Draft
North American Environmental Institutions
Assessment
Luis F. Guadarrama
Centro Mexicano de Derecho Ambiental
July 2004.
Introduction
The institutional framework of any given country is the set of rules, values, organisations and customary precepts that translate society’s collective preferences and objectives into co-ordinated actions to achieve, inasmuch as possible, the fulfilment of these preferences and achieve the given objectives. This institutional framework, therefore, is an outcome of factors that give society its sense of coherence and collective purpose, physically limit or enhance their aspirations, or mould their set of beliefs and values. Factors that shape the institutional framework of a given region or country can be of cultural, economic and environmental nature.
It is not surprising, therefore, that institutions that deal with the multiple aspects of policy – making, have tended to be limited to specific administrative demarcations, mainly bounded by common opportunities and restrictions. However, there are some aspects of policy – making that tend to be shared between societies and therefore require institutions that go beyond demarcations in order to achieve certain relevance. Aspects concerning, for example, trade policy, regional or global security, or environmental stewardship, tend to have a more ample scale and therefore require regional, hemispheric or global institutions to deal with them. Additionally, societies evolve and their aspirations and restrictions evolve with them, making their interactions among other societies different in nature and in intensity.
It could be said that, along with the increasing interdependence between societies, there has been a process of “internationalisation” of institutions. From economic – policy institutions like the World Trade Organisation, to the many Multilateral Environmental Agreements that have propped up in the last two decades, there is an increasing, and increasingly important, international institutional framework to deal with common global preferences and challenges. However, there also is an increasing concern over the performance of these institutions. As we hope will be clear from our analysis, inasmuch as international institutions, be they regional, hemispheric or global in their scope, do deal with common preferences and challenges, and minimise agendas foreign to the whole, their effectiveness will be much increased.
In this short survey we will look at the North American Region from an environmental perspective. We will analyse the performance of the different institutions that have been created over the decades to face the environmental concerns on a regional basis, as well as the recent institutions created within the context of the North American Free Trade Agreement.
Environment in North America
The territories of Canada, Mexico and the United States comprise the North American region; it covers an area of approximately 22 million Km2 and is home to more than 430 million people. It is rich in ecological diversity, as climatic types range from polar arctic in northern Canada, to tropical forest in southern Mexico. All in all, 15 “Ecological Regions” have been identified for North America, most of them shared between countries, flowing across borders:
1. Arctic Cordillera
2. Tundra
3. Taiga
These lie on their entirety in the Arctic, shared between Canada and Alaska;
4. Hudson Plains
5. Northern Forests
6. North-western Forested Mountains
7. Marine West Coast Forests
8. Eastern Temperate Forests
These shared mainly by Canada and de United States;
9. Great Plains
10. North American Deserts
These regions shared by the three Countries;
11. Mediterranean California
12. Southern Semi – Arid Highlands
These shared by the United States and Mexico; and
13. Temperate Sierras
14. Tropical Dry Forests
15. Tropical Humid Forests
Which lie entirely within Mexico.
Economic Integration in North America
The three countries of the North American region have traditionally been economically interconnected well before the North American Free Trade Agreement (NAFTA) came into force in January 1st, 1994. Building on the US- Canada Free Trade Agreement of 1989, NAFTA has increased trade within the region, and has actually built the largest trading block in the world. The agreement means a free trade zone producing more than $11 trillion worth of goods and services, and trade growing steadily between the three partners. For example, US – Mexico trade has increased by more than three-fold from pre-NAFTA flows. Unlike the European Union, however, NAFTA does not create a set of supranational governmental bodies, nor does it create a body of law, which is superior to national law. This means that controversial issues that have been linked to NAFTA even from the negotiation process, have to be dealt within the same framework of “agreements on co-operation”. That is, effects perceived from society regarding the potential effects of NAFTA on environmental or social aspects have been incorporated as co-operation agreements with the corresponding institutional base.
North American Environmental Institutions
As can be seen from above, the sharing of ecosystems between the Countries in the North American Region, as well as the immense economic linkages between them, have produced a need for institutions to deal with common challenges and preferences their respective societies have converged on in environmental, among other, matters. In the following, we will take a look at the different institutional arrangements devised to attend to these environmental challenges, and then we will try to assess their effectiveness.
ENVIRONMENTAL COOPERATION BETWEEN MEXICO AND THE UNITED STATES
US – Mexico Border
While its people share natural resources like water and air, the border region is characterised by many social, economic, and political contrasts. Ninety percent of the border population resides in 14 paired, inter-dependent sister cities. Over the last 20 years, population has grown rapidly in the border region to more than 11.8 million people. This figure is expected to reach 19.4 million by 2020. Rapid population growth in urban areas has resulted in unplanned development, greater demand for land and energy, increased traffic congestion, increased waste generation, overburdened or unavailable waste treatment and disposal facilities, and more frequent chemical emergencies. Residents in rural areas suffer from exposure to airborne dust, pesticide use and inadequate water supply and waste treatment facilities. Border residents also suffer disproportionately from many environmental health problems, including water-borne diseases and respiratory problems.
Non-NAFTA related institutions
The following are the treaties and agreements of the environmental co-operation between Mexico and the US.
The International Border and Water Commission (IBWC)
In 1889, the governments of both Mexico and the United States signed a treaty in which the IBWC was created. Its mandate was to solve border disputes between the two countries caused by the changing course of both Colorado and Grande (Bravo) rivers. The IBWC was modified in 1944 and it is still in operation.
The Commission’s mandate was modified in 1944 when a new treaty was signed: the Treaty on Water Use from the Colorado, Tijuana and Grande rivers (Water Treaty). This is properly the first agreement dealing with joint US and Mexican environmental issues. Besides dispute settlement provisions, the IBWC acquired new attributions regarding the quality, conservation and use of water resources all along the border.
IBWC is the oldest and best institutionalised environmental agreement between Mexico and the United States. It provides the institutional basis for the management of surface water quality, sewage and sanitation problems and establishes a partial regime for managing floods and droughts on the Grand/Bravo and Colorado rivers. It directs the Governments of the US and Mexico in trying to achieve binational solutions to common environmental problems as these emerge and provoke public concern along the border. However, it does not identify specific and emerging environmental problems, prioritise them and create additional consultative bodies to advise the two governments in these issues.
Border Environmental Co-operation Agreement (La Paz Agreement)
Signed in August 1983 in the city of La Paz in the Mexican state of Baja California Sur, La Paz Agreement established a framework for co-operation on the prevention, reduction and elimination, of pollution on air, water and soil all along the Border Area. It also defined the Border Area as the region extending 3100 km. from the Gulf of Mexico to the Pacific Ocean, and 100 km. on each side of the Border. The La Paz agreement, additionally, is the legal basis for all the border programmes established since (see below).
As opposed to the IBWC, the La Paz Agreement does have the faculty to pinpoint the most important environmental issues and create consultative bodies to deal with them. Its objective is to “establish a co-operation mechanism to preserve and foster the environment along the common border, based on principles of equality, reciprocity and mutual benefit”. The general commitments are reduction, prevention and elimination of any common pollution problem according to the legislation of each country. It is important to point out that the La Paz Agreement is the basis on which all the border co-operation on environmental issues lays. Subsequent agreements rely on the definitions and framework of this Agreement.
These actual co-operation schemes and operative procedures are incorporated in different Annexes to the Agreement; at present, there are 5 annexes:
· Annex 1: It was signed in July 1985. It deals with the construction and operation of water treatment plants in the Tijuana/San Diego zone. Its main objective was to find a solution to the problem of sewage flows in some parts of San Diego. The plan was to build two secondary treatment plants in Mexico for Tijuana’s sewage. However, geological and financial obstacles complicated the implementation of this Annex. In 1988 and 1989, additional discussions on the context of the La Paz Agreement put forward a different scheme. It consisted in the construction of a single facility in the United States, specifically in San Ysidro, California in order to avoid the geological obstacles met by the first plan. The way to finance it was “appointing costs according to the benefits” of the treatment facility. In this way, from its total cost of $192 million USD, Mexico should contribute with $41 million, representing around 21% of the total cost.
· Annex 2: It was signed in July 1985. Subsequently, it was complemented by an Emergency Plan on Hazardous Waste Spills in the Mexico/US Border signed in 1988. This annex refers to the establishment of a Joint Response Team to attack any emergency regarding hazardous waste spills on the land segment of the border.
· Annex 3: It was signed in November 1986. This annex aims at establishing a procedure for the transportation of transboundary hazardous wastes between Mexico and the US. Annex 3 regulates trade and transit of hazardous wastes. These wastes require prior notification and approval so that they can be conveyanced from one country to the other. It also provides the readmission of wastes to the country of origin. Under this agreement, the exporting nation must provide a 45 day notice of its intention to ship hazardous substances to the importing nation. The country receiving the wastes can choose between accepting or rejecting the shipment. The agreement also establishes that the exporting country must readmit any shipment that the importing country, for whatever reason, decides to return. The main purpose of this Annex continues to be the monitoring of hazardous substances used in the maquiladora industry. As shown above, the maquiladora industry is the principal source of hazardous waste y the northern border of Mexico. With this regard, the maquiladora industry uses temporarily imported raw material; if this substance or input may evolve into hazardous waste, it must make its way back to its place of origin. Although there is no systematic data available, the level of compliance with this Annex appears to be low. In 1988, an EPA study on Sonora and Baja California´s maquiladoras shows that only 1% of them shipped their waste back to the US, which is the principal maquiladora plants´ place of origin. But as collaboration between the US Customs Service and the Mexican Aduanas continues to grow, so will the level of compliance.
· Annex 4. It was signed in January 1987. It makes reference to the transboundary air pollution caused by copper smelters located along the border. Mainly in the border portion comprised by Southern Arizona and Northern Sonora, known as the “Gray Triangle”. It targets three smelters: one in Douglas, Arizona, another in Nacozari, Sonora, and the last one in Cananea, Sonora. This means that they are obliged to meet common and specific standards, and allows any information exchange between the two countries. Under this agreement, the US promised to close the smelter in Douglas, due to its deteriorating conditions, while Mexico promised to install acid plants to control SO2 emissions on both Mexican smelters. A very important aspect of this Annex, is that it defines very specific means to deal with an environmental problem; the other four Annexes basically deal with a framework where actions are to be taken. Annex 4 also establishes the standards and specific means to reach these standards of SO2. The agreement has functioned well, even through the privatisation process that the Mexican plants observed.
· Annex 5: It was signed in October 1989. It establishes an analysis of the causes and possible solutions of urban air pollution. It targets different pairs of border cities, designated as “study areas”. The first one to be studied, is the metropolitan area that includes El Paso, Texas and Ciudad Juárez, Chihuahua. This Annex obliges each city to install monitoring devices and meteorological stations, in order to collect and analyse data. It also explores the possibility of harmonising air pollution and air quality standards in the study area. Eventually, there is a possibility that the Governments of Mexico and the US, propose a binational air quality control district. This district would initially focus on joint pollution, control measures and voluntary compliance, and could acquire further competitions.
The La Paz Agreement also established six working groups that include experts from both countries, on the following pressing matters:
· Water Resources Working Group
· Hazardous Waste Working Group
· Air Working Group
· Emergency Response and Prevention Working Group
In 1991 two more Working Groups were integrated:
· Law Enforcement Working Group
· Pollution Prevention Working Group
NAFTA Related Institutions
Integrated Border Environmental Plan (IBEP)
It was devised by an initiative put forward by both the Presidents of Mexico and the US in November 1990, when analysing the feasibility of a free trade agreement. They recognised that all the economic benefits derived from an increase on trade along the border could cause strong environmental impacts. If the border grows economically, it must grow in a sustainable way protecting the environment and enhancing ecological equilibrium. The IBEP, which began to operate in 1992, and finished its first stage of operations in 1994 had as its main objectives:
· Enforcement of the existing laws and regulations
· Reduction of pollution with the implementation of new instruments
· Promotion of a wider co-operation in aspects such as urban and regional planning, education and increased environmental awareness.
· Better understanding on the environmental situation in the border area.
Border XXI Plan
Following on the IBEP, and due to the poor results perceived by this plan, this new Plan incorporated more community level participation and a restructured operation mechanism.
This program has taken from IBEP much of its objectives and integrated more working groups with more bilateral agencies involved. Border XXI has nine working groups:
· Working group on air
· Contingency planning and emergency response
· Enforcement
· Environmental health
· Hazardous and solid wastes
· Information resources management
· Natural resources
· Pollution prevention
· Water resources
Main strategies:
· Public involvement: first hand participation on environmental decision-making. This will be fostered through public meeting, public comment periods, and other targeted public outreach efforts to facilitate information exchange and dialogue between governments and the public.
· Institutional strengthening and decentralisation: support for state and local efforts in order to achieve a more effective regional approach to environmental management.
· Interagency co-operation: involvement of environmental, natural resource management, and health authorities.
The main objective of Border XXI was to achieve greater linkages between Mexican and US institutions dealing directly, or indirectly, with the environment and health issues. One important aspect that made Border XXI more capable of achieving success than IBEP, is that it involved more co-operation between more agencies; IBEP only contemplated co-operation between the environmental agencies SEDUE/SEDESOL and the US Environmental Protection Agency. Border XXI contemplated the incorporation of agencies dealing with health, natural resources and other issues. Border XXI also had provisions for more public participation of all kind
Border Plan 2012
Immediate successor to Border XXI Plan, Border Plan 2012 was set up in 2002 in order to fulfil the mandate on environmental stewardship in the US – Mexico Border first established in IBEP.
With the active participation of the ten Border States and U.S. tribal governments, the U.S. Environmental Protection Agency (EPA) and Mexico’s Secretariat of Environment and Natural Resources (SEMARNAT), in partnership with the U.S. Department of Health and Human Services (HHS), the Mexican Secretariat of Health (SS) and other federal agencies, have developed the Border 2012 program to protect the environment and the public’s health in the U.S.-Mexico border region. The ten-year Border 2012 program emphasises a bottom-up, regional approach, anticipating that local decision-making, priority-setting, and project implementation will best address environmental issues in the border region. It brings together a wide variety of stakeholders to produce prioritised and sustained actions that consider the environmental needs of the different border communities.
The proposed Border 2012 Program was announced in September 2002 in Mexico at the meeting of the environmental authorities of the ten border states, and in the United States in the Federal Register. These announcements launched a 60-day comment period, during which EPA, SEMARNAT, the ten Border States, and U.S. tribes engaged in an intensive public involvement process that included a combination of binational and domestic meetings in 27 cities along the U.S.- Mexico border. EPA and SEMARNAT also solicited input from interested community and stakeholder groups via additional meetings, Internet exchanges, and written correspondence.
During the public comment period, more than 1,000 individual comments were received from border communities and other stakeholders representing industry, non-governmental organisations, academia, state, federal and local governments, and the general public. Based on these comments, the draft Border 2012 framework was revised to incorporate many of the recommendations and priority issues that were conveyed by border stakeholders in an effort to more effectively address environmental problems facing border communities. The Border 2012 Response Summary Report provides a detailed account of the comments received and how they were incorporated into the final document. In addition, program partners developed the Border 2012 Operational Guidance to assist partners, stakeholders and the general public to understand how the program is implemented.
Border 2012 Plan Objectives are:
Objective #1 - Reduce Water Pollution.
Objective #2 - Reduce Air Pollution.
Objective #3 - Reduce Soil Pollution by minimising municipal, toxic and industrial waste.
Objective #4 - Improve Environmental Health, and Reduce Exposure to Insecticides, especially on Children.
Objective #5 - Reduce Exposure to Chemicals as a Result of Accidental Chemical Releases and/or Acts of Terrorism.
Implementation reports will be prepared every two years to review the status of activities under Border 2012. In addition, a five – year report will be released in 2007, and a final report will be available in 2012.
The US - Mexico Environmental Co-operation Agreement that creates The North American Development Bank (NADBank) and the Border Environmental Co-operation Commission (BECC)
The North American Development Bank (NADBank)
The NADBank is an institution that helps finance environmental infrastructure projects along both sides of the Mexico-US border. Its role is basically as the lead bank, in conjunction to an investment bank, in order to organise the financial agents who are to invest in the projects. Mainly, the Bank assists possible investors and complements funds available, but it does not finance a project entirely.
The projects on which the Bank works are:
· Wastewater related projects (mainly treatment plants)
· Potable water projects
· Municipal solid waste projects
Mexico and the US are equal partners in the Bank’s effort; the board of Directors is comprised of 3 members from each country:
US: Secretary of the Treasury
Secretary of State
EPA Administrator
Mexico: Secretario de Hacienda (Secretary of the Treasury)
Secretario de Comercio (Secretary of Commerce)
Secretario de Medio Ambiente, Recursos Naturales y Pesca (Secretary of Environment, Natural Resources and Fisheries)
Mexico and the US also share equal responsibility in the Bank’s capitalization: each must contribute equal amounts consisting of $225 million dollars in paid-in capital and $1,275 million in callable capital. This totals $3,000 million, which will be subscribed over the Bank’s first four years. Mexico and the US have already each paid the first half of their commitments.
Border Environmental Co-operation Commission (BECC)
The BECC has as its principal objective to assess the technical, financial and social feasibility of the projects to be financed with NADBank help. Every project to be handled by the Bank has first to pass through BECC certification process. (We are at the moment analysing this certification process)
ENVIRONMENTAL COOPERATION BETWEEN CANADA AND THE UNITED STATES
HAZMAT Agreement
The Agreement Between the Government of Canada and the Government of the United States of America Concerning the Transboundary Movement of Hazardous Waste was signed by the Canadian Environment Minister and the U.S. Environmental Protection Agency (EPA) Administrator on October 28, 1986, and came into effect on November 8, 1986. The Agreement ensures both that the transboundary movement of hazardous waste is handled safely and that such waste is shipped to facilities that are authorised by the importing jurisdiction.
UNITED STATES - CANADA BORDER Canada-United States Joint Inland Pollution Contingency Plan
The Canada-United States Joint Inland Pollution Contingency Plan provides for an international co-ordination mechanism to ensure appropriate and effective co-operative preparedness, reporting, and response measures between Canada and the United States when a chemical accident occurs along the shared inland boundaries. A Fact Sheet (July 1994) is available in English (ASCII) or (PDF)
One feature of the Canada/U.S. Joint Inland Pollution Contingency Plan is the development of Regional Annexes that include, among other matters, the definition of the jurisdiction, roles, and response procedures of regulatory and support agencies within specific regions of each country. The Regional Annexes and the geographic areas they cover are listed below. The Regional Annexes will be posted as they are signed.
· Annex I - CANUSWEST -- includes the combined border of the Yukon Territory and British Columbia with U.S. Environmental Protection Agency Regions 8 and 10 (Washington, Idaho, Montana, and Alaska)
· Annex II - CANUSPLAIN -- includes the combined border of Alberta, Saskatchewan, and Manitoba with U.S. Environmental Protection Agency Regions 5 and 8 (Minnesota, Montana, and North Dakota)
· Annex III - CANUSCENT-- includes the border of Ontario with U.S. Environmental Protection Agency Regions 2 and 5 (New York and Minnesota)
· Annex IV - CANUSQUE -- includes the border of Quebec with U.S. Environmental Protection Agency Regions 1 and 2 (New Hampshire, Vermont, Maine, and New York)
· Annex V - CANUSEAST -- The border of New Brunswick with U.S. Environmental Protection Agency Region 1 (Maine)
Great Lakes Region
The Great Lakes - Superior, Michigan, Huron, Erie and Ontario - form the largest surface freshwater system on the Earth. More than 30 million people live in the Great Lakes basin, and the daily activities of these people, from the water consumed to the waste returned, directly affects the Great Lakes environments.
The United States and Canada both have jurisdiction over the Great Lakes Basin. Within the US, the EPA and nine other agencies together administer more than 140 different federal programs helping fund and implement environmental restoration and management activities in the Great Lakes basin. In addition, governance of the Great Lakes system is shared with eight U.S. states, nearly 40 Tribal Nations, more than half a dozen major metropolitan areas, and numerous county and local governments.
Great Lakes Binational Toxics Strategy
The Canada-United States Strategy for the Virtual Elimination of Persistent Toxic Substances in the Great Lakes Basin, also known as the Great Lakes Binational Toxics Strategy.
The Strategy provides a framework for actions to reduce or eliminate persistent toxic substances, especially those which bioaccumulate, from the Great Lakes Basin. The Strategy was developed jointly by Canada and the United States in 1996 and 1997 and was signed April 7, 1997.
The Strategy establishes reduction challenges for an initial list of persistent toxic substances targeted for virtual elimination: aldrin/dieldrin, benzo(a)pyrene, chlordane, DDT, hexachlorobenzene, alkyl-lead, mercury and compounds, mirex, octachlorostyrene, PCBs, dioxins and furans, and toxaphene. These substances have been associated with widespread, long-term adverse effects on wildlife in the Great Lakes, and, through their bioaccumulation, are of concern for human health. This is the first time specific reduction targets have been set jointly by the two countries.
Recognising the long-term nature of virtual elimination, the Strategy provides the framework for actions to achieve quantifiable reduction "challenges" in the timeframe 1997 to 2006 for specific toxic substances. Flexibility is provided in the Strategy to allow for the revision of challenges, timeframes and the list of substances. The development of baseline measurements for tracking and measuring progress toward reductions is also a key element of the Strategy. A "Technical Support Document" appended to the Strategy provides action items that will be undertaken to pursue reductions.
From the beginning, USEPA and Environment Canada have involved state, Provincial, tribal, industrial, environmental and other interested parties, recognising that the governments alone cannot achieve the goal of virtual elimination -- all parts of society must co-operate to ensure success. In implementing the Strategy, the two countries will continue to build this vital partnership.
The Binational Toxics Strategy has been developed under the auspices of the Binational Executive Committee (BEC), which is charged with co-ordinating the implementation of the binational aspects of the 1987 Great Lakes Water Quality Agreement. The BEC is co-chaired by Environment Canada and the United States Environmental Protection Agency, and includes representatives from the Great Lakes states, the Province of Ontario, as well as other federal agencies in Canada and the U.S.
The purpose of this binational strategy is to set forth a collaborative process by which Canada and the U.S. will work towards the goal of virtual elimination of persistent toxic substances resulting from human activity, particularly those which bioaccumulate, from the Great Lakes basin, so as to protect and ensure the health and integrity of the Great Lakes ecosystem. The goal of virtual elimination will be achieved through a variety of programs and actions, but the primary emphasis will be on pollution prevention.
Agreement Between the Government of the United States of America and the Government of Canada on Air Quality
Multiple environmental and health problems (including acid rain, impaired visibility, damaged ecosystems, and respiratory illness) are caused or worsened by air pollution from mobile and stationary emission sources in Canada and the United States. Both nations have an interest in reducing transboundary air pollution.
After more than a decade of scientific research and discussions, Canada and the United States signed a historic Air Quality Agreement in Ottawa, Canada, on March 13, 1991. The Agreement established a formal and flexible method of addressing transboundary air pollution and paved the way for co-operation on a variety of air quality issues. While the initial focus of the Agreement was on acid rain, the two nations recently expanded co-operative efforts to control transboundary ground-level ozone and to conduct joint analyses on transboundary particulate matter (PM).
The main body of the Agreement lays out overall air quality objectives and specific requirements for both countries, including regular communication, exchange of information, and consultation and settlement of issues of concern.
A bilateral Air Quality Committee is responsible for co-ordinating the overall implementation of the Agreement. Two subcommittees—Program Monitoring and Reporting, and Scientific Co-operation—meet annually with the Air Quality Committee and carry out yearly activities. The two nations prepare a joint progress report every two years and conduct a regular five-year review and assessment of the Agreement.
The Air Quality Agreement was signed in 1991 and included two annexes. Annex 1, the Acid Rain Annex, focuses on the commitments of both nations to reduce sulphur dioxide (SO2) and nitrogen oxides (NOx) emissions, the primary precursors of acid rain. Under Annex 1, both Canada and the United States have committed to monitoring utility emissions. Continuous emission monitors (CEMs) are widely utilised in the United States; Canada uses CEMs along with other alternative methods. Under Annex 2, the Scientific and Technical Activities and Economic Research Annex, Canada and the United States agree to co-ordinate their air pollution monitoring networks; use compatible formats and methods for monitoring and reporting; and cooperage and exchange information about the causes and effects of air pollution and the use of market-based programs, such as the U.S. Acid Rain Program, to address air pollution issues.
In December 2000, Canada and the United States added Annex 3, the Ozone Annex, to the Agreement. This Annex commits the two nations to reducing emissions of NOx and volatile organic compounds (VOCs)—the precursor pollutants to ground-level ozone, which is the major component of smog.
NAFTA AND THE NEW ENVIRONMENTAL COOPERATION CONTEXT
Environmental provisions inside the NAFTA
The existing provisions inside NAFTA, on environmental issues, ensure that the US can maintain and enforce its existing federal and state health, safety, and environmental standards, as well as all international treaty obligations. This is true also for Mexico, as there are limitations in controlled products, such as endangered species. Additionally, NAFTA endorses the principle of sustainable development and incorporates environmental provisions on investment and dispute settlement. This makes NAFTA an environmentally concerned trade agreement. The specific environmental provisions inside NAFTA are:
· Any compatibility problem between NAFTA and any Environmental Agreements in which any of the parties is taking part, the latter would prevail. This applies to agreements like the Montreal Protocol, the Basel Convention and CITES.
· Each country has the right to establish its own level of protection according to its own objectives and circumstances.
· Each country has the right to establish its own measures to assure the environmental impact of any investment made in its own territory. In this sense, NAFTA makes it explicit that it prohibits any country to lower its standards in order to attract and maintain investment.
· NAFTA allows any of the parties to adopt any measure not consistent with free trade, when the objective is to protect the environment.
Although it is recognised that this provisions would be enough to guarantee a good environmental performance in this free trade context, the US proposed the creation of a side agreement that would deal specifically with environmental issues: the North American Agreement on Environmental Co-operation. (Another for laboural issues was also signed)
The North American Agreement on Environmental Co-operation; the Commission on Environmental Co-operation
This Agreement supplements the environmental provisions and objectives of the NAFTA, further ensuring that trade liberalisation will not come at the expense of environmental protection. It establishes a framework for trilateral co-operation on environmental matters and commits the parties to effective enforcement of their respective environmental laws.
Its objectives are:
· Promote conservation and enhancing environmental well-being in North America, this in order to enhance the population’s quality of life
· Promote sustainable development
· Promote trilateral co-operation
· Support the environmental considerations in NAFTA
· Assure that environmental measures do not become unnecessary barriers to trade, do not promote trade distortions and do not become hidden protectionism
· Promote co-operation in law enforcement
The obligations are:
· The environmental law and regulation are to be established by each country according to its preferences and priorities; nevertheless, each country has the obligation to provide, in this regulative framework, high levels of environmental protection.
· The Side Agreement prohibits the enforcement of any law or regulation outside of its country of origin.
· Each party commits to an active enforcement of its regulation. The Side Agreement does not allow for any authority of any one party to take actions in order to enforce the regulation of another party.
· Each country commits to: -inform of the state the environment holds in its territory-develop plans in order to attack environmental emergencies; -promote education, research and development in environmental issues; -assess environmental impacts-promote the use of economic instruments in environmental policy
· Each country will notify any decision concerning the ban or restriction of the use of certain types of pesticides or other chemical substances and will study the possibility of prohibiting the export of products which their use is banned in the country.
· Each country will guarantee that the administrative and legal procedures in the application of the law, be fair, open and transparent.
Perhaps the most significant elements of this Agreement are the provisions creating the trinational Commission for Environmental Co-operation. Its structure and scope are described in the following.
The Commission on Environmental Co-operation (CEC)
It provides the parties of NAFTA the structure to study issues, create working groups and solve problems of common concern. The Commission is the operating body of the Agreement. The CEC is comprised of a Council, a Secretariat and a Joint Public Advisory Committee. The Council is integrated by the environmental ministers of Mexico and Canada, and the environmental administrator of the United States. It will serve as a forum for discussing and making recommendations on all issues, and in settling actual or potential disputes. The Secretariat is headed by an Executive Director who will be chosen for a renewable three-year term. The Executive Director’s nationality will be rotated among the parties; in this moment, the Secretariat is headed by a Mexican. Among the main functions of the Secretariat are the elaboration of an annual report to the public covering the Commission’s activities during the previous year and the elaboration of an analytical framework in which to asses the environmental impacts of NAFTA. As for the Joint Public Advisory Committee, it includes five representative members from each country. It will advise the Council and provide technical, scientific and other types of information to the Secretariat, as well as provide with the input to the annual program and budget of the Council.
The way the CEC will interact with NAFTA institutions is by supporting the environmental goals already inside the main Agreement. The way to do this is by co-operating with the Free Trade Commission which deals with the enforcement issues of NAFTA. The specific means are:
· The CEC will provide a space for public inquiry and a place for the reception of public comments concerning NAFTA’s environmental goals
· The CEC will provide with expert assistance when one of the parties believes another is not in compliance with any environmental measure for the purpose of attracting investment
· The CEC will work to prevent environment-related disputes or resolve them, by making recommendations to the Free Trade Commission.
As for the promotion of effective enforcement, the Commission will encourage the sharing of environmental enforcement technologies and information between the parties, and will report on their environmental enforcement activities. The Secretariat will prepare factual records on enforcement matters based on submissions from the public in the three countries. The Council will address complaints between parties regarding compliance with the obligation to effectively enforce environmental laws, resolving them through consultations or the establishment of dispute settlement panels.
Assessment
The Commission on Environmental Co-operation (CEC)
The CEC has been, and continues to be, unique among environmental institutions. Its mandate, from NAAEC, allows CEC to address any environmental issue anywhere in North America, even if it is not directly related to NAFTA. Additionally, its provisions for public participation make the CEC a model for sustainable development institutions around the world. Among its achievements, the CEC has helped to demonstrate that North America is a collection of linked ecosystems and create, therefore, a sense of regional environmental collective consciousness. Also, the CEC has facilitated more fluid co-operation among NAFTA parties, and has incorporated diverse stakeholder groups by broadening the concept of public participation.
Additionally, due to its mandate and origins, the CEC has been an important player in addressing issues around trade and environment. Its work in this area has been directed towards finding policy options to mitigate possible negative environmental impacts of regional integration, as well as exacerbate the potential positive environmental impacts.
Some positive aspects of CEC’s work up to date:
· The CEC has been very active in promoting co-operation in certain priority environmental issues common to the North American Region, such as sound management of chemicals, biodiversity conservation and enforcement of environmental regulation;
· The CEC has helped create a North American environmental community, mainly fostered by its broad public participation process;
· By promoting public participation in environmental issues, the CEC has helped in building environmental capacities within national administrations, largely in Mexico but also in the US and Canada;
· Though there has been little advance in terms of hard evidence on the linkages between trade and environment, the CEC has helped bring the issue to a very broad audience; and
· The CEC has successfully promoted citizen engagement on environmental issues and increase government accountability regarding the enforcement of environmental laws.
Some aspects that need further attention in order to tap CEC potential:
· There are pressing demands for results from the CEC’s programme agenda. However, there are serious problems with the scope of this programme. Priorities for substantive projects, like the ones dealing with the trade and environment linkage, or the assessment of border environmental impacts, have not been agreed upon by all stakeholders, and there is a perception that some aspects of the agenda are irrelevant to a major group of stakeholders. This has resulted in a serious lack of commitment from some sectors to the work programme, and therefore lack of results. This could be termed as the “vicious cycle of forced agendas”.
· There is a need to engage more fully the environmental ministers of the three parties to NAFTA. Bringing a sharper focus to programming, really reflecting the CEC’s priorities, if financial resources and its limitations, should pave the way in this direction. Undoubtedly, there is a need to further their commitment to the fulfilment of CEC substantive agenda, as well as the CEC role in really assessing the environmental implications of trade, and specifically, of NAFTA;
· Governments and key stakeholders would really reap the benefits from the CEC, if additional efforts are made into stressing its role as catalyst for information gathering, rather than information building. This should increase its credibility and should help in keeping the programme agenda focused. If this could be guaranteed, the CEC’s programme can jump to dealing with pressing environmental issues like those related to energy and water.
· There is a need to further clarify the roles and responsibilities of the CEC’s main governance bodies: the Council of Ministers, the Joint Public Advisory Committee (J-PAC) and the Secretariat. In many instances, this lack of clarity has hindered the CEC’s effectiveness in further fostering public participation, and in delivering relevant and timely results on the technical agenda.
· The CEC has been very successful in engaging the environmental community into its work programme and in creating a coherent, if incipient, North American environmental NGO community. However, much needs to be done in engaging other relevant stakeholders that are directly involved with regional environmental issues. For example, the business community, indigenous peoples, academia and other social NGO.
In general terms, an assessment on CEC performance draws two important conclusions:
1. The CEC has been less than successful in showing results from its substantive programme agenda; and
2. The CEC has been more than successful in bringing together different stakeholders, and promoting public awareness and participation dealing with North American environmental issues.
At the centre of this mixed performance, are the notions expressed at the Introduction of this analysis. That is, inasmuch as international institutions really deal with common preferences and challenges, their effectiveness and relevance will be much increased. Inasmuch as agendas are not clearly shared by relevant stakeholders, and furthermore, some priorities for action within the institutional framework are alien to an important part of stakeholders, this framework will prove ineffective. That may be the reason why the CEC has been so successful on the public participation realm, which has been a growing priority among the North American environmental, and non-environmental, community. And may also be the reason why it has been so unsuccessful in bringing results from its substantive agenda, which is based on the mandate negotiated under NAAEC. It is no secret that the conditions under which NAAEC was negotiated were not the most favourable for achieving consensus and commitment from Governments and stakeholders.
