Through the Looking Glass: Using Trade Agreements to Enforce Environmental Law

Abstract

The United States free trade agreements with other North and Central American countries contain provisions allowing citizen submissions that may be a useful tool for advocates seeking to improve enforcement of U.S. environmental laws. The Dominican Republic-Central America-U.S. Free Trade Agreement (CAFTA-DR) and the North American Agreement on Environmental Cooperation (NAAEC, a side agreement to NAFTA) both require any party to the agreements to “effectively enforce its environmental laws.” When the United States fails to enforce its own laws, it faces private action by U.S., Mexican, and Canadian citizens under NAAEC, and from citizens of other North and Central American countries under CAFTA-DR. This article provides an overview of the submission mechanisms in both agreements, reviews past private enforcement actions, and then reviews the challenges and advantages to futures use of these agreements to address U.S. failures in environmental protection.

Note: “©2016. Published in The Business Lawyer, Vol. 71, No. 4, Fall 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.”

Keywords: Citizen Suit, Environmental Law, NAFTA, NAAEC, CAFTA