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Published in Summer 2001
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Former SEM director reviews progress
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The Commission’s former director of Submissions on Enforcement Matters (SEM), David Markell, is cautiously optimistic that the Articles 14 and 15 process can live up to its promise to promote the enforcement of environmental laws. Geoffrey Garver, the current SEM director, summarizes an article by Prof. Markell published in the March/April 2001 edition of the Environmental Law Institute’s policy journal, Environmental Forum.
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Professor David Markell’s article in Environmental Forum illustrates the potential of the citizen submission process to enhance enforcement and accountability, with a focus on the United States. He points out that the process does not duplicate domestic US processes that promote government accountability. Because the citizen submission process operates independently of those accountable for enforcement performance and because the Commission, unlike many nongovernmental organizations, does not have an advocacy role, the process has unique potential to be neutral and credible. Nor is the citizen submission process limited to facility-specific allegations; unlike other procedures available to US citizens, it can reach to allegations of widespread ineffective enforcement, too. Prof. Markell notes as well that in the citizen submission process the Commission can ask governments to compile new information, whereas under the Freedom of Information Act the US government generally is required only to release information that already exists. The process also differs from internal watchdog investigations like those of the Government Accounting Agency and the EPA Office of the Inspector General in that the public, not government officials, set the agenda. And, unlike domestic processes, the citizen submission process reaches a broad, North American audience, which extends its potential impact.
While Prof. Markell notes the unique potential of the citizen submission process, he also points out some of its limitations. Because the process does not lead to penalties or injunctive relief, he says, its ability to trigger consequences is unclear. Second, the inability of submitters to recover the costs of bringing a submission might impede access to some extent. Third, NAFTA countries’ dual role as potential targets and stewards of the process may affect the independence of the process. Fourth, because the process is relatively new, its degree of openness and transparency is not fully formed. And finally, limits on the resources available to process submissions mean it can only complement, not replace, domestic processes within the NAFTA countries.
Prof. Markell indicates that to date little empirical or other systematic research has been done concerning the impacts of the citizen submission process, and offers a series of four “educated guesses” about the potential of the process. First, the process could act as an incentive to primary enforcers, including states, to upgrade their enforcement performance. Second, the looming availability of the citizen submission spotlight might impel the US EPA and the Congress to improve their supervision of enforcement performance. Third, the process could stimulate the development of new measures of enforcement success. Last, but more pessimistically, Prof. Markell notes that the process could lead governments fearful of the citizen submission spotlight to lower expectations or reduce the compilation of data relevant to enforcement performance.
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