Friday, December 15, 2006

Will Bush administration try to censor an international watchdog agency?

There have been plenty of stories about various efforts by the Bush administration to censor government scientists on environmental issues. (Indeed, don’t be surprised if health and environmental groups sue soon over the scientifically weak EPA standards for particle soot. These standards were politically manipulated. And now the Bush administration is seeking to muzzle EPA scientists.)

But would the Bush administration also try to censor an international watchdog agency?

We may find out as soon as next week, when the Commission for Environmental Cooperation (CEC), the international watchdog organization set up under NAFTA, meets to consider complaints filed by both U.S. and Canadian citizen groups concerned about mercury pollution from coal-burning electric power plants.

The groups, including Sierra Club of the U.S. and Canada, have asked the CEC to develop a “factual record” – that is, launch an in-depth investigation – of their claims that the U.S. government has failed to enforce provisions of the Clean Water Act designed to protect lakes, streams and rivers.

The U.S. government has bristled at these claims, but the Commission’s professional staff believes the issue is worth further investigation. (A summary of their report is below.)

Now the decision is up to the political leaders of the CEC – representatives of the U.S., Canada, and Mexico. They are supposed to meet soon on this issue, perhaps as early as next week.

It wouldn’t be a surprise if the U.S. reiterated its opposition – and sought to squelch further scrutiny by the international body. But will Mexico or Canada go along? (The investigation would be killed if either country joined the U.S. in a vote on this.)

A little other quick background: In the 12-year history of the CEC, the three NAFTA countries have never killed a citizen request like this. (Under the NAFTA agreement, citizens in each country are supposed to have the opportunity to petition for and receive factual information from the CEC Secretariat in a transparent and independent process regarding instances where legitimate questions are raised about a NAFTA country's failure to enforce its own environmental laws. The Commission has documented that these investigations have led to environmental improvements in both Canada and Mexico.)

Killing this investigation might set a serious precedent that could undermine other bilateral and multilateral free trade agreements the US has recently negotiated with Central and South American countries. These new treaties (e.g., CAFTA), include provisions requiring US citizens who are alleging a failure of the US to enforce its domestic environmental laws to petition the CEC, just as is currently done under NAFTA.

Such an action would be both ironic and hypocritical, since EPA chief Steve Johnson is in Beijing, issuing press releases about the administration’s desire for international cooperation.

Here is the summary of the recommendation by the CEC on this issue:

For the foregoing reasons, the Secretariat considers that the submission, in light of the United
States’ response, warrants the development of a factual record and hereby so informs the
Council. As discussed in detail above, a factual record is warranted to develop and present
information regarding Submitters’ assertions that EPA is failing to effectively enforce §§ 303
and 402 of the CWA in the ten highlighted states by issuing or renewing NPDES permits (or
allowing states to issue or renew such permits) that allow for point source discharges of
mercury that do not comply with, or that cause or contribute to non-attainment of, the water
quality criteria for mercury in the receiving waterbodies. The Secretariat also recommends
that a factual record be developed to examine EPA’s actions with respect to the development
of mercury TMDLs for mercury-impaired waterways in the ten states of concern, except
where pending litigation or consent decrees are addressing mercury TMDLs.
Developing a factual record on the foreoing issues will serve the goals of the NAAEC by,
inter alia, illuminating the efforts being undertaken to promote pollution prevention policies
and practices, fostering the protection and improvement of the environment for the well-being
of present and future generations, and enhancing compliance with environmental laws and
regulations.181 These objectives are particularly important in light of the serious harmful
effects of mercury on environmental and human health, particularly that of children and
pregnant women, which both the submission and the response acknowledge. Accordingly, in
accordance with Article 15(1), and for the reasons set forth in this document, the Secretariat
informs the Council of its determination that the purposes of the NAAEC would be well
served by developing a factual record regarding the submission.
Respectfully submitted on this 5th day of December 2005.
Secretariat of the Commission for Environmental Cooperation
(original signed)
per: William V. Kennedy
Executive Director
181 See NAAEC Article 1.

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