NAFTA and the Petrochemical Industry: A Disastrous Combination for Life at the U.S.-Mexico Border

Penn State International Law Review Volume 11 Number 3 Dickinson Journal of International Law Article 5 5-1-1993 NAFTA and the Petrochemical Industry: A Disastrous Combination for Life at the U.S.-Mexico Border Sloan Rappoport Follow this and additional works at: http://elibrary.law.psu.edu/psilr Part of the International Law Commons, and the International Trade Law Commons Recommended Citation Rappoport, Sloan (1993) "NAFTA and the Petrochemical Industry: A Disastrous Combination for Life at the U.S.-Mexico Border," Penn State International Law Review: Vol. 11: No. 3, Article 5. Available at: http://elibrary.law.psu.edu/psilr/vol11/iss3/5 This Comment is brought to you for free and open access by Penn State Law eLibrary. It has been accepted for inclusion in Penn State International Law Review by an authorized administrator of Penn State Law eLibrary. For more information, please contact . NAFTA and the Petrochemical Industry: A Disastrous Combination for Life at the U.S.-Mexico Border There is a neighborhood in Mexico, about three miles from Brownsville, Texas, near Matamoros, Mexico, that is not considered part of Matamoros. It is a "colonia" 1 which exists in the unoccupied area between two United States (U.S.) owned maquiladoras 2 which produce petrochemicals.' The one-room family homes which comprise the colonia are dirt-floored shacks built from wood strips and packing crates. The fifteen foot square shacks house three-generation families and do not provide electricity, running water or sewerage. To compensate for the lack of running water, employees of the petrochemical plants are allowed to take home discarded steel drums in order to store water. These drums were previously used to transport hazardous waste generated by the petrochemical plants, as is evidenced by the U.S. companies' logos still visible on the steel sides. The water stored in these containers is used for drinking water and bathing, but it is taken from a stream where swimming has been prohibited by the Mexican government. Discarded waste from the petrochemical plants clutters the banks of the stream and the water resembles a brownish-sludge. This unattended hazardous waste deposited by the petrochemi1. See J. Michael Kennedy, Teeming Colonias'; Border has Worst of Both Worlds, L.A. TIMES, Oct. 2, 1989, at Al. Colonias are unauthorized subdivisions of U.S. and Mexican border cities. Approximately 140,000 people have bought small parcels of land and tried to build a home along dirt roads, seeking the promise of a better life in the United States. Colonia residents live without running water or sewers and often, the wells dug for water have been contaminated by nearby septic tanks. In one colonia, two-thirds of the residents had contracted hepatitis by the time they were 35. Id. 2. See Patrick McDonnell, Border Boom Feeding Hazardous-WasteIlls; U.S., Mexican Environmental Agencies Push to Quantify Problems and Identify Polluters, L.A. TIMES, Sept. 10, 1989, at B1.Maquiladoras are 100 per cent foreign owned companies which may import all raw materials, machinery, equipment, and components required for production, free of Mexican import duties. Upon completion, the maquiladora may export all products to any other country. Id. 3. See Helene M. Cole, Renal Toxicity of Xylene, 261 JAMA 2258 (1989). Petrochemicals are volatile organic solvents that are easily absorbed through respiratory, gastrointestinal, or dermal routes. Upon absorption, petrochemicals readily cross the blood-brain barrier, producing a variety of central nervous system effects. Workers in the U.S. who have undergone long-term exposure to low levels of petrochemicals reported increased symptoms of fatigue, difficulty concentrating, and headaches. Id. See also Turning Environmental Problems into Profits, UPI, Mar. 26, 1991, available in LExis, Nexis Library, UPI File. Petrochemicals are used in the manufacture and production of goods including plastics, pesticides and petroleum products. Id. DICKINSON JOURNAL OF INTERNATIONAL LAW [Vol. 11:3 cal companies has caused serious health and environmental problems along the entire U.S.-Mexico border area. The colonia which occupies the space between the two U.S. companies has been evacuated -twice in the past two years due to accelerated levels of contamination resulting from environmental misconduct. These evacuations were only temporary and when the colonia residents returned, they continued to be exposed to hazardous levels of chemical pollution. Since January 1991, thirty-six cases of anencephaly have been reported in Matamoros." The situation discussed above raises some precarious questions. What if one of the petrochemical plants has a hazardous chemical waste accident resulting in serious environmental and health consequences on the U.S. side? Would the North American Free Trade Agreement (NAFTA) provide for any sanctions? Would the Mexican Ministry of Social Development (Sedesol) be able to take any effective action against the maquiladora? Would the U.S. government have any power to penalize or regulate the U.S.-owned company operating in Mexico? I. Introduction This Comment will discuss the issues relating to the preceding questions in a light that focuses on the introductory hypothetical situation. Section I describes the maquiladora program and its effects on the environment at the U.S.-Mexico border. Additionally, it will introduce the environmental and health problems that the petrochemical industry produces through the maquiladora program. Section II analyzes NAFTA's failure to address the environmental problems created by the petrochemical industry. Section III discusses the reasons behind Sedesol's failure to enforce Mexico's environmental protection laws. Section IV addresses potential legal solutions to redress the environmental and personal damage sustained as a result of the petrochemical companies' unsound environmental practices. Finally, Section V discusses a variety of structural adjustments that would begin to solve the problems caused by the petrochemical industry at the U.S.-Mexico border. 4. See What is Anencephaly? BORDER CAMPAIGN BACKGROUND ARTICLE #1 (Border Campaign, Brownsville, TX) 1992. Anencephaly is a fatal birth defect in which babies are born with either incomplete or missing brains and skulls. The infant usually dies at birth or within a few days. Increasing scientific data points to certain toxins, including petrochemicals, as likely causes. This coincides with the discovery of high levels of petrochemicals, such as xylene, in the Rio Grande River and on land near maquiladoras in Matamoros. The quantities discovered were many thousands of times higher than U.S. EPA standards. Id. Spring 1993] NAFTA AND THE PETROCHEMICAL INDUSTRY The Maquiladora Program and the Effects of the Petrochemical Industry on Environmental and Health Issues 11. A. The Maquiladora Program In 1965, Mexico implemented the Border Industrialization Program in a (...truncated)