SUBMISSION OF NON-DISPUTING PARTIES

The document provides legal arguments to support the legitimacy of California's MTBE ban in the arbitration between Methanex Corporation and the United States. It contends that international law, including the precautionary principle and the right to potable water, mandates deference to government health and environmental regulations. The authors argue that foreseeable impacts on foreign investors or the existence of alternative measures do not prove discriminatory intent under NAFTA Chapter 11.

• The Tribunal should apply a presumption of legitimacy to California's MTBE ban because it is based on public health and environmental risks, a position supported by customary international law which holds that nondiscriminatory regulatory actions for public welfare objectives generally do not constitute indirect expropriation.
• The precautionary principle and the right of nations to set their own levels of protection allow governments to regulate substances that may be harmful even without conclusive scientific evidence, meaning the Tribunal should not judge the 'correct' science but defer to the government's assessment.
• California's actions are mandated by international law's obligation to protect human rights, specifically the fundamental human right to access safe, potable water, which is a prerequisite for the realization of other rights including the right to life and health.
• The principles of public participation and subsidiarity support the legitimacy of the MTBE ban, as the measures were adopted by democratically elected officials following a public, peer-reviewed university study and public hearings.
• Foreseeable disproportionate impacts on foreign investors do not create a presumption of illegitimate intent under NAFTA Article 1102, as governments must be free to address legitimate threats even when they know the actions will fall more heavily on foreign investors.
• The determination of 'like circumstances' under NAFTA must account for environmental and health threats; therefore, an investor whose investment poses a threat to health or the environment is in a different circumstance than one whose investment does not.
• NAFTA Chapter 11 does not require that government measures be the 'least trade-restrictive' alternative, and the existence of other possible methods does not prove an illegitimate intent to discriminate.

APA

Wagner, J. M. (2004). SUBMISSION OF NON-DISPUTING PARTIES. Center for International Environmental Law. https://www.ciel.org/wp-content/uploads/2015/03/MethanexAmicusSubmission_Mar04.pdf

Chicago

Wagner, J. Martin. SUBMISSION OF NON-DISPUTING PARTIES. Center for International Environmental Law, 2004. https://www.ciel.org/wp-content/uploads/2015/03/MethanexAmicusSubmission_Mar04.pdf.

Wikipedia

{{cite report |last1=Wagner |first1=J. Martin |title=SUBMISSION OF NON-DISPUTING PARTIES |publisher=Center for International Environmental Law |date=9 March 2004 |url=https://www.ciel.org/wp-content/uploads/2015/03/MethanexAmicusSubmission_Mar04.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@techreport{wagner2004submission, author = {Wagner, J. Martin}, title = {{SUBMISSION OF NON-DISPUTING PARTIES}}, institution = {Center for International Environmental Law}, year = {2004}, month = mar, url = {https://www.ciel.org/wp-content/uploads/2015/03/MethanexAmicusSubmission_Mar04.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }