Skip to comments.NAFTA could trump water regulation (Does NAFTA superseed State Rights and laws? YES)
Posted on 12/13/2002 4:30:14 PM PST by heyhey
NAFTA could trump water regulation
ANALYSTS SAY INTERNATIONAL TRADE LAWS COULD DICTATE CONTROL OF KAWC ASSOCIATED PRESS
CHARLESTON, W.Va. - International trade laws could undermine state efforts to regulate water distribution by the German conglomerate hoping to buy Kentucky-American Water Co, some legal and water-policy analysts argue.
Last week, the West Virginia state attorney general's office asked its Public Service Commission to temporarily vacate an order permitting West Virginia-American Water Co.'s New Jersey-based parent to be sold for $4.6 billion to Thames Water. Lexington-based Kentucky-American is included in the deal.
Thames is a British subsidiary of the German firm RWE Aktiengesellschaft.
The West Virginia attorney general's office said the PSC should at least consider the possible impact of international trade treaties on the sale, and some policy experts concur.
Thames officials say the North American Free Trade Agreement and the General Agreement on Trade in Services would have no bearing on their rates or other management decisions in West Virginia and Kentucky.
Regulatory approvals by all the states in which American Water operates are required before the sale is approved.
Asked at a Kentucky hearing whether Thames would give up its right to challenge state regulators under GATS and NAFTA, a company official protested that the question was too vague.
"That's such a general and unspecific request, I really don't know what I'm agreeing to," said James McGivern, managing director of Thames Water. "I don't know what international laws you're talking about. I don't know what they say."
Thames pointed out that the United States has not agreed to let GATS govern water services.
The European Commission has asked other governments, including the United States, to include water services under GATS. Those governments must respond by March 31.
Steven Shrybman, an Ottawa lawyer who specializes in international trade, said any state that would allow a foreign company to take over a water utility without examining the possible impacts of international treaties would be guilty of "negligence."
A foreign company could invoke NAFTA rules to sue the U.S. government if state regulations -- say, a ceiling on water rates -- hurt its ability to make profits, said Kristin Dawkins, vice president at the Institute for Agriculture and Trade Policy.
Under such circumstances the federal government could pressure Kentucky or West Virginia to bring their laws into conformance with NAFTA guidelines, analysts said.
In effect, NAFTA "gives foreign investors in Canada and Mexico the right to bypass the U.S. domestic court system and laws," Jim Grieshaber-Otto, former senior trade policy adviser for British Columbia, said.
Paving NAFTA's Highway
The grand idea behind Interstate 69, the proposed NAFTA highway, was to improve commerce between Canada, the US, and Mexico, and all of their 400 million people and $6.5 trillion economies.
I-69 already runs from Canada, through Michigan, to Indianapolis. South of there, however, only Mississippi has begun new construction.
Since its authorization by Congress five years ago, I-69 has had no real timetable and no real money. It could end up being more a boondoggle than a boon to continental trade.
The highway has been stuck in a quagmire of competing interests. The eight states through which the planned 1,800-mile road would run also continue to wrangle over just where it should be put.
For instance, states want the benefit of commerce and industry brought to regions that don't now have access to a major highway. Such local goals aren't in sync with the road's original purpose - to handle a doubling of trade between the US and Mexico, much of it moved by truck.
Shaving four hours' travel time off the trip between Indiana and the Mexican border (which I-69 is supposed to do) isn't worth all the angst and other tussles, including lengthy feasibility studies in Indiana and charges of construction pork.
Next year, the Transportation Department will ask Congress for $6.6 billion for the project. The rest of the $8.5 billion price tag will need to come from states, already struggling with big budget deficits of their own.
No doubt a NAFTA trade corridor can rely on more than one road. When Mexico improves its handling of rail freight, for instance, Kansas City's north/south rail routes can help get some trucks off the road. Kentucky opted for improving existing roads, rather than building new ones. Other states (including Indiana) could consider similar options.
Congress, before voting on I-69 funding, can weigh such options, and see if a mix of solutions might achieve the same purpose.
Since all three countries have takings, or partial takings, written into law in the form social welfare, labor, and environmental law and exist in the form of legislated, judiciated, and administrative(regulatory)law, NAFTA was written to supercede all these laws. Thus, if MetalClad takes hit in Mexico over enviro laws,it is a taking and they can/did win a settlement from the NAFTA arbitration panel. If Canada tries to force a US tobacco company into a certain type package label, it is a taking. Same with trucking. The US's refusal to admit mexican trucks is a taking and the fine set by the arbitration panel is $2 billion/year.
If this same protection from takings is written into the future trade areements in South America and the Caribbean, then there becomes two sets of laws: intranational and international. Those operating under the intranational set are at extreme disadvantage to those operating under the international set.
At this point SCOTUS would step in and declare every social, labor, and environmental law written in the last 100 years to be unconstitutional.
Libertarian Heaven on Earth.
"The Constitution, and the Laws of the United States which shall be made in the Persuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State notwithstanding." [italics added]
I would be in favor of a Constitutional amendment that would require that any treaty must be ratified by the legislatures of all the States with a super-majority vote of 75 percent of the full legislative body plus a 4/5 super-majority of the States overall (40 states needed to pass). It's a nice dream, anyway.
BS...The Constitution cannot conflict with itself...If a state or local law is constitutional in nature, it cannot be trumped by a "treaty"...period...If California wants to prevent tomatos with feces on them from entering it borders no treaty could prevent them from doing so...If you are correct, which all the international banksters want...then constitution is more of a joke then it is now...
With gun ports!
One small step for NAFTA, one giant leap for 'Global Governance.'
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