The Political Implications of the Enforcement Provisions of the NAFTA Environmental Side Agreement: The CEC as a Model for Future Accords
Raustiala, Kal, Environmental Law
One of the most novel aspects of the North American Free Trade Agreement (NAFTA)(1) is the major role played in the negotiations by environmental interest groups and by ecological issues in general.(2) The environmental community in the United States, and to a lesser degree in Canada and Mexico, seized upon the NAFTA negotiating process to test their political power in a new arena, where the implications for the environment were growing increasingly clear. One result of this political action is the environmental side agreement to NAFTA, the North American Agreement on Environmental Cooperation,(3) which was drafted specifically to address fears that the passage of NAFTA would increase environmental degradation. Among other effects, this agreement creates formal mechanisms by which private parties may initiate investigatory actions against member states believed to be persistently failing to enforce their own environmental laws.(4) Such investigations would be carried out by the trilateral Commission for Environmental Cooperation (CEC).(5) If such actions are pursued further by the member governments themselves, the agreement allows for the creation of an independent arbitral panel of experts with the authority to determine whether environmental legislation is being enforced appropriately. The end result of this process can be trade sanctions and/or fines(6) assessed to a nation found in violation. However, the likelihood of such sanctions occurring as the CEC now stands is remote.
This paper examines the enforcement provisions of the environmental side agreement to NAFTA as well as the principles of law, enforcement, and compliance implicit in the accord. It asks, what would be the consequences if the CEC were truly effective? What are the probable static and dynamic effects of powerful multinational bodies with sanctioning authority? How would environmental legislation and regulation be effected? Is the mode of enforcement embodied in the CEC approach a sound one, and therefore a good model for future accords? These questions are not merely of theoretical interest; with the possibility of NAFTA being extended to Chile or other Latin American states, the CEC's creation represents a powerful precedent.
The side agreement sets up procedures which, if used successfully and effectively, have the potential to influence and alter current regulatory practice in the United States.(7) In particular, a stronger trilateral body (which many U.S. environmentalists had sought) would enhance this potential and yield predictable effects on the shape and scope of future American environmental law. Environmental legislation in the United States is frequently both ambitious and ambiguous, and fundamentally incapable of being faithfully implemented as written. Executive agencies must often attempt to discern legislative intent from confusing and contradictory language. As a result, an essential role of the American judiciary is that of statutory interpreter, and environmental regulation is in fact a process of interaction between Congress, the implementing executive agencies, the courts, and various private interests, rather than a product purely of the legislature codified in formal law. Through this interaction, a rough equilibrium is reached that is politically satisfactory to multiple interests.(8) For most executive agencies, "[s]tatutes do not and cannot fully guide their behavior."(9) Enforcement and lawmaking are not wholly separate.
The NAFTA side agreement, by empowering a panel of international experts to make determinations about patterns of enforcement, mistakenly separates lawmaking from enforcement. Democratic accountability, which is preserved to some extent through the interactive process described above, is diminished. In addition, legislation can be expected to change in response to such enforcement measures. Specifically, the level of enforcement the CEC proposes would result in less expansive environmental legislation, decreased use of technology- and agency-forcing statutes, and broader delegation to agencies of standard- and deadline-setting powers. …