Albion Monitor /News

NAFTA Environmental Protection Toothless, Say Critics

by Stephen Dale

The gutting of U.S. forest protection laws has grave implications for all three NAFTA countries

(IPS) OTTAWA -- The effectiveness of the environmental commission attached to the NAFTA trade deal is coming under fire following its rejection December 12th of requests to investigate logging practices in the United States.

The Montreal-based North American Commission for Environmental Co-operation, known as NACEC, was set up to deal with concerns that the NAFTA partners would seek to increase their trading advantage by lowering environmental standards. It was created under the so-called "environmental side deal" that accompanies the main text of the NAFTA accord.

Some environmentalists doubted from the beginning that the commission would do much to preserve the environment.

Their doubts seem to have increased following NACEC's December 12 rejection of an appeal by 28 U.S., Canadian and Mexican environmental organizations. The groups had asked NACEC to prepare a "factual record" of the controversial Salvage Timber Rider recently passed into U.S. law.

Michelle Swenarchuk, executive director of the Canadian Environmental Law Association (CELA) in Toronto, believes that NACEC's failure to act on what many environmentalists perceive as the gutting of U.S. forest protection laws has grave implications for all three NAFTA members within NAFTA, and for other countries who are clamoring to join the the two-year-old pact.

"When NACEC can't have an effect on something as fundamental as that, we see how weak the commission actually is," Swenarchuk said.

"The United States has had a strong record on forest planning, with the requirement for environmental assessments with real public participation. To have all that rolled back is significant for us all," she said.

Patti Goldman, an attorney with the Sierra Club Legal Fund, which submitted the request to NACEC on behalf of the other environmental NGOs, says the decision shows NACEC is not able to perform its intended function.

"The commission was established because of a concern that there would be a race to the bottom (in terms of environmental standards)," Goldman said from Seattle. "And that is now happening, with the U.S. leading the charge."

Goldman and Swenarchuk believe the way that NACEC dealt with the NGO submission proves that the commission is hobbled by its own limited mandate and by member governments' ability to hide behind legal technicalities.

"There is no longer any accountability to the public"

Under Article 14 of the North American Agreement on Environmental Co-operation (the NAFTA environmental side deal), citizen groups can ask NACEC to investigate when they believe that a government is permitting the violation of its own, domestic environmental laws.

Goldman said that the NGOs made an Article 14 submission on the Salvage Timber Rider because the rider, which was attached to another bill, contains a clause denying citizen groups in the U.S. the right to challenge timber sales agreements on environmental grounds. This amounts to a violation of existing U.S. forest protection laws, she said, because it takes away the means to enforce those laws.

"When you remove the power of enforcement, then the agencies are free to do what they want. It's as if the other environmental protection laws don't exist. There is no longer any accountability to the public," Goldman explained.

Goldman said the practical result of the Salvage Timber Rider has been "that logging is going on where scientists say it shouldn't." For instance, previously protected old-growth forests are now being logged in the U.S. Pacific states, she said.

However, NACEC rejected the argument that the U.S. is using one domestic law to short circuit other environmental protection regulations, and in so doing admitted that it has no leverage over what happens to U.S. forests.

"The enactment of legislation which specifically alters the operation of pre-existing environmental law in essence becomes a part of the greater body of laws and statutes on the books," the decision read. Therefore, NACEC "cannot characterize the application of a new legal regime as a failure to enforce the old one."

But Goldman feels NACEC's has taken an overly "technical" view of its mandate. By initiating a "factual record," NACEC could have used its power to focus political attention on deteriorating environment standards in NAFTA nations, she said.

"These type of interventions were meant to be the pro-active way that the commission would react to the problem," according to Goldman. "The idea was to shed light on an issue. I think they could have served a highly useful educational function simply by asking the question, 'Does the government violate environmental law if it doesn't enforce those laws?'"

Spokesperson Marc Paquin defended NACEC by saying that the process involved with Article 14 is "a bit stricter" than other regulations. "These articles are drafted in such a way that does not allow the Secretariat to consider as many things as it would in other areas." But the commission conducts extensive public education under different areas of its mandate, he said.

"People forget that this commission has no power"

In Toronto, CELA's Swenarchuk said the Salvage Timber Rider decision shows that NACEC lacks the mandate and legal "teeth" to be effective. Describing NACEC as "a political commission rather than a legal one," Swenarchuk complains that the commission has no independent environmental standards against which to judge a country's performance, and that it is answerable to a council of politicians from Canada, Mexico and the U.S.

"People forget that this commission has no power," she said. "It can only do what the three environment ministers permit it to do."

Mexican politicians are unlikely to raise environmental concerns through NACEC, she said, while they are dealing with a domestic political crisis. And Canada is unlikely to vote to "prepare a factual record" on a close trading partner's environmental records if it might jeopardize trade relations.

"Trade considerations are clearly dominant (over environmental concerns)," said Swenarchuk, who adds that the environment minister has less power in the Canadian cabinet than the trade minister.

Paquin, however, insisted that NACEC's Secretariat is an independent bureaucracy which can make its own recommendations without political approval.

Although the environment ministers can vote not to follow the Secretariat's advice, the fact that only two of three ministers need approve it "ensures that the implicated country cannot veto the decision." Paquin did concede, however, that "political factors" could influence governments' decisions on whether to vote to investigate their trading partners' environmental performance.

Albion Monitor December 21, 1995 (

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