How do environmental norms and policies diffuse across borders? In this article, we argue that preferential trade agreements (PTAs) can play an important role in this process. Specifically, we argue that the US has long used PTAs as mechanisms to diffuse such norms, and show this through an empirical examination of three US PTAs, each from a distinct phase of US trade policy. We demonstrate how the US used the North American Free Trade Agreement, the Central American Free Trade Agreement, and the US-Peru Trade Promotion Agreement as vehicles to diffuse norms of (1) public participation in environmental policy-making, and (2) effective enforcement of environmental laws to trading partner nations. In doing so, we both illuminate a new mechanism of environmental norm diffusion and demonstrate the importance of this mechanism in changing environmental policy and practice across borders.
In part as a response to long-stalled World Trade Organization (WTO) negotiations, states have begun to more actively pursue their interests through regional and bilateral preferential trade agreements (PTAs), with PTA numbers “exploding” in recent years (Bhagwati 2008; WTO 2011). About one-third of all PTAs incorporate environmental provisions, many of which are more far-reaching than those pursued in the WTO context (WTO 2011). The European Union (EU), for example, requires prospective member states to adopt climate change policies, and the US has recently made some environmental provisions enforceable through sanction-based dispute settlement systems (Jinnah and Morgera 2013). The US has even linked environmental objectives to PTAs to achieve conservation goals that were previously unattainable under more targeted, multilateral environmental agreements (Jinnah 2011). Although these PTA environmental provisions have, in some cases, been more effective than environmental agreements themselves in addressing environmental problems, this phenomenon has largely escaped examination in the literature to date.
In fact, aside from a boom of scholarship surrounding the North American Free Trade Agreement (NAFTA), PTAs have been largely ignored in the trade-environment scholarship. Much of the NAFTA literature has focused on the negotiation process (e.g., Hogenboom 1998; Markell and Knox 2003) and the environmental impacts of NAFTA writ large (e.g., Gallagher 2004; Hufbauer 2000). Few, in contrast, have traced domestic policy changes back to the PTA’s environmental provisions and/or traced the origins of those provisions to preexisting US environmental policy.1
This lacuna is surprising, because the US has long used PTAs to pursue environmental objectives abroad, and the strength of these provisions has increased over time (Jinnah and Kennedy 2011; van Roozendaal 2009). However, we know little about whether or how PTAs catalyze substantive changes in domestic environmental policy in trading partner nations. As we demonstrate here, the environmental norms embedded in trade agreements can have important impacts, not only on the substance of trading partner nations’ environmental policies, but also on the processes through which they are developed domestically.
Importantly, this study builds directly on Jinnah (2011), which argues that there is strong potential for US trade agreements to influence environmental policies abroad through the increasingly far-reaching and prescriptive provisions contained in those agreements, and Baver (2011), which identifies changes in environmental policies that have resulted from the implementation of NAFTA in Mexico. In this study, we take the next step in this analysis, by examining the environmental laws and policies in multiple trading partner nations for evidence of environmental policy change that has resulted from the implementation of US PTAs. We further identify important questions for future research. Centrally, we move beyond previous work by tracing the movement of norms from domestic US law and policy, through US trade agreements, and ultimately into the domestic law and policies of US trading partners. In doing so, we highlight the role that environmental linkages in PTAs can (and do) play in diffusing domestic environmental norms across national borders.
As is detailed in our discussion of methods below, we focus on two key norms in US environmental policy: (1) effective enforcement (i.e., “bona fide decisions” to allocate resources to enforce compliance with environmental laws2) and (2) public participation (i.e., the inclusion of opportunities for citizen engagement in governmental decision-making). We examine these norms across three US PTAs: the 1994 NAFTA, the 2006 Central American Free Trade Agreement (CAFTA-DR),3 and the 2009 US-Peru Trade Promotion Agreement (TPA). Our central argument is that key norms from US domestic environmental law and policy (i.e., public participation and effective enforcement) have diffused through environmental linkages within US PTAs and been incorporated into domestic policy and practice in trading partner nations.
This analysis is particularly timely, given the geographic reach of the US PTAs currently under negotiation, and thus the potential for far-reaching environmental norm diffusion through these agreements. The recently agreed Trans-Pacific Partnership (TPP) links twelve countries in the Asia-Pacific and the Americas that represent more than 40 percent of world trade (USTR 2015b). These countries house vital, biodiverse ecosystems, many of which are threatened by trade-related activities (USTR 2013). Illegal trade in wildlife, timber trade, and illegal, unreported, and unregulated fishing have led to continued degradation, despite the efforts of numerous multilateral environmental agreements (MEAs; USTR 2013). Thus, the potential for PTAs to catalyze environmental norm diffusion has wide-reaching implications for environmental diplomacy writ large.
The next section provides a brief empirical history of environmental provisions in US PTAs, before situating our analysis in the broader literature on norm diffusion. We then outline our methodological approach, explaining how we know norm diffusion when we see it. This is followed by the empirical analysis, which traces our two norms of interest from US domestic environmental policy, through US PTAs, and into environmental policies/practices in trading partner nations. The conclusion discusses the implications of environmental norm diffusion for environmental performance and equity.
Environmental Provisions in US PTAs
US trade policy has transitioned through three phases with respect to its treatment of environmental issues: first, positioning global environmental issues as subordinate to trade issues; then acknowledging environmental issues as important through normative claims, but resisting substantive policy linkages; and most recently, tightly coupling trade and environmental governance through linkages that impact environmental policies abroad (Jinnah 2011).
The first phase of trade-environment linkages in US PTAs began with NAFTA, which instituted a series of environmental provisions that are replicated in nearly all US PTAs. These included provisions related to environmental exemptions from trade rules, investment, environmental consultations, strengthening environmental laws, environmental cooperation agreements, and public participation and enforcement provisions. NAFTA was the first US PTA to require effective enforcement of environmental laws, and it also included a novel citizen submission mechanism (NAAEC 1993, Art. 5.1).
The second phase was catalyzed by a pair of important domestic policy developments. The first was US President Clinton’s 1999 Executive Order 13141, which required the US Trade Representative (USTR) to evaluate the environmental impacts of all US PTAs (EO 13141 1999). The second was the 2002 Trade Act (H.R. 30009 2002), which granted US President George W. Bush fast-track trade negotiating authority, required the US “to strengthen the capacity of United States trading partners to protect the environment,” and required certain environmental provisions be incorporated into all new PTAs (SEC.2012.(b)(11)(D)). These provisions included environment chapters and consultations, and also strengthened public participation.
The third phase began after the Democrats regained control of Congress in 2006 and allowed the fast-track authority to lapse. Congress outlined much stronger environmental provisions for all new PTAs through the 2007 Bipartisan Trade Deal, including provisions related to biodiversity and forest governance. Furthermore, whereas previous agreements only allowed sanction-based disputes for violation of the effective enforcement clause, US PTAs negotiated during this third phase removed this restriction. In 2015, Congress renewed trade negotiating authority, following the 2007 Deal, by reinforcing the need for strong environmental provisions in trade agreements (Nelson 2015).
Norm and Policy Diffusion Through Issue Linkage
Norms and policies are closely tethered. Norms set boundaries for political life by setting standards of behavior and defining expectations for what is or should be. In short, norms are collective ideas, principles, and/or expectations for state behavior. Powerful international norms include those related to state sovereignty, abolition of slavery, human rights, and nonproliferation. Environmental norms tend to be weaker, and include such ideas as the polluter pays principle and common but differentiated responsibilities. In this article, we examine key US norms that define ideas and expectations for how policy should be made (i.e., public participation) and enforced (i.e., effectively). We further demonstrate how these norms were either weak or absent in these countries prior to their requirement through US PTAs.
Whereas norms identify goals, policies delineate how those goals should be achieved. Policies institutionalize or formalize norms in ways that can define specific pathways for action, more easily assign accountability, and sometimes enable enforcement through law. Policies reiterate and articulate norms, but also explain how norms should be achieved through, for example, targets and timetables, reporting requirements, and institutional arrangements.
Norms are thus deeply embedded within policies (and laws). In international treaties, norms are often articulated in preambular text. For example, the Convention on Biological Diversity preamble establishes the need to “conserve biodiversity … for present and future generations,” and the WTO’s General Agreement on Tariffs and Trade preamble asserts that relations between countries “should be conducted with a view to … developing the full use of resources of the world.” Norms are also found in operational treaty text, which are often translated into domestic law and policy through ratification and implementation. The extent to which policies reiterate norms, therefore, is a proxy, albeit an imperfect one, for whether or not norms have been institutionalized within a particular political system.
In highlighting how the US incorporates environmental norms into its PTAs, this article engages discussions on norm diffusion and policy transfer. These literatures diverge with respect to terminology, methodology, and case selection. However, they are essentially interested in the same processes—the movement of ideas across borders—and there is substantial conceptual overlap in how they treat the transnational movement of norms and policies (Marsh and Sharman 2009). We, therefore, treat their contributions holistically, drawing on the strands of each that are most relevant to the analysis undertaken here.
Norm diffusion is the movement and adoption of norms across political borders. In brief, the literature points to four main theories of norm diffusion: learning, competition, coercion, and ideas (Dobbin et al. 2007). In the environmental policy context, learning is often identified as an important driver of norm and policy diffusion—for example, “front-runner” states model environmental policies that are emulated and adapted by others (Busch et al. 2005). Competition, too, has been identified as a driver of diffusion, as states harmonize environmental policies upward (Vogel 1995). Coercion is relatively understudied, especially in the environmental context. Finally, constructivists have underscored the role of international organizations in spreading ideas among states (Finnemore 1993).
Scholars have also identified specific mechanisms of norm diffusion, such as persuasion, localization, and institutional translation (Keck and Sikkink 1998; Acharya 2004; Bettiza and Dionigi 2014). This article is in close conversation with this previous work on mechanisms, in identifying a new mechanism of norm diffusion: issue linkage. and more specifically, environmental linkages in PTAs. That is, by incorporating environmental provisions into trade agreements, the US has not only used issue linkage to change bargaining dynamics, as was suggested by previous scholars, but has also diffused key US environmental norms into trading partner countries’ domestic laws and policies. Previous scholars have also discussed “tactical linkages,” which are typically deployed to gain bargaining leverage by making one’s behavior on an issue conditional on another’s behavior on a separate issue (Haas 1980; Axelrod and Keohane 1985). The linkages examined here are different in that they involve linkages between separate issues within a single agreement. That is, trade agreements require specific environmental policy changes in trading partner nations that are tangential to the core objectives of the trade agreement. In some cases, such linkages even aim to achieve the environmental objectives required by an entirely separate environmental treaty (Jinnah 2011). Whereas “tactical linkages” are used to shift bargaining leverage across agreements, the trade-environment linkages examined here achieve the adoption of tangential policy objectives by incorporating them directly into PTAs. Furthermore, as we noted above, this study moves beyond an examination of potential influence, to trace the actual incorporation of environmental norms into domestic law and policy in trading partner nations and confirm their origins in US environmental policy. In doing so, this article draws together the literatures on issue linkage and norm diffusion by demonstrating how trade-environment linkages in US PTAs serve as mechanisms to diffuse environmental norms abroad.
Methods: How Do We Know Norm Diffusion When We See It?
We use process tracing to demonstrate how environmental linkages within US PTAs serve as mechanisms to diffuse US environmental norms abroad. Specifically, we use documents, such as legal texts and government reports, to trace the movement of two US environmental norms—effective enforcement and public participation—from domestic US policy, through US PTAs, and ultimately into the domestic laws and policies in trading partner nations.
We focus on these two specific norms because we find them consistently across most US PTAs, as well as in much US domestic law—both within and beyond the environment context (Jinnah 2011). We want to show how (i.e., the mechanisms through which) these norms move across borders, rather than the conditions under which they do so. We therefore selected prolific US norms that give us the best chance of actually observing the norms moving across borders (i.e., diffusing). We examine these norms through the lens of three US PTAs, one from each phase of US trade policy described above: NAFTA (1994), the CAFTA-DR (2006), and the Peru TPA (2009). Although NAFTA has received substantial attention in the environment literature on PTAs to date, CAFTA-DR and the Peru TPA have been largely understudied, demanding increased analytical attention.
We conduct our analysis in four steps. First, we show the emergence of public participation and effective enforcement norms in US domestic environmental law and policy. We do this by examining key pieces of US environmental law and policy and explaining how these norms are central to those documents. Second, we show how the US has “internationalized” these norms (see DeSombre 2000) by replicating them in the three US PTAs examined in this study: NAFTA, CAFTA-DR, and the Peru TPA. We examine those PTAs for articulations of these norms to show how those PTA articulations are uniquely similar in approach to those found in US domestic environmental law and policy.
Third, and centrally, we look for evidence of norm institutionalization in the domestic laws and policies of trading partner nations. We argue that when norms have been institutionalized, they have begun to diffuse. Although we understand diffusion not as a binary concept, but as existing along a continuum, we do not attempt to evaluate the degree of diffusion here. Rather, we analyze whether effective enforcement and public participation have, at a minimum, begun to diffuse through issue linkage. Therefore, following Katzenstein (1996), we identify institutionalization by looking for the incorporation of these norms into domestic policy and practice. Like diffusion, institutionalization should be measured along a continuum, with deep behavioral change being an indicator of strong norm institutionalization, and policy change being a weaker index. The degree of institutionalization thus depends on the degree to which changes are internalized, and also provides a preliminary indication of whether or not norms have diffused across borders.
Specifically, we look at the policies that trading partners adopted to implement the effective enforcement and public participation provisions of their US PTAs. We analyzed documents from the USTR, the Commission for Environmental Cooperation (CEC), nongovernmental organizations (NGOs), and trading partner governments that summarize the implementation activities in those nations. Using these secondary documents, as opposed to the laws and policies themselves, allowed us both to quickly narrow down the universe of relevant documents and to identify policies that were enacted specifically to implement the PTA.
Finally, we conduct a counterfactual analysis, reflecting on alternative explanations for the presence of public participation and effective enforcement in the domestic environmental policy/practices in the trading partner nations. We first look for these norms in the PTAs that trading partner nations had signed with other countries prior to their US PTAs. If these norms were important in domestic environmental policy prior to the US PTAs, we would expect to see them in those countries’ prior PTAs with other trading partners, as well. The absence of such provisions from these PTAs would be a strong indication of diffusion from the US.
Finally, we rule out preexisting institutionalization of effective enforcement and public participation norms through secondary analyses of domestic environmental policies in trading partner nations prior to the entry into force of the US PTAs.
Effective Enforcement and Public Participation in US Law and Policy
Effective enforcement and public participation have long been central norms in US environmental law. Effective enforcement is established through, for example, fines and criminal sentences, and public participation through provisions for public comment on draft laws and opportunities for legal remediation. This section details the origins of these two norms in US environmental law and policy.
The US approach to effective enforcement of environmental laws has relied heavily on legal recourse for noncompliance through civil and criminal penalties. Central US environmental laws, such as the 1970 Clean Air Act (CAA) and the 1972 Clean Water Act (CWA) emphasize formal rules and procedures and the extensive use of prosecution and litigation (Raustiala 1995). Under the CWA, for example, any wastewater discharge from a point source without a permit is subject to a fine of US$25,000 per day (Hodas 1995). Conservation-oriented laws, such as the 1973 Endangered Species Act (ESA) and the 1900 Lacey Act (amended 2008), similarly impose civil and criminal penalties for violations.
These laws are strongly enforced. In 2014 alone, the US Environmental Protection Agency (EPA) completed 15,600 inspections/evaluations, issued approximately US$80 million in criminal fines, and collected almost US$100 million for federal administrative and civil judicial penalties (US EPA 2014). This is quite different from the approach taken by many US trading partners, in which environmental laws either are not enforced or are only made enforceable through PTA provisions (Harrison 1995; Husted and Logsdon 1997).
Public participation is also prolific in US environmental law and policy. Public (or citizen) participation refers to “purposeful activities in which citizens take part in relation to government” (Spyke 1999, 266). It often includes access to information, access to justice, and participation in environmental decision-making.
Public participation is incorporated into several parts of the US policy process. Policy development provisions often call for transparency and access to information. The 1969 National Environmental Policy Act (NEPA), for example, incorporated public participation by allowing for public comment on all federal environmental impact statements (Spyke 1999). Public comment periods, public hearings, and citizen review panels provide core avenues for citizen participation under NEPA and several other US environmental laws (Fiorino 1990).
Public participation provisions also dovetail with enforcement provisions. For example, the CWA extends the responsibility for enforcement to citizens, calling for their participation in “the enforcement of any regulation, standard, effluent limitation, plan, or program” [§101(e), 33 U.S.C. §1251(e). Section101(e)]. Finally, citizen suit provisions, such as those in the CWA, CAA, and ESA, provide a mechanism for citizen enforcement by challenging a government’s failure to enforce its environmental laws.
Environmental Norms in US PTAs
This section details how US norms are replicated in three US PTAs: NAFTA, CAFTA-DR, and the Peru TPA.
NAFTA’s Environmental Norms
NAFTA asserts that trade and investment should not compromise the environment, prohibits waiving or derogating from environmental measures to attract investment, and lists several MEAs that are effectively immune from challenge, should they conflict with NAFTA’s trade provisions. The majority of NAFTA’s environmental provisions, however, are formally incorporated in the parallel North American Agreement on Environmental Cooperation (NAAEC). Unlike a treaty, which requires US Congressional ratification, the NAAEC is an executive agreement, which does not require US Senate advice or consent, nor Congressional ratification or approval. The NAAEC requires Parties to strive for “high levels of environmental protection” and “to continue to improve [environmental] laws” (Art. 3). The NAAEC further established the CEC to support implementation of its environmental provisions, including those related to effective enforcement and public participation.
NAFTA put significant pressure on Mexico to improve its environmental enforcement activities by using enforcement methods that reflect those in US environmental policy. For example, it requires Parties to “effectively enforce environmental laws” by “ensur[ing] that judicial, quasi-judicial or administrative enforcement proceedings are available” for environmental law enforcement, and by creating processes for public participation in investigations of alleged violations (Arts. 5 and 6).
The NAAEC promotes transparency and public participation as a main objective of the Agreement [Art. 1(h)]. It established a public submission process for enforcement matters, which allows citizens to request a review of a Party’s alleged failure to enforce its environmental laws. The NAAEC outlines procedures for this review and for making such information publicly available. The NAAEC also provides for a relatively weak consultation/arbitral process through which Parties can resolve disputes related to their failure to enforce environmental laws. NAFTA further provides opportunities for the public to attend CEC meetings and be appointed to advisory committees, and it makes many CEC reports publicly available. The NAAEC also requires that many other documents be made publicly available and provides opportunities for public participation in procedural matters and cooperation activities (Art. 4.1).
Finally, the NAAEC puts a heavy emphasis on using bilateral/regional activities to strengthen environmental protection, improvement, and conservation. This includes joint trainings to increase government enforcement capacity and partnerships with nongovernment stakeholders to promote environmental protection. These types of activities are standard practice across US TPAs and are generally referred to as “cooperation activities.”
CAFTA-DR’s Environmental Norms
CAFTA-DR was negotiated under the 2002 fast-track authority, which required that specific environmental objectives be included in all US trade agreements. As such, CAFTA-DR’s environmental provisions were directly incorporated into the PTA itself, rather than included in a “side agreement.” This was done through a full chapter on environmental issues, which includes provisions on the effective enforcement of environmental laws and public participation in enforcement.
The Environment Chapter also requires environmental cooperation between parties. To implement those provisions, the Parties negotiated a parallel Environmental Cooperation Agreement (ECA).4 Similar to the NAAEC, the ECA is a separate executive agreement negotiated alongside the PTA, does not require US Congressional approval, and focuses entirely on operationalizing the PTA’s environmental cooperation activities. Furthermore, whereas trade ministries take the lead on PTA implementation, the ECA allowed the environment ministries in Latin American countries, and the Department of State in the US, to define priorities for environmental cooperation. The Parties identified four such priority areas, including strengthening the effective enforcement of environmental laws, through both strengthening enforcement capacity and fostering public participation.
Similar to the concerns raised by civil society actors during NAFTA’s negotiation, several were raised regarding Central American countries’ track records of environmental law enforcement during the CAFTA-DR negotiations (USTR 2003). While all of the Central American countries had passed a general framework law on the environment, the lack of fiscal and human resources limited their ability to enforce those laws (USTR 2003).
To address these concerns, the CAFTA-DR Environment Chapter requires effective enforcement of environmental laws, with provisions similar to, albeit stronger than, those in the NAAEC. The Environment Chapter also provides a weak consultation process to resolve environment-related disputes. Access to CAFTA-DR’s much stronger, sanction-based dispute settlement system is limited to claims made under the effective enforcement clause. Although this narrow inclusion is indicative of the centrality of effective enforcement in US PTAs, as under NAFTA, remedy is still quite limited. Also like NAFTA, CAFTA-DR’s Environment Chapter sets up a process wherein members of the public can request review of a Party’s alleged failure to enforce its environmental laws. Improving enforcement has also been a focus of environmental cooperation activities under CAFTA-DR—for example, through capacity building for enforcement.
The CAFTA-DR Environment Chapter also places a heavy emphasis on public participation. As we discussed above, the public submissions process allows individuals to request reviews of alleged violations of environmental laws. Parties further agreed to ensure the availability of “judicial, quasi-judicial, or administrative proceedings … to sanction or remedy violations of its environmental laws” (Art. 17.3.1). CAFTA-DR also provides for public involvement in environmental decision-making. For example, individuals may be involved in advisory committees or submit comments/recommendations on environmental cooperation activities. Cooperation activities, too, have focused on enhancing public participation—for example, by supporting public involvement in environmental decision-making through small grants to civil society organizations (OAS 2014).
Peru TPA’s Environmental Norms
As with CAFTA-DR, the 2009 Peru TPA contains an Environment Chapter, which mandates effective enforcement of domestic environmental laws and includes several new environmental provisions, such as one covering biodiversity conservation. It also contains several environmental provisions typical of other US PTAs, including those related to the implementation of MEAs that may otherwise conflict with trade rules; and environmental cooperation to enhance capacity to protect the environment. Following instructions contained in the 2007 Bipartisan Trade Deal, the Peru TPA also includes greatly strengthened enforcement provisions for environmental matters, by allowing unrestricted recourse for noncompliance through the PTA’s sanction-based dispute settlement clause. Finally, the Environment Chapter contains an Annex on Forest Sector Governance, which addresses the economic and environmental impacts of illegal logging and wildlife trade, and details how Peru should revise domestic forest policy to improve forest governance.
The Environment Chapter of the Peru Agreement requires effective enforcement in several ways. Centrally, the TPA calls for effective enforcement through prosecutorial discretion. This is supported by provisions on procedural matters, which mandate that Parties investigate alleged violations of environmental laws and make such violations punishable through sanctions, fines, imprisonment, and/or facility closures. Like CAFTA-DR, the Peru TPA established an ECA to implement environmental cooperation provisions of the PTA’s Environment Chapter, including by strengthening Peruvian national enforcement capacity. As with CAFTA-DR’s ECA, a separate agreement allowed environmental cooperation to be led outside of trade ministries and did not require US Congressional ratification.
The strongest provisions on effective enforcement in the Peru Environment Chapter are found in the article on environmental consultations. As we noted above, prior agreements such as NAFTA and CAFTA-DR had contained comparatively weak provisions for environmental consultations. The Peru Agreement greatly strengthened these provisions, allowing Parties to seek remedy under the Agreement’s primary sanction-based dispute settlement system.
The Forest Annex also contains several strong provisions on effective enforcement. These include requirements to increase the number of enforcement personnel, developing anticorruption plans, providing for strong civil and criminal liability and penalties, and strengthening existing institutions for enforcing forest laws. Notably, it also allows the US to directly engage in enforcement activities in Peru. Upon US request, Peru must audit specific producers or exporters, verify that such actors are in compliance with Peru’s forest laws, and allow US officials to participate in site visits to conduct these verifications.
Public participation is also plentiful throughout the Environment Chapter, its Forest Annex, and the ECA. For example, these provisions require that judicial and administrative proceedings be open to the public, ensure public access to legal remedy, require transparency of decisions, and mandate that Peru promote public awareness of environmental laws. Like NAFTA and CAFTA-DR, the Peru Agreement contains a process for citizen submissions asserting that either party is failing to enforce its environmental laws. The Forest Annex also requires transparency in the forest concession process, the incorporation of local and indigenous views to strengthen enforcement mechanisms, and increasing public participation in forest resource planning. ECA provisions enhance the Peruvian capacity to promote public participation in environmental decision-making and enforcement, and require public input in defining ECA activities in both countries.
In summary, norms of effective enforcement and public participation are deeply embedded in NAFTA, CAFTA-DR, and the Peru TPA. The ways that these norms are articulated in these agreements are very similar to articulations in US domestic environmental law and, in many instances, are essentially replicated from one US PTA to the next (e.g., provisions on citizen submissions and access to judicial proceedings). In line with existing theory (e.g., DeSombre 2000), this suggests that these norms diffuse through a process of “internationalization,” from US domestic policy to US PTAs. In the next section, we analyze the extent to which these internationalized norms have subsequently been institutionalized domestically in trading partner nations through incorporation into domestic law and policy.
Norm Institutionalization Through PTAs?
In this section, we use norm institutionalization (as measured through policy changes) in trading partner nations as a proxy for the diffusion of effective enforcement and public participation norms. We do this, first, by analyzing key documents for evidence that trading partner nations are incorporating these norms into domestic policies and practices. Second, we discuss and reject alternative explanations for the institutionalization (and thus diffusion) of these norms in trading partner nations’ domestic law and policy.
Norms Institutionalization through NAFTA
The institutionalization of effective enforcement is evidenced in several laws/policies implemented in response to NAFTA obligations. The CEC Annual Reports, for example, list many domestic environmental policies that were developed or revised to comply with the NAAEC. They highlight key policy changes, including Mexico’s 1996 revisions to its General Law on Ecological Balance and Environmental Protection (LGEEPA) and Canada’s 1999 revision of the Canadian Environmental Protection Act (CEPA), both of which strengthen effective enforcement and public participation. The LGEEPA revision recognizes the right to information and allows for third-party compliance monitoring, and the CEPA revision incorporates new provisions allowing citizens to request investigations into alleged violations of domestic environmental laws (CEC 2001; Environment Canada 1999, CEPA Part 2). Enhanced enforcement is also evidenced through the increased number of inspections and verification visits in Mexico. For example, between 1971 and 1992 an average of 1,000 inspections for pollution control took place in Mexico per year (CEC 2001). This number increased dramatically following the entry into force of NAFTA, with 13,965 such visits between September 1995 and December 1996 alone (CEC 1996)!
NAFTA’s environmental cooperation activities also evidence the institutionalization of effective enforcement norms from the US to Mexico. For example, in 1995, the Parties established the North American Wildlife Enforcement Group to improve their collective enforcement of wildlife laws, and the North American Working Group on Environmental Enforcement and Compliance to help build Mexico’s enforcement capacity. Subsequently, Mexico increased its inspections and seizures for compliance with wildlife laws more than threefold between 1995 and 1998 (CEC 1998).
CEC environmental cooperation activities have also catalyzed increased public participation. For example, in 1996, NAFTA Parties developed the first North American Pollutant Release Inventory, modeled on the 1986 US Toxic Release Inventory. Environmental cooperation has also provided at least US$7 million for community grants, which supported a wide range of projects to engage citizens in environmental protection (CEC 2015).
Finally, in response to specific NAAEC provisions, Mexico also created several new institutions for public engagement, such as Regional Advisory Councils, a National Council, and an Advisory Council for Protected Areas, and guaranteed access to environmental information in the 1996 LGEEPA reform (CEC 2003). Canada’s 1999 CEPA amendment also strengthened citizen participation and access to environmental information, by providing opportunities for public input at all stages of the decision-making process (Environment Canada 1999).
Norms Institutionalization through CAFTA-DR
CAFTA-DR countries have implemented, adopted, or improved approximately 150 new environmental laws that enhance effective enforcement and public participation in CAFTA-DR countries, largely with US financial support (OAS 2014). For example, several Parties have developed mechanisms for better enforcing wastewater permitting and have held trainings on how to conduct inspections, audits, and environmental impact assessments. They also have supported trainings for judges, prosecutors, customs agents, police, and foresters, to improve enforcement actions. US-supported cooperation activities under CAFTA-DR have also helped strengthen Parties’ institutional capacity at multiple levels of government, improving their ability to monitor and enforce environmental laws, such as through modernizing permit systems. For example, Nicaragua, Honduras, and Costa Rica developed a Web-based management system for Convention on International Trade in Endangered Species (CITES) permits, and the Dominican Republic modernized their Environmental Impact Assessment system with a geographic information system-based analytical tool (OAS 2014).
The US has also worked through CAFTA-DR’s cooperation activities to help Central American countries improve opportunities for public participation in environmental decision-making. For example, with US support, CAFTA-DR Parties have published public guides to environmental laws and developed outreach campaigns, workshops, and media events to spread awareness of environmental laws (OAS 2014). The US has also financed a small grants program, which trained 4,500 people in public participation tools and methods through 130 workshops across the CAFTA-DR countries (OAS 2014). Finally, in response to CAFTA-DR, the Dominican Republic and other Central American countries set up advisory committees through which citizens can raise environmental issues, which further Central American countries are currently working on as well (Art. 17.6.3).5
Norms Institutionalization through Peru TPA
Peru has also enacted several new domestic laws aimed at implementing public participation and effective enforcement norms as articulated in the PTA. On effective enforcement, for example, Peru has created a new Ministry of Environment with an investigatory arm to verify compliance with environmental laws, and also established an independent forestry oversight body that has already conducted thousands of forest concession audits and assessed monetary fines in cases of noncompliance. In 2008 Peru modified its Penal Code (Environmental Crimes) to greatly strengthen criminal penalties for forest-related crimes (Peru 2013). Between 2009 and 2013, Peru more than doubled the financial resources dedicated to the National Forest Authority for institutional strengthening (Peru 2013). Furthermore, in 2013, following allegations from US environmental NGOs of Peruvian failure to adequately implement the Forest Annex, US and Peruvian officials developed an Action Plan to prioritize areas for further forest sector cooperation. The Plan identifies five such areas, including several related to effective enforcement, such as the need to ensure timely criminal and administrative proceedings to sanction violations of Peruvian forest laws (USTR 2015a).
On public participation, Parties are currently setting up a public submissions process, similar to those of NAFTA and CAFTA-DR, and has made more enforcement-related information public, including forestry information and forest management plans (Peru 2013). Importantly, as is required by participation provisions in the Annex, Peru is also better incorporating indigenous people into policy-making. For example, it has increased consultations with indigenous groups on new regulations that affect resources located on their traditional lands (US GAO 2014).
Finally, US-funded cooperative activities are also instrumental in institutionalizing these norms in this case. The US has invested approximately US$49 million into supporting implementation of the Agreement’s environmental provisions (US GAO 2014). Peruvian officials have participated in US training sessions on forest investigation and environmental prosecution and, in cooperation with US officials, have developed an updated training module to enhance investigation techniques and rates of prosecution for forest crimes (USTR 2015c).
In summary, evidence of the institutionalization of effective enforcement and public participation norms is present across all three agreements. Analyses of PTA implementation from the USTR, CEC, OAS, and trading partner governments support the claims that these provisions were adopted into domestic law and policy as a means of directly implementing the environmental provisions contained in the relevant PTA. Although additional analysis will be needed to determine the strength of institutionalization, the proliferation of these norms in domestic policies across agreements provides strong evidence that norm institutionalization is occurring.
Norm uptake into domestic policies suggests that norms of public participation and effective enforcement (as reflected in US PTAs) are beginning to institutionalize in trading partner nations. The implementation reviews cited above strongly suggest that these norms originated in domestic US politics and were subsequently implemented in trading partner nations following PTA obligations. The US Trade Act of 2002 further reinforces this claim, with several references to public access and with effective enforcement of environmental laws identified as among the US’s “principal negotiating objectives” on the environment [sec. 2102, para. b(11)(A)].
Nevertheless, we briefly rule out other possible explanations here. It is possible that these norms were already present in the PTAs the US trading partners had previously negotiated with other countries. First, therefore, we examined all PTAs negotiated prior to those with the US for any discussions of effective enforcement and public participation in environmental law/policy making. If such articulations are absent, this provides even stronger evidence that such norms diffused from the US PTAs. Even if such articulations are absent, however, it remains possible that trading partners simply had not yet “internationalized” these norms. We, therefore, also examined trading partners’ pre-US PTA environmental laws for these norms. As noted above, we did this through a review of secondary assessments of such policies in a sample of countries—typically through USTR environmental reviews, when these were available. If such norms are weak or absent from such policies, this also provides strong evidence for our assertion that these norms diffused through the US PTAs, and were not home-grown in the trading partner nations.
We found that none of the PTAs that any US trading partners had entered into with other countries prior to their US PTA referenced the norms of effective enforcement or public participation. This strongly suggests that the presence of these two norms in domestic policy and practice in trading partner nations was a direct result of diffusion from the US.
The EPA undertook a detailed review of Mexico’s environmental laws prior to NAFTA. The review noted that Mexico “lacked adequate resources to construct a fully-effective enforcement regime” (US EPA 1991, 5). It further noted that, prior to NAFTA, Mexico relied almost exclusively on administrative proceedings, rather than the litigation-based enforcement favored by the US (US EPA 1991). As we noted above, NAFTA required Mexico to implement more litigation-based avenues for enforcement, mirroring the US enforcement approach. Prior to NAFTA, the Mexican and Canadian publics played a smaller role in environmental law enforcement (US EPA 1991; Paehlke 2000). Although Canada’s overall enforcement was strong, its environmental policy was “characterized by administrative discretion and relatively closed decision-making venues” (Paehlke 2000, 169).
Prior to CAFTA-DR, USTR reviewed the environmental laws and enforcement of the Central American parties. It noted the steps they had taken to develop environmental policies and institutions, but also their limited ability to enforce such laws—due, for example, to insufficient financial and human resources (USTR 2003). Furthermore, administrative regulations and procedures lacked transparency, which limited public participation (USTR 2003). The Organization of American States noted that with CAFTA-DR, both environmental law enforcement and public participation increased, improving their ability to respond to citizen complaints (OAS 2012).
The US Environmental Review that preceded the Peru agreement makes clear that Peru’s environmental laws historically had suffered from a lack of effective enforcement (USTR 2007). For example, government agencies could impose only modest fines for noncompliance, and the judicial system allowed numerous opportunities for appeal (USTR 2007). The Review also noted that the PTA “has significant potential to improve environmental decision-making and transparency in Peru” (USTR 2007, 2). It explained that the PTA would improve public participation through the public submissions process and by requiring Peru to ensure that its law and administrative proceedings would be made public and allow for public comment. This Review further underscores the US role in strengthening public participation provisions through this PTA.
In summary, effective enforcement and public participation did not play an important role in the US trading partner nations’ PTAs prior to those agreed with the US, nor in their domestic environmental laws and policies prior to their US PTAs. It is therefore very likely that these norms diffused through the US PTAs.
Previous studies have illuminated the long history in US trade policy of pursuing environmental objectives, the strengthening of such provisions over time, and, importantly, the potential for such provisions to shape environmental law in trading partner nations and compel implementation of MEAs. This article extends this work by tracing those international provisions through the process of their implementation in domestic law and policy in trading partner nations and confirming the origin of those norms in US environmental policy. We found substantial evidence of key US norms making their way through US PTAs into the domestic law and policy of parties to NAFTA, CAFTA, and the Peru TPA. In doing so, this article confirms prior hypotheses in the literature that environmental linkages within PTAs are important mechanisms of norm diffusion (or what Jinnah 2011 terms “policy transference”), by mapping the pathway by which this diffusion occurs. In other words, this article demonstrates that environmental provisions do not merely sit unimplemented in international trade agreements (as they do in several MEAs!), but actually have diffused into domestic law and policy through institutionalization of these provisions abroad.
We first demonstrated that the norms of effective enforcement and public participation can be traced back to US domestic law. We highlight that beginning with NAFTA in the mid-1990s, the US has systematically “internationalized” its core domestic environmental norms of effective enforcement and public participation into its trade agreements, by replicating norms from US domestic law and policy into these international agreements. Further suggesting this directionality of diffusion, effective enforcement is identified as a primary negotiating objective in the US 2002 Trade Act, and previously these norms were notably absent in the environmental laws of many US trading partners. Furthermore, Peru and NAFTA and CAFTA-DR countries did not incorporate these norms into their PTAs with other countries prior to their agreements with the US (SICE 2015), and effective enforcement and public participation provisions were weak (US EPA 1991; Paehlke 2000; USTR 2003; USTR 2007). As we demonstrate here, following the passage of these three US PTAs, there is substantial evidence of US norms appearing in trading partner nations’ domestic environmental law and policy. This suggests that environmental linkages within PTAs not only hold potential to serve as mechanisms of norm and policy diffusion, but are already serving this purpose across multiple agreements and countries.
One particularly important pathway for environmental norm diffusion through PTAs is the environmental cooperation activities undertaken to implement most US PTAs. As central features of US PTAs, environmental cooperation provisions provide a policy justification for allocating resources to trade-environment activities in trading partner nations. For example, since 1995 the US has funded approximately US$196 million of trade-related environmental activities related to NAFTA, CAFTA-DR, and the Peru TPA (CEC 1994; US GAO 2014). Much of this work has been focused on improving effective enforcement and public participation in US trading partners through, for example, institutional capacity building. Indeed, these activities have already delivered improvements, as evidenced by CITES implementation improvements in the CAFTA-DR countries and Peru, increased public access to decision-making in Mexico, and major changes to Peruvian civil and penal codes.
The diffusion of environmental norms through PTAs likely reflects several existing theories of norm diffusion, especially learning and the movement of ideas. However, these cases also raise questions about how powerful states may impose their broader interests on weaker trading partners, which would reflect diffusion through coercion, a relatively understudied concept, especially in the environmental context. However, in linking environmental provisions to the coveted preferential market access promised by US PTAs, the US may actually be coercing environmental policy changes in trading partner nations. It is also possible that the US is embarking on a second wave of environmental conditionalities through PTAs. As we know from the first wave of environmental conditionalities attached to international development aid in the 1980s and 1990s, there are important drawbacks to this approach (Keohane and Levy 1996). The question of coercive diffusion, therefore, demands further research, including interview data.
Finally, the nature of environmental provisions in US PTAs underscores the renewed importance of trade agreements for environmental problem-solving and diplomacy writ large. The 2015 TPP, which includes twelve countries, is a clear indication of the potential reach of US norms—including effective enforcement and public participation. Centrally, the TPP, like the Peru TPA, requires all twelve trading partners to implement certain MEAs, such as CITES, making such provisions enforceable through the trade agreement’s sanction-based enforcement mechanism. Provisions related to the elimination of certain fishery subsidies, largely intractable in preexisting WTO negotiations, are similarly included and enforceable through these means (TPP, Art. 20.16). Furthermore, the TPP’s adoption of this strong fisheries language is evidence of either a fading interest or capacity in pursuing environmental objectives through the WTO, and thus signals the newly important role of regional and bilateral agreements in pursuing these objectives, instead. Most importantly, the parallel trends toward the increasing geographic scope of US PTAs, coupled with the progressively strong environmental provisions contained therein, signal an important turn in the future of environmental diplomacy and the diffusion of US environmental interests: for the first time, we are beginning to see international environmental provisions with actual enforcement teeth.
Officially titled the Dominican Republic–Central America–United States Free Trade Agreement.
Officially titled the Agreement Among the Governments of Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, and the United States of America on Environmental Cooperation.
See RD Será Sede de la Séptima Reunión del Consejo de Asuntos Ambientales del DR-CAFTA, El Nacional (Dominican Republic), May 6, 2013.
We are grateful to Hayley Stevenson, the GEP editors, and three anonymous reviewers for their comments on earlier versions of the manuscript.