Sink or Swim: Why NAFTA, the NAAEC, & The CEC have Failed to Protect North American Waters

By Nico A. Pingaro   Published 23 July, 2016

Honoré_Daumier

"Only when the last tree has died and the last river been poisoned and the last fish been caught will we realize we cannot eat money." - Cree Proverb

I. Introduction

Trade and environmental impact are indivisible. With the liberalized trade regime established by the North American Free Trade Agreement the risk to the environment has increased dramatically – specifically in regard to shared bodies of water like the Great Lakes and the Gulf of Mexico. A number of environmental problems addressed in free trade agreements – such as the North American Free Trade Agreement – are of global relevance.

A segment of international environmental law is grounded in the principle of attempting to put conservation and economic development side by side and, in a perfect world, reconcile the two.

In attempting to place conservation along side economic development, there is a challenging balancing of equity, politics, and regional practices. International and domestic environmental law influences one another tremendously, transmitting basic environmental law principles to many countries worldwide; sometimes expediting the process of transforming a developing country into a developed country.

It is clear from reading the provisions of the North American Free Trade Agreement (“NAFTA”) that its main purpose is to boost economic stability in North America but with any increase in manufacturing, or the like, comes concerns of the environmental impact. The 477 million people NAFTA affects have the understanding this free trade agreement would bring about economic growth for the region and as a result bring an influx of job opportunities to all three signatory countries. Reading the preamble of this Agreement would give the reader an optimistic view for the future as language like “harmonious development” and “mutually advantageous rules governing trade” are the enunciated goals. However, not all citizens were pushing for NAFTA to come to fruition but not because of economic reasons. There are several environmental concerns surrounding NAFTA but the topography the three signatory countries share makes one issue the most glaring - the shared bodies of water. The draftes of NAFTA clearly saw the environmental concerns, specifically over water, to be an inevitable problem that could potentially harm the liberalized trade regime that NAFTA so vehemently seeks to promote.

The contingent of citizens who were in favor of NAFTA come from the realm of understanding that liberalized trade allows for less developed countries to establish stronger environmental protection in their respective countries. With free trade comes an influx of technology and services from partnering countries, which can be employed to counter any impacts from higher levels of consumption and production. Some even argue that the liberalization of trade allows a country to become more efficient with its own comparative advantage resource, which results in a reduction in pollution and waste. It is also argued that with free trade agreements comes more access to information and transparent decision making, which presumably leads to more pressure from the public to maintain environmental protection.

This note will discuss a number of issues which continue to present significant challenges to the environment, its inhabitants and the green movement within the pacific and beyond. Firstly, the history of the North American Free Trade Agreement, and one of its two side agreements, the North American Agreement On Environmental Cooperation. Secondly, the history of water governance in North America, focusing directly on the shared bodies of water between the United States and Mexico, and the United States and Canada. It will also delve into the functions of the Commission on Environmental Cooperation, with particular attention being drawn to the role it plays in governing these shared bodies of water. Lastly, this note will analyze how energy – in the form of hydraulic fracturing (“fracking”) - and the Trans-Pacific Partnership (“TPP”) affect this issue moving forward.

II. The Birth of NAFTA

The birth of The North American Free Trade Agreement, or NAFTA, has a long and arduous history beginning under President Ronald Reagan. President Reagan campaigned on a common market in North America, and in 1984 the U.S. Congress passed the Trade and Tariff Act. The Act allowed President Regan to negotiate free trade agreements while Congress only had the ability to approve or disapprove of the agreement but not change any terms. With this authority in place, Canadian Prime Minister Mulroney began negotiations with President Reagan to establish the Canada – U.S. Free Trade Agreement, which went into effect in 1989.

After President Reagan left the Oval Office, President George H.W. Bush began similar free trade agreement talks with Mexico. Before trade between the U.S. and Mexico were liberalized, Mexican tariffs on U.S. imports were 250% higher than U.S. tariffs on Mexican imports. With the Canada – U.S. Free Trade Agreement already in place, and negotiations for a free trade agreement between the U.S. and Mexico nearly complete, Canada proposed a trilateral agreement. This proposal led to the inception of NAFTA, and in 1992 President George H.W. Bush, Canadian Prime Minister Mulroney, and Mexican President Salinas signed the free trade agreement that still governs North America today. One year later, NAFTA was ratified by all signatory countries, however, it was not signed into law in the United States until 1993 when Bill Clinton became president.

The preamble of NAFTA lists its essential purposes:

“ The Government of the United States of America, the Government of Canada, and the Government of the United Mexican States resolved to: STRENGTHEN the special bonds of friendship and cooperation among their nations; CONTRIBUTE to the harmonious development and expansion of world trade and provide a catalyst to broader international cooperation; CREATE an expanded and secure market for the goods and services produced in their territories; REDUCE distortions to trade; ESTABLISH clear and mutually advantageous rules governing their trade; ENSURE a predictable commercial framework for business planning and investment; BUILD on their respective rights and obligations under the General Agreement on Tariffs and Trade and other multilateral and bilateral instruments of cooperation; ENHANCE the competitiveness of their firms in global markets; FOSTER creativity and innovation, and promote trade in goods and services that are the subject of intellectual property rights; CREATE new employment opportunities and improve working conditions and living standards in their respective territories; UNDERTAKE each of the preceding in a manner consistent with environmental protection and conservation; PRESERVE their flexibility to safeguard the public welfare; PROMOTE sustainable development; STRENGTHEN the development and enforcement of environmental laws and regulations; and PROTECT, enhance and enforce basic workers' rights …”

From reading the aspirational purposes of NAFTA it is apparent that the signatory parties were engaged to accomplish a bevy of goals. However, none may be as important and impactful on trade between the signing parties than the “environmental protection and conservation” language found in the preamble. The negotiating parties were concerned with the impact idiosyncratic environmental regulations would have on NAFTA. However, what drove the inception of NAFTA was the immense political pressure in a monumental election year, specifically in the United States. Thus, as a side agreement the North American Agreement on Environmental Cooperation was conceived contemporaneously with NAFTA.

III. The Purpose & Importance of the NAAEC

Prior to NAFTA being enacted there were major concerns in regard to the enforcement of environmental regulations in the signatory countries, in particular Mexico. The purpose of the NAAEC was to improve the environmental regulations. In order for NAFTA to be effectively ratified by the U.S., Mexico made commitments to upgrade and enforce its environmental laws. Between 1989 and 1991, Mexico would temporarily close over approximately one thousand facilities that were violating environmental laws. Mexico would also expand the annual budget of their National Environmental Agency from $5 million in 1989 to $39 million in 1991. Mexico would also make another monumental good faith gesture by passing a comprehensive set of environmental laws that mirrored the United States’ environmental laws, both in strictness and in letter of the law. Improving environmental regulations allowed foreign investors to invest with more confidence in Mexico, lending credence to the argument that trade is not always bad for the environment.

IV. Domestic Confrontation & Challenges to the Enactment Of NAFTA

Although Mexico demonstrated its willingness to comply with the environmental laws deemed by the United States and Canada to be adequate, the domestic push back was still prevalent in the U.S. The National Wildlife Foundation demonstrated its concerns about NAFTA by releasing a report detailing the potential environmental impact NAFTA would have if enacted in both the U.S. and Mexico. The National Wildlife Foundation tasked the U.S. government to preform a comprehensive assessment of the plan before taking action, specifically referring to the maquiladora zone of the U.S.-Mexico border. The domestic anti-NAFTA contingent in the U.S. led to a landmark case challenging NAFTA negotiations, with the case of Public Citizen v. Office of the United States Trade Representative establishing that the citizens bringing the citizen suit to derail NAFTA did not have the requisite standing to make their claim. Public Citizen was the first judicial challenge to NAFTA negotiations. The citizen public interest group sought relief under the National Environmental Policy Act, which requires public agencies to conduct an environmental impact statement before undertaking any major federal action that could impact the environment. The members of the public interest group claimed they would be injured by weaker environmental standards if NAFTA was enacted. The court concluded that the group did not have the requisite statutory standing to succeed in their claim because “they failed to identify any particular agency action that was the source of their injuries.” The impact of this decision may seem subtle in the grand scheme of things, however, this decision – at least in American jurisprudence – raised the requisite level of standing necessary to challenge any NAFTA action. This decision, to a certain degree, undermined the citizen submission process envisioned by NAFTA drafters.

V. The Ratification & Structure of the NAAEC & the CEC

Once NAFTA was enacted, its environmental side agreement known as the North American Agreement on Environmental Cooperation (“NAAEC”) also became binding upon the parties. The NAAEC consists of seven parts and fifty-one articles, with its main objective being to protect and improve the environment while supporting economic growth and development. Each party to the NAAEC must “periodically prepare and make publically available reports on the state of the environment.” The NAAEC has a focus on openness and public participation, and its provisions require the signatory parties to provide private access to remedies and procedures that will competently investigate alleged violations of environmental laws. The NAAEC also created a unique international institution dubbed the Commission for Environmental Cooperation (“CEC”) devised of three components: a Council; a Secretariat; and a Joint Public Advisory Committee. Lastly, and specifically in regard to the United States and Mexico, the two countries entered into the Border Environment Cooperation Commission (“BECC”). The BECC was entered into alongside NAFTA in 1993, and aimed to “help preserve, protect and enhance the environment of the border region in order to advance the wellbeing of the people of the United States and Mexico.”

VI. The Trans-Pacific Partnership (“TPP”) & Environmental Concerns

The enactment of the Trans-Pacific Partnership is extremely important to NAFTA and the NAAEC because it has the potential to not only erode the two free trade agreements in certain areas but also undermine the CEC to an extent where it renders the Commission essentially inoperative. This proves to be particularly important to natural gas and energy extraction from water bodies such as the Gulf of Mexico and the Great Lakes Region in North America.

The Trans-Pacific Partnership, or “TPP”, is a millennial free trade agreement that has come to fruition over the last decade; its signatory parties include the United States, Canada, and ten other Asia-Pacific countries. This agreement began as a free trade agreement between Singapore, Chile, New Zealand, and Brunei before the U.S. took command in 2009. The TPP aims to eliminate tariffs on goods and services, remove a bevy of non-tariff barriers, and employ uniformity for a wide spectrum of regulations between the signatory countries. Currently, the signatory countries include Australia, Brunei, Singapore, Vietnam, Mexico, New Zealand, Canada, Japan, United States, Peru, Chile, Malaysia, and potentially South Korea.

Importantly, current trade agreements among participating countries – such as NAFTA – “will be reduced to those provisions that do not conflict with the TPP, or that provide greater trade liberalization than the TPP.” Similar to the way NAFTA was treated with domestic push back in the United States, the TPP has shared the same treatment. The Sierra Club, a prominent American environmental group, has voiced its concern about the TPP and what it will do to the environment, specifically when it comes to “fracking.” The Sierra Club claims that the TPP could increase fracking because in order for the U.S. to export natural gas to another country, the Department of Energy (“DOE”) must determine whether those exports are consistent with the public interest but the Department of Energy loses the authority to regulate exports when the U.S. has a free trade agreement that includes a “national treatment for trade in gas” provision as the TPP does. The TPP would then allow for automatic approval of Liquid Natural (LNG) export permits without any review to TPP signatory countries. The chapter of the TPP on environmental regulation will have a severe impact on the energy sector; TPP countries are required to promote cooperative efforts to address energy efficiency and the development of cost-effective, low-emissions technologies and alternative, clean and renewable energy sources. These provisions of the TPP will essentially allow for the elimination of tariffs on key energy exports such as Liquid Natural Gas (LNG). This is of particular concern when realizing that Japan, one of the twelve signatory countries to the TPP, is the world’s largest importers of Liquid Natural Gas (LNG).

Exporting large amounts of natural gas would inevitably increase fracking, a process that dislodges gas deposits from shale rock formations. There are 1.1 million active gas wells in the United States alone, 8 million gallons of water are used per fracking operation, 40,000 gallons of chemicals used per each fracking site, and 600 different chemicals are plunged 10,000 feet into the ground every time hydraulic fracturing is utilized. There are seven major environmental harms that come from fracking: methane gas and other toxic chemicals contaminate nearby groundwater; more than ninety percent of water used in fracking never returns to the surface; the left over water fluid evaporates in the air which is especially harmful to infants; increased Radon concentrations in the air; sand particles are dispersed in the air due to the use of sand and salts in the fracking process; fracking causes earthquakes; and leads to climate change as the methane gas released into the air traps significantly more heat than carbon dioxide.

VII. Fracking & Other Concerns in the Shared Bodies of Water between NAFTA Signatory Countries

In 2013, Mexico changed its constitution and ended a seventy-five year monopoly of the state oil company, PEMEX, and opened its oil and gas fields to foreign investment. The shale formation that made south Texans rich does not stop at the Rio Grande, the formation continues into northern Mexico where it is estimated the largest oil reserves in the world are contained there. Mexico plans to “frack” the area, which raises numerous environmental concerns due to the arid area where the shale gas is found, and the overall water scarcity. This not only raises environmental concerns under NAFTA and the NAAEC but also the TPP. NAFTA has extensive environmental regulations implicit in its provisions, however, the TPP allows for exportation of natural gas to any of its signatory countries taking precedent over any other free trade agreement provisions entered into by its signatory countries. The issue between the United States and Canada is a slightly different one, although fracking has been an occurrence in the Great Lakes since the 1980’s. Waukesha, Wisconsin is currently running out of fresh water, and the city of 70,000 people wants to use Lake Michigan to replenish its diminishing aquifer. This request does not simply impact Wisconsin or the U.S. but also Canada.

Canadian ambassador Gary Doer stated that dispute over water quality and quantity over the region in the next decade will rival that of previous oil disputes between the countries. Water levels in the Great Lakes have fallen tremendously with a negative impact on commerce, as freighters must lighten their loads by 300 tons in order to traverse the body of water. Mr. Doer also pointed out several other areas of potential conflict between the United States and Canada; “ranging from the St. Lawrence Seaway to Lake of the Woods, which borders Ontario, Manitoba and Minnesota and has seen growing concerns about water quality.” Some pundits hold the view that the instance an ounce of water is exported south it will trigger NAFTA. Canada’s resources will then become a matter of U.S. national security. A dispute over the water found in the Great Lakes Region would seriously jeopardize NAFTA and any cordial relationship between the U.S. and Canada as both countries would be acting in a self-interested manner to provide their own citizens with fresh drinking water. This would seriously undermine any trade relationship between each country because it is likely the U.S. and Canada would “retaliate” in a way that would affect the imports and exports of goods. These “retaliations” could come in the form of high tariffs and taxes that would cripple the idea of free trade as envisioned by NAFTA. Also, there could be more stringent restrictions on citizens traveling between the countries, which would hamper tourism and investments in either country’s marketplace. A dispute over something as essential as fresh drinking water could undermine liberalized trade in North America to a point where these two border countries could become completely isolated from one another.

VIII. Public Understanding of NAFTA      

The contingent of citizens who were for NAFTA come from the realm of understanding that liberalized trade allows for less developed countries to establish stronger environmental protection. With free trade comes an influx of technology and services from partnering countries, which can be employed to counter any impacts from higher levels of consumption or production. Some even argue that the liberalization of trade allows for a country to be more efficient with its own comparative advantage resource, which results in a reduction in pollution and waste. It is also argued that with free trade agreements comes more access to information and transparent decision making, which presumably leads to more pressure from the public to maintain environmental quality standards.

There does exist, however, a contingent of the population who oppose the passage of free trade agreements like NAFTA because of negative environmental concerns. This grouping of people are concerned with four effects the liberalization of trade could have on the environment: scale effects; compositional effects; competition effects; and regulatory effects. Scale effects examine “potentially adverse effects of increased economic activity generated by greater levels of trade, especially through increased inputs of natural resources and increased emissions arising from the production of goods and services.” The rationale is that unless these scale effects are mitigated there will be a rapid depletion of non-renewable natural resources and an increase in pollution. Compositional effects, often analyzed alongside scale effects, are concerned with the countries allocation of resources. For example, a country might specialize in pollution activities or sectors. This reallocation of resources might put a tax onus on a country’s environmental infrastructure thus strapping regulatory capacities. Where environmental externalities are established, both scale and compositional effects may exacerbate already “accelerating unsustainable or environmentally damaging practices.” Competition effects “examine the extent to which companies reduce environmental expenditures when exposed to greater international competition in free markets.” When liberalized trade is in effect, countries will likely invite foreign investors and companies to establish business in their country, and in order to incentivize this invitation, governments will relax environmental laws and regulations. The major concern with competition effects is whether by relaxing laws and regulations, does the government create a “pollution haven” for these businesses. Regulatory effects focus on “the extent to which trade rules trump or constrain the development of environmental regulations and market measures.” Generally, these effects focus on technical barriers to trade and sanitary measures, however, more recently these concerns have shifted to rules enabling private investors to challenge government measures as “tantamount to expropriation.”

IX. The CEC’s Impact on the Environment in Signatory Countries

It is not an easy task to assess the effects NAFTA has on the environments of its three signatory countries but looking at certain statistics may shed some light on the issue. For example, since NAFTA has been enacted Mexico’s GDP has shown evidence of increase but the Mexican Ministry of Environment has received little to no funding, and environmental indicators show little improvement. One pervasive criticism of NAFTA and the NAAEC, is the impact – or lack thereof – the CEC has on specific trade interests. The major criticisms come from scholars and advisory committees who feel that the CEC would help to mitigate adverse impacts or at least recommend more sustainable avenues for trade. Most pundits are now calling for the CEC to take up regional solutions to rectify their lackluster influence. However, a litmus test for CEC success is more accurate when taking each country individually.

In Mexico, the CEC is praised to an extent for bringing about transparency in government decision making, while also enjoying more access to information. The praise is attributed to the interaction between the CEC and the Mexican Ministry of Environment, going so far as to attribute the CEC with bringing about the ability to speak freely without an accusation of treason. A well-known CEC submission by Mexican citizens, known as Lake Chapala II, asserted that Mexico was failing to enforce its environmental laws with respect to the Lerma-Chapala-Santiago-Pacifico Basin. The citizen submitters claimed Mexico was failing to enforce the “General Law of Ecological Balance and Environmental Protection leading to serious environmental deterioration and uneven water distribution.” The submission had the effect of revealing that, although citizens were consulted, the results were not made known to them by the Mexican Government. This evidences an absence of tangible or at least digestible governmental action, which of course would be the bedrock of any significant challenge before an administrative court. The CEC citizen submission process helped the maturation of Mexican democracy allowing “Canadians and Americans to become a greater part of Mexico's extended North American community.”

Canada may have the most respect for the CEC, dubbing the international institution as the “NAFTA environmental watchdog.” Canadians may have such a reverence for the CEC because it was conceived at a time when severe budget cuts were happening to Canadian environmental programs. The Canadian government favors the CEC so heavily that they vigorously have defended citizen accusations that the CEC is not enforcing environmental laws as it is supposed to, going as far to even limit the citizen submission process. Canada has found itself calling on the CEC more frequently in present times to promote key environmental issues in the country. For example, the CEC citizen submission known as Pulp Mills alleged that Canada was failing to effectively enforce the pollution prevention provisions of the Fisheries Act and provisions of the Pulp and Paper Effluent Regulations (“PPER”) against pulp and paper mills in Quebec. The Secretariat of the CEC found that Canada’s response called into serious question their compliance with their own environmental laws, and as a result the Secretariat requested from the Canadian government detailed factual information regarding the government’s investigations and inspections in enforcing the PPERs. The impact the CEC has on the United States’ trade and policy is the least out of any signatory country to NAFTA. The size, power, and presence of major domestic environmental regulatory commissions and laws have certainly contributed to this lack of impact. Pundits have also attributed this lack of impact to a sense of arrogance in the U.S., who is far less likely to change its laws or policies to accommodate its neighbors to the north and south. Furthermore, and likely the most prominent deterrent, is the Environmental Protection Agency (“EPA”) which was granted authority over the CEC. The most significant impact attributed to the CEC in the United States is in its environmental assessments of trade.

X. Current Problems with Shared Bodies of Water in North America

NAFTA is unique because all parties concerned are geographical neighbors, making trade feasible, however, this also raises inherent problems with shared resources. The main resource concerned is water, and this is apparent when examining the shale gas expedition Mexico is engaging in, in the Gulf of Mexico. Mexico plans to use an environmentally damaging process known as fracking to release the natural gas found in the Gulf of Mexico’s ocean floor, this should immediately trigger NAFTA, the NAAEC, and the CEC. Mexico’s plan is to extract the natural gas and export it to interested countries, however, this comes at the expense of polluting a shared body of water with the U.S. The fracking process will pollute the Gulf, while benefitting Mexico and harming the U.S. This process should be subject to a CEC assessment as this is the very reason for its establishment, that is namely to prevent environmental harm where it is being jeopardized for economic gain. However, Mexico – like the U.S. and Canada – is a signatory party to the TPP, which diminishes any other free trade agreement previously entered into when in conflict with the TPP. The TPP allows for exportation of natural gas to any of its signatory countries. Therefore, it could be argued by Mexico that despite the environmental impact fracking in the Gulf may have on the environment, it should be allowed without review by the CEC because it is safeguarded by the TPP’s natural gas provision and it allows for a more liberal avenue of trade.

The immediate argument against this is the scale effects this process will have on the Gulf of Mexico, essentially one natural resource is being retrieved at the expense of another. Furthermore, competition effects would be of major concern as NAFTA and the NAAEC specifically impose obligations upon signatories that they will enforce their domestic environmental laws, allowing fracking in the Gulf to continue would provide a safe haven of pollution for businesses involved in fracking. Lastly, and most important to free trade in North America would be the regulatory effects, where allowing fracking to continue in the Gulf would allow trade rules to constrain environmental regulations – defeating the exact purpose of the NAAEC.

The water crisis in the Great Lakes Region has less to do with pollution than the issue in the Gulf, and more to do with resource allocation. Water is becoming scarce in the Great Lakes states as well as across the border in Canada, aside from a public health concern this has also greatly impacted trade in the region. This crisis does not only affect the environment but also the relationship between two signatory parties to NAFTA. Undoubtedly, past decisions to frack the Great Lakes Region has led to the low water quantity and poor water quality. The CEC was not created until 1993 so the thirteen years of environmental abuse the Great Lakes endured cannot be placed at the feet of the CEC, however, the subsequent twenty-three years can be. In defense of the CEC, their jurisdiction is pedestrian when dealing with domestic environmental issues in the U.S. However, since the issue has hindered trade in the region, the CEC should have been a more active participant in mediating the uses of the Great Lakes between the U.S. and Canada.

The governance model for the Great Lakes Region is dictated by a treaty known as the Great Lakes Water Quality Agreement (“GLWQA”). This treaty is an agreement between the U.S. and Canada to restore and protect the Great Lakes, while providing a framework for identifying bi-national priorities and implementing actions that improve water quality. The EPA coordinates U.S. activities under this agreement.

The issue in the Great Lakes is altogether different than the problem in the Gulf of Mexico. The issue here is compositional effects and the allocation of resources, the water found in the Great Lakes Region- that was once being replenished by an aquifer - has dried up due to mismanaged use and environmental damage. The CEC must attempt to intervene and mediate this issue, as towns in Wisconsin need drinking water, which they are attempting to draw from Lake Michigan. This unquestionably would cause major tension between Canada and the U.S., while also impacting NAFTA and the NAAEC in a dramatic fashion.

Unfortunately, the GLWQA significantly diminishes any impact the CEC could have on this issue. The EPA oversees both the GLWQA and the CEC in the United States, this significantly undermines any third-party objectivity and impact the CEC could have on the issue as a mediator. Yes, the CEC could provide transparency on this issue through the citizen submission process - which could effect change in the region - but with problems in achieving standing as seen in Public Citizen, and Canada limiting their own citizen submission process, the CEC is lacking in ability to rectify any problem in the Great Lakes Region.

XI. Shale Gas Fracking in the Gulf: The NAAEC & BECC Versus the TPP

The shale gas exploration in the Gulf will have implications on both free trade in North America and the environment of the region. If Mexico is allowed to frack the sea floor of the Gulf, releasing potentially the largest natural gas storage in the world, this will not only give Mexico a major comparative advantage but in doing so will harm the Gulf states of the U.S. who are already having a water crisis of their own. Although at the expense of the environment, this shale gas fracking will do wonders for Mexico’s short- to medium term GDP and overall economy as this exploration could make them the largest exporters of natural gas in the world, while also bringing foreign investment to the country.

Presumably, if Mexico is allowed to continue fracking in the Gulf of Mexico two of its major importers will be Japan (the largest importer of natural gas in the world) and the United States. This exportation to Japan or the U.S. would be facilitated by provisions of the TPP; giving Mexico the “right” to continue their operation in the Gulf. Although the U.S. would be a likely importer of the natural gas derived from the Gulf, the CEC should attempt to curtail fracking in the Gulf because the environmental harm will be catastrophic to the area, in particular to the American states which border the Gulf.

In order for this to happen the TPP provision that allows the Agreement to take precedent over any other existing free trade agreement, when those ancillary agreements restrict free trade to a greater extent than the TPP, needs to be reconciled. Specifically, the Gulf situation deals with the future exportation of natural gas, which under the BECC would likely be derailed because the exploration does not protect the border region nor protect the people of the U.S. and Mexico.

The BECC has direct implications on this natural gas exploration, and on its face would seem to act in prevention of its continuance. However, this is yet again another side agreement to NAFTA and the NAAEC, which by reading the aforementioned provisions of the TPP would be undermined by the millennial free trade agreement. It seems the existence of one of these free trade agreements means the erosion of the other, the TPP provision on natural gas exportation and the BECC cannot exist harmoniously – one promotes what the other prohibits.

Although environmental regulations and concerns may restrict the liberalization of free trade, they are a necessary “evil” that acts as a check and balance to actions that are purely economic centric. Without the CEC being able to prod signatory countries to enforce their own environmental laws due to the newly enacted TPP, the purpose of its creation will be completely undermined. NAFTA, NAAEC and the BECC are being forced to take a secondary role to the TPP, which signifies the CEC will be relegated to pedestrian status in both enforcement and impact.

XII. Great Lakes Water Crisis: Is the CEC Equipped to Make a Difference?

The crisis in the Great Lakes Region is a crisis that falls directly within the scope of the envisioned purpose of the CEC, unfortunately there is little the CEC can do to effect change in the region. Although the problem here began with domestic decisions by both the U.S. and Canada, it has matriculated into an international problem. The CEC has one “weapon” at its disposal that could possibly alter the bleak fate of the Great Lakes Region – the citizen submission process. This process is limited however because it would take a citizen or a group of citizens with the requisite standing to make an actionable claim against either the U.S. or Canadian governments for failure to enforce their domestic environmental laws in the Region. It has been proven in the past, with well-known submissions like Lake Chapala II and Pulp Mills, that a citizen submission can place government decision making under scrutiny in the court of public opinion. Transparency is the key in this instance, as the more public attention casted on the Region will only order more environmentally friendly practices. The CEC should start immediately by opening public discussions and taking recommendations from citizens from either country, creating an easier access to information and a transparency of government decision making much like it did in Mexico. There are two major obstacles that severely limit the CEC’s impact with this crisis; the first obstacle is the Great Lakes Water Quality Agreement (GLWQA). The CEC and the GLWQA are both overseen by the EPA on the United States side, which severely limits any impact they could have as a third-party objective “watch dog”. This dichotomy undermines the function of the CEC envisioned by the NAFTA drafters. Furthermore, with the GLWQA being the governance model for the Great Lakes Region, there is already an agreed upon authority in place between the two countries, making it more difficult for the CEC to have a seat at the table.    

The second major obstacle to the CEC is the TPP and its natural gas provisions. Energy is a key component in this discussion because the use of water in fracking makes water the catalyst between environmental protections and natural resource extraction; fracking has been going on in the Great Lakes since the 1980’s and is undoubtedly the root of the current problem. Since the inception of the TPP, the major question is what happens to NAFTA, the NAAEC, and the CEC. The TPP calls for exportation of natural gas, without review from any U.S. agency, to any signatory country. This would likely encapsulate the process in which the natural gas is released, namely fracking. If the CEC is displaced not only by a specific regional treaty in the GLWQA, but also a free trade agreement that undermines NAFTA and the NAAEC, then it is unreasonable to believe that the CEC has any power to prevent further environmental degradation in the Great Lakes Region.

XIII. Conclusion

NAFTA has clearly made a positive economic impact in North America but at what cost? NAFTA would have never been ratified if the NAAEC was not contemporaneously conceived alongside of it – this is unequivocal proof that NAFTA drafters feared inevitable environmental degradation. The NAAEC, and subsequently the CEC, were created to mitigate the environmental degradation that accompanies the liberalization of trade; however, the CEC was never given any true arsenal to combat any of these three governments’ failure to enforce their own environmental laws. Transparency in government decision making and informing the court of public opinion has been the CEC’s greatest victory but even that has been undermined with the introduction of the millennial free trade agreement known as the TPP. It is the opinion of this author that the TPP has and will relegate NAFTA, the NAAEC, and by result the CEC to figurehead status – especially in the area of energy, natural resource extraction and exportation which ironically damages the environment the most.

About the Author
Nico-Pingaro

Nico Pingaro is a third year law student at Suffolk University Law School in Boston, Massachusetts. His anticipated date of graduation is May 2016. Nico plans on practicing in the areas of white-collar criminal defense, criminal defense, civil litigation, and civil rights violations.

Article picture: La protection de l'environnement, une démarche holistique.

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