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Golden Gate University Environmental Law Journal

Abstract

The North American Free Trade Agreement (NAFTA)2 is now history, and, depending on where you are, as of July 1, 2020, the Canada- United States-Mexico Agreement (CUSMA) in Canada, the United- States-Mexico-Canada (USMCA) in the United States, or the Tratado entre M´exico, Estados Unidos y Canad´a (T-MEC) is in force. The renegotiation of NAFTA fulfilled candidate Donald Trump’s promise to scrap or renegotiate NAFTA in order to protect and restore United States jobs and industrial capacity and increase economic growth, themes that consistently helped define his trade agenda politically as President. But what about the environment? When NAFTA was finalized early in the Clinton Administration in 1993, North American environmental groups insisted that the agreement address their concerns that liberalized trade and investment would lead to environmental dumping, environmental backsliding, weak environmental enforcement and scale effects (i.e., more trade equals more environmental impact). The environmental provisions of NAFTA and its environmental side agreement, the North American Agreement on Environmental Cooperation (NAAEC), responded to many of those concerns, at least on paper, and set the broad contours of United States trade and environment policy ever since.

In this article, I will first review, analyze and critique the key changes that NAFTA’s replacement made to the environmental provisions of NAFTA and the NAAEC. I will then explain why the environmental provisions of CUSMA-USMCA and its ancillary Environmental Cooperation Agreement (ECA), like the environmental policy approach typical of post-NAFTA trade and investment agreements, are woefully inadequate for helping to solve urgent challenges, like climate change and loss of biodiversity, that the human enterprise faces in these ecologically dire times.

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