Golden Gate University Environmental Law Journal


The citizen submissions procedure of the North American Commission for Environmental Cooperation (CEC) celebrates its twentieth birthday this year. After a promising childhood, the procedure has had a stormy adolescence, vexed by accusations of ineffectiveness, bias, and delay. In 2012, the CEC adopted revisions to the procedure that promise to improve its timeliness, but do little or nothing to address its other problems. As the procedure enters its twenties, settled maturity is still a distant prospect. Created in 1993 by the North American Agreement on Environmental Cooperation (NAAEC), a tri-national agreement between Canada, Mexico, and the United States, the submissions procedure allows any individual or group in one of the three Parties to file a complaint with the CEC alleging that a Party is failing to enforce its domestic environmental laws. If the submission meets certain admissibility requirements, it can lead to a detailed investigative report, called a "factual record. "

As Section II of this Article describes, the first two decades of the CEC submissions procedure have seen real achievements, but they have also given rise to growing controversies. Scholars and environmental advocates have increasingly criticized the procedure on three grounds: (a) it is far too slow, (b) the Parties interfere with it too often, and (c) the CEC does not follow-up factual records to determine whether they have led to real improvements.

As Part III explains, the most recent round in this recurring struggle began in 2011, when the NAAEC Parties announced that they planned to adopt revisions to the procedure's Guidelines. Outside observers saw the revision process as an opportunity to address long-standing problems, but they also feared that the Parties could use the revisions to weaken the procedure further. In early 2012, a governmental task force proposed revisions that seemed to confirm these concerns. As a result, CEC advisory bodies and others strongly objected to many of the suggested amendments to the Guidelines. The objections appear to have had some effect: the final version of the Guidelines adopted by the NAAEC Parties in July 2012 drops or softens the more controversial proposals. Moreover, the revisions set new deadlines that, if followed, would greatly shorten the time the procedure takes to process submissions. However, the revised Guidelines still impose new restrictions on the submissions procedure, and they continue to ignore the need for effective follow-up to factual records.

Part IV concludes by underlining that while the CEC submissions procedure still offers a unique mechanism to draw attention to important environmental issues that might otherwise be overlooked, its shortcomings have sapped its attractiveness to potential submitters. The adoption of stricter deadlines is a step in the right direction, but to restore trust in the procedure, the CEC must do more. Specifically, it must regularly meet the deadlines in practice, it should start following-up factual records, and, most importantly, the Parties must resist the urge to micromanage the process. Otherwise, criticisms and controversy will continue to follow the procedure as it enters its third decade.