The Environment and NAFTA
The Environment and NAFTA

Environmental issues (as well as protection of labor rights), therefore, became a focal point for opposition to the United States’ plan to join NAFTA. Although NAFTA had been negotiated primarily during the administration of President George H.W. Bush, his successor, Bill Clinton, and the Clinton administration strongly supported integration of the U.S., Canadian, and Mexican economies as a means to promote economic development in all three countries.

Some members of Congress, however, were wary of approving the agreement and pressure from them and environmental interest groups resulted in the Clinton administration negotiating a special “side agreement” on the environment (as well as one on labor issues).

The side agreement, called the North American Agreement on Environmental Cooperation (NAAEC) committed the three governments to studying environment problems, developing scientific research and technology to improve environmental protection, and educating their publics about the environment. The governments also pledged to enforce strictly their own environmental laws and to ensure that private citizens had access to their national court systems to promote environmental protection. It also said that the governments should “consider” implementing environmental protections measures suggested by a new trilateral group called the Commission for Environmental Cooperation (CEC).

The agreement was criticized, therefore, for not actually making the governments responsible for new obligations. Instead, environmental activists pointed out, the agreement only requires that the governments live up to commitments already made under domestic law. If those laws are not effective, the CEC cannot impose new obligations.

The CEC also is supposed to rule on disputes if one country believes that another is not enforcing its environmental laws effectively. The procedures for doing so, however, are complex, and the consequences of a negative decision by an arbitral panel are minimal, with development of an “action plan” to resolve the non-enforcement and only symbolically significant fines against the offending government. So far, no cases have been brought.

So far, all disputes brought to the attention of the CEC have been submitted through Citizen Submission on Enforcement Matters branch.  There have been 77 citizen submissions exposing dangerous environmental practices in all three member countries.  The availability of this course of action to citizens is a boon to those trying to keep the environment safe in this open trade system.  The lack of real accessibility and widespread knowledge about the CEC legal happenings and laws in truth constrain the possibility of much tangible change among the companies involved.

Again, some of the key issues in the debate over international environmental protection repeated themselves in the NAFTA side agreement negotiations—the sensitivity to international review of national laws, barriers to enforcement of environmental standards, the differences in environmental protection between rich and poor countries, and the priority given to trade over environmental concerns.

What was the practical effect of the side agreement, then? It probably did not sway many votes in favor of NAFTA in U.S. Congress, which was approved by only 18 votes in the U.S. House of Representatives. U.S. Senators were more in favor of the agreement with, 61 votes in favor and 38 opposed. (In a controversial move, NAFTA was approved not as a treaty, which would have required a two-thirds majority of the Senate alone to become law, but as an “executive-congressional agreement,” requiring only a majority of each chamber in favor.) The side agreement did, however, provide political cover to some Congressmen and Senators who wanted to vote for NAFTA but also wanted to assure their constituents that they supported environmental protection.

On a less pessimistic note, however, it is worth pointing to the extensive activities of the CEC to support scientific research and promote public education about environmental issues. The CEC, through the North American Fund for Environmental Cooperation, created in 1995, also provides grants for local, community-based non-governmental organizations to solve environmental problems. The side agreement and CEC are not simply window-dressing, then, but nevertheless they did not satisfy environmental groups.

The environmentalists had more success in the GATT multilateral trade negotiations of the Uruguay Round that were being conducted at the same time. The negotiators were working on a major revision of the GATT that would create an enhanced system for dispute resolution and enforcement, as well as changes in the text and scope of the GATT. Adopted in April 1994 at a summit in Marrakesh, Morocco, the new GATT, which created the World Trade Organization, stated in its preamble that the parties to the agreement recognized that

their relations in the field of trade and economic endeavor should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development…[emphasis added].1

The trade ministers at the summit also adopted a special resolution called the Decision on Trade and Environment, creating a Committee on Trade and the Environment (CTE), as part of the permanent WTO structure to study the relationship between trade and the environment. Later that year, they adopted the Decision on Trade in Services and the Environment, authorizing the CTE to examine environmental issues related to trade in services. Nevertheless, the mandate of the CTE was limited by the recognition that the WTO is not an environmental agency and that the committee always had to work to uphold the trade-liberalizing principles of the WTO.

Click here for more information on the environment and NAFTA: Rethinking NAFTA’s Environment and Labor Agreements.

1 “Marrakesh Agreements.”


Next: The Shrimp-Turtle Case in the New WTO Context