The North American agreement on environmental cooperation, The

role of transparency and public participation in international environmental agreements: The North American agreement on environmental cooperation, The

Goldschmidt, Mark R

Abstract: In the debate concerning the enforcement measures of international environmental agreements, some scholars argue that transparency and public participation are two aspects of agreements that are more successful at altering domestic environmental behavior than are coercive enforcement measures. The North American Agreement on Environmental Cooperation allows a citizen of a NAFTA country to file a complaint with the Commission for Environmental Cooperation alleging that a NAFTA country is failing to effectively enforce its domestic environmental laws. In light of the citizen submissions and the factual records published to date, the NAAEC has thus far successfully achieved one of its primary goals: to promote a transparent environmental regime that emphasizes public participation. This Note examines the NAAEC’s citizen submission process as an example of transparency and public participation in an international environmental agreement. Further, this Note argues that the citizen submission process more effectively influences long-term domestic environmental behavior than do coercive enforcement measures.

INTRODUCTION

more on the effects of public participation and transparency in persuading nations to comply with their international environmental treaty obligations.2 The principles of public participation and transparency in environmental agreements were summarized in Principle 10 of the Rio Declaration on Environment and Development.3 By the time of the 1992 U.N. Conference in Rio, there were more than 900 international legal agreements that either solely addressed environmental protection or contained more than one relevant environmental provision.4

transparent international environmental regime that emphasizes public participation.7 Under Articles 14 and 15 of the NAAEC, ordinary citizens and non-government organizations can raise claims, known as citizen submissions, against the Parties to the agreement alleging that a Party “is failing to effectively enforce its environmental law.”8 After investigating a citizen submission the Commission for Environmental Cooperation, the international intergovernmental body charged with advancing the objectives of the NAAEC, will publish a factual record if warranted.9 A factual record is a document that lays out the facts of a submission and the subsequent investigation and makes no attempt to conclude whether a Party has failed to enforce its own domestic environmental laws effectively.10

I. THE ROLE OF TRANSPARENCY IN INTERNATIONAL ENVIRONMENTAL AGREEMENTS

The traditional view of international law is that countries accept treaties that are in their best interest; because of this, countries generally comply with them.11 When countries do not comply with treaties, sanctions are employed both to punish offenders and to serve as deterrents designed to encourage future compliance.12 Environmental treaty members, however, rarely resort to party-to-party dispute resolution over treaty violations or employ sanctions against non– compliant parties because the harm of environmental non– compliance is often not easily measurable.13 Simply, treaty members find it harder to prove harm in an environmental setting than they do in cases of free trade violations.14

A. Compliance Versus Effectiveness

Evaluating a country’s compliance with an international environmental agreement involves determining both whether a country adheres to the provisions of the agreement and whether the country adheres to the domestic steps that it has taken to implement the agreement.15 Compliance refers to adhering to procedural obligations, such as reporting requirements, and substantive requirements, such as obligations to cease or control activities.16 Compliance also refers to adhering to the spirit of a treaty found in the treaty’s preamble or initial articles.17

fective agreement has little behavioral impact.20 Moreover, a signator can comply with a treaty by adhering to the treaty’s procedural obligations, substantive requirements, and spirit, but still be ineffective in attaining the treaty’s objectives because the treaty has little behavioral impact.21

Developing indicators to measure effectiveness is a challenging task. At least two major components of assessing a treaty’s effectiveness, however, have been identified: (1) whether the treaty achieves its stated objectives; and (2) whether it addresses the problems that led to the treaty.22 In addition, when assessing the effectiveness of treaties dealing with environmental enforcement, a third factor can be used to determine whether such a treaty is effective: public participation.23 The results of a major multinational research project at the International Institute for Applied Systems Analysis indicate that efforts to open public participation in the environmental policy development process have influenced domestic policy decisions and enforcement.24 In assessing public participation, the research project indicated that it is important to examine not only the formal rules of access but also the other necessary conditions for participation.25

B. Non-government Organizations and Compliance

is often essential for successful monitoring.28 As a result, NGOs often put pressure on governments, directly or indirectly, to release compliance information and provide the public with information about environmental problems.29 NGOs additionally mobilize public opinion, set political agendas, and communicate with other NGOs throughout the world.30

C. The Role of Public Participation in Monitoring and Sanctioning Non-compliance With Environmental Treaties: The Enforcement and Management Model

Debate surrounds international environmental agreements regarding the monitoring and sanctioning of non-compliance.31 The debate is between two major approaches: (1) the enforcement model; and (2) the management model.32 The enforcement model of compliance relies on the availability of sanctions to deter violations.33 Structural features of international regimes, however, frequently constrain the use of sanctions.34 For example, sanctions implemented as a coercive measure to counter a violation of an environmental treaty may violate free trade agreements under the General Agreement on Tariffs and Trade (GATT) or the World Trade Organization (WTO).35

zens hold the non-complier accountable, a transparent information system is critical to the managerial model of compliance.39

D. The Need for Transparency and Public Participation

Transparency makes non-compliance more apparent to the public, NGOs, and other member countries and makes it easier for international and domestic actors to take actions to encourage and enforce accountability and compliance.40 Transparency can be defined as:

The adequacy, accuracy, availability, and accessibility of knowledge and information about the policies and activities of parties to the treaty, and of the central organizations established by it on matters relevant to compliance and effectiveness, and about the operation of the norms, rules, and procedures established by the treaty.41

Transparency also deters non-compliance with a treaty because it allows public visibility associated with the failure to comply.42

The transparency of an international agreement’s information system can be evaluated against several standards.43 First, does the system collect a wide range of relevant information on compliance and effectiveness?44 Second, what is the extent to which the available information is perceived as accurate, reliable, and legitimate?45 Third, does the information available to the treaty organization get analyzed and processed effectively?46 Finally, is the information available to the treaty organization made available to industry, NGOs, and public as well as governments?47

obligations.49 Additionally, transparency provides deterrence because behavior that deviates from a treaty will be discovered, and “[e]ven when direct retaliation seems unlikely, exposure alone can cause behavior to change.”50

Scholars have noted four additional benefits to a transparent information system:

(1) the creation of communities of interested parties, especially scientists and specialists in the topic; (2) an increase in the amount, quality, and availability of information about issues involved, so that they can be readily understood; (3) the involvement of domestic officials and bureaucracies, so that their personal interests and reputations become issues at stake; and (4) the generation of international momentum toward domestic compliance with environmental laws, which increases the benefits of compliance and the costs and consequences of noncompliance for adhering countries.51

The greater the flow of scientific and technical information concerning questionable activities on the part of member countries in a format readily understood by governments and public pressure groups, the greater the likelihood of compliance with an agreement and thus with domestic environmental laws.52

E. A Changing “Environment”

behavior and thus support the effectiveness of an environmental treaty.55

Further, as the international legal system shifts away from a state– centered, hierarchical, and static model to a system of networks comprised of state and non-state actors in a non-hierarchical and dynamic framework, citizens and NGOs gain greater influence concerning not only international behavior, but also domestic behavior.56 Pressure from domestic NGOs and the public comprises an important mechanism for promoting implementation of and compliance with treaty obligations.57 The more a country allows the participation of domestic groups and NGOs, the greater the probability of implementation and compliance; thus, the effectiveness of a treaty may be realized.58

American environmental NGOs are essential to the U.S. government’s efforts to enforce domestic environmental law.59 NGOs serve as “watchdogs,” reporting violations to the appropriate authorities.60 Often they possess specialized information that government officials use to both monitor and prosecute violations.61 In this sense, NGOs in the United States function as an extension of the government’s regulatory efforts.62 Further, environmental NGOs are able to pressure bureaucracies to increase their treaty implementation and enforcement efforts.63

F. Three Broad Strategies for Compliance

The first strategy, sunshine methods, includes monitoring, reporting, access to information, and NGO participation.66 Sunshine methods attempt to make party behavior open to the public and other member scrutiny, thus encouraging compliance.67 “Sunshine methods incorporate measures that build public awareness of [an] agreement and the measures required, provide media access to measures of compliance and to cases of non-compliance, and use emerging information technology to build pressures upon governments and other relevant actors to comply.”68 This strategy relies on the “reputation factor” and has the effect of embarrassing a party into compliance.69 Official or formal monitoring is an important aspect of this strategy, but non-traditional monitoring methods such as the publicizing of non-compliant behavior by non-state actors or NGOs is becoming more common.70 Such unofficial monitoring methods rely on NGOs, expert communities, and corporate actors to encourage compliance by bringing non-compliance to the attention of treaty secretariats and national governments.71 Agreements such as the World Heritage Convention and the Convention on International Trade in Endangered Species (CITES) use NGOs in their implementation.72

The final strategy for encouraging compliance is the application of coercive measures.77 Coercive measures, such as sanctions, penalties, and the withdrawal of membership privileges to a convention, have historically been used to punish non-compliance.78 Sanctions hold additional value particularly as a last resort where transparent or other attempts to encourage compliance have failed or been ineffective.79 Several treaties including the World Heritage Convention, the CITES, and the Montreal Protocol have made sanctions available to ensure compliance.80 Sanctions are viewed as essential for some international issues, such as international trade and national security; however, in international environmental agreements, sanctions are rarely used.81 One reason why they might not be used to enforce international environmental agreements is because they might be inconsistent with the GATT and the WTO.82

G. Benefits of Sunshine Strategy: The Need for Public Participation and Transparency

II. ORIGINS OF THE NAAEC AND DESCRIPTION OF THE CITIZEN SUBMISSION PROCESS

A. Reasons for Adopting the NAAEC

The environmental protective framework of NAFTA was not yet agreed upon as NAFTA treaty negotiations neared completion in 1992.(88) The public and NGOs, especially environmental groups, vocalized their demands for an agreement that would outline substantive environmental norms among the three member countries.89 Environmentalists described NAFTA as a mechanism for uncontrolled growth at a significant cost to the environment.90 Some even argued that the goal of liberalized trade would trump domestic environmental regulations and commitment to enforcement.91 Environmentalists also feared that polluting industries would move from areas with a higher level of environmental protection to areas with less stringent environmental standards.92 Specifically, advocates feared that businesses and corporations would move from the United States and Canada to Mexico because of the comparative advantage afforded by Mexico’s less stringent environmental regulatory standards and enforcement.93 Many also feared that to counter this flight to a more business-friendly atmosphere, or “race to the bottom,” the United States and Canada would lower domestic environmental standards and enforcement to entice businesses to stay.94

included environmental and labor agreements.97 Thus, on September 13, 1993, the environmental ministers of Canada, Mexico, and the Administrator of the U.S. EPA signed the NAAEC.98 The NAAEC was signed “to foster cooperation for the protection and improvement of the environment, [and] to enhance compliance with, and enforcement of, environmental laws and regulations.”99

B. Transparency and Public Participation Objectives of the NAAEC

The Preamble to the NAAEC provides some insight into the intent of the signators.100 The Preamble states that the Parties are committed to “the importance of the conservation, cooperation and enhancement of the environment in their territories and the essential role of cooperation in these areas in achieving sustainable development for the well-being of present and future generations.”101 It also states that one of the primary goals of the NAAEC is to promote a transparent environmental regime that emphasizes public participation.102 The Preamble further recognized “the importance of public participation in conserving, protecting and enhancing the environment.”103

regulations.107 The Parties also committed to ensuring that judicial proceedings would be “fair, open and equitable,” with written decisions provided without “undue delay.”108

C. Role of the Commission for Environmental Cooperation

Article 8 of the NAAEC provides for the creation of the Commission for Environmental Cooperation (CEC), the first centralized intergovernmental and political North American institution.109 The CEC’s purpose is to increase cooperation between the three Parties to the NAAEC in protecting, conserving, and enhancing the North American environment.110 Further, the CEC acts as a point of inquiry where North American citizens and NGOs can raise questions and provide comments concerning the environmental goals and objectives of NAFTA.111 The CEC consists of a Council, a Secretariat, and ajoint Public Advisory Committee.112

1. The Council

public unless the Council directs otherwise.117 The Council may consider and develop recommendations regarding a host of issues including pollution prevention techniques and strategies, promotion of public awareness regarding the environment, and approaches to environmental compliance and enforcement.118 Encouraging compliance with domestic laws and regulations is also part of the Council’s mission.119

2. The Secretariat

The Secretariat is the largest entity within the CEC and according to Article 11(5) it “provide[s] technical, administrative, and operational support to the Council and to committees . . . established by the Council.”120 It must prepare an annual report for the CEC in accordance with instructions from the Council.121 Under Article 13, the Secretariat may also prepare reports on any environmental matter within the scope of the NAAEC so long as it notifies the Council and the Council does not object by a two-thirds vote to the preparation of the report.122 In preparing reports or conducting investigations, the Secretariat may consider relevant technical or scientific information submitted from sources such as NGOs or member countries.123 Most significantly, Article 14 allows the Secretariat to consider a submission from a NGO124 or person asserting that a member country is “failing to enforce its environmental law effectively.”125

from receiving instructions from any government or any authority external to the Council.128

3. The Joint Public Advisory Committee

The third body of the CEC, the Joint Public Advisory Committee (JPAC), consists of fifteen members appointed by each member country in equal numbers.129 The JPAC provides advice to the Council on any matter within the scope of the NAAEC and performs other functions as determined by the Council.130 It may also provide relevant technical, scientific, or other information to the Secretariat, including information used to develop a factual record under Article 15 at the request of the Secretariat.131 One of the more innovative aspects of the NAAEC, the JPAC creates “a link between the North American public and the other bodies of the [CEC], with the objective of promoting public participation in the decision-making process of the [CEC].”132

D. Citizens Raising Environmental Claims Against Member Parties

Though NAFTA has its own process for dispute resolution, the NAAEC developed separate institutional methods for resolving environmentally based disputes in order to achieve the transparency and public participation objectives133 of the treaty.134 Part V of the NAAEC, specifically Articles 22 through 36, allows for party-to-party dispute resolution where a member Party is permitted to file a complaint against another member Party for a persistent pattern of failure to enforce its environmental laws effectively.135 Additionally, Articles 14 and 15 allow citizens or NGOs to submit a complaint to the CEC similarly alleging a Party’s failure to enforce its environmental laws effectively.136

agement mandate of the Secretariat.”137 This process, as established under Articles 14 and 15 and the Secretariat’s reports prepared under Article 13, are the primary avenues NGOs have under the NAFTA/NAAEC framework to pursue environmental concerns.138 Article 14 of the NAAEC allows any NGO, such as a business enterprise or environmental group, or person who resides in a territory of a Party to submit to the Secretariat a claim that a member country is not effectively enforcing its environmental laws, thus failing to fulfill its commitment under the NAAEC.139

Pursuant to Article 14(1), the Secretariat will only consider a submission if it is written in a language designated by the Party who is the subject of the submission and clearly identifies the person or organization making the submission.140 Further, the submission must include sufficient information and evidence that will allow the Secretariat to review it.141 Also, the submission must focus on promoting enforcement rather than harassing an industry, indicate that the matter has been communicated in writing to the Party involved, and indicate the response to the submission, if any, from that Party.142

tors, the Secretariat forwards the submission to the Party and requests a response.145

Pursuant to Article 14(3), the Party must respond to the Secretariat within thirty days, or in exceptional cases sixty days, from the delivery of the request.146 Additionally, the Party must state whether the submission is the subject of pending domestic proceedings, in which case the Secretariat will not proceed further.147 The Party may also include other information that it wishes to submit to the Secretariat, such as whether the matter was previously the subject of a domestic proceeding, whether private remedies in connection with the matter are available to the person or organization making the submission, and whether such remedies have been pursued.148

Once the Party submits a response, the Secretariat then determines under Article 15 whether the response warrants the development of a factual record.149 If the Secretariat determines that the response warrants a factual record, the Secretariat informs the Council and provides the reasons for its conclusion.150 The development of a factual record begins only if the Council directs the Secretariat to initiate a factual record by a two-thirds vote pursuant to Article 15(2).151

After the Secretariat submits a draft of the factual record to the Council pursuant to Article 15(5), the Party may provide comments on the accuracy of the draft within forty-five days.155 All relevant information gathered by the Secretariat during the process of compiling a factual record is included in the final publication.156 The Secretariat then incorporates any comments in the final factual record and submits it to the Council.157 Within sixty days following the submission of the final factual record, the Council may, by a two-thirds vote, make the record publicly available.158

III. SUMMARY OF THE CITIZEN SUBMISSIONS TO DATE AND THE FIRST Two FACTUAL REcoRDs

To assess the NAAEC’s effect on the transparency of North American domestic environmental laws, it is important to evaluate what makes a citizen submission successful in the eyes of the CEC. This section evaluates the successful citizen submissions to date, two of the three published factual records, and the pending factual records.159

A. Summary of Submissions to Date

B. An Assessment of Successful Citizen Submissions

1. Article 14(1)

Article 14 establishes threshold requirements for the Secretariat’s consideration of a submission.164 It allows any NGO or person who resides in a territory of a Party to submit to the Secretariat a claim that a member country “is failing to effectively enforce its environmental law.”165 Under Article 14(1), the Secretariat will only consider a submission if it:

(a) is in writing in a language designated by that Party in a notification to the Secretariat;

(b) clearly identifies the person or organization making the submission;

(c) provides sufficient information to allow the Secretariat to review the submission, including any documentary evidence on which the submission may be based;

(d) appears to be aimed at promoting enforcement rather than at harassing industry;

(e) indicates that the matter has been communicated in writing to the relevant authorities of the Party and indicates that Party’s response, if any; and

(f) is filed by a person or organization residing or established in the territory of a Party.166

Most relevant to the Secretariat’s analysis of the claim that a Party is failing to effectively enforce its environmental laws are the definitions: (1) “environmental law;” (2) “effective enforcement;” and (3) “is failing” to effectively enforce.167

a. “Environmental Law”

protect habitats fall within the ambit of this definition.169 In the BC Hydro submission, the submitters, two environmental groups, alleged that the Canadian government “failed to effectively enforce section 35(1) of the Federal Fisheries Act, and [has] permit[ted] the ongoing, unauthorized destruction of fish and fish habitat in British Columbia.”170 The Secretariat did not detail its reasons for concluding that the submission met the criteria of Article 14(1).171 However, the Secretariat pointed out in its recommendation to the Council that a factual record should be developed because, according to the Federal Fisheries Act, “it is an offense to carry on work which results in the harmful alteration, disruption or destruction of fish habitat . . . . “172 The Secretariat thus implied that the Federal Fisheries Act met the Article 14 definition of “environmental law” as defined under Article 45 because habitat protection prevents harm to the environment.173

der 45(2).178 The General Law for Ecological Equilibrium and Environmental Protection (LGEEPA) also qualified as an “environmental law” because Articles 170 and 134 set out criteria and measures for protecting the environment and human health from problems associated with hazardous substances.179

On the other hand, the Secretariat has found that international legal agreements that do not have the force of domestic law do not fit within the definition of environmental law under Article 45(2).180 In the Biodiversity submission, the submitters alleged that Canada failed to enforce its environmental laws effectively by failing to enact legislation pursuant to the Canadian Prime Minister’s ratification of an international agreement.181 The submitters alleged that the Prime Minister’s Instrument of Ratification was an “environmental law” pursuant to Article 45(2) of the NAAEC and that Canada’s failure to enact endangered species legislation violated the Ratification Instrument, and thus violated the agreement.182 The Secretariat held that the Ratification Instrument simply confirmed Canada’s international obligations under the agreement and was not a domestic “statute.”183 Further, the Ratification Instrument did not constitute a “regulation” under Canadian law, because a regulation must be authorized by statute and subjected to the formal process of Parliamentary scrutiny and publication.184 Therefore, the Ratification Instrument was not an “environ-mental law.”185

case it did not and thus failed to meet the requirement of “environmental law.”188 The citizen action instead referred to “management of commercial forestry resources and [did] not relate to environmental protection” which is expressly excluded from the definition of “environmental law” under Article 45 (2).189

b. “Effective Enforcement”

Successful submissions most commonly include allegations that a Party is failing to enforce its environmental laws effectively via inadequate inspection practices, failure to prosecute violations, or both.190 The Secretariat has rejected, however, submissions that do not involve allegations of “effective enforcement” and that merely attack the appropriateness of legislative acts.191 In the Spotted Owl submission, the Secretariat concluded that a rider modifying the implementation of the U.S. Endangered Species Act was not a failure to “effectively enforce” environmental law.192 The Secretariat stated that an allegation that attacked legislation on the grounds that it did not sufficiently protect the environment did not meet the threshold of “effective enforcement” because it focused on the legislation itself and not on the enforcement of that legislation.193 The Secretariat stated:

The enactment of legislation which specifically alters the operation of preexisting environmental law in essence become[s] a part of the greater body of environmental laws and statutes on the books …. The Secretariat therefore cannot characterize the application of a new legal regime as a failure to enforce an old one.194

that these inconsistencies constituted a failure to enforce environmental law effectively.196 The Secretariat dismissed the submission for failure to comply with the “effective enforcement” criteria under Article 14(1).197 The Secretariat stated:

The NAAEC’s purpose is not to set environmental standards for the Parties …. [T]he Parties did not contemplate that the Article 14 citizen submission process would be available for challenges to a Party’s exercise of its standard-setting authority …. In sum … the Article 14(1) requirement that a submission assert a failure to “effectively enforce” bars the Secretariat from considering disputes concerning “standard– setting. . . .”198

The Secretariat did, however, state that a model “enforcement” submission should contain three elements:

(1) [the] Party’s law [that] establishes specific environmental standards; (2) [the] regulated entities … [that] are allegedly operating in violation of such standards; and (3) [that] the Party has allegedly failed to effectively enforce this law … by allowing violations to occur without using available enforcement authorities to curtail them.199

c. The “Is Failing” to Effectively Enforce Requirement

of Article 14(1) established by the use of the words `is failing,'” because the submission was filed three years after the law was enacted.202 Because the submission only focused on an error that took place during the implementation process of the law, it provided no indication that the party’s failure was continuing or recent; thus, it failed to meet the temporal requirement.203

Similarly, it appears that a future failure does not satisfy the temporal requirement of Article 14(1).204 In the Jamaica Bay submission, the submitters alleged that the U.S. National Park Service failed “to effectively enforce and propose[d] to violate” several environmental laws by allowing the installation of a bicycle path in a sensitive habitat area.205 The submission alleged that construction of the path “will destroy critical habitat” and “will result in the taking of migratory birds” in violation of the Endangered Species Act and Migratory Bird Treaty Act.206 The Secretariat concluded that “the submission focuses on a prospective rather than on an ongoing asserted failure to effectively enforce.”207 Because the government was only evaluating the decision and had not yet decided to install the proposed bicycle path, there was not an ongoing or recent violation.208 Therefore, the submission failed to comply with Article 14(1).209

2. Article 14(2)

If the Secretariat determines that a submission satisfies the criteria in 14(1), the Secretariat then evaluates whether a response is warranted from the party that is the subject of a submission.210 Article 14(2) guides the Secretariat’s evaluation, and states that the Secretariat should consider whether:211

(b) the submission, alone or in combination with other submissions, raises matters whose further study in this process would advance the goals of this Agreement;

(c) private remedies available under the Party’s law have been pursued; and

(d) the submission is drawn exclusively from mass media reports.212

If the submission meets these criteria, the Secretariat then forwards the submission and supporting information to the party and requests a response.213

The Article 14(2) (a) “harm” requirement is not the same as a standing requirement in a U.S. domestic court.214 In the Cozumel submission, the Secretariat stated that:

While the Secretariat recognizes that the submitters may not have alleged a particularized, individual harm required to acquire legal standing to bring suit in some civil proceedings in North America, the especially public nature of [the natural resources at issue] bring submitters within the spirit and intent of Article 14 of the NAAEC.215

In the Metales y Derivados submission, the Secretariat concluded that the submission warranted a response.219 First, the submission alleged grave risk to the community due to toxic substances from an abandoned lead smelter.220 Second, the grave risk to human life and the environment from the smelter justified further study and advanced the protective goals of the NAAEC.221 Third, the submitters made concerted efforts to “obtain information on the situation at the site and to have the government take action;” and because the government refused to provide information or take action, it would not be reasonable to expect the submitters to do more.222 Finally, the Secretariat was satisfied that the submission was not based exclusively on media reports although media reports were included in the submission.223 In totality, these factors satisfied the requirements of Article 14(2).224

the goals of the NAAEC under Article 14(2) (b).230 The Secretariat stated that:

[Developing a factual record] would do little more than restate the language of the Logging Rider, since presumably the failure is manifest in the words of the legislation …. That evaluation, however, is an intrinsic function of the legislative process [and the citizen submission process] is not a secondary forum for legislative debates of one of its Parties.231

The Secretariat concluded that reiteration of the domestic legislative process would contribute only marginally to the goal of the NAAEC to put facts before the public.232

Similarly, in the Aage Tottrup submission, the Secretariat did not request a response from the Canadian government because the submission failed to meet the requirement of 14(2)(c).233 In that instance, the submitters had also filed a claim against the Canadian government in domestic court.234 The Secretariat concluded that because the “pending judicial proceeding is likely to impact directly on the issue raised in the submission and, should the submitter prevail, may resolve most or all of these issues,” it would not request a response from the government.235

3. Article 14(3)

cial or administrative proceeding.238 If the submission is the subject of a proceeding, the Secretariat will not go any further.239 The party must also include any other information that it wishes to submit, such as: (1) whether the matter was previously the subject of a judicial or administrative proceeding; and (2) whether private remedies in connection with the matter are available to and have been pursued by the submitter.240

The Secretariat combined two submissions, Methanex and NESTE Canada, and dismissed both under 14(3)(a).241 After receiving a response from the U.S. government, the Secretariat learned that the matter was the subject of a pending judicial proceeding in California.242 Additionally, the Secretariat learned that it was subject to an Article 11 proceeding under NAFTA.243 Thus, the Secretariat, following the strict language of 14(3)(a), decided not to proceed further with the submission.244

The Secretariat has also held that a party’s non-pursuit of proceedings does not qualify as “pending” judicial or administrative proceedings.24 In BC Hydro, the party that was the subject of the citizen submission argued that issues addressed in the submission were the subject of pending judicial and administrative proceedings and that pursuant to Article 14(3)(a) the Secretariat must dismiss the submission.246 The Secretariat, however, made a different finding.247 The Secretariat reviewed the two judicial and two administrative proceedings claimed by the Canadian government and concluded that:

sued by a Party in a timely manner, and be in accordance with a Party’s law.248

The Secretariat concluded that none of the pending proceedings claimed by the Canadian government necessitated the automatic termination under 14(3)(a) because the government failed to pursue judicial proceedings after alleged statutory violations were brought to its attention by environmental groups.249

4. Article 15

After a Party submits a response, the Secretariat determines whether the response warrants the development of a factual record under Article 15(1).250 If the Secretariat determines that a factual record is warranted, it informs the Council and provides its reasons for this determination.251 The Secretariat only develops a factual record if the Council, by a two-thirds vote, directs it to do so, pursuant to Article 15(2).252 When preparing the factual record, pursuant to Article 15(4), the Secretariat considers any relevant technical, scientific or other information that is: (a) publicly available; (b) submitted by interested non-governmental organizations or persons; (c) submitted by the Joint Public Advisory Committee; or (d) developed by the Secretariat or by independent experts.253 Utilizing these considerations, the Secretariat submits a draft factual record to the Council and Party pursuant to Article 15(5).254 The Secretariat then incorporates any comments from the Council and Party into a final factual record and submits it to the Council.m Finally, the Council may, by a two-thirds vote, make the record publicly available pursuant to 15(7).2

pact assessment (EIA) for a portion of the Cozumel Port Terminal project instead of requiring an EIA for the entire project.258 A factual record, according to the Secretariat, would assist in a determination of whether Mexico failed to enforce existing environmental laws effectively by exempting portions of the port project from the EIA.259

Similarly, in regard to the allegation concerning the LGEEPA in the Metales y Derivados submission, the Secretariat determined that a factual record was warranted pursuant to Article 15(1).260 The Secretariat reached this conclusion because the Mexican government, potentially in violation of Mexican law, had not taken appropriate “actions to contain and secure the hazardous wastes at [a contaminated] site, nor to neutralize them and prevent them from causing contamination … despite numerous requests from the submitters.”261 The Secretariat also stated:

The factual record should provide information on the contamination at the Metales y Derivados site, on the alleged dangerous repercussions to public health and the environment from such contamination, and on the Party’s enforcement efforts to prevent [such] risk . . . , and to prevent and control soil contamination, including by restoration … in effective enforcement of LGEEPA Articles 170 and 134.(262)

In a number of instances, the Secretariat has determined that a factual record was not warranted.263 Reasons for concluding so include pending litigation surrounding the allegations in the submission, and a claim based on a regulation that was not in force at the time of the alleged violation.264 Sometimes the reasons are not disclosed because the Party’s response has been categorized as confidential.265

ranted because a domestic proceeding involving the same subject matter had commenced.266 The Secretariat dismissed the submission because “the preparation of a factual record presents a substantial risk of interfering with pending litigation.”267 The Secretariat did not want to “intrude on one or more of the litigants’ strategic considerations,” such as discovery “or the development and presentation of evidence and legal theories.”268 Due to the risk of harm to the domestic litigation, the Secretariat thus concluded that a factual record was not warranted.269

Similarly, in the Lake Chapala submission, the Secretariat concluded that the development of a factual record was not warranted pursuant to Article 15(1).270 In that case, the submitters alleged that the Mexican government violated environmental legislation by failing to act upon a citizen complaint.271 The Secretariat concluded that the submission did not warrant development of a factual record because the allegations were “based on an act of the Party posterior to the presentation of the submission which affects the principal assertion of the submission.”272

After reviewing Mexico’s response in Metals y Derivados concerning the allegation about Mexico’s violation of its Federal Criminal Code and extradition laws, the Secretariat concluded that the allegation did not warrant a factual record.277 The Secretariat did not disclose the reasons for that conclusion due to Mexico’s categorization of its response as confidential.278

Pursuant to Article 15(2), the Council voted against the development of the Quebec Hog Farms submission as a factual record even though the Secretariat recommended its development.279 The Council did not publicize its reasoning; however, the Canadian government did point out in its response that it had recently adopted new regulations with respect to agricultural pollution and new measures to enforce the applicable environmental laws.280 Perhaps the Council felt it would not be appropriate to develop a factual record in this context because the new regulations were part of an attempt to rectify the pollution problems.281

C. Published Factual Records

As of March 2002, ten citizen submissions have been found by the Secretariat to warrant the development of a factual record.282 Three, however, have been completed: (1) Cozumel (SEM-96-001); (2) BC Hydro (SEM-97-001); and Metales y Derivados (SEM-98-007).283 This section will discuss the first two factual records.

1. The Cozumel Factual Record (SEM-96-001)

tection of Natural Resources A.C., the International Group of One Hundred A.C., and the Mexican Center for Environmental Law A.C., presented a submission to the Secretariat pursuant to Article 14 of the NAAEC. They alleged a “failure on the part of Mexican Authorities to enforce their environmental law effectively with regard to the totality of the works on the ‘port terminal project in Playa Paraiso, Cozumel, Quintana Roo.'”285

a. Procedural Challenges Under Articles 14 and 15

After receiving the submission from the three NGOs on January 18, 1996, the Secretariat reviewed the submission in accordance with Articles 14(1) and 14(2) and determined that it warranted a response.286 Thus, on February 8, 1996, the Secretariat requested a response from the Government of Mexico.287 The Mexican authorities responded on March 27, 1996.(288)

relationship between the alleged ecological damage … and the … alleged violations to environmental laws.”294

On June 7, 1996, the Secretariat informed the Council that the development of a factual record was warranted and explained its reasons pursuant to Article 15.(295) On August 2, 1996, the Council voted unanimously to instruct the Secretariat to prepare a factual record pursuant to Article 15 of the NAAEC.296 In developing the factual record, the Council directed the Secretariat to “consider whether the Party has failed to enforce effectively its environmental law since the NAAEC’s enactment on January 1, 1994.”(297) Furthermore, the Council stated that in light of such an alleged failure to enforce the law effectively, “relevant facts prior to January 1, 1994, may be included in the factual record.”298

b. Issues Raised in the Factual Record

The submission concerned the approval process of a port terminal construction project on the island of Cozumel.299 The central issue raised by the NGOs was that the project was initiated without an adequate assessment of the environmental impact that encompassed the true scope and magnitude of the project.300 Though Environmental Impact Reports (EIRs) were produced for parts of the project, the lack of a comprehensive EIR allegedly contradicted the Concession Title that Mexico’s Secretariat for Communications and Transportation (SCT) granted to the construction company, permitting the initiation of the project.301 Additionally, the submitters claimed that the project was located within an environmentally sensitive area protected by Mexican law.302 The submitters contended that the project could harm both the Paradise Reef and the Caribbean Barrier Reef.303

claimed that the EIR only assessed the environmental impacts on portions of the port project without evaluating the construction and oper-ation of all the component projects that constituted the Port Terminal.305 Separating individual projects and their environmental impacts, according to the submitters, violated Article 28 of the LGEEPA, because the construction company would not have to present a comprehensive environmental assessment regarding all work that comprised the Port Terminal Project.306 Finally, the submitters also asserted that a part of the project entitled, “Species Rescue Program,” which provided for the movement of endangered marine species from the project area, violated a Refuge Zone Decree prohibiting the collection of marine flora and fauna.307

In its response, the Mexican government stated that the port terminal consisted of a distinct project and that the construction and operation of the pier complied with environmental impact requirements pursuant to the project’s original EIS.308 Further, the Mexican government explained that only part of the project had been authorized by the SCT and that no EIR was required because the additional projects had not yet been authorized.309 In regard to the claims concerning the environmentally protected areas, the Mexican authorities stated that the pier project was not within the subject matter of the restrictions because the protective measures were intended to curb commercial and underwater/sport fishing, not construction projects.310 Moreover, the Mexican government argued that the “Species Rescue Program” was intended to preserve the Paradise Coral Reef and therefore did not violate the Refuge Zone Decree.311

c. Assessment of the Facts Presented by the Secretariat in the Factual Record

failed to enforce its environmental laws effectively.313 For example, a central issue in the submission was how the scope of the pier project should be defined.314 The NGOs claimed the project was of a larger magnitude than the construction company and governmental authorities claimed.315 The government argued that the pier was an independent project apart from the onshore port terminal.316 The factual record presented both arguments, the applicable law for defining key terminology, and the government’s own technical opinion.317 The technical opinion stated that “the proposed project lies in two zones: (a) a maritime zone … and (b) property on dry land” and recommended that all information for both the pier and port terminal be included in the construction company’s EIS.318 Though the information in the factual record appears to support the submitters’ argument, the reader is left to draw his or her own conclusions.319

2. The BC Hydro Factual Record (SEM-97-001)

Council, and the Council agreed, that a factual record should be developed.322

a. Issues Raised in the Factual Record

The NGOs alleged that the Canadian government failed to enforce Section 35(1) of the Federal Fisheries Act against the BC Hydro and Power Authority (BC Hydro), which resulted in the destruction of fish and fish habitat in British Columbia by hydroelectric dams.323 The submitters claimed that BC Hydro’s hydroelectric dams harmed fish habitat in several different ways, including reduced flows, rapid flow fluctuation, inadequate flushing flows, altered water quality, flow diversion, and reservoir drawdown are in violation of Canadian law.324 The submission listed six specific instances illustrating the nature and extent of the damage to fish and fish habitat caused by BC Hydro’s operations across British Columbia.325 The submitters also alleged that the Department of the Fisheries and Oceans (DFO), the entity responsible for administering the Act, was aware of the violations because it received correspondence from various interested parties.326 Despite this correspondence, the DFO failed to enforce Section 35(1) of the Act.327 According to the submitters, at the time of the submission the DFO had charged BC Hydro with only two violations since 1990 “despite clear and well-documented evidence that Hydro’s operations damaged fish habitat on numerous occasions.”328 Interest ingly, the submitters also alleged a comparative market advantage over U.S. hydroelectric dams that were subject to adhere to strict federal regulations protecting fish.329

effective enforcement was too limited because it “equate[d] enforcement directly with legal and judicial sanctions.”331 Further, Canada pointed out that the submission “fail[ed] to appreciate the comprehensive approach recognized in Article 5 [of the NAAEC] and followed by Canada.”332 Canada argued that it had implemented “a range of compliance activities, from voluntary compliance and compliance agreements to legal and judicial sanctions, [that] are the most productive [method] … of providing for the long-term protection of the environment with respect to fish and fish habitat.”333

In April 1997, the Secretariat recommended to the Council that a factual record be developed because more information was needed before an evaluation could be made as to whether Canada was effectively enforcing its environmental law.334

b. Assessment of the Facts Presented by the Secretariat in the Factual Record

The BC Hydro Factual Record relied more extensively on expert information than did the Cozumel Factual Record.335 In fact, the BC Hydro Factual Record was more than twice as long as the first factual record.336 Like the Cozumel record, however, the Secretariat did not make direct conclusions about whether Canada effectively enforced its environmental laws.337 For example, when addressing the factual conflict between the submission and the response, the Secretariat presented both positions as well as expert information, but drew no conclusions.338 Again, the reader is left to draw his or her own conclusions concerning the issues.

mittee of experts in fisheries law and dam operations convened by the Secretariat to assist with the preparation of the factual record, collected oral and written information from each of the stakeholders involved.341 The Expert Group used this information to point out flaws in the government’s No Net Loss (NNL) program.342 The government claimed that the NNL program constituted effective enforcement under section 35(1) of the Fisheries Act.343 The submitters, however, argued that the NNL was not an appropriate benchmark for measuring effective enforcement because it allows the destruction of some fish habitat so long as there is no overall net loss, while section 35(1) prohibits any harm against fish habitat.344 The Expert Group found that “there have been significant habitat losses at many if not all hydroelectric facilities over the past two decades that would not be captured by the NNL principle due to the manner in which baseline years for NNL are established.”345 The Expert Group’s findings, included in the factual record, seem to favor the submitters, but the factual record draws no conclusions and leaves it to the reader to decide whether the Canadian government effectively enforced its laws.346

3. The Metales y Derivados Factual Record (SEM-98-007)

continue criminal proceedings against the owner by means of formal extradition.350 Finally, the submission argues that the authorities failed to take appropriate measures to contain or neutralize the hazardous waste.351 Unfortunately, the Mexican government has designated its response as confidential.352 This Note does not evaluate the Metales y Derivados Factual Record due to the short amount of time between the publication of the Metales y Derivados Factual Record and the publication of this Note.

D. Pending and Potential Factual Records

Currently, the Secretariat is preparing five submissions for development as factual records: (1) Aquanova (SEM-98-006); (2) BC Mining (SEM-98-004); (3) BC Logging (SEM-00-004); (4) Migratory Birds (SEM– 99-002); and (5) Oldman River II (SEM-97-006).353

the government denied that the company introduced a species of shrimp that could cause a disease affecting other fishery resources.358 Finally, in regard to the three international agreements, the response states that the submitters have not explained which provision of the agreements the government has allegedly violated and that one of the agreements is not an international convention.359

In BC Mining, the submitters allege that the Government of Canada has failed to effectively enforce section 36(3) of the Federal Fisheries Act to protected fish and fish habitat from the destructive environmental impacts of the mining industry in British Columbia.360 The submitters allege that the mining industry is violating sections 36(3) and 40(2) of the Fisheries Act by dumping toxic substances into water inhabited by fish.361 Further, the submitters claim that a major factor contributing to Canada’s failure to enforce the Act against the mining industry in British Columbia is the dramatic cuts in enforcement staff and resources.362 The Canadian Government, in its response, stated that a factual record is not warranted because the government is taking all actions to ensure compliance with the pollution prevention provisions of the Act including prosecutions of violators.363 The government also alleged that the submitters’ assertions are currently the subject of pending judicial or administrative proceedings within the meaning of Articles 14(3)(a) and 45(3)(a).364 Notwithstanding the government’s response, the Secretariat concluded that development of a factual record is warranted because the mines which the submission addresses are continuing to discharge “acid mine drainage” into the nearby bodies of water that contain salmon.365

tion with logging operations on public and private lands.367 The submitters supported their allegations by providing information that: (1) salmon populations in British Columbia are seriously declining; (2) logging has contributed to this decline; (3) the government is systematically allowing harmful logging activities province-wide; (4) the government has reduced its review of logging plans to ensure compliance with the Fisheries Act; (5) the government rarely prosecutes violators; and (6) other government agencies are concerned that regulations do not sufficiently protect fish and fish habitat.368 Even though, in its response, the Canadian government provided information that indicated the government is effectively enforcing the Fisheries Act in several specific logging areas, the Secretariat stated that the response failed to address the “province-wide failure to effectively enforce the Fisheries Act generally and in connection with logging operations.”369 Thus, the Secretariat concluded that the submission warranted development of a factual record.370

cies list and protecting them under the Endangered Species Act.375 The Secretariat concluded that the submission warranted development as a factual record to explore whether the U.S. government’s actions were reasonable under Article 45.(376) Because the government asserts that it is exercising its discretion reasonably, the Secretariat concluded that it has an obligation to review whether the U.S. government’s actions are in fact reasonable.377

In Oldman River II, the submission claims that the Canadian government is failing to comply with and enforce the habitat protection sections of the Fisheries Act and the Canadian Environmental Assessment Act.378 The submitters also allege that there has been an inappropriate abdication on the part of the government to the inland provinces, and that the provinces have not effectively insured compliance with or enforcement of the Fisheries Act.379 Canada responded that it is enforcing the Fisheries Act, because the pattern of program implementation and enforcement across the country is appropriate.380 Further, Canada stated that the current arrangements for the delivery of habitat management are neither a real nor de facto abdication of legal responsibilities for the protection of Canada’s fish habitat.381 In light of Canada’s response, the Secretariat recommended the development of a factual record and the Council concurred.382

IV. THE NAAEC CITIZEN SUBMISSION PROCESS AS A MECHANISM OF TRANSPARENCY AND ITS IMPACT UPON DOMESTIC ENVIRONMENTAL BEHAVIOR

A. The Four Standards of Transparency and the NAAEC

As previously stated, the transparency of an international agreement’s information system can be evaluated against four standards.383 The first standard is whether the system collects a wide range of relevant information on compliance and effectiveness.384 The second standard is the extent to which the available information is perceived as accurate, reliable, and legitimate.385 The third standard is whether the information available to the treaty organization gets analyzed and processed effectively.386 Finally, the last standard is whether the information available to the treaty organization is also made available to industry, NGOs, the public, and governments.387

The citizen submission process, and the process used to develop a factual record, both collect a wide range of information on compliance and effectiveness within the framework of a submission.388 The NAAEC requires the Secretariat to consider information furnished by the government that is party to a submission, and it authorizes the Secretariat to consider information from other sources and to develop its own information.389 For instance, in the BC Hydro submission, the Secretariat solicited information from the public and the four interested parties, and obtained scientific, technical, and other information from interested NGOs and the JPAC.390 The Secretariat also established an Expert Group to develop, gather, and analyze additional information.391 The Group was comprised of recognized experts recognized in fish habitat issues, dam operations, and regulatory compliance and enforcement.392

the matters raised in the submission.393 The factual records in the Cozumel and BC Hydro publications both contained these four types of information.394 Thus, the citizen submission process and the factual record investigatory process allows others to observe deviations and non-compliance in a Party’s conduct because it gathers a wide range of information and is available for broad distribution.395

The factual information gathered by the CEC is perceived as accurate, reliable, and legitimate. While critics argue that the Secretariat’s inability to evaluate or judge the merits of a decision is a serious flaw in the citizen submission process, this same inability to take sides may establish the factual record’s credibility.396 As Beatriz Bugeda, a former Head of the Mexican Liaison Office of the CEC, observed, “[e]ven if the Secretariat finds facts that point to possible failures to enforce, or even blatant contradictions in the responses submitted by a government, the Secretariat cannot take a side, allowing it to do littie more than quote the position of each Party.”397 Therefore, it could be argued that the factual record may be perceived as free from undue influence. This objectivity, arguably, makes the information in the factual record appear accurate, reliable, and legitimate supporting the principle of transparency.398

tion about them.402 The Group also considered allegations made by the submitters and the response made by the Canadian government.403 The Group further received supplemental information provided by BC Hydro.404 Based on this information, the Expert Group posed specific questions about activities related to enforcement at each of the facilities.405 After receiving responses to those questions, the Group followed up with additional inquires.406 The complete list of questions posed by the Expert Group, the responses by the parties, and the Expert Group’s complete report are contained in the published factual record.407 The CEC’s effective analysis and processing of information supports the conclusion that the information system is reliable and transparent.408

The information that the Secretariat gathered during the citizen submission process is made accessible to industry, NGOs, and the public, as well as governments. All relevant information gathered by the Secretariat during the process of compiling a factual record is included in the final publication.409 In fact, even information that was not published in a factual record is made available at the CEC in Montreal.410 Additionally, most of the information gathered by the CEC concerning a submission, including correspondence between the CEC, Submitters, and the Parties, is available on the CEC internet website.411 Likewise, procedural rulings are also detailed and available on the website.412

the thoroughness of the Secretariat’s process. Because procedural rulings by the Secretariat pertaining to the submission process are available in full at the CEC’s website, any interested person, NGO, or party has access and can review the rationale for procedural decisions in a timely and detailed manner that supports effective transparency.415

The NAAEC fulfills the four standards of transparency through the citizen submission process because the Secretariat collects a wide range of relevant information; synthesizes and produces accurate, reliable, and legitimate information; processes that information effectively; and makes that information available to the public.416

B. The NAAEC’s Effectiveness in Altering Domestic Behavior

As previously stated, there are two ways to assess the effectiveness of an international environmental agreement: (1) whether it is effective in achieving the stated objectives of the treaty; and (2) whether it is effective in addressing the problems that led to the treaty.417

1. The NAAEC is Effective in Achieving the Stated Objective of Transparency

One of the objectives as stated in Article 1 of the NAAEC is to “promote transparency and public participation in the development of environmental laws, regulations, and policies.”418 The citizen submission process does enhance transparency and public participation by allowing the North American public to challenge the behavior of the NAAEC parties who fail to enforce their environmental laws effectively.419 The process from submission, procedural adjudication, and investigation, to the issuance of a factual record achieves the stated objective of promoting transparency and public participation because it makes information gathered during these various phases available to the public at large.420

United States.421 Though the Commission does not have regulatory authority over domestic companies or sovereign governments, the principle of U.S. domestic informational regulation that applies to American companies can be analogized to the Secretariat’s request for a member country’s response to a citizen submission.422 As is the case for the National Environmental Policy Act (NEPA), the Emergency Planning & Community Right-to-Know Act (EPCRA), the Freedom of Information Act (FOIA), and the Federal Election Campaign Act (FECA), the goal of the citizen submission process is to allow more public monitoring of government decisions.423 In fact, NGO participation in the NAAEC process is similar to earlier expansion of American public participation in the U.S. environmental regulatory process.424

The NAAEC allows monitoring of ineffective enforcement of domestic environmental laws on a regional transnational level.425 Though the NAAEC does not require proactive disclosure of information like NEPA or EPCRA, the impact of the Secretariat’s request for a response from a member country, subsequent investigation, and publication of a factual record will likely have a similar result to informational disclosures under U.S. domestic information regulations.426 The factual record mechanism also will allow the public to engage the process and hold actors accountable for their actions or lack of action.427 However, unlike a U.S. information regulation scenario, the NAAEC enables the entire population of North America to oversee the enforcement of domestic environmental laws.428

2. The NAAEC is Effective in Addressing the Problems That Led to the Treaty

and the “race to the bottom” by companies trying to take advantage of environmental enforcement that was more business friendly.429

This concern was evident in the Metales y Derivados (SEM-98-007) submission where a U.S. corporation operated a lead smelter outside of Tijuana, Mexico, and failed to repatriate nearly 6,000 tons of extremely hazardous material back to the United States when the company left Mexico.430 The citizen submission process allowed NGOs to bring this situation to the attention of the citizenry and governments of North America.431 More information will become available because the Secretariat has been directed to prepare a factual record on this submission by the Council.432 The public outcry and public relations impact of this submission upon the U.S. company will likely alter the behavior of that and other companies hoping to skirt their environmental obligations.433 Further, the heightened awareness in Mexico and additional scrutiny of North American NGOs will make it more difficult for the government of Mexico to allow companies to mismanage their environmental obligations in the future.434 This submission, like BC Hydro and the Cozumel Factual Records, will alter not only public domestic behavior, but private domestic behavior as well.435

in a non-hierarchical and dynamic framework, North American citizens and NGOs have much greater influence on domestic behavior.439

Following the publication of the Cozumel Factual Record, “the Mexican government declared the area a national marine park, and stated its intent to implement a management plan for the park and to complete an ecological management study of Cozumel Island.”440 When the Cozumel submission was presented to the Secretariat, it captured the attention of the media in the three member countries.441 Mexico’s response to the submission also captured the attention of environmental groups, legal specialists, and the media.442 Some argue that Mexico’s declaration of the Cozumel Reef as a protected area was a direct result of the submission.443 However, it is not absolutely clear how the Cozumel Factual Record affected domestic Mexican behavior. In fact, some argue that it had very little real impact upon the environmental community and none whatsoever on the pier project in Cozumel.444

Perhaps the most significant impact of the Cozumel Factual Record the allowance of independent verification of the information supplied by the Mexican government in its response to the NGOs submission.445 The Cozumel Factual Record spotlighted a wealth of information that was not previously available to the public.446 Additionally, the citizen submission process in this case, which resulted in a factual record, elevated the discussion from a domestic to an international level and created additional pressure on the Mexican government to comply with domestic environmental laws in the future.447

record.449 Additionally, the Secretariat’s decision to proceed with a factual record increased media coverage.450 This media coverage focused public attention on the Canadian government’s conduct, which included the cancellation of numerous public presentations concerning the submission.451 The Canadian government agreed not to contest the release of the BC Hydro Factual Record in order to promote transparency in the citizen submission process.42 The Canadian government, however, has reserved any further comment concerning the BC Hydro Factual Record until a later date.453

The more the NAFTA countries allow the participation of domestic groups and NGOs in the implementation and compliance process, the greater the probability of implementation and compliance, and thus, the effectiveness of the treaty may be realized.454 Environmental NGOs in the United States have been essential to the U.S. government’s efforts to enforce domestic environmental law.455 NGOs have served as “watchdogs” reporting violations to the appropriate authorities, and they often possess specialized information that government officials can use in both monitoring and prosecuting violations.456 In this sense, these NGOs function as an extension of governmental regulatory efforts.457 Further, environmental NGOs are able to pressure bureaucracies to increase their implementation and enforcement efforts.458 NGOs acting as North American “watchdogs” will continue to contribute to the further development of environmental law on the continent by publicizing shortcomings in domestic environmental laws and by pressuring governments to remedy them.459

C. Coercive Enforcement Measures Are Not and Should Not Be Available in the Citizen Submission Process

Some argue that without coercive measures, such as sanctions, to deter or punish non-compliant behavior under the NAAEC, the citizen submission factual record does little to affect domestic environmental behavior.462 Others disagree.463 Only NAAEC party-generated complaints under Article 22 can lead to a panel’s decision to impose financial penalties or loss of NAFTA trading benefits upon a non– compliant member.464 Once a citizen submission factual record is produced, a member country could potentially use the document to initiate a party-to-party dispute resolution under the NAAEC.465 Financial penalties, or the loss of trade benefits, function similarly to sanctions in that they are coercive efforts to force compliance with the NAAEC and domestic environmental law; however, these coercive tools are absent in the citizen submission process and rightly so.466 It is unlikely that the United States, Canada, or Mexico would jeopardize the largest free trading relationship in the world over a failure to enforce their environmental laws effectively. As such, the deterrent effect of mass media exposure alone is more likely to cause behavioral change.467

mote multilateral environmental cooperation.470 In fact, using sanctions to enforce international environmental agreements could conflict with trade obligations under GATT and WTO.471

CONCLUSION

Although the Commission does not have the ability to directly dictate domestic behavior through the citizen submission process, the citizen submission process does affect domestic environmental behavior due to its transparent effect on domestic public and private decision-making and conduct. As a mechanism of transparency in publicizing environmental mismanagement and governmental failure to enforce environmental laws effectively, the citizen submission process and specifically the factual record is successful. Further, this mechanism has affected domestic behavior. Governments have been more responsive to citizen concerns, as in the case of BC Hydro, and more sensitive to subsequent administrative environmental actions, as in the case of the Cozumel submission.

Measured against the four standards of transparency472 and in light of the Cozumel and BC Hydro factual records, the citizen submission factual record is an effective mechanism for transparency that can influence domestic behavior. First, in preparation for the publication of a factual record, the Secretariat collects a wide range of relevant information on the decision-making of the member country. Second, the member countries and public perceive the information gathered as accurate, reliable, and legitimate. Third, the information available to the Secretariat is analyzed and processed effectively, utilizing numerous governmental and non-governmental experts and sources of information. Finally, the information gathered is made available to industry, NGOs, and the public, as well as to governments.

MARK R. GOLDSCHMIDT*

* Managing Editor, BOSTON COLLEGE ENVIRONMENTAL AFFAIRS LAW REVIEW, 2001-02.

Copyright Boston College, School of Law 2002

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