised in such a manner.

3. Pesticide Standards

Another effect of the FTA is the possible weakening of stringent Canadian pesticide standards. In the past decade, the problem of pesticide residue on food products has become a major health threat in the United States. This is is partly due to relaxed standards for pesticide use in this country, and partly due to U.S. production and export of pesticides that are banned in the United States, but find their way back in food imports after use in other countries. Now, Canada may be threatened by the same environmental and health problems if Canadian standards ate forced lower in order to harmonize with U.S. standards.

The FTA set technical pesticide standards, but those standards are inadequate and too general to act as protective measures.(55) Article 708 calls for harmonization (making identical) and equivalency (having the same effect) in the two countries' technical regulatory requirements and inspection procedures,(56) These principles explicitly apply to pesticide regulation and risk-benefit assessment.(57)

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) governs pesticide regulation in the United States.(58) FIFRA, unlike most U,S. environmental and safety, laws, employs a risk-benefit model to determine whether use of a particular pesticide should be allowed in the United States. The statute directs the EPA to ascertain if the pesticide will cause "unreasonable adverse effects on the environment" while "taking into account the economic, social, and environmental costs and benefits of the use of any pesticides."(59)

Canada regulates pesticide production under the authority of the Pest Control Products Act which focuses solely on whether or not the pesticide in question is safe for use apart from any economic benefits to be gained from its use.(60) This difference in standards contributes to noticeable differences in pesticide permissibility between the united States and Canada. One author estimates that FIFRA allows seven times more pesticide products and twenty percent more active pesticide ingredients in the United States than its Canadian counter part.(61)

If pesticide standards are harmonized over the next decade in accordance with Article 708 of the FTA, Canadian standards are likely to acquiesce to the lower U.S. risk-benefit standards, rather than U.S. standards going up to Canada"s level, for three reasons. First, Canadian fruit and vegetable industry representatives cite the need for greater harmonization in the same breath as they mention the need to remove "obstacles to growth" caused by Canadian pesticide policies.(62) Second, experience in free trade such as the GATT, have shown that the lowest common denominator often establishes the technical standards for regulation. Finally, the United States might exert influence through FTA mechanisms to force Canadian standards down, as U.S. pesticide industries sense the possibility for expanding into the Canadian market. Harmonization might therefore weaken Canada's sovereignty to set health standards for its own citizens. The pesticide lessons were particularly salient for NAFTA negotiators, because Mexico has lower pesticide standards than the United States. Pesticide-laced agricultural imports from Mexico also present a special problem for the United States.(63) The NAFTA text continues the FTA's practice of paying lip service to sanitary and phytosanitary standards while leaving intact provisions that seem to overrule the standards where they interfere with trade.

Overall, after only two years of operation, the effects of the PTA on environmental protection in Canada are detrimental, as evidenced by exploitative energy policies, allowance for challenges to, Canadian pollution control measures, and potential for weakening of Canadian pesticide standards. Though the brunt of these effects fell on Canada, the United States can learn from them in viewing NAFTA. The United States might cynically disregard these effects as the results of Canada's inferior bargaining power in the FTA, if it were not for the unfortunate effects the FTA has had on environmental protection in the United States as well.

B. FTA Environmental Impacts on the United States

Free trade advocates claim that the FTA Article 603 guards national environmental standards for legitimate domestic objectives against outside FTA-based attacks. Article 609 defines "legitimate domestic objective" as one "whose purpose is to protect healthy, safety, essential security, the environment, or consumer interests."(64) In reality, however, the vague language of the FTA affords little or no protection to legitimate domestic environmental objectives, as evidenced by Canada's attacks on U.S. asbestos regulations under the auspices of the FTA, and the temporary harmonized reduction in U.S. meat inspection standards for products coming from Canada.

1. Asbestos

In 1989, the EPA introduced plans under the Toxic Substances Control Act (TSCA.)(65) to phase out production, importation, and use of asbestos in the United States over the next seven years.(66) Like FIFRA, TSCA follows a risk-benefit model, and until the EPA's announcement, the economic benefits of asbestos overcame its purported health hazards in the judgment of U.S. policymakers. Environmental advocates believed they had won the final victory over asbestos with the EPA ruling.(67)

Their rejoicing was short-lived. In October 1991, the Fifth Circuit Court of Appeals, held that the EPA "failed to muster substantial evidence to support its rule;" the court then struck down. the EPA's regulations that would have taken effect in 1993 and 1996.(68) Though the plaintiffs in the case were American asbestos producers, the governments of Canada and Quebec filed amicus briefs against the EPA contending that the EPA, regulation was invalid "because, it conflicts with international trade agreements and may have adverse economic effects on Canada and other foreign countries."(69) The court held that those foreign petitioners did not have standing to raise new issues because TSCA does not include international effects in its calculus.(70) Nevertheless, the court used the amicus briefs for other proper issues.(71)

One of the main weapons in Canada and Quebec's arsenal for assailing the U.S. asbestos standards was the FTA. Demonstrating the FTA's weakness on environmental protection, the Canadian government used one of the supposed environmental safeguards in the agreement, the legitimate domestic objective of Article 603, to assail an environmental measure, claiming, that the EPA rule was invalid under the FTA because asbestos does not present an unreasonable health risk,(72) and that the regulations were "aimed at promoting U.S. economic interests rather than protecting health and the environment."(73)

The position of Canadian asbestos producers in the face of the EPA ban was unfortunate, but the industry was coping.(74) More disturbing is the precedent that Canada's use of the FTA in this manner sets for future environmental regulation in the United States. Canada argued that the EPA ban did not pursue a legitimate domestic objective under the FTA because the FTA term "legitimate domestic objective" is left open to almost any interpretation. The FTA's failure to be more specific in excluding national environmental regulations from free-trade attacks is largely to blame.

Although the Fifth Circuit ultimately did not allow the Canadian government amicus standing due to the court's reading of TSCA, the court listened closely to their arguments almost as if they were parties. In the future, Canada might be able to successfully maintain standing on the basis of the FTA despite TSCA, and successfully challenge future attempts to ban asbestos in the United States. As the U.S. legal system recognizes the evolving interrelatedness of the international community, U.S. judges might be more willing to grant foreign parties redress under U.S. laws instead of denying them standing. Also, if the FTA stands intact over a period of years, U.S. courts will respect the FTA more as codifed international law when matching it against domestic environmental law, and recognize standing for parties under it.

If Canada obtains standing in the asbestos dispute, it will signal a loss of U.S. sovereignty over its own environmental matters; an environmental agency of the elected administration of this country will have to yield to a foreign entity in an area of its own expertise in deciding this nation's environmental standards. The U.S. Congress should be wary of this possibility before ratifying NAFTA and insist on including provisions that exempt legitimate EPA regulations from trade-style attack. Otherwise, attacks might come from both sides next time - from Canada and Mexco - instead of from only one source.

2. Meat Inspection

The FTA temporarily reduced U.S. standards during border inspections of meat. Article 708 calls for both countries to "harmonize their respective technical regulatory requirements and inspection procedure [for an] open border policy with respect to trade in agricultural, food, beverage, and certain related goods."(75) Although border inspections can hinder free trade between nations by imposing extensive requirements, inspections also uphold individual nations' health standards for foodstuffs.

In response to Canadian pork producers' complaints that the U.S. inspection system violated the FTA open border and inspection harmonization provisions, the U.S. government "streamlined" its border stations. According to William Lehman, a senior meat inspector in Montana who was questioned by the General Accounting Office, due to streamlining, inspectors stopped inspecting every truck and began inspecting only one truck in every fifteen.(76) Other results of streamlining included preselection (where the meat company is notified beforehand of which trucks will be inspected) and segregated sampling (where the company places the meat it wants sampled near the back of the truck).(77)

Lehman also claimed that he saw more contaminated meat come to the checkpoints in the two FTA years, than in any of the twenty-three preceding years. He found "abscesses, sticky layers of bacteria leaving a stench, fecal contamination stains, blood, bruises and metal shavings" in some of the 684,600 pounds of meat rejected in the first four months of 1991.(78)

Critics dismiss these facts as isolated incidents, claiming that ten times more U.S. meat is rejected by Canada than vice versa.(79) but the disturbing aspect of the streamlining was that longstanding health standards were reduced.(80) Regardless of whether or not meat quality is improving in either country, each country should have the right to protect the health of its citizens to the extent determined by that country on the basis of health and safety - not free trade.

IV. United States-Mexico Trade: Environmental Impacts

The possible environmental effects of the FTA on the United States are evident and largely irreversible because the treaty was ratified by both parties. However, the U.S. Congress could condition ratification of NAFTA upon the incorporation of specific environmental provisions, taking into account the lessons of the FTA. This Section examines the effects of United States-Mexico trade on U.S. environmental issues.

A. Background: Contrasts Between the United States and


Mexico differs from the United States in culture, legal system, and political structure.(81) Perhaps the most significant difference affecting NAFTA is the economic disparity between Mexico and the United States. United the last few decades of its fledgling industrialization and oil development, Mexico was one of the poorer developing countries in the Western Hemisphere.(82) Over the last one hundred years, the United States has arguably enjoyed the highest national prosperity the world has ever seen. In the last twenty years, the United States has passed, implemented and enforced, comprehensive environmental laws and some of the world's toughest environmental standards. Mexico also has stringent environmental laws that were strengthened by the 1988 General Law on Ecological Equilibrium and Environmental Protection.(83) Historically however, Mexican protective standards for health and the environment have yielded to industrial growth.

To most Mexicans, environmental protection is a luxury to be attained only after meeting economic needs. As one commentator astutely observed, "Mexico may have concluded, at least for the short term, that it is better to have factories working, employing people and generating pollution than to have no factories at all."(84) Consequently, some environmental laws are not implemented by regulations, and regulations in place are often unenforced due to funding shortfalls.(85) The Salinas Administration is making progress in enforcement, although critics claim that the recent plant closures by the government are really cosmetic attempts to assuage U.S. fears about the Mexican environment for purposes of NAFTA.(86)

Juxtaposing two nations with such different development levels adds complexity to the NAFTA that is absent from the FTA, especially for environmental concerns. Mexico and the United States came to the NAFTA bargaining table with different perceptions of acceptable levels of environmental risk in relation to economic development. The possible effects on the Mexican environment of a poorly drafted NAFTA loom ominously. Two possible consequences are the exploitation of Mexico's forests and energy reserves for export to the United States and its trading partners, and the creation of unregulated pollution spurred by increased investment and industrialization in the U.S.-owned maquilladora factories.(87)

U.S. environmental measures are not shielded from NAFTA either. The following two subsections explain how one measure came under a NTB-style attack from Mexico, and how another measure might be attacked unless special provisions are included in NAFTA.

B. Marine Mammal Protection Act

Mexico's challenge to provisions of the U.S. Marine Mammal Protection Act (MMPA)(88) under the authority of GATT stands as one of the best examples to date of international trade law threatening to undercut U.S. environmental laws. The controversy revolved around provisions in the MMPA that Congress added in 1984. These provisions ban imports of yellowfin tuna from countries whose fleets incidentally kill more than twice as many dolphins as the United States, or whose total kills of eastern spinner dolphins exceed fifteen percent of the foreign country's total incidental marine mammal kill.(89) By enacting these provisions, Congress showed its willingness to use trade policies to promote environmentally benign behavior in the global commons of the oceans. In April 1991, an environmental group succeeded in forcing the Department of Commerce to enforce these provisions against several exporting nations, including Mexico, that used fishing methods that result in high dolphin mortality.(90)

The government of Mexico brought the matter before a three-member GATT investigative panel in Geneva, contending that the U.S. embargo was really a disguised barrier favoring the U.S. tuna fleet.(91) The United States countered that its actions were consistent with GATT Article XX, the vague provision which allows necessary environmental protection.(92) In its arguments, Mexico still tried to show it was concerned for dolphins, stating almost apologetically: "Mexico's decision to defend its interests within the spirit of free and fair trade between nations does not in any way exclude its firm commitment to the protection and conservation of marine species."(93)

The GATT panel ruled in Mexico's favor, holding that the environmental law violated U.S. trade obligations.(94) A European Community official close to the proceedings justified the ruling by admonishing that "[w]e have to avoid creating new non-tariff barriers" and "that a contracting party [to, GATT] cannot unilaterally decide what is best for the international community."(95)

Mexico's government realized the poor environmental image it was cultivating in the United States, and postponed any further action on the ruling.(96) However, the European Community (EC) stepped in, over the objections of Mexico, to pursue Mexico's GATT claim. The EC criticized the panel's decision not to mandate that the United States adopt the panel's position.(97) Although U.S. GATT negotiators have explained that their hands are tied unless Congress changes the law, the EC has threatened to file its own formal complaint with GATT to urge the panel to take stronger action. One EC official explained: "[m]easures for the conservation of living resources, including dolphins, should be agreed through multilateral work rather than through the unilateral setting of trade restrictive conservation/ecological rules."(98) If the GATT panel recommends that the GATT community formalize its ruling, it is likely that a majority of the 108-nation organization would back the panel's finding. This would force the United States to either rescind the controversial MMPA provisions or face world-wide trade sanctions.

Past U.S. interventionism justifies the defensiveness that Mexico and other Latin American nations express toward U.S. attempts to dictate environmental standards. The trade provisions of the MMPA could be interpreted as an attempt by the United States to assert extraterritorial power. However, the GATT Tuna-Dolphin ruling does more than thwart real or imagined U.S. extraterritorial intentions. The ruling infringes on U.S. sovereignty by telling the U.S. citizens that there are limits to environmental standards for imports; they must allow tuna imports that meet Mexico's lower standards. Furthermore, the GATT ruling fails to acknowledge that nations may have a legitimate environmental interest in using their extraterritorial powers to protect the global commons. Dolphins on the high seas belong to all nations; an individual nation might be justified in efforts to preserve them because it arguably owns an interest in the pool of dolphins.

Recently, Mexico reversed course and is now implementing its own laws to halt dolphin-destructive fishing methods.(99) Whether these laws are cosmetic for purposes of NAFTA, as some critics claim,(100) or whether Mexico has decided to follow a more environmentally conscious policy, the episode underscores the incompatibility of GATT rules and modern international environmental protection. The GATT panel's trade blinders only allowed it to ask the precursory question of whether or not the United States had breached GATT obligations, instead of the broader question of whether or not U.S. environmental concerns for marine mammal protection were legitimate by weighing the GATT obligations against a nation's environmental sovereignty,

The dolphin episode highlights possible correlations between the two nations' development levels, and perceptions of environmental risks and applicable standards. Mexico places a different premium on environmental protection at this point in its development. The issue is whether or not the United States will be forced to change environmental policies chosen by its elected representatives. Members of Congress must ask themselves if NAFTA will unduly undercut sovereignty if it does not contain provisions that exempt domestic environmental protective standards from trade-based attacks.(101)

C. Pesticide Standards

Within the context of NAFTA, the United States might find itself at odds with Mexico over pesticide standards. The "circle of poison" perpetuated by the world pesticide trade affects virtually all nations regardless of their stage of development.(102) Pesticide poisoning frequently occurs in the developing world, due to public ignorance, mislabelling, and inadequate regulation and enforcement.(103) Many developing countries import pesticides from the United States; ironically, approximately twenty-five percent of the pesticides exported by the United States in 1990 were banned, restricted, or unregistered inside the United States.(104) In a remarkable concession to international trade, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) exempts many exported pesticides from compliance with the stringent standards that domestically used pesticide products must meet.(105) In addition, many nominal export standards are inadequately met, such as manufacturer notification of the U.S. government, and U.S. notification of foreign importers.(106)

The United States does not escape pesticide poisons, however, because imported agricultural products covered with residues of pesticides forbidden in the United States often slip through inspection procedures. The Food and Drug Administration, the agency in charge of inspections, only samples one percent of agricultural imports, and five percent of these samples are contaminated.(107) U.S. exports of dangerous pesticides, including DDT, therefore come full circle on imported food, creating an alarming health danger for the American public.(108)

Opponents of NAFTA have seized on this issue and alleged that U.S. pesticide and agricultural import standards will be harmonized with Mexican standards to produce the lowest common denominator for uniformity. One public interest group advocate claimed that if Congress allowed fast-track negotiations for NAFTA, U.S. consumers could expect "DDT back on their fruits and vegetables, and contaminated meat on their plates."(109) Though such language is perhaps hyperbole, NAFTA could substantially weaken U.S. pesticide standards for products imported from Mexico. Trade Representative Hills "assured" the public that the United States will not consider lowering its health standards in the name of harmonization,(110) but this assurance goes against the trade law precedent of GATT(111) and the FTA,(112) both of which require harmonization. Refusing to discuss harmonization with Mexico is also diplomatically inconsistent with the U.S. efforts to achieve harmonization in the FTA by forcing Canada to lower its pesticide standards.

As discussed above, individual states stringent pesticide standards would be preempted by NAFTA standards if the two came into conflict.(113) The Buch Administration had promised not to allow preemption, but did not promise to take the legal steps necessary to prevent it. The U.S. Congress should insist on specific pesticide NAFTA provisions that would exempt U.S. standards. By settling the question now, the U.S. Congress could avoid later conflicts.

In addition, the Bush Administration Policymakers stated that U.S. standards will be safe from attack only if scientifically sound, because dispute resolution panels would allow one country to question the other's scientific basis for environmental and health standards, and whether the standards were promulgated through an open process.(114) Although this appears to be a legitimate trade safeguard, the scientifically sound formula might result in weaker standards if Mexico disagrees with U.S. science and a dispute resolution panel finds for Mexico. U.S. sovereignty to decide what is scientifically sound evidence for banning substances to be consumed by its citizens could be undermined by inadequate dispute resolution mechanisms in NAFTA.

The scientifically sound issue also raises the dichotomy between developed and developing nations. Canada's assertions that U.S. EPA asbestos standards are unrealistic and unscientific demonstrate that nations with similar cultures and economic development levels can diverge on environmental risk; the possibility for disagreement between the United State and Mexico is even greater.(115)

Policies for gathering scientific evidence of health and environmental risks are often inseparably tied to cultural perceptions of acceptable levels of risk and probability. If the public demands high standards, policymakers and advocacy groups will keep scientists in business by calling for studies and investigations for ever-diminishing risk probabilities and magnitudes for particular substances.(116) In the post-industrialized United States, such risk expectations can sometimes border on the unrealistic (for example, a few cyanide-laced grapes in a Chilean shipment led to a short.-term U.S. embargo against Chile.) In Mexico, the populace accepts higher levels of environmental risk because the cultural focus is on the economic benefits of development.

Harmonization stipulations, such as those found in the FTA and NAFTA,(117) largely ignore differences between nations' unique risk perceptions. If the United States acquiesces to the lowest common denominator for pesticide standards in NAFTA, the result will be a confusing, contradictory, and damaging U.S. pesticide policy. The United States currently maintains in FIFRA that the sovereignty of developed nations to use dangerous U.S.-produced pesticides outweighs the health benefits from outright bans of those pesticides, and therefore allows their export.(118) Yet, by allowing NAFTA to dictate standards to the United States through harmonization, U.S. policymakers could be in a position of defending Mexico's sovereignty over pesticides through FIFRA, while giving away U.S. sovereignty over the same pesticides in NAFTA.

V. Analysis

This Section compares and contrasts the environmental effects of the FTA, and the areas in which U.S. environmental measures have been, or could be attacked by Mexico under free-trade auspices. Three dominant themes recur. First, vague and general measures in free-trade agreements such as the FTA and GATT have undermined specific national environmental policies in Canada and the United States. Second, free-trade agreements that override, either directly or indirectly, domestic environmental laws are establishing international customary law that restricts nation-states' sovereignty over environmental issues within their borders. Third, legal structures for international trade no longer exist and operate in separate spheres from legal structures for local and international environmental protection. GATT and the FTA recognized this separation by ignoring environmental issues or treating them as collateral matters. If Congress allows NAFTA to follow these earlier trade agreements, it will open a pandora's box of confusion about trade law as it relates to the environment. This may lead to abuses of the trade laws.

4. Vague and General Phraseology

Drafters often draft treaties and other international agreements in general terms in order to respect the diverse needs, goals, and cultures of the party-states involved. Consensus would be difficult to obtain for such agreements if party-states were unwilling to compromise their specific goals with the divergent goals of other party-states. In order to make an international agreement applicable and enforceable, however, a treaty must have provisions that pointedly address the subject matter at hand. The Antarctic Treaty, signed by thirteen nations, is a good example of balance between generality and specificity.(119) The treaty preamble is general in its terms, calling for use of the Antarctic continent for only "peaceful purposes."(120) Its Article IV leaves untouched "previously asserted rights of or territorial claims to territorial sovereignty in Antarctica,"(121) which amounts to a general exclusion from the treaty of the party-states' individual, and often conflicting, claims over the subcontinent. However, the treaty also contains specific mandates. For example, military activities are banned,(122) nuclear testing is prohibited,(123) and all signatories' stations, installations, and equipment in Antarctica are subject to inspections by international observation teams.(124)

The Antarctic treaty was written succinctly and forcefully because, at the time of its signing, relatively few party-states' economic or cultural rights had vested in the subcontinent and its resources. In contrast, free trade agreements, whether bilateral or multilateral, present a complex web of vested rights and obligations. Two conflicting strands of this web are party-states' rights to free trade with their partners, and party-states' obligations to ensure acceptable domestic environmental conditions. Hence, in free-trade agreements, attempts to balance generality and specificity must account for many factors and interests. Drafting an agreement that best represents, and yet compromises, the rights and obligations of the individual parties is a tedious and difficult task. However, the important interests at stake justify the care that should go into a free-trade agreement; one of those interests is the assurance of adequate environmental protection.

In bilateral or trilateral trade agreements such as the FTA and NAFTA, concern for a healthy balance between generalities. and specificities should be prevalent in the minds of the drafters. In contrast to multilateral agreements such as GATT where many party-states are involved, bi- or trilateral agreements allow negotiators to focus on the goals and concerns of only two or three party-states and tailor the agreement's principles with greater specificity.

In the FTA, however, negotiators erred on the side of vagueness and generality in the environmental protection provision.(125) The energy policies of Article 902, for example, make a blanket prohibition of minimum import and export requirements without taking into account the legitimate use of such devices for national energy conservation policies.(126) The vague terms of Article 903 actually penalize a country for using possible conservation devices such as "any tax, duty, or charge on the export of any energy good" in trade with its partner by mandating that the same measures must be used domestically.(127) This means that Canada cannot implement energy policies - cutting back exports to the United States while maintaining domestic consumption - which would seem to be the logical first step in a national conservation strategy. Although Canada currently wants to sell as much energy as possible to the United States, and although the FTA enhances current Canadian policy, the FTA commits Canada to an export-intensive policy without considering a possible future when Canada might wish to conserve.

The United States faced a similar confrontation with the vague phraseology in its GATT conflict with Mexico over dolphin protection provisions of the MMPA. One might have thought that Article XX of GATT would allow the United States to use MMPA import requirements and bans to protect "human, animal, or plant life and health,"(128) but the GATT pabel in Geneva apparently felt that the MMPA had entered the forbidden zone of unreasonable trade restrictions. If Congress ratifies a NAFTA that incorporates this vague standard without qualifying definitions, the United States can expect more arbitration with Mexico over U.S. environmental measures in the future. NAFTA should define what restrictions will be unreasonable with greater specificity than it currently does.

Pesticide policy presents another area where FTA vagueness could lead to lower standards for Canada and the United States. Article 603, which allows standards to impede trade for "legitimate domestic objectives,"(129) could act as an internal check against the blanket harmonization provisions of Article 708, and perhaps that was the intended effect. However, in practice, Article 708 seems to reign supreme in the area of pesticide standards, as evidenced by Canada's plans to adopt the lower risk-benefit standard of the U.S. FIFRA. Ironically, the U.S. itself might have to adopt lower pesticide standards if Congress ratifies a NAFTA that emulates the FTA because Mexico could justify its attempts to lower U.S. standards by pointing to U.S. efforts to lower Canadian standards. Alternatively, NAFTA could amend Article 603 by further defining "legitimate domestic objective" to include specific human health and safety policies, such as domestic pesticide regulation, and thereby put the most important measures beyond the reach of trade attacks.

B. Sovereignty over Environmental Standards and Policy

One of the basic tenets of international law is that states are endowed with the, inherent characteristic of sovereignty. State sovereignty derives its authority not only from longstanding custom, but also from the United Nations Declaration on Friendly Relations:

All States ... have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature. In particular, sovereign equality includes the following elements:

a) States are juridically equal;

b) Each State enjoys the rights inherent in full sovereignty;

c) Each State has the duty to respect the personality of other States;

d) The territorial integrity and political independence of the States are inviolable;

e) Each State has the right freely to choose and develop its political, social, economic, and cultural systems;

f) Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.(130)

International law for environmental policy is widely recognized as codified, though not binding, in the Declaration of the United Nations Conference, on the Human Environment, Principal 21: "States have, in accordance with the Charter of the United Nations and the principle of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies...."(131)

States currently have the last word on what laws will govern, their territories and citizen, including measures to exploit or protect the environment within their borders. However, trade agreements such as GATT and the FTA, and possibly NAFTA, are setting a conflicting international legal precedent by eliminating state sovereignty over environmental protective measures that run contrary to trade obligations. Perhaps signatories to these trade agreements consented by exchanging their sovereignty for free trade guarantees. At a more basic level, the question is whether a state should be able to gamble with its sovereignty in this manner - especially sovereignty over the welfare of its people and territories as manifested in environmental protective measures.

This kind of signatory state homage to international trade law is creating an international legal structure favored by the monist school of thought. According to the monist, international law should reign supreme even within the municipal sphere, "antipathetic to the legal corollaries of the existence of sovereign states."(132) Ideally, this international legal structure synthesizes the numerous municipal systems of the world. Trade agreements such as GATT and the FTA would represent this synthesis, in which individual nations disclaim their sovereignty and recognize the higher law of the agreement, with the assurance that their own systems would be manifested and respected in the higher law. In reality, however, trade agreements can force nations to give up

their traditional methods and philosophies of governance and foist upon them a free trade model - with unfortunate consequences for environmental protection.

Governing philosophies for environmental protection are numerous and diverse, but most fall somewhere between free market and the command-and-control models. The "free market" theories, originating in the nineteenth century laissez-faire philosophies of Adam Smith and other classical liberals, hold that the invisible hand of consumer demand dictates what happens to the environment, so consumers will get a better environment if they demand it through their choices. In world trade, the ultimate goal of the free trade philosophy is the free flow of commerce without tariffs or nontariff barriers between nations. Imposing regulations and restrictions, even in the name of the environment, will inevitably lead to international tension, so the highest priority is to eliminate all barriers. In contrast, the command-and-control philosophy holds that human health and safety, and domestic environment and natural resources need to be protected from the speculative, consumptive activities of exploitative entities. National governments act as the highest authorities responsible for protecting natural resources; if they relinquish control by dropping protective measures, no one will remain to protect against the tragedy of the commons(133) that threatens local and global environments. Thus, command-and-control proponents believe regulations and restrictions ire necessary to protect the environment both locally and globally.

As mentioned earlier, Canada historically has used command-and-control in many areas, including resource conservation and environmental protection. The FTA, however, effectively has overridden Canada's Sovereignty to choose its method of governing its energy resources. As noted above, Canada's National Energy Board has lost much of its authority over Canada's resources to the FTA; "[t]hrough the FTA, market forces have become the ultimate, and only, arbiter of the public interest" in Canada's natural gas.(134) Canada subsidizes its nonferrous metal industries for pollution control; this practice is representative of Canada's sovereignly chosen command and control system for environmental protection, but it is endangered by the FTA.

The United States leans in the direction of command-and-control in its complex systems of environmental regulations, though not as far as Canada. In the same manner as Canada, the United States has lost some control over its environmental policies to the FTA and could relinquish more under NAFTA. U.S. sovereignty over scientific, standards for environmental regulation was challenged by Canada in the asbestos court battle, and could be challenged by Mexico under harmonization clauses concerning pesticides. U.S. sovereignty over meat inspection standards was temporarily suspended when the United States implemented its "open border" policy pursuant to the FTA. Finally, U.S. sovereignty over the import of marine products that are caught in a manner offensive to the environmental sensibilities of U.S. citizens, as articulated in the MMPA, was ignored by the GATT panel's MMPA ruling. The EC, taking Mexico's original position, might have a legitimate complaint against U.S. unilateralism in international environmental matters. However, the United States could argue that its import policies merely attempt to mitigate harm to the biological balance of global oceans, which indirectly harms the biological integrity of U.S. waters. The Tuna-Dolphin ruling might be a harbinger of a myriad of challenges to U.S. environmental policies by both Canada and Mexico under NAFTA.

C. Incompatibility of Current International Trade Law and

Environmental Protection

International trade law negotiators ignored or overlooked the environment until the past two or three decades.(135) The FTA followed this policy of ignorance, as evidenced by its vagueness in some areas, and its active promotion of policies that are potentially damaging to the environment.(136) The Article 708 mandate to harmonize technical standards,(137) which could translate directly into the text of NAFTA, also shows the negotiators' narrow focus on trade because this provision compromises U.S. and Canadian environmental standards regardless of environmental, cultural, legal, or economic differences. Canada is quite similar to the United States in these areas, but for purposes of NAFTA, Mexico is not. A lack of specific environmental provisions will perpetuate trade policies that do not address the computer environmental issues facing the U.S., Mexico, and Canada.

Canada used the FTA's Article 603 "legitimate domestic objective" term(138) in its asbestos challenge. This use further highlights the inapplicability of the FTA to environmental protection. The term was undoubtedly included to protect environmental policies and other domestic objectives. However, the lack of further definition forces environmental domestic objectives to shoulder the burden of persuading FTA arbitrators of their legitimacy without asking if the attacking party's trade objectives are also truly legitimate. Article 603 is another example of a narrowly drafted trade rule that can be abused when applied to domestic environmental law due to its failure to fully recognize the sphere of environmental law.

Commentaries from international trade law experts highlight the incompatibility of existing international trade law with environmental protection. One commentator noted that, in international law, trade values are favored over environmental values, with the result that the world community must either catch up with U.S. environmental standards or contain U.S. standards through trade agreements.(139) This analysis casts trade and the environment as adversaries instead of recognizing possibilities for their integration in trade agreements. In another example of perceived incompatibility, a former official with the USTR said that he agreed with the legality of the GATT panel's dolphin decision, but not with its morality.(140) This seems to be a logical step away from stating that the ruling is immoral because of its possible environmental effects and that the trade law that led to this ruling should be changed to serve the world community better. Another expert cautioned against stipulations in trade agreements that would impose trade actions for environmental harm without evidence of a causal relationship between trade and the environment.(141) Although legally sound in a traditional sense, this analysis overlooks the nature and magnitude of complex environmental problems facing the world today, such as ozone depletion and possible global warming, which cannot always be traced to specific sources. Perhaps individual nations' trade policies shoulder more of the burden for these problems as indirect sources of environmental degradation.

The FTA negotiators did not set out to harm the environment. The FTA agreement was the first of its kind; the negotiators and legislators involved could not foresee how trade law would be used by special interest groups such as Canadian asbestos producers and the U.S. nonferrous metals industry to further their own interests at the expense of the environment.(142) Now, however, members of Congress have the benefit of hindsight. Congress can assess the Mexican government's challenge of the MMPA and Mexican allegations that U.S. agricultural standards are scientifically unsound. These challenges signal the need to address environmental issues and trade together in NAFTA instead of using antiquated trade law models that were drafted before recognition of the enormity of the world's environmental problems.

Trade law is especially hard-pressed to increase consideration of international environmental issues in light of recent acquiescence of international environmental law to trade. A draft text for the Conference on Environment and Development, held in Brazil in June, 1992, exemplifies the specificity with which environmental negotiators address trade. Principle 12 of the text states:

[t]rade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing trans-boundary or global environmental problems should, as far as possible, be based on an international consensus.(143)

NAFTA presents a unique opportunity for the United States, Mexico, and Canada to redress the vagueness of environmental provisions, national sovereignty over natural resources and the environment, and the incompatibility of current international trade law with modern efforts at environmental protection. It remains to be seen whether members of Congress will recognize that opportunity and ask for a renegotiation before ratification.


In the race to complete NAFTA negotiations, environmental issues did not receive adequate attention. NAFTA pays lip service to safeguarding domestic environmental laws in its Preamble,(144) and Article 754 allows the parties to "maintain or apply any sanitary or phytosanitary measure for the protection of human, animal or plant life or health in its territory, including a measure more stringent than an international standard, guideline or recommendation."(145) However, the pivotal term "measure," a category that includes most environmental laws, receives problematic treatment. The general definitions section uses the vague definitive connector "includes" for the term measures, while using the more precise connector "means" for all of the other terms.(146) The overly inclusive definition of "measure" casts a wide net for domestic environmental provisions that are subject to NAFTA, ensuring that future innovations in environmental protection must face the trade-based scrutiny of NAFTA. Although it is difficult to conceive of an environmental measure that is not "law, regulation, procedure, requirement, or practice," NAFTA negotiators have left nothing to chance.

As the NAFTA text now stands, the special attention paid to it "measures" in the general definitions is not counterbalanced by specific definitions of environmental provisions that are exempt from NAFTA. Instead, the drafters virtually ensured that domestic environmental provisions would remain subservient to NAFTA by nesting several other "measure" sections within the voluminous agreement text. The supremacy of trade over environmental provisions is stipulated in Annex 2004, Article 2018, and Article 2019, leaving environmental measures in a weak Position against virtually any trade-based challenge. Annex 2004 gives unqualified settlement recourse to any party that considers a measure to by nullifying or impairing certain trade benefits. (147) Article 2018 provides that dispute resolutions should take the form of "non-implementation or removal of a measure not conforming with this Agreement or causing nullification or impairment in the sense of Annex 2004" or, failing such a resolution, compensation, "if a bilateral dispute resolution panel holds that the measure is an unallowable nontariff barrier. (148) Article 2019 allows a country to suspend trade benefits in retaliation against another country's "nullification/impairment" measures (such as environmental ones) if that country refuses to abide by the dispute panel's decision. (149) Notably, NAFTA does not contain any exemptions for borderline environmental provisions that might be legitimate by one country's standards, but not another's.

The Bush Administration pursued a commitment to hold parallel environmental negotiations with Mexico rather than integrate specific environmental provisions directly into the text of NAFTA and President Clinton essentially adopted this position in preinaugural talks with President Salinas. (150) Then-EPA Administrator William Reilly addressed this issue in May 1991, when Congress was considering bills to deny the President fast-track authority to negotiate NAFTA. (151) Reilly argued that the United States should not "encumber negotiations on this agreement with unrelated, albeit valid environmental concerns that we can address readily in other forums" other than for "environmental issues with a direct bearing on trade relations - such as pesticide standards." (152) According to Reilly, the United States should concentrate on negotiating an agreement that will strengthen Mexico's economy, giving it resources for later environmental improvement. (153)

This argument is problematic due to several assumptions. First, Reilly assumes that Mexico will adopt an effective trickle-down approach to environmental protection, using the monetary benefits of NAFTA to address environmental problems. This fails to account for Mexico's hunger for further development and industrialization. If Congress allows NAFTA to follow the examples of GATT and the FTA by treating trade and environment separately, it might create a strong incentive for Mexico to relax its environmental standards in order to attract more trade and investment from its northern neighbors. New earnings from NAFTA might go towards other social needs and further industrialization. Free trade advocates may counter that Mexico is taking a tougher stance against environmental degradation. However, critics of free trade could rebut that, as shown by Mexico's reversal on the dolphin issue. Mexico is committed to long-term environmental protection only so far as it generates positive publicity in the United States.

Second, the sufficiency and even the existence of other forums for addressing environmental issues is a questionable assumption. (154) The promise of comprehensive parallel environmental agreements with Mexico appears to have been a political maneuver, lacking in substance, designed to quiet environmentalists. Asked whether such an agreement would be submitted along with NAFTA to Congress, the Deputy Assistant U.S. Trade Representative for North American Affairs replied that a "proven record" of progress on environmental issues with Mexico would be the most submitted. (155) The Administration can hold forth the draft Integrated Border Plan, a document negotiated between EPA and the Mexican Urban Development and Ecology Department, as proof that environmental issues can be dealt with in parallel agreements, but the draft was criticized by Congress and environmentalists because of its lack of a funding plan. (156) Additionally, the Border Plan perpetuates the artificial separation of trade and environment by failing to refer to NAFTA at all in its text. (157)

A draft environmental review, USTR's answer to calls for more environmental assessment, has also met criticism because of its broad trickle-down assumptions about the relationship between trade and the environment. (158) Several public interest groups sued the USTR (159) to force the agency to prepare an environmental impact statement (EIS) for NAFTA. (160) A properly conducted EIS would bring specific environmental consequences of free trade agreements into the light instead of glossing over them as the USTR's environmental review seems to have done. An EIS would also suggest alternatives to the current parallel agreement policy course. (161) In the suit, the D.C. Court of Appeals affirmed a lower court's dismissal due to lack of standing- As a result of the dismissal, the Border Plan and the USTR review remain the only parallel environmental forums to NAPTA, and these forums appear insufficient.

Third, the Bush Administration position assumed that "environmental issues with a direct bearing on trade relations - such as pesticide standards" were dealt with adequately in NAFTA negotiations. (163) However, only one working group, the general "standards" subgroup, was responsible for advising USTR negotiators on the complex issue of technical standards for pesticides and other harmful substances. In addition, of the 1000 citizen and industry groups seated on twenty-nine trade committees advising the USTR for NAFTA negotiations, only four were environmental organizations. (165) Coupled with a pressured time frame and the confidentiality of the negotiations, the advisory committee constituency made it likely th&tt NAFTA will follow in the footsteps of the FTA, with vague and impotent standards provisions.

Several alternatives to the parallel policy could ensure that a renegotiated NAFTA does not lead to environnaental degradation in the United States, and help protect Mexico and Canada as well. One commentator has suggested that the United States pursue a trade philosophy that penalizes trade partners for their lack of environmental standards. (166) In this policy, the United States, would characterize its partner's failure to guard its environment with proper regulations as a barrier to free trade, because the lack of standards or enforcement gives that country's industries unfair "investment attracting" advantages over U.S. industries. This policy views trade as a proactive weapon in environmental protection instead of using trade as a platform for attacking the environment. In a reversal of the nonferrous metals episode, where the U.S. industry sought to force Canada to cease environmental aid to the Canadian industry, (117) U.S. industry could petition the U.S. government to bring countervailing duties against nations that fail to implement and enforce environmental standards on their industries.

"Offensive" use of trade law to protect the environment is unrealistic at present, but the United States is unlikely to adopt this approach for NAFTA or other foreseeable trade talks because it diverges sharply from current international trade law as codified in GATT and because it is such a radical reversal of the NTB mechanism to a position in favor of higher environmental regulation. In addition, less developed partners would see this as environmental imperialism. They could also question whether the United States has a right to expect extensive environmental protection in poor developing countries - especially since the United States achieved much of its economic prosperity at the expense of its environment.

The U.S. Congress should play a vital role in ensuring that NAFTA does not degrade U.S. environmental protection. The legislative body lost one opportunity by acquiescing to the Bush Administration's fast-track requests last year, thereby putting itself in the position of having to vote without amendments or extensive debate. However, the Congress can still scrutinize the agreement when it comes before it for ratification. The Congress can refuse to ratify the agreement if it does not incorporate environmental protective measures into the text. (168) Congress can condition passage on a NAFTA text that:

* Recognizes that international trade and environmental protection are integrated to a much greater extent than assumed in GATT or the FTA;

* Address specific environmental issues in its current negotiations with Mexico and Canada; and

* Implements specific environmental protective clauses in NAFTA, including:

* Exempting national energy conservation strategies from NTB attacks;

* Exempting traditional pollution control subsidies from NTB attacks;

* Allowing individual nations' chosen pesticide policies to stand intact; and

* Allowing countries to maintain specific import standards, as codified in that countries existing laws, either for health and safety reasons or environmental protective reasons.(169) Specific clauses exempting certain government activities from NTB attacks exist in GATT. The GATT Procurement Code allows governments to favor domestic industries in procurement policies for national security. (170) At the end of the Cold War era, when environmental degradation is quickly becoming one of the greatest threats to global security, a similar exemption in NAFTA for a government's environmental policies is appropriate. In fact, some U.S. lawmakers suggested an Environmental Code be negotiated as part of the Uruguay Round of GATT. (171)

Finally, U.S. citizens can alert their elected officials to the importance of environmental issues in NAFTA. Unlike many other short-term political issues which command immediate attention, the environmental effects of NAFTA are not immediately apparent, but might have irreversible long-term environmental impacts if not addressed at present. The popular voice was effective in the Tuna-Dolphin episode; the Mexican government softened its stance in part due to a negative response from the U.S. populace. (172) Similarly, the people of Mexico and Canada can also petition their governments to integrate environmental protection into NAFTA, though their influence within the political processes of their countries is not as strong as that held by U.S. citizens. (173)


The North American free Trade Agreement could be a turning point in international trade law if it recognizes the integral links between trade and environment, and enacts environmental protective provisions. Conversely, NAFTA could perpetuate the artificial separation of trade and environment exemplified by GATT, the United States-Canada Free Trade Agreement, and recent United States-Mexico trade interactions, and lead to future setbacks for environmental protection. NAFTA presents an opportunity to the U.S. Congress and the American people to take a decisive step toward a new world order - the question is which one.

(1.) Trade Ministers Initial NAFTA, Setting Stage for Approval Process, Int'l Trade Daily (BNA) (Oct. 9, 1992). President Bush, Mexican President Salinas and Canadian Prime Minister Mulroney signed The Agreement on December 23, 1992. President Bush Signs NAFTA at Ceremony; Clinton to meet with Salinas in January. 9 Int'l Trade Rep. (BNA) 2162 (Dec. 23, 1992). (2.) U.S. Trade Representative Carla Hills, Nafta News Conference, Fed. News Serv, May 1, 1991, available in LEXIS, Nexis Library, Fed. News Serv. File. (3.) Special Report: Canada, 9 Int'l Trade Rep. (BNA) 84 (Jan. 8, 1992). Curiously, some commentators believe that the FTA may not have turned out so well for Canada. One commentator claims from an interview with Statistics Canada that Canada's trade balance went from an average annual surplus of $5.3 billion before the FTA to an annual deficit of $1.5 billion during the first two years of the FTA. Bruce Campbell, Beggar Thy Neighbor, Nacla Rep. Am., May 1991 at 22, 27. (4.) Gary N. Horlick & Michael A. Meyer, Free Trade with Canada is Working, L.A. Daily J., June 17, 1991, at 7. (5.) Hills, supra note 2. See also Cato Institute Forum: The Promise of Free Trade for North American Prosperity Fed. News Serv., May 9, 1991, available in LEXIS. Nexis library, Fed. News. Serv. File. For an opposite viewpoint, see Ralph Nader & Michael Waldman, Off-track: The President's Mexican Mistake, NEW Republic, June 3, 1991, at 15. (6.) Special Report: Latin America, 9 Int'l Trade Rep. (BNA) 83 (Jan. 8, 1992). Chile is considered the next likely candidate for free trade talks. Rep. Richardson Says U.S. Should Move Quickly to Free Trade Talks with Chile, Int'l Trade Daily (BNA) (Jan. 23, 1992). The "Enterprise" initiative is a plan for an eventual free trade zone stretching from Alaska to Argentina. (7.) "Environmental Concerns" includes human health, ecological integrity, and sovereignty over natural resources. (8.) The fast-track process commits Congress to vote without amendments or extensive debate on foreign agreements negotiated by the Executive Branch. 19 U.S.C. [sections] 2903 (1991). If the President requests fast-track authority, Congress must either comply or affirmatively deny the request. Id. The bills SR78 and HR 101 failed to pass in an attempt to rescind fast-track authority for NAFTA negotiations. S. Res. 78, 102nd Cong., 1st Sess. (1991). H.R. Res. 101, 102nd Cong., 1st Sess. (1991). (9.) NAFTA, Sept. 6, 1992, available in Westlaw, NAFTA database. The final negotiated text of NAFTA was made available to the public on September 6, 1992; prior draft texts were not available to the public. See infra note 26. (10.) General Agreement on Tariffs and Trade, in Basic Instruments and Selected Documents (Vol. IV 1969) (General Agreement as in force Mar. 1, 1969). See generally, John H. Jackson, The World Trading System: Law and Policy of International Economic Relations (1989). (11.) Steven Shrybman, International Trade and the Environment: An Environmental Assessment of Present GATT Negotiations, Can. Env. Law Assoc. at i. (Oct. 1989) (12.) GATT prohibitions on NTBs, taxes, and regulatory schemes that discriminate against imports are at Article III. GATT, supra note 10 art. III. For a general discussion of NTBs, see Edward John Ray, Changing Patterns of Protectionism: The Fall in Tariffs and the Rise in Non-tariff Barriers, 8 N.w. J. Int'l L. & Bus. 285-327 (1987). (13.) GATT Art. XX permits discrimination if necessary to protect "human, animal, or plant life or health" as long as such measures are not unreasonable trade discriminations in disguise. GATT, supra note 10 art. XX. See generally Michel Prieur, Environmental Regulation and Foreign Trade Aspects, 3 Fla. J. Int'l L. 85 (1987). (14.) Thailand simply claimed that it wanted to "discourage smoking," but it could have pursued means that were not so detrimental to international trade. For more background on the Thai dispute, see U.S. Initiates [sections] 302 Investigation of Thailand's Barriers to U.S. Cigarettes, 6 Int'l Trade Rep. (BNA), 731 (June 7, 1989). (15.) After a GATT ruling in favor of the United States, Thailand rescinded its ban. Thailand Lifts Ban, USTR Drops Unfair Trade Practices Case. 7 Int'l Trade Rep. (BNA), 1794 (Nov. 28, 1990). (16.) 16 U.S.C. [sub-section] 1361-1407 (1988 and Supp. 1990). (17.) See infra Section IV(B). (18.) See Case 302/86 Commission v. Denmark, 1988 E.C.R. 4607, 2 CEC (CCH) 167 (1989); see also Shrybman, supra note 11, at 16-17. Sen. Max Baucus, Chair of the U.S. Senate Finance International Trade Subcommittee, has recommended an environmental code and dispute resolution system in GATT modeled after the subsidies code. Baucus Call for Environmentat Code in GATT Modeled After Subsidies Code. 8 Int'l Trade Rep. (BNA), 1568 (Oct. 30, 1991). (19.) See infra Section III(A)(2) for a discussion of the U.S. nonferrous metals industry's threatened challenge of Canadian subsidies to the Canadian nonferrous metal industry for pollution abatement. (20.) See infra Section IV(B). (21.) The current NAFTA text reiterates the prohibition of NTB's. NAFTA, (22.) According to one report, the group was revived mainly to ensure that a protrade position was staked out at the U.N. Conference on Environment and Development in June 1992, concerning matters such as trade provisions in existing international environmental agreements, transparency of environmental regulations, and packaging and labeling requirement. GATT Revives Dormant Environmental Panel to Ensure Commerce Views Heard at UNCED, 14 Int'l Envtl. Rep. (BNA), 570 (Oct. 23, 1991). (23.) See, e.g., William K. Reilly How To Turn Mexico Green: Free Trade Will Help Our Neighbor Expand Crackdown on Pollution, L.A. Daily J., May 29, 1991, at 6. After meeting with President Salinas, then President-elect Clinton signalled his intent to negotiate "supplemental" environmental agreements rather than reopen NAFTA negotiations. Thomas L. Friedan, The New Presidency: The President-Elect Clinton says U.S. Will Act Fast on Trade Pact if ..., N.Y. Times, Jan., at A8. (24.) U.S. Const. art. II, [sections] 2; art. VI. (25.) See, Lawrence Tribe, American Constitutional Law 226 (2d ed, 1988). (26.) Because draft texts were negotiated in secret, the American public and Congress had no substantial input, and now Congress can only either accept or reject the treaty in its entirety. NAFTA negotiations progressed in a cloud of secrecy that seems to defy American traditions of democratic decision making for such important matters. James Madison warned against possible abuses by the executive in its power to negotiate foreign agreements. Under the pseudonym "Helvidius," in a written debate with Alexander Hamilton, Madison wrote: "[t]o say then that the power of making treaties which are confessedly laws, belongs naturally to the department which is to execute the laws, is to say, that the executive department naturally included the legislative power. In theory, this is an absurdity - in practice a tyranny." James Madison, "on Presidential Power," (1793); reprinted in American Legal History, 95-96 (Kermit L. Hall, et al, eds. 1991). (27.) U.S.-Canada Free Trade Agreement, June 1, 1988, Communication from the President of the U.S., H.R. Doc No. 100-216, 100th Cong.,2nd Sess. 297 (1988) [hereinafter FTA]. Considered a landmark in relations between the two countries after over two hundred years of trading ebbs and flows, the FTA was nevertheless the basis for a challenge to Prime Minister Brian Mulroney's Conservative-ruled government, partly due to the sensitive environmental issues involved. As 30% of Canada's GNP comes from foreign trade, and a sizeable portion of that from trade with the United States, an FTA was touted by conservatives as the best hope for keeping-open existing trade lines and opening new ones between the two countries. The Liberal Party, however, lamented Canada's loss of sovereignty in matters of natural resource control, government standards, and subsidies to industries for pollution control. Campbell, supra note 3, at 27. The issue gained enough national significance to force an election. In the end, the Conservative Party carried the day, and the Canadian Senate, which is not popularly elected, answered the U.S. Congress ratification of the treaty with a "yes" vote of its own. See, Note, The Canada-U.S. Free Trade Agreement: Its Aspects, Highlights, and Probable Impacts on Future Bilateral Trade and Trading Agreements, 7 Dick. J. Int'l L. 371, 381 (1989). (28.) See supra note 3 and accompanying text. (29.) See Note, supra note 27, at 384. Canadian commentators foresaw such outcomes during the debate. See, e.g., David Hunter, The Comparative Effects of Environmental Legislation in a North American Free Trade Area, 12 Canada-U.S. Law J. 271 (1987). (30.) In 1987, the United States and Canada energy trade totalled $10 billion with Canada supplying 100% of U.S. natural gas and electric imports and more U.S. petroleum and uranium than any other country. Stewart A. Baker & Shelly P. Battrum, The Canada-U.S. Free Trade Agreement, 23 Int'l Lawyer 37, 48 (1989). (31.) Marcel Masse, Canadian Minister of Energy, Mines and Resources said in 1987: "true energy security lies in the vigorous development of our resources for both domestic use and export." Steven Shrybman, Can. Envtl. L. Ass'n. Selling The Environment Short: An Environmental Assessment of the First Two Years of Free Trade Between Canada and the United States, 3 (May 1991) (quoting Marcel Masse). U.S. Trade Representative Clayton Yuetter said: "[t]he Canada-U.S. Free Trade Agreement met an essential priority of U.S. trade policy: secure supplies of energy at stable and reasonable prices by proscribing future government interference in energy trade." Id. (quoting Clayton Yuetter). (32.) FTA, supra note 27, art. 902. (33.) Id. art. 903. (34.) Id. art. 904. (35.) Id. art. 905. (36.) Id. art. 906. (37.) See, e.g., the Thailand cigarette controversy, supra note 14. (38.) FTA, supra note 27, art. 902-3. (39.) Id. art. 904. (40.) Jeremiah Lambert & Akana Ma, Pact Opens the Gates to Energy Sources North of the Border, Legal Times, Feb. 8, 1988, at 20-21. (41.) Id. (42.) Shrybman, supra note 31, at 4. (43.) Id. (44.) Campbell, supra note 3, at 25. (45.) The "Green Plan," a national plan for addressing environmental problems, is discussed in Canada's Green Plan: Blueprint for a Healthy Environment, 33 Env't 14-45 (May 1991). (46.) FTA, supra note 27, art. 906. (47.) GATT, supra note 10, art. VI. See FTA, supra note 27, art. 1902. (48.) U.S.-Canada FTA Implementation Act of 1988, 19 U.S.C. [section] 2112 (1988). inety days after an industry or industry group petitions, the USTR, after consultation with the Department of Commerce, can find a "reasonable likelihood" that: 1) the NTB led to increased competition from Canadian industry, and 2) that U.S. competitiveness has deteriorated due to Canadian subsidies. The USTR is then authorized to gather information and review evidence, after which they make the information available to the industry or industries affected. The USTR may then recommend to the President that the International Trade Commission initiate investigations, which eventually could lead to the impostition of CVDs against imports from the Canadian industry. Id. (49.) Shrybman, Supra note 11, at 18; Kenneth R. Button, The United States-Canada Free Trade Agreement: An Overview and an Assessment for the U.S. Non-Ferrous Metals and Forest Products Industries, 20 Law & Pol'y Int'l Bus. 765, 782 (1989). The Canadian government apparently planned to make at least $300 million dollars available for pollution control in smelters. Id. at 784. (50.) USTR Notice of Identification of Industries under the FTA, 54 Fed. Reg. 29,214 (1989). (51.) Id. (52.) Items, ITC Monthly Import/Business Review, at 47 (July, 1990). (53.) Button, supra note 49, at 782. (54.) Shrybman, supra note 31, at 18. (55.) FTA, Article 603 sets forth the FTA's ground rules for standards as follows:

Neither Party shall maintain or introduce standard-related measures or procedures for product approval that would create unnecessary obstacles to trade between the territories of the parties. Unnecessary obstacles to trade shall not be deemed to be created if:

a) the demonstrable purpose of such measure or procedure is to achieve a legitimate domestic objective; and

b) the measure or procedure does not operate to exclude goods of the other Party that meet that legitimate objective.

Supra note 27, art. 603. (56.) Id. arts. 708(l)(a)-(e), 711. For a summary of these provisions, see Alicia F. Tocco, United States-Canada Free-Trade Agreement, 12 Hamline L. Rev. 479, 546, 553 (1989). (57.) FTA, supra note 27, ch. 7, sched. 7. (58.) 7 U.S.C. [sections] 136-136y (1990). (59.) Id. [sections] 136(bb). As an example of the acceptability of risk in the United States, over 27 pesticides are approved by the EPA for use in the U.S. despite proof that they are carcinogenic. Marian Burros, New Urgency Fuels Effort to Improve Food Safety, N.Y. Times, May 7, 1990, et A1. (60.) Pest Control Products Act. R.S.C., ch. P-10, [sub-section] 1, 4(1) (1989) (Can.) (61.) Canadian Officials Dispute Report Charging that FTA Will Undermine Environmental Plans, 5 Int'l Trade Rep. (BNA) 1379 (Oct. 12, 1988). (62.) Canadian Fruit, Vegetable Industry Ready, Able To Compete, Tribunal Office Says, Int'l Trade Daily (BNA) 953 (June 20, 1991). (63.) See discussion infra Section IV(C). (64.) FTA, supra note 27, art. 609. (65.) 15 U.S.C. [sub-section] 2601-2671 (1988). (66.) William Reilly, EPA Administrator, EPA Press Conference, Fed. News Serv., available in LEXIS, Nexis Library, Fed. News File. (July 6, 1989). The United States joined Sweden, Norway, Denmark, and the Federal Republic of Germany in banning the use of asbestos, which is thought to cause between 3000 and 12,000 deaths per year due to its carcinogenic fibers. Id. (67.) See Margaret E. Kriz, Good Riddance?, Nat'l J., 1928 (1989). (68.) Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1207 (5th Cir. 1991). (69.) Id. (70.) Id. at 1209. (71.) Id. at 1208. (72.) Shrybman, supra note 31, at 13. While the protection of human life or health is a legitimate domestic objective, Canada submits that to the extent that the EPA rule bans the importation of products that do not cause unreasonable risks to life or ealth, the rule is not necessary to achieve a legitimate domestic objective, and therefore, runs counter to U.S. FTA commitments. Id. (quoting Brief Amicus Curie of the Government of Canada). (73.) Peter Gorrie, Canadians Take Asbestos Fight to U.S. Court, Toronto Star, Feb. 4, 1991, at A5 (summarizing comments of former Quebec cabinet member Michel Gratton of the Asbestos Institute). (74.) In 1989, Canada stood at second in the world in asbestos production, and 1991 was expected to show a 10% increase in asbestos exports from Canada, largely to developing countries. Jonathan Dahl, Canada Encourages Mining of Asbestos, Sells to Third World, Wall St J., Sept. 12, 1989, at 1; Francois Shalom, Dirty Business?: Asbestos Industry Counts on Sales to Third World to Keep Mines Running, Montreal Gazette, July 6, 1991, at D1. (75.) FTA, supra note 27, art. 708(1)(a). (76.) Elaine Dodge & Christy Law, Poisoned Meat From Canada, N.Y. Times, May 31, 1991, at A1. See also Ralph Nader and Michael Waldman, Off-track: The President's Mexican Mistake; |Fast-Track' Free Trade Loosening, New Republic, June 3, 1991, at 15. (77.) Dodge & Law, supra note 76, at A1. (78.) Id. (79.) See remarks of Michael Walker of the Fraser Institute of Canada at Cato Institute Forum, The Promise of Free Trade for North American Prosperity, (May 9, 1991) (from Federal News Service transcript, May 9, 1991). (80.) The U.S. Department of Agriculture formally withdrew its open border inspection proposal in October 1991 and thereby set inspection standards at prestreamlining levels. A former Canadian official called the Department's withdrawal a breach of the FTA but the Canadian government did not challenge the legality of the change. Trade Minister Calls Former Official's Criticism of U.S. in FTA Unwarranted, Int'l Trade Daily (BNA) (Jan. 8, 1992). (81.) Mexico concentrates power in the hands of the president and one party, as opposed to the United States three-branch system and two-party tradition. For an excellent essay on these differences, see Octavio Paz, Mexico and the United States, in The Labyrinth of Solitude, 355-76 (Grove Press ed. 1985). (82.) In 1985, Mexico, Argentina, Brazil, and Venezuela owed approximately 30% of total world debt. Mario A. Ramos, Conservation of Biodiversity in Latin America, in Common Concerns 73 (E.O. Wilson, ed.) (1986). (83.) See Mexico Poised to Toughen Enforcement of Pollution Law, Business Latin America (June 12, 1989). (84.) Charles T. DuMars & Salvador Beltran Del Rio M., A Survey of the Air and Water Quality Laws of Mexico, 28 Nat. Resources J. 787, 811 (1988). (85.) Id. at 801-04. (86.) Government Announces Plan to Protect Environment Along U.S.-Mexico Border, 14 Int'l Envtl. Rep. (BNA), 594 (Nov. 6, 1991); Juanita Darling, Cynics See Political Motivation for Mexico's Move on Pollution, L.A. Times, Apr. 15, 1991, at A6. (87.) See Jan Gilbreath Rich, Bordering on Trouble, The Envtl. Forum, May-June 1991, at 25-33. "Maquilladoras" are industrial plants in Mexico along the border with the United States. United States citizens and corporations usually own considerable interests in these factories, and their products are accorded special tariff and tax treatment by the Mexican and U.S. governments, creating a special border trade zone. (88.) 16 U.S.C. [sub-section] 1361-1407 (1988). (89.) 16 U.S.C. [sub-section] 1371(a)(2)(B)(ii)(II)-(III) (1982). (90.) Earth Island Institute v. Mosbacher, 929 F.2d 1449 (9th Cir. 1991). In a preliminary injunction, a Ninth Circuit District Court recently extended the embargo to include yellowfin tuna from intermediary countries that buy from Mexico and several other countries that do not meet MMPA requirements. Earth Island Institute v. Mosbacher, 785 F. Supp. 826 (N.D. Cal. 1992). (91.) For a summary of Mexico's arguments, see Janet McDonald, Greening the GATT: Harmonizing Free Trade and Environmental Protection in the New World Order, 23 Envtl. L. 397 (1993). (92.) GATT, supra note 10 art. XX. (93.) Mexico Says U.S. Tuna Ban Is To Protect U.S. Industry, Defends Its Dolphin Protection Plan, 8 Int'l Trade Rep. (BNA) 937 (June 19, 1991). Mexico's position was made public only by outside publication; GATT deliberations of this nature are customarily kept confidential despite their enormous global impact. Id. This underscores the need for the United States to demand more public accountability in world trade negotiations and deliberations. (94.) U.S. Embargo on Mexican Tuna Violates GATT Rules, Panel Finds, 8 Int'l Trade Rep. (BNA) 1288 (Aug. 28, 1991). (95.) GATT Official Assesses Tuna Decision's Impact on Link Between Environment, Trade, Int'l Trade Daily (BNA) (Oct. 18, 1991). (96.) Bowing to U.S. Pressure, Mexico To Have Observers on Tuna Boats, Delays GATT Action, Int'l Trade Daily (BNA) (Sept. 26, 1991). (97.) EC Urges Adoption of Tuna Report but U.S., Mexico Claim Accord Is Near, 9 Int'l Trade Daily (BNA) (Mar. 25, 1992). (98.) Id. EC Commission Delays on EC Tuna Embargo Proposal, 9 Int'l Trade Rep. (BNA) 1259 (July 22, 1992). The EC's retreat might be seen within the scope of the Uruguay negotiations as the use of a bargaining chip to force U.S. concessions in other areas. Public opinion within the EC aligned with the U.S. embargo, as evidenced by a record number of letters to the EC Commissioner responsible for fishing issues. Id. (99.) Supra, note 97. (100.) For the critics' view, see David Clark Scott, Mexico Wins Battle over U.S. Tuna Ban, but Backs Off To Save Image, Trade Talks, Christian Sci. Monitor, Sept. 27, 1991, at 8. (101). See Dianne Dumanoski, Free-trade Laws Could Undo Pacts on Environment, Boston Globe, Oct. 7, 1991 at 25. Congressman Henry Waxman, Chairman of the House Health and Environment Subcommittee, commenting on the GATT dolphin decision, also summarized the dangers that NAFTA could pose for U.S. environment protection: "People don't realize an obscure trade agreement can mean that protection for health and the environment can be dramatically weakened." Rep. Waxman said the GATT ruling is a "wake-up call to Congress and the public that there's a lot more at stake." Id. (102.) The "circle of poison" concept came from a study which first called attention to the effects of global trade in pesticides. David Weir & Mark Shapiro, Circle of Poison (1981). (103.) See generally Mark A. Kablack, Note, Pesticide Abuses in Third World Countries and a Model for Reform, 11 B.C. Third World L.J. 277 (1991). (104.) Mitchell Satchell, A Vicious Circle of Poison: New Questions About American Exports of Powerful Pesticides, U.S. News and World Rep., June 10, 1991, at 31. In 1991, estimates for the number of banned or unregistered pesticides exported ranged from 26 to 44. Industry Proposes List of Unregistered Pesticide Exports Be Given to FDA, EPA, Int'l Trade Daily (BNA) (Dec. 4, 1991). (105.) 7 U.S.C. [section] 136o(a) (1988). (106.) Pesticides Export of Unregistered Pesticide is Not Adequately Monitored by EPA, U.S. General Accounting Office Rep., GO/RD (1989) at 18-19, 23-29, (1989). (107.) Satchell, supra note 104, at 31. (108.) See, e.g. Philip Shabecoff, Pesticides Called Manageable Evil, N.Y. Times, May 1, 1987, at A-24. (109.) Fast-track Process for Trade Agreement Threatens Environmental Laws, Groups Warn, 8 Int'l Trade Rep. (BNA) 698 (May 8, 1991). (110.) Hills, supra note 2. "In the environmental area . . . we have stated unequivocally that our stringent standards will be maintained . . . ." Id. (111.) Agreement on Technical Barriers to Trade, Apr. 12, 1979, art. 2, [section] 2.3 GATT, B.I.S.D. 8 (26th Supp. 1980). For GATT, the Bush Administration recommended conforming to accepted international standards set by an international organization called Codex Alimentarius. These standards are significantly less stringent than U.S. standards; for example, they allow for 50 times more DDT on some fruit imports. Beth Burrows & Andrea Durbin, Trading Away Food-Safety and Environmental Rules, Seattle Times, Apr. 24, 1991, at A7. (112.) FTA, supra note 27, art. 708(1)(a). (113.) See supra Sections II(B), IV. (114.) Statements of EPA Assistant Administrator Linda Fisher of the Office of Pesticides and Toxic Substances to Domestic, Marketing, Consumer Relations, and Nutrition subcommittee of House Agriculture Committee on June 12, 1991, quoted in Trade Pact Might Create Standards for Pesticides, 4 LDC Debt Rep./Latin Am. Markets (Thomason) No. 23, at 10 (June 24 1991). (115.) For example, the United States banned Mexican avocadoes since 1954 on grounds that they carry the seed weevil, which can ruin avocado crops. Mexico says that the weevils cannot survive at the altitudes where avocadoes are grown in Mexico, and claims the U.S. ban is nothing more than a nontariff barrier. John N. Maclean, Mexico Targets Agricultural Bans, Chi. Trib., May 7, 1991, at C1. Concerning pesticides, Mexico has different perceptions of environmental risk than those of the United States. Mexico allows the use of DDT, (banned in the United States) and twenty times more heptachlor (a highly toxic insecticide) than the United States. Id. (116.) For an excellent study on the risk assessment community in the United States and what influences them, see generally Thomas M. Dietz & Robert W. Rycroft, The Risk Professionals (1987). (117.) FTA, supra note 27, art. 708(1); NAFTA supra note 9, arts. 7, 9. (118.) 7 U.S.C. [section] 1360(a)(1)(1988). (119.) Antarctic Treaty, Dec. 1, 1959, T.I.A.S. No. 4,784. (120.) Id. (preamble). (121.) Id. art. IV [section] 1(a). (122.) Id. art. I [section] 1. (123.) Id. art. V. (124.) Antarctic Treaty, supra note 119, art. VII [section] 2, 3. (125.) Commentators are increasingly aware of the unfettered discretion handed to judges and arbitrators by vague laws, "Vagueness creeps into the law on the padded feet of words and phrases like fairness, equitableness, good cause, good faith, reasonableness under the circumstances - pillowy expressions that tend to soften the blow of what is, in fact, a grant of wide judicial discretion over some area." Walter Olson, The Litigation Explosion 89 (1985). (126.) FTA, supra note 27, art. 902. (127.) Id. art. 903. (128.) GATT, supra note 10 art. XX. (129.) FTA, supra note 27, art. 603. (130.) Declaration on Principles on International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, U.N. GAOR 6th Comm., 25th Sess. Supp. No. 28 at 12, U.N. Doc. A/8082 (1970). See also Restatement (Third) of Foreign Relations of the United States [section] 206 (1986). "Under international law, a state hay: (a) sovereignty over its territory and general authority over its nationals Id. (131.) Report of the United Nations Conference on the Human Environment, U.N. Doc. A/Conf. 48/14 Stockholm 1972), reprinted in 11 Int'l Legal Materials 1416, 1420 (1972) (emphasis added). (132.) Ian Brownlie, Principles of Public International Law 33-35 (3rd. ed. 1979). Monism is one of two traditional theories of public international law, the other being dualism, in which municipal law and international law operate and apply in different spheres. Id. (133.) Garrett Hardin, The Tragedy of the Commons, 162 Sci. 1243 (1968). This approach views Earth as an interconnected system - the "global commons" of the oceans, atmosphere and biological reserves that is necessary for the survival of all individuals and nations. The tragedy of the commons is the temptation for an individual to use commonly shared resources to the greatest extent Possible because, while the individual gets all the beneficial aspects of the use, the detrimental aspects are shared among all commons users. The cumulative impact, of maximization by all users is degradation of the resource. Id. In international relations, the tragedy of the commons is borne out by looking at the current patterns of resource consumption of developed nations in proportion to their share of the world population and the resulting environmental degradation. See, e.g., Shrybman, supra note 11, at 9. (134.) Shrybman, supra note 31, at 5. (135.) The fairly recent creation of the GATT environmental committee and its subsequent inactivity stand as evidence. See supra note 22. (136.) The most obvious example is Article 906, which explicitly allows government aid for oil and gas exploration, while aid measures for other energy technologies are illegal as NTBs under the FTA. FTA, supra note 27, art. 906. (137.) Id. art. 708. (138.) Id. art. 603. (139.) Deadlines Approach for Two GATT Airbus Complaints, Boeing Official Tells ABA, Int'l Trade Daily (BNA) (Nov. 8, 1991) (from speech of Prof. Ted McDorman of Univ. of Victoria Law School to the ABA Section of International Law and Practice at its fall 1991 meeting in Seattle). (140.) Baucus Calls for Environmental Code in GATT Modeled After Subsidies Code, 8 Int'l Trade Rep. (BNA) 1568 (Oct. 30, 1991) (remarks of Michael Smith, former official in USTR speaking at a hearing of the Senate Finance International Trade Subcommittee on Oct. 25, 1991). (141.) Mexico Said to Seek belief from U.S. Dumping, Countervailing Duty Laws in FTA Negotiations, 8 Int'l Trade Rep. (BNA) 809 (May 29, 1991) marks of Vancouver, Canada, attorney Chris Thomas, member of Canadian roster for dispute settlement panelists under the FTA). (142.) See supra Section III(A)(2), Section III(B)(1). (143.) Draft text for the U.N. Conference on Environmental and Development, reprinted in N.Y. Times, Apr. 5, 1992, at A10. (144.) NAFTA, supra note 9, Preamble. (145.) Id, art. 754(1). (146.) Id., art. 201(1). For example, "days means calendar days" and existing means in effect at the time of entry into force of the Agreement," but "measure includes any law, regulation, procedure, requirement or practice" (emphasis added). Id. (147.) Id., Annex 2004(1). (148.) NAFTA, supra note 9, art. 2018(2). (149.) Id., art. 2019(1). (150.) See supra note 23. (151.) Reilly, supra note 23, at 6. (152.) Id. (153.) Id. (154.) Id. (155.) Rep. Gejdenson Says NAFTA Must Address Both Trade and Environmental Issues, Int'l Trade Daily (BNA) (Dec. 11, 1991). (156.) Environmental Enforcement Provisions Must Be Set Out in Trade Accord, U.S. Told, 14 Int'l Envtl. Rep. (BNA) 358 (Oct. 9, 1991); Special Report: NAFTA, 9 Int'l Trade Rep. (BNA) 82 (Jan. 8, 1992). (157.) Environmental Enforeement, supra note 156; Special Report, supra note 156. (158.) Environmental Enforcement, supra note 156; Special Report supra note 156. (159.) Public Citizen v. Office of the United States Trade Rep's., 970 F.2d 916 (DC Cir., 1992). (160.) National Environmental Policy Act, 42 U.S.C. [sub-sections] 4321-4370C (1988). NEPA requires Federal agencies to prepare an EIS for major Federal actions that significantly affect the quality of tbe human environment. Id. at [section] 4332(C). (161.) An EIS is required to include "alternatives to the proposed action." Id. (162.) Public Citizen 970 F.2d at 917. The court held that because agreements are under negotiation, there is no final agency action judicially reviewable within the meaning of the Administrative Procedure Act, 5 U.S.C. [section] 704(1988). In its one paragraph dismissal, the court ignored the fact that the secret negotiations never followed notice and hearing requirements that most other important agency actions must adhere to. See, e.g., 5 U.S.C. [section] 553(b-e). A more honest answer would have been to rely on [section] 553(a), which exempts "foreign affairs" from notice and comment requirements. (163.) Reilly, supra note 23, at 6. (164.) Rep. Gejdenson Says NAFTA Must Address Both Trade and Environmental Issues, Int'l Trade Daily (BNA) (Dec. 11, 1991). (165.) Trade Advisors' Pro-industry Makeup Means Environment To Be Overlooked, Report Says, Int'l Trade Daily (BNA) (Jan. 7, 1992). A study of the Advisory Committees on Trade Policy and Negotiations, Industrial Policy, and the Chemical and Allied Products Industry Sector found 92 members representing individual companies, 16 industry trade groups, two labor groups, and one environmental advocacy organization. Id. Predictably, the group praised the current NAFTA text as "forward-looking," and an example to follow in future trade agreements. NAFTA Endorsed in Report to Bush Sent by Private Sector Advisors, Int'l Trade Daily (BNA) (Sept. 17, 1992). (166.) Kenneth S. Korrnorski, The Failure of Governments to Regulate Industry: A Subsidy Under the GATT?, 10 Hous. J. Int'l L. 189 (1988). (167.) See supra Section III(A)(2). (168.) As of October 1992, Congress was moving in this direction. To overcome the restrictive fast-track process, Senator Don Riegle (D-Mich) and 33 cosponsors were pushing for passage of S.Res. 109, which would modify the no-amendment rule to allow amendments for environmental standards, labor standards, rules of origin, dispute resolution, and adjustment assistance. NAFTA Will Be Modified Before Vote, Reigle Says, Int'l Trade Daily (BNA) (Oct. 13, 1992). In addition, seventy House Democrats signed a letter from Rep. Ron Wyden (D-OR) to President Bush, insisting that the administration suggest environmental protective measures to Congress before it ratifies NAPTA. Swing Supporters of NAFTA Talks Urge Agreement on Environmental Protection, 8 Int'l Trade Rep. (BNA) 1621 (Nov. 1, 1991). (169.) U.S. environmental groups have recommended "green language" for the NAFTA text. Two worthwhile suggestions are: 1) harmonization standards as "floors" which party-states could exceed with their own standards, rather than "lowest common denominator/ceiling" standards which no party-state may exceed, and 2) dispute settlement mechanisms that place the burden of proof in trade actions on the party challenging that an environmental standard is an"illegitimate and unjustified barrier to trade." Environmental Groups Propose "Green Language" for Inclusion in NAFTA, 15 Int'l Env. Rep. (BNA) 361 (June 3, 1992). (170.) Agreement on Government Procurement, April 12, 1979, art. VII, [sub-section] 1, GATT, supra note 10 (26th Supp. 1980). (171.) Baucus Calls for Environmental Code in GATT Modeled After Subsidies Code, 8 Int'l Trade Rep. (BNA) 1568 (Oct. 30, 1991). (172.) 171 See supra note 96 and accompanying text. (173.) Canada's Senate, the legislative body responsible for ratifying treaties, is not popularly elected. See Alan Riding, Distant Neighbors, 94-134 (1984) for a discussion on Mexican political structures.
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Title Annotation:Trade and the Environment
Author:Hofgard, Jurt C.
Publication:Environmental Law
Date:Apr 1, 1993
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