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Advice Letter -May 20, 2005
The Honorable Stephen L. Johnson
Administrator
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue N.W.
Washington, D.C. 20460
Dear Acting Administrator Johnson:
The National Advisory Committee (NAC) to the U.S. Representative to the North American Commission for Environmental Cooperation (CEC) held its twenty-fourth meeting on April 27, 28, and 29, 2005, in Washington, D.C.
We were briefed on some aspects of the CEC's work by Jerry Clifford, Sylvia Correa, and Robert Wing from the EPA Office of International Affairs, Bill Sonntag from the EPA Office of Prevention, Pesticides, and Toxic Substances, and Darci Vetter from the Office of the U.S. Trade Representative. We would like to thank Daiva Balkus, Mark Joyce, Oscar Carrillo, Nancy Bradley, and Geraldine Brown from the EPA Office of Cooperative Environmental Management for organizing and staffing the meeting. We very much appreciated the participation of Bill Kennedy and Doug Wright from the CEC Secretariat and Dinkerrai Desai from the Joint Public Advisory Committee. We would also like to thank Paul Cough, the Director of the Office of International Environmental Policy, for his letter of February 2, 2005 responding to our advice letter of November 4, 2004.
We spent most of our time and attention on a Business Roundtable on Environmental Capacity. We also considered three other topics more briefly: the report of the Ten-Year Review and Assessment Committee; the CEC reporting process; and EPA attention to CEC matters. Advice on each is attached.
On all of these matters, we hope our advice is useful to EPA and other government officials as they prepare for the CEC Council meeting in Canada next month. If your schedule permits, we would welcome the opportunity to meet with you there, as we have done with your predecessors.
Finally, we note that several of our terms are nearing expiration. We encourage EPA to have new members or renewals of current members of the committee (as appropriate) in place by the time of our next meeting, in October.
Very truly yours,
John H. Knox
Chair, National Advisory Committee
cc: Judith Ayres, Assistant Administrator for International Affairs
Jerry Clifford, Deputy Assistant Administrator for International Affairs
Stephen Mahfood, Chair, U.S. Governmental Advisory Committee
Arturo Duran, Chair, Joint Public Advisory Committee
Jean Perras, Chair, Canadian National Advisory Committee
Members of the U.S. National Advisory Committee:
Dennis Aigner |
Aldo Morell |
National Advisory Committee
to the U.S. Representative to the
Commission for Environmental Cooperation
Advice 2005-1 (May 20, 2005):
Facilitating Private Sector Contributions to Capacity-Building
in Mexico
On Wednesday, April 27, the NAC and GAC hosted a Business Roundtable on Environmental Capacity, at which the committees heard from a large number of multinational companies (including Abbott Labs, Kodak, DuPont, Motorola, Colgate-Palmolive, 3M, and Holcim), non-governmental organizations (including the U.S.-Mexico Chamber of Commerce, the World Environment Center, the U.S. Mexico Foundation for Science, Delphi, and the Global Environmental Management Initiative), and governmental entities (including the Mexican Regulatory Development Agency, U.S. AID, the World Bank, and the Organization of American States).
The chief messages that the NAC took from the Roundtable are that an enormous amount of effort is already taking place to build the capacity of the Mexican private and public sectors to protect and improve the environment, and that much of this effort is being led by larger multinational firms operating in Mexico. The question is how the U.S. government and the CEC can best help to encourage and facilitate these efforts.
We do not have the final answer to that question. Instead, we believe that EPA and the CEC should create a high-level forum, or a series of forums, through which those directly involved in these efforts can come together to discuss how to encourage this "race to the top." We believe that the focus of those forums should be, at least at first, on the supply chain for the large multinationals. Although improving regulatory capacity is necessary, a greater short-term impact on the Mexican environment could come from larger companies using their influence to pull up the standards of smaller ones with which they do business.
The CEC-sponsored forums could, for example, develop good principles for suppliers. Perhaps the CEC could develop a recognition or certificate for such suppliers, which would reward responsible behavior and help them to get business from the multinational companies. The conferences could also provide opportunities for those directly involved and for the CEC to find other ways for the CEC to be a catalyst in inventorying and disseminating information about best-practice examples of capacity-building. In this process, it is crucial for the CEC to include not only U.S. (and Canadian) multinationals, but also Mexican companies. Moreover, the CEC must take advantage of the many business groups that are already working in this area, such as the Global Environmental Management Initiative (GEMI), as well as Mexican business organizations, such as Concamin, Canacintra, Caintra, and Aniq.
We do not believe that the JPAC meeting on capacity-building scheduled for June, just before the Council session, is a good opportunity for the kind of brainstorming forums we are describing. Understandably, JPAC public meetings at Council sessions are not often focused or conducive to detailed discussions on a single topic. Instead, we believe that the Council should announce at its June session that the CEC will convene a series of such meetings. We understand that the CEC initiative to reinvigorate the Memorandum of Understanding between it and the three national business organizations will result in a formal signing of the MOU at the Council session. That would be an ideal opportunity to announce this new plan.
Finally, we note, as we have many times before, that the CEC is quite limited in what it can do with its scarce resources. Helping to catalyze and spread existing efforts further down the supply chain provides an invaluable opportunity for the CEC to leverage its scarce resources in a way that could have potentially immense benefits in Mexico.
Recommendations:
It is crucial that EPA follow up with the participants in the Roundtable. As an initial step, EPA should provide each of the participants, as well as officials at CEC, EPA, and other governmental agencies, the agenda of the Roundtable and the presentations made there. The agenda and presentations should be made available on disc and/or on-line, as well as in hard copy.
The U.S. government should work immediately with the other Parties and the Secretariat to convene high-level meetings with business representatives along the lines described above. The announcement of this initiative should be made at the June 2005 Council session, in connection with the signature of the MOU with the three national business associations.
National Advisory Committee
to the U.S. Representative to the
Commission for Environmental Cooperation
Advice 2005-2 (May 20, 2005):
Report of the Ten-Year Review and Assessment Committee
In 2004, the U.S. government and the NAC spent a great deal of time considering and commenting on the draft report prepared by the Ten-Year Review and Assessment Committee (TRAC). The TRAC issued its final report in June 2004. After providing a detailed assessment of the state of the CEC, the report gives fourteen general recommendations, some of which have subsidiary recommendations within them. While individual members of the NAC might have come to different conclusions on some issues, on the whole we believe that the TRAC report is a very valuable review of the CEC, and that all of its recommendations should be adopted without delay.
Given the amount of time and effort that went into the report, we were surprised to hear from an EPA official at the meeting that EPA had not decided whether to adopt each of the recommendations and was not even contemplating any procedure to decide whether to adopt the recommendations. We think this makes no sense. The end-product of the lengthy, expensive, detailed ten-year review should not be publication of the report. Rather, the report should be used to facilitate actual improvement of the CEC. For this to happen, the U.S. government (and the other governments) has to spend time reviewing the recommendations, deciding whether it agrees or disagrees with them, explaining why it rejects those with which it disagrees, and then working to implement those it accepts.
The final recommendation of the TRAC is that "the Council, with the executive director's assistance and JPAC's advice, report publicly on the implementation of these recommendations, including those which have been fully or partially implemented and those which have not, with the reasons, to the 2006 annual meeting of the Council." The U.S. government should not take the view that this recommendation means only that the decision as to which recommendations to adopt must be made by 2006. On the contrary, the TRAC recommends (and we fully agree) that the 2006 report should be on the implementation of the recommendations. In order to have as many of the recommendations as possible fully implemented by 2006, the Parties must decide immediately on whether and how to implement each of the recommendations. The June 2005 Council session would be an ideal opportunity for them to do so.
Recommendation: By the 2005 Council session, the U.S. government should publicly commit to adopting the TRAC recommendations and work with the other Parties and the Secretariat to implement those that have not yet been implemented. If the U.S. government decides to reject any of the recommendations (which the NAC does not support), it should explain its reasons publicly.
National Advisory Committee
to the U.S. Representative to the
Commission for Environmental Cooperation
Advice 2005-3 (May 20, 2005): The CEC Reporting Process
Reporting is one of the CEC's most important functions. The TRAC report recommends that "the CEC strengthen its role in producing objective reporting on the North American environment, and actively work to become the acknowledged North American center for information on key environment and sustainable development issues." The Council recognized the key importance of reporting by naming one of the Puebla pillars "Information for Decision-Making."
The NAC believes that this core function is in serious danger of becoming dysfunctional. At its meeting, it reviewed with U.S. government officials comments that the U.S. government recently provided on a report prepared for the CEC by independent academic experts. The comments went far beyond those to be expected as part of a peer-review process. Many of the comments seemed designed to ensure that nothing in the report could be construed in any way negative to the United States. The comments seemed to contemplate both that the U.S. government had the authority to withhold its approval of (or "clear") the report and that the report should state that it did not represent the views of the U.S. government.
The government officials did not attempt to defend all of the comments. Instead, they told the NAC that they believed that these over-intrusive comments resulted from two other problems: (a) the lack of clear understanding (within and, perhaps, outside the U.S. government) of the different types of CEC reports, and in particular, which reports were prepared independently and which implied some sort of government imprimatur; and (b) a lack of government pre-approval, or even knowledge, of the decision by the Secretariat to request or prepare certain reports. On the second factor, we are aware that the Secretariat believes that, at least in some cases, governmental officials were involved in the decision to request an outside report but failed to inform other officials within their own government of the decision. We take no position on who is more at fault here. Instead, we emphasize that it is the responsibility of both the Party and the Secretariat to work together to ensure that the right officials within a government are being informed in a timely manner of matters within their purview.
The NAC believes very strongly that these problems must be resolved immediately or the core reporting function of the CEC will become seriously damaged. To put the matter bluntly, independent experts, whose participation in the preparation of reports is necessary for the CEC to "strengthen its role in producing objective reporting," will not be willing to prepare reports for the CEC under these conditions. We therefore make the following recommendations with respect to the issues of labeling, authorization, government review, and peer review.
Recommendation on Labeling: The U.S. government should work with the other Parties and the Secretariat to ensure that the nature of each CEC report is clear. In general, reports should be classified as either (a) prepared by outside experts for the CEC; (b) independently prepared by the CEC Secretariat (such as Article 13 reports and Article 15 factual records); or (c) prepared by the CEC Secretariat in accordance with instructions from the Council (such as Article 12 annual reports). Other or more specific labels may also be appropriate. Reports should be labeled and described in ways that make their classification clear, and should be treated by reviewers accordingly. Moreover, authors of the reports should understand in advance which type of report they have been asked to prepare.
Recommendation on Authorization: The U.S. government should work with the other Parties and the Secretariat to ensure that the appropriate officials within each Party are properly informed of all requests for reports within their purview and, for matters within the scope of the work program for which their authorization is required, that the authorization of the appropriate officials is obtained before reports are requested or prepared by the Secretariat.
Recommendation on Government Review: With respect to draft reports prepared for the CEC by independent experts and reports independently prepared by the CEC Secretariat, the U.S. government should refrain from making comments other than those that are appropriate for peer-reviewed documents. In particular, the U.S. government should not make comments designed to avoid observations or recommendations because they are potentially embarrassing to the United States or because the U.S. government does not agree with them as a policy matter. In addition, U.S. government reviewers should clearly understand, and should make clear in their comments, that such reports do not require clearance from the U.S. government or the other Parties.
Recommendation on Peer Review: The CEC should develop and adopt as soon as practicable a set of peer review guidelines akin to those followed by the U.S. National Academy of Sciences and endorsed by the U.S. Office of Management and Budget for use by federal agencies in its bulletin of December 16, 2004 entitled "Final Information Quality Bulletin for Peer Review."
National Advisory Committee
to the U.S. Representative to the
Commission for Environmental Cooperation
Advice 2005-4 (May 20, 2005): EPA Attention to CEC Matters
The National Advisory Committee is very concerned about the apparent lack of attention EPA is providing to CEC matters, in two respects: (1) lack of coordinated attention to the CEC generally; and (2) lack of attention to the most recent meeting of the National and Governmental Advisory Committees.
1. Insufficient coordinated attention to the CEC.
The NAC is concerned that EPA is paying insufficient attention to the CEC generally. Only two months away from the annual Council meeting, and from the U.S. representative's taking the chair of the Council for the next year, the U.S. government seems to lack an integrated approach to the CEC. In particular, the three "pillars" outlined in the Puebla Declaration are being addressed separately within the U.S. government, in ways that seem to lack coordination and interconnectivity.
For example, only the trade/environment representatives could point to criteria that they were using to assess potential projects. Criteria for the other pillars, which had been in the process of development together, seemed to have fallen behind, and apart from, the trade/environment criteria. Another example is the new Security and Prosperity Partnership of North America, announced by President Bush, President Fox, and Prime Minister Martin in March of this year. EPA officials informed us that this initiative will apparently not affect their plans for the CEC, or vice versa. But we do not see how this initiative, the "Prosperity" component of which seems to focus largely on trade and which includes a working group on the environment, cannot have some effect on, or be affected by, the regional organization the three parties designed to address trade-and-environment issues. We are concerned that the chief reason that the Partnership is being considered separately from the CEC may be simply that the lead agencies are different.
Our impression is that the lack of apparent coordination of the U.S. approach to the CEC may to some degree be the result of insufficient staff. Adequate staffing should be available within OIA to ensure that these functions are well supported. More fundamentally, attention to CEC issues requires integration with other EPA offices and federal agencies. OIA should treat this as a systemic issue that needs a systemic response. The Puebla pillars should not be regarded as silos, and the CEC as a whole should not be addressed in isolation from related initiatives such as the Security and Prosperity Partnership.
We recognize that the U.S. government is trying to reorient the entire CEC program, and we have supported those efforts. Taking the chair of the CEC Council gives it an enormous opportunity to further its agenda. But to do that successfully, the various components of the U.S. government must be working together. If staffing is a problem, we strongly encourage EPA to find creative ways to enlist additional staff for these issues in the short to medium term. EPA has expressed an interest in moving quickly once it takes over the chair of the CEC Council. The NAC is concerned that EPA appears to have a great deal of work to do to organize itself and coordinate the other federal agencies if it is to have any chance of achieving its ambitious agenda.
Recommendation: Using the Office of International Affairs, EPA should make greater efforts to integrate its approach to the CEC internally and with other U.S. agencies, in the very short term, to take advantage of its approaching year as chair.
2. Lack of attention to the NAC/GAC meeting.
The National Advisory Committee was extremely disappointed by the attention EPA policy offices paid to the NAC/GAC meeting. The lack of attention had two aspects. First, the NAC was provided no documents to review in advance of the meeting, either in draft or final form. We believe that the source of this problem was not a failure on the part of the Office of Cooperative Environmental Management to pass these documents to us, but rather a failure on the part of the Office of International Affairs to provide them. We want to remind EPA that our ability to provide useful, timely advice is dependent on its providing us information about which topics and issues our advice would be useful.
Second, for the first time that NAC members can remember, no one from the Office of International Affairs was even present during most of the NAC discussion. This absence was particularly evident, surprising, and frustrating during the Wednesday roundtable. In response to a request from OIA, private-sector representatives on the NAC spent a great deal of time preparing for the roundtable, including using their personal contacts to persuade high-ranking executives of companies doing business in Mexico to attend. They discovered only on the day of the meeting that no one from OIA would be present for any part of the presentations and discussion. (In contrast, the Executive Director and Director of Programs of the CEC Secretariat were present for the entire day.)
This failure indicates a disregard for what was said at the meeting and a lack of respect for those who took the time to prepare for and to attend the meeting. As a result, it will be difficult or impossible to convince those participants to contribute their time and attention for another such meeting.
The NAC wants to clear that it appreciates the effort made by the Office of Cooperative Environmental Management to prepare for and to staff the meeting. The above criticisms are not directed against OCEM officials.
Recommendation: The EPA Office of International Activities should renew its commitment to the NAC and GAC, including through providing information and documents before the meetings and sending adequate representation to the meetings themselves.