The Citizen Petition Process Under NAFTA's Environmental Side Agreement: It's Easy to Use, But Does It Work?

Jay Tutchton

Mr. Tutchton is the Clinic Director of the Earthlaw Environmental Law Clinic at the University of Denver College of Law. Earthlaw is a nonprofit, public interest environmental law firm that represents a variety of national and grass-roots environmental organizations. On behalf of one Mexican and four American environmental groups, Earthlaw filed the first citizen enforcement petition under the North American Free Trade Agreement's (NAFTA's) Environmental Side Agreement. Special thanks are extended to Heather Hawker and Dawn McKnight for their excellent legal research on this project.

[26 ELR 10031]

The relationship between trade and the environment was perhaps the hottest issue in the debate over the North American Free Trade Agreement (NAFTA) in 1993.¹ The North American Agreement on Environmental Cooperation (NAAEC), commonly known as the Environmental Side Agreement, was the Clinton Administration's answer to environmentalists' concerns with NAFTA.² After completion of the NAAEC, most major national environmental groups supported NAFTA's passage.³ A central tenet of this support was that the NAAEC's citizen petition process would allow environmental groups to force all three NAFTA Parties (the United States, Canada, and Mexico) to effectively enforce their environmental laws.⁴ The environmental community's support for NAFTA and the NAAEC was far from uniform, however;⁵ several national and perhaps most grass-roots environmental organizations continued to oppose NAFTA and the NAAEC, arguing, in part, that the NAAEC citizen petition process was too weak.⁶

With the benefit of hindsight, this Dialogue returns to the debate over whether the NAAEC citizen petition process is an effective environmental enforcement tool. The Dialogue first describes how to use the citizen petition process. It then criticizes the process on procedural and substantive grounds. Finally, based on the experience of the first citizen enforcement petition, the Dialogue discusses an emerging loophole in the NAAEC's enforcement scheme. The Dialogue concludes that if NAFTA and the NAAEC are to live up to their promise as a truly "green" trade accord deserving of environmentalists' support, the citizen petition process must be dramatically improved.

Background

The Environmental Side Agreement created a permanent trinational commission called the North American Commission for Environmental Cooperation (NACEC).⁷ NACEC is composed of three permanent institutions: The Council, the Joint Public Advisory Committee (JPAC), and

[26 ELR 10032]

the Secretariat.⁸ The Council is the governing body and is composed of three cabinet-level environmental officials or their delegates, one from each NAFTA Party.⁹ JPAC consists of 15 members, with each Party nominating five persons.¹⁰ JPAC advises the Council on any matter within the scope of the NAAEC and provides technical, scientific, or other information to the Secretariat.¹¹ The Secretariat is the functioning bureaucracy of NACEC. It prepares reports on environmental matters for the Council¹² and is authorized to receive citizen petitions, called "submissions," from any person or nongovernmental organization, such as an environmental group, asserting that a Party is failing to effectively enforce its environmental laws.¹³

The NAAEC's promise that all NAFTA Parties will effectively enforce their environmental laws appears in article 5(1).¹⁴ The applicable definition of an "environmental law" includes antipollution laws and laws designed to protect "wild flora or fauna, including endangered species, [and] their habitat," but not natural resource preservation laws.¹⁵ The citizen enforcement petition or "submission" process under article 14 is the NAAEC's principle tool to ensure that NAFTA Parties carry out this pledge.

The Process

NAAEC article 14 provides that "the Secretariat may consider a submission from any non-governmental organization or person asserting that a Party is failing to effectively enforce its environmental law…."¹⁶ Submissions must be filed with the Secretariat and should not exceed 15 pages, excluding supporting information.¹⁷ Submissions are not accepted by fax or any other electronic means.¹⁸ If possible, the Secretariat requests that a copy of the submission be provided on computer diskette.¹⁹

In order to be considered by the Secretariat a citizen submission must: (1) be written in an acceptable language;²⁰ (2) clearly identify the submitters; (3) provide sufficient information, including any documentary evidence on which the submission is based, to allow the Secretariat to review the submission;²¹ (4) be aimed at promoting enforcement rather than harassing industry;²² (5) indicate that the matter has been communicated in writing to the relevant authorities of the challenged Party and indicate the response, if any;²³ and (6) be filed by a person or organization residing or established in the territory of a Party.²⁴

Once it receives a citizen enforcement submission, the Secretariat conducts an internal review to determine whether the submission satisfies the article 14(1) criteria. There is no time limit on this review. If the Secretariat determines that a submission does not meet these criteria, the Secretariat will notify the submitter and allow 30 days to provide a new submission conforming to the criteria.²⁵ If the Secretariat again determines that the submission does not meet article 14(1) requirements, the Secretariat will inform the submitter of its reasons and terminate the process with respect to that submission.²⁶

If, however, a submission meets the article 14(1) criteria, the Secretariat conducts a second internal review under article 14(2) to determine whether the submission merits requesting a response from the challenged Party.²⁷ Article 14(2) requires the Secretariat to consider: (1) whether the submission alleges harm to the submitter;²⁸ (2) whether the submission, alone or in combination with other submissions, raises matters whose further study would advance [26 ELR 10033] NAAEC's goals; (3) whether private remedies available under the Party's domestic laws have been pursued; and (4) whether the submission is drawn exclusively from media reports.²⁹ Again, there is no time limit on this review. If the Secretariat determines that a submission does not satisfy article 14(2) and no response is merited, the Secretariat will notify the submitter of its reason(s).³⁰ The submitter is then allowed 30 days to submit new or supplemental information for further consideration. If no information is submitted, or if the Secretariat determines that even in light of the information provided no response is merited, the Secretariat will notify the submitter and terminate the process with respect to the submission.³¹

If a submission satisfies the article 14(2) requirements, then the Secretariat will forward a copy of the submission and supporting information to the challenged Party for a response.³² The Party is required to advise the Secretariat within 30 days³³ of the delivery of the request: (1) whether the matter is the subject of a pending judicial or administrative proceeding—in which case the Secretariat will terminate the submission—and (2) any other information the Party wishes to submit, such as whether the matter was previously the subject of a judicial or administrative proceeding, whether private remedies are available to the submitter, and whether such remedies have been pursued.³⁴

On receipt of a response from the Party, or following the expiration of the response period, the Secretariat conducts a third internal review to determine whether, in light of any response from the Party, the submission warrants the development of a "factual record."³⁵ There is, again, no time limit on this third internal review. Moreover, there is no provision for the Party's response to be made public, nor is the submitter given an opportunity to reply to any information contained in the response. If the Secretariat decides that in light of any response, the submission does not warrant the development of a factual record, the Secretariat will inform the submitter of its reason(s) and terminate the process.³⁶ There are no established criteria that the Secretariat must employ in coming to its decision as to whether a factual record is warranted.

If the Secretariat decides to prepare a factual record, it must seek the Council's permission.³⁷ The Secretariat can only prepare a factual record if the Council, by two-thirds vote, instructs it to do so.³⁸ If the Council does not authorize preparation of a factual record, the Secretariat will inform the submitter and terminate the submission process.³⁹

If the Council does authorize the development of a factual record, then the Secretariat is directed to consider any information submitted by a Party and may consider any relevant technical, scientific, or other information that is publicly available, submitted by interested nongovernmental organizations or persons, submitted by JPAC, or developed by the Secretariat or independent experts.⁴⁰ Both the NAAEC and the Draft Procedures for Submissions on Enforcement Matters Under Articles 14 and 15 of the North American Agreement on Environmental Cooperation, the Secretariat's operating guidelines, are silent as to whether the submitter is specifically allowed to participate in the development of a factual record. Article 15(4)(b) does state, however, that the Secretariat may consider information "submitted by interested non-governmental organizations or persons." Presumably, this does not exclude the submitter and may provide an avenue for continued participation. There is no time limit on preparation of the draft factual record.

Once the Secretariat completes a draft factual record, it is submitted to the Council.⁴¹ Any Party may provide comments on the draft record for up to 45 days.⁴² There is, however, no provision for the submitter to review, or to comment on, this record. The Secretariat must then incorporate, as appropriate, the comments submitted by a Party into a final factual record.⁴³ There is no time limit on preparation of the final factual record.

When the Secretariat completes the final factual record, it is resubmitted to the Council,⁴⁴ which may elect, by two-thirds vote, to make the final record public.⁴⁵ This should "normally" occur within 60 days of the delivery of the final record to the Council.⁴⁶ If the Council so votes, the submitter will receive a copy.⁴⁷ If the Council declines to do so, however, then the Secretariat will so inform the submitter,⁴⁸ who has no means of gaining access to the record.

Assuming that the final factual record sustains a submitter's contention that a Party is failing to effectively enforce its environmental laws, the submitter must rely on another Party to take action to stop the violation. Only a Party can initiate the NAAEC enforcement provisions. If a Party does not elect to do so, the submitter is without recourse.

[26 ELR 10034]

Procedural Flaws

As is apparent from the above description, the citizen enforcement petition or "submission" process under the NAAEC is a long and arduous affair. It can be faulted on two main procedural grounds. First, it is a time-worn axiom of the law that "justice delayed is justice denied."⁴⁹ The NAAEC citizen submission process imposes no time limits on the Secretariat. There is no limit on how long the Secretariat may take to review a submission for compliance with articles 14(1) or 14(2). Similarly, there is no time limit on the Secretariat's internal review of any response received from a Party; nor is there a time limit on preparation of the draft and final factual records.

The NAAEC has not been in existence long enough to determine whether the Secretariat will abuse its unfettered discretion; however, the complete lack of time constraints is unreasonable. This is especially true given the relative simplicity of some of the tasks, such as the article 14(1) and 14(2) review. In environmental enforcement matters, justice delayed can truly be justice denied. Some reasonable time limits should be placed on the Secretariat for evaluating citizen submissions.

The second major procedural flaw in the citizen submission process is that once a submission is filed, the submitter has almost no opportunity to participate in the review process. A submitter is not allowed to see, much less reply to, the challenged Party's response. Thus, a citizen has no ability to determine if the response is truthful or accurate. Furthermore, there is no explicit provision allowing a submitter to participate in the development of a draft factual record. More importantly, however, only Parties may offer comments on the draft factual record. The submitter is not allowed to review Party's comments for truth or accuracy. In essence, the submitter loses the ability to "prosecute" the case and is forced to rely on the Secretariat to pursue or "litigate" the claim. This is a dramatic departure from the typical judicial model in which the parties, in this case the submitter and the challenged Party, make their case to a neutral body. The Secretariat should at least allow the citizen submitter to respond to arguments advanced against the submission.

The Substantive Flaw

The glaring substantive flaw in the citizen submission process is the lack of a guaranteed remedy. Even if (1) a submitter successfully survives the hurdles of articles 14(1) and 14(2), (2) the Secretariat determines that the Party's response is inadequate, (3) the Council votes to allow the Secretariat to prepare a factual record, and (4) the Council votes to make the factual record public, nothing necessarily happens. A citizen submitter has no direct ability to force a Party to effectively enforce its environmental laws. Rather, the citizen submitter must hope that another Party choosesto act on the factual record and pursue a claim under the NAAEC dispute resolution and enforcement provisions. Accordingly, even though a citizen submission might prove that a Party is failing to effectively enforce its environmental laws, the violation may never be redressed.

A Troubling First Decision

Regardless of the significance of the procedural and substantive flaws in the submission process, the first citizen enforcement submission filed with the Secretariat has uncovered an even more troubling loophole in the NAAEC's purported requirement that all NAFTA Parties effectively enforce their environmental laws. On July 5, 1995, Earthlaw, a public interest law firm housed at the University of Denver College of Law, filed an article 14 submission on behalf of one Mexican and four American environmental groups.⁵⁰ The submission alleged that the United States was failing to effectively enforce the Endangered Species Act (ESA).⁵¹ The submitters complaint arose out of enactment of the Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, which was signed into law by President Clinton on April 10, 1995.⁵² Buried within this bill is an unrelated amendment, labeled a budgetary rescission, that is commonly known as the ESA Moratorium.⁵³ The ESA Moratorium suspends enforcement of ESA § 4⁵⁴ for the remainder of the U.S. government's fiscal year.⁵⁵

The Earthlaw submission acknowledged that the NAAEC explicitly recognizes "the right of each Party to establish its own levels of domestic environmental protection and environmental development polices and priorities, and to adopt or modify accordingly its environmental laws and regulations."⁵⁶ The submitters argued, however, that based on U.S. case law, the United States had not modified or amended the ESA through the ESA Moratorium; rather Congress had simply suspended the Act's enforcement.⁵⁷ [26 ELR 10035] In evaluating the submission under article 14(2), the Secretariat correctly framed the issue presented by the submission as "whether a 'failure to effectively enforce' under Article 14 may result from the enactment of a law which suspends the implementation of certain provisions of another statute."⁵⁸ The Secretariat concluded that "the enactment of legislation which specifically alters the operation of pre-existing environmental law in essence becomes part of the greater body of environmental laws and statutes on the books…. The Secretariat therefore cannot characterize the application of a new legal regime as a failure to enforce an old one."⁵⁹

While the Secretariat's position can be faulted for ignoring a U.S. district court's determination that the ESA Moratorium did not amend the ESA,⁶⁰ the Secretariat's reasoning reveals a more troubling problem. The Secretariat noted that article 14(1) allows it to consider submissions regarding a Party's failure to effectively enforce environmental laws. The Secretariat then observed that:

on its face, there is little to support the notion … that the word Party [in Article 14(1)] is restricted to include only the executive functions of agencies or departments, or that the term should mean anything other than "government" in a broader sense, including its separate branches. However, Articles 14 and 15 read in conjunction with other provisions of the Agreement strongly suggest that a failure to enforce environmental law applies [only] to the administrative agencies or officials charged with implementing laws and regulations.⁶¹

While the Secretariat may yet reverse itself,⁶² if this ruling stands, the Secretariat has effectively exempted all legislative actions from the NAAEC's promise of effective enforcement of environmental laws.

This blanket "legislative exception" will no doubt swallow the effective enforcement "rule." All legislative actions should not be viewed equally under the NAAEC. Some legislative actions may be true modifications or amendments of environmental laws as permitted by article 3. Other legislative actions, however, such as the ESA Moratorium, are simply suspensions of the effective enforcement of still-valid environmental laws. Conceivably, any failure to enforce an environmental law that might result from executive or administrative malfeasance could also be accomplished through a legislative act. For example, a legislative body could pass a statute prohibiting the prosecution of a particular enforcement action, or exempting a specific violator from the law. By distinguishing legislative failures to effectively enforce environmental laws from executive or administrative failures, the Secretariat has created a distinction without a difference.

This legislative loophole threatens to render the NAAEC citizen submission process useless as an environmental enforcement tool. The NAAEC was intended to require the NAFTA countries, including all the branches of their respective governments—executive, judicial, and legislative—to effectively enforce their environmental laws.⁶³ If the Secretariat refuses to redress legislative suspensions of environmental enforcement under article 14, then interests that wish to avoid NAAEC oversight of compliance with these laws will simply lobby the legislature to grant them a suspension. Environmental laws will remain technically on the books, but will not be enforced. The NAAEC's effective enforcement promise will mean nothing.

Conclusion

NAFTA, with its Environmental Side Agreement, has been hailed as the "greenest" trade agreement ever negotiated.⁶⁴ Though some have scoffed that this is not much of an accomplishment,⁶⁵ the point remains. By at least attempting to address the environmental impacts of trade, NAFTA and the NAAEC garnered significant support from the environmental community.⁶⁶ NAFTA and the NAAEC are likely to serve as models for future trade accords.⁶⁷ NAFTA itself may also be expanded to include other nations. For example, negotiations are already underway regarding Chile's potential entry into NAFTA.⁶⁸ Environmental concerns will no doubt figure prominently in the expansion of NAFTA and in future trade accords.

Accordingly, the question whether NAFTA and the NAAEC deserve the environmental community's support is critical. This support should center, in part, on the effectiveness of the citizen enforcement provisions established by the NAAEC. NACEC itself has recognized that its "dual function of enforcement and dispute settlement in cases of alleged environmental law violations [is] key to [its] mission."⁶⁹ As discussed above, the NAAEC's utility as an [26 ELR 10036] effective enforcement tool is highly debatable. While at least facially easy to use, the NAAEC citizen submission process suffers from several dramatic flaws. With the benefit of hindsight, it does not appear that the environmental community should be pleased with the NAAEC citizen submission process as it presently operates.

1. North American Free Trade Agreement Between the Government of Canada, the Government of the United Mexican States, and the Government of the United States of America, Dec. 8-17, 1992, 32 I.L.M. 289, 605 (entered into force Jan. 1, 1994); see, e.g., John J. Kim & James P. Cargas, The Environmental Side Agreement to the North American Free Trade Agreement: Background and Analysis, 23 ELR 10720 (Dec. 1993) ("Among the most remarkable features of NAFTA and related negotiations has been the tremendous attention directed to environmental implications of the trade pact."); Jeffrey A. Mello, The Environmental Cost of Free Trade, BUS. & SOC'Y REV., Sept. 22, 1994, at 8 ("One of the major controversies surrounding NAFTA involves the debate over the alleged effect that free trade has on the environment.").

2. See, e.g., Kim & Cargas, supra note 1, at 10725-26; Mello, supra note 1, at 8 ("Upon being inaugurated, President Clinton was pressured by environmental groups which expressed some dissatisfaction with the existing environmental provisions of NAFTA negotiated by the Bush administration. In response Clinton negotiated a parallel Side Agreement pertaining to the environment which established an additional council, the Commission for Environmental Cooperation (CEC) to specifically oversee environmental issues.").

3. See, e.g., Kim & Cargas, supra note 1, at 10726 ("With the release of the completed Side Agreement … most major environmental groups endorsed NAFTA and the Side Agreement."); NAFTA's True Importance, N.Y. TIMES, Nov. 14, 1993, § 4, at 1 ("Most major environmental groups in the U.S. support NAFTA.").

4. See, e.g., NAFTA and the Environment, N.Y. TIMES, Sept. 27, 1993, at A1.

5. See, e.g., Peter Behr, Environmentalists Find NAFTA Is No Easy Call, National GroupsRemain Sharply Divided, WASH. POST, Aug. 24, 1993, at C1-2.

6. See, e.g., William H. Lash III, Environment and Global Trade, SOC'Y, May 1994, at 52 ("The side agreements gained NAFTA endorsements from the Audubon Society, the World Wildlife Fund, the Environmental Defense Fund, and other leading environmental advocacy groups. Greenpeace, the Sierra Club, and Friends of the Earth continued to oppose the agreements."). An excellent review of the NAAEC comparing the negotiating positions of the United States, Mexico, and national environmental groups that supported NAFTA, with the final text of the NAAEC has been published by the Texas Center for Policy Studies. MARY E. KELLY, NAFTA's ENVIRONMENTAL SIDE AGREEMENT: A REVIEW AND ANALYSIS (Tex. Ctr. for Policy Studies 1993). The report sharply criticizes the NAAEC citizen petition process and concludes that the environmental groups that supported NAFTA settled for far less than they originally requested.

7. North American Agreement on Environmental Cooperation, Sept. 8-14, 1993, art. 8, 32 I.L.M. 480 (entered into force Jan. 1, 1994) [hereinafter NAAEC].

8. NAAEC, supra note 7, art. 8; for a more complete discussion of the various powers and responsibilities of the Council, JPAC, and the Secretariat, see Kim & Cargas, supra note 1, at 10728-30.

9. NAAEC, supra note 7, art. 9(1).

10. Id. art. 16.

11. Id. arts. 16(4), 16(5).

12. Id. art. 13; see also infra note 13.

13. Id. art. 14. Article 13 allows a second type of submission to ask the Secretariat to prepare a report on "any matter within the scope of" NACEC's annual program or "any other environmental matter related to the cooperative functions of [the NAAEC]." Id. art. 13. However, article 13 specifically precludes the Secretariat from preparing a report on "issues related to whether a Party has failed to enforce its environmental laws and regulations." Id. Enforcement matters thus fall exclusively under article 14.

Despite this limitation, article 13 may be useful for citizens seeking to redress environmental problems. For example, on June 6, 1995, in a first test case of article 13, three environmental organizations filed a submission requesting that the Secretariat prepare a report addressing the deaths of tens of thousands of migratory waterfowl at the Silva Reservoir in Mexico's Turbio River Basin. See Anthony DePalma, Treaty Partners Study Fate of Birds at Polluted Mexican Lake, N.Y. TIMES, Aug. 1, 1995, at C4. The Secretariat investigated the bird deaths and reported on the likely causes. The report also recommended remedial actions that might prevent future bird deaths of this sort. Ideally, the report will serve as a blueprint for the Mexican government to address the problem. Under article 13, however, NACEC does not have the authority to require specific action recommended by the report.

14. "Each Party shall effectively enforce its environmental laws and regulations through appropriate governmental action…." NAAEC, supra note 7, art. 5(1).

15. See id. art. 45(2)(a), (b).

16. Id. art. 14(1).

17. Draft Procedures for Submissions on Enforcement Matters Under Articles 14 and 15 of the North American Agreement on Environmental Cooperation, art. 3.3 (available from the Secretariat, Commission for Environmental Cooperation; 393, rue St.-Jacques Ouest, Bureau 200; Montreal, Quebec; Canada H2Y 1N9) [hereinafter Draft Procedures].

18. Id. art. 3.3.

19. Id.

20. The Secretariat has designated English, French, and Spanish as acceptable languages. Id. art. 3.2.

21. The submission must assert that a Party is failing to effectively enforce an environmental law and must identify specific provision(s) of the applicable environmental law. Id. art. 5.1.

22. To determine whether a submission is aimed at promoting enforcement rather than harassing industry, the Secretariat will consider whether the submission: (1) comes from an industrial or other competitor, concerns a dispute between competitors, or is aimed at obtaining economic benefits for the submitter; (2) focuses on the acts or omissions of a Party rather than compliance by industry or a particular company or business; and (3) appears vexatious or frivolous. Id. art. 5.4.

23. The submission must include copies of any relevant correspondence with the relevant authorities. The Secretariat has defined the "relevant authorities" as those agencies of the government responsible for the enforcement of the environmental law in question. Id. art. 5.5.

24. NAAEC, supra note 7, art. 14(1).

25. Draft Procedures, supra note 17, arts. 6.1, 6.2.

26. Id. art. 6.3.

27. NAAEC, supra note 7, art. 14(2).

28. To determine whether the submission alleges harm to the submitter, the Secretariat considers: (1) whether the alleged harm is due to the asserted failure to effectively enforce; (2) the nature of the alleged harm to the submitter; and (3) the magnitude of that harm. Draft Procedures, supra note 17, art. 7.3.

29. NAAEC, supra note 7, art. 14(2). The Secretariat has stated that it should not request a response from a challenged Party if the submission is drawn exclusively from mass media reports, unless no other sources of information were available. Draft Procedures, supra note 17, art. 7.4.

30. Draft Procedures, supra note 17, art. 8.1.

31. Id.

32. NAAEC, supra note 7, art. 14(2); Draft Procedures, supra note 17, art. 9.1.

33. In exceptional circumstances and with notification, the Party is given 60 days to advise the Secretariat.

34. NAAEC, supra note 7, art. 14(3); Draft Procedures, supra note 17, arts. 9.2, 9.4. In addition, the challenged Party may include in its response "whether environmental policies have been defined or actions have been taken in connection with the matter in question." Id. art. 9.3.

35. NAAEC, supra note 7, art. 15(1); Draft Procedures, supra note 17, art. 9.6.

36. Draft Procedures, supra note 17, art. 9.7.

37. NAAEC, supra note 7, art. 15(1); Draft Procedures, supra note 17, art. 10.1.

38. NAAEC, supra note 7, art. 15(2); Draft Procedures, supra note 17, art. 10.3.

39. Draft Procedures, supra note 17, art. 10.3.

40. NAAEC, supra note 7, art. 15(4)(a)-(d); Draft Procedures, supra note 17, art. 11.1.

41. NAAEC, supra note 7, art. 15(5); Draft Procedures, supra note 17, art. 11.4.

42. Id.

43. NAAEC, supra note 7, art. 15(6); Draft Procedures, supra note 17, art. 11.4.

44. Id.

45. NAAEC, supra note 7, art. 15(7); Draft Procedures, supra note 17, art. 13.1.

46. Id.

47. Draft Procedures, supra note 17, art. 13.1.

48. Id. art. 13.2.

49. This axiom is often attributed to Roscoe Pound, former Dean, Harvard Law School. See Martel v. County of Los Angeles, 56 F.3d 993 (9th Cir. 1995); see also U.S. Fidelity & Guaranty Co. v. Helm, 84 F.2d 546 (9th Cir. 1936); United States v. 16,000 Acres of Land, 49 F. Supp. 645 (D. Kan. 1942); Boyle v. Larzelere, 13 N.W.2d 528 (Wis. 1944); Lanzer v. Moran, 44 N.Y.S.2d 359 (N.Y. Sup. Ct. 1943); Schee v. Schee, 4 S.W.2d 760 (Mo. 1928); Gohman v. City of St. Bernard, 146 N.E. 291 (Ohio 1924).

50. The submitters were Consejo Asesor Sierra Madre, Biodiversity Legal Foundation, Forest Guardians, Greater Gila Biodiversity Project, and Southwest Center for Biological Diversity. A Petition Pursuant to Article 14 of the North American Agreement on Environmental Cooperation, submitted to the Secretariat of the Commission for Environmental Cooperation, on behalf of Biodiversity Legal Foundation, Consejo Asesor Sierra Madre, Forest Guardians, Greater Gila Biodiversity Project, and Southwest Center for Biological Diversity (July 5, 1995) (SEM-95-001) [hereinafter SEM-95-001 Submission]. The Secretariat has established a registry that tracks citizen submissions it receives. It is available by fax or mail from the Commission at: NAEC, 393 St.-Jacques W., Ste. 200, Montreal, PQ H2Y 1N9, Canada; telephone number: (514) 350-4300; fax: (514) 350-4314.

51. Id. at 1, 5, 7; 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

52. Emergency Supplemental Appropriations and Rescissions for the Department of Defense to Preserve and Enhance Military Readiness Act of 1995, Pub. L. No. 104-06, 109 Stat. 73 (1995) [hereinafter 1995 Supplemental Appropriations Act].

53. Id. ch. IV, 109 Stat. at 86.

54. 16 U.S.C. § 1533(a)(1), (3), ELR STAT. ESA § 4(a)(1), (3).

55. 1995 Supplemental Appropriations Act, supra note 52, ch. IV, 109 Stat. at 86.

56. SEM-95-001 Submission, supra note 50, at 7; NAAEC, supra note 7, art. 3 (emphasis added).

57. SEM-95-001 Submission, supra note 50, at 7-8; Silver v. Babbitt, No. 94-337 PHX CAM, slip. op. at 7 (D. Ariz. May 10, 1995) ("there is no substantive amendment in the ESA by the [Moratorium].").

58. Letter from Victor Lichtinger, Executive Director, Secretariat, to Earthlaw, University of Denver College of Law, Sept. 22, 1995, at 4 (on file with author).

59. Id. at 6.

60. Silver, slip. op. at 7.

61. Letter from Victor Lichtinger, Executive Director, Secretariat, to Earthlaw, University of Denver College of Law, Sept. 21, 1995, at 4 (on file with author).

62. As provided in the Draft Procedures for Submissions on Enforcement Matters Under Articles 14 and 15 of the North American Agreement on Environmental Cooperation, on October 17, 1995, Earthlaw submitted new and supplemental information in response to the Secretariat's ruling urging it to reconsider its decision. Draft Procedures, supra note 17, art. 8(1).

63. See, e.g., DANIEL MAGRAW, NAFTA AND THE ENVIRONMENT: SUBSTANCE AND PROCESS 18 (American Bar Ass'n 1995) ("The Commission will encourage and make more effective the enforcement of environmental laws and regulations. Throughout the negotiations of the NAAEC, there was a consensus among the countries that the laws on the books in the three countries provided for high levels of protection and thus that the focus of these negotiations should be on strengthening enforcement (and preventing rollback) of those laws, rather than on improving them per se.") (emphasis added).

64. See, e.g., Kim & Cargas, supra note 1, at 10720 (quoting former U.S. Environmental Protection Agency Administrator William K. Reilly as observing that NAFTA is "the most environmentally sensitive … free trade agreement ever negotiated anywhere."); Lash, supra note 6, at 52 ("NAFTA is easily the 'greenest' trade agreement to date.").

65. See, e.g., Mello, supra note 1, at 8 ("While NAFTA has been hailed as 'the most environmentally sensitive, the greenest, trade agreement ever negotiated,' it has been noted that all NAFTA needed to do was mention the word 'environment' to qualify for this distinction.").

66. See, e.g., Kim & Cargas, supra note 1, at 10726; NAFTA's True Importance, supra note 3, § 4, at 1.

67. See, e.g., Kim & Cargas, supra note 1, at 10733 ("Many expect provisions of NAFTA and the Side Agreement to serve as an example for future trade negotiations.").

68. Full Slate of Negotiations Underway on Chile's Entry to NAFTA, INSIDE NAFTA, July 26, 1995, at 3.

69. NAFTA Ministers Lay Groundwork for Environmental Secretariat, World Env't Rep., Mar. 30, 1994, available in LEXIS, Market Library, IACNWS File.