FOR THE time being, though, the worst-case scenario for Massachusetts is this: Mondev wins its case and the US government, stuck with a penalty of $50 million, turns around and blames Massachusetts for the verdict. Certainly there would be strong incentive to do so. Would the government ask Massachusetts to amend its Tort Claims Act to prevent further monetary damages under NAFTA? Or might it even suggest that Massachusetts ought to pay the $50 million? After all, surely the taxpayers from the other 49 states shouldn’t be expected to pay for a law passed in Massachusetts — should they?
When demonstrators converge worldwide to protest NAFTA, the FTAA, and the WTO, this is not the kind of menace they usually have in mind. But it’s a real and, potentially, a very expensive one. It shows, too, how important it is for legislators, not just protestors, to get involved in fending off NAFTA’s dangers.
Toward that end, State Representative Byron Rushing has been pushing to create an interdepartmental government committee that would keep Massachusetts legislators abreast of NAFTA cases and other ways in which international trade agreements, like the WTO, could affect state laws. Of course, Massachusetts legislators wouldn’t have the power to affect NAFTA proceedings directly — the cases, after all, target the federal government and therefore are appropriately managed by the State and Justice Departments. But Massachusetts representatives could invite testimony by federal officials and perhaps change the way they deal with NAFTA cases.
A similar committee, the first in the nation, is already in place in California, where the state senate impaneled it in response to concerns over the Methanex case. The Mondev case should make Massachusetts equally vigilant. " We obviously have been using this as an example of why we need to have some agency inside of state government that is reporting to the legislature on what’s going on, " Rushing says. He adds that the committee could realistically be in place by the next legislative session. After all, Massachusetts has already shown an inclination to play a role in international issues: witness the Massachusetts Burma Law that was found to be pre-empted by the Supreme Court in 2000.
A new legislative committee could also help spread public information about NAFTA claims. After California representatives sent a concerned letter to US Trade Representative Robert Zoellick regarding the Methanex case, for example, Zoellick sent back an unprecedented, legally explicit response telling them not to worry, because NAFTA rules " do not have direct effect in US law. " For the first time the US government’s legal interpretation of NAFTA Chapter 11 became clear to NAFTA watchers; before that the whole matter had been kept so confidential that no one had any idea what Zoellick was thinking. Still, the letter left numerous questions unanswered. For example, what happens if the US loses one of these suits?
WHICH BRINGS us back to Hayward Place, just across the street from the still-incomplete Millennium Place and the still-derelict Paramount Theater, and within range of the smells of Chinatown’s restaurants. Mayor Thomas Menino has recently floated plans to locate the homeless Josiah Quincy Upper School on the site, and the city has been soliciting bids. But breaking ground at Hayward Place could be a Pyrrhic victory if the state has to deal with the fallout from a Mondev win.
In all likelihood, Mondev’s case won’t be decided for some time, possibly years. In the meantime, though, wider awareness of the dispute could help Massachusetts residents ask tough questions about what agreements such as NAFTA have wrought. " We need to start taking a hard look at these processes, " says Rushing, " regardless of what position you would take, whether you agree with Mondev or not. " NAFTA, Rushing observes, may be a done deal, something we have to live with. But a Chapter 11–style provision in the Free Trade Area of the Americas agreement isn’t — yet. " Once you allow these things to be set in place, " he says, " changing this will be very, very difficult. " Coming to grips with the Mondev case could help us prepare for the real debate — over extending NAFTA investor protections throughout the entire Western Hemisphere.
Chris Mooney is a staff writer at the American Prospect.
