Countries in the Americas can act to protect the environment without the United States
The Conversation – Articles (CA) · 7 days ago
by Alexandra R Harrington, Visiting Scholar, McGill University Faculty of Law, Centre for Human Rights and Legal Pluralism, McGill
The United States federal government
recently revoked a landmark scientific ruling by the Environmental Protection Agency that stated greenhouse gases are a threat to public health.
U.S. President Donald Trump said the ruling was a “disasterous” policy that “severely damaged the American auto industry and massively drove up prices for American consumers.”
The revocation is the latest move by a U.S. administration that has framed action to tackle climate change as hampering the U.S. economy. In this context, trade has become a buzzword over the past year. With the focus on tariffs, it is easy to overlook the impacts of U.S. trade policies on the environment and the organizations tasked with bridging the two.
My areas of research focus on international law, specifically environmental law and the intersections between trade and international organizations.
In January, Trump indicated that the
U.S. will withdraw from the NAFTA/CUSMA-linked
Commission on Environmental Cooperation and the process for dealing with claims that Canada, Mexico or the United States are shirking their environmental commitments —
the submission on enforcement matters (SEM) process.
The U.S. withdrawal highlights the importance of these issues at the regional level. It also provides an opportunity for other countries in the Americas to take action on climate change without the United States.
Read more:
Three ways Canada can navigate an increasingly erratic and belligerent United StatesWhat are SEMs?
In 1994, Canada, Mexico and the U.S. adopted the
North American Free Trade Agreement (NAFTA) along with two side agreements. One of these was the
North American Agreement on Environmental Cooperation (NAAEC), establishing the Commission on Environmental Cooperation and the SEM process.
When NAFTA was renegotiated in 2018, the SEM process was incorporated into the
Canada-United States-Mexico Agreement (CUSMA), and the NAAEC was replaced by the
Agreement on Environmental Cooperation.
The Commission on Environmental Cooperation is charged with overseeing this agreement, while SEM is the process for dealing with claims that Canada, Mexico or the U.S. are not living up to their environmental commitments.
That process can lead to the creation of a “factual record”; an investigative report detailing the commission’s findings. Although not a legal decision, the factual record is a powerful evidentiary and fact-finding tool to generate reforms.
Reporting on derelict environmental commitments through the SEM process remains a vital tool. It has provided important factual records on leakage from
Alberta tailings ponds and failures to protect species such as the
loggerhead turtle,
North Atlantic right whale and
vaquita porpoise, among other issues.
The SEM model was replicated in U.S. trade agreements with Central American states, Colombia, Panama and Peru. In each of these agreements, however, the U.S. was exempted from SEM jurisdiction because it was already under the jurisdiction of CUSMA.
Given the U.S. decision not to provide the core funding needed for these entities to function, it would be possible for the Central American states, as well as Colombia, Panama and Peru, to enter into a separate agreement regarding SEMs. The same would be true for Canada and Mexico under CUSMA.
A new generation of environmental accountability
The U.S. was a driving influence in the creation of the SEM process. And the U.S. retreat could be accepted as a way to end systems that have brought significant issues in national enforcement of environment law to light.
Examples include the failure to properly monitor implementation of environmental laws and standards, ranging from those intended to protect communities living near pollution discharge points to those intended to protect species on the edge of extinction.
Other countries in the Americas now have an opportunity to create a larger environmental oversight mechanism. This would demonstrate their ability to step into the governance gap left by the U.S. and generate stronger regional alliances. This would not only benefit the Americas. It would also provide a model for other international organizations as they face the loss of a powerful member state.
This alternative would entail creating a new SEM process, along with an equivalent to the Commission on Environmental Cooperation to oversee it, linking all members of the impacted agreements and any other interested countries in the Americas. The most comprehensive way to do this would be to negotiate a new multilateral agreement similar to current regional agreements but without the emphasis being on trade.
Similar to the current SEM process, individuals and groups could make submissions claiming that a member state is failing to fulfill its environmental obligations. Once a submission is received, the SEM unit would determine whether it meets basic requirements. If so, the submission would move on and, ultimately, a factual record could be developed.
This alternative framework would demonstrate the collective commitment of countries across the Americas to environmental protection. It would reflect the reality that the Americas face significant shared environmental threats that are also increasingly threats to national security and economic interests.
Such an agreement could mainstream the SEM process, building on provisions established in NAFTA, NAAEC and CUSMA. Existing regional offices could be maintained to ensure strong connections on the ground, and the procedures used could largely be unchanged.
At a time when many countries seem to be focusing on narrow self-interest and military spending rather than the environment, this is a challenging proposition.
However, integrating the SEM process into a new, broader, collective effort would allow American countries to assert hemispheric leadership without having to reinvent the wheel. It would also allow citizens the continued ability to bring claims and to have some accountability.
As the U.S. government withdraws from its international obligations, reconceiving international organizations that are under existential threat is now a necessity. Reconfiguring SEMs throughout the Americas would serve as a model for other organizations and as a way of shifting international organizations to be less dependent on any one state.
Alexandra R Harrington does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.
