20 Years Later, Environmentalists Still Unhappy With NAFTA

In eastern Tijuana, near warehouses and factories manufacturing televisions and medical supplies to be shipped abroad, there are four concrete basketball courts. They’re sometimes used for tournaments, but are otherwise usually quiet.

The edge of a sprawling industrial complex seems a strange place for the government-owned courts, but as it turns out, there weren’t many options for what to put there. Buried deep beneath are tons of lead and other toxic material, entombed in a concrete cell and layers of thick protective plastic.

More intensive construction on the site might risk disturbing the hazardous waste.

The waste was left there by an American battery recycling plant called Metales y Derivados that was shut down in the mid-90s. Its owner fled to San Diego without cleaning it up. It took a coalition of environmental activists and neighbors ten years to get the government to clean the site. Today, it is exhibit A for environmentalists who oppose the North American Free Trade Agreement, which opened the door for rapid cross-border industrialization with only limited provisions for environmental protection.

NAFTA didn’t establish any multinational environmental regulations when it was signed 20 years ago. It created no tri-national environmental police. It implemented no fines for polluters.

What it did create was the Commission for Environmental Cooperation, based in Canada. It’s the body that accepts complaints from citizens of the U.S., Mexico or Canada who believe their government is not enforcing environmental laws.

The commission investigates those complaints, and if it determines a serious environmental hazard is going unaddressed, it issues a report called a factual record.

Citizens or nonprofits can then use that factual record as an advocacy tool to try to get the site they’re concerned about cleaned up, both through private and governmental efforts. The commission works with the governments of all three countries to encourage enforcement and develop other environmental programs, but it does not itself have enforcement authority.

“That’s really nothing in terms of establishing environmental standards,” said Diane Takvorian, who directs the Environmental Health Coalition, the San Diego nonprofit that led the charge to clean up the Metales y Derivados site.

In the Metales y Derivados case, the factual record was ultimately an important tool for the Environmental Health Coalition, because it served as a third-party affirmation that the group and community’s concerns were valid and that the site posed a grave risk to people. But the report took four years to complete, and Takvorian, who also serves as an adviser to the Commission for Environmental Cooperation, said that was one of the shorter ones.

“There are others that have taken five, six years. Some have taken up to eight years and are still languishing.”

Waiting that long for the commission to complete its investigation, she said, can render the commission’s determination effectively pointless if toxic waste is allowed to fester and contaminate surrounding communities during all that time.

This summer, at a conference in New Orleans, the Commission for Environmental Cooperation adopted a new timeline for responding to citizen complaints of environmental contamination. Its goal is now to fully respond within two years of a complaint being filed.

The delays in closing the Metales y Derivados case and others were primary motivators for the change.

“There was really a sense that there was an inordinate delay and that this was not helpful,” said Evan Lloyd, the commission’s director.

While acknowledging the commission’s limited role and the long delay in getting the Metales y Derivados site cleaned up, he said that without the citizen complaint process, it might have been an even more difficult task to accomplish.

“NAFTA has in effect empowered or enabled Mexico to raise its environmental standards, its enforcement, to a level that is higher than it would have been without NAFTA.”

The commission, government officials and environmental advocates all agree that the cleanup spurred by citizen involvement in the Tijuana case, bolstered by the commission’s factual record, helped establish a route by which the Mexican government can undertake the cleanup of other toxic sites.

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A look at the impact of NAFTA after 20 years.

But environmentalists’ counterclaim is that without NAFTA -- or if the treaty at least contained more enforcement provisions -- environmental contamination might not be as bad, nor would so much responsibility for cleanup fall on citizens.

“This was a process that says you can complain about your government and the lack of environmental enforcement, but we’re really not going to do anything about it,” Takvorian said.

In the 18 years that NAFTA has been effect, the Commission for Environmental Cooperation has received a total of 79 complaints of environmental pollution across North America. It has issued factual records for only 15, and is in the process of completing five more.

Editor's Note: An earlier version of this story misstated Evan Lloyd's last name.