Copyright 2002 The Atlanta Journal-Constitution
The Atlanta Journal-Constitution
March 15, 2002 Friday, Home EditionSECTION: News; Pg. 3B
LENGTH:
1144 words
HEADLINE: BACKGROUNDER: NAFTA: Some
procedures can't be appealed
BYLINE: JEFF
NESMITH
SOURCE: Cox Washington Bureau
BODY:Washington --- Sometime in the
next few months, former Secretary of State Warren Christopher and two other
lawyers will decide whether the United States must pay a Vancouver, British
Columbia, company up to $970 million because a noxious chemical has been banned
from gasoline sold in California.
Their decision will
be made behind closed doors. Even oral arguments by State Department lawyers,
who call the company's claims "absurd," will be closed to the public.
Christopher and his fellow arbitrators, Van V. Veeter of
London and J. William Rowley of Toronto, were selected under a procedure
provided by the World Bank. When they reach a decision, it cannot be appealed in
the U.S. courts or anywhere else.
The possibility that
the United States might be required by unelected international officials to pay
hundreds of millions of dollars for the right to protect its citizens from a
clearly hazardous environmental condition is at the center of a growing
controversy over the North American Free Trade Agreement, or NAFTA.
It is a controversy that was not anticipated in the debate
over Ross Perot's warning about a "giant sucking sound" when U.S. jobs are lost,
and in the debate over other treaty ratification issues.
The claim against California was brought by Methanex Corp. under what
is turning out to be a controversial chapter of NAFTA.
"The treaty gives unaccountable arbitral panels far too much discretion
in a process that is essentially secret," said Stephen Porter, a lawyer whose
nonprofit organization, the Center for International Environmental Law, has
asked for permission to file a "friend of the court" brief in the suit brought
by the Canadian company, Methanex Corp.
Methanex is the
world's largest producer of methanol, a prime component in the production of
MTBE, a gasoline octane enhancer. MTBE is known for its dauntingly unpleasant
taste at extremely low concentrations in drinking water, and for its tendency to
cause cancer in laboratory animals.
Gov. Gray Davis in
1999 ordered MTBE phased out of gasoline sold in the state after it began
showing up in underground water supplies, especially in Santa Monica, which is
spending millions of dollars in an effort to rid water wells of
contamination.
Methanex filed its claim under
NAFTA's Chapter 11.The chapter requires
the three
NAFTA "parties," Mexico, Canada and the United States, each to
treat businesses from one of the other two countries no less favorably than it
treats its own businesses in matters such as acquisition, expansion, management,
operation, sale and other disposition of investments.
Expropriation issue
On its face, Porter
explained, that seems simple enough. However, the chapter also provides that if
one of the three countries "expropriates" anything of value from a company based
in another treaty country "for a public purpose," it must pay compensation.
By ordering MTBE phased out, Davis expropriated profits
Methanex might have anticipated from sales of methanol, the company argued.
This is the same as the "takings" issue that has been
argued repeatedly in environmental cases in U.S. courts, Porter said.
"You have this international standard which gets raised
differently and interpreted not in a U.S. court but in these arbitral panels,
are not bound by U.S. jurisprudence on this extremely controversial and
unsettled issue," he said.
Concern about the NAFTA
provision is not limited to environmental lawyers.
Last
month, the Canadian Conference of Catholic Bishops expressed "grave concerns"
about
NAFTA's threat to the environment.
The
bishops cited other cases in which
Chapter 11 had been used to
mount claims over environmental issues: S.D. Myers Inc. of Talmadge, Ohio, has
filed a $30 million claim against Canada over losses it claims to have suffered
because of a Canadian ban on toxic PCB waste from the United States. Metalclad
Inc., a Newport Beach, Calif., waste disposal company, has collected $17 million
from Mexico over the decision by Mexican officials that the company's waste dump
in central Mexico was contaminating ground water. In a case that has obvious
similarities to the Methanex claim, Ethyl Corp. of Richmond, Va., collected $13
million from the Canadian government because Canada banned as environmentally
damaging an Ethyl gasoline additive known as MMT.
Pressing for change
Daniel Price, a Washington
lawyer who as assistant U.S. trade representative under former President George
Bush helped negotiate NAFTA, agreed that reviews of claims by arbitral panels
should be opened up. He stops short of saying the panels' sessions should be
conducted in public.
"Legitimate concerns have been
raised about the transparency of the dispute settlement process," he said,
adding that trade ministers from the three countries agreed in July that all
briefs and filings should be made public.
In testimony
last year before the House Ways and Means Committee, Price noted that arbitral
panels can only require countries to compensate foreign companies. The panels
cannot require changes to policies or laws.
He also
said that the United States has long advocated the creation of a set of rules
--- such as Chapter 11 --- to establish so-called "level playing fields" for
overseas investment.
Meanwhile, the city of Santa
Monica has filed lawsuits against oil companies and pipeline operators for money
it must spend to clean MTBE from its groundwater.
And,
since the chemical is showing up in drinking water resources nationwide, a
number of class-action lawsuits have been filed in behalf of property owners.
Thus, while Methanex is suing the U.S. government for
nearly $1 billion because California insisted that its chemical be kept out of
gasoline, oil companies are being sued for other billions for putting it in and
allowing it to leak out.
The central difference,
according to Porter, is the fact that the U.S. lawsuits will be decided openly
in the U.S. court system, where rulings will be subject to appeal.
In addition to "opening up" the process, he said, the
three countries should establish an appeal body to review arbitrators'
decisions.
ON THE WEB: NAFTA site:
www.nafta-sec-alena.org/english/index.htm Center for International Environmental
Law: www.ceil.org State Department: www.state.gov/s/l/c3439.htm NAFTA site:
www.nafta-sec-alena.org/english/index.htm
Center for
International Environmental Law: www.ceil.org
State
Department: www.state.gov/s/l/c3439.htm
BEHIND
THE NEWS
The AJC explores national and international
topics in Backgrounders.
Recent Backgrounders have
addressed: The Saudi Arabian peace plan Genetically modified food Afghan warlord
Ismail Khan's ties to Iran Peacekeeping in war zones
These and other Backgrounders from previous editions are available on:
ajc.com
GRAPHIC: Photo:
Commuting in
Los Angeles may be safer after a chemical was phased out of gasoline, but it
could cost the country./ REED SAXON / Associated Press Photo:
President Bill Clinton signs the NAFTA accord in 1993 with (from left)
Vice President Al Gore, House Minority Leader Bob Michel and House Speaker Tom
Foley./ DOUG MILLS / Associated Press
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March 15, 2002