JANUARY/FEBRUARY 1996 · VOLUME 17 · NUMBERS 1 AND 2

---

E N V I R O N M E N T

---

This article is based on the January 1996 Public Citizen report, "NAFTA's Broken Promises: The Border Betrayed."

AS THE NORTH AMERICAN FREE TRADE AGREEMENT (NAFTA) completed its second year of implementation in January 1996, the environmental side agreement that President Bill Clinton negotiated to "fix" NAFTA's environmental deficiencies appears to be falling short of the mark.

The side agreement, the North American Agreement on Environmental Cooperation, achieved its unofficial goal: to secure NAFTA support from some of the largest U.S. environmental groups (the National Wildlife Federation, the World Wildlife Fund, the Environmental Defense Fund, the Natural Resources Defense Council and the National Audubon Society) and to provide green cover to some members of Congress who wanted to vote for NAFTA while presenting themselves as environmentalists.

The side agreement has not been so successful in accomplishing its official goals through bodies such as the North American Commission on Environmental Cooperation (CEC), environmentalists say. The side agreement established the CEC to secure effective enforcement of environmental laws and regulations, in part through a petition process open to non-governmental organizations. The CEC has rejected two of the first three such petitions it has received. The recommendations it issued in response to the third petition met with a tepid response from environmentalists.

Belly-Up birds

The Commission's first citizen-initiated challenge addressed the mysterious deaths of between 20,000 to 40,000 birds in the Silva Reservoir in the central Mexican state of Guanajuato in the winter of 1994-95. In June 1995, the Group of 100, an organization of environmentally minded artists and scientists from throughout the Americas, joined by the Mexican Center for Environmental Law and the U.S.-based National Audubon Society, petitioned the CEC Secretariat to investigate the bird deaths [see "Environment Tests NAFTA," Multinational Monitor, July/August 1995]. The reservoir, located 200 miles northwest of Mexico City in the Turbio River Basin, serves as a haven for migrating birds that spend warmer months in the United States and Canada. In mid-December 1994, local residents found thousands of dead and dying birds in the reservoir. After 20 species of birds -- including ducks, egrets, ibis, black-necked stilts, sandpipers and American coots -- perished, the Mexican government drained the reservoir.

Establishing the cause of the bird deaths has generated heated debate. Mexico's National Water Commission initially argued that a large, one-time dumping of the pesticide endosulfan by unknown parties was responsible for the deaths. Local environmentalists instead speculated that the bird deaths were caused by chromium pollution, a cause they said was overlooked to protect industry. Chromium is manufactured by a nearby chemical plant and is used by hundreds of area tanneries.

The Secretariat formed a tri-national scientific advisory panel in late July 1995 to study the problem. The Secretariat's report, based on the panel's research, was released at an October 1995 meeting of the the CEC Council of Ministers in Oaxaca, Mexico. The "overriding cause of mortality of waterbirds at the Silva Reservoir was botulism; however, a small percentage of birds may have died of other causes," the report says. "The panel found that exposure to heavy metals, in particular chromium, lead and mercury, was indicated in some of the birds that the panel analyzed."

The Group of 100 criticized the report for downplaying the role of industrial toxins. "We are not terribly satisfied with the findings because they are weighted towards saying that the main cause of mortality was botulism," says Betty Ferber, international coordinator of the Group of 100.

National Audubon Society lawyer Mary Minette expressed overall satisfaction with the report's findings. But Minette also raised concerns about whether report recommendations -- which included a suggestion to drain the reservoir immediately if evidence of another die-off appeared, and to alter the reservoir's topography to make it less conducive to botulism outbreaks -- would be carried out and, if they were, whether they would prevent a recurrence of the tragedy.

A striking aspect of the report is how little of it -- notwithstanding the report's general language encouraging the Mexican government to "implement a targeted pollution prevention program ... to decrease industrial pollution in a substantial way" -- directly targets the sources of industrial and sewage pollution in the Silva Reservoir. This shortcoming is all the more notable in view of the report's conclusion that "while neither the panel nor the Secretariat examined regulatory and compliance issues, it is clear that the Turbio River Basin is a highly polluted ecosystem and that much effort is needed to ensure an important decrease of industrial pollution in the region."

Asked about the absence from the report of recommendations to aggressively reduce source pollution in the Turbio Basin, Andrew Hamilton, who heads the CEC's Science Division, says the panel limited its recommendations in deference to the Turbio Basin Initiative, a voluntary pollution-reduction program launched by the Mexican government in February 1995. The panel viewed this initiative as a "pretty serious effort, at least on paper, to involve a broad coalition of stake holders and to get some commitments on paper to reduce in a very substantive way both the industrial and the municipal sewage coming into that system."

Hamilton says the panel identified two options. "We could spend a lot of our effort looking for which particular industry contributed the most chromium into the system, when we really couldn't say definitely that chromium was the cause of the problem. We felt that, in the long haul, we would gain more by emphasizing the need to hold them to their commitments on [the Turbio Basin Initiative] and work hard to implement this rather ambitious initiative, given the scale of things in that part of the world," he says. "I think that, without a lot of encouragement, that [the Turbio Basin Initiative] will fade back, and this [the panel's recommendations] may fade too."

U.S. environmental laxity I: endangered species

In promoting the environmental side agreement, Bill Clinton cited the need to promote "procedural safeguards and remedies that we take for granted in our country," and to "give citizens the right to challenge objectionable environmental practices by the Mexicans or Canadians." Clinton did not foresee the need for the side agreement to ensure environmental protection in the United States. Yet, the second and third petitions filed with the CEC pressed grievances against some environmentally hostile policies of a Republican-dominated U.S. Congress. The Republican initiatives that have been the subject of CEC petitions are efforts to weaken the Endangered Species Act (ESA) and to increase logging on federal lands, especially in the northwest United States. In contrast to the Silva Reservoir petition, which, under Article 13 of the side agreement, urged the CEC to report on an environmental problem, the subsequent petitions were Article 14 challenges charging the U.S. government with failing to enforce its own environmental laws.

The ESA challenge was filed in July 1995 by Jay Tutchton of the University of Denver's Earthlaw Center on behalf of five environmental groups: the Biodiversity Legal Foundation, Consejo Asesor Sierra Madre [Sierra Madre Advisory Council], Forest Guardians, Greater Gila Biodiversity Project and the Southwest Center for Biological Diversity. The ESA petition responds to an amendment that Senator Kay Bailey Hutchison, R-Texas, attached to a defense appropriations bill signed into law by Clinton in April 1995. The Hutchison amendment rescinds $1.5 million that had been earmarked to make ESA determinations about whether the government should designate a habitat as "critical" or a species as "threatened" or "endangered."

The petition to the CEC argues that the Hutchison Amendment, without repealing or modifying the ESA, effectively halted the habitat and species-listing process, depriving federal agencies of the ability to protect endangered species and enforce important ESA provisions. The environmental group petitioners argued that this amounted to an Article 14 failure of the United States to enforce U.S. environmental law.

The Secretariat's September 1995 decision in the ESA case notes that "the submission impels the Secretariat to consider whether a 'failure to enforce' under Article 14 may result from the enactment of a law which suspends the implementation of certain provisions of another statute." In rejecting the ESA petition, the Secretariat interpreted Article 14 as being limited to "administrative breakdowns (failures) resulting from acts of omissions of an agency or official charged with implementing environmental laws." The Secretariat concluded that, although Article 14 is ambiguous on this point, it was nonetheless intended to be limited to administrative or regulatory failures to enforce environmental laws and not to encompass legislative actions such as in the Hutchison Amendment.

"I think it's a narrow reading of the agreement," says Texas Center for Policy Studies' Mary Kelly, who heads the U.S. National Public Advisory Committee, a group of representatives of business, government officials, academics and non-governmental organizations that advises Environmental Protection Agency Administrator Carol Browner in her role as member of the CEC's governing Council.

Tutchton says politics may help explain why the Secretariat did not tackle the ESA petition. "Some of the environmental groups that supported NAFTA criticized us when we filed our petition," he says. "We filed the thing within a week or so of the Congress looking at the [Environmental Protection Agency's] budget in which the contributions to the Secretariat were a line item," he says. "There may have been some desire at the Secretariat not to do anything against the U.S. Congress, which could zero out their funding."

Stressing that he is speaking as an individual, not as the outgoing chair of the CEC's Joint Public Advisory Committee, which is made up of business, government and nongovernmental representatives from the three NAFTA countries, Canadian Jacques Gerin acknowledges that the CEC does not exist in a political vacuum. "I went through the reasoning that the [ESA] petitioners put forth and it's good reasoning, it's sustainable," he says. "But I'm not sure you could say to the U.S. Congress that they were ultra vires [beyond their legal authority]. I don't think that would have gotten us very far."

A related political factor, Tutchton says, is that some conservative members of Congress are concerned about the loss of U.S. sovereignty under trade agreements, and the ESA petition was filed at a time when NAFTA proponents were seeking fast-track negotiating authority to expand NAFTA to Chile. "I think the Secretariat is trying to thwart this sovereignty argument by sort of writing a check to Congress to say, 'Amend the law in any way you see fit,'" Tutchton says.

U.S. environmental laxity II: rampant logging

The third CEC petition, filed by the Sierra Club Legal Defense Fund (SCLDF) in August 1995 on behalf of 26 environmental groups from all three NAFTA countries, also argues an Article 14 failure to enforce U.S. environmental law. In this case, Seattle, Washington-based SCLDF lawyer Patti Goldman contends that a logging rider attached to a disaster assistance appropriations bill, which became law in July 1995, suspends enforcement of U.S. environmental laws for two important programs that govern logging on public lands. The first program is the so-called salvage logging program, which permits harvests of dead and diseased timber. Environmentalists have widely criticized U.S. Forest Service salvage programs, claiming that they are used as an excuse to open up the most ecologically and economically valuable old-growth forest stands to logging. The second is the Option 9 plan, which seeks to balance timber industry interests in logging old-growth forests with the interests of the species that depend on this ecosystem, such as salmon and the spotted owl.

The logging rider provides that any procedures followed by federal agencies for timber sales under these programs automatically satisfy the requirements of federal environmental and natural resource laws -- irrespective of how minimal or inadequate these procedures may be. This automatic authorization of timber sales trumps important provisions of the Clean Water Act, the ESA, the National Forest Management Act and the National Environmental Policy Act. In passing such sweeping legislation as a rider to a popular budget-cutting and disaster-assistance bill, Goldman argued that Congress sidestepped the normal legislative process, which provides for public input and congressional hearings. Citizens are also shut out, she contended, by the fact that the rider rules out many of the usual administrative and judicial recourses to challenge violations of environmental law.

Since there were some similarities between the ESA and timber petitions, Goldman made a supplementary submission in October 1995, challenging the logic of the Secretariat's rejection of the ESA decision. "By drawing a bright line between legislative enactments and administrative enforcement shortcomings, the Secretariat treats legislative enactments as one homogeneous set of actions," Goldman's brief says. Goldman reasoned that a legislative enactment that, for example, defunds enforcement activities or prohibits prosecution of a pending enforcement action is little different than an administrative agency's failure to enforce an environmental law, a failure which is clearly in the side agreement's scope. Citing effects of the logging rider that would appear to cut to the heart of the CEC's mission, Goldman wrote that the rider has already allowed timber sales that "experts have concluded may jeopardize the survival of imperiled aquatic species."

The Secretariat's December 8 logging petition decision acknowledges that some of the failures to enforce environmental laws alleged in the petition "clearly meet the [side agreement's] definitional requirements." Returning to the rationale of its ESA decision, however, the Secretariat argued that "the enactment of legislation which specifically alters the operation of pre-existing environmental law in essence becomes part of the greater body of laws and statutes on the books. This is true even if pre-existing law is not amended or rescinded."

With environmental groups already fuming that the Secretariat drew an unrealistically bright line between legislative and executive administrative functions for a U.S. case, questions are being raised about how much blurrier the lines are in Mexico, where power is highly concentrated in the executive branch and where the executive and other branches have been tightly controlled by one party for almost 70 years.

"If NAFTA means anything about obligations to enforce substantive standards it would go exactly to this point of failure to enforce, regardless of which branch of government is orchestrating the failure," says Michael McCloskey, chair of the Sierra Club and a member of the U.S. National Public Advisory Committee. "If you had a unitary government, a government such as that of Mexico, it would decide it was not going to enforce and that's the end of the story. You don't go into deciding who failed to do it -- the government failed to do it."

The CEC's Limited Powers

The 35-person CEC Secretariat opened its offices in Montreal, Quebec in November 1994, 11 months after NAFTA went into effect. The Secretariat's annual budget has been $9 million in both 1995 and 1996. Each NAFTA member country pays one-third of the budget. The Secretariat may, on its own or at the request of a non-governmental organization, prepare reports on North American environmental issues, unless two or more members of the CEC Council -- which is comprised of cabinet-level environmental representatives of each NAFTA country -- object. The Secretariat may also consider petitions from non-governmental organizations that urge the CEC to write factual reports on an environmental problem (Article 13 of the side agreement) or to look into allegations that a NAFTA member government has failed to enforce one of its own environmental laws (Article 14). Although the Secretariat's greatest power is arguably to investigate environmental problems and prepare reports, the institution has no authority to inspect environmental sites and lacks subpoena power. Its investigations must rely on documents that are already in the public domain or submitted voluntarily. "What they [the Secretariat] can do is develop factual records, if the governments let them go ahead with a complaint," says Mary Kelly of the Texas Center for Policy Studies. "And those factual records are just that, factual records, they are not binding recommendations." -- A.W.