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Public Participation in the North American Agreement on Environmental Cooperation

Published online by Cambridge University Press:  17 January 2008

Malgosia Fitzmaurice
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The subject of this article is public participation in the NAAEC. It will be analysed against the background of certain other international conventions that make provision, in one way or another, for public participation in relation to environmental protection, in particular, the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the ‘Aarhus Convention’) and the 1974 Convention on the Protection of the Environment between Denmark, Finland and Sweden (the ‘Nordic Convention’). The 1950 European Convention of Human Rights will also be referred to in so far as it secures public participation and from the point of view of its effectiveness in assisting in the enforcement of national environmental law. Reference to these instruments will, however, be limited to that which is relevant to the present essay.

Type
Research Article
Information
International & Comparative Law Quarterly , Volume 52 , Issue 2 , April 2003 , pp. 333 - 368
Copyright
Copyright © British Institute of International and Comparative Law 2003

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References

1 See, eg, on the general subject of the human right to clean environment: Boyle, A and Anderson, M, (eds), Human Rights Approaches to Environmental Protection: An Overview (Oxford: Oxford University Press, 1996)Google Scholar; Boyle, A and Birnie, P, ‘The Structure of International Environmental Law III: Environmental Rights and Crimes’, in International Law and The Environment, 2nd edn (Oxford: Oxford University Press, 2002), 250–86;Google ScholarHandl, G, ‘Human Rights and Protection of the Environment: A Mildly ‘Revisionist View’, in Cançado, AATrindade, (ed), Human Rights, Sustainable Development and the Environment (38 Instituto Interamericano des Derechos Humanos, San Jose, 1992), 117–42;Google Scholarid, ‘Human Rights, and Protection of the Environment’ in Eide, A, Eide, , Krause, C, and Rosas, A (eds) Economic, Social and Cultural Rights (The Hague/London: Kluwer Law International, 2001), 303–28;Google ScholarSands, Ph, ‘Human Rights, Environment and the Lopez-Ostra Case, Context and Consequences’ (1996), European Human Rights Law Review 597–618.Google Scholar

2 Handl, in Eide, n 1, 318.

3 Boyle, ‘The Role of International Human Rights Law in the Protection of the Environment’, in Boyle and Anderson, n 1, 60; see also Birnie and Boyle, n 1, 261–4.

4 North American Agreement on Environmental Cooperation (the NAAEC, or the side Agreement), the United States, Mexico, Canada, signed 14 Sept 1993, entered into force 1 Jan 1994 32 ILM 1480; North American trade Agreement (the NAFTA), the United States, Mexico, Canada, signed 17 Dec 1992, entered into force 1 Jan 1994, 32 ILM 605. On the subject of the NAAEC, see in particular: McCallum, R, ‘Evaluating the Citizens Submission Procedure Under the North American Agreement on Environmental Cooperation’ (1997) Colo J Int'l L & Pol'y, vol 8, 395–422;Google ScholarMarkell, D, ‘The Commission for Environmental Cooperation's Citizen's Submission Process’ (2000) The Georgetown Int'L Envtl. Law Review, vol 12 545–74;Google ScholarDi Mento, J and Doughman, PM, ‘Soft Teeth in the Back of the Mouth: The NAFTA Environmental Side Agreement Implemented’ (1998), The Georgetown Int'l Envl. Law Review, vol 10 651–743.Google Scholar The website of the Commission for Environmental Cooperation for NAAEC: <http://www.cec.org> on the subject of NAFTA and the environment see in: Saunders, J Owen, ‘NAFTA and the North American Agreement on Environmental Cooperation: A New Model for International Collaboration on Trade and the Environment’ (1994) Colo.J.Int'l L & l'y, vol 5, 273–304;Google ScholarRueda, A, ‘Tuna, Dolphins, Shrimp & Turtles: What About Environmental Embargoes Under NAFTA (2000) Georgetown Int'l Envtl Law Review, vol 12, 647–92.Google Scholar

5 Rueda, n 4, 682; see also for the NAAEC Charnovitz, S, ‘The NAAEC and the Implication for Environmental Cooperation, Trade Policy, and American Treaty-Making’, in NAFTA and the Environment (Rubin, J and Alexander, D, eds) NAFTA Law and Policy Series, 3 (The Hague/London: Kluwer Law international, 1996), 25 and 27.Google Scholar

6 Saunders, n 4, 284.

7 This was stressed in Four-Year Review of the North American Agreement on Enviornmental Cooperation, Report of the Independent Review Panel (1998), available on the NAAEC Website.

8 It was said the ‘[]f NAFTA can be characterised as a trade agreement with some environmental provisions, then the AEC can be characterised as an environmental agreement with some trade implications’, Saunders, n 1, 284.

9 See Saunders, n 4, 285.

10 Part Three: Commission for Environmental Cooperation.

11 On 13 June 2000 the Council adopted a Resolution the role of the JPAC. In stipulated that the Council may refer issues concerning the implementation and further elaboration of Arts 14 and 15 of the Agreement to the JPAC to enable it to conduct a public review with a view to providing advice to the Council and how these issues might be addressed (Art 2 of the Resolution). The Parties acting through the Council, shall consider the JPAC's advice in making decisions concerning the issues in question relating to Arts 14 and 15, and shall make public its reasons for such decisions, bringing the process to conclusion (Art 3 of the Resolution). Further, the resolution stipulated that any decision adopted by the Council following the advice received by the JPAC shall be explained in writing by the Parties and such explanations shall be made public (Art 7 of the Resolution).

12 Signed on 25 June 1998; entered into force on 30 Oct 2001. On this Convention see in particular: Brinie and Boyle, n 1, 263–71.

13 <http://www.unece.org/en/pp.>

14 It reads as follows: ‘[t]he public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in adequate, timely and effective manner, inter alia, of: (a) The proposed activity and the application on which a decision will be taken; (b) The nature of possible decision or the draft decision; (c) The public when this information can be provided: (i) The commencement of the procedure; (ii) The opportunities for the public to participate; (iii) The time and venue of any envisaged public hearing; (iv) An indication of the public authority from where the relevant information has been obtained and where the relevant information has been deposited; (v) An indication of the relevant public authority or any other official body to which comments or questions can be submitted and of the time schedule for transmittal of comments or questions; and (vi) An indication of what environmental information relevant to the proposed activity is available; and (e) The fact that the activity is subject to a national or transboundary environment impact assessment procedure.’

15 Signed on 19 Feb 1974, entered into force on 5 Oct 1976 (Finland, Norway, Sweden); see also, Boyle, , ‘Making the Polluted Pay? Alternatives to State Responsibility in the Allocation of Transboundary Environmental Costs’, in International Responsibility for Environmental Harm Franzioni, F and Scovazzi, T, eds (The Hague/London/Boston: Graham Trotmann/Martinus Nijhoff Publishers, 1993) 363–79, in particular, 371.Google Scholar

16 Lopez-Ostra, 20 Eur.HR Rep (Ser A) 277, 279 (1994).

17 Miller, C, ‘The European Convention on Human Rights: Another Weapon in the Environmentalist's Armoury’ (1999) Journal of Environmental Law, vol 11, 157–76.CrossRefGoogle Scholar

18 Art 10 of the ECHR provides as follows: ‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since in carries with its duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or right of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

19 Art 8 of the ECHR provides as follows: ‘1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or in the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others’.

20 Miller, above n 17, 171–2.

21 The Judges, Mrs Palm, Mr R Bernhard, Mr Russo, Mr Mcdonald, Mr Makarczk, and Mr Van Dijk, stated that ‘under different circumstances the State may have positive obligation to make available information to public and disseminate such information which by its nature could not otherwise come to the knowledge to the public.’ The Judges, however, did not explain what these ‘other circumstances’ are which merit a different interpretation.

22 MacCallum, n 4, 400.

23 CEC Resolution 99–6 (28 June 1999). Available on the CEC website.

24 In Great Lake Determination, the Secretariat stated as follows: ‘[t]he recent revisions to the Guidelines provide further support for the notion that Art 14 (1) and 2 stages of the citizen submissions process are intended as a screening mechanism. The Guidelines limit submissions to fifteen pages in length. The revised Guidelines require a submitter to address a minimum of thirteen criteria of factors in this limited space, indicating that a submission is not expected to contain extensive discussion of each criterion and factor in order to qualify under Article 14 (1) and (2) for more in-depth consideration.’ The Guidelines, para 3 (3): ‘ [s]ubmission should not exceed 15 pages of typed, letter-sized paper, excluding supporting information. Submissions will not be accepted by fax or any other electronic means. Where possible, a copy of the submission on computer diskette should also be provided.’ The same approach was adopted in the Animal Alliance case, see note 25. The Secretariat stated as follows: ‘[t]he Secretariat is of the view that Article 14, and article 14 (1) in particular, are not intended to be insurmountable screening devices. The Secretariat also believes that Article 14 (1) should be given a large and liberal interpretation; consistent with the objectives of the NAAEC … and further in the same case, it interpreted the word “assertion” as used in Article 14 (1), see above, as supporting “a relatively low threshold under article 14 (1).” However (in the same case), it explained that ‘a certain amount of substantive analyses is nonetheless required at this initial stage’, because ‘ [o]therwise, the Secretariat would be forced to consider all submissions that merely “assery” a failure to effectively enforce environmental law.’

25 AAA Packaging case, 12 Apr 2001, Determination in Accordance with Art 14 (1) of the NAAEC, available on the website of the CEC, see, also, eg, Animal Alliance case, SEM-97–005, Determination Pursuant to Art 14(1), 26 May 1998.

26 According to Art 14 (1e), the submission has to indicate that ‘the matter has been communicated in writing to the relevant authorities of the Party and indicated the Party's response, if any …’

27 In contravention of para 5 (5) of the Guidelines.

28 Aquanova (SEM-98–006), 20 oct 1998, Art 15 (1) Notification to Council that Development of a Factual Record is Warranted, 4 Aug 2000.

29 Cozumel Recommendation to develop Factual Record, 7 June 1996, Resolution 96–08, the Council instructed Secretariat to prepare the Factual Record. SEM-96–001. Factual Record presented to the Council on 23 Apr 1997.

30 Markell, n 4, 561.

31 Aquanova, Notification to the Council for the Development of Factual Report.

32 Migratory Birds case (SEM-99–00).

33 Markell, n 4, 551. Confirmed by the Secretariat in several cases, eg, Migratory Birds case (SEM-99–002), Art 15(1) Notification to Council that Development of Factual Record is Warranted, (15 Dec 2000). The Secretariat stated as follows: ‘ [t]he opening sentence of Article 14 establishes three parameters for the citizen submission process. It thereby limits assertions of failures to effectively enforce to those meeting these three elements. First, the assertion must involve law (the assertion may not focus on purported deficiencies in the law itself). Third, assertions must meet the temporal requirement of claiming that there is a failure to effectively enforce.’

34 This is achieved through the prevention, abatement or control of the release, discharge or emission of pollutants, or environmental contaminants, the control of environmentally hazardous or toxic chemicals, substances, materials, and wastes and dissemination of information related to the protection of wild flora and fauna, including endangered species, their habitat, and specially protected natural areas. Art 45 (2) (i–iii).

35 In the case of Rio Magdalena the Secretariat requested that the submitters supply details of the laws that were not enforced. CEC Secretariat, Request For Additional Information from Submitters, SEM-97–002, (2 July 1997) available at the CEC website.

36 AAA Packaging SEM-01–002, Determination in Accordance with Art 14 (1), (24 Apr 2001); B C Logging, SEM-00–04, Determination Pursuant to Art 14 (1) and 14 (2), (8 May 2000), Great Lakes, SEM-98–003, Determination Pursuant to Arts 14 (1), and 14 (2), (4 Jan 1999); Animal Alliance, SEm-97–005, Determination Pursuant 14 (1), (26 May 1988).

37 Art 2 (3) reads as follows: ‘ [e]ach Party shall consider prohibiting the export to the territories of the other Parties of a pesticide or toxic substance whose use is prohibited within the Party's territory. When a Party adopts a measure prohibiting or severely restricting the use of pesticide or toxic substance in its territory, it shall notify the other Parties of the measure, either directly or through an appropriate international organisation.’

38 Migratory Birds, case, n 32.

39 Above, 18.

40 See Department of Planet Earth et al., NGO Petition to the North American Commission for Environmental Cooperationfor an Investigation and Creation of Factual Record, SEM-98–003 (28 May 1998), CEC website; CEC Secretariat, Determination Pursuant to Article 14(1) and (2) of the North American Agreement on Environmental Cooperation, SEM-98–003 (8 Sept 1999), CEC website; also Markell, n 4, 533. The Secretariat said as follows in the Great Lakes case: ‘ [A]rticle 45 (2) of the NAAEC is the key operative provision, defining environmental law to mean ‘any statue or regulation of a Party…’ The Secretariat dismissed the Animal Alliance submission (SEM-97–005) on the ground that the Biodiversity Convention did not qualify as ‘environmental law’ because it was an international obligation that had not been imported into domestic law by way of a statute or regulation pursuant to a statute. The Animal Alliance determination is consistent with the plain language of Article 45 (2) and the Secretariat follows it here. As noted, concerning that submission, by making this determination, the Secretariat is not excluding the possibility that future submissions may raise questions concerning a Party's international obligations that would meet the criteria in Article 14 (1).

41 Great Lakes Water Quality Agreement of 1978, US—Can., 30 UST 1383; Agreement between the Government of the United States of America and the Government of Canada Concerning the Transboundary Movement of Hazardous Waste, 28 oct 1986.

42 Determination Under Art 14 (2), SEM 95–001 (21 Sept 1995). This distinction has been criticized as artificially separating the law making from enforcement. K Raustila, ‘The Political Implications of the Enforcement provision of the NAFTA Environmental Side Agreement: the CEC as Model for Future Accords’ (1996) 25 Envtl L 131.

43 ‘ [t]he enactment of legislation which specifically alters the operation of pre-existing environmental law in essence becomes a part of the greater body of environmental laws and statues on the books … The Secretariat therefore cannot characterize the application of anew legal regime as a failure to enforce a new one.’

44 Migratory Birds, n 32, Art 15 (1) Notification to Council that Development of a Factual Record is Warranted, 15 Dec 2000.

45 Another example is the BC Hydro and BC Mining submission involving Canada, BC. Aboriginal Fisheries Commission et al. Submission to the Commission on the Environmental Cooperation Pursuant to Art 14 of the North American Agreement on Environmental Cooperation, SEM-97–001 (Apr 1997), available on the CEC Website: Sierra Club of British Columbia, et al, The Government's of Canada Failure to Enforce the Fisheries Act Against Mining Companies in British Columbia: A Submission to the Commission on Environmental Cooperation Pursuant to Art 14 of the North American Agreement on Environmental Cooperation, Council Resolution 98–07 (24 June 1998), available on the CEC website.

46 Canadian Environmental Defence Fund, Article 14 Submission Made Pursuant to the North American Agreement on Environmental Cooperation, SEM-97–004 (25 Aug 1997), available on the CEC website.

47 The Secretariat observed that it was not aware of any reason that would have prevented the Submitter from filing its submission at the time it became aware of the alleged failure to enforce.

48 See CEC Secretariat. Recommendation of the Secretariat to Council for the Development of a Factual Record in Accordance with Art 14 and 15 of the North American Agreement on Environmental Cooperation, SEM-96–001 (7 June 1996), A/14/SEM/96–001/07/ADV. Available on the CEC website. See also: Kibel, PS, ‘The Paper Tiger Awakens: North American Environmental Law After the Cozumel Reef Case’ (2001) Coloumbia Journal of Transanational Law, vol 39, 403–82. Factual Record submitted to the Council 23 Apr 1997.Google Scholar

49 BC Hydro, SEM-97–001, Recommended by the Council for Factual Record 24 June 1998, Council Resolution 98–07, C/C.01/98–00/RES. /03/Rev 3 available on the CEC website.

50 The Submitters in this case assert that Mexico is failing to effectively its environmental law in relation to the establishment and operation of the Cytar hazarduous waste landfill near the city of Hermosillo, Sonora (SEM-01–001).

51 Commission for Environmental Cooperation, website.

52 Methanex case (SEM-01–001), 18 Oct 1999, available on the CEE website.

53 Neste Canada case (SEM-00–002), 21 Jan 2001, available on the website.

54 On 18 Jan 1996, three non-governmental organizations (NGOs), the Committee for the Protection of Natural Resources A C, the International Group on One Hundred A C and the Mexican Centre for Environmental Law (Submitters), presented a submission to the Secretariat of the CEC alleging a ‘failure on the part of Mexican authorities to enforce environmental law effectively with regard to the totality of the works of the port terminal project in Playa Paradiso, Cozumel Quintana Roo’ (available on the CEC website) (SEM-96–001). The Final Factual Record was issued to public on 24 Oct 1997.

55 On 2 Apr 1997 the Sierra Legal Defence Fund and the Sierra Club Legal Defence Fund (now Eathjustice) jointly filed a submission. The submission was filed on behalf of the following organisations: the BC Aboriginal Fisheries Commission, the British Columbia Wildlife Federation, the Steelhead Society, the Trail Wildlife Unlimited (Spokane Chapter), the Pacific Coast Federation of Fishermen Associations, the Sierra Club (Washington, DC), and the Institute for Fishing Resources (collectively, the ‘Submitters’) (SEM-98–001). The Final Factual Record was released to Parties on 11 June 2000.

56 On 20 Oct 1998, the Environmental Health Coalition and the Comité Ciudadano Restauración del Canon del Padre y Servicios Comunitarios, AC (SEM-98–006).

57 There were eight Secretariat Notifications to Council that the Secretariat considered development of factual record to be warranted for submission. The Council has directed the Secretariat to develop the factual in three cases (see above), two are finished: the Cozumel and the BC Aboriginal Fisheries, and one is pending: the Metales Derivados. The Council deferred its decision on one: Oldman River II (SEM-97–006), rejected the Quebec Hoc Farms (SEM-97–003) and is currently considering the BC Logging (SEM-97–004)

58 On 19 Nov 1999, Alliance for the Wild Rockies, Centre for International Environmental Law, Centro de Derecho Ambientel del Norestre de Mexico, Cwentro Mexicano de Derecho Ambiental, pacific Environment and Resources Center, Sierra Club of Canada, West Coast Environmental Law Association (Submitters) filed a submission (SEM-99–002). Date of Determination: 15 Dec 2000.

59 On 15 Mar 2000 David Suzuki Foundation, Greenpeace Canada, Sierra Club British Columbia, Northwest Ecosystem Alliance, National Resources Defence Council (Submitters) represented by Sierra legal Defence Fund, Earthjustice Legal Defence Fund (Submitters) filed a submission. Date of Determination: 27 July 2001 (SEM-00–004)

60 On 20 Oct 1998, Groupo Ecologico ‘Manglar’ (Submitter) AC filed a submission (SEM-98–006). Date of Determination: 4 Aug 2000.

61 The International Boundary and Water Commission was established by the 1 March 1889 Treaty (the name was International Water Commission) and later the treaty of 3 Feb 1944 established the International Boundary and Water Commission (entered into force 8 Nov 1945) text: <http://www.ibwc.state.gov>.

62 The International Joint Commission was established by 1909 by the Boundary Waters Treaty. It consists of six members. The Commission has set up more than twenty boards, made up of experts from the United States and Canada. Also relevant are the 1972 Great Lakes Water Quality Agreement (renewed 1978) and the 1987 Protocol amending the 1978 Agreement; the 1991 Air Quality Agreement (renewed 28 Jan 2002) Website <http://www.jic.org>.

63 Cohen, ‘The Regime of Boundary Waters—The Canadian–US Experience’ (1977) RCADI, vol III, 219; Birnie and Boyle, International Law and the Environment, n 3, 326–8.Google Scholar

64 <http://www.ibwc.state.gov>

65 Kibel n 48, 468.

66 Press Release, North American Commission for Environmental Cooperation, NAFTA Environmental Ministers Release Cozumel Facutal Record to the Public (24 Oct 24, 1997), cited in Kibel, in n 478, 469.

67 The Factual Record, 162.

68 Kibel, n 48, 469.

69 Ibid, 469–70.

70 Rueda, n 4, 688.

71 In 1998 the total value of goods traded between the US and Mexico exceeded US$17 billion. The projected budget for the CEC for the year 2000 was only UD$9.3 million. At present the CEC has three projects pending: ‘The North American Regional Enforcement Building Forum’ (budget: US$90.000); The Enforcement and Compliance Capacity Building (budget: US$130.000); and a project ‘to exploure and develop indicators for measuring and evaluating the effectiveness of the enforcement and compliance strategies of each party’ (budget: US$50.000): ‘ [t]hese three projects have one thing in common—although they assist in the development of policing efforts by national authorities, they are not policing efforts per se. These projects lay a road map that the parties can follow or disregard at their discretion. It could be no other way, because the CEC is too weak to confront a party determined not to conduct activities in an environmentally friendly manner. Only the other parties of NAFTA can pressure a delinquent party to mend its ways. Under such circumstances, the CEC's participation would be beside the point, except perhaps as one voice among a side chorus of condemnatory voices’, Rueda, n 4, 690.

72 CEC Mission Statement, <http://www.cec.org/english/profle/>.

73 North American Agenda for Environmental Cooperation, North American Agenda for Action:2000–2002; A Three-Year Programme Plan for the Commission for Environmental Cooperation (Feb 2000), available at the CEC website.

74 Lichtinger Sees Expansion of NAFTA Environmental Accord, Int'l Envt. Daily (BNA) d 3, 16 Dec 1994 (quoted in DiMento & Doughman, n 4, 735)

75 Kibel, n 48, 475.