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Published in Summer 2001
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Factual record helped in Cozumel pier case, says submitter
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Concrete signs that the citizen submission process is meeting its potential as a catalyst for improved governance are beginning to emerge, says Geoff Garver, head of the Commission’s Submissions on Enforcement Matters (SEM) Unit.
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By Geoff Garver
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Ever since 1995, citizens of North America have had the ability to serve as environmental watchdogs, filing public submissions with the North American Commission for Environmental Cooperation asserting that a party’s environmental laws are not being adequately enforced. This process can result in the production of a factual record on the allegation. However, questions remain as to how factual records can influence the public debate over environmental issues raised by the submitters.
These questions, and recent concerns about a lack of transparency and delays in the process, have caused Council to institute a JPAC-led “lessons learned” process (see article elsewhere in this issue).
Comments received during that process and at other times during the past year have been helpful in seeing the process with unprecedented clarity.
Especially encouraging are the observations of the organization whose submission resulted in the first factual record. In 1996, the Mexican Center for Environmental Law challenged the environmental impact assessment of a cruise-ship pier project located close to sensitive coral reefs in Cozumel, near the Yucatan Peninsula. The Center claimed that the assessment failed to comply with Mexican environmental law because it dealt only with the pier, and not the port development that would follow.
At a conference earlier this year, Gustavo Alanís-Ortega, president of the Mexican Center for Environmental Law, publicly shared his conclusion that in the Cozumel case, the Commission's citizen “spotlight” had ultimately worked. What is the most tangible effect that Mr. Alanís attributes at least in part to the factual record? The Cozumel pier project, as finally approved and constructed, did not include much of the development that the submitters had challenged. Beyond that, Mr. Alanís believes that the Cozumel submission led to additional protection of coral reefs in the area, improvements to Mexican law on environmental impact assessment, and the establishment of a trust fund for reef protection. As Mr. Alanís has noted, the
Cozumel factual record also paved the way for future submissions, in that it showed that the process could go the distance.
To be sure, Mr. Alanís recounted numerous frustrations during the processing of the submission. In general, he thinks that the submission process should be more efficient, more open, and more balanced between the submitter and the country whose enforcement is at issue. Other observers have made similar comments during the JPAC review of the citizen submission process over its first five years. One paramount concern is the independence and authority the Commission's Secretariat will require if it is to administer the process neutrally and objectively. The public has also voiced concern over the extent to which information relating to submissions is kept secret or confidential. Many would simply like to see submissions processed more quickly.
The JPAC review will help clarify and address concerns that have been expressed about the citizen submission process. In addition, based on Mr. Alanís's recent comments, a more thorough analysis of the impact of the Cozumel factual record would shed useful light on the utility and effectiveness of the process. Also valuable would be an in-depth study of the extent to which the BC Hydro factual record —the Commission's second factual record, published in June 2000—has affected public policy regarding the water management and fisheries issues in British Columbia that it addressed. The Secretariat encourages researchers and others to study these and other aspects of the citizen submission process for signs of accomplishment and to identify additional areas in which the process could be improved.
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