U.S. VOTE AT TREATY MEETINGS THREATENED global POPs treaty

U.S. VOTE AT TREATY MEETINGS THREATENED Legislation to make U.S. a partner in persistent organic pollutant pact mired in legal debate CHERYL HOGUE

At first glance, the issue seems relatively simple. Republicans, Democrats, industry, environmental groups, and the Bush Administration all agree that the U.S. should become a partner in three international treaties controlling chemicals. For this to happen, Congress must pass legislation making minor changes to the federal laws governing commercial chemicals and pesticides.

Some squabbling over the particulars is to be expected in the development of any bill, even one on an issue that enjoys widespread support. But debate over how to implement these treaties has moved beyond simply hashing out the nuts and bolts of legislation. It has shifted into somewhat arcane legal arguments over what the U.S. Constitution allows--or doesn't allow--Congress to do. That dispute is slowing down passage of the legislation.

The longer this debate delays congressional action on the legislation, the more likely it is that the U.S. will have no vote on whether more substances get added to a global treaty controlling persistent organic pollutants (POPs). And the chemical industry dearly wants the U.S. to have and exercise that vote.

Though the issue seems straightforward on its surface, it involves three international treaties, two U.S. laws, and four congressional committees.

U.S. officials have already signed the three pacts. Two of the accords place stringent controls on several POPs--one is global and the other is a regional deal covering North America and Europe. The third pact requires developing countries to give prior, informed consent before accepting shipments of certain toxic chemicals.

For the U.S. to become a full partner in the treaties, Congress must pass and the President must sign legislation that amends two federal laws to make them consistent with the provisions of the accords. The laws are the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA) and the Toxic Substances Control Act (TSCA).

The legal dispute focuses on how the U.S. will implement any international decisions to control chemicals that come through the global POPs treaty, which is known as the Stockholm convention. That pact initially bans or severely restricts 12 substances or groups of substnaces: aldrin, chlordane, DDT, dieldrin, dioxins, eldrin, furans, heptachlor, hexachlorobenzene, mirex, polychlorinated biphenyls, and toxaphene. The accord also sets up a process for treaty partners to add more substances to that list.

Most environmental legislation travels through a single committee in the Senate and one in the House of Representatives. However, one committee in each chamber holds jurisdiction over FIFRA while a separate panel handles TSCA. Therefore, two committees in each chamber must adopt legislation implementing the three treaties before the measures are rolled together into a single bill for a floor vote.

The Senate Environment & Public Works Committee last year adopted legislation (S. 1486) amending TSCA to implement the three agreements. S. 1486 caused little controversy, though neither environmental groups nor the American Chemistry Council, which represents large chemical manufacturers, are completely satisfied with the resulting bill.

Congressional panels that have yet to address legislation to implement the treaties are the House Energy & Commerce Committee, which has jurisdiction over TSCA, plus the Senate Agriculture, Nutrition & Forestry and House Agriculture committees, which oversee FIFRA.

The Bush Administration in February sent to Capitol Hill proposed changes to FIFRA to implement the three treaties. One aspect of that draft bill has drawn the wrath of more than a dozen environmental groups and has raised concern at CropLife America, a pesticide industry group. Environmental groups are so alarmed that they are opposing that draft legislation while supporting U.S. participation in the pacts.

The Administration's draft FIFRA amendments are markedly different from S. 1486 in one respect--how the U.S. would respond as more chemicals are added to the Stockholm convention. S. 1486 would require the Environmental Protection Agency to provide notice--and accept public comments--at three different stages of the international process for proposing and adding commercial chemicals to the global POPs treaty.

ACC supports a process for allowing the public to comment on proposals to list additional chemicals under the Stockholm convention, says Michael Walls, senior counsel for the industry group. Environmental groups generally support the idea, though some believe that three comment periods may be excessive and could place too great a burden on the already stressed resources of EPA, says Glenn Wiser, a senior attorney with Center for International Environmental Law.

The Administration's draft FIFRA changes have a key difference--they do not require EPA to give public notice and accept comment when pesticides are proposed for control under the Stockholm convention.

Patrick J. Donnelly, executive director of CropLife America, says his group would have preferred a mandatory notice and comment period to ensure that industry's voice would be heard. "We have the data and stand by the products we provide," he says.

A coalition of 14 environmental groups is calling on Congress to "give EPA a clear mandate to publish notices and obtain information from the regulated industry at key stages of the international process, and to solicit public comments on proposed international actions and their possible implications for domestic policy." This would make the FIFRA amendments consistent with the TSCA provisions in S. 1486.

The environmental groups aren't merely backing the pesticide industry's desire for required notice. They are challenging what they say is a legal theory espoused by some conservative groups--and one that the environmental groups see as a threat to the existing regulatory structure in the U.S., Wiser says. This argument holds that in delineating the separation of powers among the branches of government, the Constitution prohibits Congress from requiring EPA--or any executive branch agency--to take action in response to the decision of an international body.

For instance, when Congress amended the Clean Air Act in 1990, lawmakers included provisions to implement the Montreal Protocol on Substances That Deplete the Ozone Layer. If partners to the Montreal protocol agree to hasten the phase-out of ozone-depleting chemicals, the Clean Air Act requires EPA to issue regulations that are at least as stringent as the new international schedule, Wiser explains. Other U.S. laws that require the executive branch to act in response to decisions made by an international body are those that implement the Chemical Weapons Convention and the North American Free Trade Agreement, Wiser says.

Sen. Thomas Harkin (D-Iowa), top Democrat on the Senate Agriculture, Nutrition & Forestry Committee, addressed the issue in a February letter to EPA Administrator Michael O. Leavitt. In his letter, Harkin endorsed public participation and comment in the POPs listing process.

"It has also been asserted that if Congress required the agency to provide a notice and comment period based on the action of the international body, it would unconstitutionally impinge on our national sovereignty. This is a novel constitutional analysis that I would like to understand better," Harkin wrote. He asked Leavitt to provide a legal analysis supporting this proposition.

Wiser says this argument threatens passage of the bill implementing the three treaties. That possibility has industry worried.

Walls of ACC notes that the first meeting of partners to the Stockholm convention will take place in April 2005. The U.S. must have implementing legislation enacted by January 2005 for it to participate as a treaty partner. Otherwise, U.S. officials attending the meeting will have nonvoting "observer" status.

"We continue to encourage Congress to act quickly and effectively so the U.S. can be a full partner," Walls says. Donnelly of CropLife America adds, "We do want to be at the table."

The Founders made it crystal clear that they were establishing a government that received its authority through delegation from the People via the Constitution. The Constitution is sort of a limited power of attorney. Delegation of authority to regulate or govern by Stockholm, the U.N. or some other International body is a violation of the Constitution.

Neither the executive, nor Congress, can enlarge their own specific charter of delegation of authority from the sovereign people through agreement with external "third parties." The Executive has only political power over the administration of its various departments. The authority of the departments themselves is delegated by Congress and, consequently, restrained by the charter of delegation to Congress from the sovereign people.

As stated by Justice McLean in Mayor, Aldermen and Inhabitants of New Orleans v. U.S., 35 U.S. 662 (1836):

"The government of the United States, as was well observed in the argument, is one of limited powers. It can exercise authority over no subjects, except those which have been delegated to it. Congress cannot, by legislation, enlarge the federal jurisdiction, nor can it be enlarged under the treaty-making power."

..."It is very clear, that as the treaty cannot give this power to the federal government, we must look for it in the constitution; and that the same power must authorize a similar exercise of jurisdiction over every other quay in the United States. A statement of the case is a sufficient refutation of the argument."

As stated by Justice Daniel in the License Cases, 46 U.S. 504 (1847):

"Laws of the United States, in order to be binding, must be within the legitimate powers vested by the constitution. Treaties, to be valid, must be made within the scope of the same powers; for there can be no 'authority of the United States,' save what is derived mediately or immediately, and regularly and legitimately, from the constitution. A treaty, no more than an ordinary statute, can arbitrarily cede away any one right of a State or of any citizen of a State...."

As stated by Justice Field in De Geofroy v. Riggs, 133 U.S. 258 (1890):

"...That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of other nations is clear. It is also clear that the protection which should be afforded to the citizens of one country owning property in another, and the manner in which that property may be transferred, devised, or inherited, are fitting subjects for such negotiation, and of regulation by mutual stipulations between the two countries. As commercial intercourse increases between different countries, the residence of citizens of one country within the territory of the other naturally follows; and the removal of their disability from alienage to hold, transfer, and inherit property, in such cases, tends to promote amicable relations. Such removal has been, within the present century, the frequent subject of treaty arrangement. The treaty power, as expressed in the constitution, is in terms unlimited, except by those restraints which are found in that instrument against the action of the government, or of its departments, and those arising from the nature of the government itself, and of that of the states. It would not be contended that it extends so far as to authorize what the constitution forbids, or a change in the character of the government, or in that of one of the states, or a cession of any portion of the territory of the latter, without its consent. Railroad Co. v. Lowe, 114 U.S. 525, 541, 5 S. Sup. Ct. Rep. 995. But, with these exceptions, it is not perceived that there is any limit to the questions which can be adjusted touching any matter which is properly the subject of negotiation with a foreign country. Ware v. Hylton, 3 Dall. 199; Chirac v. Chirac, 2 Wheat. 259; Hauenstein v. Lynham, 100 J.S. 483; 8 Ops. Atty. Gen. 417; People v. Gerke, 5 Cal. 381.

[Treaties were traditionally held as international agreements on matters of comity in the exchange of an extension of privileges to foreign citizens; agreements upon territorial boundaries / conditions of cession of territory; and matters of foreign trade. They were agreements on external matters of relationships between nations and did not, otherwise, alter internal laws governing the citizenry in purely domestic matters - reserved, generally, to the States.]

Justice Sutherland in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936):

"It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differences are fundamental, may not be doubted."

In 1956, the U.S. Supreme Court in Reid v. Covert observed that the Court has "regularly and uniformly recognized the supremacy of the Constitution [U.S.] over a treaty."

As declared by the Court in Whitney v. Robertson, 124 U.S. 190 (1888):

"... if there be any conflict between the stipulations of the treaty and the requirements of the law, the latter must control. A treaty is primarily a contract between two or more independent nations, and is so regarded by writers on public law. For the infraction of its provisions a remedy must be sought by the injured party through reclamations upon the other. When the stipulations are not self-executing, they can only be enforced pursuant to legislation to carry them into effect, and such legislation is as much subject to modification and repeal by congress as legislation upon any other subject. If the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, to that extent they have the force and effect of a legislative enactment. Congress may modify such provisions, so far as they bind the United States, or supersede them altogether. By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but, if the two are inconsistent, the one last in date will control the other: provided, always, the stipulation of the treaty on the subject is self-executing. If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take such other measures as it may deem essential for the protection of its interests. The courts can afford no redress. Whether the complaining nation has just cause of complaint, or our country was justified in its legislation, are not matters for judicial cognizance. In Taylor v. Morton, 2 Curt. 454, 459, this subject was very elaborately considered at the circuit by Mr. Justice CURTIS, of this court, and he held that whether a treaty with a foreign sovereign had been violated; whether the consideration of a particular stipulation of the treaty had been voluntarily withdrawn by one party, so that it was no longer obligatory on the other; whether the views and acts of a foreign sovereign had given just occasion to the legislative department of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise,- were not judicial questions; that the power to determine these matters had not been confided to the judiciary, which has no suitable means to exercise it, but to the executive and legislative departments of our government; and that they belong to diplomacy and legislation, and not to the administration of the laws. And he justly observed, as a necessary consequence of these views, that, if the power to determine these matters is vested in congress, it is wholly immaterial to inquire whether by the act assailed it has departed from the treaty or not, or whether such departure was by accident or design, and, if the latter, whether the reasons were good or bad.

"In these views we fully concur. It follows, therefore, that, when a law is clear in its provisions, its validity cannot be assailed before the courts for want of conformity to stipulations of a previous treaty not already executed. Considerations of that character belong to another department of the government. The duty of the courts is to construe and give effect to the latest expression of the sovereign will. In Head-Money Cases, 112 U.S. 580, 5 Sup. Ct. Rep. 247, it was objected to an act of congress that it violated provisions contained in treaties with foreign nations, but the court replied that, so far as the provisions of the act were in conflict with any treaty, they must prevail in all the courts of the country; and, after a full and elaborate consideration of the subject, it held that, 'so far as a treaty made by the United States with any foreign nation can be the subject of judicial cognizance in the courts of this country, it is subject to such acts as congress may pass for its enforcement, modification, or repeal.'

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