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[This essay is part of a detailed examination of the effectiveness of NAFTA’s Commission on Environmental Cooperation in Mexico conducted by the America’s Program of the International Relations Center. The entire report was edited by Laura Carlsen and Talli Nauman and can be read online. AC/JSC]
To assure passage of the North American Free Trade Agreement (NAFTA) in the U.S. Congress it was necessary to “add on” two issues that the governments of Mexico, Canada, and the United States considered of little relevance to the new neoliberal trade model they were establishing. These were the side agreements on labor and environment.
Following formal negotiations on the North American Free Trade Agreement, a new process was opened up to discuss and elaborate on the side agreements. Labor unions, environmentalists, and free-trade critics played a decisive role during this period.
The environmental side agreement was called the North American Agreement on Environmental Cooperation (NAAEC) and was signed in 1993. In discussions on the creation of the parallel agreement, the Mexican government never liked the idea of a mechanism that would oversee environmental protection and compliance with environmental legislation. Its main argument against the agreement was “national sovereignty.” The real concern was clearly to avoid a supranational institution that could place concern for the richness and balance of nature above investment and trade flows.
The North American Commission on Environmental Cooperation (CEC) was created to assure compliance with NAAEC. The CEC is a trinational commission dedicated to actions for the defense, knowledge, promotion, and care of the environment. However, it has a weak point from the perspective of Mexican civil society and nongovernmental organizations: it is strictly a consulting body with no binding powers to resolve issues. We have pointed out that limitation many times in our work on the Commission, and environmental organizations have been explicit that recommendations and advice are not great mechanisms for pressuring the government and environmental authorities of our country. In fact, this weakness is really a strong point for the government and industrial sectors of Mexico, since they only receive recommendations from the CEC to improve environmental protection but are not obliged to carry out the legal, administrative, and technological reforms necessary to carry them out.
In this sense, our evaluation is that the non-binding character of the CEC could only work if the trade and investment features of NAFTA were not implemented above environmental protection. This is not the case.
The CEC and Information on Toxic Substances
The Environmental Program of Common Frontiers has participated in various CEC projects, all on pollutants. Therefore, we will comment on the role of the CEC in this area.
As regards pollutants, the CEC has been:
* A crucial conduit for encouraging a Register of Emissions and Pollutant Transfer in Mexico (RETC), through which the industry must report and make public emissions of pollutants. Moreover, this is now done through criteria comparable to that of other registers in the United States and Canada .
* A forum to address concerns with monitoring the transboundary movement of hazardous wastes;
* A promoter of research and studies that allow us to evaluate the impacts of trade on the environment;
* A key agent in the attempt to implement environmental legislation on toxics.
To carry out these tasks, the CEC has created mechanisms to develop collaboration between nongovernmental organizations, industry, and government. It has also included the participation of academics and other sectors. This process, in particular, has been long and difficult but some progress has been made. The special consultative groups for different programs of the Commission are an example.
The CEC has also taught us to understand environmental information on pollutants from a broader and more integral perspective, which has enabled us to think about the problem on a continent-wide basis and thus promote a real exchange of information and experience among the three countries.
The “Council Resolutions” of the Commission are trinational declarations and commitments in favor of environmental measures in the three countries. These have been very useful in Mexico, since they are frequently cited by environmental organizations to demand that the government and the Ministry of the Environment comply with their legal obligations. A useful additional step would be if some day industry in all three countries also joined in signing trinational commitments of environmental cooperation and protection.
The Joint Public Advisory Committee (JPAC) has been doing important work on toxics. The JPAC has elaborated recommendations for the development of an emissions register, adequate monitoring and management of hazardous wastes, and revision of Chapter 11 of NAFTA, among other things. But from the perspective of a Mexican nongovernmental organization there is a limitation to this committee regarding the top-down way that it selects its members. Members of the committee are chosen by the governments of each country without any mechanisms of consultation or of systematically identifying the most sensitive environmental problems of the moment. This often blocks the direct participation of environmental organizations that are more critical of the work of the Ministry of the Environment. A more even representation is necessary because the work the committee does is important and necessary for the CEC to maintain a link to the environmental reality and politics of each country.
While the JPAC appears to be achieving its main objective of guaranteeing citizen participation, it should not forget that its task goes beyond opening up citizen participation. The Committee must also work to make sure that these civil society voices are heard beyond the policies and programs of the CEC, and that way the JPAC can present issues that currently have great social and environmental importance.
Structural Problems in Mexico
That Affect Environmental Protection and Improvement
Citizen submissions on the implementation of environmental legislation:
Although the citizen submissions are designed to strengthen implementation of national environmental legislation, they are seriously hampered by structural problems in the country that impede and/or affect protection of the environment and human health.
The opportunity to present a complaint or citizen denouncement when the government does not carry out its environmental legislation is a positive mechanism for the protection of the environment and the health of communities. But in Mexico, some cases denounced by the communities have not been deemed sufficiently serious by the CEC to compile a Factual Record. This has been the case with Cytrar other several other cases of hazardous waste pollution. The problem is that hard evidence is often difficult to present due to the lack of environmental information, or access to when it exists. Another complicating factor is that the laws themselves are often unclear in implementation and management and the government tends to protect industry. Only a single case–the case of lead pollution in Metales y Derivados in Tijuana, Baja California–has passed from a citizen submission to the formulation of a factual record.
North American Fund for Environmental Cooperation:
Recent cutbacks in CEC funding have directly affected nongovernmental organizations. The dissolution of the North American Fund for Environmental Cooperation (NAFEC) that allowed nearly ten years of support to community projects for environmental protection projects was particularly damaging. Also, cutbacks in funding for nongovernmental participation in follow-up work on special programs of the Commission have limited their capacity to monitor the work of the CEC. Further cutbacks have affected civil society attendance at NGO-CEC meetings on issues of trade, environment and sustainable development and in general its capacity to further development participation, research and implementation.
Mexico and the Objectives of the CEC: Two Tasks to Conciliate
The CEC “was established to address regional environmental concerns, help prevent potential trade and environmental conflicts, and to promote the effective enforcement of environmental law. The Agreement complements the environmental provisions of the North American Free Trade Agreement (NAFTA).1.”
Although these objectives are very important for watching that free trade dos not harm the environment, it is the governments of the NAFTA countries that have the last word. In general terms, and this is borne out in the experience of toxics, Mexican environmental polices are still inadequate. We do not have a complete emissions register that allows us to know what types and quantities of substances an industry emits and transfers to the environment through the air, water, or soil; there is no reliable inventory of the hazardous wastes generated in the country; there is no infrastructure for monitoring the transboundary movement of hazardous wastes; there are no integral management plans to encourage minimal waste generation; the country lacks a culture of the right to information; infrastructure for the environmental monitoring of companies is nonexistent; there are no environmental policies that stimulate an increase in the efficiency of production to move toward cleaner production; and there has been no follow-up on the Basilea Convention on the Transborder Movement of Dangerous Wastes and their Elimination. In this context, Mexico’s environmental policy is not based on reality, since it is not based on facts and real measures.
After ten years of participation in the CEC, has the Mexican government achieved compliance with the NAAEC? In the case of hazardous wastes, we can say that it has still not complied. This is not necessarily a fault of the programs and tasks of the CEC, but of the grave asymmetries that Mexico faces. This non-compliance makes articulated development of environmental policy to be established in Mexico, Canada, and the United States nearly impossible.
In the case of hazardous wastes, there are three fundamental problems that hinder the work of the CEC on the issue and that thwart programs of elimination, reduction, monitoring, and waste management: 1) differing legislation between the three countries. For example, a substance or material could be a hazardous waste for one country and not for the other or others; 2) the precarious environmental policies of the Mexican government in regards to hazardous wastes. The lack of any infrastructure that allows us to generate reliable information on current inventories on the municipal, state, and federal levels of government impedes establishing comparability of facts and precise tracing of wastes; and 3) the absence of strict environmental legislation (and/or its implementation) that often impedes the protection of the environment from commercial and industrial activity.
Although there has been some follow-up on some of the NAAEC objectives, the structural problem of the asymmetries between the three countries must be resolved before making any real progress toward sustainable development. Mexico has entered a trade race, and it has had severe negative impacts on the environment.
President Fox appears to have little interest in the issue. He waited nearly two years to sign the rule calling for the Register of Emissions and Pollutant Transfer into law, making it finally possible to operate an obligatory register throughout the country. Other actions reflect this disinterest as well: the new law on hazardous wastes was delayed, policies to actively avoid using up non-renewable resources have been shelved, and when the president named a new Secretary of the Environment he chose a person openly committed to the industrial interests of the country who immediately surrounded himself with advisers who had served as upper-level executives in the Chamber of Industry and Cemex cement company.
Furthermore, in March the federal government declared a one-year moratorium on environmental regulations to “unleash investment and generate employment.” This decree has held back a series of initiatives, laws, and regulations on environmental protection. In publicizing the measure, the Mexican president referred to the regulatory decree as part of a strategy to reactivate the economy and stated, “No more unnecessary, onerous, disordered regulation that distracts the entrepreneur, the investor, from his central task of innovating, creating, taking risks, propitiating prosperity, and generating employment and growth.”2
With this, the Mexican government left the door open to any type of investment, regardless of whether it hurts the environment, the labor conditions of the workers, or the health of communities. It is evident that the government, lacking an integral vision of development, is solely interested in attracting industrial investment and capital–a prime objective of NAFTA–rather than to work toward a more democratic and sustainable future for Mexico.
MARISA JACOTT runs the Environmental Program of Common Borders (Programa Ambiental de Fronteras Comunes) and is a member of the Consulting Group of the Emissions Register Project sponsored by the Commission on Environmental Cooperation and of the Technical Consulting Committee of the Emissions Register in Mexico, under the auspices of the Ministry of the Environment and Natural Resources.