The Commission for Environmental Cooperation and North American
Migratory Bird Conservation: the Potential of the NAAEC Citizen
Submission Procedure.
Jeremy Wilson1
As published in: Journal of International Wildlife Law & Policy. V. 6 (3)
(Sept. – December 2003).
1
Department of Political Science, University of Victoria, PO Box 3050 STN CSC
Victoria, British Columbia, V8W 3P5. E-mail: jwilson@uvic.ca.
1
Abstract.
This paper examines the citizen submission process laid out in Articles 1415 of the North American Agreement on Environmental Cooperation
(NAAEC), the 1993 environmental NAFTA ‘side agreement’. These articles
set out a process by which NGOs or individuals may file a submission
alleging that one of the Parties to the agreement ‘is failing to effectively
enforce its environmental law.’ The paper traces developments set in motion
by two submissions alleging failure to enforce migratory bird legislation.
The first targets the U.S., the second Canada. Developments in these and
other Article 14-15 cases have enfeebled an instrument that, from the outset,
many regarded as having quite limited potential. These cases indicate,
nonetheless, that the procedure still has some limited usefulness as a way of
highlighting implementation failures. NGOs that do choose to invest in
pursuing a citizen submission would be advised to combine these efforts
with other approaches to mobilizing public pressure.
Keywords: Migratory bird laws and regulations; wildlife protection
agencies; North American Agreement on Environmental Cooperation
(NAAEC); Commission for Environmental Cooperation; non-governmental
organizations (transnational cooperation, litigation strategies).
Jeremy Wilson is Professor of Political Science, University of Victoria.
2
Migratory birds have long been a focal point of international policy
cooperation. In North America, the history of transnational bird conservation
initiatives stretches back nearly a century, with the 1916 Canada – U.S.
Convention for the Protection of Migratory Birds frequently cited as an early
example of environmental treaty making.2 Over the past two decades,
continental cooperative activity has steadily expanded. Initiatives such as the
North American Waterfowl Management Plan (NAWMP)3 and the North
American Bird Conservation Initiative (NABCI)4 promote and organize
increasingly intense and wide-ranging patterns of interaction among actors
from agencies and non-governmental organizations (NGO).
2
JANET FOSTER, WORKING FOR WILDLIFE: THE BEGINNING OF
PRESERVATION IN CANADA Chap. 6 (1998); KURKPATRICK DORSEY, THE
DAWN OF CONSERVATION DIPLOMACY: U.S.-CANADIAN WILDLIFE
PROTECTION TREATIES IN THE PROGRESSIVE ERA Part III (1998); and
Kurkpatrick Dorsey, Scientists, Citizens, and Statesmen: U.S.-Canadian Wildlife
Protection Treaties in the Progressive Era, 19 DIPL. HISTORY (1995). The 1916
Migratory Birds Convention was preceded by an agreement among European nations, the
1902 Convention for the Protection of Birds Useful to Agriculture.
3
See A History of the North American Waterfowl Management Plan, at
<www.wetlands.ca/nawcc/nawmp/past.htm>, viewed 1 February 1999; Gary Myers,
North American Waterfowl Management Plan, in WESTERN HEMISPHERE
SHOREBIRD RESERVE NETWORK WORKSHOP, TRANSCRIPTS FROM THE
WESTERN HEMISPHERE SHOREBIRD RESERVE NETWORK WORKSHOP, MAY
11-13, 1995; and North American Waterfowl Management Plan, Strengthening the
Biological Foundations, 2003: North American Waterfowl Management Plan Update.
4
North American Bird Conservation Initiative, Strategy and Action Plan at <www.bsceoc.org/nabcstrategy.html>, viewed 26 February 26 2002; and NABCI, Coordinators,
Review of Progress on the North American Bird Conservation Initiative 7(2002), at:
<http://cec.org/files/PDF/BIODIVERSITY/nabci_Report-final-englishmaps.pdf.>,
viewed 17 January 2002.
3
Compared to many other areas of environmental politics, the migratory bird
conservation field features a high level of cooperation between state and
societal actors. For example, initiatives such as NAWMP and NABCI rely
heavily on state-society partnerships, while the primary NGO working on
conservation of waterfowl and wetlands -- Ducks Unlimited -- delivers much
of its work through cooperative undertakings with national and state
(provincial) wildlife agencies.
This paper focuses on two cases that introduced a more adversarial tone to
the relationships between some major NGOs and the national wildlife
agencies of Canada and the U.S. The cases were initiated by NGOs’ use of
the ‘citizen submission’ procedure laid out in Articles 14 and 15 of the North
American Agreement on Environmental Cooperation (NAAEC), the 1993
environmental NAFTA ‘side agreement’ by which Canada, the U.S. and
Mexico (‘the Parties’) established the Commission for Environmental
Cooperation (CEC). These articles were the centrepiece of the Parties’
attempts to promote public participation. They set out a process by which
NGOs or individuals may file a submission alleging that one of the
governments party to the agreement ‘is failing to effectively enforce its
environmental law.’
4
The paper explores the potential of the NAAEC citizen submission
procedure, basing its conclusions on an analysis of CEC’s handling of two
submissions that questioned enforcement of the laws authorizing the
Canadian and American governments to carry out their obligations under the
aforementioned migratory birds convention. The first submission, presented
by a coalition of environmental non-governmental organizations (ENGOs)
from the three countries, alleged that in its handling of logging operations,
the U.S. Fish and Wildlife Service has not effectively enforced a section of
the U.S. Migratory Bird Treaty Act which prohibits the ‘unpermitted’ killing
or ‘taking’ of migratory birds and destruction of their nests. The second
submission, brought by a collection of Canadian and American ENGOs,
made parallel claims about the Canadian Wildlife Service’s failure to
enforce Canada’s migratory bird regulations with respect to logging activity
in Ontario.
Writing shortly after the establishment of CEC, Pierre Marc Johnson and
Andre Beaulieu said that the citizen submission procedures ‘could very well
become the most dynamic and innovative element of the fact-finding and
5
information management mandate of the [CEC] Secretariat.’5 The two cases
examined here, however, underline the need to carefully qualify any
optimism about the impact or potential of the citizen submission process.
These cases illustrate significant limitations in the design of the procedure
and raise serious doubts as to whether the three governments are ready to
support measures that would overcome these limitations and guarantee a
reasonably robust procedure. Indeed, developments in these and other citizen
submission cases have enfeebled an instrument that, from the outset, many
regarded as having quite limited potential.
Despite the setbacks experienced in these and other citizen submission
initiatives, NGOs will likely continue to explore the usefulness of the
procedure. The citizen submission procedure does still have some potential
as an instrument for focusing public attention on a government’s poor policy
performances. It provides especially good possibilities for organizations
seeking to galvanize transnational support coalitions. And even though
citizen submissions will introduce tensions into NGO – agency relationships
that are generally cooperative, agencies that are challenged may come to
5
PIERRE MARC JOHNSON & ANDRE BEAULIEU, THE ENVIRONMENT AND
NAFTA: UNDERSTANDING AND IMPLEMENTING THE NEW CONTINENTAL
LAW 152 (1996).
6
appreciate the role that such complaints can play in bolstering their
arguments for greater resources.
The Genesis and Workings of the Citizen Submission Procedure.
The NAAEC and the so-called labor side agreement, as numerous observers
have noted, were constructed in order to help U.S. President Clinton win
congressional support for the NAFTA agreement.6 As Frederick Mayer
points out, Clinton was responding to a new ‘domestic politics of trade’
shaped by the fact that ‘the NAFTA negotiations mobilized societal forces
(including many environmental groups) that had never previously involved
themselves in policy debates on trade.’7 The NAAEC reflected Mexican and
Canadian objections to major U.S. objectives, as well as a sharp division in
the U.S. environmental community over what should be included. 8
Mainstream environmental groups, which never really pursued the idea of
6
For accounts, see for example: Frederick W. Mayer, Negotiating the NAFTA: Political
Lessons for the FTAA, and Blanca Torres, The North American Agreement on
Environmental Cooperation: Rowing Upstream, in GREENING THE AMERICAS:
NAFTA’S LESSONS FOR HEMISPHERIC TRADE (Carolyn L. Deere and Daniel C.
Esty, eds. 2002); FREDERICK W. MAYER, INTERPRETING NAFTA: THE
SCIENCE AND ART OF POLITICAL ANALYSIS Chap. 6 (1998); Chris Tollefson,
Games Without Frontiers: Investor Claims and Citizen Submissions Under the NAFTA
Regime, 27 YALE J. INT’L L. (Winter 2002); Annette Fox, Environment and Trade:
The NAFTA Case, in 110 POL. SCI. Q. (Spring 1995); and John Kirton, The Commission
for Environmental Cooperation and Canada – US Environmental Governance in the
NAFTA Era, in 27AM. REV. OF CAN. STUD. (Fall 1997).
7
Mayer, supra note 5, at 98.
8
Id. at 104 – 108. See also MAYER, supra note 5 at Chap. 6.
7
using the environmental side agreement to promote development of stronger
environmental laws,9 were satisfied with an agreement that obliged each of
the Parties to ‘effectively enforce its environmental laws and regulations’
(Article 5), and provided two mechanisms designed to encourage effective
enforcement. One of these mechanisms, achieved despite Canadian and
Mexican resistance, is laid out in Part V (Articles 22 – 36). It provides that
one Party can initiate ‘dispute settlement’ proceedings against another
alleged to be guilty of ‘a persistent pattern of failure … to effectively
enforce its environmental law.’10 This process can lead to fines and even
trade sanctions, but the convoluted series of steps involved makes either
result very unlikely.
The second mechanism for promoting effective enforcement, laid out in
Articles 14 and 15, was less controversial. These articles are presented in
their entirety in Appendix A. They give a central role to the CEC
According to MAYER supra note 5 at 168-9: ‘The prospect of side agreements raised
hope among some U.S. labor and environmental activists that Clinton might push for new
international standards in these areas, something of a ‘social charter’ along the lines of
standards established by the European Union. The Clinton transition team for trade
maters quickly squashed this hope. International standards could be used against the
United States, they thought. Moreover, they were unnecessary. Mexico’s environmental
and labor laws were strong enough What was needed … was a means to ensure ‘national
enforcement of national laws …’ Effective enforcement, says Mayer, became a ‘virtual
mantra’ of the Clinton Administrations NAFTA team.
10
For descriptions, see Fox, Environment and Trade; Mayer, supra note 5 at 108; and
Kirton, supra note 5.
9
8
Secretariat.11 It is headed by the Executive Director, and currently operates
with about two dozen professional staff members.12 It is required to prepare
an annual report, may prepare reports on other matters,13 and has major
responsibilities in the citizen submission procedure.
Under Articles 14 – 15, the Secretariat is authorized to consider submissions
from nongovernmental organizations or persons claiming that ‘a Party is
failing to effectively enforce its environmental law.’14 In response, the
Secretariat must first determine that the submission meets the criteria set out
in Article 14(1). Where these preliminary tests are passed, the Secretariat
then determines if the submission merits a response from the Party (Article
14[2] and [3]). In cases moving on to this stage, the Secretariat next decides
whether, in light of the Party’s response, the submission warrants the
development of a ‘factual record.’ A Secretariat recommendation to proceed
to the factual record stage is considered by the CEC Council, which
11
See U.S.-Can.-Mex. North American Agreement on Environmental Cooperation, Sept.
14, 1993, 32 I.L.M 1480 [hereafter NAAEC], Articles 11 - 13.
12
See Who we are/Secretariat: Professional Staff Directory, at
<http://www.cec.org/who_we_are/secretariat/staff/index.cfm?varlan=english> , viewed 1
May 2003.
13
NAAEC, supra note 10, Article 13 says: ‘The Secretariat may prepare a report for the
Council on any matter within the scope of the annual program. Should the Secretariat
wish to prepare a report on any other environmental matter related to the cooperative
functions of this Agreement, it shall notify the Council and may proceed unless, within
30 days of such notification, the council objects by a two-thirds vote …’
14
For an overview, see JOHNSON & BEAULIEU, supra note 4, at 152-9.
9
comprises ‘cabinet-level or equivalent representatives of the Parties, or their
designees’ (Article 9 [1]). A two-thirds vote is sufficient to authorize
preparation of a factual record.
The nature of the factual record is sketched in guidelines set down by the
CEC Council.15 Factual records are to contain summaries of the submission,
the response, and other relevant factual information, as well as ‘facts
presented by the Secretariat with respect to the matters raised in the
submission,’ and, ‘as appropriate,’ the comments of any Party. In Johnson
and Beaulieu’s judgment, evaluations or judgments by the Secretariat seem
to be precluded, ‘despite the numerous NAAEC references to the necessity
of effective enforcement of environmental laws.’16 Upon completion of the
Secretariat’s work, the Council votes on making the factual record public,
with a two-thirds vote again sufficient to authorize.
Definitions critical to the interpretation of the citizen submission process (as
well as to interpretation of the aforementioned dispute settlement process)
are presented in Article 45 of NAAEC. Environmental laws are defined in
such a way as to include statutes or regulations aimed at the control of
15
CEC, Citizen Submissions on Enforcement Matters: Guidelines Submissions, at:
<http://www.cec.org/citizen/guide_submit/index.cfm?varlan=english >, sections 11 – 12,
viewed 12 March 2003.
16
JOHNSON & BEAULIEU, supra note 4, at 158.
10
pollutants or the protection of wild flora or fauna, but exclude ones aimed at
protecting worker safety and health, or at managing the exploitation of
natural resources.17 Two pieces of information integral to the definition of
effective enforcement are presented in Article 45(1): ‘A Party has not failed
to “effectively enforce its environmental law” … where the action or
inaction in question by agencies or officials … (a) reflects a reasonable
exercise of their discretion in respect of investigatory, prosecutorial,
regulatory, or compliance matters; or (b) results from bona fide decisions to
allocate resources to enforcement in respect of other environmental matters
determined to have higher priorities.’18
As the following sections indicate, questions about how to interpret these
and other facets of the citizen submission rules received a thorough airing in
the two migratory bird cases. The two cases described are among 36
17
NAAEC, Article 45(2).
For a discussion, see JOHNSON & BEAULIEU, supra note 4, at 198-207. They point
out that Article 5 may provide some help in dealing with the difficult notion of
reasonable discretion. As they note, Article 5 says that ‘[s]anctions and remedies
provided for a violation of a Party’s environmental laws and regulations shall, as
appropriate, take into consideration the nature and gravity of the violation, any economic
benefit derived from the violation by the violater, the economic condition of the violator,
and other relevant factors.’ As well, Article 5 sets out a long list of possible enforcement
measures, including ones such as ‘seeking assurances of voluntary compliance and
compliance agreements.’
18
11
submissions received by CEC up to April 2003.19 In four of these cases,
including the U.S. migratory bird case, factual records have been completed
and released. Ten other files are categorized as ‘active’: in four of these
cases, draft factual records have been submitted for comment; in three cases,
factual record investigations have been approved and are underway; and in
two, the Secretariat is considering whether to recommend a factual record.
The tenth is the Canadian migratory bird file. In this case, as we will see, the
Council has deferred a decision on a Secretariat recommendation that a
factual record be developed. (The other 22 cases are categorized as ‘closed
files.’ In most of these, the submitters failed to pass the preliminary tests or
failed to convince the Secretariat that a factual record was warranted. In a
couple, the Council voted down Secretariat recommendations for factual
records.)
The U.S. Migratory Bird Submission
The U.S. submission, filed in November 1999, was brought by the Center
for International Environmental Law (CIEL) on behalf of a collection of
19
For details of all cases, see CEC, Citizen Submissions on Enforcement Matters:
Current Status of Filed Submissions at:
<http://www.cec.org/citizen/status/index.cfm?varlan=english.>, viewed 1 May 2003.
12
U.S., Canadian, and Mexican environmental organizations.20 The
submission contends that with respect to logging operations, the U.S. Fish
and Wildlife Service (FWS) is failing to effectively enforce Section 703 of
the U.S. Migratory Bird Treaty Act (MBTA). This legislation implements
four international migratory bird protection agreements, including separate
treaties with Canada and Mexico. The submitting groups note that Section
703 of the MBTA ‘prohibits any person from killing or "taking" migratory
birds, including the destruction of nests, the crushing of eggs, and the killing
of nestlings and fledglings’ without a FWS permit.21
The submission contends that the U.S. government has refused to enforce
this clear statutory prohibition as it relates to logging operations on public
and private lands. No logger or logging company, it contends, has ever been
prosecuted for a violation of the MBTA, and in fact, the USFWS has been
20
These included three other U.S. groups (the Alliance for the Wild Rockies, Friends of
the Earth (US), and the Pacific Environment and Resources Center), two Mexican groups
(Centro de Derecho Ambiental del Noreste de Mexico, and Instituto de Derecho
Ambiental); and two Canadian groups (Sierra Club of Canada; and the West Coast
Environmental Law Association). This is one of the few submissions to date that has
been filed by a tri-national alliance. It is noteworthy that none of the groups participating
could be considered a mainstream bird conservation organization; i.e. groups such as
Audubon did not sign on.
21
The final factual record in this case, discussed further below, provides a primer on case
law pertaining to Section 703 of the MBTA, reviewing issues such as whether it applies
to negative consequences stemming from habitat modification or loss, and whether it
applies only to intentional ‘takes.’ See CEC, Final Factual Record For Submission Sem
99-002 (Migratory Birds) 26-34, at: <http://www.cec.org/files/pdf/sem/MigratoryBirdsFFR_EN.pdf>, viewed 27 April 2003.
13
guided by a clear policy of non-enforcement. According to a 1996 internal
memo cited by the complainants: ‘The [Fish & Wildlife] Service has had a
longstanding, unwritten policy relative to the MBTA that no enforcement or
investigative action should be taken in incidents involving logging
operations, that result in the taking of non-endangered, non-threatened
migratory birds and/or their nests .... [T]he Service will continue to enforce
the MBTA in accordance with this longstanding policy.’22
The agency’s failure to enforce could not, say the complainants, be taken to
reflect a reasonable exercise of discretionary powers. Citing examples from
studies of impacts in specific areas, they note that the agency’s abdication of
enforcement responsibilities was causing destruction of a ‘staggering
number’ of migratory birds and bird nests each year, with ‘severe negative
consequences for migratory bird populations.’23 In their conclusion, the
complainants suggested a willingness to accept seasonal restrictions and
22
Memorandum from Director, FWS, to Service Law Enforcement Officers, MBTA
Enforcement Policy (March 7,1996), quoted in Alliance for the Wild Rockies et al.,
Submission To The Commission On Environmental Cooperation Pursuant to Article 14 of
the North American Agreement on Environmental Cooperation 12 ( November 17, 1999).
23
Alliance for the Wild Rockies at 9, and at Appendix C (as quoted in CEC Secretariat,
Article 15(1) Notification to Council that Development of a Factual Record is Warranted
11 [15 December 2000]).
14
other regulations that would reduce impacts on migratory birds while
allowing logging to continue.24
In December 1999, the CEC Secretariat determined that the submission met
the criteria under Article 14(1) and thus warranted a response from the U.S.
government. In its response, filed in February 2000, the U.S. argues that the
submission did not warrant development of a factual record. The submitters
had reached an incorrect conclusion regarding the agency’s policy, and had
not taken into account ‘the complete framework under which the United
States protects migratory birds.’25 The memo used by the complainants to
support claims about a policy of non-enforcement (cited above) was an
‘unapproved draft memorandum’ ‘distributed solely for the purposes of
soliciting comments,’ and carried ‘absolutely no weight of authority.’26 The
submitters had failed to take into account the many proactive, preventative,
‘non-prosecutorial’ methods the USFWS uses to protect migratory birds.27
Nor had they recognized that migratory bird fatalities result from a multitude
24
Id. at 24.
U.S., Response of the United States of America to the Submission Made by the Alliance
for The Wild Rockies, et al., Under Article 14 of the North American Agreement on
Environmental Cooperation 2 (29 February 2000).
26
Id. at 2, 7, 8, 23.
27
Id. at 18. The U.S. illustrated these efforts with short descriptions of its work in the
areas of population monitoring, avian mortality studies, landscape level planning, and
public outreach, as well as with reference to its participation in NABCI.
25
15
of causes and that ‘other activities, if prosecuted, could have a much greater
beneficial impact.’28
The remainder of the U.S. response relies heavily on NAAEC Article 45.
Citing the sections noted above, the U.S. contends that USFWS policies
reflect a reasonable exercise of discretion as to what methods of
management and enforcement to use, as well as ‘bona fide decisions to
allocate resources to enforcement in respect of other environmental matters
determined to have higher priorities.’29 The agency’s record to date should
not be taken to suggest a long-term policy of exempting logging activities
from enforcement and prosecution. Rather, taking into account ‘whether it
can leverage its resources by taking enforcement actions that encourage
voluntary efforts,’ ‘the FWS, with its limited resources, has legitimately
concentrated its regulatory, enforcement, and scientific efforts to reducing
unintentional takes of migratory birds caused by those activities where
industry has created hazardous conditions which often attract migratory
birds to their death.’30 Given the agency’s limited enforcement resources and
the availability of alternative instruments, ‘targeting logging activities under
28
Id. at 24.
Id. at 2, 12.
30
Id. at 11-12, 14.
29
16
the MBTA is not the most efficient, effective or satisfactory means of
protecting migratory birds.’31
In December 2000, the CEC Secretariat informed the Council that, in light
of the response, it considered the submission to warrant development of a
factual record. In its report, the Secretariat begins its lengthy supporting
arguments by noting that the Submitters had not based their claims about
non-enforcement exclusively on the controversial draft memorandum. Other
evidence had been cited, including specific examples as well as evidence of
an apparent nationwide lack of prosecutions.32 Significantly, says the
Secretariat, ‘the United States does not appear to challenge either assertion
by the Submitters – that logging operations cause deaths of birds covered by
the MBTA and destruction of nests of such birds, or that the Party has never
enforced against such operations.’33
Noting that the submission focused on a nationwide failure to effectively
enforce, the Secretariat next takes pains to reject a reading of Article 14 that
would restrict its application to allegations concerning particular facilities or
31
Id. at 15.
CEC Secretariat, Article 15(1) Notification to Council that Development of a Factual
Record is Warranted 6-8 ( 15 December 2000).
33
Id. at 7.
32
17
projects.34 In drafting Article 14, the Parties had clearly intended that it
should apply to both particularized and widespread enforcement failures.
Indeed, ‘the larger the scale of the asserted failure, the more likely it may be
to warrant developing a factual record, other things being equal. If the
citizen submission process were construed to bar consideration of alleged
widespread enforcement failures, the failures that potentially pose the
greatest threats to accomplishment of the Agreement’s objectives, and the
most serious and far-reaching threats of harm to the environment, would be
beyond the scope of that process. This limitation in scope would seem to be
counter to the objects and purposes of the NAAEC.’35
The Secretariat devotes considerable attention to Article 45(1)(a) and (b),
noting that this case marked the first instance in which a Party’s response
had relied heavily on Article 45 to support arguments against continued
review of a submission.36 Rejecting the notion that it should be obliged to
accept at face value a Party’s claim that it qualifies for one or both of the
Article 45(1) defences, the Secretariat systematically reviews several
34
Id. at 8.
Id. at 10.
36
Chris Tollefson says: ‘As yet, it remains unsettled whether a Party is entitled to invoke
these exemptions upon being asked by the Secretariat to respond. … If this course of
action were open to a Party, [it would place the Secretariat under obligations that would]
impose onerous information gathering responsibilities …. Moreover, such an approach
imposes the duty to grapple with vexing and sensitive legal questions on the Secretariat.’
Tollefson, supra note 5, at 172.
35
18
questions that need to be considered in an evaluation of such a claim. It
concludes that the U.S. response was deficient in a number of respects. For
example, it had failed to show why, in its development of regulations and the
permit process, an exclusive focus on intentional killings and a decision to
ignore incidental killings represented a reasonable and bona fide allocation
of resources.37 Likewise, it had not adequately supported its arguments that
other enforcement foci allowed for a more effective ‘leveraging’ of
resources.38 In conclusion, says the Secretariat, ‘the Party has not adequately
supported its claim that its failure to bring a single prosecution against
logging operations is the result of a reasonable exercise of its discretion or a
bona fide allocation of its resources.’39
The CEC Council’s decision, delivered in November 2001, disappointed the
submitting organizations.40 The Council voted unanimously to instruct the
Secretariat to prepare a factual record, but radically limited the scope of the
further inquiry by requiring that it focus only on ‘the two specific cases’
identified by the complainants. It fixed, that is, on a paragraph of the
submission in which the complainants tried to illustrate the lengths to which
37
CEC Secretariat, supra note 22, at 18-19.
Id. at 24.
39
Id. at 27.
40
Council Resolution 01-10. Note that this decision was made by the Alternate Members
-- Judith Ayers (U.S.), Norine Smith (Canada), and Olga Ojeda Cardenas (Mexico).
38
19
the FWS had gone in avoiding its enforcement obligations. This paragraph
reads:
FWS maintains its no enforcement policy even with respect to well
documented and publicized killings of migratory birds due to logging.
In one notable case, a private landowner logged hundreds of trees
during the nesting season of Great Blue Herons. The landowner
destroyed the entire active rookery, leaving hundreds of eggs and
nests lying on the ground, crushed by logging equipment and falling
trees. Despite the public outrage and media attention this incident
generated, FWS refused to bring an action under the MBTA against
the landowner. In another recent case, FWS refused to prosecute a
logging company that purposely burned four identified osprey trees on
privately-held land, one of which was known to be nested by a pair of
ospreys.41
Ignoring the submission’s arguments about a general policy of nonenforcement, the Council directed that the factual record should deal only
with these two cases.
41
Alliance for the Wild Rockies, supra note 21, at 12-13.
20
Strong arguments against a limited inquiry had emerged in anticipation of
this decision. Upon learning that the U.S. representative would be pushing
for this course, both of the committees established to advise the U.S.
representative -- the National Advisory Committee (NAC) and the
Governmental Advisory Committee (GAC)42-- sent protests. 43 The GAC
Chair warned U.S. representative Whitman of the consequences:
It is our understanding that the U.S intends to vote yes on the
Secretariat proceeding with a factual record for this submission, but
only if it is limited to a review of the facts associated with the two
anecdotal violations identified in the submission. … We are
concerned that, by allowing a Party to a submission the latitude to
define the scope of the factual record … the independence historically
42
These committees were set up in response to NAAEC Articles 17 and 18, which
authorize the Parties to establish bodies to advise on implementation and further
elaboration of the agreement. The National Advisory Committee is made up of members
of the public, including representatives of NGOs, while the Governmental Advisory
Committee is made up of representatives of national, state, local and tribal governments.
See U.S. Environmental Protection Agency, Cooperative Environmental Management,
The National Advisory Committee (NAC) and The Governmental Advisory Committee
(GAC) to the U.S. Representative to the Commission for Environmental Cooperation
(CEC), at <http://www.epa.gov/ocempage/nacgac-page.htm.>, viewed 20 March 2003).
43
Denise Ferguson-Southard, Chair, Governmental Advisory Committee, Letter to
Christine Todd Whitman, Administrator, U.S. Environmental Protection Agency (19
October 2001), at: <http://www.ciel.org/Announce/Whitman_Letter_19Oct01.html.>,
viewed 17 March 2003); and Adam B. Greene, Acting Chair, National Advisory
Committee, Letter to The Christine Todd Whitman, Administrator, U.S. Environmental
Protection Agency (15 October 2001), at:
<http://www.ciel.org/Announce/Whitman_Letter_15Oct01.html.>, viewed 17 March
2003.
21
exercised by the Secretariat in the submission process will be
eviscerated. The U.S. would undercut this independence by limiting
the factual record to the two examples provided in the submission,
where a broader pattern was adequately alleged. If the Secretariat's
independence is undercut in the manner proposed by the U.S., there
will be no future credibility to the submission process.44
The GAC Chair concurred with the National Advisory Committee’s view
that ‘a conditional approval of a Secretariat proposal for preparing a factual
record would set a highly undesirable precedent for future actions by other
NAAEC Parties.’45 Noting that NAAEC clearly allows submissions on
general patterns of ineffective enforcement and does not require that all
instances of enforcement failure be listed, the GAC Chair continued:
Interpreting the NAAEC to place such an onerous burden upon a
petitioner will make the process unmanageable and inaccessible to the
very individuals and organizations who benefit most directly from the
openness and transparency that this process provides in North
America. In order to meet this new requirement, a petitioner will have
to identify every instance of a failure to effectively enforce the
44
45
Ferguson-Southard, supra note 42.
Greene, supra note 42.
22
applicable law in order to assure itself that the submission will be
fully considered by the Secretariat. This approach increases,
substantially, the level of financial and human resources that would be
required by a petitioner to make such assurances on their submission,
possibly eliminating many citizens from even attempting such an
enterprise.46
The two U.S. advisory committees also flagged another concern about the
impending Council decision: that the U.S. would insist that, before
commencing work on the factual record, the Secretariat should provide the
Parties with the opportunity to comment on its ‘work plan’ for the
investigation. This course would, said the GAC Chair, represent another
dangerous precedent: ‘Such an approach would undoubtedly infringe upon
the Secretariat's independent factual investigation. It does so by giving the
Party which has the most at stake in the process the opportunity to control
the development of the factual record and, as a result, the outcome.’47
Both concerns were dismissed by the U.S. representative and the Council.
The Council’s November 2001 decision to allow only a ‘restricted scope’
factual record on the migratory birds submission, it should be noted, was
46
47
Ferguson-Southard, supra note 42.
Id.
23
released at the same time as three other decisions rejecting Secretariat
recommendations for broad reviews. Three submissions involving Canada
(those known as Oldman River II, B.C. Mining, and B.C. Logging) were
allowed to proceed to the factual record stage, but in each case, the
Secretariat was told to restrict itself to an examination of particular
instances of alleged non-enforcement.48 As we note below, questions raised
by this ‘four-pack’ of decisions contributed significantly to the controversy
that enveloped CEC by late 2001.
The Secretariat released its work plan in mid-December 2001,49 and
submitted a draft factual record to the Council in November 2002. It
received comments from the U.S. in January 2003,50 and submitted the final
factual record on February 21. The Council voted to release it in late March.
48
For capsule descriptions of the other decisions, see Commission for Environmental
Cooperation, CEC Council votes on five factual record recommendations (November 19,
2001). Also see Tollefson, supra note 5, at 180.
49
The Council, in a response to general JPAC concerns about the work plan issue, had
said in June 2002 that it would commit ‘to making comments provided by Parties fully
accessible to the public on the CEC website.’ If the U.S. did offer comments, they were
not made available. See Norine Smith to Jonathan Plaut, June 14, 2002, at:
<http://www.cec.org/files/PDF/JPAC/L-Coun-reply.pdf.>, viewed 27 March 2003.
50
See Comments of the United States of America, with a summary covering letter from
Judith Ayers, available as Attachment 2 to CEC, Secretariat, Final Factual Record for
Submission SEM 99-002 (Migratory Birds)(22 April 2003) . The U.S. expressed a
number of complaints with the draft, noting among other things its concern with ‘certain
text … that includes overly speculative or conclusive statements without a clear factual
foundation,’ and with what it regarded as inappropriate Secretariat commentary on the
Council’s decision to limit the scope of the factual record.
24
The Secretariat’s 134 page factual record provides a thorough review of the
case, providing another example of the its impressive capacity. Straining
against the limits imposed on it (and it appears, rejecting some of the U.S.
objections to its draft) the Secretariat takes the opportunity to present a
background discussion of general U.S. policy on enforcement of section
703,51 reminding readers that the U.S. admits that it ‘has never sought to
prosecute under the MBTA an incident involving a logging operation.’52 At
two points in its report the Secretariat also reviews important matters it had
been forced to exclude from consideration, including:
information regarding the overall number of migratory birds taken …
as a result of logging operations in the United States; the
effectiveness, in the absence of any enforcement of the MBTA in the
context of logging, of certain “nonenforcement” initiatives discussed
in the United States response to the submission; the reasonableness
under NAAEC Article 45(1)(a) of the exercise of the United States’
discretion in never to date having enforced the MBTA in regard to
logging operations; and whether under NAAEC Article 45(1)(b) the
United States’ general approach to enforcing the MBTA to date
51
52
CEC, Secretariat, supra note 20, at 34-43.
Id. at 35.
25
results from bona fide decisions to allocate resources to enforcement
matters of higher priority than enforcement of the MBTA against
logging operations.53
The Secretariat’s substantive investigation is very much shaped by the fact
that, as it turned out, both cases at issue had been dealt with by California
state authorities.54 In the final part of its report, the Secretariat delves into
California’s successful efforts to prosecute those responsible for the
destruction of nests in the two cases.55 It reaches ambiguous verdicts on the
issues of whether the state enforcement activities (under state laws)
adequately addressed the violations of federal and/or state law, and of
whether a prosecution under the MBTA would have been successful. In the
case involving destruction of the heron rookery, for example, it notes that
the district attorney said that the maximum punishment available under state
law was insufficient, given the nature of the crime. It concludes, however,
that ‘it is not clear that significant additional punishment could have been
obtained … with an MBTA prosecution,’ and acknowledges the possibility
53
Id. at 8. See also 21-2.
Neither the submission nor the U.S. response had noted this, although footnotes to the
paragraph in which the submission raised the two cases (see supra, note 22 at 12-13) do
suggest some involvement by state authorities. It is also interesting that the U.S.
response’s extensive discussion of the Article defences includes no mention of the role
that might be played by state authorities and laws.
55
CEC, Secretariat, supra note 20, at 46 – 63, and 8 – 13.
54
26
that such a prosecution could have led to an outcome that set-back the
FWS’s overall program of administering the MBTA.56 It reaches a similar
conclusion after reviewing the case involving destruction of the osprey nests,
again noting that pursuit of a prosecution could have risked a problematic
outcome.57
With the final stage of the process completed, the designers of the
submission were left the task of trying to extract something positive. In its
press release, the Center for International Environmental Law (CIEL) argued
that the U.S.’s efforts to narrow the scope of the factual record had
inadvertently exposed the weakness of FWS efforts: ‘The two examples
showed how the state of California could identify and prove violations of the
MBTA, something that the federal government claims is too difficult.’58
Quoting Chris Wold (who had initiated the submission), CIEL continued:
The irony of the U.S. decision to avoid scrutiny of its nationwide
policy of non-enforcement is that it permitted the commission to
uncover an entire regulatory regime that harmonizes conservation of
migratory birds with commercial logging interests. While the United
56
Id. at 11.
Id. at 62.
58
Center for International Environmental Law, NAFTA Environmental Commission
Documents U.S. Failure to Enforce Migratory Bird Law Against Loggers (24 April
2003), quoting Anne Perrault of the CIEL.
57
27
States tried to portray our petition as the “Spotted Owl on Steroids” –
an effort to ban all logging – our goal has always been to identify
strategies to simultaneously promote conservation and permit logging.
We believe that the commission’s findings provide a means to begin
serious discussions with the United States to accomplish that goal.’59
The Canadian Migratory Birds Submission.
The Canadian migratory bird case began in February 2002 when a set of
nine Canadian and U.S. environmental organizations filed a submission
alleging that Canada is failing to effectively enforce subsection 6(a) of the
Migratory Birds Regulations in respect to the logging in Ontario.60 The
Submitters were represented by the Sierra Legal Defence Fund. The bird
regulations were adopted under the Migratory Birds Convention Act, 1994
(MBCA). The section at issue says that: ‘no person shall (a) disturb, destroy
or take a nest, egg, nest shelter … of a migratory bird … except under
authority of a permit therefor.’
59
Id.
60
The organizations are: Canadian Nature Federation, Canadian Parks and Wilderness
Society, Earthroots, Federation of Ontario Naturalists, Great Lakes United (based in
Buffalo New York), Sierra Club (United States), Sierra Club of Canada, and Wildlands
League.
28
According to the submission, Environment Canada (EC) had been asked
through an Access to Information request to provide documents relating to
enforcement initiatives. The department had not only failed to provide any
evidence of prosecutions. The submitters add that ‘in response, we did not
receive, in respect of Ontario's logging industry, a single warning letter, a
single written voluntary compliance agreement, a single direction to comply,
a single documented investigation, a single public release of non-compliance
information, a single inspection report, or a single bulletin on enforcement
procedures or the promotion of environmental audits.’61 The one piece of
evidence that had been produced – a slide presentation for industry about
relevant laws – indicated some educational activity, but ‘education about the
law with no risk of enforcement assumes compliance automatically follows
knowledge - an assumption the law rarely if ever makes.’62 Along with interagency e-mail correspondence received through the Access request, the slide
show indicated that the EC agency responsible for enforcement of Canada’s
migratory bird law, the Canadian Wildlife Service (CWS), had been
delivering an ‘implicit but clear’ message to industry: ‘The destruction of
bird nests is illegal. We cannot officially authorize you to break the law. On
61
Canadian Nature Federation et al., Submission to the Commission for Environmental
Cooperation pursuant to article 14, North American Agreement on Environmental
Cooperation, 6 (4 February 2002). Emphasis in original.
62
Id. at 7.
29
the other hand, we take a common sense approach that allows you to go
about this important economic activity without undue interference.’63 The
submitters were willing to accept that investigation and prosecution need not
be the ‘option of first choice’ in an effective enforcement regime, but noted
that the agency’s own wildlife enforcement policy indicates that these
should be regarded as critical tools of general deterrence.64 The CWS’s
stance on logging and the migratory bird regulations was inconsistent with
this general policy.
The submitters appear to have been influenced by the CEC Council’s recent
‘fourpack’ of decisions to limit the scope of factual record reports. They take
care not to provide particular illustrations of non-enforcement, instead
emphasizing research indicating that logging in selected areas of central and
northern Ontario was destroying an estimated 85,000 nests each year. 65 The
agency, they argue, acknowledges that migratory bird nests are destroyed by
logging, but justifies its non-enforcement policy with the argument that the
resulting bird mortality is ‘incidental’ or unintentional.66 Such a justification,
the submitters argue, is invalid. ‘Wildlife Service officials appear to be
63
Id. at 8.
Id. at 12.
65
Id. at 4-5.
66
Id. at 5, 8.
64
30
making a choice about priorities, without any authority to do so. Their
primary role is not to facilitate logging for industry as their clients but rather
to protect wildlife. To classify the destruction of birds as "incidental" to
logging suggests a misapprehension of its role. The Wildlife Service's selfimposed prohibition against using enforcement action may be the result of
this misapprehension.’67 Furthermore, the agency continues with this
approach even though there is no evidence that it is effective compared to a
more proactive strategy.68
Anticipating the possible Article 45(1) defences, the submission notes that
‘The Wildlife Service has made a sweeping policy decision, not a case-bycase judgment associated with prosecutorial discretion. …. A systematic
failure to enforce against an entire industry known to engage in practices
that violate the MBCA cannot be a legitimate exercise of discretion.’69 Nor
could a failure to enforce be justified as a bona fide allocation of resources:
there had been no assessment of relative costs of various options, and no
apparent consideration of the argument that effective enforcement need not
be costly.
67
Id. at 9.
Id. at 8.
69
Id. at 9, 10.
68
31
The Secretariat quickly determined that the submission merited a response.
Canada’s response was delivered in April 2002. It begins by arguing that a
factual record was not warranted.70 The submitters had not cited any actual
cases of failure to enforce, making it impossible for Canada to respond. Nor
had any of the organizations ever made a complaint to the CWS concerning
nest destruction. Despite these and other reservations, Canada provides a
fuller response to the submitters’ assertions.
The response denies that the CWS has made a sweeping policy decision not
to enforce the MBR with respect to logging. Its overall program of
migratory bird conservation is shaped by public concern, international
commitments and conservation science. Given its limited resources, its
responsibility for a large geographical area, and the various possible targets
of enforcement activity, some components of this program necessarily must
receive higher priority than others. With respect to forestry, says the
Canadian response, the CWS’s approach reflects the view that an effective
long-term approach must begin with compliance promotion and education:
‘Once these compliance promotion activities have occurred, this will
facilitate arguments in court that a given logging company will have been
aware of the impacts of actions likely to harm the nests of migratory birds.
70
Canada, Response to Submission SEM-02-001 1-3 (11 April 2002).
32
At the current stage of developing the compliance promotion program
around subsection 6(a) of the MBR, Environment Canada is concerned that
obtaining limited results in a court of law for non compliance would only
devalue the offense, and be counterproductive to conservation of migratory
birds.’71
The CWS notes that it had begun compliance promotion work, using
meetings and workshops to inform forest industry groups that taking of
migratory bird nests except under authority of a permit violates subsection
6(a) of the MBR.72 Meanwhile, it said, it stood ready to act on any specific
instances of non-compliance it becomes aware of. Returning to the point
with which it began, it concludes: ‘However, because the submitters did not
provide any actual case, the Canadian Government was not able to respond
in a meaningful and factual way to their main assertion.’73
In November 2002, the Secretariat recommended development of a factual
record. It states that the submission and the response both delineate the
challenges associated with enforcing the MBR in respect to logging, and
71
Id. at 8.
Id.
73
Id. at 10.
72
33
underline measures that have taken to address the issue of compliance. The
material presented, however, was ‘insufficient to dispel central questions.’74
A factual record would provide an opportunity to explore several areas:
Missing from the materials provided to the Secretariat, for example, is
specific information regarding how the federal guidelines are
implemented in practice … Similarly, it would be useful to obtain
information regarding whether and how federal information and
education sessions have resulted in changes in forestry company
practices and procedures, in the hiring or training of personnel and in
investment in new equipment and scientific studies, and whether
Canada has put in place measures to ensure that its industry outreach
initiatives are improving compliance rates.75
A factual record would also allow detailed consideration of how Canada
exercises discretion and allocates resources. For example, the investigation
should examine the processes involved in setting enforcement priorities, and
in deciding that compliance promotion activities should precede
74
CEC, Secretariat, Article 15(1) Notification to Council that Development of a Factual
Record is Warranted 8 (12 November 2002).
75
Id.
34
prosecution.76 The Secretariat’s detailed list of information required ran to
more than two dozen items.77
The Council response, delivered on April 28, 2003, disappointed the groups
that had developed the submission. The Council deferred its decision,
arguing that the submission is ‘based in large part on an estimation derived
from the application of a descriptive model, and does not provide facts
related to cases of asserted failures to enforce environmental law.’78 As a
result, the Council said, the submission ‘does not contain the sufficient
information required to proceed with the development of a factual record at
this time.’ The submitters were given 120 days to produce ‘the requisite
sufficient information,’ and the Secretariat was instructed to consider
whether any additional information submitted warranted a response from
Canada.
Thus, after waiting several months, the Council issued another decision that
undermined the Secretariat, left in place enforcement arrangements which
are bad for biodiversity, and in all likelihood, have increased public
cynicism. In the words of Albert Koehl of the Sierra Legal Defence Fund:
76
Id. at 11.
Id. at 11-12.
78
CEC, Council, New Factual Record to be prepared, vote on another deferred (28 April
2003).
77
35
The Council waited six months only to say they need more
information. The piece of information they should be most interested
in is that this delay will ensure that more bird nests will be destroyed
without government enforcement. The delay covers the nesting season
…. There is also a danger of having the public perceive the process as
useless, and of course the public already mistrusts international trade
agreements. When the Council simply makes its own decision about
what is to be investigated and ignores the recommendation of its
experts, namely the Secretariat, then the public will lose confidence.
It's a little like a hospital administrator making decisions about
surgery --- everyone would feel more confident if the experts were
respected … The ministers certainly aren't listening to their
own highly qualified Secretariat.79
It appears that the Council’s decisions on the two migratory bird cases have
created a ‘Catch 22’ situation for NGOs seeking to shine the spotlight on
general patterns of non-enforcement. The message conveyed by the
Canadian judgment is that organizations must cite specific examples of nonenforcement, but the U.S. case indicates that groups that do so risk having
79
Albert Koehl, e-mail communication, 29 April 2003.
36
these examples become the focus of limited scope factual record
investigations.
Issues Raised by the Migratory Bird Cases.
The migratory bird cases played out against a backdrop of intense debate
over what rules and norms should govern the citizen submission process. In
general, this debate reflects concerns in the NGO community about the
Parties’ intentions.
In June 2000, the Council asked CEC’s Joint Public Advisory Committee
(JPAC) to review and report on lessons learned from the history of the
citizen submission process.80 In its June 2001 report, JPAC examines the
procedure and the Secretariat’s handling of cases, particularly the two cases
that had by that point led to factual records (BC Hydro and Cuzumel Pier). It
reviews public comments received, noting that most of these fall into three
categories of concern: timeliness, transparency, and effectiveness. In its
conclusion, it underlines the contributions the submission procedure was
making to enforcement of environmental laws: ‘[D]evelopment of a factual
record (or even a carefully prepared Submission) provides a vehicle for
CEC, Council, Resolution 00 – 09 (13 June 2000). On the composition and functions of
the JPAC, see NAAEC, supra note 10, Articles 9-10; and JOHNSON & BEAULIEU,
supra note 4, 132-6.
80
37
focused public attention on a Party’s environmental enforcement practices.
This not only increases the pressure for meaningful enforcement of existing
law, but can also lead to improved environmental legislation or … action to
address underlying environmental problems.’81
The JPAC also endorses some of the key concerns expressed by members of
the public. Care must be taken to protect the Secretariat’s independence and
ensure that it has the resources necessary to attract and retain high quality
staff. Efforts should be made to reduce the amount of time needed to process
submissions. Certain procedural changes would improve public confidence
in the process. And steps should be taken to promote follow-up after
preparation of factual record: ‘one option would be for the Party involved to
report to CEC within a reasonable period of time … on the actions, if any,
that it has taken to address the matters set forth in the factual record.’82
81
CEC, Joint Public Advisory Committee, Lessons Learned: Citizen Submissions under
Articles 14 and 15 of the North American Agreement on Environmental Cooperation, 14
(6 June 2001).
82
Id. at 17. In April 2002, JPAC delivered a formal recommendation that where factual
records ‘set forth facts warranting attention by the Party … the Party should be
encouraged to provide a written briefing to the CEC within a reasonable period of time.’
See JPAC, Recommendations Related to Factual Record Follow-up and Confidentiality
of Information (22 April 2002), attached to Norine Smith to Jonathan Plaut (14 June
2002), at: <http://www.cec.org/files/PDF/JPAC/L-Coun-04.pdf.>, viewed 3 April 2003).
In a reply written by the alternate members, the Council reminded JPAC that the Article
14-15 process terminates with the development and potential release of the factual record,
but said that it would support a decision by a Party to provide follow-up information.
38
Later in 2001, JPAC addressed the contentious issues raised in the Council’s
November 2001 ‘four-pack’ of decisions on whether to allow factual records
to proceed. As noted, in each of these decisions – including the one on the
U.S. Migratory Birds case -- Council restricted the scope of factual record
investigations and required that the Secretariat provide Parties with a work
plan prior to the start of its investigation. In a November ‘Advice to Council’
communiqué, the JPAC asked Council to authorize a public review of the
issues raised by these two provisos, respectfully submitting that Council had
‘acted without sufficient background and consideration of the public
interest.’83 In February 2002, the Council authorized a public review of the
work plan issue, but said that a public review of the scope limitation issue
should be postponed until completion of the four factual reviews authorized
in Council’s November 2001 decision.84
In March 2002 and again in July 2002, JPAC asked the Council to reverse its
decision to delay review of the scope limitation issue, noting that this
postponement eliminated opportunities for public input on this important
(Norine Smith to Jonathan Plaut (14 June 2002), at:
<http://www.cec.org/files/PDF/JPAC/L-Coun-04.pdf.>, viewed 3 April 2003).
83
CEC, Joint Public Advisory Committee, Advice to Council: NO. 01-09 (30 November
2001).
84
Norine Smith to Jonathan Plaut (February 11, 2002), at
<http://www.cec.org/files/PDF/JPAC/Council01.PDF>, viewed 3 April 2003.
39
issue, and arguing that ‘allowing the development of the factual records to
proceed in this restricted manner … is considered by JPAC as a de facto
change’ to the citizen submission guidelines.85 This and other outstanding
JPAC points pertaining to Articles 14 and 15 were rejected by the alternative
representatives in December 2002.86
In May 2002, JPAC released its recommendation on the work plan issue.87
Council, it said, should refrain in the future from requiring that the
Secretariat provide the Parties with the opportunity to comment on work
plans. Such a requirement placed the Party that was the subject of the factual
record in a conflict of interest situation, and threatened the independence of
the Secretariat by creating the impression ‘that the Party with the most to
lose has the ability to undermine the process by delving into and controlling
the structure and nature of the investigative process.’88
85
CEC, Joint Public Advisory Committee, Advice to Council NO. 02-03(8March 2003);
see also Jon Plaut to Honourable David Anderson et al. (4 July 2002), at
<http://www.cec.org/files/PDF/JPAC/Coun32-e1.pdf.>, viewed 3 April 2003.
86
See Judith E. Ayers to Jon Plaut (December 6, 2002), at:
<http://www.cec.org/files/PDF/JPAC/Council_Response-Mutli-Final.pdf.>, viewed 3
April 2003. See also: JPAC follow-up: NAAEC Articles 14 and 15, 5 in CEC, Joint Public
Advisory Committee, Advice to Council: NO. 02-04 (10 December 2002), at:
<http://www.cec.org/files/pdf/JPAC/sr02-04_en.pdf.>, viewed 3 April 2003.
87
CEC, Joint Public Advisory Committee, Advice to Council: NO. 02-07 (10 May 2002).
88
Id. at 2.
40
On behalf of the other Council alternative representatives, Norine Smith
replied on June 14, 2002. She acknowledged that Council’s instructions
regarding work plans ‘may have been negatively perceived by some.’ 89 In
fact, though, these instructions were really included to assist the Secretariat
and expedite the fact gathering process by giving the Parties advance notice
of what information they would be asked to provide. Comments (which
Smith said the Council would commit to making accessible to the public on
the CEC website) from the Parties would assist the Secretariat in organizing
its work and obtaining relevant information.
JPAC’s dogged pursuit of these and other issues does not appear to have
persuaded the Parties to reverse directions that threaten the potential of the
citizen submission process.
Conclusion.
From the outset, assessments of the impact and potential of NAAEC, the
CEC, and the Article 14-15 procedure have generated mixed verdicts.
Generally speaking, even the most positive observers have heavily qualified
their evaluations. Kirton’s mid-1990s observation that those evaluating the
NAAEC and its institutions fall into three categories – skeptical critics,
89
Norine Smith to Jonathan Plaut (14 June 2002), at:
<http://www.cec.org/files/PDF/JPAC/L-Coun-reply.pdf.>, viewed 3 April 2003.
41
contingent optimists, and integrative enthusiasts -- continues to be broadly
applicable.90 Not surprisingly, however, negative evaluations have become
more prevalent in response to recent developments around the citizen
submission process.
Several early observers were quite bullish on the NAAEC’s potential.
Johnson and Beaulieu, for example, expand upon the sentiments cited in our
introduction, noting that the design of the CEC and the procedures for NGO
participation are ‘prudently innovative’ and a ‘crucial advance’ that will
enable NGOs to ‘direct the spotlight.’91 The designers of the citizen
submission procedure should be commended, they say, for refusing to
restrict access to nationals of the targeted Party or limit the application of the
procedure to traded goods only.92 In mid-1990s evaluations, Richardson
calls the citizen submission procedure a ‘novel mechanism in any
international environmental or other agreement,’93 while Mumme and
Duncan underline the CEC's potential to strengthen and broaden a pre-1994
continental environmental management system they characterize as having
90
John Kirton, supra note 5 at 1-3 (CBCA Fulltext Reference paging).
JOHNSON & BEAULIEU, supra note 4 at 149, 165.
92
Id. at 157.
93
Sarah Richardson, Sovereignty, trade, and the environment – the North American
agreement on environmental cooperation 24 CAN.-U.S. L. J. 7 (1998). (EBSCO Host
Full Display paging.)
91
42
featured ‘fragmented bilateralism, segmented functionalism, and disjunctive
diplomacy.’94 After considering the CEC’s first few years, Kirton says that it
had ‘survived formidable political and financial obstacles to emerge as a
permanent, legitimate, comprehensively active, and increasingly effective
center of North American governance …. [in the process of building] a
strong rules-based regime that constrains the actions of the member
governments.’95 Kirton concludes:
[T]here are clear grounds to move beyond contingent optimism about
the CEC's autonomous contribution into a confident, if cautious, form
of integrative enthusiasm. It is clear that during its first three and a
half years the CEC has brought trilateralism in an intense and
permanent way to North America and to Canada-U.S. environmental
governance. …. It is also clear that the CEC has emerged as a
respected, professional, and effective organization, with its
Secretariat making skillful use of its limited resources to exercise
autonomous influence to which occasionally reluctant or resistant
94
Stephen P. Mumme and Pamela Duncan, The Commission for Environmental
Cooperation and Environmental Management in the Americas , 39 J. OF INTERA.
STUD. AND WORLD AFF. 3 (Winter 1997-98). (EBSCO Host Full Display paging.)
95
Kirton, supra note 5 at 3.
43
national governments adjust. … [T]hrough this difficult period the
CEC has not only survived but thrived.96
Many of the early assessments did flag weaknesses and worries. Mumme
and Duncan, for example, say that the CEC’s structure exposes it to
domestic political influence, arguing that it would remain vulnerable unless
it could build a reliable clientele and supportive constituencies in the three
NAFTA nations. They write: ‘the CEC has a limited base of support at the
international level, and it remains highly dependent on the national politics
of its dominant partner, the United States. Such dependence is a doubleedged sword: with strong U.S. support, the CEC is likely to survive; without
it, it will most certainly flounder.’97 Likewise, Johnson and Beaulieu temper
their positive views on the way the submission process was designed. They
contend, for example, that there was no reason to restrict NGO submission
opportunities to enforcement matters: ‘NGOs should have been allowed to
present evidence establishing that a NAFTA Party is lowering environmental
norms in an attempt to attract investments.’98
96
Id. at 18-19.
Mumme and Duncan, supra note 93, at 7.
98
JOHNSON & BEAULIEU, supra note 4 at 165. On the attitude of the Clinton
Administration and mainstream U.S. environmental groups to the idea of using the
environmental side agreement to push for stronger laws, see supra, note 8.
97
44
The Council’s handling of citizen submission cases has also generated
numerous negative evaluations. For example, after detailing the ways the
Parties have sought to limit the Secretariat’s powers, Tollefson contrasts the
citizen submission process with that outlined in the NAFTA investor claims
(Chapter 11) rules: ‘throughout both the initial design and subsequent
implementation of the citizen submission process, … the Parties … have
tended to exhibit a highly protectionist approach to defending their
Westphalian sovereignty. … In short, there is an asymmetry between how
NAFTA Parties perceive and respond to threats to their Westphalian
sovereignty in relation to transnational investors, on the one hand, and civil
society organizations, on the other.’99 Recent developments, says Tollefson ,
are not encouraging: ‘Despite the careful and largely successful efforts by
the Parties to circumscribe the impact of the citizen submission process …
some of the Parties – initially Mexico, more recently Canada and the United
States – still consider the process too robust. As a result, there have been
ongoing efforts to circumscribe the mandate and discretion of the
Secretariat.’100 Carlsen and Salazar reach a similarly pessimistic conclusion
after considering how the CEC has carried out its mandate to increase public
participation: ‘In each of the NAFTA’s three member countries, the
99
Tollefson, supra note 5, at 146-7.
Id. at 183.
100
45
perceived futility of participation has prompted several citizens’ groups that
were active during the original negotiations on the side agreement to
withdraw from ongoing consultation processes. … Repeated untransparent
and secretive attempts by governments to restrict the citizen submission
process’ have dampened enthusiasm.101
For the Globe and Mail editorial board, these and related concerns raise the
question of why environmental groups would go to all the effort of
presenting a complaint to the CEC: ‘It looks as if, frustrated in their efforts
in national venues, environmentalists are willing to accept even the
hollowest of moral victories in multinational ones.’102
Unfortunately, the present analysis will add to the roster of negative
assessments. The migratory bird cases have generated nothing to challenge
growing skepticism about the potential of the citizen submission process.
The Council’s responses to the Secretariat recommendations in favour of the
development of full factual records in these two cases disappointed the NGO
101
Laura Carlsen and Hilda Salazar, Limits to Cooperation: a Mexican Perspective on the
NAFTA’s Environmental Side Agreement and Institutions, in GREENING THE
AMERICAS 221, 224 ( Deere and Esty,eds.).
102
Why exactly does this NAFTA commission exist? TORONTO GLOBE AND MAIL,
23 May 2000. In the view of the Globe and Mail editorial writers, the NAAEC is ‘among
the strangest’ of international environmental treaties.
46
community, raising serious doubts about the Council’s willingness to
support development of a robust citizen submission process.
Environmental NGOs may be somewhat heartened by the strong work of the
Secretariat and the Joint Public Advisory Committee in and around these
two cases. Particularly noteworthy are the JPAC’s strong interventions on
the scope limitation issue, the Secretariat’s attempts to make it as difficult as
possible for the Council to limit the scope of the recommended factual
record on the Canadian case, and its efforts in the face of Council-imposed
constraints to highlight the general issue of non-enforcement in the U.S.
factual record. In light of the Council’s decisions, however, NGOs will no
doubt be reassessing the value of investing energy in pursuit of the citizen
submission route.
What might persuade them to do so? Does even an enfeebled citizen
submission procedure have some potential to positively influence
environmental policy and politics in the three countries?
These and other cases that have been dealt with under Articles 14-15 suggest
that the procedure does still have some limited potential. Generally
speaking, submissions provide the sponsoring organizations with new
opportunities to capture the attention of governments and the public.
47
Possibilities for exerting influence on the politics surrounding the issue(s) of
concern are certainly enhanced by the fact that the ‘public’ in question is
likely to be a transnational one.
The success environmental organizations have in extracting political
advantage from use of the procedure will, of course, continue to depend on
their political skill. Organizations will, for example, have to apply a
sophisticated understanding of where and when leverage associated with a
submission is likely to positively influence domestic politics. They will have
to find ways of dealing with low public awareness of the citizen submission
procedure. Increasingly as well, perhaps, they will have to respond to the
fact that after more than a decade of cuts to government capacity in the three
countries (and much talk about various manifestations of the
‘implementation gap’), many members of the public have become inured to
news about inadequacies in government policy delivery.
So far, the organizations leading the migratory bird submissions appear to be
fairly satisfied with the impacts of the process on the broader political arena.
For example, Marc Johnson of the Canadian Nature Federation offers this
evaluation of the impacts of the Canadian migratory birds submission:
‘Given that the submission process and the CEC itself are not well
understood, this issue has already gained considerable public attention. …
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We’re getting ongoing calls from the media, and I would expect that the
future decisions about whether to proceed with a factual record will garner
even more public attention. The real opportunity for creating broader public
awareness lies ahead.’103
It is particularly important to consider the potential use of the citizen
submission process in efforts to construct and use transnational coalitions.
Conservation organizations seeking to influence domestic policy processes
might deploy submissions as part of strategies aimed at stimulating the
importation of political resources, including money, scientific support, and
economic leverage.104 Those campaigning to protect the boreal forest, for
example, might profitably use a citizen submission to help galvanize concern
among the thousands of U.S. birders who highly value the time they spend
with the warblers and other migratory species that nest in the boreal.105
Shifts in public mood, of course, do not necessarily lead automatically or
easily to changes in government priorities. Organizations sponsoring the bird
103
Marc Johnson, Interview, April 23, 2003.
See Jeremy Wilson, The Domestic Policy Impacts of Transnational Migratory Bird
Conservation Arrangements: Reflections on the Impacts of North American Initiatives, a
paper for the International Studies Association Meetings, Portland, Oregon, February
2003.
105
An initiative devoted to educating U.S. birdwatchers to the importance of the boreal
forest has recently emerged. It is called the ‘Boreal Songbirds Initiative.’ See
<http://www.borealbirds.org/.>, viewed June 24, 2003.
104
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submissions are well aware that in order to translate their efforts in the CEC
forum into changes in government policy implementation, they need to help
governments find solutions. According to the CNF’s Marc Johnson:
We have been specific in terms of where we would like to see the
CWS go … We’ve presented them with a proposal that centres on the
scheme being developed under NABCI [the North American Bird
Conservation Initiative]. The NABCI approach starts with the
delineation of Bird Conservation Regions [BCRs] and then, within
each BCR, uses various criteria to identify priority suites of bird
species …. The next step is to set population objectives for those, and
then determine conservation needs that have to be focused on to
achieve those objectives. …. Rather than continuing to treat the
MBCA as a blunt tool, we’ve said that we should look at mechanisms
whereby forestry activities take into account the needs of those
priority species within each BCR. That could be done in forest
management plans or through a forest certification regime. The main
thing would be that from an operational perspective, forest operators
would have to show how they are addressing the needs of the priority
50
species. And we would want to see that not in some fuzzy provincial
guidelines but in some regulatory framework.106
Noting the CEC’s prominent role in launching NABCI, Johnson suggests
that the above approach should be attractive to the Secretariat and the
Council.
Environmental organizations in the three countries will understand that there
is little point in pursuing a submission if it simply has the effect of forcing
an under-staffed environmental agency to shift resources from one important
priority to another. Most ENGOs acknowledge that achieving better overall
environmental performance will generally require helping the agency find
more resources or more efficient ways of achieving its goals. And in turn,
although agencies may at first be stung by criticism explicit (or implicit) in a
submission, many will perhaps soon appreciate that being at the centre of the
CEC process may help them in inter-agency resource allocation politics.
We can also expect future citizen submission initiatives to be linked to
campaigns centring on other instruments or opportunities. For example, the
sponsors of the Canadian migratory bird submission are certainly attuned to
106
Johnson, supra note 102. The CNF advanced this set of perspectives at a March 21,
2003 Workshop on forest management and migratory bird conservation, organized by the
CWS and the Forest Products Association of Canada.
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possible linkages with campaigns focused on forest products certification.107
They are keenly aware of the Canadian forest industry’s desire to achieve
certification under one or other of the competing certification schemes, and
well aware of the fact that, no matter which scheme is adopted, the industry
will have difficulty achieving certification if its critics can demonstrate its
chronic failure to comply with existing environmental regulations as basic as
those set out in the Migratory Bird Convention Act. Presumably, achieving
certification would be particularly problematic in the face of evidence of
continued failure even after the matter is raised in a citizen submission.
With the assistance of organizations such as the Sierra Legal Defence Fund,
environmentalists have been imaginative in their development of strategies
that capitalize on existing regulatory regimes. For example, in cases dealing
with issues related to the ones discussed here, Canadian organizations have
recently used the MBCA to challenge the Cheviot coal development on the
eastern slope of the Rockies,108 while U.S. groups have on a number of
occasions called on the U.S. government to deploy the ‘Pelly Amendment’
to put pressure on Canada and other countries deemed to be providing
107
Id.
See, for example, Alberta Wilderness Association, Canadian Parks & Wilderness
Society, and Sierra Legal Defence Fund, Federal Court Dismisses Company’s Appeal of
Cheviot Ruling (17 February 2000).
108
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inadequate protection for endangered species.109 Despite the disappointing
results generated by the two cases examined in this paper, the NAAEC
citizen submission procedure will likely continue to be regarded as
providing one set of opportunities for those wishing to challenge the
environmental performance of NAFTA Parties. While it would clearly be
unrealistic to expect dramatic payoffs, this procedure does have the potential
to play an instrumental role as part of broader strategies aimed at
galvanizing transnational support coalitions and putting pressure on
governments to give a higher priority to the protection of the environment.
The Pelly Amendment to the Fishermen’s Protective Act grants the U.S. President
authority to ban imports from countries found to be not living up to commitments to the
conservation of endangered species. See, for example, Defenders of Wildlife et al.,
Canadian Government Criticized for Failure to Protect Endangered Species (23 March
1999); and Canada no haven for animals protected as endangered in the
U.S.,TORONTO GLOBE AND MAIL, 6 April 1999.
109
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Appendix A.
North American Agreement on Environmental Cooperation – The Citizen
Submission Procedure.
Article 14: Submissions on Enforcement Matters
1. The Secretariat may consider a submission from any non-governmental organization,
or person asserting that a Party is failing to effectively enforce its environmental law, if
the Secretariat finds that the submission:
(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 the Party's response, if any; and
(f) is filed by a person or organization residing or established in the territory of a
Party.
2. Where the Secretariat determines that a submission meets the criteria set out in
paragraph 1, the Secretariat shall determine whether the submission merits requesting a
response from the Party. In deciding whether to request a response, the Secretariat shall
be guided by whether:
(a) the submission alleges harm to the person or organization making the
submission;
(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.
Where the Secretariat makes such a request, it shall forward to the Party a copy of the
submission and any supporting information provided with the submission.
3. The Party shall advise the Secretariat within 30 days or, in exceptional circumstances
and on notification to the Secretariat, within 60 days of delivery of the request:
(a) whether the matter is the subject of a pending judicial or administrative
proceeding, in which case the Secretariat shall proceed no further; and
54
(b) of any other information that the Party wishes to submit, such as
i) whether the matter was previously the subject of a judicial or
administrative proceeding, and
ii) whether private remedies in connection with the matter are available to
the person or organization making the submission and whether they have
been pursued.
Article 15: Factual Record
1. If the Secretariat considers that the submission, in the light of any response provided
by the Party, warrants developing a factual record, the Secretariat shall so inform the
Council and provide its reasons.
2. The Secretariat shall prepare a factual record if the Council, by a two-thirds vote,
instructs it to do so.
3. The preparation of a factual record by the Secretariat pursuant to this Article shall be
without prejudice to any further steps that may be taken with respect to any submission.
4. In preparing a factual record, the Secretariat shall consider any information furnished
by a Party and may consider any relevant technical, scientific or other information:
(a) that is 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.
5. The Secretariat shall submit a draft factual record to the Council. Any Party may
provide comments on the accuracy of the draft within 45 days thereafter.
6. The Secretariat shall incorporate, as appropriate, any such comments in the final
factual record and submit it to the Council.
7. The Council may, by a two-thirds vote, make the final factual record publicly
available, normally within 60 days following its submission.