The Commission for Environmental Cooperation and North American Migratory Bird Conservation

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The Commission for Environmental Cooperation and North American Migratory Bird Conservation: the Potential of the NAAEC Citizen Submission Procedure.

Jeremy Wilson[1]

As published in: Journal of International Wildlife Law & Policy. V. 6 (3) (Sept. – December 2003).

Abstract.

This paper examines the citizen submission process laid out in Articles 14-15 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.

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).

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.’

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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]