Elizabeth May: Trade and the Environment
Interview by Anita Krajnc
For more than 30 years, Elizabeth May has been a leading environmentalist, author, activist, and lawyer. In the mid-1970s, Elizabeth successfully fought to protect Cape Breton forests from insecticide and herbicide spraying. In 1986, she served as a senior policy advisor to then federal Environment Minister Tom McMillan where she played a central role in the creation of several parks, including South Moresby. In 1989, after becoming the Executive Director of the Sierra Club of Canada, Elizabeth May has worked on issues ranging from climate change, biodiversity, forests, toxic pollutants, and trade and the environment. She was awarded the UN Environment Program's Global 500 Award in 1990. She is the author of four books: Budworm Battles (1982), Paradise Won: The Struggle to Save South Moresby (1990), At the Cutting Edge: The Crisis in Canada's Forests (1998) and with Maude Barlow, Frederick Street: Life and Death on Canada's Love Canal (2000).
Photo: Permission provided by Elizabeth MayAurora: When did you first become involved in trade and environment issues?
Elizabeth May: My initial engagement is one that I'm almost embarrassed to admit. It was as the senior policy advisor in the Office of the Federal Minister of Environment from 1986 to 1988. Our office assessed whether there would be any environmental implications of the Free Trade Agreement, if you can imagine. We were reassured at every turn that it was not a problem. This was a very interesting experience actually, being in Government and being in the Environment Minister's Office and having concerns, and having the trade bureaucracy in the same Government treat us pretty much the way they treated certain members of the community - we were given the brush off. And, at the time, being in the Minister's office, you would think you were actually given correct answers, about the effects on water, for example.
So my initial involvement was about the coming trade liberalization moves. I had taken courses at Dalhousie University Law School in International Law; we'd studied the GATT (General Agreement on Tariffs and Trade). I found the General Agreement on Tariffs and Trade to be a major snoozer. I couldn't see how anyone could ever get excited about the GATT. And I think no one would have been excited about trade agreements as they affected the actual commerce and trade in manufactured goods - which is what the GATT has done for so many years. But during the Uruguay Round of discussions on the GATT (1986-1994) the ground shifted under us quite dramatically (as GATT began to challenge whether a state like Canada could restrict trade with another state based on environmental or health concerns). See: www.wto.org/english/docs_e/legal_e/legal_e.htm
Aurora: When did the Sierra Club first take on Free Trade and the NAFTA?
Elizabeth May: Well, the Sierra Club has had a terrific history on this issue. In the United States, the Sierra Club actually delayed the acceptance of NAFTA through a court challenge that demanded that the provisions of the National Environmental Protection Act (NEPA) be followed, and that there should be an environmental assessment of the Free Trade Agreements (FTAs) and the NAFTA before they came into effect. By 1989, I had left Government and was heading the Sierra Club of Canada. In that capacity, and through working with the Sierra Club in the US, we became more concerned about the unanswered questions within NAFTA.
NAFTA was yet another rounding up of concerns. At that point - it cracks me up - the Liberals were in opposition. We worked on them and we worked with the NDP in opposition, asking both of them to oppose NAFTA. We put pressure on the Mulroney Government to ensure that there were environmental provisions in the agreement and we were working with our colleagues in the U.S. putting pressure on the White House to reject NAFTA entirely. There was some support in the US Congress for that; the majority leader of the Senate, Senator Richard Gephardt, was particularly concerned. One hoped that we might be able to get NAFTA rejected. When the opposition Liberals in Canada and the Clinton Democrats in the US came to power, both came with significant concerns and objections to NAFTA. In fact, Prime Minister Jean Chretien was on record as being flat out against it. So it was certainly devastating to see both the Clinton and Chretien governments accept NAFTA with only a modest nod in the direction of the environment through the negotiation of the North American Agreement for Environmental Cooperation, which created the North American Commission for Environmental Cooperation (CEC). This generally gets referred to as a side deal to NAFTA, but the CEC really isn't trade related, except in a vague way.
Aurora: When then did the Sierra Club begin to cooperate with other groups and form the Canadian Alliance on Trade and Environment? How did that evolve?
Elizabeth May: The Sierra Club of Canada initially took the initiative on that work. I think post NAFTA a number of the key activists were suffering from post-traumatic stress disorder. They really retreated. They found it hard to get a grip or find traction on the issue. In terms of NAFTA, although the majority of Canadians had opposed it, it was brought in anyway. When I became concerned was post Rio (The United Nations Conference on Environment and Development met in Rio de Janiero, Brazil in 1992). I became increasingly aware of the ongoing negotiations in the Uruguay Round, which eventually became the World Trade Organization but was then the Uruguay Round of the GATT. Later, in 1996, I became aware that the WTO had recently created a Committee on Trade and the Environment and was questioning whether negotiated multi-lateral treaties on the environment, such as the Montreal Protocol or the Framework Convention on Climate Change, might actually be considered trade restrictive or GATT illegal. The same Committee was also looking at whether voluntary national initiatives could be considered as GATT illegal.
So, seeing as the WTO was moving in directions that would be destructive to environmental protection at both multilateral and domestic levels, I approached Maude Barlow of the Council of Canadians and Tony Clarke of the Polaris Institute and told them I thought we needed to form some sort of major national campaign around the WTO. They agreed. They realized they hadn't done anything on the WTO yet and that they should. They approached the Canadian Labour Congress. We also approached one of the key Canada US Free Trade Agreement activists, who really had withdrawn after the bad experience with NAFTA - Steven Shrybman. He was no longer working with any organization and living a more rural life. Basically we recruited him out of semi-retirement. Steve is one of the most brilliant trade and environment lawyers anywhere, not just in Canada, but just anywhere. And we recruited him to work with the group back in the fall of 1996.
That fall, the first ministerial meeting of the WTO was called for December in Singapore. And, even though we didn't have any funding at that point to confront the WTO, I managed to get myself to Singapore to the NGO gatherings, which were certainly interesting but nothing like what came later with the Seattle gathering. The first ministerial meeting in Singapore was one where some of the anti-globalization activists such as Martin Khor (https://en.wikipedia.org/wiki/Martin_Khor) from the Third World Network (https://www.twn.my/) and others were present. And we began making linkages internationally as well, looking at places where the WTO represented an unprecedented threat to domestic and international environmental protection.
Aurora: What did you consider the most significant aspects of globalization at that time - the elimination of national autonomy, regulatory chill, or the democratic deficit?
Elizabeth May: I think the democratic deficit covers all of the above. What I have come to understand, as someone who is freely - not ideologically - opposed to free trade and free trade deals - is that I just have a problem with them. I understood or I thought they were about groups removing and reducing tariff barriers in terms of fairness. It was only fair, for example, that Canadians wouldn't flog manufactured cloth in Pakistan, in favor of maintaining Quebec's textile industry, when people who were poor wanted to export their products. I could actually accept a lot of that intellectually.
Where I have become very concerned about trade deals is that they no longer are about trade. They are fundamentally about power. And the WTO exemplifies a lot of these changes through the fact that it is so proscriptive. It is not really about reforming. And it is no longer only about manufactured goods but also about services. Also it can be about intellectual property, it can be about a range of things that really leads to creating an economic and political environment in which anything trans-national corporations think will enhance their profit is automatically guaranteed to them. And the things that governments need to control corporate behaviour are denied. So free trade deals create a significant imbalance by expanding the rights of corporations while shrinking the rights and duties of governments.
This all came to a head and the first major rush of public awareness on these issues in my mind happened just as we were organizing on the WTO. We were fortunate. While I was in Singapore at the first ministerial meeting, I got a phone call that we had some resources to work with to expand the coalition. And Tony Clarke from Polaris Institute became concerned about investment treaties. Again, to me the concept of investment wasn't immediately a trigger for alarm because the word itself - investment agreement - didn't suggest a huge problem. But we agreed that Tony should research it, because we heard there was something very interesting going on. And I certainly heard Canada in Singapore at the WTO pushing very hard for a multilateral agreement on investment, which at that point was described as a multilateral investment agreement - the acronym changed later on to MAI…
In Singapore, at the first WTO ministerial meeting, the developing countries dropped the agenda item asking for an investment treaty to be negotiated within the WTO. The scene of negotiations shifted to the Organization for Economic Cooperation and Development (the OECD). But Canada had pushed very hard at the first ministerial meeting in Singapore in December for an MAI. I couldn't quite see the point. It wasn't until Tony Clarke and others somehow obtained the text (somehow the text of the draft agreement for MAI at the OECD was found by our side and placed on the website at Public Citizen, Ralph Nader's group in Washington (www.citizen.org/). That began to make it quite transparent what the problems were in investment treaties, including the really significant environmental impacts of the trade agenda.
The MAI itself proposed to give corporations anywhere in the world or at least anywhere within the OECD countries, which is all the industrialized countries, the right to sue governments for damages created by regulatory changes of any kind that affected the potential for profit of various corporations.
Just as we were reading the text of this agreement and realizing that its implications were huge, another issue emerged in Canada. At the time, it was an extraordinary coincidence. The Sierra Club in Canada was working to get government to try to ban the substance called MMT in Canadian gasoline. MMT is a manganese-based neurotoxin produced by Ethyl Corporation.
And during the time we were trying to get the bill through the House of Commons and the Senate, Ethyl Corporation hired as their lobbyist a Canadian who had been the negotiator of NAFTA, Gordon Ritchie. I can remember distinctly reading in the pages of the business section of the Globe and Mail, Gordon Ritchie, arguing on behalf of Ethyl Corporation, that if Canada bans MMT they will challenge their position under NAFTA. At the time it seemed like an empty threat. It seemed absurd, that they could use the investment provisions of Chapter 11 of NAFTA that spoke to expropriation as a way of suing Canada for banning a dangerous substance. In fact, that's exactly what happened. So, we had been aware of this threat from Ethyl Corporation. But the Bill got through the House and got to the Senate and virtually simultaneously with the obtaining the OECD/MAI draft came the news that Ethyl Corporation was indeed suing Canada for, I think, $100 million dollars, maybe more and charging that Canada by banning MMT had caused them lost profits. Interestingly, under Chapter 11 they were claiming damage to their reputation. The mere fact that MMT and the dangers of MMT had been debated in the House of Commons and had been banned was hurting their reputation globally, and therefore Canada owed them money.
So, the timing of all of this was extremely coincidental. Fortunately, we'd already organized as a common front against the WTO. We had a small amount of funding and we were able to take the campaign national in a broader coalition to say "look, this is what they're proposing to do globally, and if you don't think this is going to effect the environment you can check out what's happening based on Chapter 11 of NAFTA, which is already being used to attack Canadian laws that protect the environment" - because the ban on MMT was for both human health reasons and for environmental reasons.
The MAI protests took off from there. We were successful in a global coalition. We worked globally, as well as in Canada, to raise awareness of the threat of MAI. The MAI negotiations fell apart. This was a huge victory for democracy and for the anti-globalization movements around the world. Meanwhile, Chapter 11 had gotten worse and worse.
Aurora: What are your fears about Chapter 11 now?
Elizabeth May: Well, they are not fears. They are realities. Every time Cabinet takes any regulatory action to ban a substance it faces a major lawsuit if the manufacturer of that substance is based in the United States. It's a huge problem. The chilling effect is enormous. So banning a chemical has become more difficult and it was never easy in Canada. Laws about pesticides and toxic chemicals tended to give the toxic chemicals virtual constitutional rights or innocence until proven guilty. There was a very high hurdle to get a toxic substance banned before Chapter 11. Now, it's that much worse. The impact of the Ethyl Corporation decision was very significant. The Chretien government chose to settle the matter before getting to final arbitration.
For anyone who doesn't know, Chapter 11, the WTO or the MAI, challenges under these institutions, either proposed or real, are not court challenges. There is no actual court involved. It is treated as though it is arbitration between parties who have a private commercial interest, not a public interest. In the case of Chapter 11, when there is a suit brought by a company against the government, there is a three-person panel appointed. And the panel meets in secret. All the documentation going to the panel is secret. The US Corporation, MetalClad, sued Mexico over a decision of a small state called San Luis de Potosi because MetalClad felt they had a right to build a toxic waste facility in San Luis de Potosi. Under Chapter 11, the panel told Mexico that it owed the US Corporation tens of millions of dollars. When Ethyl Corporation sued the Government of Canada, apparently the gossip in Ottawa was that Chretien told John Manley, who was Minister of Industry, to make the problem go away. So, rather than having Environment Canada and Health Canada officials defend the ban, Canada caved on this. In the settlement, Canada agreed to give Ethyl Corporation $13 million dollars US, as well as an apology, and removed the ban on MMT.
So a toxic substance goes back into our gasoline with no health studies into the effect on children's neurological development, or premature aging in the elderly, which are the two primary things we are concerned about. Ethyl Corporation's settlement was taken out of the core budget of Environment Canada, and of course we gave them a written apology and as soon as the MTT decision came down the same lawyer that represented Ethyl Corporation - Barry Appleton - announced another US company was going to sue Canada, and this one is called SD Myers. It is a PCB disposal company out of Ohio. And SD Myers won in the arbitration $15 million in damages against Canada, for a ban that lasted less than two years on the export of PCB contaminated waste from Canada to the United States.
That's an appalling position on many, many levels. One of them being that in NAFTA Chapter 24 it says multilaterally agreed upon treaties for the environment should not be subject to NAFTA trade discipline. So it specifically references the Montreal Protocol, the Convention on the International Trade of Endangered Species, and the Basel Convention on Hazardous Wastes, as agreements that are basically behind the firewall so that NAFTA can't get at them. Interestingly enough, of course, banning PCB hazardous waste exports is completely consistent with the objectives of Basel. But the arbitration panel decided that since the US had not yet ratified Basel, Canada couldn't rely on it to explain what they had done in banning the export of PCBs to the US.
What it comes down to is that regulators have to think twice, three times, and four times about the risk of banning a substance or changing procedures and regulations around protecting the health of the environment if a US based manufacturer is involved. In a few years, we will have to worry about a Mexican based manufacturer under NAFTA, but the reality is US corporations are suing in Canada and suing in Mexico.
There is one case of a Canadian manufacturer suing in the US, which is a company called Methanex of BC, which manufacturers another gas additive called MTBE. Methanex is suing the US government over a ban in the state of California on the use of MTBE, which is a carcinogenic substance and which is leaking into groundwater in California. That one, of course, caused a lot of excitement in the US because a Canadian company was suing the US. The Americans hadn't really noticed American companies suing Mexico and Canada.
Pierre Pettigrew, who is Minister of International Trade, has said several times that Chapter 11 needs to be clarified or renegotiated, but last year in Quebec City at the Summit of the Americas, Prime Minister Jean Chretien said flat out that Chapter 11 was working well and he did not see any need to worry about it.
So it's a huge problem, because it means that we are just not seeing reactions where we should and we're reversing good decisions made by the Parliament of Canada. Nothing could be more obviously anti-democratic than to have a company, which manufactures something toxic and dangerous, have the ability to overturn decisions of the House of Commons and Senate of Canada. Or, if Parliament does choose to overthrow these positions, to fear having to pay huge penalties to the corporation involved.
At another level, although they are not investment agreements, the same kinds of decisions have been taken at the WTO around efforts to protect health. For example, the European Union efforts to keep hormone treated beef out of their market. France banned Canadian beef because of hormone injections, which Canadians routinely inject. Europe lost in the WTO when Canada and US challenged their restrictions on hormone treated beef. Now there is a litany of cases before WTO largely based on health and environment measures. The first case was an attack on US EPA agencies Clean Air reformulated gasoline. Basically the Government of Venezuela brought the suit, but it was the refineries of Venezuela who had fought regulatory measures to improve air quality in the US. The US based oil manufacturers, when they couldn't get the regulation killed in the House and the US Senates, were able to go to Venezuela and get the Venezuelan government to challenge the US EPA ruling. Lawyers in a lot of companies are working to figure out how to use these trade laws to knock back and shut down domestic regulations to protect health and the environment.
Aurora: You have explained how corporations are active on many levels, local, national and international. To what extent are NGOs active as well, and what levels are most effective for intervention?
Elizabeth May: All of the above. In typical Sierra Club fashion we've always had, since John Muir and the fight to stop the Hetch Hetchy Dam, a massive national letter writing campaign, grassroots activism, and an insider campaign based in Washington. There has always been this inside/outside and grassroots and national approach. The difference now is that we are able as an environmental group or groups interested in trade and environment to make those links internationally through combinations of the occasional face-to-face meeting, augmented by active use of the Internet. So, it is clearly an international movement. It was absolutely essential in knocking out the MAI.
Canada was ahead of other countries in this. Luckily the coalition was already established when we came in front of the WTO. We would not have done it alone. In terms of influencing governments, the key government shift came from France. The French Minister of Culture had not been consulted about the MAI and other Ministers began to look at it in other countries. But France did a lot to derail the MAI.
Interestingly enough, in Canada, reservations increased as public pressure increased. We went from Minister of Trade Art Eggleton to Sergio Marchi. It was quite ironic. Marchi had banned MMT. His next portfolio was international trade and he suddenly had to deal with criticism of the MAI. He started saying things like "I'm not going to sign any deal that does not protect the environment in the following ways etc. etc." Now, many in the anti-globalization movement regarded Sergio Marchi's position as so much hot air and propaganda. But in slight ways, incremental ways, Canada was also upping the ante concerning what had to be in the MAI agreement, before they could sign.
It was clear around the table that none of these countries had the same enthusiasm for the MAI once in the public domain, than when it was entirely secret.
Aurora: How effective was your intervention in the negotiations? And how did the group prepare?
Elizabeth May: We managed to participate in two days of advanced meetings with NGOs from all around the world. Something about the MAI made it an immediate rallying point. We had major information sharing before going into the OECD to talk to the negotiators. Two days of advanced meetings to figure out what we were going to do at that meeting, and afterwards globally. When we met with the OECD negotiators about our concerns, many were completely stunned by the news from Canada of how Chapter 11 was being interpreted. Of course, the MAI was largely being based on Chapter 11. We told them about the Ethyl Corporation case. They were stunned. Major players in the negotiations appeared to be completely unaware that the Ethyl Corporation was suing Canada over their neurotoxic gasoline additive. So it certainly led to more qualms internally and increasing obstacles within the negotiating group when they started to realize, like a Dr. Frankenstein that doesn't notice, the monster on the lab table. No question, it was both the internal and the external pressure that killed the MAI.
And we did not stop there. The next item on our agenda, and fortunate for the movement in terms of global visions was Seattle. The Clinton Administration was so obliging to offer to host the next meeting of the WTO in Seattle. It wasn't as if it took days or weeks for it to dawn on the community of activists who had success on the MAI that Seattle was the next rallying point. It was obvious in 30 seconds that a liberal, aware city like Seattle, with proximity to the Canadian border, was going to be a gift to us. It was immediately obvious.
Aurora: What about post Seattle, how have you continued to respond to the WTO?
Elizabeth May: Since Seattle, Pierre Pettigrew has appointed me to an advisory group on International Trade (environment sector). There is not much access but it is a point for at least dialogue and debate. As I said earlier, one of the strategies John Muir stated over and over was "to be prepared to work on the inside as well as on the outside." So, even though it is limited in access and information, it creates a good precedent for grounds of openness. I don't think you can negotiate these agreements successfully unless you do them by stealth. So making a trade agreement text available for the public, for critics, is really important.
Up until Seattle, every single environment and health decision regulation that was challenged had been found to be GATT illegal by the panel: beef growth-hormones, the Venezuelan additive case, shrimp, cigarettes in Thailand. Every time it was challenged, it lost. At some point, for the WTO to preserve its own legitimacy, it actually had to find that sometimes yes you can have a ban on a product for health reasons. In the case of asbestos they ruled that you could. The rationale was not such a great precedent but they will certainly say "we are more aware, we are looking at the original GATT, article XX, which says you are not subject to trade restrictions if you are banning a product or restricting a product based on concerns for public health or what they called in the1950s, protection of natural resources."
So, there are little tiny baby steps in terms of openings and in terms of recognizing sometimes you do have a right to not trade, but the reality is that post WTO the negotiation of the Kyoto Protocol, for instance, does not include using trade measures as a sanction for enforcement, although the Montreal Protocol did. The main reason is the chilling effect of the WTO.
Aurora: On the subject of the Kyoto Protocol, can you explain Canada's reluctance to ratify the climate agreement?
Elizabeth May: Straightforward politics on this one. If George Bush is not signing, we're not signing. When George Bush said the United States would not ratify and was walking away from it, we were still working towards Kyoto. We sent Herb Gray, who did a good job. The PM was involved at the G8 in Genoa and salvaged the agreement at Genoa, so that it required 55 nations representing 55 percent of the world's emissions to sign. Unfortunately, when the US walked, it did not walk with just one vote, it walked with 25 per cent of the world's emissions. Canada's diplomacy was to keep Japan and Russia in Kyoto and make sure there were enough parties to ratify. What's happened since then is really very shameful. The fossil fuel industry lobby fought bare knuckle to stop Kyoto. Elements of the business lobby, certainly the Business Council on National Issues and Tom D'Aquino, and CEOs from Imperial Oil and other large industry players, complained this was going to cause economic ruin for Canada. Quite shamefully a number of Cabinet ministers began waffling on Kyoto. I think Alan Rock, as Minister of Health, was in favor of Kyoto but as Minister for Industry and also a potential leadership candidate, he was not so sure Kyoto was the right way to go. Senator Nick Taylor, who is from Alberta, an oilman and Liberal, publicly criticized Alan Rock who changed his position in order to get donations for his leadership bid from the oil patch. Things got very dirty and very nasty. I think Canada will still ratify but it is going to take a much stronger push back from the public than we have been able to mount so far. And its going to take a lot more pressure from Canadians to say we want to be on the right side of this issue in order to start the slow gradual process of getting our economy to be less dependent on fossil fuels.
If the world only cared about greenhouse gases and climate change as much as it cares about intellectual property rights, we would solve the climate change problem. It is very clear that we know how to negotiate international agreements that work. We negotiate the corporate agenda, but on environmental things, were left with agreements that are virtually toothless.
Anita Krjnac is a Skelton-Clark post-doctoral fellow in Canadian Affairs in the Department of Political Studies at Queen's University. She is completing a book project on how social movements are adapting their strategies and tactics in the face of neo-liberal globalization.
Budworm Battles,1982Fighting NAFTA
http://vault.sierraclub.org/planet/199711/nafta.asp
On Leaving Government and Becoming a Writer
www.umanitoba.ca/outreach/cm/cmarchive/vol18no5/elizabethmay.html
How to be an Activist by Elizabeth May
Canadian Centre for Policy Alternatives
Polaris Institute
For further updates on Elizabeth May, visit her website: http://elizabethmaymp.ca/
Elizabeth May's Blog: http://www.greenparty.ca/leader/blog
Elizabeth May stepped down as Executive Director of the Sierra Club of Canada in March 2006 to run for leadership of the Green Party of Canada. In the 2011 Election, Elizabeth made history by being the first Green Party candidate to be elected to the House of Commons. She is the Member of Parliament for the riding of Saanich-Gulf Islands.
Elizabeth is the author of seven books, including her most recent Losing Confidence: Power, Politics and the Crisis in Canadian Democracy. Elizabeth holds three honorary doctorates, and the Elizabeth May Chair in Women's Health and the Environment at Dalhousie University was created in her honour. She has served on the boards of numerous organizations, including the International Institute for Sustainable Development and as Vice-Chair of the National Round Table on Environment and Economy and is currently a Commissioner of the Earth Charter International Council. Elizabeth became an Officer of the Order of Canada in 2005. In November, 2010, Newsweek magazine named her "one of the world's most influential women."
Article published Summer 2004. Interview conducted May 2002.
Updated March 2018
Aurora Online
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Anita Krajnc(2004) Elizabeth May: Trade and the Environment Aurora Online