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 Editorials | Environmental | June 2005 
U.S. Environmental Policy Shift Worries Mexican Industry
 Business Wire
| | Modern Industry by Diego Rivera |
Queretaro, Mexico - A Mexican law firm, concerned over the shift in U.S. environmental enforcement policy that would apply U.S. law to Mexican companies with operations entirely outside the United States, today sent a formal protest to the U.S. Environmental Protection Agency about the threat the policy poses to Mexican sovereignty.
According to Robert May, a U.S. attorney and partner in the Mexican law firm of May, Cruz Consultores, the transnational enforcement of CERCLA, also known as the "Superfund" law, would impose joint and several liability on any Mexican company for the entire cost of the cleanup of contamination that might cross the border, despite the proportion really attributable to the company and without regard for the company's compliance with Mexican environmental laws.
"Such cross-border enforcement would include CERCLA's strict liability aspects despite the fact that the conduct may be entirely legal in the foreign country or that absolutely no negligence is involved," states the protest letter. The letter goes on to say, "In addition, CERCLA has been interpreted by U.S. courts as applying retroactively to conduct that may have occurred years, sometimes decades, before the statute was passed." In the view of May's firm, that could seriously harm Mexican industry.
"The Arthur Andersen case shows just how devastating a government indictment can be to an individual company," said May. "Some 28,000 employees worldwide lost their jobs resulting from the conviction, later overturned by the U.S. Supreme Court. In an environmental context under CERCLA, a similar result could occur with Mexican and Canadian companies along the U.S. borders."
In a U.S. case pending appeal, Teck Cominco, a Canadian mining company with operations entirely within Canada, is being sued to force it to comply with an EPA Unilateral Administrative Order under CERCLA.
That case has direct implications for Mexican industry. In published articles, EPA officials have indicated an interest in pursuing enforcement in Canada and Mexico.
"That policy undermines the sovereignty of Mexican and Canadian environmental laws and institutions, and violates international law," said May.
The letter was sent to EPA acting director Stephen Johnson, with copies to high-level U.S., Canadian and Mexican government officials and legislators.
The full text of the letter, and additional background materials, appear at: http://www.maycruz.com/ or http://www.maycruz.com/ingles/pasandolimite1.php |
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