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American University Case Study No 142
http://gurukul.ucc.american.edu/ted/NEW.htm

New River Pollution in Mexico (NEW)
Draft Author: Ted Pauw
American University, 4400 Massachusetts Avenue, N.W.
Washington, D.C.20016-8019 (202) 885-2270

CASE NUMBER: 142
CASE MNEMONIC: NEW
CASE NAME: New River in Mexico

I. IDENTIFICATION

1. The Issue:

The New River is the dirtiest river in the United States. It was formed in the early 20th Century when U.S. farmers were trying to reroute water from the Colorado River. Since its inception, farmers have viewed it as a disposal cite. At the end of the 20th Century, after more than 50 years of bureaucratic stalling from Washington, the prospects for cleaning up the river are good.

However, complete restoration of the river will take at least 10 years. It is more likely that the pollution generated in the Mexicali, Mexico area as a result of maquiladora-related activity will be addressed before the pollution generated by the farmers in Imperial Valley, California and Mexicali Valley, Mexico. The important question in this and other cases related to the U.S.- Mexico border is whether free trade will encourage Mexico to clean up its environment or whether free trade will degrade the environment further.

2. Description:

The New River is renowned as being, unequivocally, "one of the dirtiest in the western hemisphere." In the early 20th Century, the river was created to provide irrigation for farmers in Imperial Valley, California. Engineers were trying to tap the Colorado River in Mexico to avoid U.S. federal government regulations. Their intention was to create a canal that started in Mexico and went to the Imperial Valley. The method used to tap the Colorado River was poorly designed and it broke in 1905. The Colorado River was entirely diverted for 18 months. By the time the river was diverted back to its original path, the New River and the Salton Sea were created.

The source of irrigation water came from the Colorado River. The origin of the New River is 10 miles south of the California - Mexico border. It passes through Mexicali and Imperial Valley before flowing into the Salton Sea, which is 60 miles north of the border.

Pollution is collected from three primary sources: the maquiladoras in Mexicali, agricultural runoff in Mexicali Valley and runoff in Imperial Valley. The waste eventually flows into the Salton Sea. Essentially, there are two environmental problems: the pollution that constantly inundates the New River, making it a life-threatening hazard to humans and other animals, and the pollution that collects in the Salton Sea, which threatens wildlife that depend on the sea. As with many environmental problems, the pollution generated in this case is the direct result of economic activity.

In the case of the farms in Mexico, exports are a significant factor in production. At Imperial Valley farms, exports are not a significant factor in production. Regarding the maquiladoras in the Mexicali, Mexico area, trade is integral to pollution. The rise in the number of maquiladoras has increased the population in Mexicali. The maquiladoras were designed to be an export sector for Mexican industry. The increase in population has caused a rise in the volume of sewage. Much of the sewage is not treated.

The health risk of the river is acute. As of now, 28 viruses are known to exist in the river, for example, typhoid, salmonella, polio, e. coli, hepatitis A, shigellosis, and staphylococci. Some of the chemicals known to exist in the river are DDT, dicholomehtnae, polychlorinated biphenyls, and pesticides.

Two examples illustrate the danger the river poses. One regards a man who was murdered: the police originally thought "the man had been burned to death, but they later discovered the chemicals in the New River had simply eaten the flesh from his bones. The second concerns a woman who became ill: a woman who visited the New River contracted encephalitis, carried by mosquitos which breed in the New River.

Pesticides, in particular, are a health risk. Pesticides are a threat to the workers who use them; they leach into the fruits and vegetables and ground water; in addition, the wind can blow them into non-farm areas, causing additional danger to humans and the environment. Furthermore, the extent of health risk that wind-blown pesticides pose is unknown.

The impact on the wildlife is severe. The fish in the New River have dangerously high levels of DDT and other chemicals in their system. Fishermen would be well advised to carefully screen their catch. The wildlife in and around the Salton Sea are devastated as well. The U. S. Fish and Wildlife have confirmed that selenium from farms has reduced the number of embryos of the Black-Necked Stilt by 4 percent. In addition, the rise in the level of salinity is due to farm runoff. If the level of salinity is not reduced, the fish population could die off completely.

Since the creation of the New River, it has been viewed as a means of pollution disposal. In addition, at least since 1944, the river has had severe pollution problem. The International Boundary and Water Commission (IBWC) stated that the river was the "most urgent" of all the border sanitation problems. Local residents of Imperial Valley have tried to get the federal government to take action for over 50 years.

The Mexicans have made progress in cleaning up the river. In the 1980s, it built a wastewater treatment plant to reduce the amount of untreated sewage and waste that entered the river. Despite this, sewage and industrial waste enter the river. The long term goal is to reduce emissions into the river entirely. Officials believe that by controlling the waste at the Port of Entry east of Mexicali, the pollution from the industrial activity in the Mexicali area will stop.

In 1995, both governments are attempting to address the environmental degradation. Construction on Mexicali II, the second wastewater treatment plant, began in 1993 yet financing of the project is not complete. Financial estimates for Mexicali II have ranged as high as $400 million but the IBWC believes that a facility can be built for $60-$100 million and be completed in a period of 5 years. To date, the EPA has pledged $47. 5 million. NADBank, created by the NAFTA to fund projects such as this, will contribute to the project but the amount has yet to be determined. Clearly, funding is still needed for the project.

Currently, the IBWC is managing the project but the management of the project will switch to the BECC, a NAFTA body. According to the NAFTA Supplemental Agreements, the BECC, which is created by the NAFTA, is authorized to perform a variety of activities. Part 3, Article 10 of the NAFTA Supplemental Agreements outlines the functions of the BECC.

In addition to the treatment plants, the EPA is contributing to the clean up effort by trying to assess which toxins are in the river. In October 1994, the EPA subpoenaed 95 companies to find out which companies were putting waste into the river. Only 25 of the 95 firms complied with the subpoena. After conducting tests, the EPA plans to "encourage firms to pre-test waste water before discharging it." This project is ongoing. Regarding pesticides, substantial solutions for the pollution caused by the pesticides have not been forthcoming yet.

The environmental risks and health risks have existed for many years; solutions are slow in coming. The New River pollution problem is an urgent one. According to Duncan Hunter Congressman from San Diego, there is a risk that the cost of clean up could become prohibitive, if permanent solutions are not enacted in the near future.

The purpose of the following list is to allow a researcher to pursue this case further, by focusing his research on specific participants (see Table 142-1).

Table 142-1

Agencies with Interests in the New River

 

3. Related Cases:

Keyword Clusters

  1. (1) SIC = FOOD
  2. (2) Geography = DRY
  3. (3) Environmental Problem = Pollution Sea [POLS]

4. Draft Author: Ted Pauw

II. LEGAL CLUSTERS

5. Discourse and Status: AGReement and INPROGress Both countries are working together to bring Mexican regulatory standards for pesticides into agreement with American standards. This is not to say that the Mexican regulatory standards are poor; there are well over 60 pesticides for which each country must set a standard. Different countries have different opinions. The Food and Drug Administration (FDA) signed a Memorandum of Understanding with Mexico which "helped establish regular communication between the two countries."

In the case of maquiladoras, the United States and Mexico have worked together for many years to solve this problem. The two countries signed the Border Environmental Agreements in 1983 (see LAPAZ case). This agreement addressed a host of border environmental problems. The 1983 agreement allows both countries to þprevent, reduce, and eliminate sources of air, water, and land pollution in a 100-kilometer wide zone along each side of the boundary." For the first time in their working relationship on environmental issues, the two countries defined the principal goals for environmental problems on the border.

The Annex III to the 1983 agreement, which was signed on November 12, 1986 has importance in this case also. It concerns hazardous waste created by maquiladoras. According to Mexican law, hazardous waste created at the maquiladoras by raw materials from the United States must be returned to the United States.

This annex assists this process. The NAFTA is responsible for governing a variety of issues; one of them is the cross-border pollution relating to the maquiladoras. However, it is a weak environmental document because it does not provide for rigorous enforcement. It calls for countries to "consider implementing in its law any recommendation developed by the Council under Article 10(5)(b)" and to "consider prohibiting the export to the territories of the other Parties of a pesticide or toxic substance whose use is prohibited within the Party's territory." This wording allows for countries to ignore environmental concerns. Further, the NAFTA's provisions can be used only if Mexico's laws which deal with pollution are not being enforced. In addition, the U. S. must provide evidence that there has been a "persistent pattern" of failure to enforce those laws(see NAFTA case).

6. Forum and Scope: NAFTA and BILATeral

7. Decision Breadth: 2 (USA and Mexico)

8. Legal Standing: TREATY

The legal standing of this case has grown in complexity over the course of 100 years. The first agreement to work together on border issues was signed in 1889. The agreement is known as the International Boundary Convention, which established the IBWC. The Water Treaty of 1944 allowed the IBWC to enforce agreements between the U. S. and Mexico. Activities included making wastewater collection systems. Its actions are related to "planning, construction, operation, and maintenance of joint works, cost sharing and other aspects of joint activities."

In 1983, the Border Environmental Agreements was added as a way to address numerous border environmental problems. The 1983 agreement allows both countries to "prevent, reduce, and eliminate sources of air, water, and land pollution in a 100-kilometer wide zone along each side of the boundary." For the first time, the agreement defined the principal goals for environmental problems on the border.

Annexes II & III have relevance to this case. Annex II was signed on July 18, 1985. Annex II and the 1988 Joint U.S.-Mexico Contingency Plan for Accidental Releases of Hazardous Substances Along the Border established the Inland Joint Response team (JRT). The JRT is authorized to respond to emergencies associated with oil and hazardous substance spills. Currently, the legal standing rests in several places. The principal place is the NAFTA. Either of the two countries can file complaints to the Commission for Environmental Cooperation. However, interest groups and organizations, such as Greenpeace, can file petitions to the EPA, demanding action for alleged violations.

As noted in the Description, as a result of a petition submitted in 1994, the EPA subpoenaed 95 U. S. companies in 1994 under the Toxic Substances Control Act (TSCA). Both countries can use current laws to force maquiladora owners and farmers to comply to current regulations. Mexico passed the 1988 General Ecology Law which covers maquiladora-related pollution.

In the United States, the following laws are relevant: the Resource Conservation and Recovery Act, concerning hazardous waste, the Toxic Substances Control Act, Section 11 can be used to issue subpoenas to obtain information from companies regarding chemical "use and release", the Clean Water Act, the Migratory Bird Treaty Act, and the Endangered Species Act (see TIMOWL case). Another relevant factor is the existing legal systems in each country.

Both countries "enact, develop, implement, and enforce their laws, regulations, and standards within different legal systems and frameworks." The U.S. system is built on a tradition of common law. Mexico's system is built on civil law, which relies less on the judiciary for þdeveloping and interpretingþ the law.

The primary difference between the two systems is that enforcement lies principally within the executive branch in the Mexican system, whereas, in the U.S. system, the judiciary is much more involved in enforcement. This points to potential breakdowns in the enforcement process because it increases the likelihood that Mexican officials could be bribed by unscrupulous maquiladora managers and farmers.

III. GEOGRAPHIC CLUSTERS

9. Geographic Locations:

10. Sub-National Factors: YES

California state law is also relevant. It has numerous laws which cover a wide variety of environmental issues pertinent to this case. The Fish & Game Code section 5650 relates to pollution of water þwhere it can pass into waters of this Stateþ; this has direct implications for this case. The Fish and Game Code section 7710 provides for the protection of endangered species.

Health & Safety Code section 5410 covers sewage and other waste. The Pesticide Contamination Prevention Act 1986 deals with the runoff and absorption of pesticides into the soil and the groundwater. Standards must be at least as stringent as the EPAþs standards. There are also statutes under the following headings:

Water Quality and Wildlife that are relevant. Moreover, the State of California has provisions to handle emergencies. In the event of an emergency, the Governorþs office of Emergency Services has the authority to act appropriately regarding New River issues.

11. Type of Habitat: DRY

The habitat around the river has a tendency to be a little wetter than the rest of the desert. Surrounding the Salton Sea is 2,200 acres of marsh, encompassed in the Salton Sea National Wildlife Refuge.

IV. TRADE CLUSTERS

12. Type of Measure: Regulatory Standard [REGSTD] The maquiladoras and farmers are required to dispose of pollutants in ways that are not harmful to the environment. The farmers in the Imperial Valley use tributaries connected to the New River as drainage ditches. Don Cox, director of the Imperial Irrigation District, said that drainage ditches and the New River are essential to prevent the farms from becoming too salty to grow produce. The tributaries drain the fertilizers, pesticides, and salts from the farms.

13. Direct vs. Indirect Impact: DIRect

14. Relation of Measure to Impact

15. Trade Product Identification: FOOD

The products in this case concern products produced by the farmers along the New River, as well as by the maquiladoras in Mexicali. The farmers produce a variety of fruit and vegetables. The maquiladoras produce electronic materials and supplies, manufactured products, transportation equipment, petroleum products, plastics, metal-related products, and medical supplies.

16. Economic Data:

The economic impact on local economies in the Salton Sea and Imperial Valley area is quite severe. The Salton Sea area has a $76 million tourist industry. Avid bird watchers add $3.1 million to the local economy annually. The pollution generated by the farmers and the maquiladoras decreases the number of animals which rely on the sea; as a result, the beauty of the sea is affected adversely. For this reason, between 1986 and 1993, the number of tourists visiting the Salton Sea State Recreation Area dropped by 66 percent. In Imperial County, the unemployment rate was 30 percent as of March, 1994. At that time, the nation as a whole was experiencing an economic boom.

Regarding the Mexican agricultural component of the pollution, the U.S. receives a significant percentage of all its fruit and vegetable imports from Mexico. The U.S. market is an important aspect of the agricultural sector south of Mexicali.

The issue of the maquiladoras in and around Mexicali is particularly disturbing. Currently, the population is 710,00 in the Mexicali-Calexico area. The U.S. Council of the Mexico-U.S. Business Committee estimated that by 2003 the population will be 900,000.

This creates a tremendous pressure for jobs and the number of maquiladoras could increase as a result of the increased number of worker. The number of maquiladoras in Mexicali in 1991 was 122 and the number of employees was 19,400. The number of maquiladoras in January 1995 was a little higher at 125, with 19,772 employees.In addition, social services, need to be provided and without proper social services for these people, the risk of environmental abuse increases.

The State Department estimates that the NAFTA would open up opportunities in Mexico for industries away from the maquiladora sector, thereby reducing the amount of pollution generated in the area. This is encouraging since the maquiladora trade has ballooned since 1980, increasing from $4.3 billion to $27.5 billion along the entire border area (see TIJUANA case)..

17. Impact of Trade Restriction: LOW

Currently, the problem with the regulations is enforcement. In Mexico, enforcement is very lax and evasion is easy. Bribery of officials is also a problem. Recently, more officials were hired to enforce the environmental regulations but the effectiveness of the new regulators is unclear at this point.

18. Industry Sector: FOOD

The products range from dates in the Imperial Valley to strawberries in Mexico. Table 142-2 contains agricultural data for Imperial Valley in 1994.

Table 142-2

Imperial Valley Agricultural Data

ITEM
Acres Production
Value

Fruits & Nuts

4,741

$30 million

Vegetables & Melon Crops

113,784

$350 million

Field Crops

391

$297 million

Seed Nursery Crops

31,000

$29 million

Apiary (Bees)

---

$ 1. 7 million

Livestock

390,000

$ 242 million

Totals

540,000

$ 951 million

19. Exporters and Importers: USA and MEXICO

V. ENVIRONMENT CLUSTERS

20. Environmental Problem Type: Pollution Sea [POLS]

The pollution of the New River is a problem that extends to many parts of the environment. Formation of pollutants destined for the Salton Sea begins at the farms in the Imperial Valley and Mexicali Valley, and at the maquiladoras in Mexicali.

Pesticides, fertilizers, and salts from agricultural activity raise the salinity level of the Salton Sea. Other pollutants, generated by the maquiladoras and which have yet to be determined, find their way into the Salton Sea also. In addition, there is a possibility that pesticides leech into the groundwater. This problem has occurred in Mexico but has not yet occurred in the United States.

The New River is constantly a hazard as a result of maquiladora waste, making recreational use of the river highly dangerous throughout the year. Their waste is dumped illegally at anonymous sites. In fact, the NAFTA addresses the issue of hazardous waste sites. The U.S. Council of the Mexico-U. S.

Business Committee estimated that the construction of such sites in Mexicali would cost well over $38 million.

21. Species Information

Name: Many

Type: Many

Diversity: 26,071 higher plants per 10,000 km/sq (Mexico)

Regarding fish, the impact has been worse. As far back as 1984, chemicals stared showing up in fish. One result of the increase in toxins in the sea is that the catch of fish is down 90 percent during this decade. In addition to the Desert Pupfish (Cyprinodontidae), the pollution adversely affects the Black- Necked Stilt; reproduction is being curtailed by 4 percent.

During the winter of 1992, 150,000 Eared Grebes died. There are approximately 400 species of birds that live or pass through the Salton Sea. (The Yuma Clapper Rail and the Megalornis Canadensis Mexicanus are two types of birds that pass through.) Increased pollution of the sea threatens to reduce the diversity of the sea, ruining its natural character. One scientist commented, "The tough ones learn to adapt and survive; the others move elsewhere."

22. Impact and Effect: LOW and Structural [STRCT]

23. Urgency and Lifetime: MEDium and 100s of years

24. Substitutes: Biodegradable Products [BIODG]

A possible substitute for pesticides is to change the way crops are grown. Since World War II, there has been a rapid rise in single-crop farming. This type of farming leaves crops vulnerable to their natural enemy. Thus, the need for pesticides rises. However, there are alternatives. Greenpeace has the following recommendations, "introducing and conserving beneficial insects, rotating and diversifying crops from year to year, changing tillage practices, selecting resistant plant varieties, timing the planting of crops to avoid attack by pests or simply planting crops in their appropriate climate." In this way, the farmers in this case could avoid using polychlorinated biphenyls, DDT, dichloromethane, and other pesticides.

VI. OTHER FACTORS:

25. Culture: NO

26. Trans-border: YES

The New River affects both the United States and Mexico.

27. Rights: NO

A violation of human rights exists only to the degree that one believes that all men have a right to a clean environment. There is no physical abuse of human rights occurring.

References:

28. Relevant Literature:

Arthur Cleveland Bent, Life Histories of North American Marsh Birds, (Toronto: General Publishing Co., Ltd., 1963). Arthur Cleveland Bent, Life Histories of North American Cuckoos, Goat-Suckers, Hummingbirds, and Their Allies Part I &II, (New York: Dove Publishing Inc., 1964).

Bureau of National Affairs, "California County Supervisors File Section 21 Petition for New River Testing," BNA California Environmental Daily, (January 27, 1994).

The Bureau of National Affairs, Inc. , "Companies Contemplate Options in Wake of Subpoena for New River Chemical Data," BNA California Environment Daily, (October 24, 1994).

Crabbe, Robert. "Regional News", United Press International, (June 8, 1984).

Greenpeace, "Toxics", Washington, DC, 1995.

Greenwire, "Selenium: Farm Runoff Causing Wildlife Deaths in CA",

Greenwire, (May 2, 1995).

Hampton, Phil. "California's Salton Sea Faces Grave Peril," Gannett News Service, (March 6, 1991).

Hundley, Norris Jr. , The Great Thirst, (Berkeley: University of California Press, 1992).

Hunter, Duncan. "Testimony March 9, 1995, Congressman, House of Representative House Transportation Water

Resources and Environment Clean Water Act", Federal Document Clearing House, Inc., March 9, 1995.

Chris Kraul, "Peso Turmoil Stalls Construction Gold Rush Along Border", Los Angeles Times, (March 13, 1995).

Marianne Lavelle, "Poisoned Waters Provide Early Test for NAFTA", The National Law Journal, (March 21, 1994).

Jeff Mello, "Environmental Cost of Free Tradeþ, Business & Society Review", (September 22, 1994). Newsweek, "In Health There Are No Borders", Newsweek, August 1, 1988.

Office of the President, The NAFTA Supplemental Agreements, Washington, DC, 1993.

Perry, Tony. "Lovers of Salton Sea Hope to Turn Back Tide of Decline", Los Angeles Times, (August 16, 1993).

PR Newswire, "Birders and National Wildlife Refuge Mean an Economic Bonanza for Local Communities", PR Newswire, (May 11, 1995).

Roberson, Peter. "New River Ranks as Threatened Waterway", States News Service, (April 18, 1995).

Secretaria de Desarrollo Urbano y Ecologia (SEDUE), Integrated Environmental Plan for the Mexico-U.S. Border Area, 1991.

Stein, Jane. "New River: A Sewer From Mexico", The Washington Post, (December 11, 1978).

Twin Plant News, "Maquiladoras", Twin Plant News, (January 1995).

United States Council of the Mexico-US Business Committee, "Analysis of Environmental Infrastructure Requirements and Financing Gaps on the US-Mexico Border", 1993.

United States Department of State, The Environment and Free Trade With Mexico, Washington, DC, March 2, 1992. United States Environmental Protection Agency, "EPA Summary

Environmental Plan for the Mexican-U.S. Border Area First Stage (1992-1994)", Washington, DC, 1992.

United States Environmental Protection Agency, "Evaluation of Mexicoþs Environmental Laws, Regulations, and Standards", Washington, DC, 1993.

United States General Accounting Office, "Hazardous Waste: Management of Maquiladoras' Waste Hampered by Lack of Information", Washington, DC, 1992.

United States General Accounting Office, "Pesticides: Comparison of U.S. and Mexican Pesticide Standards and Enforcement", Washington, DC, 1992.

United States International Trade Commission, "Production Sharing: U. S. Imports Under Harmonized Tariff Schedule Provisions 9802. 00. 60 and 9802. 00. 80, 1989-1992", Washington, DC, 1994.

West Publishing Co. , West's Annotated California Codes 1995, (St. Paul, Minn.: West Publishing Co., 1995).

World Resource Institute, World Resource 1994-1995: A Guide to the Global Environment, (New York: Oxford University Press 1994).

World Wildlife Fund, The Official World Wildlife Fund Guide to Endangered Species, Volume 1 and 2, (Washington, DC: Beacham Publishing Co., 1990).

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