Problems with Current U.S. Policy

By Mumme, Stephen P. | Foreign Policy in Focus, October 1999 | Go to article overview

Problems with Current U.S. Policy


Mumme, Stephen P., Foreign Policy in Focus


Key Problems

* NAFTA's trade protections are liable to abuse, threatening
deterioration of environmental standards within the region.

* Flaws in procedures and programs also impair NAFTA's environmental
institutions.

* NAFTA's environmental institutions are poorly funded by the three
governments.

The post-NAFTA environmental regime's capacity to cope with trade-related challenges suffers from fundamental impediments. Under NAFTA, for example, domestic environmental laws should not discriminate against trade; thus various of NAFTA'S dispute settlement provisions allow firms to challenge environmental regulations. Such mechanisms are liable to abuse, as seen recently in the case of NAFTA'S Chapter 11.B rules for investor protection. These rules obligate governments to compensate investors for regulations that expropriate an investor's future property. Fearing such penalties, states and provinces may retreat from imposing tough environmental regulations.

Flaws in procedures and programs also impair NAFTA's environmental institutions. Restrictions on CEC's autonomy and problems its citizen submission and government-to-government dispute resolution processes are hindrances to its effectiveness. At least one government, Mexico, has withheld its support for CEC programs contingent on external approval of the commission's projects, a significant limitation on CEC'S ability to discharge its mandate in a professional and unbiased manner.

The citizen submission process--a procedure under NAAEC's (North American Agreement on Environmental Cooperation) Articles 14 and 15 designed to trigger investigations of alleged nonenforcement of domestic environmental laws--may be faulted for its complex requirements and lack of transparency. Citizen-initiated complaints face numerous procedural hurdles and may be terminated with cause by the commission or withdrawn by the submitters. Transparency questions also persist--the CEC may still refuse to publish a factual record. A recent and largely governmental initiative to modify these procedural rules would have imposed even more procedures and requirements on the secretariat, further limiting its autonomy. Fortunately, concerted lobbying by environmental groups led the CEC to reject most of these proposals.

In addition to citizen submission problems, rules of procedure have not yet been established for resolving government-to-government disputes under NAAEC's Chapter V--a process that could actually result in penalties--rendering this highly publicized provision virtually toothless. At the program level, the CEC (by its own admission) has been slow to engage in constructive dialogue on environmental assessment and priority setting with NAFTA's Free Trade Commission and other NAFTA-linked institutions and has neglected exploring areas of interagency cooperation. …

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