Is spotlighting enough? Environmental NGOs and the Commission for Environmental Cooperation.

• Author: Alm, Leslie R.
• Position: Survey

INTRODUCTION

The mainstreaming of environmentalism into the public consciousness is now an accepted part of policymaking in North America (Adams 2005: 2-3). In fact, Rosenbaum--in the sixth edition of his book Environmental Politics and Policy--argues that "the environmental movement has been largely responsible for a remarkable growth in public environmental consciousness and acceptance of environmental protection as an essential public policy" (2005:51). These carefully crafted words not only provide the basis for deeply engrained convictions concerning the state of the environment in today's policy world, they frame a linkage between the public, the environment as a policy issue, and policymaking in general. Other scholars have enhanced this framing by illustrating the importance of public participation to effective environmental policymaking (Close and Mintz 2005: 624; Dobson and Bell 2006: 6). For instance, Torgerson and Paehlke simply, but powerfully, state that "[t]he chances for effective environmental protection [are] clearly enhanced by public involvement" (2005: 4). In the same straight-forward vein, MacKinnon comments that "... involving the public helps make decisions more legitimate and sustainable, leading to better policy outcomes" (2005: 2) and Parikh and Troell posit that "[e]ngaging the public in environmental decision-making ... often improves the quality of the environmental outcomes of those decisions" (2003: 3). Moreover, these scholars (and others) often embed their discussions of public participation within the context of interest groups or non-governmental organizations (NGOs). It is the purpose of this paper to investigate the linkage of public participation--especially as carried out through the context of environmental non-governmental organizations (ENGOs)--to successful policymaking through a critical analysis of the Commission for Environmental Cooperation (CEC) as it attempts to implement its stated mission.

The CEC was created under the auspices of the 1993 North American Agreement on Environmental Cooperation (NAAEC), a separate agreement between Canada, Mexico, and the United States stemming from concern for the environment in the context of the 1994 North American Free Trade Agreement (NAFTA). The CEC works through three major entities: (1) the Council, which is the governing body of the CEC and composed of the highest-ranking environmental authorities from Canada, the United States, and Mexico; (2) the Secretariat, which is located in Montreal and implements the annual work program by providing administrative, technical and operational support to the Council; and (3) the Joint Public Advisory Committee (JPAC), which advises the Council on any matters pertinent to the scope of NAAEC and is composed of five citizens from each of the three countries. At the time of its inception, NAFTA was considered one of the "greenest" multilateral trade agreements ever concluded because of its heavy emphasis on environmental considerations through the NAAEC and the specific creation of the CEC (Mol 2001: 125-126).

As described in one of its first publications, the CEC's mission is quite straightforward: "The CEC facilitates cooperation and public participation to foster conservation, protection and enhancement of the North American environment, in the context of increasing economic, trade and social links among Canada, Mexico and the United States" (CEC 1997). The CEC has been portrayed as the first international organization created to link public participation in environmental policymaking directly to trade and economic integration (DiMento 2003: 120; Knox and Markell 2003: 2) and has been described as "innovative ... allowing citizens to directly access and participate in the Commission's decision-making processes" (Parikh and Troell 2003: 4). Moreover, the CEC is described as an international model because of "its provisions for public participation and for the unprecedented commitment by the three governments to account internationally for enforcement of their environmental laws" (TRAC 2004: ix). Essentially, the CEC guidelines set up a public policymaking process that goes beyond participation by the three countries, allowing individual citizens to make submissions directly to the commission (Mol 2001: 128).

In brief, the articles that define the governance of the CEC set out a process where any "non-governmental organization or person established or residing in [Canada, Mexico, or the United States] may make a submission" asserting that one of the countries is "failing to effectively enforce its environmental laws" (CEC 2002: 11-13). [A non-governmental organization is defined as a "scientific, professional, business, non-profit, or public interest organization or association which is neither affiliated with, nor under the direction of a government" (CEC 2002: 57).] Based on such a submission, "the CEC is empowered, within certain limits, to investigate a party's diligence in enforcing domestic environmental legislation" (Johnson and Beaulieu 1996: 153). While the CEC is powerless to enforce laws or impose punishment, it does have the ability--through the citizen submission process--to spotlight problems in each country and bring specific environmental issues to the attention of governments, industry, and the public at large.

It is this emphasis on public participation delineated in the CEC's mission and inherent in the citizen submission process that serves as the centerpiece of our study. We explore the contention that the CEC and JPAC are "committed to ensuring transparent delivery of information to and from the public, with a goal of ensuring that the interests of all stakeholders, including nongovernmental organizations ... are represented" (Garver 2006: 10). However, our study goes beyond the investigation of the CEC's effectiveness in carrying out its public participation mission. Another goal of this paper is to shed light on Canada-United States environmental policymaking. (1) We argue that because Canada and the United States approach environmental policymaking (especially at the international and regional levels) from a divergent set of premises, Canadian and American ENGOs will perceive the effectiveness of the CEC in complying with its stated mission in entirely different ways. Essentially, we hypothesize that the way Canada and the United States approach environmental policymaking affects how they approach participation in the CEC. Accordingly, there will be substantial differences in the way these two countries' ENGOs perceive the effectiveness of the CEC in completing its mission.

1. THE PROMISE AND THE REALITY

   With respect to providing an outlet for trinational public participation in environmental governance, the promise of the CEC is immense. The establishment of the CEC was even said to have "brought a revolution to North American governance" (Kirton 2006: 125). Not only were the guidelines of the CEC negotiated under the auspices of domestic environmental agencies (Hamilton 1997: 1), they were viewed as a mandate to foster public participation at every level of decision-making (Silva 1996: 1). The CEC's power was to reside in its capacity to publicize environmental mismanagement--to serve as a "spotlight" on public authorities that fail to enforce their environmental laws properly (Johnson and Beaulieu 1996: 166). There was to be a new openness, with a system that allowed for substantial ENGO involvement (Johnson and Beaulieu 1996: 136). As Silva so optimistically asserted, the CEC was to be "within reach of anyone on the North American Continent and the world" (1996: 8).

   The question becomes: how has the promise of the CEC translated into reality? As will be seen, the fact that the CEC does not possess enforcement capabilities greatly reduces its policymaking authority. In fact, it appears that the CEC completes much of its work in anonymity. Even those who are uniquely aware of its efforts rate the CEC's ability to influence environmental policy as weak. However, we are getting ahead of the story. To begin, we look at three recent studies of the CEC that evaluate the effectiveness of the CEC. As noted below, the CEC has both enormous potential and substantial limitations.

   The first study we examined was a formal assessment completed by the Ten-year Review and Assessment Committee (TRAC) to the Council of the CEC, titled Ten Years of North American Environmental Cooperation. This assessment report was authored by six individuals: Pierre-Marc Johnson and Robert Page of Canada, Jennifer A. Haverkamp and John F. Mizroch of the United States, and Daniel Basurto and Blanca Torres of Mexico. The report was published in June 2004 and offered both an assessment of the CEC and recommendations for the future. The authors of this assessment began their work by asking a series of questions, one of which was: "Has the CEC facilitated greater public involvement in North American environmental management?" (TRAC 2004: 1). In answering this question, the authors of this report concluded that "most observers give the CEC high marks overall for public participation" (TRAC 2004:39). Furthermore, the authors asserted that senior officials of all three countries considered "public engagement to be one of CEC's strengths" (TRAC 2004: 39).

   The second study was completed by Pooja Seth Parikh and Jessica Troell of the Environmental Law Institute at the request of JPAC. Their research included reviewing four factual records (SEM-99-002, Migratory Birds; SEM 97-006, Oldman River II; SEM-98-004, BC Mining; and SEM-00-004, BC Logging) and interviewing the authors of these four submissions, academic experts, and other individuals with knowledge of the submissions process and its history. (2) Parikh and Troell concluded that the citizen submission process has prompted enforcement efforts, spotlighted problems, and generated publicity and information about government policies...