The NAFTA Environmental Side Agreement and the Power to Investigate Violations of Environmental Laws

lapses that exist in the General Agreement on Tariffs and Trade ("GATT") and the United States-Canada Free Trade Agreement ("FTA") 9 through measures such as upward harmonization, sustainable development," requiring parties to enhance their level of envi-This administration firmly believes, and this Report shows, that the NAFTA and its related environmental agreements will establish precedent-setting international mechanisms and national commitments that will make us more effective than ever in protecting the environment of the United States and all of North America. Id.The above referenced Report on Environmental Issues was part of the package of documents transmitted to Congress as additional information for the approval of NAFTA.Letter from William J. Clinton, President of the United States of America, to the Congress of the United States of America (Nov.4, 1993), reprinted in H.R. Doc.No. 160, 103d Cong., Ist Sess. 1 (1993).8. The General Agreement on Tariffs and Trade, opened for signature Oct. 30, 1947, 62 Stat.A3, 55 U.N.T.S 187 [hereinafter GATIT], is a multinational trade agreement between 96 countries.See RALPH H. FOLSOM ET AL., INTERNATIONAL BusINEss TRANSACIIONS 19, 252 (1991).It governs the manner in which countries conduct trade amongst themselves.Id.Originally created to lower tariffs between member nations, it has gone through eight rounds of negotiations.The most recent round, the Uruguay Round, began in 1987 and has focused on eliminating nontariff barriers to trade ("NBTs").Id.NBTs are conditions other than tariffs that can be used to give the goods of one country a greater competitive advantage over the imports of another country.The GATT thus enables Parties to challenge the government subsidies given to another country's producers or a country's inspection standards as nontariff barriers to free trade.Id.Article XX of the GAIT protects, inter alia, national measures for health, safety or the environment from attack as NBTs.Id.The national measure must be legitimately created to attain its health or environmental objective; it will be invalidated if it is a disguised barrier to trade.Id.For example, Thailand was unable to exclude the sale of U.S. cigarettes while permitting the sale of domestic cigarettes.Hofgard, supra note 5, at 639.Thailand alleged its need to address health problems as grounds for the attempted exclusion, however, the ban, "which applied unequal standards to domestic products and imports," was viewed as a violation of the GAT.Id.It was a "blatant attempt[] to protect domestic industry from import competition disguised as [an] Article XX measure[]."Id. 9.The United States-Canada Free Trade Agreement is the precursor to the NAFTA which reduced tariffs on approximately 400 products traded between the United States and Canada.United States-Canada Free Trade Agreement, June 1, 1988, H.R. Doc.No. 100-216, 100th Cong., 2d Sess.297 (1988) [hereinafter FTA].The FTA is suspended by the implementation of NAFTA.H.R. REP.No. 361(I), 103d Cong., 1st Sess.§ 107 (1993).10.The harmonization of laws entails that each Party's laws and technical standards conform with the other Parties' laws.Through a principle labelled upward harmonization, the NAFTA provides that a Party need not abandon its tougher standard in order to conform with the other Parties.Instead the Parties are encouraged to enhance their levels of safety and environmental protection.NAFTA, supra note 1, art.906(l), at 387; see also REPORT ON ENVIRONMENTAL ISSUES, supra note 7, at 8; Duffy, supra note 4, at 587-89.For a critique of the lowest common denominator problem see Hofgard, supra note 5, at 651; Michael Hart, Dialogue of the Deaf or Scope for Cooperation?, 18 CAN.U.S. LJ.207, 223-24 (1992).11. "[Tlhe concept of sustainable development discourages the use of non-renewable resources and activities that adversely affect the quality of life for the world's future gener-19941