introduction

This article is intended to help potential users of the provisions of the Agreement between the United States of America, the United Mexican States and Canada (USMCA) understand the multiple levels of review required for a problem to pass. by environmental review bodies. . The USMCA replaced the North American Free Trade Agreement (NAFTA) when it came into effect on July 1, 2020. Like other modern free trade agreements, the USMCA has expanded coverage of the issues. environmental issues that have an impact on international trade by adding an entire chapter devoted to the environment. , infusing many of the ideas that were incorporated into NAFTA’s side environmental agreement, the North American Agreement on Environmental Cooperation (NAAEC). The update to this side agreement, the Environmental Cooperation Agreement, continued the role of the Supranational Commission for Environmental Cooperation (CEC), which served as the focal point for environmental studies and problem solving for 25 years ( ECA Part II, Art. 2- 8; ANACE Part 3, art. 8-19). Both the USMCA and the ECA came into effect on July 1, 2020. This article describes the various administrative mechanisms under the USMCA related to environmental matters in general. Chapter 24 contains provisions relating to consultation, private rights of action and dispute resolution, as well as substantive commitments regarding major environmental laws and agreements.

Chapter 24 on the environment

The original USMCA Environmental Chapter Articles (Sections 24.1 to 24.7) describe the rules for parties to provide environmental protections and establish procedures internally. Articles 24.8 to 24.16 set out the list of multilateral environmental agreements (MEAs) and the parties’ specific commitments for each. Fisheries and marine resources are central to Articles 24.17 to 24.21, given their importance among common interests in the waters surrounding the Parties. The following three provisions identify specific commitments on trade with respect to conservation, sustainable management of forests, and goods and services. The administrative and dispute resolution processes are set out in sections 24.24 to 24.32. The organizations established by the chapter allow the environmental concerns of governments and the private sector to be fully communicated.

Structure of agreements

The USMCA’s environmental chapter specifically states that no party can encourage trade by relaxing environmental standards without clear consequences. In contrast, NAFTA only offered consultation when one Party claimed that another Party “encouraged investment by relaxing national health, safety or environmental measures”. There was no express mention of the CEC or its founding agreement, the NAAEC, in the NAFTA, while the CEC and its successor, the ECA, are explicitly established in the USMCA. The procedures available for environmental matters are clearly listed in Chapter 24, with a clear flow from consultation to dispute resolution built into the structure of the document.

Environment Commission

Article 24.26 establishes the Trilateral Environment Committee composed of senior officials representing both trade and environmental authorities. This body oversees the operation of the environmental chapter and has contact points for each government. In the United States, the USTR leads through the Office of the Environment and Natural Resources as a point of contact, in coordination with the Environmental Protection Agency (EPA) and the State Department Bureau of Oceans and International Scientific Affairs. The Committee is the primary forum for monitoring the implementation of Chapter 24 commitments. It reports directly to the Ministerial-level Free Trade Commission (FTC) established in Article 30.1. It also reports to the CEC Ministerial Council established under Article 3 of the FTA. The Environment Committee also reviews all disputes submitted for consultation with senior representatives under Article 24.30. The Committee meets at least every two years and must hold a public session at each meeting. If private parties have issues that they believe require government involvement, they can bring them to the point of contact to determine if they are interested and willing to enter into a dialogue between the parties on the issue.

Raise environmental issues and disputes

When a private party brings an environmental issue to the attention of the parties, a number of steps and organizations come into play, all seeking to resolve the dispute as soon as possible, while remaining true to the commitments of the agreement. Section 24.27 provides for submissions on performance matters (SEM).

“Anyone from a Party may file a communication claiming that a Party is not effectively enforcing its environmental laws. These observations should be filed with the Secretariat of the Commission for Environmental Cooperation (CEC Secretariat) ”. (Article 24.27.1)

The CEC Secretariat reviews all submissions to determine whether the question is communicated in writing to the Party’s competent authorities and the response, if applicable. The Secretariat also analyzes whether the communication alleges harm to the author of the communication, whether it “raises issues on which further study would advance the objectives of the chapter” (Article 24.27.3 (b)), whether the authors have exercised private remedies and so the submission is drawn exclusively from mass media reports. If the CEC Secretariat determines that the MES deserves a response from the Party, it forwards all information to the Party and the Party must respond within 60 days. If the case is the subject of an ongoing judicial or administrative proceeding, the Secretariat of the CEC will go no further and the Party’s proceedings are, by implication, the forum for resolving the case. The Party may also inform the applicant about the application of environmental law in the Party and whether private remedies are available and have been exercised.

Factual record

In order for the CEC Secretariat to establish a factual record based on the response of the Party that failed to effectively enforce its environmental law, it must inform the CEC Council established under Part II. of the ECA and obtain the approval of two of the three members. If this approval is given, which is by no means a certainty, the Secretariat can then compile a factual record, drawing on public information, public submissions and other listed sources. The CEC Secretariat submits any factual record directly to the CEC Council when completed. The USMCA does not require any further provision for a factual record, nor any requirement that the matter at issue be subject to consultation or a dispute resolution process.

Consultations

USMCA Chapter 24 provides for several levels of consultation for issues raised by one party against another. The environment committee would obviously be involved, both at the level of basic consultation in Article 24.29, and as senior representatives in accordance with Article 24.30. If the matter is referred to ministerial consultations under Article 24.31, it is not clear whether the Free Trade Commission or the CEC Council would be involved (likely both, as the matter is so serious that it is is not resolved at the highest levels of government). It was only after these multiple rounds of consultations that an issue would be ripe for dispute settlement under the Agreement.

Dispute settlement

In accordance with Article 24.32, if the Parties fail to resolve the dispute through consultations within the time limit, the requesting Party may request the establishment of a panel. Such a panel may request advice or technical assistance to address the specific issue, give Parties an opportunity to provide their respective comments and take into consideration any interpretative guidance in formulating its conclusions and recommendations.

CCE

At the end of March 2021, the CEC reported on its website (www.cec.org) that it received its 100th submission on enforcement in February 2021, the first under the USMCA. This level of activity is somewhat surprising given the administrative hurdles under NAFTA that are essentially carried over to the USMCA. CEC has produced hundreds of publications on environmental issues and has a wide range of data tools and information repositories. The continuation of the CEC under the USMCA is welcome and important to the continued contributions to cooperation and environmental protection over the next decade.

Conclusion

The USMCA deals with cooperation and environmental protection in a more diverse way and structure than the predecessor of NAFTA. Mechanisms for raising issues and resolving disputes can be seen either as multiple points to reach agreement or as layers of government obstacles to be overcome, depending on which perspective one brings. It is difficult for the layman to identify the right organization from which to seek advice or redress. As the analysis shows, the large number of actors involved in administering the environmental issues raised under the agreement require a long and often confusing process. Considerable time is required to comply with all domestic administrative and judicial remedies available in each USMCA partner country. The USMCA allows for consideration of environmental issues, but the time spent on each issue can, and often will, delay effective action for months, if not years.

* The author thanks Melissa Kotulski for her assistance in the production of this article.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.


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