|
Citizen Enforcement Submission
Process Under NAFTA's Environmental Side Agreement
(How) Does it Work?
Overview
The Environmental Side Agreement under NAFTA created a permanent trinational
commission called the North American Commission for Environmental Cooperation (NACEC).
NACEC is composed of three permanent institutions: The Council, the Joint Public
Advisory Committee (JPAC), and the Secretariat. The Council is the governing
body and is composed of three cabinet-level environmental officials or their
delegates, one from each NAFTA Party. JPAC consists of 15 members, with each
Party nominating five persons. JPAC advises the Council on any matter within the
scope of the North American Agreement on Environmental Cooperation (NAAEC) and
provides technical, scientific, or other information to the Secretariat. The
Secretariat is the functioning bureaucracy of NAAEC. It prepares reports on
environmental matters for the Council and is authorized to receive citizen
petitions, called "citizen enforcement submissions," from any person
or nongovernmental organization, such as an environmental group, asserting that
a Party is failing to effectively enforce its environmental laws.
The NAAEC's promise that all NAFTA Parties will
effectively enforce their own environmental laws appears in article 5(1). The
applicable definition of an "environmental law" includes antipollution
laws and laws designed to protect "wild flora or fauna, including
endangered species, and their habitat," but not natural resource
preservation laws. The citizen enforcement submission process under article 14
is the NAAEC's principle tool to ensure that NAFTA Parties carry out this
pledge.
The Citizen
Enforcement Submission Procedures
NAAEC article 14 provides that 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. Submissions, no more than
15 pages in length excluding supporting documentation, must be filed with the
Secretariat.
In order to be considered by the Secretariat a
citizen submission must: (1) be written in an acceptable language; (2) clearly
identify the submitter; (3) provide sufficient information, including any
documentary evidence on which the submission is based, to allow the Secretariat
to review the submission; (4) be aimed at promoting enforcement rather than
harassing industry; (5) indicate the matter has been communicated in writing to
the relevant authorities of the challenged Party and indicate the response, if
any; and (6) be filed by a person or organization residing or established in the
territory of a Party.
Once received, the Secretariat conducts an
internal review to determine whether the submission satisfies article 14
criteria. There is no time limit on this review. If the criteria are not met,
the Secretariat will notify the submitter and allow 30 days to provide a new
submission conforming to the criteria. If the submission fails to meet the
criteria the second time, the Secretariat will inform the submitter of the
reasons and terminate the process.
If the submission meets the criteria in article
14, the Secretariat conducts a second internal review under article 14(2) to
determine whether the submission merits a response from the challenged Party.
Secretariat must consider: (1) whether the submission alleges harm to the
submitter; (2) whether the submission, alone or in combination with other
submissions, raises matters whose further study would advance NAAEC's goals; (3)
whether private remedies available under the Party's domestic laws have been
pursued; and (4) whether the submission is drawn exclusively from media reports.
Again there is no time limit.
If the submission does not satisfy article 14(2)
and no response is merited, the Secretariat will notify the submitter of its
reason (s). The submitter is then allowed 30 days to submit new or supplemental
information for further consideration. If no information is submitted, or if the
Secretariat determines that even in light of the information provided no
response is merited, the Secretariat will notify the submitter and terminate the
process.
If the submission satisfies article 14(2)
requirements, then the Secretariat will forward a copy of the submission and
supporting information to the challenged Party for a response. The Party is
required to advise the Secretariat within 30 days of the delivery of the
request: (1) whether the matter is the subject of a pending judicial or
administrative proceeding -- in which case the Secretariat will terminate the
submission -- and (2) any other information the Party wishes to submit, such as
whether the matter was previously the subject of a judicial or administrative
proceeding, whether private remedies are available to the submitter, and whether
such remedies have been pursued.
Once the Party has responded, or following the
expiration of the response period, the Secretariat conducts a third internal
review to determine whether, in light of any response form the Party, the
submission warrants the development of a "factual record." There is
again, no time limit on this third internal review. In addition, there is no
provision for the Party's response to be made public, nor is the submitter given
an opportunity to reply to any information contained in the response. If the
Secretariat decides that in light of any response, the submission does not
warrant the development of a factual record, the Secretariat will inform the
submitter if its reason(s) and terminate the process. There are no established
criteria that the Secretariat must employ in coming to its decision as to
whether a factual record in warranted.
If the Secretariat decides to prepare a factual
record, it must seek the Council's permission. A factual record can be prepared only if
the Council, by a two-thirds vote, instructs the Secretariat to do so. If the
Council does not authorized a factual record, the process is terminated.
If a factual record is authorized, then the
Secretariat is directed to consider any information submitted by a Party and may
consider any relevant technical, scientific, or other information that is
publicly available, submitted by interested non-governmental organizations or
persons, submitted by JPAC or developed by the Secretariat or independent
experts. Both the NAAEC and the Draft Procedures for Submissions on Enforcement
Matters Under Articles 14 and 15 of the NAAEC, the Secretariat's operating
guidelines, are silent as to whether the submitter is specifically allowed to
participate in the development of a factual record. Article 15(4)(b) does state,
however, that the Secretariat may consider information "submitted by
interested non-governmental organizations or persons." There is no time limit
on the preparation of a draft factual record.
Once the factual record is completed, it is
submitted to the Council, which may elect by a two-thirds vote, to make the
final record public. This should normally occur within 60 days of the delivery
of the final record to the Council. If the Council so votes, the submitter will
receive a copy. If the Council declines, then the Secretariat will inform the
submitter who has no means of gaining access to the record.
Assuming that the final factual record sustains a
submitter's contention that a Party is failing to effectively enforce its
environmental laws, the submitter must rely on another Party to take action to
stop the violation. Only a Party can initiate the NAAEC enforcement provisions.
If a Party does not elect to do so, the submitter is without recourse.
Citizen Enforcement
Submission Flaws
As is apparent from the above description, the citizen enforcement
submission process under the NAAEC is a long and arduous affair. It can be
faulted on the following three procedural grounds:
- The citizen submission process imposes no time
limits on the Secretariat. There is no limit on how long the Secretariat may
take to review a submission for compliance with articles 14(1) or 14(2).
Similarly, there is no time limit on the Secretariat's internal review of
any response received from a Party; nor is there a time limit on preparation
of the draft and final factual records. The complete lack of time
constraints is unreasonable. This is especially true given the relative
simplicity of some of the tasks, such as the article 14(1) and 14(2) review.
In environmental enforcement matters justice delayed can truly be justice
denied.
- Once a submission is filed, the submitter (s)
has almost no opportunity to participate in the review process. A submitter
is not allowed to see, much less reply to, the challenged Party's response.
Therefore, a citizen has no ability to determine if the response is truthful
or accurate. Furthermore, there is no specific provision allowing a
submitter to participate in the development of a draft factual record; only
Parties may offer comments on the draft factual record. The submitter must
rely on the Secretariat to pursue the claim.
- There is a lack of a guaranteed remedy. If a
submitter (1) successfully navigates the obstacle course of articles 14(1),
14(2); (2) the Secretariat determines that the Party's response is
inadequate; (3) the Council votes to allow the Secretariat to prepare a
factual record; and (4) the Council votes to make the factual record public,
nothing necessarily happens. A citizen submitter has no direct ability to
force a Party to effectively enforce its environmental laws. A citizen
submitter must hope that another Party chooses to act on the factual record
and pursue the claim under the NAAEC dispute resolution and enforcement
provisions. Even though a citizen submission may prove that a Party is
failing to effectively enforce its environmental laws, the violation may
never be redressed.
Back to main page
|
