Although the Trump Administration is no friend of environmental groups, the current U.S. Trade Representative has, as we have noted before, enforced environmental provisions under the U.S-Peru trade agreement. In that context, it is not as surprising as it might otherwise be that the NAFTA 2.0 environmental chapter contains new, positive provisions.
However, on the whole, the chapter is more of a missed opportunity to make meaningful progress on addressing environmental issues involving the global commons. This is particularly true given the Trudeau government’s emphasis on its “progressive” trade agenda. In many respects, Canadians and Europeans are no more progressive on trade than House Republicans such as outgoing Speaker Ryan, and perhaps less so. Whereas Speaker Ryan has consistently supported the 2007 bipartisan agreement (“May 10th”) to have enforceable environmental obligations in trade agreements, Canadians and Europeans only appear inclined to do so when Americans are at the negotiating table.
Similar to labor, May 10th requires environmental obligations to be fully enforceable and prohibits parties from weakening their laws to attract trade or investment. It also requires parties to adopt, maintain, and implement laws and regulations implementing seven multilateral environmental agreements (MEAs).
A lengthier discussion of these issues, and the environment chapter, can be found here.
- Fisheries subsidies (Article 24.20). This is a provision in TPP and addresses an important contributor to the problem of overfishing: subsidies. The provision prohibits certain subsidies.
- Marine litter (Article 24.12). This is a new provision, relating to a problem of growing significance, especially as it relates to plastics (including microplastics). The provision requires parties to take measures to prevent and reduce marine litter.
- Illegal, Unreported, and Unregulated (IUU) Fishing (Article 24.21). This is a provision in TPP and requires parties to take certain steps to address IUU fishing, which is also an important contributor to overfishing.
- Whaling (Article 24.19.2). One of the May 10th MEAs that was missing from TPP was the Whaling Convention (or any comparable prohibition on whaling). This chapter does include a prohibition on killing great whales, with exceptions as permitted by multilateral environmental agreements.
What’s Not Good
- Climate change. Having withdrawn from the Paris Convention, this Administration was never going to include provisions on climate change in NAFTA 2.0. Nevertheless, it cannot be seen as anything but an omission to have an environment chapter in a trade agreement that does not address climate change. At the same time, we should not assume that other countries are actively using trade agreements to address this problem. They are not.
- Unnecessarily weak language on illegal trafficking in wildlife and flora (Article 24.22). TPP contained new language obliging parties to “combat” illegal take and trade. This should be considered a step forward, and it is. But it is more of a missed opportunity. Illegal take and trade is depleting flora and fauna all over the world, which is reason enough to address it; but the proceeds are also used to fund terrorists. This is not hyperbole: it’s a concern for Interpol, which considers it a national – a global — security issue. The United States already prohibits illegal take and trade, and thus the lack of ambition here lies elsewhere.
- Watered down May 10thMEAs. The only MEA that is embodied in the chapter as provided in May 10th is CITES. In other cases, the subject matter of the MEAs is reflected in the agreement, but the obligation is written differently from May 10th. That isn’t necessarily a problem if the provisions are equally strong. That is true of the marine pollution agreement, for example. But it isn’t true of the Montreal Protocol or the two fisheries management conventions.
- Enforceability. Unlike other chapters, environment (and labor) chapters are only enforceable if the breach occurs in a manner affecting trade or investment. This conditionality does not exist in other chapters, even where the provisions don’t necessarily involve a cross-border transaction.
- Deletion of Article 104. Article 104 of the original NAFTA provided that, to the extent NAFTA was inconsistent with certain environmental agreements, the environmental agreements prevailed. That provision has been deleted.