Commission for Environmental Cooperation

The Commission for Environmental Cooperation (CEC) is a trilateral international commission established by Canada, Mexico, and the United States in 1994 to address trans-boundary environmental concerns in North America. The original impetus behind the CEC was the perception of inadequacies in the environmental provisions of the North American Free Trade Agreement (NAFTA). A supplementary treaty, the North American Agreement for Environmental Cooperation (NAAEC) was negotiated to remedy these inadequacies, and it is from the NAAEC that the CEC derives its formal mandate.

The general goals set forth by the NAAEC are to protect, conserve, and improve the environment for the benefit of present and future generations . More specifically, the three NAFTA signatories agreed to a core set of actions and principles with regard to environmental concerns related to trade policy. These actions and principles include regular reporting on the state of the environment, effective and consistent enforcement of environmental law , facilitation of access to environmental information, the ongoing improvement of environmental laws and regulations, and promotion of the use of tax incentives and various other economic instruments to achieve environmental goals.

The CEC is to function as a forum for the NAFTA partners to identify and articulate mutual interests and priorities, and to develop strategies for the pursuit or implementation of these interests and priorities. The NAAEC further specifies the following priorities: identification of appropriate limits for specific pollutants; the protection of endangered and threatened species ; the protection and conservation of wild flora and fauna and their habitat ; the development of new approaches to environmental compliance and enforcement; strategies for addressing environmental issues that have impacts across international borders; the support of training and education in the environmental field; and promotion of greater public awareness of North American environmental issues. Central to the CEC's mission is the facilitation of dialogue among the NAFTA partners in order to prevent and solve trade and environmental disputes.

The governing body of the CEC is a Council of Ministers consisting of the environment ministers (or equivalent) from each country. The executive arm of the Commission is a Secretariat located in Montreal, consisting of a staff of about 30 members and headed by an Executive Director. The staff is drawn from all three countries and provides technical and administrative support to the Council of Ministers and to committees and groups established by the Council.

Technical and scientific advice is also provided to the Council of Ministers by a Joint Public Advisory Committee consisting of five members from each country appointed by the respective governments. This Committee may, on its own initiative, advise the Council on any matter within the scope of the NAAEC, including the annual program and budget. As a reflection of the CEC's professed commitment to participation by citizens throughout North America, the Committee is intended to represent a wide cross-section of knowledgeable citizens committed to environmental concerns who are willing to volunteer their time in the public interest. The CEC also accepts direct input from any citizen or non-governmental organization who believes that a NAFTA partner is failing to enforce effectively an existing environmental law.

The NAAEC also contains provisions for dispute resolution in cases in which a NAFTA signatory alleges that another NAFTA partner has persistently failed to enforce an existing environmental law, causing specific environmental damage or trade disadvantages to the claimant. These provisions may be invoked when a lack of effective enforcement materially affects goods or services being traded between the NAFTA countries. If the dispute is not resolved through bilateral consultation, the complaining party may then request a special session of the CEC's Council of Ministers. If the Council is likewise unable to resolve the dispute, provisions exist for choosing an Arbitral Panel. Failure to implement the recommendations of the Arbitral Panel subjects the offending party to a monetary enforcement assessment. Failure to pay this assessment may lead to suspension of free trade benefits.

The Council is also instructed to develop recommendations on access to courts (and rights and remedies before courts and administrative agencies) for persons in one country's territory who have suffered or are likely to suffer damage or injury caused by pollution originating in the territory of one of the other countries. In 2002, the Council published a five year study which stated that 3.4 million tonnes of toxins were produced in North America.

The CEC has been subject to some of the same criticisms leveled at the environmental provisions of NAFTA, particularly that it serves as a kind of environmental window-dressing for a trade agreement that is generally harmful to the environment. The CEC's mandate for conflict resolution is primarily oriented towards consistent enforcement of existing environmental law in the three countries. This law is by no means uniform. By upholding the principles of free trade, and providing penalties for infringements of free trade, NAFTA establishes an environment in which private companies have an economic incentive, other considerations being equal, to locate production where environmental laws are weakest and the costs of compliance are therefore lowest. Countries with stricter environmental regulations face penalties for attempting to protect domestic industries from such comparative disadvantages.

[Lawrence J. Biskowski ]

RESOURCES

OTHER

Kass, S. L. "First Cases Before New NAFTA Forum Suggest Its Power Will Increase." National Law Journal 18/41 (10 June 1996): C5, C7.

ORGANIZATIONS

Commission for Environmental Cooperation, 393, rue St-Jacques Ouest, Bureau 200, Montréal, QuébecCanada H2Y 1N9 (514) 350-4300, Fax: (514) 350-4314, Email: [email protected], <http://www.cec.org>