WASHINGTON — THE North American Free Trade Agreement (NAFTA) was in political trouble even before it ran into a significant legal obstacle on Wednesday.
Support for the agreement has been eroding in recent months to the point where it is no longer clear whether it can muster majority support in Congress.
President Clinton had planned to submit the pact with Mexico and Canada to Congress this September so that it could take effect immediately in 1994.
That target is now in more serious doubt than ever. Federal district Judge Charles Richey ruled Wednesday that NAFTA is illegal unless the United States government produces an environmental-impact statement before submitting the pact to Congress.
The Clinton administration is appealing the decision. But unless an appellate court expedites a decision, then rules in the government's favor, the NAFTA timetable has been set back months and possibly years.
The pact with Mexico and Canada was envisioned by President Bush as the cornerstone of a free-trade zone spanning the Americas. It has already encouraged a dramatic opening up of Latin American economies.
President Clinton took up the NAFTA cause with reservations, against considerable resistance among environmentalists and organized labor in his Democratic constituency.
The political climate has become increasingly inclement for NAFTA in recent months.
The negotiation of side agreements, intended to buffer the environmental and job-loss consequences of the accord, has not gone well. Neither Mexico nor Canada will agree to conditions acceptable to American environmentalists.
Ross Perot has been a major factor in undermining support. His comment on the ``giant sucking sound'' of jobs rushing south across the border has dominated public debate over NAFTA.
``It's being defined as a jobs issue,'' says Moises Naim, who studies the politics of NAFTA as a senior associate at the Carnegie Endowment for International Peace. ``It's not a jobs issue; it's a growth issue, a competitiveness issue.''
More members of Congress are undecided on NAFTA than are committed to either side of the issue, Mr. Naim says. The undecided camp is dominated by freshmen. Meanwhile, the president is allowing NAFTA opponents to define the debate.
The latest obstacle to NAFTA is the result of a lawsuit against the United States Trade Representative by three environmental organizations. Judge Richey rejected the Clinton administration's argument based on separation of powers that the president alone should conduct foreign affairs. NAFTA, he ruled, is subject to the National Environmental Policy Act, and the government must prepare an environmental impact statement (EIS).
Large-scale environmental impact statements usually take between three months and three years to prepare. But NAFTA might be the largest such review ever undertaken, since among other things it preempts state environmental laws. Suellen Keiner, a senior attorney with the Environmental Law Institute, estimates that it would be at least a year's project.
The government would not be starting from scratch with an EIS. It completed a review in 1991 that Raymond Ludwiszewski, who was general counsel of the Environmental Protection Agency in the Bush administration, calls the ``functional equivalent of an EIS.''
The review never became a formal EIS because, says Mr. Ludwiszewski, ``it's a religious issue for the State Department not to do EISs on treaties'' because it would establish a burdensome precedent.
The Clinton administration could take the matter to Congress, using the special fast-track authority established for trade-agreement matters to seek a NAFTA exemption from EIS requirements. But it is no sure bet that Clinton would have the votes to succeed, and the strategy, notes Ms. Keiner, ``would aggravate what has developed into a fairly difficult relationship with the environmental community.''
If the administration performs an EIS, it almost certainly will be challenged in court by the environmentalist plaintiffs. If the spotted-owl controversy in the Northwest is any example - and it is based on the same law applied to NAFTA - years of litigation could lie ahead.
Moises Naim says that NAFTA may follow another pattern, the endless Uruguay Round of negotiating the General Agreement on Trade and Tariffs (GATT). The Uruguay Round has gone on for more than six years now with no end in sight.