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Volume 23, Issue 12 — December 1993


The Environmental Side Agreement to the North American Free Trade Agreement: Background and Analysis

by James P. Cargas and John J. Kim

Editors' Summary: NAFTA is one of the most comprehensive free trade agreements in history. Its negotiation coincided with a growing controversy about the relationship between trade and environmental policies. As a result, NAFTA contains unprecedented provisions to maintain and enhance health, safety, and environmental protection in nations that are party to the pact. In response to pressure for enhanced environmental protections, the United States, Mexico, and Canada (the Parties) negotiated the North American Agreement on Environmental Cooperation (the Environmental Side Agreement), which strikes a balance between the need to respect the rights of governments to exercise discretion in enforcing their laws and to provide a mechanism for addressing a Party's persistent pattern of failure to enforce its environmental laws.

In this Article, the authors identify the major issues that animate the debate about trade and the environment. The authors put NAFTA in context by describing the background of negotiations and the "fast track" statutory authority that governs the negotiation and approval process. Next, they summarize NAFTA's environmentally related provisions, including those governing technical standards, sanitary and phytosanitary measures, and dispute resolution procedures. The authors then examine the development of the Environmental Side Agreement, which includes provisions to enable Parties to challenge failures of other Parties to enforce environmental laws effectively. The authors review the Environmental Side Agreement's terms, including the commitments and obligations of the Parties, and provisions for the creation of new institutions to harmonize the Parties' environmental laws, foster environmental cooperation, document facts behind complaints of lax environmental enforcement, resolve disputes, and sanction noncompliance. The authors conclude that NAFTA and the Environmental Side Agreement demonstrate that trade and environmental concerns can be integrated in a mutually complementary manner.

Mixed Waste: A Way to Solve the Quandary

by Michael L. Goo and Anthony J. Thompson

Editors' Summary: Currently, mixed radioactive/hazardous waste is regulated by both the NRC and DOE under the Atomic Energy Act (AEA) and by EPA under RCRA. Despite the agencies' numerous and elaborate attempts to minimize and avoid conflicts between these two regulatory schemes, a fundamental conflict remains between the approaches that the two statutes take to regulating waste.

After reviewing the disparate mixed-waste regulatory schemes of the AEA and RCRA, the authors outline some of the key inconsistencies between hazardous and radioactive waste management and disposal requirements under the Acts, and examine the effect these conflicts have had on the existing mixed-waste system. They conclude that the dual regulation of mixed waste provides no discernible benefit to human health or the environment. In response to the apparent and unabated problems of the current system, which derive from the NRC's, DOE's, and EPA's claims to common jurisdiction, the authors suggest the implementation of a mixed-waste regulatory scheme based on the recognition of the physical properties of the materials in question. They maintain that there are primarily two types of mixed waste — waste that is predominately radioactively hazardous and waste that is predominately chemically hazardous — and that regulatory requirements should reflect these differences. Under their approach, RCRA's regulatory scheme would apply to a mixed waste that contains low levels of radioactivity and is predominately chemically hazardous, whereas the AEA's regulatory requirements would control the management of a mixed waste that contains any significant amount of radioactivity. The authors review as models for their recommended approach, the cooperative schemes that the NRC and EPA have developed under both the AEA, as amended by the Uranium Mill Tailings and Radiation Control Act, and the Nuclear Waste Policy Act, in regulating, respectively, uranium mill tailings and high-level waste at sites that will ultimately be owned in perpetuity by the DOE. The fact that the approach the authors recommend has worked for mill tailings for over a decade leads them to conclude that a similar program can also be successfully applied to the mixed-waste crisis. They also conclude, however, that until key regulators recognize and accept that the current mixed-waste crisis stems not from the unique physical properties of the waste but from their own jurisdictional attitudes, the mixed-waste regulatory system can only become more intractable and unworkable.


Exporting Environmental Protection

by Ruth Greenspan Bell

To help create a working system of environmental regulation and enforcement in Central and Eastern Europe and the former Soviet Union ("the region"), those engaged in U.S. environmental assistance efforts must be sensitive to the institutional and cultural realities of the region. Most governments there have little experience in effective environmental protection, despite the long-standing existence of laws and some formal institutions which address environmental issues. For most of these countries, environmental protection has a relatively low priority compared to pressing economic demands.1 Additionally, although the experience gained in building environmental protection and enforcement institutions in the United States has much to offer the region, efforts to transplant concepts and institutions that have worked in the United States cannot succeed without consideration of the unique culture, experiences, and perceptions of the people of the region.

Conditions that have provided fertile ground for environmental protection in the United States include cultural attitudes shaped by affluence, established free market institutions, heavily developed communication and other infrastructures, private industry sectors that seek profits from managing pollution and waste disposal, and industries that have learned to incorporate environmental considerations into their businesses. Such advantages are rare in Central and Eastern Europe and are largely absent in the former Soviet Union. Environmental professionals participating in U.S. assistance efforts, however, sometimes fail to notice this difference2 or to consider how it affects public acceptance of environmental programs.3