Highways to Hell A critical examination of the environmental impacts of the Security and Prosperity Partnership A CENTER FOR BIOLOGICAL DIVERSITY REPORT Highways to Hell: A critical examination of the environmental impacts of the Security and Prosperity Partnership Jaclyn Lopez, Principal Author December 2009 Layout & Design: Cassie Holmgren Maps: Curt Bradley Front Cover: A highway cuts through Texas Hill Country. Photo © iStockphoto.com/Tom Wald Center for Biological Diversity P.O. Box 710 Tucson, AZ 85702 520.623.5252 www.biologicaldiversity.org The Center for Biological Diversity is a national nonprofit conservation organization with more than 240,000 members and online activists dedicated to the protection of endangered species and wild places. Table of Contents Introduction . 1 Chapter 1: Overview of the NAFTA Corridors . 4 Chapter 2: The Trans-Texas Corridor and the National Environmental Policy Act . 14 Chapter 3: The West Coast Corridor and the California Environmental Quality Act . 28 Chapter 4: CANAMEX and the Endangered Species Act . 4 1 Chapter 5: I-95 Corridor and the Clean Air Act . 48 Chapter 6: The Continental One International Trade and Travel Corridor and the National Historic Preservation Act and Section 4(f) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act, a Legacy for Users . 52 Chapter 7: The Great Plains International Trade Corridor and the Clean Water Act . 60 Chapter 8: KC SmartPort and Lazaro Cardenas and the North American Commission for Environmental Cooperation . 77 Chapter 9: Conclusions and Recommendations . 92 This guide does not constitute legal advice. This guide provides legal information about the law and is designed to help readers understand litigation options. Legal information differs from legal advice—legal advice refers to the application of law to an individual’s specific circumstances. Therefore, this guide should not be construed as providing specific legal advice for a particular person’s case or situation. Furthermore, this guide does not explain everything a reader needs to know about the litigation process, including standing, attorney-client privilege, discovery, liability, and strategic lawsuits against public participation (SLAPP suits). Introduction There is growing concern across the political spectrum about the implications of the Security and Prosperity Partnership of North America (SPP). This initiative, launched in March 2005 at a summit of the heads of state of the United States, Canada, and Mexico, was a follow- up to the 1994 North American Free Trade Agreement (NAFTA). Unlike other international free trade agreements, the SPP is not the result of a U.S. law, treaty, or formal signed agreement. Therefore, there are no mechanisms for public accountability nor is there built-in oversight. Instead, the SPP operates through nineteen working groups that operate outside the legislative process. Members of U.S. federal agencies such as the Departments of Transportation, State, Agriculture, Energy, and Homeland Security, sit on these working groups to “consult with stakeholders; set specific, measurable, and achievable goals and implementation dates; and identify concrete steps the governments can take to achieve these goals.”1 Proponents of the SPP promote it as a necessary response to the challenges of globalization. They claim that it will increase North American economic competitiveness, facilitate extraction of critical natural resources, and greatly enhance the freer movement of industrial and consumer goods between the three countries. Critics representing a wide range of political interests in all three countries argue that the SPP is primarily geared toward increasing the profits of multinational corporations and U.S. big business.2 Environmentalists in particular have raised a host of concerns about the possible consequences of the SPP on global warming, water and air quality, and species and habitat. They insist that the adverse environmental impacts of SPP policies are being deliberately ignored in the rush to implement a pro-corporate agenda. This fear may be justified given that to date, 40 percent of NAFTA challenges have been about environmental concerns,3 and the SPP is now inviting “recommendations and views on ways to cut red tape and eliminate unnecessary barriers to trade.”4 The only formal advisory board to the SPP is the North American Competitiveness Council (NACC), comprised entirely of corporate CEOs. U.S. members include Wal-Mart, Merck, General Electric, UPS, and FedEx. The U.S. Chamber of Commerce and the Council of the Americas serve as the U.S. secretariat of the NACC. At least one court has determined that the NACC is not a federal advisory committee and is therefore not subject to public input or scrutiny.5 The SPP’s approach to policy development thus represents a further extension of the privatization of governmental regulatory functions inaugurated by NAFTA and other World 1 SPP Prosperity Working Groups, http://www.spp.gov/prosperity_working/index.asp?dName=prosperity_working. 2 Opponents include several states: Alabama (SJR68), Arizona (SCM 1002; HCM2003), Florida (S670), Georgia (Senate Resolution 124), Idaho (HJK-5), Illinois (House Joint Resolution 29), Kansas (H.C.R. 5033), Massachusetts (MA H. 341), Mis- souri (Senate Concurrent Resolution 15 House Concurrent Resolution 33), Montana (House Joint Resolution 25), Ohio (H.C.R. No. 31), Oklahoma (Senate Concurrent Resolution 10), Oregon (Senate Joint Memorial 5), South Carolina (House Concurrent Resolution H 3185), South Dakota (S.C.R. 13), Tennessee (Senate Joint Resolution 88), Texas (HB 3647), Utah (H.R. 1), Vir- ginia (Senate Joint Resolution 442, House Joint Resolution No. 86), and Washington (Senate Joint Memorial 8004 House Joint Memorial 4018). 3 Martin Mittelstaedt, “Will Dow challenge Quebec pesticide law?,” Global and Mail, Apr. 3, 2009, available at http://www. bilaterals.org/article.php3?id_article=14766. 4 SPP Prosperity Working Groups, supra note 1. 5 Judicial Watch v. Dep’t of Commerce, 576 F. Supp. 2d 172 (Dist. D.C. 2008); Judicial Watch, Inc. v. Dep’t of Commerce, 501 F. Supp. 2d 83 (D.C. Dist. 2007). 1 Trade Organization agreements, inspired by neo-liberal economic theory and closed to public input. As the name indicates, the Security and Prosperity Partnership of North America has two basic components: the “Security Agenda” and the “Prosperity Agenda.” The Security Agenda involves extensive military coordination, much of it focused on anti-terrorism policies, but also geared toward protecting energy and transportation infrastructures. It aims to streamline the movement of critical goods across borders while curbing “illegal” immigration. The Prosperity Agenda also focuses on promoting the transcontinental movement of goods and services. Its goals include expanded and streamlined cross-border transportation networks—networks that will facilitate not only trade within the continent, but also imports into North America of cheaply made foreign goods. It is precisely these proposed transportation networks and their potential for significant environmental damage that have raised widespread concern among environmentalists in all three North American countries. Goals of This Guide Over the coming years, the SPP’s proposed transportation projects will likely have significant cumulative effects on the environment. Although the Federal Highway Administration is behind most of the transportation projects, a reliable nationwide map indicating the planned projects has not been produced, nor has there been an assessment of the cumulative effects of the planned projects.6 Therefore, this report seeks to accomplish the following: 1) identify and map the NAFTA corridors 2) identify and map critical environmental features of the affected landscape, including a. the presence of endangered species and designated critical habitat b. air attainment and nonattainment areas c. waterways and wetlands d. farmlands, private and public lands e. national historic sites, public parks, recreation areas, and wildlife and waterfowl refuges 3) analyze the projects, corridors, and larger SPP transportation framework through the application of key environmental laws 4) provide advocates with information about the SPP and its likely impacts to the American landscape, as well as tools to ensure that SPP-related construction does not harm the environment. How To Use This Guide This report analyzes seven major NAFTA corridors. The guide is intended to provide a landscape-level portrait of what the cumulative impacts of the proposed corridors could look like, as well as a magnified view of a select number of projects and corridors. Each chapter focuses on one corridor and one environmental law, but the guide is written so that lessons 6 The Commission on Environmental Cooperation is currently researching similar issues in a project called Greening the North American Trade and Transportation Corridors (personal communication, June 2009). 2 learned from any of the chapters can be applied to other projects. Limitations of the Guide This guide is national in scope and does not provide information on local effects beyond what is described in the highlighted projects, nor does it address the effects these projects are having on Canada or Mexico. We have attempted to give the U.S. reader enough information to conduct independent, site-specific investigations of local projects. Also, the guide does not offer suggestions or alternatives to the planned corridor construction, nor is it