Advisory Letter - September 28, 1999

National Advisory Committee to the
U.S. Representative to the Commission for Environmental Cooperation
September 28, 1999

The Honorable Carol M. Browner
Administrator
U.S. Environmental Protection Agency
401 M Street S.W.
Washington, D.C. 20460

Dear Administrator Browner:

The National Advisory Committee to the U.S. Representative to the Commission for Environmental Cooperation held its twelfth plenary meeting on September 8, 1999, in Seattle, Washington. We heard from representatives of EPA and the CEC about the outcome of the Council meeting in Banff and about U.S. and CEC priorities for the coming year. Based on their reports and the reports of the NAC members who attended the Banff meeting, we discussed a variety of issues related to the outcome of that meeting and to the challenges facing the United States as the host of the Council session in 2000. Our discussions resulted in two advice letters: (1) NAC Advice No. 99-5, on the results of the Banff meeting; and (2) NAC Advice No. 99-6, on preparing for the meeting to be hosted by the United States next year.

We also discussed the fact that, with the resignations of John Audley and Sandy Gaines and the continued absence of Scott Hajost, the NAC now has only nine active members. The shortfall in membership means that the Committee is able to cover fewer issues and act as a less representative body than if it had its full complement of fifteen members. We therefore request that EPA expedite its consideration of new members to replace those that have left. We hope to be back to our full membership by our next meeting and, based on our discussions with EPA officials in Seattle, we see no reason why that should not occur.

Finally, I would like to express our appreciation for your meeting with the members of the Committee who attended the Council session at Banff and for the consideration you and the other U.S. government officials there showed to the Committee. We are aware of the many demands all of you have on your time, and we thank you for making the time necessary to include the Committee in your work at Banff.

Very truly yours,

John H. Knox
Chair, National Advisory Committee

Attachments

cc:

Peter Robertson, Deputy Administrator
Bill Nitze, Assistant Administrator for International Activities
Clarence Hardy, Director, Office of Cooperative Environmental Management
Lorry Frigerio, Office of International Activities
Mark Joyce, Office of Cooperative Environmental Management
NAC Members

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

NAC Advice No. 99-5

Following up the Results of the Banff Council Session

Before the Banff Council session, the NAC provided advice on four substantive issues: (1) the proposed revisions to the guidelines for submissions under Articles 14 and 15 (see the joint response of the NAC and GAC to Bill Nitze, dated May 21, 1999); (2) the possible agreement on transboundary environmental impact assessment (see NAC Advice No. 99-2); (3) implementation of Article 10(6) (see NAC Advice No. 99-3); and (4) other trade-and-environment issues (see NAC Advice No. 99-4). All of these areas received attention at Banff. We were disappointed, however, with some of the results.

Revisions to the Guidelines.
despite recommendations to the contrary from many sourcesincluding joint public advisory committee council chose approve revised guidelines for submissions under articles 14and 15. we recognize that some of proposals originally consideration were far worse than those eventually adopted appreciate efforts u.s. government try avoid amendments would undermine usefulness procedure. but are nevertheless disappointed changes approvedespecially in light widespread opposition any at all. >

In particular, we are deeply concerned about section 10.2, which requires the Secretariat to keep its recommendation as to whether a factual record is warranted confidential until the Council has reached a decision on the recommendation, and to delay even letting the public know it has made such a recommendation until thirty days after it has notified the Council. Especially when considered together with section 10.1 (which allows the Council to postpone making a decision indefinitely while it asks the Secretariat to provide additional information), the effect of the amendment is both to delay the procedure and, more importantly, to reduce the ability of the public to hear why the Secretariat believes that a factual record is justified until after the Council has decided the question. The purpose of the amendment thus appears to be to shield the state parties from potentially embarrassing public scrutiny until the possibility of public pressure being brought to bear on the Council has passed. Trying to shield the state parties from public scrutiny and pressure is contrary to the spirit of the Agreement. And for the United States to agree to the amendment is contrary to the spirit, if not the letter, of Executive Order 12915 (May 13, 1994), section 2(d)(2) of which states:

To the greatest extent practicable, the United States shall support public disclosure of all nonconfidential and nonproprietary elements of reports, factual records, decisions, recommendations, and other information gathered or prepared by the Commission for Environmental Cooperation. . . .

Finally, it is extremely troubling that these changes were not among those included in the proposed amendments circulated for public comment. The Council's decision to approve such changes without providing the public any opportunity to comment on them, especially in light of the strong public opposition to the other changes considered, will necessarily raise doubts about the Council's commitment to listening to the public before revising the guidelines, and to the submissions procedure itself -- a procedure that this Committee has previously described many times as integral to the success of the Agreement. For all of these reasons, the Committee will remain particularly vigilant regarding the future functioning of the Article 14-15 procedure, and will seek ongoing information from the Secretariat and other sources to evaluate the effect, if any, of the revision.

Agreement on Transboundary Environmental Impact Assessment.
The Committee has repeatedly expressed the urgent need for the CEC to score a significant "success" to raise the public profile of the organization and prove its relevance to North Americans, and we have been hopeful that the transboundary environmental impact assessment (TEIA) agreement could be such a success. We were therefore greatly disappointed to hear of the lack of progress in finalizing the agreement. We recognize the difficulty of the remaining issues and we are hopeful that the decision to explore "good neighbor agreements" will resolve those issues. But we also recognize that the parties have essentially completed all of the legal and technical work necessary for agreement at the federal level. We are concerned that the parties may postpone that agreement until they have reached a formula to include states and provinces in some type of comprehensive agreement. Given the possible delays inherent in any effort to include states and provinces in a manner acceptable both to them and to each of the parties, we continue to believe strongly that the parties should finalize a TEIA agreement at the federal level as soon as possible (and continue to work on state-provincial issues), rather than wait to reach an agreement at the federal level until the states and provinces are somehow included. We are aware of the daunting political obstacles to a federal-only agreement, but we continue to urge the U.S. government to find creative ways to overcome them.

Trade-and-Environment Issues.
We continue to believe that trade-and-environment issues are central to the mandate of the CEC and to its importance in the public eye. We were pleased that the Council paid attention to trade-and-environment issues at Banff, but we remain very concerned about those issues and about the role of the CEC in addressing them.

For example, we still do not see progress toward effectively implementing Article 10(6) of the Agreement, an increasingly urgent task in light of the increasing number of investor-state disputes under Chapter 11 of NAFTA that implicate environmental issues. We were pleased to hear that the parties have continued their joint meetings of trade and environment officials and plan to hold at least one workshop in the near future on Chapter 11 disputes that would include representatives from both trade and environmental ministries. But we believe more should be done. We urge the U.S. government to take a more active leadership role in organizing more such meetings, and more important, to build on such meetings to implement Article 10(6) in ways that address the issues raised by the Chapter 11 disputes. At a minimum, the parties should move expeditiously to develop mechanisms that keep the Commission and the public informed about trade and investment disputes that implicate environmental issues.

We also repeat our emphasis on the importance of studying the environmental effects of trade, and our encouragement of the U.S. government to support the planned conference on NAFTA effects. Again, however, we believe more could be done here. We believe the "environmental effects" work has moved too slowly and is not ambitious enough in its scope. In light of the importance of such studies to trade-and-environment issues generally, we urge the U.S. government to work with the other parties to broaden the range and scope of such studies.

Finally, we note that while the CEC is far from resolving trade-and-environment issues, it is nevertheless an innovative and important way of addressing such issues. Its strengths and weaknesses may provide lessons to those considering trade-and-environment issues in other contexts, including within the World Trade Organization. To that end, we urge the U.S. government to consider providing detailed information about the Commission to other governments and to non-governmental entities at the upcoming WTO meeting in Seattle.

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

NAC Advice No. 99-6
Hosting the Council Session in 2000
As host of the Council session in the year 2000, the United States has an opportunity to shape the context of the meeting in ways that encourage public participation in the work of the Commission and disseminate information about the Commission to the public and the media. The NAC wishes to assist the U.S. government to maximize the benefits from the meeting. To that end, a working group of the NAC will consider specific suggestions over the coming months. As the result of our discussions in Seattle, we have the following initial suggestions:

We support the idea expressed by Bob Varney of the GAC of holding a conference around the Council session. The conference would not be an extended Council session, but rather an opportunity for members of the public, non-governmental organizations, businesses, and government representatives to interact with each other and with the CEC on a wide variety of CEC issues. One possibility would be to have the conference focus on specific issues under consideration by the CEC. Another would be for the conference to showcase work already underway. (For example, workshops could be held on one or more NARAPs.) The three NACs might meet together with one another, and/or with the JPAC and the Council.
The Council session and the conference should be held in a large city that is a media center -- preferably a city with a local community potentially interested in CEC issues, and certainly a city that is easy to reach. Banff is undoubtedly beautiful, but it is unreasonable to expect many people to make the extraordinary effort required to travel to an out-of-the-way resort in order to attend a Council session.
The U.S. government should decide on the city and the dates of the Council session/conference as soon as possible, and in any event before the end of the year. Delaying the decision into the new year would make planning more difficult, reduce the number of possible activities, and prevent effective publicity from reaching those potentially interested in attending.
The U.S. government should publicize the Council session and the conference well in advance, to give those interested in attending time to make plans to attend. In addition, it should be sure to disseminate information about the activities planned for the meeting and how members of the public can participate. Finally, the Council session and the conference should be held in a facility that is easily accessible to members of the public.

Advisory Letter - September 28, 1999

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