The environmental provisions in the North American Free Trade Agreement (“NAFTA”) and its side agreements establish an international regime–that is, a set of “principles, norms, rules, and decision-making procedures around which actor expectations converge in a given issue-area.” The most obvious goal of the regime is to address environmental objections to increased economic integration, but the attention given to that purpose should not obscure two other important ways of understanding it: it is also an extension of earlier efforts to reduce transboundary environmental harm in North America and a path-breaking attempt to promote sustainable development throughout the continent, particularly in Mexico.
The NAFTA environmental regime is now fifteen years old, and its performance has been the subject of many detailed studies. As a result, it is possible to draw conclusions about how well it has succeeded at fulfilling each of these three purposes. As an attempt to solve “trade-and-environment” problems, it is undoubtedly a failure. From that perspective, it either addresses baseless concerns or is ineffective. As an effort to tackle transboundary environmental harm, the NAFTA regime has had mixed results. It has helped to decrease transboundary water pollution along the U.S.-Mexico border but otherwise has added little to the many bilateral institutions already directed at border environmental issues. The regime has had its greatest success as a regional effort to promote sustainable development. It has contributed to stronger environmental protections, especially in Mexico. Even in this light, however, its achievements appear minor when compared to the scale of the problems it faces.
The idea of including environmental elements in a trade agreement was innovative when NAFTA was negotiated in the early 1990s, but it has since become a cornerstone of U.S. trade policy. Each of the twelve U.S. free trade agreements negotiated since NAFTA includes environmental provisions. In effect, the United States requires its trading partners to accept an embedded environmental regime as a condition to entering into a free trade agreement.
The post-NAFTA environmental provisions closely resemble one another, so much so that they were evidently negotiated on the basis of a common template. This template varies in important respects from the original NAFTA regime. One might expect that the changes reflect the lessons learned from experience with that regime, especially since the post-NAFTA trade agreements were negotiated years after NAFTA and its side agreements entered into force. that The United States could have negotiated new agreements dropped the provisions aimed at baseless trade-and-environment concerns, for example, and strengthened the elements promoting sustainable development. Instead of improving on the original, however, the United States has done just the opposite. The post-NAFTA agreements copy elements from the NAFTA agreements that have proven ineffective, and they fail to include, much less strengthen, more promising provisions. As a result, the environmental provisions in the later agreements are weaker than the NAFTA environmental regime, and they are far weaker than they could have been had its lessons been taken into account.
