CHAPTER 13 DEVELOPING AN ENVIRONMENTAL REGULATORY MODEL—PIECING TOGETHER THE GROWING DIVERSITY OF INTERNATIONAL ENVIRONMENTAL STANDARDS AND AGENDAS
| Jurisdiction | United States |
(Feb 1995)
DEVELOPING AN ENVIRONMENTAL REGULATORY MODEL—PIECING TOGETHER THE GROWING DIVERSITY OF INTERNATIONAL ENVIRONMENTAL STANDARDS AND AGENDAS
EnviroSearch International
Salt Lake City, Utah
William B. Prince
Ballard Spahr Andrews & Ingersoll
Salt Lake City, Utah
INTRODUCTION
"For many years, the basic disciplines of the minerals industry have been separated along the four basic lines of geology, mining, mineral processing, and metallurgy but now a major new field has emerged — that of the environment."2
—Sir Derek Birkin
Chairman, RTZ
Genesis
By most environmental scholars the genesis of the United States' environmental movement lies somewhere between Rachel Carson's book "The Silent Spring" and the Storm King Mountain dispute over a power plant on the Hudson River, the genealogy of which is measured from the passage of the National Environmental Policy Act or NEPA.3 The modern environmental movement, which celebrated its 25th anniversary on December 22, 1994 (NEPA's birthday), has become the source of a new lexicon describing a quarter century of America's struggle to define and implement a policy of environmental protection. NEPA, Environmental Impact Statement, CEQ, Citizens Committee for the Hudson Valley v. Volpe, Love Canal, Clean Water Act, Clean Air Act, RCRA, Superfund, TCLP and all the rest conjure up in our minds a unique regulatory system. This is the baggage with its successes and failures that the U.S. mining industry carries into a world whose emerging environmental agenda is being fostered by international economic markets and world-wide,
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instantaneous communication. Mining companies from other developed countries carry their own domestic baggage.
While the U.S. was fashioning its own environmental policy, events elsewhere were defining what now is becoming an international environmental agenda.4
1971: The World Bank and other major aid agencies announce plans to assess the environmental consequences of projects.
1984: Toxic gas leaking from a Union Carbide plant in Bhopal, India, kills more than 6,000 people.
1986: The Soviet Union's Chernobyl nuclear plant releases clouds of radiation.
1988: Mexico City prohibits schools from opening before 10 a.m. to protect children from air pollution.
1991: A GATT dispute resolution panel decides in favor of Mexico, ruling that the U.S. Marine Mammal Protection Act violated GATT rules against quantitative restrictions on imports.
1993: Congress approves the North American Free Trade Agreement along with precedent-setting environmental side agreements.
The international environmental culture has given birth to its own lexicon, although may be less familiar to the mining industry: non-tariff barriers, Production Process Methods, sustainable development, NACE, NAFTA, GATT, bilateral agreements, forum non conveniens, multilateral lending institutions, NGO's, Basel Convention, NADBANK, Ok Tedi, ISO/EMAS/BSI. Exploring the meaning of this new international environmental language is one of the goals of this paper.
Developing a Model
Unlike the regulatory framework of the United States, this new international environmental language is born of hundreds of sources, all representing diverse cultures, political and human agendas and economic goals. What should be the standards for environmental policy in developing countries and how should they be determined? What policy tools — for example, direct regulation or economic incentives — are best suited for meeting these standards? How should rules be enforced?5
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The authors initially approached the task presented by the paper's title as one would a large picture puzzle, each piece having a distinct and identifiable place in the greater picture. The analogy was poorly conceived. The authors now candidly admit that the process of developing a "model" of international environmental standards and agendas is more like unraveling a colorful cloth — the threads may not be uniform in consistency, color or texture (much like the myriad of diverse collection of international treaties, protocols and guidelines and country-specific laws), but when woven together they form an emerging pattern of global practices, agendas and standards which will substantially impact the future of mining. This pattern is what the authors seek to discover.
As a caveat, the authors disclaim any unique expertise in or understanding of international law. Nor do the authors intend this paper to represent a definitive treatise on world environmental laws or the laws of any particular country. The scope of such an undertaking would fill volumes and would be dated as soon as it was committed to paper. The intent here, rather, is to identify the various "threads" making up the weave of this so-called international environmental cloth and comment on how the "threads" may interact and relate to each other in the context of the extractive minerals industry. We seek to discover trends from the texture and color of this cloth from which we hope to generate new ideas of how to approach international mining projects. For the intellectual wanderer who must know more, a thorough discussion and analysis of any one of the many issues raised in this paper may be found in the rich and diverse collection of background materials referenced in the footnotes.
Analytical Approach
The paper is organized into three parts. The first is a black and white summary of the diverse elements we believe make up some of the threads of this environmental cloth. We have reported these matters in a concise format, without analysis, as an introduction to the topics. These elements, or threads, often involve complex concepts of international law and are not intended to report a definitive analysis of the topic. They are intended to identify the color and texture of the threads, no more. The list is not comprehensive. It will provide the reader with a general sense of the categories.
The second part sets forth our analysis of the weave of this cloth — how do these diverse topics and concepts work together, if at all. The second part also identifies possible trends evidenced from the synthesis occurring among these activities — the pattern of this cloth. What appears to be the direction of any so-called international environmental agendas or standards?
The third part offers integrated responses to issues identified in the text in the form of recommendations.
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COMPONENTS
International Treaties, Agreements and Conventions
A treaty is "an international agreement concluded between States in written form and governed by international law...whatever its particular designation."6 It may be useful to note that the terminology used in describing a particular international agreement does not affect its legal status as an agreement binding in international law. This includes a whole catalog of terms used in connection with various kinds of international agreements: treaty, convention, protocol, covenant, charter, statute, concordat, declaration, memorandum of agreement, memorandum of understanding, etc.7 In U.S. domestic law, by contrast, the term "treaty" has a special meaning described in international agreements that requires the advice and consent of the Senate before the U.S. may become a party to it. The international law of treaties has been codified to a large extent in the Vienna Convention on the Law of Treaties.8 A sampling of some of the better-known environmental treaties is described in this section.
1. Trade Agreements
a. General Agreement on Tariffs and Trade
The General Agreement on Tariffs and Trade ("GATT") evolved from the Bretton Woods Conference at the expiration of World War II. The GATT was created to address the issue of world tariff barriers, but over the decades, as a significant reduction of tariffs has been achieved, the GATT has turned its attention to negotiating the elimination of non-tariff barriers.9 The original GATT, signed by 23 industrial and developing countries, was conceived as a part of a comprehensive International Trade Organization (ITO).10 However, lawmakers in the United States, in particular, seemed reluctant to cede sovereignty to an international organization. The ITO was quietly withdrawn without congressional vote by the Truman administration.11
The GATT persisted without the ITO, and for five decades has been the defining agreement behind the international trade regime that has guided trade relations. The main GATT business of lowering trade barriers has been accomplished in periodic, usually multiyear "rounds" of negotiations among all parties. The Uruguay Round (1986-93) is the
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most recent round of GATT negotiations12 and was approved by the United States Congress on December 8, 1994. The Uruguay Round created a World Trade Organization (WTO) to serve as an umbrella administration for the GATT. The GATT will be subsumed within the WTO but will continue to exist as the structure of rules for international merchandise agreement.13
The GATT consists of three major parts14 and has operated on the basis of three principles.15 The Most Favored Nation Principle ("MFN") established by Article I is intended to ensure that the contracting parties do not discriminate among imported products on the basis of their national origin. The MFN obligation requires that each contracting party extend any privilege or advantage it provides to a product immediately and unconditionally to like products from, or destined for, all GATT contracting parties.16
The GATT was created long before the protection of the environment was a significant international concern, and some of the GATT's basic principles were developed without regard to modern concerns about the environment.17 The GATT imposes the burden of proof on the country with environmental...
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