In early 2011, Professor Stephen Zamora, University of Houston Law Center Professor and NACLE Administrative Director, and Professor Armand de Mestral, McGill University Law faculty member, initiated a collaborative effort between NACLE and the CEC to research and make change recommendations for NAFTA’s considerably criticized “citizen submissions process,” a unique whistleblower mechanism whereby any person or NGO can submit a claim that an environmental law is being enforced ineffectively. Criticisms included:
• The process had become very slow, often taking years to complete;
• The process increasingly involved narrowing of the issues submitted by citizens such that submitters complained that the key issues about which they complained were eliminated from consideration;
• The process was difficult to understand;
• The process did not live up to modern concepts of public engagement;
• The process is costly since a lawyer is almost always needed to achieve a successful outcome; and
• The process had little impact even when completed.
Student research assistants from several NACLE member schools participated, and the results generated real change in the submissions process. Since then, the NACLE-CEC collaboration has continued to evolve.
About CEC and NAFTA
At the time NAFTA was being debated, significant public concerns were raised about the possibility that NAFTA would drive countries to not enforce their environmental and labor laws in an effort to be more competitive in the NAFTA market. Rather than try to further amend NAFTA which might have been politically infeasible, the countries agreed to two side agreements: one focusing on labor issues and the other on environment.
The Research Project
After discussing these issues at a meeting in Montreal in summer 2011, NACLE faculty decided to launch a research project under which students from several NACLE schools would investigate issues with the submissions process and make recommendations for change. Beginning in the fall of 2011 and continuing over the next several months, law students from McGill University, George Washington University, University of Houston, and the University of Ottawa completed in-depth research papers focusing on the issues with the Submissions process.
At the same time, the CEC’s Joint Public Advisory Committee (JPAC), a citizen’s advisory group, was conducting a survey of those who had participated in the submissions process to determine what issues they saw with the process. The same set of issues surfaced in the survey. In November 2011, JPAC held a meeting in El Paso, Texas, focusing on the submissions process. Associate Dean Lee Paddock of George Washington University attended the meeting to discuss the NACLE research and to hear about the JPAC concerns with the process.
The student research papers, four by McGill students, and one each from Ottawa, George Washington and Houston, were completed in late 2011 and early 2012. The three papers focused on several key aspects of the citizen submissions process, including:
• a close review of the delays, transparency and access to information that applicants face when they invoke the Submission on Enforcement Matters (SEM) process;
• an examination of the legality and policy consequences of the CEC’s increasing use of scoping decisions to truncate the issues that the SEM Unit can review from applications; and
• a survey of organizations and individuals that have used the SEM process to identify and analyze the shortfalls and opportunities for improvement that they identified from their experiences.
The papers made a series of recommendations for reforms of the submissions process. At the same time, JPAC issued its recommended reforms which proved to be quite similar to the recommendations from the NACLE research. In response, particularly to the JPAC recommendations, the CEC adopted reforms to the submissions process, but not to the extent recommended either by JPAC or the NACLE research.
The Human Rights Angle
In November 2012, Professor Tracy Hester from the University of Houston Law Center and Professor Jessica Wentz from George Washington University participated in a panel in Mexico City as part of a Human Rights and Access to Environmental Justice conference sponsored by Mexico’s National Human Rights Commission in collaboration with the CEC. Professor Hester and Professor Wentz discussed the effectiveness of the SEM process, its effectiveness in protecting human rights, and the legality of recent CEC practices that arguably undermined or impeded the SEM process. The panel also reviewed and assessed the likely effects of recent revisions that the CEC proposed to the SEM process. This presentation concluded the first phase of the NACLE/CEC work.
NACLE’s collaboration with the CEC has proven valuable for the NACLE law professors and students who have participated, and we hope that the collaborative efforts will continue to flourish. To this end, NACLE has recently discussed with CEC follow up work that would focus on analyzing the impact of the submissions process reforms and would add a new focus on cross border energy production issues. NACLE schools will begin a new student research project based on the Montreal discussions exploring these issues et to take place soon.