Although the North American Free Trade Agreement’s (NAFTA) environmental side accord includes an innovative public participation component, recent practices threaten to dim this “citizen spotlight” on environmental enforcement issues. So concluded the independent Environmental Law Institute, a “think tank” commissioned by NAFTA’s Joint Public Advisory Committee to study the process. ELI’s recent report, Issues Relating to Articles 14 and 15 of the North American Agreement on Environmental Cooperation, analyzes four recent petitions that came before the Commission on Environmental Cooperation (CEC) under the citizen submission process to reach this and other conclusions.
A fundamental objective of the North American Agreement on Environmental Cooperation (NAAEC) is to enhance public participation in environmental decision-making. Articles 14 and 15 of the Agreement enable citizens of NAFTA countries to request an independent review when they believe that a country is failing to enforce its environmental laws. The purpose of the submissions process is to engage the “court of public opinion” by exposing perceived domestic enforcement issues to international scrutiny. In 2001, the Joint Public Advisory Committee (JPAC) of the CEC and several NGOs requested public review of a set of resolutions by the Council of Parties that defined the scope of four such factual records. In response, the CEC’s Secretariat recommended to the Council that a factual record be developed to investigate alleged systemic failures of NAFTA parties to effectively enforce environmental laws. Although the Council approved the preparation of factual records for these submissions, it significantly narrowed the scope of the investigations.
ELI’s study found that the Council’s action in limiting the scope of investigations jeopardized the ability of the citizen submitters to fully expose the controversy at issue. In addition, the report concludes that the Council’s decisions may effectively increase the burden of bringing a submission. As a consequence, the ability of citizens to participate may be limited.
The report also addresses the Council’s determination with respect to a recent citizen submission that there was insufficient information to allow the Secretariat to effectively review that submission. The report concludes that this action, in effect reversing the Secretariat’s earlier determination of sufficiency, threatens the independence of the Secretariat and has the potential to raise the evidentiary threshold for information necessary to support allegations of non-enforcement — another potential impediment to effective citizen participation.
Issues Relating to Articles 14 and 15 of the North American Agreement on Environmental Cooperation is available for download at http://www.elistore.org or copies can be ordered by calling 1-800-433-5120. For more information contact Jessica Troell at 202-939-3843 or email pressrequest@eli.org.