CEC Workshop 2013

NACLE-CEC Joint Workshop:  Sustainable Development, the Submissions Process and Cross Boundary Energy Issues

Session One

Concise Summary

On June 13, 2013, the North American Consortium on Legal Education (NACLE) held a workshop at the Secretariat of the Commission for Environmental Cooperation, Montreal, Canada.  The workshop addressed the CEC submissions process and the impact of its recent reforms.  The NACLE workshop also focused on the growing set of legal issues related to cross-border energy development and distribution.

List of Registered Participants

Betsy Baker, Vermont Law School (online)
Laurie Beyranevand, Center for Agriculture and Food Systems (online)
Julio César Cruz Chavira, Derecho Technológico de Monterrey
Giselle Davidian, McGill University
Armand de Mestral, McGill University
Stephen Freeman, George Washington University
Geoffrey Garver, McGill University
Courtney Hamara, McGill University
Tracy Hester, University of Houston Law Center
Jorge Jiménez-Arana, López-Velarde, Heftye y Soria (online)
Sébastien Jodion-Pilon, Yale University
Brant Johnson, TransCanada
Avidan Kent, Cambridge Universit
Hoi Kong, McGill University
Katja Opalka, McGill University
Freedom-Kai Phillips, CISDL
Rogelio López-Velarde, López-Velarde, Heftye y Soria
Carmen Montserrat Rovalo Otero, Universidad Nacional Autónoma de México
Raúl Pacheco-Vega, Centro de Investigación y Docencia Económicas (online)
Nicole Schabus, Thompson Rivers University
Elizabeth Trujillo, Suffolk University Law School
Kailey-Lynn Thériault, Suffolk University Law School
Pamela Veslind, University of Arkansas Law School
Leslie Welts, Vermont Department of Environmental Conservation
Jessica Wentz, George Washington University
Lawrence Kinvin Wroth, Vermont Law School
Hugh Benevides, Commission for Environmental Cooperation
Doris Millan, Commission for Environmental Cooperation
Dane Ratliff, Commission for Environmental Cooperation
Irasema Coronado, Commission for Environmental Cooperation
Paolo Solano, Commission for Environmental Cooperation
Sarah Munsch, McGill University
Eunice Herrera-Cuadra, Universidad Nacional Autónoma de México

Agenda

Panel 1: The SEM Reforms

Moderator: Tracy Hester, University of Houston Law Center

Panelists:
– Tracy Hester: Summary of student research on the SEM process
– Paolo Solano, CEC Secretarian, Description of the reforms and status of implementation
– Geoff Garver, JPAC Member, Concerns about the SEM process and views on the SEM reforms

Discussion: Identification of research issues related to the SEM Reforms and other issues related to citizen involvement that may warrant NACLE-led research.

Panel 2: Cross-Border Energy Issues

Moderator: Hoi Kong, McGill University Faculty of Law

Panelists:
– Hugh Benevides, CEC Secretariat, Energy issues raised in the SEM process
– Tracy Hester, Cross-border energy resources
– Jessica Wentz, George Washington University Law School, Hydraulic fracturing: U.S. Regulation and Transnational Issues
– Rogelio López-Velarde and Jorge Jiménez-Arana, Lopez-Velarde, Heftye & Soria, US-Mexico cross-border energy issues
– Brant Johnson, TransCanada Corporation, Keystone XL Pipeline

Discussion: Dialogue on a NACLE research agenda.

Full Summary

Opening Remarks

Irasema Coronado, the Executive Direction for the Commission for Environmental Cooperation (CEC), commenced the Workshop, discussing her goals for her 3-year mandate with the CEC and her passion for environmental activism. She noted the potential value of NAAEC’s citizen submission process as a mechanism through which communities could have their environmental concerns addressed without legal or monetary assistance. She also stated that the CEC Secretariat would remain supportive of independent research by NACLE and other universities to support high-quality academic work on North American environmental issues.

Dane Ratliff, the Director of the Submissions on Enforcement Matters (SEM) Unit, also provided some introductory remarks.  He noted that the CEC appreciated the opportunity to work with NACLE and to have North American universities work on an objective assessment of the SEM process.  He identified three key issues regarding the SEM process: (i) the limitation of scope of factual records; (ii) the definition of environmental law, and Secretariat’s role in determining what environmental law is; and (iii) the non-adversarial nature of the SEM process which should be aimed at facilitating access to information and transparency.

Professor Hoi Kong (McGill University) and Professor Tracy Hester (University of Houston) concluded the introductions and outlined the agenda for the day.

Panel 1: Reforms to the Submissions on Enforcement Matters (SEM) Process

Tracy Hester, Summary of Student Research on the SEM Process

Professor Tracy Hester (University of Houston) commenced the panel by providing an overview of some of the issues identified in NACLE’s student research on the SEM process. He began with a concise definition of the SEM process and noted that the key outcome of this process is the production of information. He then highlighted three key concerns about the process identified by NACLE: (1) delay, (2) fairness, and (3) funding.  In particular, fairness is a fundamental concern as the NAAEC Parties are, in effect, being asked to render judgment on their own actions. Professor Hester noted that the “scoping” issue relates to concerns about fairness, and that one submission was actually withdrawn due to the significant narrowing of issues raised in the original submission, as well as material delays in the process.

Due to significant concerns about the SEM process, the Joint Public Advisory Committee (JPAC) undertook an independent review of the process by holding public hearings and identifying key problems. NACLE members had an opportunity to participate in at least one of these meetings and to voice the concerns they had identified in their research. This JPAC review process culminated in the 2012 revisions to the SEM Guidelines.

Finally, Professor Hester identified two key issues for NACLE going forward: (1) to what extent have modifications to the guidelines addressed prior concerns? (2) to what extent to we have NACLE members interested in continuing research on these issues?

Paolo Solano, Description of SEM Reforms and Status of Implementation

Paolo Solano, Legal Officer for the SEM unit, provided a succinct presentation on the 2012 revisions to the SEM Guidelines and the implementation of those changes.

Solano began his presentation by noting that access to information is essential to the success of the SEM process. As such, it is highly problematic that the NAAEC Parties do not respond to informational requests in a timely fashion, and thus the Secretariat has to use domestic avenues to obtain information. He also cited the description of the SEM process from the Revised SEM Guidelines (2012), which recognize that this process is a “unique and empowering tool that facilitates public participation, supports government transparency, and promotes the effective enforcement of environmental law in North America.”

Solano then outlined the procedures for SEM submissions, and the 2012 revisions to the SEM guidelines, noting in particular the new timelines for submissions. Specifically, the Secretariat must now determine whether submission meets basic criteria within 30 working days, and whether the submission merits a Party response within 30 working days. The Party must then respond to the submission (normally within 30 working days), and upon receiving that response, the Secretariat must make a determination as to whether to recommend a factual record within 120 working days. This portion of the process should thus take no longer than 1 year.

If the Secretariat decides to recommend a factual record, the Parties must then instruct the Secretariat to prepare the record within 60 working days. Following that instruction, the Secretariat is required to prepare a draft factual record within 180 working days. Parties may comment on the draft within 45 working days, and the Secretariat should prepare the final factual record within 45 working days after the comment period. Finally, the Council must vote on whether to publish the final factual record within 60 working days after it is finalized. Thus, under the new guidelines, the SEM process should conclude within 2.5 years of the submission being filed.

Solano noted that meeting the new timelines—in particular, the 180 days to prepare a draft factual record—can be very challenging if the Party does not provide complete information in a relatively quick manner.

Nonetheless, Solano was optimistic about the revised timelines and noted that these are essential for moving the submissions process forward in a predictable manner. In particular, he cited the relatively quick timeframe in which the Secretariat had reviewed two recent submissions (St Lawrence Wind Farms and Tourist Development in the Gulf of California), and noted that the Secretariat is also applying the new timelines to subsequent stages of submissions made prior to the publication of the revised guidelines.

Solano also noted that the CEC Secretariat has taken additional measures to improve the SEM Process. First, the Secretariat has attempted to improve public awareness about the SEM process by providing additional informational resources on the CEC website. Second, the Secretariat has attempted to make clear to all involved parties that this is not litigation, but rather a non-adversarial informational tool used to promote transparency, accountability and cooperation.  Third, the Secretariat will facilitate access to the SEM process through an electronic submissions tool. And finally, the Secretariat will add a feature to the website which allows the public to track its progress for each submission.

Geoff Garver, Concerns about the SEM process and views on the SEM reforms

Geoff Garver (McGill University, JPAC member) began his presentation by discussing the history of JPAC’s involvement in the SEM process. He noted that JPAC had expressed concerns about the process as far back as 2000 (along with the public), and that the Council reacted to those concerns by adopting Resolution 00-09. This resolution tasked JPAC with reporting on the “lessons learned” from the SEM process (so as to improve the process), and also to bring to the Council’s attention key issues that any Party, the Secretariat and/or members for the public may raise concerning the implementation and further elaboration of the citizen submission process. This Resolution, adopted in 2000, established an important oversight role for JPAC going forward.

Garver then proceeded to discuss the central concern about the SEM process—the fact that the Parties wear “dual hats” during the process, acting both as the targets of submissions and, as Council members, the ultimate overseers of the process. Garver noted that some see this as a built-in “conflict of interest,” which encompasses subsidiary issues such as scoping and the lack of follow-up to factual records.

Garver reflected on his own experience as director of the SEM unit from 2000 to 2007. During his time as director, he learned of certain instances of “horse trading” between parties with respect to their votes. He also found that delays—in particular, delays in the voting on whether to authorize development of factual records—had become egregious. Finally, he noted limits that the Council imposed on the scope of factual records were also problematic, insofar as they unduly narrowed the factual record for certain submissions. As an example, he discussed the Pulp and Paper factual record, which in most cases was limited in scope to the year 2000 because Canada felt it was inappropriate to address what happened after the alleged violations and whether Canada’s reaction was effective. He noted that the Pulp and Paper submission was filed in 2002 and took five years from the date of submission to the date when publication was approved (with the vote on publication taking 7 months instead of the normal 2 months called for in the NAAEC).  Finally, Garver expressed concerns about the high burden that the Council imposes on submitters in order to meet submission requirements, citing Ontario Logging as an example.

Garver then discussed JPAC’s recent activity and the events that led to the 2012 revision of the SEM Guidelines. During the 2010 Council session, JPAC voiced serious concerns over delays. By then, several votes on authorization of factual records had been pending for over two years (later reaching up to five years in some cases), and there was a worsening record on votes for publication.  Taking these concerns into account, the CEC Council initiated a process to modernize the SEM process at the 2011 Council Session, including the appointment of a SEM Modernization Task Force to update the SEM guidelines.  In parallel with this effort, JPAC conducted a survey of all submitters to date, to assess their experience with the process. They discussed the results of this survey at the 2011 JPAC meeting in El Paso, and also heard presentations from three submitters (including Eco Justice, who had withdrawn its Species at Risk submission in January 2011). The key concerns from the survey included: (1) delays in the process, (2) the fact that results were not effective enough to justify participation in the process, and (3) the lack of true independence for the Secretariat and the “conflict of interest” discussed above. Overall, the survey results indicated that efforts would be needed to “restore public confidence in the SEM process.”

Based on these considerations, JPAC proposed specific modifications to the SEM guidelines, some of which were approved by the Council —notably, those regarding timeliness of the process. Although these revisions represented an important step forward, Garver noted that certain issues had not been adequately addressed (e.g., the conflict of interest for the Parties), and in some respects, the final Guidelines reflected a continuation of efforts to resist transparency and favor the interests of Parties (e.g., guidelines relating to “pending judicial proceedings” and the definition of “environmental law”). Indeed, some the new Guidelines appeared to further limit the independence of the Secretariat at critical junctures.

Garver concluded by noting that the revision process was very positive in that the SEM Modernization Task Force engaged early and often with the JPAC and the Secretariat, and the best change was the new timelines for action (although these have not yet been tested in the most difficult areas: the preparation of factual records and the votes on factual record recommendations). The biggest disappointment was the failure to address the “conflict of interest” or “dual hats” issue. He also noted concern about the role of the SEM Task Force, which has the potential to aggravate the conflict of interest concerns. Finally, Garver noted that the Secretariat’s reliance on FOIA and analogous statutes in Canada and Mexico is especially disconcerting given information-gathering provisions in the NAAEC, and may create a barrier to the Secretariat’s ability to comply with timelines.

Discussion Session for Panel 1

Q – Betsy Baker: How constrained is the Secretariat in its ability to use information from other sources?

A – Paolo Solano: The Secretariat has broad discretion in this regard, but the primary limitation is the scope of the issue as defined by the Council, which can prohibit the Secretariat from looking at particular issues, even if information is available.

A – Dane Ratliff: Article 15(4) specifies that the Secretariat “shall” consider the information submitted by the Parties, and that it “may” consider any relevant technical or scientific information that is publicly available. However, the Parties have questioned some of the information evaluated by the Secretariat and tried to limit the use of this information in their comments to the draft record which, unfortunately in some cases are not public.

A – Paolo Solano: Previously, the Secretariat could append comments to the draft factual record as part of the final factual record, but in accordance with the new Guidelines, the Party must inform the Secretariat as to whether it wishes to make its comments public. Absent approval, the Secretariat may not include this information in the factual record.

Q – Elizabeth Trujillo: Requested more details on results of JPAC survey, and also asked if there has been much discussion as to how the submitters can play a continuing role (if any) after they make their submission?

A – Geoff Garver: The main theme of the survey was “deep concern” about the process. More details about the specific survey responses are available on the JPAC website.

A – Dane Ratliff:  There is a second opportunity for submitter participation if the submission reaches the factual record stage, at which point the Secretariat may request information from the submitters. However, that information must be within the scope of the assertions already made—the submitter cannot raise new issues. Overall, however, the lack of opportunities for continued submitter participation throughout the process is problematic from a due process perspective, especially when the scope of the original submission is subsequently narrowed or expanded upon by the challenged Party. In fact, the Council’s expansion of the scope of a factual record can be especially challenging for the Secretariat, since matters that were not at issue for the submitter may be introduced by the Party as relevant to the factual record (e.g., Council Resolution 06-07 on Quebec Automobiles submission and Council Resolution 12-04 on Hermosillo IIsubmission)

A – Paolo Solano: [With respect to the Mexican submission that Dane discussed] – There were Mexican standards that were not mentioned in the Hermosillo II submission, and yet the Council resolution mentions them as the environmental law in question. The submitter never had a chance to respond to this.

Q – Raúl Pachenco-Vega: Expressed concern about the burden on submitters, and the knowledge and resources required to make a submission.

A – Geoff Garver: Yes, these concerns were discussed in the JPAC survey.

A – Paolo Solano: Submitters need to know the process pretty well, and filing a submission typically requires the expertise of an environmental lawyer. Overall, it seems like the CEC needs to do a better job communicating several key aspects of the SEM process, so that the public understands: (1) what types of issues they can raise; (2) the nature of the process; and (3) the types of outcomes they can expect.

Concluding Remarks – Tracy Hester: Hester noted two key issues in his concluding remarks: (1) the reforms to the SEM guidelines did not cover all of the key concerns; and (2) the “dual hats” issue is at the heart of all these concerns. In terms of going forward with a research agenda for NACLE, there is a need to translate these concerns into specific, concrete legal issues.

Panel 2: Cross-Border Energy Issues

Hugh Benevides, Energy Issues Raised in the SEM Process

Hugh Benevides (Legal Officer, SEM Unit) described submissions that involve energy, dividing them into four categories: (1) upstream oil and gas; (2) midstream oil and gas; (3) conventional power generation, and (4) alternative power generation. He then identified the submissions that fall within those categories, explaining that the categories are conceptual only, and by no means official:

Upstream Oil and Gas: Alberta Tailing Ponds (Art. 14 determination re: revised submission forthcoming) (Submitters include 1 Canadian ENGO, 1 US ENGO, and 3 individual Canadians)

Midstream Oil and Gas: Wetlands in Manzanillo (2009) (Art. 15 decision forthcoming) (Submitters: 1 Mexican group and 1 individual Mexican)

Conventional Power Generation: (1) British Columbia Hydro (1997) (final factual record in 2000) (involved 4 Canadian groups and 3 US groups); (2) Coal-Fired Power Plants (2004) (at the draft factual record stage) (Submitters: 5 Canadian groups, 3 US groups and 1 Canada-US group); (3) Ontario Power Generation (2003) (Art. 15(1) notification prior to termination) (Submitters: 49 entities including 3 US State Attorneys-General, 6 Canadian groups, and many US groups).

Alternative Power Generation: St. Lawrence River Wind Farms (2012) (Art. 14(1) determination; still have a number of weeks for submitters to provide revised submission) (Submitters: 2 individual Canadians)

Benevides noted that because of the way Article 14 is drafted, the initial focus of analysis of SEM submissions is often not on energy, per se, but rather on the environmental law in question (in Canada, for example, the environmental law in question is often the federal Fisheries Act). For the purposes of future research, Benevides proffered the following questions to consider:

–       What are the prospects for submissions involving cross-border energy projects?

–       Which law(s) might these submissions involve?

–       What is the relationship between the SEM process and citizen involvement in decision-making about energy projects?

–       What is the relationship between the SEM process and the Objectives (Article 1) of the NAAEC?

Tracy Hester, Cross-border Energy Resources

Professor Hester provided an overview of cross-border energy resources, with a particular focus on fossil fuel reserves at the U.S.-Mexican and U.S.-Canadian border. Professor Hester warned that the Cross-Border Energy Issues (CBEI) discussion has not yet evolved as a NACLE project and that it is still under consideration

As to the background on CBEI, almost every presentation on energy now include a particular graphic on the energy discussion pops up the energy scenario in the US Hydrocarbon Production (natural gas production index and Crude oil production index over time), showing the US has become a major hydrocarbon producer, affecting other environmental resources and renewable energy sources.

Professor Hester outlined issues where we may be looking as potential CBEI for future discussion, including offshore oil and gas, cross-border shale fields, hydrologic power sources, coal fields and renewables. These issues are not new in US, Mexico and Canada, but have been scarcely researched. For instance, the Eagle Ford Shale in South Texas, one of the most productive hydrocarbon basins in the US, has been subject of study only in the United States. The US Energy Information Administration map shows that the basin suddenly stops at the border. Most geologists and experts consulted on the matter said that the most productive side is located south of the US border, in Mexico. As we develop these resources, for example by injecting solvents underground, we will soon see cross-border legal environmental issues emerge.

Professor Hester provided and example of an endangered species (a lizard) that lives in West Texas and New Mexico desert. This species triggered an enormous agency reconciliation process at the State and Federal government levels, due to the environmental impact to this particular species habitat. It will not be surprising to see environmental impacts to cross-border species related to CBEI.

Conservation of “dual-citizenship” bird species relying on water quantity and quality will have a significant impact in permit processing in the US.

The gulf of Mexico is a classical example of shared resources when exclusive economic zones meet between Mexico and the US. Two important ‘gap’ areas are the Western Gap and the Eastern Gap which as a result of earlier drawings of the economic zones, have raised important questions on jurisdiction. This led to the Gulf of Mexico Treaty for the Development of Hydrocarbons that now allows for joint exploration between Pemex and US petroleum companies, which will potentially be subject to opposition.

Another CBEI is hydropower in river systems, for example the Columbia River System in US/Canada border, which may be subject to the SEM Process. Coal resources in the US/Canada border, coal bed methane, hydrates, nuclear, are also topics where CBEI may be subject of further study.

On future directions, Professor Hester pointed to existing legal frameworks with two different approaches: direct regulation of trans-border resources with environmental provisions (e.g. TPP negotiations); and environmental agreements that indirectly affect CBEI (e.g. Migratory Bird Treaty).

Jessica Wentz, Hydraulic Fracturing: U.S. Regulation and Transboundary Issues

Professor Wentz reviewed some of the key environmental issues associated with hydraulic fracturing, including: (1) chemicals use and disclosure, (2) water contamination, (3) water consumption, (4) wastewater management, (5) site disturbances and habitat impacts, and (6) air emissions, including fugitive emissions as well as equipment emissions. She reviewed some of the U.S. regulatory responses to highlight some of the “best practices” in U.S. law.

Wentz then proceeded to review the trade implications associated with the dramatic increase in production from unconventional oil and gas resources, largely driven by advances in hydraulic fracturing and horizontal drilling. She also noted that there are significant shale gas and tight oil reserves located throughout North America, and that the future of U.S. exports to Canada and Mexico will depend on the extent to which these countries develop their resources.

Finally, Wentz highlighted a recent trade dispute under Chapter 11 of NAFTA, in which a U.S.-based firm (Lone Pine Resources, Inc.) has sued Quebec, alleging that the province’s fracking moratorium violates its investor rights insofar as it prevents the company from exploiting resources on land which it had leased for that purpose. Wentz concluded with several possible topics for future research:

  • Identification of North American “best practices” in fracking and unconventional resource development.
  • Transboundary environmental concerns (e.g., impact of fracking on transboundary aquifers?
  • Prospects for resource development in Canada, Mexico (what regulatory hurdles? environmental concerns?)
  • Do prohibitions on fracking actually violate Chapter 11 of NAFTA?

Rogelio López-Velarde and Jorge Jiménez-Arana, US Mexico cross-border energy issues  

López-Velarde and Jiménez-Arana identified the US-Mexico border as an “increasingly inter-linked area of economic and human activity, a ‘shared area’, which should also increasingly share protection standards.” In particular, they noted that energy projects are among those that have a more direct impact on both sides of the border. These include projects that impact the regional environment, as well as those with a direct impact on both sides of the border (e.g., air pollution, water supply, and wildlife impacts). They also noted a strong need for sustainable energy development in northern Mexico, since the construction of additional power capacity will be necessary to accommodate economic growth in the border region. They then proceeded to discuss the current energy market in Mexico, as well as Mexico’s new statutory commitment to: (1) increase its portion of energy generated from renewables to 25%, (2) cap fossil-fuel based production at 65%, and (3) cap coal-fired generation at 15%.

López-Velarde and Jiménez-Arana further noted that the border region has significant potential for renewable energy, including wind and photovoltaic projects, and that the Mexican government has recently enacted reforms that create incentives for renewable projects. To further highlight Mexico’s progress towards sustainable energy development in the border region, the presenters also identified a number of specific improvements to Mexico’s environmental laws. These included:

  • NOM-086 and NOM-085
  • Critical zones (include two border areas)
  • harmonization with international standards
  • Gas quality norm
  • Domestic gas – sulfur content issues
  • Imported gas (very present in border region – not critical)
  • Environmental Impact Assessments – standardization of remediation measures and development conditions

However, the presenters also noted that Mexico’s main hurdle is not a lack of written laws, but rather a lack of implementation and enforcement capacity. Fortunately, Mexico seems to have taken a significant step towards by adopting the General Law on Environmental Liability. Some of the key features of that law include:

  • Whole new system for remediation and compensation obligations upon environmental damage
  • Environmental liability independent from monetary damages
  • Obligation of restitution of baseline conditions
  • Joint and several liability of developers and contractors

The presenters also noted that Mexico’s ability to produce cleaner power would depend largely on the availability of natural gas. This gas will have to be imported from the U.S. or domestically produced from conventional and/or shale resources. The barriers to domestic production include: a lack of infrastructure for transporting gas to energy production facilities, and current legal restrictions which do not allow private actors to economically produce shale gas in Mexico. However, the presenters noted that upcoming reforms (Fall 20134) may open up the market to private players for production of shale gas.

Finally, the presenters noted some of the environmental issues associated with shale gas production, and made the following recommendations for Mexican policy:

  • Strict enforcement of environmental impact permits, conditions and remediation plans and measures
  • Specific water use regulations  should be implemented
  • National Hydrocarbons Commission (CNH) should develop hydraulic fracturing standards
  • If shale gas developed under concessions or risk contracts, special consideration on environmental performance and compliance should be given.

Brant Johnson, Keystone XL Pipeline

Brant Johnson (TransCanada Corporation) discussed some of the concerns associated with the Keystone XL pipeline. Johnson reviewed the location of pipelines in North America, and the location of the previous stages of the Keystone pipeline as well as the location and timing of the proposed extension. He also discussed the political and regulatory background for the proposed extension, and the dramatic growth in public opposition to the project.

He concluded his presentation by noting that the oil to be transported on the pipeline will probably reach U.S. markets one way or another, and that other transportation options—such as trains and barges—are less environmentally friendly due to their GHG emissions.

Discussion re: Future NACLE Research Agenda

Q – Geoff Garver: We’ve been discussing the specific, local environmental impacts associated with certain activities—like fracking—but we aren’t focusing on the big picture. We need to think about where our energy policy and energy development activities are headed in the long-term, and what effect our development trajectory will have on GHG emissions and climate change. The stakes are much higher than a piecemealed pipeline’s fugitive emissions. How can NACLE respond to these “big picture” concerns?

A – Katia Opalka, McGill University: When I was researching the factual record for Old Man River Logging, I concluded that it all came down to land use planning. In particular, land use planning offers two advantages: (1) it can be used as a precautionary approach (e.g., if we ban activities with unknown environmental impacts; and (2) it offers an upstream solution to environmental problems (e.g., if we ban coal mining, then coal cannot be used downstream). Unfortunately, land use planning has been displaced in many respects by environmental assessment.

A – Nicole Schabus, Thomas Rivers University: Another good approach is to bring indigenous people into the conversation. Indigenous people make good clients because, although they may lack financial resources, they often have standing and interest in natural resource disputes.

A – Jessica Wentz: I agree that we need to look at the big picture—e.g., my main concern about fracking is that it will create path dependence on oil and natural gas. We also need to think more critically about whether natural gas will help or hinder the deployment of renewable technologies.

Q – Betsy Burleson: I am curious to hear how the research agendas are formed, and would put in a bid on how we might do parallel studies of Arctic and GOM O&G development — perhaps harmonization of regulation between Canada, US and Mexico.  I would like to hear more about initiatives in that area, and make it trilateral rather than complementary bi-national approaches.

A – Geoff Garver: The last JPAC meeting focused on Energy, Trade and the Environment, and JPAC advised that the CEC should promote the development of a North American comprehensive national energy strategy. Developing such a strategy could actually provide more regulatory certainty for industry (e.g., by specifying the amount of fossil fuel that can be sustainability extracted) and also reduce conflict. NACLE might want to focus its legal research on this issue.

A – Kinvin Roth, Vermont Law School: If NACLE conducts research on land use strategies and coordination, it needs to think about two issues: political status and legitimacy (who gets to decide and why should we listen). Planning without affiliated regulation is an empty shell. A system has to integrate planning and the regulatory apparatus.

A – Brant Johnson: Industry actors like TransCanada would indeed be interested in a coordinated energy development platform and the regulatory certainty that it could provide. It is also important to think about how conflicting agendas (e.g., between industry and local communities) and how to deal with NIMBYism.

– Katia Opalka: I’m of two minds with respect to the land use issue and coordinating the energy development strategy. On the one hand, NIMBYism can be destructive (because people aren’t thinking about the big picture), and you cannot expect local people to make publically beneficial decisions about, e.g., where to site pipelines. But on the other hand local people should have some say in the decisions that impact their environment.

– Jessica Wentz: Pennsylvania’s preemption of local fracking regulations and bans provides an excellent example of the legal and social issues that can arise when a state government attempts to accommodate industry interests (and it’s understanding of the “public good”) by overriding local authority over land uses.

A – Hoi Kong: Perhaps we can fill the gap by producing research which can make choices and trade-offs clear to the public, and which incentivizes politicians to make the right decisions from a “big picture” perspective.

A – Elizabeth Trujillo: I come at this from a trade perspective and my research on Chapter 11 of NAFTA. We must also consider the intersection between municipal/local/federal law and international trade laws, and the environmental questions that are raised under Chapter 11 (e.g., disputes about local land use laws which prevent investors from exploring natural resources). Ultimately, we cannot address these issues (e.g., land use) without discussing economic development as well and consider ways that we can better align economic development with sustainable development.  We must keep in mind that reassessing the meaning of sustainable development in both environmental and economic terms is key to finding viable solutions.

A – Betsy Burleson: Combining trade dispute and large energy strategy ideas could make for an exciting research project on how to harmonize trade law and environmental law, in a manner so as to promote regulatory certainty for industry actors while also protecting the environment. There is certainly room for coordinated research projects on this topic.

A – Paolo Solano: The CEC promotes dialogue and participation from different groups, and the recent meeting in Calgary included NGOs, industry and governments.  Without trying to define research agendas, we can definitely hear different points of view.  Would be very informative to hear from industry side.  We need to know what’s going on first, and build information needed for debate.

A – Elizabeth Trujillo: As we all know, there’s a lot of research in international law which points out that it’s public and private; not just states any more.  We need participation from both; governance, in particular that of transnational concern, is a hybrid of both.  And we need procedural mechanisms where we can promote accountability without one voice counterbalancing the other.

A – Kailey Theriault, Suffolk Law: Research could also look to EU, and see what ideas they’ve adopted and what’s working (or not).  E.g., automotive industry has seen quite a bit of progress.

Geoff Garver: I want to emphasize the point that process issues are interesting and important, and CEC has interesting mechanisms to promote that.  We need to emphasize the multi-scale ecological challenges we face, and put them into context.

Suggestions for specific opportunities re: grants and research proposals:

Hoi Kong:  The Government of Canada has partnership grants. Universities can pair with industry and others to get input from stakeholders (incl. NGOs) to develop a proposal for these grants.

Geoff Garver: We should continue to pursue the opportunity to shape the CEC’s agenda.  The JPAC 20-year review is coming up, and CEC will release its next strategic plan (2015-2020) in 2014, and we need to coordinate with the CEC’s timeline for that plan.

There is currently a call for comments for the 20-year JPAC review, and comments must be submitted by July 31, 2013. One option would be to submit some proposals for collaborative research projects with the CEC through that process.

Katia Opalka: We should also reach out to the ABA SEER, CBA and Mexican Equivalent to assist with this process. The bar associations will be helpful for putting together a research agenda, and coordinating with them will also provide coherence and legitimacy.

Other participants: We should also involve industry representatives, indigenous groups, etc. in the process of scoping out research issues.

Action Items:

Two possible paths forward for additional funding / technical assistance: (1) submit research proposal to NACLE through the JPAC 20-year review comments process (due July 31, 2013); (2) submit proposal for Canadian Partnership grant. Alternatively, NACLE can continue to work with CEC as it has done previously.

Division of responsibilities:

–       Tracy Hester, Lee Paddock – can communicate with ABA SEER connections

–       Katia Opalka – can be in touch with BA, Canadian Council of Chief Executives

–       Freedom Kai-Phillips – will coordinate with CISDL

–       Elizabeth Trujillo – can coordinate with NAFTA / WTO representatives

–       Hoi Kong – can send info on partnership grant to everyone

–       Elizabeth Trujillo, Jessica Wentz, Paolo Solano – Suffolk Law, UNAM and GW Law can provide student research assistance going forward

NACLE is comprised of 13 participating law schools in Canada, Mexico, and the United States. The general purpose of NACLE is to promote and share understanding of the legal systems within North American countries. The withdrawn submission (SEM-06-005) alleged that the Canadian Government was failing to enforce the Species At Risk Act (SARA). The submission was withdrawn because: (1) The Council delayed materially in resolving to produce the factual record; (2) the Council decided to prepare a factual record only with respect to two of our allegations, and it limited the scope to eleven species (when the original submission identified violations with respect to at least 197 species).

Article 21(1)(a) gives the Secretariat the right to request information, but no timelines for when the Parties must furnish this information.

E.g., tools like FOIA and InfoMex, which specify clear timelines and deadlines for informational requests.

The 2011 JPAC Meeting also provided an opportunity for NACLE to present its research on key problems with the SEM process (Agreement between the United States of America and the United Mexican States Concerning Transboundary Hydrocarbon Reservoirs in the Gulf of Mexico, signed in Los Cabos on 20 February 2012).