NAFTA and the Unmanning of North America
A trade case with Canada highlights the evidence linking everyday products to the feminization and outright disappearance of males from every species — including ours.
The longnose dace is a kind of silver minnow that lives in rivers on the eastern slope of the Rocky Mountains. To humans, a boy dace looks pretty much like a girl dace. So it wasn’t till long after they collected the little fish from several stretches of Alberta’s Oldman and Bow rivers that biologists noticed something odd. During dissection, their random catch revealed itself to be overwhelmingly of only one sex. In some stretches of the Oldman River, female dace outnumbered males by more than 9 to 1.
Water sampled in stretches of the river with the fewest males revealed spikes in a new class of pollutant, endocrine disruptors, which are found in everything from pesticides to nail polish, flame retardants to contraceptives, and in human and animal pharmaceuticals. Often mimicking estrogen, endocrine disruptors scramble the chemical signals used by vertebrates from reptiles to humans to regulate a wide range of functions, including sexual development. The Canadian data were only the latest to implicate endocrine disruption in genital abnormalities and the disappearance of males.
For researcher Leland Jackson, whose tap water comes from the Bow River, the data were “alarming. The water I use to make my kids’ orange juice is the same water those fish are living in.”
The scientists reported their findings as other Canadian events were grabbing headlines and generating heat among environmentalists. Dow AgroSciences LLC, a subsidiary of U.S.-based Dow Chemical, one of the world’s five largest chemical companies, confirmed it would sue Canada under NAFTA, the North American Free Trade Agreement. Canada’s trade crime? One Canadian province, Quebec, had placed 2,4-D — a widely used, nonproprietary herbicide and proven endocrine disruptor —on a list of garden pesticides prohibited for cosmetic use in urban areas. The measure was overwhelmingly popular with Quebecers.
Dow claims the ban lacks scientific support and amounts to an “expropriation” of its business in the province (several Dow products contain 2,4-D). It has demanded more than $2 million (Canadian) in damages. Environmental groups that had welcomed Quebec’s urban pesticide ban — the first by a state or province in North America — denounced Dow as the latest corporation to use NAFTA’s dispute-settlement provisions to undermine public health measures.
The truth, as usual, is somewhat more complicated than either adversary claims. And with the Obama administration committed by its campaign rhetoric to reopen NAFTA to bolster environmental protection, it provides a foretaste of the entrenched prejudices, often-overlooked facts and sobering implications for our chemical-saturated society that await any effort to redraft the 16-year-old trade pact.
Jackson and his associates call longnose dace a “sentinel species” that reveals environmental exposures and consequences that other creatures, including humans, may be experiencing. The bodies of male dace captured up to 70 miles downstream from city waste treatment outfalls and intensely farmed areas contained vitellogenin, a protein precursor to the production of eggs normally found only in female dace. Male dace produce the protein only when they have been exposed to feminizing chemicals. In combination with their extremely low numbers, feminized males “suggest severe endocrine disruption from the combined impacts of municipal wastewater, agriculture and large cattle operations,” the scientists concluded in a 2008 article in the journal Environmental Toxicology and Chemistry.
Other reports have associated endocrine disruptors with gender-bending effects from China to Scandinavia. Sentinel species sounding an alarm run from feminized cane toads in Florida and frogs in Connecticut to Alaskan deer with undescended testicles and hermaphrodite polar bears with penises and vaginas. Lab experiments and field studies have linked endocrine-disrupting chemicals with delayed pregnancy and spontaneous abortions among rats and humans. The faux hormones are lead suspects in a decades-long worldwide decline in human sperm counts, more frequent male genital birth defects and local instances of a sharp human sex-ratio imbalance. By one estimate, a quarter of a million boys may be “missing” globally: the difference between historic sex ratios and the plummeting male birth rates of the last 30 years.
Though there is clear evidence of widespread impacts, precise knowledge about which endocrine disruptors are doing the damage — alone or in combination with other chemicals — is lacking. Likewise, the exact biochemical mechanisms by which endocrine disruptors work are in many cases not documented. Still, the Quebec regulation was explicitly adopted as a precaution, and the situation would seem precisely the kind for which the precautionary principle was invented. As one phrasing states: “When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully understood.”
Yet Dow’s claim that “numerous assessments … by national and international agencies … have found that 2,4-D does not pose an unacceptable health risk” is also true. To the chagrin of lawyers who must now defend Quebec’s ban (thanks to long-standing international law practice, any dispute under NAFTA Chapter 11, even one with a village, must be defended by the national government), those assessments include one by Canada’s own pesticide regulator, which earlier in 2008 concluded that “2,4-D … can be used safely by homeowners, provided label directions are followed.” According to Dow’s legal filing, even Quebec’s own internal documents recognized before the ban took effect that “certain herbicides” including 2,4-D “cannot be prohibited on a scientific basis” and that “this is also the opinion of (the National Public Health Institute of Quebec).” All of the parties — the governments of Canada and Quebec and Dow — declined to comment for this article.
Environmental organizations overlooked the sharp scientific differences to characterize the case as a blatant effort to subvert Quebec’s desire to restrict the cosmetic use of pesticides. “That’s what people find so repugnant,” charged Kathy Cooper of the Canadian Environmental Law Association, “the ability of NAFTA to override what democratically elected governments can do.” Her view is popular on the environmental left. A similar idea drives NAFTA’s critics in the U.S., who accuse the trade agreement of eroding American sovereignty by allowing private tribunals to overrule U.S. courts.
A little research into the law reveals another story, one suggesting environmentalists have less to fear from NAFTA than they might think — and on this occasion perhaps something to gain.
The language in NAFTA’s Chapter 11 is far from radical. It draws on more than two centuries of legal evolution based on the oldest form of international agreement: mutual promises in which kings assured each other’s merchants of safe passage. The boilerplate NAFTA text is little different from that in some 2,500 other multi- and bilateral trade agreements, including the World Trade Organization. And it has hardly proven a gateway clause for corporate greed.
Susan Franck is an unusual legal scholar. In a field dominated by analysis, the associate professor at Virginia’s Washington and Lee University in Lexington takes an empirical tack. Surveying more than 80 disputes decided on terms found in NAFTA and other trade agreements, she found that governments won more than half the time. “The majority of investors received nothing” for their alleged injuries, she wrote. “When investors did win, they did not win big.” Typically, awards ran at around 5 cents on every dollar claimed.
Canadian attorney Todd Grierson-Weiler has worked for both states and investors as a rare specialist in NAFTA Chapter 11 cases. He calls alarm over its provisions “hysterical.” In his experience, he says, NAFTA’s own interpretive language and more than 50 years of convention in international law strongly favor the sovereign right of governments to enact whatever legislation they please, so long as they show fairness and follow due process. “Not a single investor-state treaty permits an investor to force a state to give up its law,” he notes. “All the investor can do is claim compensation for proximate damage.”
NAFTA’s text explicitly prohibits Canada, Mexico and the United States from nationalizing or committing any other act “tantamount to expropriation” of an investment belonging to a citizen of any other of the three — unless certain conditions are met. These are not onerous. They require the expropriation to be “for a public purpose”; implemented “on a non-discriminatory basis”; in accordance with national law and international standards of fair and equitable treatment; and “on payment of compensation.”
It is the last, naturally enough, that gets the bulk of the attention. Environmental groups routinely impute threatening motives to investors who pursue compensation for lost property under NAFTA. In fact, the situation is not very different from a farmer who loses a field to a new highway (or, in honor of low carbon, let’s say a new light rail line). Few would question the justice of compensating the farmer for the lost land or interpret his or her request for compensation as an effort to undermine the government’s right to build highways (or rail lines).
In practice, most investors settle or abandon their complaints before a tribunal concludes that any damages are due. What’s new in Dow v. Canada, Grierson-Weiler says, is that the case may for once turn not on the technical legal points that decided earlier suits but instead on science. NAFTA explicitly recognizes a government’s right to invoke the precautionary principle, he points out. But international legal norms also require governments to be able to show a plausible connection between the action in dispute and the “public purpose” they claim to serve. In Quebec’s case, it will need to show that science justifies its invocation of the precautionary principle.
In forcing light onto that issue, NAFTA may accomplish what a couple of decades of environmental activism have not by placing feminizing pollutants squarely on the broader public agenda.
At first glance, the science seems to be saying two different things about 2,4-D: that it is either quite safe or dangerous to the gender equilibrium of many species. The paradoxical answer may be that both assertions are true, depending on when and how you look at the evidence.
Sociologist Jim Brophy and his research associates were the first to notice a precipitous drop in male births in the small First Nation community of Aamjiwnaang, on the Ontario-Michigan border. Circled by one of the continent’s greatest concentrations of petrochemical plants, its 850 members toasted only 46 boys among the 132 births celebrated over one four-year period — a rate of about 75 boys to every 100 girls, far below the typical norm of about 105 boys. Miscarriages were also unusually frequent. To Brophy’s dismay, Canada’s pesticide regulators have shown little interest in pursuing the missing boys of Aamjiwnaang or whether workers in surrounding refineries are experiencing the same gender-bending health effects.
“Endocrine disruption does challenge a lot of what was held as established scientific opinion,” Brophy acknowledges. It exposes the limitations of what he calls “the old toxicological model that the dose makes the poison.” Most science popular with manufacturers like Dow is aimed at determining a “safe” dose of a target molecule well below the exposure that produces discernable health effects.
But endocrine disruptors mimic hormones, which can have outsize effects on human development even at infinitesimal doses. In the world outside the lab, minute traces of different endocrine disruptors may combine to create a magnified effect. So Brophy, like Jackson and other similarly minded scientists, tackles the question from the other end: Using epidemiology and statistical tools to identify real-world health anomalies, they hope to follow the etiological trail back to what’s causing them, even if it is a chemical occurring at a level of a few parts per billion.
Recently, Brophy has found a statistically significant association between breast cancer among Ontario women and adolescent exposure to endocrine disruptors on farms. “At the lowest levels of exposure, you can have the most profound effect if the timing is right,” he says. Moments of ovulation, sperm formation, conception and puberty are likely to be especially vulnerable.
But hazards that occur only some of the time are hard to detect. It’s equally difficult to pin the guilt for even the most dramatic health effects on one molecule among the many thousands North Americans are exposed to and often retain in their bodies. Hence the case for the precautionary principle — for acting on suspicion, not waiting for certainty.
To justify its ban on cosmetic weed killers, Quebec will need to show at least some scientific basis. There is evidence aplenty. In bringing it to court, however, Quebec will open the floodgates to a body of evidence that regulators not only in Canada but also in the U.S. and Britain have long ducked.
Britain opposes efforts by its European Union partners to regulate endocrine disruptors. Perhaps ominously for its NAFTA case, Quebec did not weigh the endocrine effects of any of the chemicals it banned, deferring to others to gather the necessary evidence. In re-approving 2,4-D for wide use in 2008, Health Canada said it has put off judgment of the molecule’s endocrine effects until the U.S. Environmental Protection Agency concludes its ongoing risk re-evaluation of scores of endocrine disruptors. That will take awhile. The process, ordered by Congress in 1996, was at the end of 2008 still reaching a final decision about which chemicals to assess.
Regulators in Canada and the U.S. have been reluctant to get into endocrine disruption, Brophy believes, because it raises fundamental questions about what our society is ready to accept as an “acceptable” risk. Endocrine disruptors are almost everywhere. The implications of reducing their presence are daunting. That is especially so for food production, which relies heavily on fertilizers, herbicides and pharmaceuticals that derive their effect from chemicals that are also endocrine disruptors.
The $2 million (Canadian) Dow seeks as damages is the price of a country estate on one of Quebec’s Thousand Islands, lapped by the endocrine disruptor-laced waters of the St. Lawrence River. The more material threat Dow’s suit poses is to the ongoing game of “After you, Gaston” — with all of its mutual deference and evidentiary denial — that has been practiced by the agencies charged with protecting North Americans’ public health. To win the case, Canada must either put up some endocrine science or, effectively, shut up.
The real suspense here is whether NAFTA will force a major government in North America to maintain in court — for the first time — that our fondness for perfect lawns, bodies and groceries may be turning us into a more feminine and less reproductively robust species. That would be an environmental advance that even President Obama, who hails from a state with a huge agriculture lobby, might think twice before championing.
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