NAFTA's Dimming Light

Amid the political maneuverings of NAFTA's proponents and detractors on both sides of the border, an important question remains unanswered regarding what NAFTA signatories will do about a controversial environmental report presently under their consideration. The report details an investigation into Canada's continuing failure to stop toxic PCBs from flowing into the St. Lawrence River from the Technoparc landfill in Montreal.

Can Mexico, the United States -- and even Canada -- be counted on to make the report public or will they side with some Canadian officials who prefer these matters remain secret? Their response will test the fundamentals of environmental protections in North America, provisions at the very center of President Clinton's decision in 1993 to sign NAFTA and the reason he called the agreement "a force for social progress."

Canada, Mexico and the United States commissioned the fact-finding report in response to an environmental complaint brought to the Commission for Environmental Cooperation (CEC), the formal oversight body created under a side agreement to NAFTA to monitor environmental enforcement in North America. The Montreal-based CEC has no formal enforcement authority; its primary role is "bringing the facts to light" to shame offending nations into environmental improvement. This light shines brightest when the CEC prepares a "factual record" -- a lengthy investigative report addressing citizen allegations of failure in environmental enforcement.

Following a two-year investigation and a refusal by the Canadian government to take legal action into the dangerous toxins discharging into the St. Lawrence River, environmental groups filed their complaint with the CEC in 2003. The complaint included evidence of PCBs discharging into the St. Lawrence River at 8.5 million times the Canadian guideline for protection of fish habitat. In 2004, the CEC agreed to investigate, as this was not just a Canadian problem but also a bi-national problem where Americans and Canadians share these waters with millions of their citizens.

During the investigation the CEC asked and answered uncomfortable questions for the Canadian government. Why is the Canadian government allowing PCBs to continue discharging into the St. Lawrence River? Why is the Canadian government not enforcing its environmental laws? Where is the pollution coming from and who is responsible for controlling it? The report, on a river plagued with PCB contamination and in a country currently pursuing amendments to the environmental laws it is accused of not enforcing, could prove quite explosive.

Even as the contamination remains so insidious it is visible from the shore, all indications are that Canadian political forces do not support public release of the CEC report. They may even try to persuade the U.S. and Mexico to suppress it.

We have seen such attempts before by other parties to NAFTA. In January of 2007, environmental groups learned that the U.S. government was working furiously to sidetrack a petition challenging the Bush administration's failure to enforce the U.S. Clean Water Act concerning mercury emissions from coal fired power plants. Officials with the U.S. State Department and the White House Council on Environmental Quality were secretly lobbying Canada and Mexico to vote down the factual record. These backroom efforts to improperly influence CEC voting included attempts to trade "no" votes with the Mexican government which was facing a similar CEC investigation into its environmental failures.

This bullying behavior by the U.S. is being duplicated in Canada. For nearly a year, the Montreal Technoparc factual record sat collecting dust, the Secretariat's office reportedly afraid to sign off on the final investigation after receiving a threatening letter from a Canadian Deputy Minister demanding that CEC factual records reflect positions more in tune with the federal government's views. The intimidation closed with the official saying, "I wish to draw your attention to the point that the integrity of the citizen submission process, and its ultimate success, rests on the confidence it garners not only with submitters, but also with the parties," referring to the three NAFTA governments.

Such browbeating by the Canadian government and the U.S. State Department not only undermines the public participation provisions of the NAFTA side accord, but also calls into question the validity of the CEC's goals. If self-interested government officials can simply trade on political favors to stymie legitimate concerns about environmental enforcement, then the environmental protections contained in free trade pacts like NAFTA have no meaning.

Indeed, should Canada and either the United States or Mexico vote not to release the Technoparc investigative report, it would be an unprecedented disaster for environmental review. The CEC could find itself paralyzed by the very politics that are supposed to be anathema to the process. Instead of fulfilling President Clinton's vision, NAFTA could become just the opposite: a "farce" for social progress.

If NAFTA -- and other trade agreements -- are going to succeed, the submission process must be followed and investigations must see the light of day. In truth, Canadian and other governments must support, not undermine, the submission process -- and allow a beacon to shine bright on environmental injustice.

Steve Fleischli is President of Waterkeeper Alliance, an environmental organization with 177 member programs across 16 countries, including Canada, Mexico and the United States.