Environmental Impact Study Ordered on NAFTA
July 8,1993
On June 30, U.S. District Judge Charles Richey blocked
the U.S. government from proceeding with the proposed North
American Free Trade Agreement (NAFTA) until an acceptable
Environmental Impact Statement (EIS) is prepared. Under the
direction of U.S. Trade Representative Mickey Kantor, the
Clinton Administration had planned to submit NAFTA to
Congress, for approval by January of 1994. The lawsuit that
resulted in the EIS requirement was filed by the non-profit
citizens' groups Friends of the Earth, Public Citizen, and
Sierra Club.
The U.S. Department of Justice filed an appeal of Judge
Richey's decision on July 2, and a motion to expedite the
appeal was granted on July 8. Kantor has claimed that the
ruling is unconstitutional because it "interferes with the
President's ability to negotiate international trade
agreements." The appeal is now being briefed in the District
of Columbia Circuit Court of Appeals, and the briefing should
be complete by August 10.
Among the arguments being presented by Public Citizen is
an affidavit on food safety issues under NAFTA as proposed.
This affidavit documents possible consequences of adopting
NAFTA's harmonization of standards, including
* the Delaney Clause, an addendum to the Federal Food,
Drug, and Cosmetic Act that prohibits residues of cancer-
causing pesticides if they concentrate in processed food,
could be considered overly restrictive to trade and
overturned;
* bans of specific pesticides could be challenged if
other safety measures to protect workers or consumers were
ruled less restrictive to free trade;
* the implementation of future "Circle of Poison
Prevention" legislation banning the exports of pesticides not
registered for use in the U.S. could be blocked, if it were
determined that less-restrictive means, such as residue
testing of completed products, were adequate to protect
public health;
* state, county, and municipal standards to protect
public health and safety could be pre-empted, if it were
ruled that their implementation would result in a barrier to
free trade under NAFTA.
Independent environmental groups have argued for years
that NAFTA as currently negotiated would fail to uphold U.S.
and state or local laws mandating food safety, air, water,
and soil quality, sustainable resource management, and other
conservation-related standards. Richey expressed similar
concerns in his decision, noting that NAFTA "may worsen the
environmental problems already existing in the United States-
Mexico border area" and that NAFTA could pre-empt state and
federal health and environmental standards, including
tolerances for pesticide residues on food and pollution
control measures.
Business and federal government leaders argue that the
National Environmental Protection Act (NEPA) does not apply
to international treaties such as NAFTA. Richey addressed
this concern in his decision, with a reminder that "the power
to regulate commerce with foreign nations is given to the
Congress under the Constitution."
Members of the U.S. Senate and House remain deeply
divided over NAFTA, even with the "side agreements" presently
being negotiated to address various concerns including
environmental standards, workers' rights, and the regulation
of the amounts of goods imported. These side agreements,
still under development, are not included in the EIS ordered
by Judge Richey.
Attorneys for the plaintiffs anticipate that the appeal
will ask the court to decide whether the office of the U.S.
Trade Representative is an "agency" of the U.S. government,
or whether the Trade Representative serves as a Presidential
advisor. An agency is bound by the Constitutional mandate to
submit regulations of foreign trade to Congressional approval
and all applicable civil laws. A Presidential advisor,
however, serves as an individual member of the executive
branch of government, and so could be considered exempt from
some of the requirements that affect federal agencies.
This federal court decision sets an important precedent
that will require the government to consider environmental,
health, and public safety issues when negotiating or
implementing trade agreements. If the ruling is upheld, it
would mean that all international trade agreements, including
the upcoming Uruguay Round of the General Agreement on
Tariffs and Trade (GATT) would need a completed EIS before
they could be presented to the U.S. Congress.
FOR MORE INFORMATION:
Public Citizen, 215 Pennsylvania Avenue SE, Washington, DC,
20003, USA; phone (202) 546-4996 or (202) 833-3000.
SOURCES:
"Judge in a Ruling that Could Delay Trade Pact," New York
Times, July 1, 1993; "Clinton Administration Blocked on
Trade Pact," San Francisco Examiner, July 1, 1993; press
release, Public CItizen, June 30, 1993; press release,
Citizen's Trade Campaign, June 30, 1993; press release, Fair
Trade Campaign, July 2, 1993; personal communication with
Sierra Club attorney A. Levisohn, July 2, 1993; personal
communication with Public Citizen attorney Patti Goldman,
July 8, 1993.
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