Despite the existing tension between trade pacts and global environmental rule of law, environmental side agreements (ESAs) of bilateral and multilateral trade pacts have created a unique mechanism for environmental enforcement: citizen submissions. These submissions provide a mechanism for ordinary citizens to formally and publicly bring attention to potential environmental harms in their communities, including the non-enforcement of environmental laws. The submissions are then reviewed by a commission or Secretariat, who determine whether or not it requires further action from the relevant Parties to the agreement. Some argue these submissions have a positive potential impact on environmental justice campaigns, providing communities impacted by environmental harm from international trade a substantive basis to unite toward community organizing, in tandem with a pathway to accountability. By empowering citizens to contribute to the oversight of trade-related activities, citizen submissions may have the potential to increase accountability for environmental harm around the world.
The process for submissions on environmental matters, known as the Submission on Enforcement Matters (SEM) Process, varies widely across different trade pacts, ranging from the North American Free Trade Agreement (NAFTA) Commission for Environmental Cooperation, to that of Secretariats including the Dominican Republic-Central American Free Trade Agreement (CAFTA-DR), U.S.-Panama Trade Promotion Agreement (TPA), and the U.S.-Peru Trade Promotion Agreement (PTPA). The architecture of the SEM Process depends on the provisions of the agreement, and thus, viability of citizens’ submissions to impact an agreement’s environmental accountability measures must each be assessed individually.
In NAFTA’s Commission for Environmental Cooperation, for example, any nongovernmental organization or person established or residing in Canada, Mexico, and the United States may file a submission on enforcement matter through an online form. Filing a submission is the first step of the Commission’s SEM Process. Once the submission is received, it is then reviewed by the Secretariat and determined whether or not it meets the basic criteria and merits a response from a Party. The Party is then expected to respond, identifying whether or not the matter is the subject of an ongoing proceeding. If not, the Council votes on whether or not the Secretariat should prepare a Factual Record, and the process concludes. The Factual Record addresses the issues raised in the original submission through an investigation on the site, presenting findings of whether or not there is evidence for environmental damage. While this process intends to ensure transparency, it does not guarantee remediation or justice regarding the environmental harm caused. In accordance with NAAEC Article 15(3), the Factual Record must be written “without prejudice to any further steps that may be taken.”
Nonetheless, despite this serious limitation of NAFTA’s SEM Process, there have still been some success stories, such as the Sumidero Canyon II in Mexico. In 2019, the Attorney General for Environmental Protection ordered the closure of facilities for limestone processing, as an indirect result of a citizen’s submission to the Commission, which claimed that Mexico was failing to enforce environmental laws intended to regulate the quarry’s operations. This highlights the ability for submissions to serve as a catalyst for meaningful environmental law enforcement.
Yet, there is still much to learn regarding what extent citizen submissions will impact the environment and enhance opportunities to advance the role of citizens in strengthening the environmental rule of law. To learn more about the potential for citizen submissions to enhance environmental accountability in trade agreements, join ELI and our expert panelists on March 9 for our virtual webinar, Citizen Submissions: Trade and the Environment. This program will provide an engaging dialogue, focused on the heightened importance of citizen submissions in global environmental enforcement, including the challenges and opportunities that lie ahead.