VOLUME 179.-No. 59

Environmental Law

By Nicholas A. Robinson

Professor Robinson, who writes this column as a regular feature of the Law Journal, teaches at Pace University School of Law and is special counsel to Marshall, Bratter, Greene, Allison & Tucker.

Environmental Safeguards In Canal Treaty Clarified

On March 16, 1978, the Senate gave its consent to and ratified the first of two treaties on the Panama Canal.1 By a vote of just one more than the constitutional two-thirds majority

needed, the Senate accepted the "Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal." " Although this Neutrality Treaty is the lesser of the two covenants in terms of environmental law.' its ratification foresages a similar acceptance by late April of the "Panama Canal Treaty" itself. Since this column last October examined the new vironmental law embodied in the Treaties. the State Department specifically has addressed their importance for environmental protection. As the Panama Canal Treaty itself comes up for a vote, it is useful to consider the precedent in international environmental regulation which is being made and the alternative implementation strategies possible.

en

Beyond the issues of security, the Panama Canal Treaty devotes more attention to environmental law provisions than any other subject. By the Continued on page 2, column 1

Continued from page 1, column 1 provisions of the Treaty, the U.S. will supervise operation of the Canal and train the Panamanians to take over canal operations between now and the end of this century. Article VI of the Canal Treaty commits both Panama and the U.S. to protect the environment and authorizes a Joint Commission to advise on how the two nations should avoid, or alternatively, "should this not be possible," to mitigate any adverse impacts arising from actions pursuant to the Treaty.'

Despite the prominence of environmental provisions in the Treaty, few have examined them closely. For instance, when Ambassador-atLarge Ellsworth Bunker explained the key elements" of the Treaty to the Des Moines Chamber of Com. merce and the Des Moines Rotary Club last Jan. 26. 1978, he said nothing about the environmental aspects. In contrast, however, on Jan. 6, 1978, Acting Secretary of State Warren Christopher issued a "Statement on the Panama Canal Treaties and Environmental Protection."""

Joint Commission

Christopher noted that "Panama's unique geographic location makes it important to the environment of many nations." He noted that both the United States' and Panama1 were committed to making the Joint Commission on the Environment work effectively.

He also emphasized the important role which the National Environmen. tal Policy Act (NEPA)" had played. in guiding the environmental aspects of the Treaties. "We recognized the importance of the NEPA procedures in formulating environmentally sound policies as well as the value of public participation in the NEPA review process."'"'

The Christopher statement also made a record of how the State Department complied with the NEPA review process. In doing so. he made it possible for one of the nation's largest environmental groups, the Sierra Club, to endorse ratification last Jan. 15, 1978," and he built an administrative record which may have helped discourage a suggested suit by right-wing" anti-Treaty political interests seeking a Federal Court injunction to delay Congres sional action until a more thorough environmental impact statement was prepared under NEPA."

Beyond these points of the Treaty's "legislative history" or traveaux preparatoires, the part of the Christopher statement which is of interest to environmental lawyers is that section which addressed how the Joint Commission will be structured. Christopher stated that:10

"It is our intention that the Join Environmental Commission shall have the staff and financial support it needs to be effective. We will propose that the American members of this Commission include leading science and environmental figures as well as others from the private and public sector. In addition, reports on the state of the environment in the Canal Zone and the surrounding watershed will be assembled and indexed. Federal agencies with expertise relevant to the Canal Zone issues will assist in developing information for the Joint Commission on matters which require priority attention. And, recognizing the importance of baseline data showing the current state of Canal Zone ecosystems, including air and water quality, marine life in the adjacent oceans, and flora and fauna, the U.S. will cooperate with

the Panamanian Government in assembling that data expeditiously."

It is very likely that this structure will require new legislation to be implemented. Even if the State Department were to assert that it had the authority to set up the U.S. side of the Commission by administrative action, such as executive order, it is unlikely that the House of Representatives, which has not yet had a prominent role to play with respect to the Treaties, will do nothing when it could take a major part in defining U.S. procedures under the Treaty and since. in fact, it does have the major responsibility for structuring how to meet the fiscal needs of Treaty implementation.

There are three alternative models for the Joint Commission. There is, first, the bilateral cooperation agreement format such as the environmental agreement between the U.S. and U.S.S.R." This is an exchange of information and experts and occasional joint projects to study problems of mutual interest. The second is the pattern of the International Boundary Commission between the United States and Mexico, which focuses on environmental issues of boundary water volume and quality for the Rio Grande and Colorado Rivers. The third is the International Joint Commission between the United States and Canada."

The latter two commissions were designed before environmental concerns became prominent. Both have taken on environmental issues and procedures in recent years." They have powers to gather information, including subpoena powers, exchange information between the two sides. maintain field offices, place matters on the common agenda and require their examination. The referral of a matter to the U.S.-Canadian Joint Commission has proven more significant in prompting ameliora. tion of environmental issues than has the IJC's regulatory power to license "uses, diversions, or obstructions" affecting the flow or bend of boundary waters.20

Experts on staff or secured from other agencies assist the Commissions and expert advisory committees undertake oversight and followup responsibilities. In the U.S.Mexico context, its decisions become binding on the respective governments unless an objection is lodged within one month of the decision.

Overseer

At present, the U.S.-Panama Joint Commission is framed as a body to oversee and guide the two nations' commitment to "protection and conservation of the environment." The Commission "shall" review treaty implementation and "shall recommend" ways to avoid or mitigate environmental harm. Both parties "shall furnish complete informa. tion on actions which both agree may have a significant affect on the environment. The information must be given far enough in advance of the proposed action to permit study and let the responsible acting agencies consider any Commission respon. sibilities.

For the Commission to work well, the "shall" mandates need to be structured by rules and regulations on each side. The State Department's commitment in the Christopher statement to include public members from scientific and environmental communities will build in some degree of expertise and integrity.

However, the veto potential whereby either nation might claim that a proposed action would not adversely

Canal Commission

Within Panama, ways should be developed to refer matters to local health and conservation officers. Provisions for training and basic data collection programs on an ongoing basis should be designed. Procedures for individuals to bring matters to the Commission's attention should be structured.

Most important in this regard will be the relationship of the Environmental Commission to the Panama Canal Commission, which has operational authority for the Canal. If environmental protection is to be taken seriously, this relationship must be defined at the outset with clarity. Congress has more experience in framing such a relationship than does the State Department. although guidance could be sought from the Council on Environmental Quality and the Departments of the Interior and En. vironmental Protection Agency.

Priorities

Priorities for the Commission's initial environmental agenda, such as a Joint program to contain "hoof and mouth" disease (aftosa) south of the Darien peninsula, should be fixed. The Commission should begin opera. tions with several clear and im. mediate charges. Forestry manage. ment to avoid soil erosion and protect flora and fauna, especially the endangered species in the Canal Zone, is another clear priority.

Some of these priorities can be inferred from other existing bilateral treaties between the U.S. and Panama, or from the multilateral treaties to which both states are parties. Cooperation on aftosa is subject to a 1972 treaty, for instance."

One manifest priority is the feasibility study on any expansion of the Canal by a third set of locks or sea-level canal. The State Depart ment has promised a full environmental impact statement on the study," and since the Treaty calls for the study both nations have necessarily put this issue before the Com. mission.

Analogy and Reason

What ratification of the Panama Canal Treaty brings in terms of new environmental law is an undertaking of two non-neighboring states to act in concert to protect the regional environment.

In 1912, a Committee of the House of Representatives is reported to have observed that "The Panama Canal is unique in all respects and at every stage presents novel problems... legislation to operate and govern [the Canal], with its adjuncts and incidents, must in the absence of precedent rely on basic principles, with analogy and reason as the only guide.""

It will be up to the Congress to take leadership in fashioning the unique administrative procedures for environmental protection under the Treaties. Analogies to NEPA and the

boundary commissions exist, and environmental protection guides.

1 Adam Clymer. "Benate. 68-32. Approves First Of 2 Panama Pacta: Carter Halls "Courage". New York Times, p. 1. col. 4 (March 17.197)

2. Texts of Treaties Relating to the Panama Canal at 13 (Department of State, Selected Documents No 6. Sept 1977).

3. All vessels must submit to safeguards for sanitary transit and applicable health, sanitation and guarantive provisions. Article III (a) and (e) and Annex A. para. 6, supra note 2 at 1415.

4. Bee N.A. Robinson, "Panama Canal Treaty: Environmental Issues", 178 N.Y.L.J. p. 1. col. 1 (Oct 25, 1977).

5. Supra note 2 at 4-5.

Panama Canal Treaties: A Negotiator's Perspective. Dept of State. Speech Jan 26. 1978 Bureau of Public Affairs. Office of Public Communication

7. Christopher text distributed with cover let ters dated Jan. 12. 1978, by William H. Mansfield 111 Bureau of Oceans and International Environmental and Scientific Affairs, Office of Environmental Affairs. Department of State.

8. Christopher text, para. 1; he continued in para 2 to explain the development of Article VI as follows. "During the negotiation of the Panama Canal treaties, the Department of State and other agencies of the United States Government recognized the serious environmental implications of the treaties key provisions. The United States noted that the transfer of large tracts of essentially undeveloped territory, comprising much of the Canal Zone, to a country energetically engaged In economic development could seriously Impact on the ecology of the area Accordingly, the negotiators included Article VI as an integral part of the Panama Canal Treaty. In that arti cle. the United States and Panama commit themselves to implement the treaty in a manner consistent with the protection of the natural environment The article also provides for the esLablishment of a Joint Commission on the Environment, which is to recommend environmental protection measures to the two

governments.

9. Ibid, Para. 3: "Such is the framework for environmental action established by the written Instrument. However, It will only be through the joint effort of the two governmenta, following ratification of the treaties, that the commitmenta made in the treaties will come into effect. For the United States, this will entail provision of relevant information about the Canal Zone and its resources, technical assistance, as well as resources needed to carry out effective programs of environmental protection. To that end the US Agency for International Develop ment is developing a project, in cooperation with the Panamanian Government, to provide it with the capability to carry out sound land and water management and reforestation programa

10. Ibid. Para. 4: "On the Panamanian side, our diplomatic mission in Panama has noted that the Panamanian Government is taking environmental concerns seriously and has at tached a high priority to the problem of protecting the Canal watershed. As evidence of this the mission reports that both the Panamanian Minister of Planning and the Vice Minister of Agriculture have recently pressed for early implementation of the AID Watershed Manage ment Project. Moreover. In addition to the provisions contained in the Panama Canal Treaty. there is also a basis in international law for US and Panamanian cooperation on environmental matters since both countries are parties to the 1954 International Convention for the Prevention of Pollution of the Sea by Oil and the 1940 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, which established Barro Colorado Island as a Nature Monument.

11. 42 U.B.C. 4321.

12. Supra note 7 at para. 6.

13 See Sierra Club National News Report (Jan. 1978)

14. See Fallure to Meet EPA Law May Block Canal Pacta". Spotlight. p. 3. col. I (Jan. 9. 1978).

15. Supra note 7, para. 5.

16. Agreement of Cooperation In The Field of Environmental Protection, 1972.

17. 22 U.S.C. Sec 277, et seq.

18 Treaty Relating To Boundary Waters and Questions Ariaing Along the Boundary With Great Britain, Jan. 11. 1909, 36 Blat. 2448 Exec. Order No. 9972, 13 Fed. Reg. 3573 (1948), under International Organisations immunity Act, 22 URC 2 (1945)

19. See P. Smedresman, "The Intl. Joint Commission (US-Canada) and the Int'l. Boundary and Water Commission (U.S-Mexico): Potential For Environmental Control Along The Boundaries". N.Y U.J. INTL. L. & POL. 499 (1973).

22 "Agreement confirming the cooperative agreement between the Panamanian Ministry of Agriculture and Livestock and the United States Department of Agriculture for the prevention of foot-and-mouth disease and rinderpest in Panama." Oct. 5, 1972, 23 U.S.T. 3108: TIAS 7482.

23. Christopher noted as follows, supra note 7 at para 7: Finally, in addition to Article VI, Article XII of the Panama Canal Treaty addre the question of expansion of the existing Panama Canal to accommodate a larger volume of traffic. In that article. Panama grants to the United States the right to add a third lane of locks to the existing Panama Canal. With respect to a possible sea-level canal, the article

PUBLIC NOTICES

THE ANNUAL REPORT OF SAMUEL & MARA ROSOFF FOUNDATION for the calendar year ended December 31, 1977 is available at its principal office, located at c/o Reuben B. Sperber. 7005 N. W 17th Court, Margate. Florida 33063 for inspection during regular business hours by any citizen who requests it within 180 days hereof Principal Manager of the Foundation is SAMUEL HOSOFF.

The 1977 Annual Report of the MAX SILBERMANN FOUNDATION is prepared and copies are available to the public during regular business hours. Max Silbermann Foundation c/o Milton S. Gould. Trustee, 330 Madison Avenue. New York, New York 10017.

provides for a study of the feasibility of such a canal without making a decision or commitment that a sea-level canal will be built. Any study of the construction of a sea-level canal will seek to be both thorough and objective as it examines both the economic as well as the engineering feasibility of such a project. In addition, the study would fully explore the environmental consequences of a sea-level canal and would address the problema identified in the reports of the National Academy of Sciences. Moreover, an Environmental Impact Statement would be prepared in accordance with the provisions of the National Environmental Policy Act Finally. I should note here that we do not intend to use nuclear excavation techniques in connection with any effort to enlarge the capacity of the Panama Canal or build a new canal, both for environmental reasons and because of the terms of the nuclear test ban treaty.

4. Martha Jane Shay. The Panama Canal Zone In Search of a Juridical identity N.YUJ INTL L & POL 15 at 37 (1976). quelink 3k Op. Att'y Gen 300 at 206 (1935). qui vide

Mr. Robinson served on the Legal Advisory Committee to the Presi dent's Council on Environmental Quality and is a member of the Committees on Environmental Law of the New York State Bar Association and the Association of the Bar of the City of New York. He edits the Inter! national and Comparative Earth Law Journal, A.W. Sifthoff Publishing Co., The Netherlands.

NEPA, as well as its treaty wan dates. The Mexican Commission is structured by statute" but was created by treaties." The Canadian Commission was structured by the 1909 U.S.-United Kingdom Boundary Waters Treaty," and is implemented by Executive Order. The State Department added the Joint Environmental Commission to the draft Panama Canal treaty late in the negotiations. This organizational question must now be resolved.

The only public positions advanced about the Joint Commission on the Environment are those of Acting Secretary of State Warren Christopher, released Jan. 6, 1978," and the few comments in the Final Environmental Impact Statement." Christopher pledged that the Commission would have "the staff and financial support which it needs to be effective." The State Department proposed to include scientific and environmental leaders among the U.S. members of the Commission. To further the Commission's work, Christopher stated that "reports on the state of watershed will be assembled and indexed" and the exper

tize of all Federal agencies would be. utilized."

Before Christopher's statement, the FEIS had explained the Joint Commission on the Environment. It observed that "the detailed responsibilities, staffing and operating procedures of the Commission will have to be worked out within the U.S. Government and with the Panama. nians.... Its responsibilities will involve monitoring, studying and making recommendations to the two Governments on a broad range of environmental issues... The Commission should be supported by a professional staff and be located at the Canal Commission's Headquarters.""

Substantive Agenda

Beyond this preliminary organizational thinking, there looms a long substantive agenda of items for the Commission: (1) It must consider how to advise Panama as she develops her next five-year Development Plan; the current plan proposes a number of roads through the Darian forest, all with scant regard for the environmental consequences. (2) The rare and endangered species in the forests of the Canal Zone must be protected. (3) The environmental components of the "feasibility" study for any sea-level canal, required by the treaty," must be structured. (4) The laws of Panama, in many respects compatable with existing U.S. environmental laws of the Canal Zone, need expansion to cover those further environmental issues not yet addressed legislatively. (5) Sanitation and health procedures must be developed for Panamanian administration.

Even after the Commission members are appointed, and a staff is in place, it is unlikely that the Commission and staff alone can serve adequately. The Canadian and Mexican Commissions regularly use the services of other national agencies from each respective set of countries. Procedures for doing so will be needed for this Panama-U.S. venture as well."

Finally, if the Joint Commission on the Environment functions professionally and well, it will gain the confidence of those throughout the region who depend on the Panamanian environment. New functions then may be added, as was the case with the Canadian and Mexican Commissions. A system for peaceful settlement of environmental disputes should be considered. Panama and the U.S. anticipate the need for new mechanisms between themselves in the treaty." Since Canal-related actions can easily affect the environment of neighboring states as well, a broader dispute settling system, including fact-finding procedures, would be prudent.

When the Panama Canal was conceived in the minds of French and

American leaders, it was to be a global resource. It has been administered neutrally, as a trust. Panama now assumes the responsibility to continue this trust, and knowingly has assumed the newer environmental protection measures which are increasingly a part of the responsibility of the Canal operator. In the past, joint commissions have been used to resolve Canal-related matters." Three other Commissions (housing, ports and railroad, and military) are created by the treaty along with a Canal Commission to operate the Canal. Since environmental protection issues will be of concern to each of these other com. missions, it is critical that the Joint Commission on the Environment be created contemporaneously or even before the others.

Regretably, there is no evidence that the State Department's implementation group for the Panama Canal treaty has moved to structure the U.S. side of the Joint Commission or to reach agreement with Panama on how to proceed. Every effort should be made to proceed with Panama expeditiously during what has been termed the "honeymoon mood" in Panamanian-U.S. relations following the treaty-making." If the State Department does not act affirmatively this fall, Congress should enact the laws necessary to implement the U.S. involvement in the Joint Environment Commission.

(1) The texts of the treaties appear in Dep't of State Selected Documents No. SC (December. 1977).

(2) N.A. Robinson, "Panama Canal Treaty Environmental Issues" NYLJ, p.1. col. 1 (Oct. 25. 1977).

(N.A. Robinson. "Environmental Safeguards in Panama Canal Treaty Clarified, NYLJ p.1. col. 1 (March 28, 1978).

(4) Adam Clymer, "Senate, 68-32, Approves First of Two Panama Pacts: Carter Halls Courage NY Times P. Al, col. 6. at p. A12 (March 17, 1978).

(5) Dep't. of State, Final Environmental Impact Statement for the New Panana Canal Treaties (FEIS), December (1977), at p. P-29 (letter of Scientific Committee Chairman of Panama Audubon Society.); see also FEIS p. P46.

(6) David McCullough. The Path Between the beas at 165-9, 550-554, 613 (1977).

(7) J.B. Bishop. The Panama Gateway (1914) at pp. 249-67; McCullough, Op. cit. supra note at pp. 137-146, 405-426, 451-4

(8) FEIS p. P-31 to P-32 (letter of President of Gorgas Memorial Institute),

(9) The principal Panamanian agency la the Direccion Nacional de Recursos Naturales Renovables (RENARE) in the Ministry of Agricultural Development. Bee FEIB Tab Nand AID Initial Environmental Examination (March 20, 1978).

(10) The U.S. Canal Zone Government's Health Bureau has a staff of 1.747 and a $21 million budget. The Panamanian governmental agency for Water and Sewage, IDAAN, is reported to be over-extended. Panamanian civic groups report that "In view of the fact that the Government of Panama places less importance on activities of a preventative nature, particularly if the activities are not without some coat, guarantees should be made that these es sential public health activities continue." FEIS at P-40.

(11) Created by Article VI of The Panama Canal Treaty, supra note 1.

(12) Id. Art. V, Sec. 2. (13) id. Art. VI. Bec. 1. (14) Id. Art. VI. Bec. 1.

(16) The Stockholm Declaration is set forth with annotation in L. Sohn, "Stockholm Declaration on the Human Environment." 14 Harvard Int'l Rev. (1973).

(16) Section 102 (2) (F), 42 UBE 4332 (2) (F). (17) Ibid, Section 102(2) (C).

(18) The CEQ is structured under NEPA (19) This obligation arises out of Principle 21 of the Stockholm Declaration, supra note 16, and for the U.B. alde out of Section 102(2)(F) of NEPA, supra note 16.

(20) Bee Smedreaman, The International Joint Commission (United States-Canada) and The International Boundary and Water Com mission (United States-Mexico): potential for Environmental Control along the Boundaries." NYUJ Int'l L and Politics 499 (1973). (21) 22 UBC 377, et. seq.

(26) The Christopher statement is reprinted In 83 Sierra Club Bulletin 24-26 (April 1978). (27) Supra note 5 at p. 18.

(28) Bupra note 1, Article XII, Section 1. (29) A further reason to work with and employ Panamanian agencies la that they, and. until the turn-over of all Canal control in 1999. also certain U.S. agencies are the bodies which actually control the environment. One of the reasons the U.S. was able to assure a high level of sanitation and disease control was that Articie XII of the 1903 Hay-Bunau-Varilla Treaty. 33 Stat. 2234, T.8. No. 431, gave the U.S.complete sanitary and quarantine control over the ports of Panama and Colon, as well as throughout the zone. See Bishop, op. cit. supra note at 163, 239 and 250-51

(30) Supra note 1. Article XIV,

(11) Bishop, op. cit, supra note 7, at 417: Four Joint commissions for adjudicating the prices to be paid to private land owners for property needed for Canal construction purposes

(22) Alan Riding. "What's Doing in Panama." NY Times p. XX9, col. 1, (Aug. 6, 1978).