Advisory Letter - October 29, 2003

October 29, 2003

The Honorable Marianne Lamont Horinko
Acting Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue N.W.
Washington, D.C. 20460

Dear Acting Administrator Horinko:

The National Advisory Committee (NAC) to the U.S. Representative to the North American Commission for Environmental Cooperation (CEC) held its twenty-first meeting on October 9 and 10, 2003, in Washington, D.C.

We would like to express our gratitude to all of the government officials who took the time to brief us on various aspects of the CEC's work, including Jerry Clifford, Catherine Allen, and Evonne Marzouk from the Office of International Affairs, Dwain Winters and John Shoaff from the Office of Pollution Prevention and Toxics, Janet Bearden from the Office of Enforcement and Compliance Assistance, Karl Simon from the Office of Air and Radiation, Jocelyn Adkins from the Office of General Counsel, Lorry Frigerio from the U.S. Secretariat for the NAFTA Technical Group on Pesticides, Deputy Assistant Administrator Rebecca Lent from NOAA/NMFS, and Karen Wardsinski from the Department of Justice. We would also like to thank Daiva Balkus, Mark Joyce, Oscar Carrillo, Nancy Bradley, and Geraldine Brown from the Office of Cooperative Environmental Management for organizing and staffing the meeting. We appreciated the participation of Katia Opalka from the CEC Secretariat, Dinkerrai Desai from the Joint Public Advisory Committee (JPAC), and Scott Vaughan from the Carnegie Endowment for International Peace. Finally, we were happy to have the opportunity to meet with William Kennedy, the new executive director of the CEC, as well as Jennifer Haverkamp and John Mizroch, the U.S. members of the CEC Ten-Year Review Advisory Committee.

We would also like to thank Judith Ayres and Jerry Clifford for their July 31 letter responding to our advice letter of May 27. This kind of detailed response greatly helps us to follow up on our advice and to provide useful advice in the future.

We have attached advice on five areas: (a) long-term planning; (b) the ten-year review; (c) NAFTA working groups; (d) the citizen submissions procedure; and (e) our methods of work.

Very truly yours,

John H. Knox
Chair, National Advisory Committee

cc: Judith Ayres, Assistant Administrator for International Affairs
      Stephen Mahfood, Chair, U.S. Governmental Advisory Committee
      Gustavo Alanís-Ortega, Chair, Joint Public Advisory Committee
      Jean Perras, Chair, Canadian National Advisory Committee
      Members of the U.S. National Advisory Committee:
          Dennis Aigner
          Michael Andrews
          Adam Greene
          Richard Guimond
          César Luna
          Aldo Morell
          Anne Perrault
          Robert Shinn Jr.
          Wilma Subra
          Dolores Wesson
          David Wirth

National Advisory Committee
to the U.S. Representative to the
Commission for Environmental Cooperation

Advice 2003-10: Long-Term Planning

In this advice, we address both the CEC operational plan and the EPA strategic plan. Both plans were at an early stage of development when they were presented to us. While we appreciate the opportunity to provide input into them before they are so far along that they are essentially complete, the lack of detail in the plans as they stood when we discussed them makes it difficult for us to provide detailed comments.

1. CEC Operational Plan.

The NAC was very impressed with Dr. Kennedy's background and expertise, which appear to make him extraordinarily well suited to be the executive director of the CEC. We were even more impressed with his plans to make the CEC more results-oriented and his immediate steps in that direction, reflected in the draft operational plan. We strongly support his, and its, emphasis on goals and target dates. While we recognize that the CEC's mandates include preparation of reports, we could not agree more with Dr. Kennedy's statement that the CEC should not focus on preparing reports as if that were the end result, but should rather focus on improving environmental protection in practice.

More specifically, we support the development and presentation of the CEC operational plan through (a) goals; (b) strategies for achieving the goals; (c) targets; and (d) specific projects. We also agree with the plan's statement that the four primary goals of the CEC are:

– to foster understanding of the state of the environment, and its relation to economy and trade;

– to serve as a catalyst to improve domestic law and policy, and enhance enforcement and compliance;

– to mobilize international cooperation to resolve critical environmental issues; and

– to provide a forum for public dialogue and participation.

However, we would have liked to see a greater emphasis in the draft on assessing past performance in light of past goals. We understand that such an assessment may be difficult in the absence of the kind of clear statements of goals, strategies, and targets that have not been included in CEC program plans in the past. But ideally, the CEC operational plan would answer not only the question "What is the CEC going to be doing?," but also "How well did it do in meeting its previous goals?"

We also want to stress the importance of thinking about handoffs. Given the very limited resources of the CEC in comparison to its sweeping mandates, it has to find ways of handing off projects to others: government agencies, corporations, non-governmental organizations, academic institutions, and so forth. SMOC is probably one of the CEC's most successful projects, for example, but we doubt that the CEC should be involved in SMOC forever. Having provided a crucial catalyzing role, at some point the CEC should hand off the program to the government agencies that are effectively implementing it. Moreover, we believe that the CEC should think about handoffs from the inception of a project.

We also strongly endorse Dr. Kennedy's interest in seeking stronger partnerships, especially with the private sector. We suggested that the CEC establish partnerships with industry working groups such as the Global Environmental Management Initiative (GEMI) [the executive director is Steve Hellum (202-296-7449)] and the Conference Board-Townley Center for environmental health and safety officers [a contact person is Chuck Bennett (212-339-0356). We also want to encourage partnerships with academic institutions. We were pleased to hear that the CEC is starting to have some success in working with development banks, and we hope that it may be in a position not just to serve as an implementing agency, but also to help influence those banks' own environmental policies as they relate to policies and projects in North America.

2. EPA Strategic Plan.

We agree with EPA that CEC would do well to concentrate its projects in the following five general areas:

preserving biodiversity, in accordance with strategic plan adopted in June 2003;
protecting children's health;
reducing risks from toxics;
promoting environmental compliance; and
strengthening trade/environment linkages.

We note that these five areas can fit within the primary goals identified by the CEC draft operational plan, but that they do not all do so explicitly. For example, "promoting environmental compliance" is clearly referred to the operational plan, but "strengthening trade/environment linkages" seems broader than the operational plan's reference to "understanding the state of the environment and its relation to economy and trade." Moreover, the first three items on the EPA list could fit into any or all of the CEC's first three goals. The lack of a clear fit between the two plans may be simply the result of their development along separate tracks, but we think it would be useful to make more explicit their relationship to one another.

We also note that the EPA strategic plan has no equivalent to the emphasis in the CEC operational plan on public dialogue and participation. The U.S. government has consistently supported opportunities for strong public participation in the CEC and we have no reason to think that its plan represents a step away from that support, but we suggest that the U.S. strategic plan make clear the importance of the public role in CEC activities.

We agree with the importance of coming up with standards that can be used to measure the performance of the CEC. We encourage the use of peer-reviewed measures.

We also support priority-setting, as has been done with respect to the biodiversity work program. It is difficult for us to make recommendations with respect to priority-setting, however, without a clearer sense of which specific topics within these general areas the U.S. government might consider.

In addition, in order to set priorities for CEC within each area, we believe it is critical to have a clear assessment of the CEC's record that can be used to identify its strengths and weaknesses are. We hope that the ten-year review will help to provide such an assessment, and we believe that the strategic plan should be informed by the results of the ten-year review.

National Advisory Committee
to the U.S. Representative to the
Commission for Environmental Cooperation

Advice 2003-11: NAFTA Harmonization Working Groups

The NAC heard presentations from EPA staff and a former official at the CEC on harmonization efforts that have been undertaken and that are currently underway under the auspices of NAFTA. We greatly appreciated these enlightening discussions on this important topic.

The Committee was impressed at the degree of overlap between the substantive activities of the NAFTA working groups on the one hand and the CEC and its environmental mission, as set out in the North American Agreement on Environmental Cooperation, on the other. At the same time, it appears that there is little coordination between the two sets of activities.

The Committee strongly urges EPA to encourage such cooperation and coordination at both the international and the national levels – between the CEC and the working groups themselves, as well as between relevant agencies, including USTR, within the federal government. The Committee believes progress is unlikely if this initiative comes strictly from the CEC. Instead, federal agencies, including but not limited to EPA, should instruct all U.S. participants in the NAFTA harmonization working groups affirmatively to encourage coordination with the CEC and its activities. There also appears to be a need within the U.S. government for coordination between U.S. representatives to the working groups and EPA's Office of International Affairs.

The NAC was also concerned about gaps and a lack of consistency with respect to procedures for public participation in the NAFTA working groups. At present, moreover, there appears to be no readily accessible repository of information concerning either the activities or schedules of the working groups. At a minimum, the CEC could and should function as a clearinghouse to inform the public of meetings of NAFTA harmonization working groups whose activities may have an environmental or public health component.

The U.S. Government in all the NAFTA harmonization working groups should press for consistent procedures guaranteeing notice to the public, transparency in decision making, and meaningful opportunities for public input. The United States is a leader internationally in this respect, and there is much that can be done strictly within in the United States in addition to the international level. The federal government should appoint and publish a U.S. governmental contact person for each of the working groups. The schedules and agendas of the working groups should also be made public through an appropriate channel. The Committee suggests that the NAFTA Secretariat, located in the Department of Commerce, would be a good candidate to perform these functions by providing a central repository of information for all NAFTA-related issues.

National Advisory Committee
to the U.S. Representative to the
Commission for Environmental Cooperation

Advice 2003-12: The Ten-Year Review

We very much appreciated meeting and exchanging views with the U.S. members of the Ten-Year Review Advisory Committee (TRAC). Individual NAC members suggested that the TRAC should:

measure the effectiveness of the CEC in light of its potential effectiveness according to its mandates in the NAAEC;
review past advice letters of the NAC and GAC, to obtain a sense of the potential of the CEC and where it may not have reached that potential;
look at the disconnect between the CEC and the NAFTA working groups;
identify the characteristics of CEC projects, like SMOC and PRTR, that have worked well, to help the CEC identify similar potential projects;
look at how the CEC can hand off its successful projects to others, without losing credit for having catalyzed the projects in the first place; and
examine the CEC in light of the experiences of similar international organizations.

We request EPA to provide the TRAC with all of the NAC and GAC advice letters, together with the responses to the letters issued by EPA.

The NAC asked its chair to be the point of contact between it and the TRAC throughout the rest of the ten-year review process.

National Advisory Committee
to the U.S. Representative to the
Commission for Environmental Cooperation

Advice 2003-13: The Article 14/15 Citizen Submissions Procedure

We note that the Joint Public Advisory Committee (JPAC) has held a workshop and is taking public comments on issues concerning the procedure, particularly with respect to the potential scope of factual records under the procedure and the related issue of what might be called the "standard of proof" – that is, what information is sufficient to justify a factual record.

The JPAC is proceeding according to the terms of Council Resolution 00-09, adopted in June 2000, in which the Council recognized "the need for transparency and public participation before decisions are made concerning implementation of the public submission process under Articles 14 and 15," and agreed to refer issues concerning the implementation and further elaboration of Articles 14 and 15 to the JPAC so that it may conduct a public review of those issues with a view to providing advice to the Council as to how the issues might be addressed. We believe that it is necessary and important for the Council to act consistently with that resolution as well – specifically, with its provision that the Council "shall consider the JPAC's advice in making decisions concerning the issues in question relating to Articles 14 and 15 of the Agreement and shall make public its reasons for such decisions, bringing the process to conclusion."

We continue to believe, as we stated in May 2003, that a Council interpretation necessarily limiting the scope of inquiry under Articles 14 and 15 to individual cases and excluding broader allegations of failure to effectively enforce would be problematic. First, continually focusing on individual instances of failures to effectively enforce, rather than broader patterns illustrated by those instances, would lead to an inefficient use of the Secretariat's resources. Second, a routine overruling of the Secretariat's recommendations for factual records would be contrary to the strong presumption of legitimacy that should attach to those recommendations. The 14-15 procedure is designed to produce impartial reports on whether a Party has failed to effectively enforce its own law, so the Council will always have something of a conflict of interest in passing on the validity of further investigating those submissions. The Council should therefore normally refrain from overruling the Secretariat's recommendations, even if they are not the recommendations the Council would have preferred.

We recognize that in order to warrant preparation of factual records, submissions must adequately support their allegations of failure to effectively enforce environmental laws (including, as appropriate, through identification of actual cases of non-enforcement as illustrative of larger patterns of non-enforcement appropriately addressed under the Article 14/15 process). But we also believe that the standard should not be set so high that a submitter must prepare a factual record in order to justify preparation of a factual record. The procedure was intended to be used by ordinary people without the resources to undertake expensive, time-consuming investigations. Indeed, the point of the procedure is that the investigations are to be undertaken by the Secretariat, not the submitters.

For the CEC to work efficiently and effectively, it must ensure that it follows up its reports or indicate what other entity will do so. Now that it is starting to produce on a regular basis factual records under Article 15, the importance of following up those reports is highlighted. In this respect, we made two recommendations in our May 2003 letter: that the U.S. government should establish a systematic procedure for taking into account any factual records concerning allegations of U.S. non-enforcement, beginning with the Migratory Bird Treaty Act (MBTA) factual record; and that U.S. government encourage the CEC to follow up its factual records in a cooperative setting such as the Enforcement Working Group.

We were very disappointed to hear that the U.S. government appears not to have made any formal follow-up to the MBTA factual record. We continue to believe that such a follow-up is highly important, and that it help to set a useful precedent with respect to the other member governments.

On the other hand, we were pleased to learn that U.S. government officials had made efforts to convince their counterparts on the CEC Enforcement Working Group to explore a mechanism to follow up factual records. We understand the concerns of Canada and Mexico that led them to reject that suggestion. But even in the absence of a formal mechanism, we encourage the members of the EWG to look in the factual records for ideas that might be usefully incorporated into the work of the EWG.

National Advisory Committee
to the U.S. Representative to the
Commission for Environmental Cooperation

Advice 2003-14: Work of the National Advisory Committee

It is difficult for us to stay informed about the wide range of CEC issues between meetings. Individual members of the committee have therefore volunteered to monitor developments in specific areas, in order to take the lead in committee consideration of possible advice in those areas. We request that EPA and other agencies relevant to these areas keep our "specialists" in the loop, to the extent possible, on these issues as they arise. For example, it would be helpful to let them know in advance when it might be useful for them to attend a CEC meeting on an issue within their area, or if a particularly important issue is coming up for decision.

To that end, we request that you provide each of our specialists with the names and contact information of the U.S. government and CEC Secretariat officials responsible for the areas within the specialist's purview and, conversely, provide each specialist's name and contact information to the appropriate government officials. The NAC chair will continue to work with EPA officials to identify such meetings and issues as well.

The following two lists link NAC members with their areas of special interest, first by member, and second by interest:

1. NAC members:

Dennis Aigner – NAFTA effects; environmental stewardship; finance and the environment

Michael Andrews – NAFTA effects; biodiversity

Adam Greene – green goods; Chapter 11 investor-state disputes; pollution prevention; environmental management systems; Articles 14-15

Richard Guimond – NAFTA effects; environmental stewardship; finance and the environment

John Knox – enforcement cooperation; Articles 14-15

César Luna – Articles 14-15

Aldo Morell – green goods

Anne Perrault – biodiversity; children's health; freshwater

Robert Shinn Jr. – environmental stewardship; finance and environment; Air Working Group

Wilma Subra – SMOC; PRTR

Dolores Wesson – NAFTA effects; biodiversity; freshwater; NAFEC

David Wirth – Chapter 11 investor-state disputes

2. Areas of interest:

Assessing the environmental effects of trade (NAFTA effects): Dennis Aigner, Michael Andrews, Richard Guimond, and Dolores Wesson

Trade in environmentally preferable goods and services (Green Goods): Adam Greene and Aldo Morell

Environmental stewardship, and finance and environment: Dennis Aigner, Richard Guimond, and Robert Shinn

Chapter 11 investor-state disputes: Adam Greene and David Wirth

Biodiversity programs generally: Michael Andrews, Anne Perrault, and Dolores Wesson

Air Working Group: Robert Shinn

SMOC and PRTR: Wilma Subra

Children's Health: Anne Perrault

Pollution prevention: Adam Greene

Freshwater: Anne Perrault and Dolores Wesson

Enforcement cooperation: John Knox

Environmental management systems: Adam Greene

Articles 14-15: Adam Greene, John Knox, and César Luna

North American Fund for Environmental Cooperation (NAFEC): Dolores Wesson

Advisory Letter - October 29, 2003

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