Global trade in hazardous waste is a multi billion-dollar industry, where, for example, the United States' export alone tops seven billion dollars annually.(1) The export process begins when local governments and waste generators contract with private companies to send waste to foreign countries. The United States produces approximately 275 million tons of hazardous waste per year,(2) and exports between 16 and 20 million tons,(3) with the greatest share of its exported waste going to Canada and Mexico. Approximately 68 percent of exported U.S. hazardous waste goes to Canada and 27 percent goes to Mexico.(4) Waste export agreements with these countries and their proximity to the United States make them logical waste recipients.(5) However, because of relaxed disposal regulations in many developing countries, developed nations such as the United States, are increasing shipments of hazardous waste to these developing countries.(6) Since 1986, U.S. and European companies have exported waste to at least eleven developing nations.(7)
For developing nations, hazardous waste disposal has become a lucrative business.(8) For many developing countries, the contract value for hazardous waste disposal or recycling can exceed their gross national product.(9) Often, technological incentives such as construction of energy producing waste incinerators are used to entice developing countries to accept the waste.(10) These developing countries, however, are unlikely to properly regulate and maintain waste disposal facilities and therefore health and environmental problems ensue.(11)
Beginning in the 1970's, U.S. environmental legislation was aimed at eliminating economic advantages to one state at the expense of environmental quality and public health of another.(12) The world now faces a similar need for environmental legislation on an international level.(13) International efforts to regulate the movement of hazardous waste over the past decade have most recently resulted in a global convention: The Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal which entered into force May 5, 1992.(14) As of February 1995, eighty-two countries are members of the Basel Convention.(15) Although the United States signed the Basel Convention in March 1990, it has not yet ratified it.(16)
This article will analyze the United States' waste export regulations and the new requirements under the Basel Convention. After the introductory discussion of the need for improved waste export regulations, Part II analyzes the existing regulations including the recent United Nations international regulatory attempt to control transboundary flow of hazardous wastes and their disposal under the Basel Convention, as well as the United States' attempt to regulate hazardous waste export through national laws and under North American bilateral agreements. Next, Part III presents and critiques hazardous waste liability under existing U.S. domestic and treaty law, international law and the Basel Convention. Finally, Part IV analyzes the question of whether the United States' should ratify the Basel Convention.
In 1987, the United Nations Environment Programme ("UNEP") sponsored a working group of legal and technical experts to prepare a global convention on the control of the transboundary movements of hazardous wastes.(17) The Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal(18) ("Basel Convention" or "Convention") was done at Basel, Switzerland, on March 22, 1989, after two years of arduous negotiations.(19) Developing countries comprised at least half of the signatories.(20) The Convention, which was negotiated with the active participation of the United States, makes environmentally sound management the prerequisite to any transboundary movement of wastes.(21)
The Basel Convention does not ban, but permits, hazardous wastes to be imported and exported, even to developing countries under certain conditions.(22) If parties comply with the Convention's provisions, however, it is unlikely that wastes exportation to developing countries will continue. This is primarily because many developing countries are not able to manage hazardous waste in the environmentally sound manner required under the Basel Convention.(23)
Due to the number of countries involved in the Basel Convention, it has the potential of becoming the most binding and restrictive international instrument regulating the transboundary movement of hazardous waste.(24) Today, eighty-one countries plus the twelve members of the European Union, which are counted as one, are parties to the Basel Convention.(25) The United States signed the Convention on March 21, 1990, but, has not yet ratified the Convention.(26) Generally, ratification is not an easy task since it requires that each State implement legislation to effect the strict regulations put forth in the Convention.(27)
The Basel Convention requires that parties take all practical steps to ensure that the transboundary movement of hazardous wastes "is conducted in a manner which will protect human health and the environment against the adverse effects which may result from such movements."(28) The Convention presents a broad range of regulations but its most significant requirements can be summarized as follows: The Basel Convention requires the state of export to notify, or require the generator or exporter to notify, in writing, the competent authority of the states concerned (including states of export, import and transit) of any proposed transboundary movement of hazardous wastes or other wastes.(29) Parties may decide not to consent, partially or totally, to the import of hazardous wastes for disposal and may also decide to limit or ban the export of hazardous wastes or other wastes.(30) The Convention does not require a uniform definition of hazardous waste, and as long as either the exporting, importing or transit party considers the waste hazardous, the waste qualifies as a "hazardous waste."(31) Parties are obligated to take appropriate measures to reduce the generation of hazardous wastes, and to reduce the transboundary movement of such wastes to the minimum consistent with their environmentally sound and efficient management.(32) In addition, both importing and exporting parties are bound to prevent planned transboundary movements if they have reason to believe that they will not be managed in an environmentally sound manner.(33) Also, the parties agree to develop technical guidelines for environmentally sound management of hazardous wastes by importing parties.(34) Further, exporting parties have a duty to re-import hazardous wastes if their disposal cannot be completed in accordance with the contract.(35) Moreover, parties may not trade with non-parties in wastes covered by the Convention absent a separate agreement between them that satisfies standards set by the Convention.(36) Finally, a secretariat in Geneva is to organize periodic meetings of the parties and perform other functions, such as compiling and transmitting information (including news of illicit trafficking) and cooperating with states in the provision of experts and equipment in emergencies.(37)
The Basel Convention is not a self-executing treaty, but rather, a set of regulations for the sound management of the transboundary movement of hazardous waste.(38) Therefore, before a State may deposit its instrument of ratification, the Convention requires each signatory to implement domestic legislation consistent with its regulations.(39) Initially, the Basel Convention received unanimous recommendation from all the U.S. agencies that have an interest in the issue, including the Environmental Protection Agency ("EPA"), the Department of Commerce, the United States Trade Representative, the Department of Defense, and the Department of the Interior.(40) However, while the United States signed the Convention in March 1991, the United States, to date, has not ratified the Basel Convention.(41) One reason for the United States' failure to ratify the Convention may be that implementing legislation required for ratification is an onerous and difficult task given that U.S. domestic and treaty law is far from satisfying the requirements of the Convention.
B. United States Domestic Regulation: RCRA and CERCLA
The United States has made several attempts to manage the transboundary movement of hazardous waste. These attempts are embodied in two legislative acts: the Resource Conservation and Recovery Act ("RCRA"),(42) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA").(43) Unfortunately, both RCRA and CERCLA have failed to protect the interests of developing nations because they are neither fully implemented nor adequately enforced.(44)
In the United States, subtitle C of RCRA governs the entire hazardous waste cycle from production to disposal and is the main regulatory scheme dealing with hazardous waste.(45) An amendment to RCRA was adopted by Congress in 1984 to deal with exporting hazardous waste outside of the United States.(46) The amendment prohibits export of hazardous waste unless the exporter notifies the EPA Administrator of its intent to export and the receiving country's government consents to accept such waste.(47)
Critics say RCRA inadequately addresses issues associated with waste export.(48) One problem is that RCRA does not require notice and consent for wastes which the United States does not regulate as hazardous wastes.(49) Thus, even if an importing country defines a waste as hazardous or if such waste has potential harmful effects if not disposed of properly, such waste is not regulated under RCRA unless the United States defines it as hazardous.(50) Therefore, waste, which may be dangerous to human health and the environment if disposed of improperly, goes unregulated if classified as nonhazardous. In contrast, the Basel Convention does not require a uniform definition of hazardous waste, rather, it allows each party to adopt their own definition.(51) Therefore, if either the exporting, importing or transit party considers the waste hazardous, the waste qualifies as a "hazardous waste" and its transboundary movement is subject to the notice and consent regime put forth by the Convention.(52)
Another shortcoming of RCRA is that once a receiving country has consented to importing hazardous waste from an American company, the United States has no authority to nullify the agreement.(53) Therefore, even if the importing country does not have the facilities to treat, handle and dispose of the waste adequately and safely, the United States cannot stop an American company from shipping the waste. Furthermore, United States' regulations do not require any inspection or follow-up to assure that wastes are properly disposed of abroad.(54) Unlike RCRA, under the Basel Convention, both importing and exporting parties are bound to prevent planned transboundary movements if they have reason to believe that they will not be managed in an environmentally sound manner.(55) Moreover, the Convention places a duty on exporting parties to re-import hazardous wastes if their disposal cannot be completed in accordance with the contract.(56)
By imposing stricter domestic standards and inadequate export controls, RCRA may serve only to make exporting waste to countries with weak or non-existent disposal standards more cost effective to waste generators.(57) This is exactly the situation that the provisions of the Basel Convention seek to remedy.(58) Numerous reforms are necessary before RCRA begins to fulfill its legislative purpose of promoting the protection of health and the environment. Likewise, RCRA is far from fulfilling the Basel Convention's purpose of making environmentally sound management the prerequisite to any transboundary movement of wastes.
While RCRA provides prospective regulation, CERCLA provides for remedial action.(59) This action takes the form of a renewable "Superfund" to finance quick cleanups of hazardous waste sites that threaten public health, property and the environment.(60) The fund is primarily financed through a per gallon tax on the production of raw chemical products.(61) This fund is particularly useful where the responsible parties are insolvent or are delaying payment through litigation.(62) Unfortunately, to ensure that payments from the fund are properly disbursed, CERCLA requires enormous administrative expenses that divert funds from cleanups, and as a result, site cleanup does not occur as quickly as originally intended.(63)
C. United States' Bilateral Agreements: Canada and Mexico
Bilateral, multilateral or regional agreements regarding transboundary movement of hazardous waste with Parties or non-Parties are allowed under the Basel Convention.(64) If such agreements are entered into prior to the entry into force of the Basel Convention, those agreements "must be compatible with" the environmentally sound management of hazardous wastes and other wastes as required by the Convention.(65) In contrast to this "must be compatible with" standard, those agreements entered into after the Basel Convention's entry into force "must not derogate from" the environmentally sound management of hazardous wastes and other wastes as required by the Convention, and these agreements must stipulate provisions which are not less environmentally sound than those provided for by this Convention.(66) This higher "must not derogate from" standard imposed by the Convention for any new agreements, is likely designed to thwart attempts by member nations to circumvent strict Basel Convention regulations.
Like the Basel Convention, RCRA permits international agreements to govern hazardous waste export.(67) Under RCRA, international agreements are allowed when agreements between the United States and waste importing countries establish notice, export, enforcement procedures and sufficient transportation, treatment, storage and disposal of hazardous waste.(68) Prior to entry into force of the Basel Convention, the United States entered into international agreements with its two largest hazardous waste importers -- Mexico(69) and Canada.(70) These bilateral agreements contain provisions for the transboundary movement of hazardous waste between the United States and its border countries. Both agreements incorporate a prior consent scheme similar to RCRA and the Basel Convention.(71) Unlike under RCRA and the Basel Convention, however, the exporter is free to ship the waste unless Canada objects to the import within thirty days.(72) In contrast, no thirty day consent period is required to ship hazardous waste to Mexico.(73) Furthermore, neither agreement imposes compliance with any U.S. standard for treatment, storage, and disposal, but permits Canadian or Mexican regulations to govern.(74)
On January 1, 1994 the North American Free Trade Agreement ("NAFTA") became effective, thus eliminating barriers to waste trade between the United States, Mexico and Canada.(75) NAFTA parties also agreed to an environmental side agreement, the North American Agreement on Environmental Cooperation.(76) This supplemental agreement also became effective as part of NAFTA on January 1, 1994.(77)
The preamble to NAFTA states that among its primary purposes are expansion of world trade in a manner consistent with environmental protection and conservation, promotion of sustainable development, and strengthening of environmental law enforcement.(78) NAFTA lists five international environmental agreements ("IEAs") whose trade obligations take precedence over any inconsistent NAFTA provisions.(79) The list contains, among others, the Basel Convention, the U.S.-Canada Treaty and the U.S.-Mexico Treaty.(80)
While the United States has not ratified the Basel Convention, both Canada and Mexico are members to the Convention.(81) As members, both Canada and Mexico are normally obligated to uphold the stringent requirements of the Convention.(82) The stringent requirements, however, do not apply to bilateral, multilateral or regional agreements regarding transboundary movement of hazardous waste entered into prior to the entry into force of the Basel Convention.(83) Two such bilateral agreements exist as IEAs listed in NAFTA, namely, the U.S.-Canada Treaty and U.S.-Mexico Treaty. Since both agreements were entered into prior to the entry into force of the Basel Convention, the Convention indirectly applies to waste trade under NAFTA only to the extent of the less stringent standard, that is, that the U.S.-Canada and U.S.-Mexico agreements must be compatible with the environmentally sound management of hazardous wastes and other wastes as required by the Convention.(84)
As parties to the Basel Convention, this less stringent standard applies only to Canada and Mexico. Also, it may appear that since the Basel Convention is listed as an IEA within NAFTA, that the United States is also bound, as a NAFTA party, to uphold the less stringent standard of the Basel Convention. This, however, may not be the case since NAFTA also contains an "escape provision" which, presumably, the United States may apply at its discretion.(85) This "escape provision" within NAFTA states that in the event of an inconsistency between NAFTA and the trade provisions of the IEAs, the obligation of a party to use a trade measure under the IEAs "shall prevail to the extent of the inconsistency, provided that where a Party has a choice among equally effective and reasonably available means of complying with such obligations, the Party chooses the alternative that is the least inconsistent with the other provisions of NAFTA."(86) Hence, U.S. waste export shipments are in no way subject, through NAFTA, to the provisions of the Basel Convention.
Distinct differences exist between shipments allowed under the Basel Convention and those allowed under bilateral agreements. Under the Basel Convention each shipment is like a bilateral agreement that only applies for that one shipment.(87) While bilateral agreements, like those between the United States, Canada and Mexico, infer that the countries involved make up the rules for the shipment and disposal, nothing in the Basel Convention gives parties the power to create their own rules for shipment or disposal.(88) In fact, the Basel Convention leaves little room for diverging from its requirements.(89)
A. Under Existing United States' Law
Although RCRA and CERCLA provide a number of liability provisions, they do not have any mechanism to address liability once hazardous waste is shipped beyond national borders.(90) Since RCRA and CERCLA do not manifest clear legislative intent to have extraterritorial effect, courts have found that their liability provisions have only domestic effect.(91) Therefore, citizens of a foreign country may not invoke RCRA or CERCLA and are thus powerless to hold U.S. corporations accountable under U.S. law for their hazardous waste disposal activities outside of the United States.(92)
Liability provisions contained within CERCLA are stringent and attach to anyone who transports or arranges for the transportation, disposal, or treatment of hazardous wastes and to any past or present owner of a hazardous waste disposal site.(93) However, CERCLA explicitly states that it is not applicable extraterritorially.(94) Hence, like RCRA, CERCLA has absolutely no effect outside the United States. As a result, foreign governments or citizens of foreign countries do not have standing to invoke RCRA or CERCLA remedies for hazardous waste disposal conducted abroad.(95) Absent such statutory protection or international treaty protection, one means of redress available to foreign parties injured by the disposal of hazardous wastes exported from the United States is that traditionally provided by the common law tort system.(96)
In the United States, four common law tort theories -- strict liability, nuisance, trespass and negligence -- are available to plaintiffs injured by the negligent operation or maintenance of inherently dangerous domestic waste sites.(97) Recovery, however, is limited for foreign plaintiffs injured on foreign sites by the disposal of hazardous wastes exported from the United States.(98) Unless the waste exporter actually owns the foreign waste site, there can be no recovery under strict liability, nuisance or trespass.(99) Negligence may be plead; however, in hazardous waste cases, negligence actions are difficult to prove and often allow defendants to escape liability.(100) Since the tort system may not provide the necessary remedies for harms caused by inadequate disposal of hazardous waste, plaintiffs may turn to the international legal system.(101)
A fairly recent case suggests that, upon U.S. ratification of the Basel Convention, a foreign plaintiff may have a cause of action under the Alien Tort Statute.(102) The court in Amlon Metals, Inc. v. FMC Corp., dismissed the case on the ground that the plaintiffs' claim failed to meet U.S. statutory requirements.(103) The District Court for the Southern District of New York found that it had no jurisdiction under the Alien Tort Statute(104) because the complaint contained no clear allegation of a violation of the law of nations, or of a treaty.(105) If the United States had been a party to the Basel Convention at the time of the export and the defendant could be shown to have violated the requirements of the Convention for documenting waste exports, a different result might have been reached under the Alien Tort Statute.(106)
International liability could arise from general principles of international law, that is, customary international law.(107) On the question of international environmental liability, customary international law had its genesis in the Trail Smelter Case,(108) Gut Dam Arbitration/Settlement,(109) and Corfu Channel Case.(110) Taken together, these cases demonstrate that a state may be held responsible for activities originating within its territorial jurisdiction when effects of such activities extend beyond that jurisdiction and injure nationals of other states.(111)
The Trail Smelter Case stands for the proposition that no state has the right to use or permit the use of its territory in such manner as to cause injury in or to the territory of another.(112) In the Gut Dam Arbitration/Settlement, the U.S. tribunal found that under the U.S.-Canada agreement to construct a dam, Canada was liable to compensate U.S. citizens for damage caused by the dam.(113) Furthermore, the International Court of Justice held in the Corfu Channel Case, that Albania was responsible for damage caused to the United Kingdom for activities undertaken within Albanian territory of which it knew or ought to have known but failed to disclose to the United Kingdom.(114)
In addition to international case law, customary international law can be evidenced by global declarations where a general recognition is found among nations that a certain practice is obligatory.(115) The first such declaration to deal with environmental issues resulted in the Declaration on the Human Environment of the 1972 Stockholm Conference ("Stockholm Declaration").(116) The Stockholm Declaration provides that States are responsible for insuring that activities within their jurisdiction or control do not cause damage to areas beyond the limits of national jurisdiction.(117) More recently, the principles of the Stockholm Declaration were reinforced at the 1992 United Nations Conference on Environment and Development in Rio de Janeiro ("Rio Declaration").(118) Contained within both the Stockholm and Rio Declarations are echoes of the customary international law cases discussed above.(119) Indeed, these declarations, with such a massive measure of international support, have a strong claim to be regarded as a source of customary international law.(120) These declarations would, therefore, certainly impose duties on states, independently of treaties, not to engage in activities within their jurisdiction or control that, for example, would cause environmental damage to states that import hazardous waste.
Under customary international law, the liability a state may incur for acts of its private individuals or entities is a function of that state's control over those acts, whether or not they occur in its territory.(121) Since parties to the Basel Convention exercise direct control over exports of hazardous waste, ratification of the Basel Convention will, in many cases, serve to increase a state's control over acts of its private individuals or entities.(122) Therefore, parties to the Basel Convention may be subject to liability under general principles of international law.(123) Likewise, under RCRA, the United States could be a target of a law suit based on its control over American citizens who export hazardous waste.(124)
While customary international law must not be underestimated or ignored, it cannot be said to have sufficient strength to prevent damage and provide sufficient sanctions to be directed against the perpetrators of the damage when it occurs.(125) Consequently, both the Stockholm Declaration and Rio Declaration(126) call on States to cooperate to develop international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.(127) Despite efforts to develop a comprehensive liability and compensation regime, no comprehensive system has emerged.(128) Therefore, absent a multilateral, bilateral or regional agreement that contains liability provisions, individuals and entities have limited avenues for redress of environmental harm.
Several environmentally relevant dispute settlement provisions are provided under NAFTA for governmental enforcement of environmental provisions.(129) NAFTA contemplates that disputes between the Parties on matters within the scope of the agreement will be resolved by cooperation and consultation.(130) Any Party wishing to challenge an environmental measure of another Party will have the burden of proving that the environmental measure is inconsistent with NAFTA.(131) For disputes that cannot be resolved bilaterally, NAFTA establishes a Commission to assist parties in dispute settlement.(132) If the Commission cannot settle the dispute, it must establish an arbitral panel upon request of any disputing party.(133)
NAFTA further provides that interested persons may request a Party's competent authorities to investigate alleged violations of its environmental laws and regulations.(134) In addition, each Party must ensure that persons with a legally recognized interest under its law be given access to proceedings for enforcement of the Party's environmental laws and regulations.(135) Under NAFTA, private persons of the United States, Canada and Mexico may have standing to bring an action against another person within their jurisdiction for monetary penalties related to tortious conduct, emergency closures or enforcement of that Party's environmental laws.(136) No Party, however, may provide for a right of action under its law against any other Party on the ground that another Party has acted in a manner inconsistent with NAFTA.(137) Therefore, it appears that, like the RCRA, NAFTA does not provide standing for Party governments or citizens of Party governments to invoke NAFTA remedies for hazardous waste disposal conducted outside that Party's jurisdiction.
B. Under the Basel Convention
The Basel Convention avoids addressing the difficult issue of liability and calls upon the parties to cooperate in considering a protocol on liability and compensation for damage from the disposal of wastes.(138) While such an open ended provision allows for abuses in the system, it is unlikely that the Convention would have passed had this issue not been put off for later discussion.(139) The liability issue, however, must be resolved before the Convention will be able to meet its full potential.(140)
A working group of legal and technical experts met in March and October 1994 and February 1995 to work towards completing a draft protocol on liability and compensation under the Basel Convention.(141) Another meeting will be necessary before the text of the protocol is finalized for presentation to a scheduled September 1995 session of Contracting Parties of the Basel Convention.(142) To date, no liability protocol has been adopted.
The hazardous waste trade is a global problem, and like any other trade, making and saving money drives the business. With hazardous waste regulation within developed nations becoming more restrictive and disposal sites becoming more scarce, exporters in these countries are looking toward developing nations as cost-saving alternatives. The hazardous waste regulations in these developing countries are typically weak or nonexistent and their financially challenged governments are eager to sign high-valued disposal contracts. Hence, developing nations are becoming the hazardous waste dumps of the world.
The Basel Convention appears to be a global solution to the waste trade problem because it better protects the interests of developing nations. On the other hand, the primary incentive for developed nations, like the United States, to ratify the Convention is to show their commitment to an environmentally sound planet. If, however, the United States is to deposit its instrument of ratification to the Basel Convention, significant changes in domestic law will be necessary. Primarily, changes include creating authority to prohibit shipments when the United States has reason to believe that the wastes will not be handled in an environmentally sound manner. Additionally, the authority must be created to enable the U.S. government to take charge of wastes found to be illegally transported when the responsible private parties do not arrange for the environmentally sound disposal of the wastes. Further, existing U.S. legislation regulates the transboundary movements of hazardous waste only, however, the Basel Convention requires regulation of nonhazardous waste as well.
Effecting this implementing legislation is not a trivial task. Many U.S. House Bills proposing implementing laws have been presented over the last few years, however, none have been put into force.(143) Moreover, the recent changeover in the leadership of the relevant House and Senate Subcommittees will likely push off implementing legislation until 1996.(144)
Despite domestic and global pressures, the U.S. Legislature is obviously in no hurry to ratify the Basel Convention. But, for the United States, ratification of the Basel Convention may be more trouble than it is worth. Ninety-five percent of the United States' hazardous waste export is shipped to Canada and Mexico. While both Canada and Mexico are Parties to the Convention, the United States has bilateral agreements with both these countries which were entered into prior to the entry into force of the Basel Convention. Therefore, the Basel Convention effectively has no application to 95 percent of the United States' hazardous waste trade.
Further, since the Basel Convention requires much more governmental control over hazardous waste export, ratification may only serve to facilitate private environmental legal action against the United States and U.S. exporters. Injured domestic plaintiffs will likely have a stronger case under the Basel Convention than previous means of redress under RCRA or CERCLA. Moreover, foreign plaintiffs, like those living in the other 5 percent of importing countries, can use the Basel Convention to bring suit under the Alien Tort Statute.
Apparently, the United States not only lacks incentive to ratify the Basel Convention but also has some formidable disincentives. However, in time, the United States may discover that strong incentives do exist for ratification of the Basel Convention. As a non-member of the Basel Convention, the United States could be shut out from exporting waste to other member-nations. This may happen even if the United States negotiates a bilateral agreement with the importing state because any new agreements that the member-nation enters, must adhere to the requirements of the Basel Convention. Since the United States has no statutory authority to repatriate waste under the terms of the Convention, the member-nation cannot contract with the U.S. exporter. Therefore, until the United States implements legislation consistent with the provisions of the Basel Convention, the United States is barred from exporting wastes to or importing wastes from member-nations unless it has a bilateral or regional agreement entered into before May 5, 1992.
Even in the export of what the United States terms "nonhazardous" waste, the United States may be shut out of the market. United States' companies that export wastes for recycling could find themselves the victims of predatory marketing practices. Since the Basel Convention covers more materials than those classified as hazardous waste under Subtitle C of RCRA, the market could be shut off to United States' exports to member-nations.
As a world leader, and an example to all nations, the United States should ratify the Basel Convention before it appears to other countries that we had no choice. However, it does not look promising for ratification any time soon. In May 1994, the United States Chamber of Commerce withdrew its support for the Basel Convention because of an agreement by Convention partners to ban the export of hazardous wastes to nations outside of the Organization for Economic Cooperation and Development.(145) Is this environmentally sound thinking or is it money talking?
The success of the Basel Convention depends on global support. Once the disposal regulations of developing nations are as strict as those of developed countries, companies will no longer have an economic incentive to export their wastes. At such time, the most viable cost reduction method will be to reduce the quantity of hazardous wastes produced.
1. Mishandled Exports Would Be Returned To U.S. Under Administration's New Policy, Int'l Env't Daily (BNA) (March 3, 1994) [hereinafter Mishandled Exports]. In 1993, these exports were worth $6.9 billion. Id.
2. Julienne I. Adler, United States' Waste Export Control Program: Burying Our Neighbors in Garbage, 40 Am. U. L. Rev. 885, 890 (1991).
3. Mishandled Exports, supra note 1.
4. Sean D. Murphy, Prospective Liability Regimes for the Transboundary Movement of Hazardous Wastes, 88 Am. J. Int'l L. 24, 30 (1994), citing Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal: Hearing Before the Senate Comm. on Foreign Relations, 102d Cong., 2d Sess. 43 (1992).
5. Adler, supra note 2, at 891-892.
6. Michelle M. Vilcheck, The Controls on the Transfrontier Movement of Hazardous Waste From Developed to Developing Nations: The Goal of a "Level Playing Field," 11 J. Int. L. Bus. 643, 644-647 (1991).
7. Greenpeace Calls for World Ban on International Traffic in Waste, 11 Int'l Env't Rep. (BNA) 433 (Aug. 10, 1988). These countries include Brazil, Guinea, Haiti, Lebanon, Mexico, Nigeria, Sierra Leone, South Africa, Syria, Venezuela, and Zimbabwe.
8. Vilcheck, supra note 6, at 645-646.
9. Joel Millman, Exporting Hazardous Waste: From Developed to Third World Nations, 92 Tech. Rev. 6 (1989). For example, in Africa an aborted agreement to accept toxic waste from the United States and Europe would have earned Guinea-Bissau its entire gross domestic product. Id.
10. Adler, supra note 2, at 892 n.51.
11. Id. at 892.
12. Vilcheck, supra note 6, at 643, citing James A. Barnes, The Growing International Dimension to Environmental Issues, 13 Colum. J. Envt'l. L. 389, 394 (1988).
13. Vilcheck, supra note 6, at 643.
14. Status of Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 32 I.L.M. 276 (1993).
15. More Work Needed Before Protocol To Basel Convention Is Completed, Int'l Env't Daily (BNA) (Feb. 28, 1995) [hereinafter More Work].
16. U.S. Failure to Ratify Basel Treaty Seen As Environmental Justice Issue, Int'l Env't Daily (BNA) (Oct. 26, 1994) [hereinafter U.S. Failure to Ratify]; see also Lee I. Raiken, Extraterritorial Application of RCRA: Is Its Exportability Going to Waste?, 12 Va. Envt'l. L.J. 573, 621 (Summer 1993). The Basel Convention does not yet have binding force on or in the United States. Although, the United States has signed the treaty, in order for the treaty to take effect here, Congress must enact implementing legislation to fulfill one of the main tenets of the treaty, i.e., a requirement to repatriate exported waste that is not handled or disposed of appropriately, whereupon the articles of ratification are to be deposited with the United Nations.
17. Vilcheck, supra note 6, at 658. The working group was sponsored in response to growing demands from developing countries that were not satisfied with the Basel Conventions non-binding predecessor, the Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes.
18. Basel Convention on the Transboundary Movement of Hazardous Wastes and Their Disposal, UNEP Doc. I.G. 80/3, reprinted in 28 I.L.M. 657 (1989) [hereinafter Basel Convention].
19. Legislation on Global Waste Control to be Proposed by Year's End to Congress, Daily Report for Executives (BNA) (Aug. 22, 1989) No. 161.
20. Id.
21. Basel Convention, supra note 18, at art. 4 "General Obligations."
22. Id.
23. Vilcheck, supra note 6, at 647. Given the restrictions in Article 4 of the Basel Convention, it is unlikely that much of the hazardous waste movement that takes place today is acceptable under the Basel Convention.
24. Id. at 645.
25. More Work, supra note 15.
26. United States Signs Convention to Prohibit Certain Waste Exports, Daily Report for Executives (BNA) (Mar. 22, 1990) No. 56.
27. Basel Convention, supra note 18, at art. 22 "Ratification, Acceptance, Formal Confirmation or Approval." Each country that submits for ratification will be approved based on the extent of their competence with respect to the matters governed by the Convention. Id.
28. Id. at art. 4.
29. Id. at art. 6, "Transboundary Movement between Parties."
30. Id. at art. 13, "Transmission of Information."
31. Id. at art. 3, "National Definitions of Hazardous Wastes."
32. Id. at art. 4.
33. Id. at art. 4.
34. Id. at art. 10, "International Cooperation."
35. Id. at art. 8, "Duty [of export state] to Re-import."
36. Id. at art. 11, "Bilateral, Multilateral and Regional Agreements."
37. Id at art. 16, "Secretariat."
38. Id. at art. 22(3), "Ratification, Acceptance, Formal Confirmation or Approval."
39. Id.
40. Marion Nash Leich, U.S. Practice, 85 Am. J. Int'l L. 668, 675 (1991).
41. U.S. Failure to Ratify, supra note 16.
42. Resource Conservation and Recovery Act, 42 U.S.C. § 6938 (Supp. V 1987) [hereinafter RCRA].
43. Comprehensive Environmental Response, Compensation, and Liability Act of 1980 [hereinafter CERCLA], 42 U.S.C. §§ 9601-9657 (1982 & Supp. V 1987).
44. Adler, supra note 2, at 893.
45. RCRA, 42 U.S.C. §§ 6921-6939 (1982 & Supp. V 1987). Nonhazardous waste is regulated by subtitle D of RCRA, but it imposes little more than open dumping restrictions for nonhazardous waste disposal in this country.
46. RCRA, 42 U.S.C. § 6901 (1982 & Supp. V 1987).
47. RCRA, 42 U.S.C. § 6938(d) (Supp. V 1987). Within 30 days of receipt of notice, the Secretary of State must: (1) forward a copy of the notification to the receiving country's government; (2) advise the government that it must consent for the waste to be sent; (3) request a written consent or objection; and (4) send a description of the federal regulations for the treatment, storage, and disposal of hazardous waste in the United States to the receiving government. Id.
48. Adler, supra note 2, at 893.
49. Vilcheck, supra note 6, at 648. RCRA regulates all hazardous wastes that may "cause, or significantly contribute to an increase in mortality or . . . serious . . . illness . . . or . . . pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed." 42 U.S.C. § 6903(5) (1988). The EPA promulgated detailed regulations listing waste characteristics and chemicals that are to be treated as hazardous.
50. Vilcheck, supra note 6, at 648. The characteristics of hazardous waste are ignitability, corrosivity, reactivity, and extra procedure toxicity. 40 C.F.R. §§ 261.3 and 261.20-24 (1989). The types of waste which are hazardous, as well as hazardous constituents are listed at 40 C.F.R. §§ 261.30-33 (1989).
51. Basel Convention, supra note 18, at art. 3. Each Party shall, within six months of becoming a Party to the Basel Convention, inform the Secretariat of the wastes considered or defined as hazardous under its national legislation. Id.
52. Id. at art. 4. Parties shall prohibit or not permit the export of hazardous waste if the State of import does not consent in writing to the specific import. Id.
53. Andrew Porterfield & David Weir, The Export of U.S. Toxic Waste, The Nation, Oct. 3, 1987, at 34B. Unless the receiving country has enacted its own controls, there may be no regulation of disposal once the waste leaves the United States. Handley, Hazardous Waste Exports: A Leak in the System of International Legal Controls, 19 Envt'l L. Rep. 10171, 10172 n.22
(1989) [hereinafter Hazardous Waste Exports].
54. RCRA, supra note 42.
55. Basel Convention, supra note 18, at art. 4.
56. Id. at art. 8.
57. Adler, supra note 2, at 892.
58. Basel Convention, supra note 18, at "Preamble" (affirming duty to protect human health and the environment with respect to the problems related to the transboundary movement of hazardous wastes and other wastes).
59. See CERCLA, supra note 43.
60. Id. at § 9611(a) (1988).
61. Murphy, supra note 4, at 58.
62. Id. at 58.
63. Id.
64. See Basel Convention, supra note 18, at art. 11, "Agreements."
65. Id. at art. 11(2).
66. Id. at art. 11(1).
67. See RCRA, supra note 42, at § 6938(f) (Supp. V 1987).
68. Id. at § 6938(f). Sufficient transportation is described as transportation which is reasonably determined to provide adequate protection, under the circumstances, of human health and the environment. Id.
69. Agreement Between the United States of America and the United Mexican States on Cooperation for the Protection and Improvement of the Environment in the Border Area, signed at La Paz, Baja California, August 14, 1983 [hereinafter U.S.-Mexico Treaty].
70. Agreement between the Government of Canada and the Government of the United States of America Concerning the Transboundary Movement of Hazardous Waste, signed at Ottawa, October 28, 1986 [hereinafter U.S.-Canada Treaty].
71. Compare. RCRA, 42 U.S.C. § 6938(c)-(d) (Supp. V 1987) (requiring notice and consent of export); Basel Convention, supra note 18, at art. 4 (requiring notice and written consent of export); U.S.-Mexico Treaty, supra note 69, at art. III (requiring notice and consent); and U.S.-Canada Treaty, supra note 70, at art. 3 (mandating notice and consent).
72. U.S.-Canada Treaty, supra note 70, at art 3.
73. U.S.-Mexico Treaty, supra note 69, at art. III.
74. U.S.-Mexico Treaty, supra note 69; U.S.-Canada Treaty, supra note 70.
75. North American Free Trade Agreement, Dec. 8, 1992, U.S.-Mexico-Canada, 32 I.L.M. 605 [hereinafter NAFTA].
76. North American Agreement on Environmental Cooperation, Sept. 9, 1993, U.S.-Mexico-Canada, 32 I.L.M. 1480, [hereinafter NAFTA Supplement].
77. NAFTA Supplement, supra note 75, at ch. 1.
78. NAFTA, supra note 75, at ch. 1.
79. Id. at art. 104(1).
80. Id. at art. 104(1) and annex 104.1.
81. Status of Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 32 I.L.M. 276 (1993).
82. Basel Convention, supra note 18, at art. 4.
83. Basel Convention, supra note 18, at art. 11(1).
84. Id. at art. 11(1).
85. NAFTA, supra note 75, at art. 104(1).
86. Id. at art. 104(1).
87. Basel Convention, supra note 18, at art. 6(1). The State of export shall notify, in writing the competent authority of the States concerned of any proposed transboundary movement of hazardous wastes. Id.
88. Id. at art. 4.
89. Id.
90. RCRA, supra note 42; CERCLA, supra note 43. The text of CERCLA explicitly states that it does not apply extraterritorially.
91. Adler, supra note 2, at 902; see also Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668, 676 (S.D.N.Y. 1991). This court notes that while no commentators have given extensive examination to the question of whether the RCRA applies extraterritorially, those who have considered the question concur with the proposition that the RCRAs provisions in general do not apply to waste located abroad.
92. Hazardous Waste Exports, supra note 53, at 174.
93. CERCLA, 42 U.S.C. § 9607(a) (1982 & Supp. V 1987). Any person to which the liability provision attaches shall be liable for all removal or remedial action costs incurred by the United States, any state, or any person as a result of a release of a hazardous substance. Id. at 42 U.S.C. §§ 9607 (a)(4)(A)-(B). Additionally, liability will be imposed to cover damages to natural resources and the costs of assessing natural resources damages. Id. at 42 U.S.C. § 9607(a)(4)(C). The liability provisions of CERCLA is triggered if a disposed hazardous or health threatening substance is released or threatened to be released into the environment. Id.
94. Hazardous Waste Exports, supra note 53, at 174.
95. Adler, supra note 2, at 902.
96. Id. at 902.
97. Hazardous Waste Exports, supra note 53, at 171.
98. Adler, supra note 2, at 903.
99. Ann M. Burkhart, Lender/Owners and CERCLA: Title Liability, 25 Harv. J. on Legis. 371, 372-76 (1988). This is not an obstacle in situations where the waste site is owned by the waste exporter. In re Union Carbide Corp. Gas Plant Disaster at Bhopal, 809 F.2d 195, 197 (2d Cir. 1987) (implying American company may be sued in tort in American court or foreign court for injuries to foreign nationals resulting from accident in foreign country at company's gas plant), cert. denied, 484 U.S. 871 (1987).
100. Id. at 377.
101. Daniel Barstow Magraw, Transboundary Harm: The International Law Commission's Study of "International Liability", 80 Am. J. Int'l. L. 305 (1986).
102. Murphy, supra note 61, at 40.
103. 775 F. Supp. 668 (S.D.N.Y. 1991) [hereinafter Amlon]. This case vividly demonstrates the environmental dangers associated with the export of hazardous wastes. In August 1988, Amlon Metals ("Amlon") and FMC Corporation, two American corporations, entered into a contract that called for Amlon to purchase copper residue produced at a pesticide plant operated by FMC. Amlon acted as an agent on behalf of Wath Recycling, Ltd. ("Wath"), a British corporation doing business principally in South Yorkshire, England. Amlon had been hired to acquire metal residues for Wath and then shipped them abroad for drying and processing. FMC shipped twenty containers of the residue to Wath in England and the containers were eventually found to contain a number of harmful chemicals, including up to ten times more xylene than FMC had even claimed. Amlon and Wath filed a claim with the District Court for the Southern District of New York, alleging violations of, among others, RCRA and international law. The District Court held that, since the plaintiffs could not demonstrate through RCRA's language, structure and legislative history that Congress intended RCRA to apply extraterritorially, RCRA's reach would not extend past U.S. borders.
104. Alien Tort Statute, 28 U.S.C. § 1350 (1988).
105. Amlon, 775 F. Supp. at 671.
106. Murphy, supra note 61, at 40.
107. Id. at 42.
108. Trail Smelter Case (U.S. v. Can.), 3 R. Int'l Arb. Awards 1905 (1941).
109. Gut Dam Arbitration/Settlement (U.S. v. Can.), reprinted in 8 I.L.M. 118 (1969).
110. Corfu Channel Case (U.K. v. Albania), 1949 I.C.J. 57, 61 (1949).
111. Adler, supra note 2, at 906. The Restatement of Foreign Relations Law recommends imposing state responsibility when the state of origin fails "to ensure that activities within its jurisdiction or control conform to generally accepted international rules and standards for prevention, reduction, and control of injury to the environment of another state or areas beyond the limits of national jurisdiction." Restatement (Third) of Foreign Relations Law of the United States, § 601 (1987).
112. Trail Smelter Case, supra note 108.
113. Gut Dam Arbitration/Settlement, supra note 109, at 118.
114. Corfu Channel, supra note 110, at 60.
115. Geoffrey Palmer, New Ways to Make International Environmental Law, 86 Am. J. Int'l L. 259, 265 (1992).
116. Stockholm Declaration on the Human Environment (June 16, 1972), U.N. Doc. A/CONF. 48/14 & Corr. 1 (1972), reprinted in 11 I.L.M. 1416 (1972) [hereinafter Stockholm Declaration].
117. Id. at 1420 (citing prin. 21).
118. Rio Declaration on Environment and Development (June 14, 1992), U.N. Doc. A/CONF. 151/5/Rev.1 (1992), reprinted in 31 I.L.M. 874, 878 (1992) [hereinafter Rio Declaration].
119. Palmer, supra note 115, at 268.
120. Id. at 268. From June 3-14, 1992, more than 170 countries met in Rio de Janeiro for the United Nations Conference on Environment and Development, which was the twentieth anniversary of the first Conference on the Human Environment held in Stockholm, Sweden.
121. Murphy, supra note 61, at 42.
122. Basel Convention, supra note 18, at art. 4. Parties to the Basel Convention are required to prevent the export of hazardous wastes if they have reason to believe the wastes will not be handled in an environmentally sound manner.
123. Murphy, supra note 61, at 42.
124. Adler, supra note 2, at 906. Under the RCRA, the EPA's failure to fulfill a nondiscretionary duty to regulate the export of hazardous waste may give foreign plaintiffs a cause of action based on the U.S. control of hazardous waste export.
125. Palmer, supra note 115, at 268. While customary international law is flexible, it still requires that the custom be generally observed as creating an obligation under international law.
126. Rio Declaration, supra note 118, at prin. 13. States are called on to cooperate "in an expeditious and more determined manner" to develop international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction. Id.
127. Stockholm Declaration, supra note 116, at prin. 22.
128. Murphy, supra note 61, at 24.
129. NAFTA, supra note 77, at pt. V, "Consultation and Resolutions of Disputes".
130. Id. at art. 22. The consulting Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter through consultations under this Article.
131. Id. at art. 23.
132. Id. at art. 23. If consulting parties fail to resolve the matter pursuant to Article 22, any such Party may request in writing a special session of the Council. Id.
133. Id. at art. 24. If the matter has not been resolved within 60 days pursuant to Article 23, on the written request of any consulting Party and by 2/3 vote, an arbitral panel will convene. Id.
134. Id. at art. 6(1), "Private Access to Remedies."
135. Id. at art. 6(2).
136. Id. at art. 6(3).
137. Id. at art. 38. Furthermore, Article 37 prohibits a Party's authorities to undertake environmental law enforcement activities in the territory of another Party. Id. at art. 37.
138. Basel Convention, supra note 18, at art. 12. The Parties shall cooperate with a view to adopting, as soon as possible, a protocol setting out appropriate rules and procedures in the field of liability and compensation for damage resulting from the transboundary movement and disposal of hazardous wastes and other wastes. Id.
139. Vilcheck, supra note 6, at 648.
140. Murphy, supra note 4, at 25.
141. More Work, supra note 15.
142. Id.
143. Adler, supra note 2, at 889. H.R. 2525 was the only bill focusing on waste export introduced in the first session of 1989 in both the House and Senate. H.R. Rep. No. 2525, 101st Cong., 1st Sess. (1989); see also U.S. Failure to Ratify, supra note 16. H.R. 3706 was sponsored by Rep. Edolphus Towns (D-NY), to implement the Basel Convention. H.R. Rep. No. 3706, 47 DEN A-5, Mar. 11, 1994. In March 1994, Vice President Al Gore and EPA Administrator Carol Browner unveiled a set of principles for legislation to implement the Basel Convention (40 DEN A-5, 3/2/94). Id. Shortly after this, Reps. Al Swift (D-Wash) and Mike Synar (D-Okla) introduced legislation (HR 3965) for Basel Convention implementing legislation (42 DEN A-5, 3/4/94). Id.
144. U.S. Failure to Ratify, supra note 16. A new chairperson and staff members will have to be educated on the complicated issues surrounding the Basel Convention, a process that is apt to delay any action on the treaty until the second session of the 104th Congress. Furthermore, Al Swift, chairman of the Transportation and Hazardous Materials panel, which has jurisdiction over the Basel Convention, is retiring. Id. Synar who co-sponsored H.R. 3965 with Swift, lost in the primary election. Id.
145. Environmental Treaties Shifting Ways Business Conducts Activities, Int'l Env't Daily
(BNA) (June 24, 1995).
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