May 2004: The Commission for Environmental Cooperation

NAFTA’s environmental watchdog might actually work--if given the chance
May 1, 2004

Public participation, transparency, and protecting the environment are terms not usually associated with free trade agreements. Yet, when Canada, the United S.tates and Mexico signed NAFTA a decade ago, they also created an environmental watchdog called the Commission for Environmental Cooperation (CEC) with exactly these features. The CEC included a public complaint process that could lead to investigations against any NAFTA country that was failing to enforce its environmental laws. Unfortunately, the environment ministers of the three countries have blatantly used their authority to hinder or halt investigations recommended by their own experts.

The CEC was Bill Clinton’s answer to environmentalists’ opposition to NAFTA in the run-up to the 1994 U.S. presidential elections. Environmental groups charged that NAFTA would draw business south to so-called pollution havens. Mexico’s environmental laws were not weak, but studies showed they were not enforced. The public complaint process of the CEC, by exposing non-enforcement of environmental laws, was intended to prevent governments from attracting business at the expense of the environment. Legal and environmental experts with the CEC Secretariat, based in Montreal, were tasked with carefully reviewing complaints and making recommendations to the environment ministers, including Canada’s David Anderson.

Surprisingly, once the CEC was up and running, it was not only Mexico that faced accusations of non-enforcement of environmental laws. Citizen complaints, including complaints about widespread non-enforcement, were also filed against the Canadian and U.S. governments. But many of these allegations never came to full investigations despite the clear recommendations of the CEC experts in the Secretariat. In their review process, the experts rejected as many complaints as they accepted, which should have meant that the environment ministers would respect the recommendations they did make. Not true. In a number of important cases, the environment ministers have so “scoped” or limited investigations that the ultimate probe amounted to a rejection of the public complaint.

The recent outcome of a citizen petition about migratory birds, filed by prominent citizen groups from Canada, the U.S., and Mexico, is a good example of the problem. The groups alleged that the U.S. government, specifically its Fish and Wildlife Service, was not enforcing a law prohibiting the killing of migratory birds or the destruction of their nests. The groups provided a detailed petition, including evidence of a nation-wide government policy to turn a blind eye to the transgressions by logging companies of the migratory bird protection law. The expert body reviewed the petition and the U.S. government response before recommending, with meticulous and published reasons, a full investigation. Citizen participation. Transparency. Protecting the environment.

But the story did not end there. The environment ministers, after behind-the-scenes meetings, ignored the recommendation and instead ordered an investigation of two isolated, site-specific examples involving destroyed nests in a few hundred trees that the groups had mentioned in passing. In other words, the ministers ordered an investigation that no one asked for, no one cared about, and no one benefited from. The ministers provided no rationale for ignoring their experts, except their view that the complaint process was intended for specific instances of non-enforcement. They certainly did not explain how ignoring widespread non-enforcement would prevent the creation of pollution havens, exactly what the CEC was set up to prevent. Secrecy. Lack of accountability. Sacrificing the environment.

Citizen groups that have filed complaints of widespread non-enforcement of environmental laws are only ending up with good reason for cynicism about the CEC to show for their effort and expense. For them, it must feel like blowing the whistle on high-level corporate corruption only to have the company receptionist investigated.

But, if the environment ministers think they are outwitting the public by thwarting investigations, they are mistaken.

First, the ministers’ conduct in ordering “scoped” investigations--ones limited to isolated examples--may very well be contrary to the NAFTA side agreement that created the CEC. The ministers have the authority to accept or reject the recommendations of their professionals, but they cannot pretend to be accepting those recommendations by ordering (at significant taxpayer cost) “scoped” or limited investigations that no one, except perhaps the ministers or the accused government, wants.

Second, as the CEC’s own advisory body recently pointed out, the ministers’ conduct of ignoring the recommendations of its expert body is undermining the credibility of the CEC itself. Indeed, they pointed to the growing perception of a conflict of interest for the environment ministers because they are at the same time nixing investigations and serving members of the governments that benefit. Of course, every accused would love to be part of the jury deciding his or her fate. The practice of the environment ministers means that the CEC operates with the accused running the jury.

Finally, by undermining the CEC public complaint process, the Council is simply arming free trade opponents who allege that NAFTA, and the free trade agenda in general, sacrifices the environment. The CEC gave free trade proponents, including North American governments, an opportunity to win over moderates by proving that the free trade agenda and environmental protection can be pursued at the same time. The environment ministers are squandering that opportunity.

The CEC can still fulfill its promise of being an innovative and effective environmental agency that addresses the negative consequences of trade agreements on our environment. To do so, however, the environment ministers must respect the independence of the CEC expert body. North American political leaders who stop or hinder full investigations for fear of what might be uncovered might benefit in the short run, but the price they pay in the long run is continuing public distrust of, and opposition to, the free trade agenda.


(Albert Koehl is a lawyer with the Sierra Legal Defence Fund, a non-profit environmental law group that strives to enforce and strengthen laws that protect Canada’s air, water, and land. Sierra Legal also represents eight North American groups that have filed a complaint against Canada for failing to enforce its Migratory Birds Convention Act.)