GLOBE-Net News, July 7, 2008
Vancouver – Last month environment ministers of Canada, Mexico and the United States, acting as the Council of the Commission for Environmental Cooperation (CEC), issued a communiqué following its annual meeting stressing the importance of tri-lateral cooperation in pursuing market-based solutions to improve environmental performance in North America. But a number of cross-border environment-related issues are beginning to strain the once collaborative relationship between Canada and the US on such matters.
Noting that 2008 marked the fifteenth year of collaborative work under the North American Agreement on Environmental Cooperation (NAAEC), the environmental side accord to the North American Free Trade Agreement (NAFTA), the ministers stressed the importance of raising environmental standards across all three countries and in promoting the effective enforcement of environmental law.
Recent accomplishments cited included conservation action plans to support the migration of the monarch butterfly and Mexico’s efforts to protect the Vaquita porpoise. Joint efforts to eliminate the production and use in North America of dangerous chemicals such as DDT, chlordane, PCBs, mercury and, most recently, lindane, were also noted.
Cautiously worded acknowledgement was given to the environmental risks associated with increased trade and that close cooperation was essential to protect the North American public and environment. To this end a Green Suppliers Partnership to span the North American auto sector was announced and the CEC Secretariat was charged to prepare a comprehensive report on the opportunities and challenges for Green Building in North America.
A Changed North America
A key point noted in the CEC communiqué was that North America today is considerably different than when the three countries first entered into the North American Free Trade Agreement. In particular, the relationships between Canada and its southern neighbour appear to be undergoing significant changes.
After decades of cooperation on either side of the border, battles over environmental issues are becoming increasingly common and increasingly contentious. For example, DTE Energy’s power plants along the St. Clair River are generating more than electricity. They are also producing mercury emissions which are affecting the health of Canadians.
A trial date has been set by a Canadian Court in Sarnia to hear a lawsuit claiming DTE Energy is violating Canadian environmental law. DTE officials appeared in a Canadian court July 7 to answer charges concerning how its plants’ mercury emissions have affected Canada’s waters and soils downstream.
A water diversion project in North Dakota was stopped after the province of Manitoba challenged it in U.S. District Court on the basis it would lead to invasive species making their way into Canadian waters — specifically Lake Winnipeg and the Hudson Bay.
Canadian smelting company Teck Cominco is facing a massive clean up bill for slag previously dumped into the Columbia River several miles upstream from the border. In addition, the zinc and lead refining plant is a large discharger of mercury. A U.S. Supreme Court denied the company’s appeal of a lower court ruling that said it was responsible for cleaning up the river. In rejecting Teck’s request for review, the Court let stand the federal appeals court decision that the Canadian company must comply with U.S. laws that hold polluters accountable for the contamination they create within the United States.
What these cases demonstrate is that under the right circumstances, local environmental laws can be used against a foreign company for actions occurring within a foreign jurisdiction. If this becomes a trend, the result may have a significant impact on international business relationships and the enforcement of environmental laws and regulations.
As noted in an article by Dennis E. Mahony and Tyson Dyck of Torys LLP, Canada and the United States have historically resolved cross-border environmental conflicts through diplomacy, resulting in international treaties and, occasionally, international arbitration on consent by both governments.
Both countries are parties to several bilateral agreements covering a range of environmental issues, from migratory birds to waste management. One of the most notable is the Boundary Waters Treaty (BWT), signed in 1909 and which gives the two countries principles and mechanisms for resolving and preventing disputes regarding the use of waters along their shared border. For decades disputes have been resolved through agencies such as the International Joint Commission or the Center for Environmental Cooperation.
And though the principle of territoriality has been entrenched in modern international law for decades, today it is facing significant challenges from cross-border environmental issues. Indeed, in light of the recent chill in Canada-U.S. relations and the growing extraterritorial reach of U.S. environmental laws, many Canadians are likely to turn to suits filed under extraterritorial environmental statutes as a means of addressing pollution that causes cross-border harm.
Some have suggested that the reluctance of the Bush administration to crackdown on mercury emitters (in the case of the DTE Case) prompted some complainants to resort to the courts for action.
“The Bush administration has been less interested in solving trans-boundary issues through diplomacy and bilateral cooperation than previous administrations,” said Noah Hall, an international law expert at Wayne State University in an article published recently by the Detroit News. “They haven’t taken the diplomatic bilateral approach, and people have been left with no other option than to go to court.”
If more private parties seek to pursue citizen suits provisions to address cross-border environmental issues that governments have failed to resolve, an increase in extraterritorial claims can be expected, which in turn could disrupt diplomatic and business relations between Canada and the United States, and lead to the confused application of environmental laws.
As noted by Mahony and Dyck, for businesses, the extraterritorial application of environmental laws on their operations, though not inherently negative, could negative repercussions, when private parties choose when and where to pursue this application. The resulting uncertainty over applicable regulatory standards can confound the environmental management of businesses with obvious cross-border impacts.
Cross border tensions at a much higher level have become more evident during the political drama unfolding in the United States, where big-city U.S. mayors and Democratic Presidential candidate Barack Obama were sharply critical of dirty” Alberta oil. Canadian officials believe the most U.S. lawmakers – even self-proclaimed environmentalists in the Democratic Party – ultimately are pragmatists who will eventually dump the “special” interest rhetoric so important during the presidential campaign.
The Issues Run Deep
But the issues at stake are far deeper than politics on the campaign trail. In the post 9-11 world, there is an even greater need for Canada and the United States to come together to resolve environmental issues of common interest. We share common eco-systems just as we share common economic issues and priorities. And with the growing impacts of climate change and global warming, those common environmental and economic concerns will become more blended and more and more dependent upon proactive and cooperative relationship building.
These include: reducing particulate matter emissions and instituting better air quality management in border areas; preventing the contamination of trans-boundary waters; resolving competing territorial claims in the high Arctic; ensuring the safety of shipping in coastal waters (particularly for bulk carriers of hydrocarbons); cleaning up still polluted estuaries, rivers and waters in the Great Lakes system, and coming to terms with regard to bulk water diversions; resolving irritants with respect to the trans-boundary movements of trash and hazardous wastes; reaching an accord with respect to energy flows (not the least of which concerns exports of oil from the Alberta oil sands) … the list goes on and on.
As noted these issues have high economic impacts as well significant environmental consequences. And from the point of view of the business community, there clearly is a benefit from further regulatory integration or, at least, common rules on the applicability of environmental laws. Business does not like uncertainty.
While one might wish for a broad national consensus on key Canadian-American environmental issues, in the absence of such, there is emerging a trend toward bilateral cooperation at the state-province level, and even at the city-to-city level. Interactions between State of Michigan lawmakers, the Ontario Ministry of the Environment and City of Toronto officials were instrumental in resolving the municipal solid waste dispute that threatened to halt waste shipments to Michigan by 2010. The province of British Columbia has embarked on a wide ranging process of engagement with neighbouring states in the US on climate change, carbon trading and environmental enforcement issues of common concern.
There are many other examples on cooperation at the sub-national level which, while helpful and pragmatic, do not obviate the need for a more focused and deliberate effort in the national arena to forge more constructive relationships on environmental matters.
Where to now?
When the Commission on Environmental Cooperation (CEC), was created it was thought it would bring a new era of tri-lateralism in an more intense and permanent way to North American and to Canada-U.S. environmental governance. If anything, the Canadian-American bilateral environmental relationship has gone through something of a “rough patch” over the past few years.
Leaving aside the much publicized political slights in recent months, it would be wrong to assume that our common values and the operational necessities of dealing with pressing trans-boundary pollution problems will overcome any disputes.
The need for an integrated North American approach on environment and economic issues that straddles political boundaries and cross-border relationships is needed, but it won’t just happen by itself.
Whoever takes over the Oval Office after President Bush heads back to Texas will have to be engaged as a matter of priority on Canada-US environmental relations. Establishing a level of rapport between the two individual leaders is essential to overcome policy and political differences that prolong uncertainty and foster cross border litigation.
And while the three environment ministers of the CEC have reaffirmed a commitment to continue to work together on key North American environmental challenges, the agenda will have to be more meaningful that protecting the Monarch butterflies and the Vaquita porpoise.