The proliferation of environmental laws and international environmental agreements over the past twenty-five years reflects a growing concern for the environment. This growth has occurred in the context of an increasingly integrated world economy and a rapidly expanding flow of international trade and investment. The potential for conflict between environmental and trade policy objectives was vividly realized in the debate over the North American Free Trade Agreement (NAFTA) in the early 1990s.(1)
In response to the concerns of environmental groups that NAFTA failed to adequately protect against the adverse effects of increased trade on the environment, President Clinton negotiated a parallel Environmental Side Agreement, the North American Agreement on Environmental Cooperation (NAAEC).(2) The centerpiece of the NAAEC is the establishment of the Commission for Environmental Cooperation (CEC).(3) The United States and Mexico also addressed environmental concerns when they negotiated a bilateral agreement to coordinate and finance environmental infrastructure projects in the U.S.-Mexico border region.(4)
Most major national environmental organizations gave their support to the NAAEC and thereby endorsed NAFTA. Several organizations, however, were not satisfied with the terms of the NAAEC and considered the form of the CEC problematic and inadequate to "repair the existing environmental damage on the [U.S.-Mexico] border, much less counter the new environmental problems [they] feared NAFTA would cause."(5)
This Note, while recognizing that the CEC is not without its flaws, will argue that the CEC is a viable institution with much to offer. The CEC should be evaluated based on the protection it provides, rather than based on its shortcomings. On the whole, the CEC provides greater environmental protection than previously available in the trade arena. In other words, the perfect can be the enemy of the good, and the CEC represents a good step forward for the environment.
After providing some background on NAFTA, the NAAEC, and the structure and purpose of the CEC, this Note will analyze the activities of the CEC in its brief existence. The analysis of the CEC's tenure will focus on the actions taken by the CEC's Secretariat in response to citizen submissions and petitions and the criticisms that have followed. The Note will argue that while the CEC is not perfect, it has performed its mandate admirably thus far. Further, the CEC has served, and will continue to serve, as an important environmental enforcement tool and as a forum for environmental concerns. Finally, the Note will offer some suggestions for improving the CEC as an enforcement tool and as a public forum, while maintaining its future political viability.
A. NAFTA and the NAAEC
When NAFTA took effect on January 1, 1994, it created the largest free trade zone in the world.(6) Ultimately, all tariff and non-tariff barriers to trade will be eliminated for a market worth $6.7 trillion and composed of 370 million people.(7)
a. Environmental Concerns
It was a truism that the increased trade envisioned by NAFTA would have effects on the environment. Liberalized trade leads to increased international economic activity and an increased rate of depletion of the world's limited natural resources.(8) Furthermore, liberal trade policies may be particularly harmful to the environment in developing countries as they integrate into the international marketplace. Developing countries such as Mexico forward economic policies that tend toward environmentally destructive agricultural export production.(9) Export crop production encourages the destruction of forests, the use of pesticides, and the exploitation of fisheries and other scarce natural resources.(10) Moreover, export crop production increases fossil fuel use, which exacerbates air pollution. …