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Spring 2000

Volume 4
For more information about this or other publications from the CEC,

contact:

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ISBN: 2-89451-427-1

© Commission for Environmental Cooperation, 2000

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Legal Deposit - Bibliothèque nationale du Québec, 2000

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Disponible en français – ISBN: 2-89451-428-X

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This publication was prepared by the Secretariat of the Commission for

Environmental Cooperation (CEC). The views contained herein do not

necessarily reflect the views of the governments of Canada, Mexico, or

the United States of America.

This book is printed on recycled paper.
PROFILE

In North America, we share a rich environmental heritage that

includes air, oceans and rivers, mountains and forests. Together, these

elements form the basis of a complex network of ecosystems that sustains our livelihoods and well-being. If these ecosystems are to continue

being a source of future life and prosperity, they must be protected.

Doing so is a responsibility shared by Canada, Mexico, and the United

States.

The Commission for Environmental Cooperation (CEC) is an

international organization created by Canada, Mexico, and the United

States under the North American Agreement on Environmental Cooperation (NAAEC) to address regional environmental concerns, help prevent potential trade and environmental conflicts and to promote the

effective enforcement of environmental law. The Agreement complements the environmental provisions of the North American Free Trade

Agreement (NAFTA).

The CEC accomplishes its work through the combined efforts of its

three principal components: the Council, the Secretariat and the Joint

Public Advisory Committee (JPAC). The Council is the governing body

of the CEC and is composed of the highest-level environmental authorities from each of the three countries. The Secretariat implements the

annual work program and provides administrative, technical and operational support to the Council. The Joint Public Advisory Committee is

composed of fifteen citizens, five from each of the three countries, and

advises the Council on any matter within the scope of the Agreement.

MISSION

The CEC facilitates cooperation and public participation to foster

conservation, protection and enhancement of the North American environment for the benefit of present and future generations, in the context

of increasing economic, trade and social links among Canada, Mexico,

and the United States.

TABLE OF CONTENTS

PRESENTATION AND ACKNOWLEDGMENTS . . . . . . . XI

PART I- TRANSBOUNDARY ENVIRONMENTAL

IMPACT ASSESSMENT . . . . . . . . . . . . . . . . 1

Commonly Found Components in Transboundary

Environmental Impact Assessment Arrangements . . . . . 3

Term of Art Definitions Contained in International

Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Issues under Article 10(7) of the North American

Agreement on Environmental Cooperation . . . . . . . . 17

The Process of “Notification” in the Context of

Transboundary Environmental Impact Assessment:

A Comparative Review of Selected Bilateral and

Multilateral Agreements . . . . . . . . . . . . . . . . . . . 49

Annex: Tables . . . . . . . . . . . . . . . . . . . . . . . 73

Assessing Transboundary Environmental Impacts under

Article 10(7)(a) of the North American Agreement on

Environmental Cooperation: A Comparative Review

of Selected Bilateral and Multilateral Agreements . . . . . 95

Annex: Tables . . . . . . . . . . . . . . . . . . . . . . 115

IX
Mitigation of Transboundary Environmental Impacts

under Article 10(7)(c) of the North American Agreement

on Environmental Cooperation: A Comparative Review

of Selected Bilateral and Multilateral Agreement. . . . . 133

Annex: Tables . . . . . . . . . . . . . . . . . . . . . . 147

Dispute Resolution in the Context of Transboundary

Environmental Impact Assessment: A Comparative

Review of Selected Bilateral and Multilateral

Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 157

Appendices . . . . . . . . . . . . . . . . . . . . . . . . 173

PART II- ACCESS TO COURTS AND ADMINISTRATIVE

AGENCIES IN TRANSBOUNDARY

POLLUTION MATTERS . . . . . . . . . . . . . . 203

Access to Courts and Administrative Agencies in

Transboundary Pollution Matters . . . . . . . . . . . . . 205

X NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
PRESENTATION AND

ACKNOWLEDGEMENTS

In 1993, in the context of the negotiations of the North American

Free Trade Agreement (NAFTA), the governments of Canada, Mexico

and the United States agreed on a framework for environmental cooperation in North America: the North American Agreement on Environmental Cooperation (NAAEC). The NAAEC provides for the

establishment of the Commission for Environmental Cooperation

(CEC), responsible for the implementation of the NAAEC.

The CEC’s mission statement builds on the preamble and objectives of the NAAEC by stating: “The CEC facilitates cooperation and

public participation to foster conservation, protection and enhancement

of the North American environment for the benefit of present and future

generations, in the context of increasing economic, trade and social links

between Canada, Mexico and the United States.”

The background papers contained in this volume were prepared

by the CEC Secretariat to foster and support governmental discussions

and negotiations on the development of two intertwined transboundary

issues: a Transboundary Environmental Impact Assessment (TEIA)

regime for North America and recommendations for the removal of

barriers limiting access to courts and administrative agencies in

transboundary environmental matters. These initiatives fall within the

ambit of the CEC Council’s functions, as provided in NAAEC Articles

10(7) and 10(9).

The first section of this volume contains a series of background

papers prepared for discussions held under the auspices of the CEC by

North American governmental experts on EIA, with a view to developing a North American TEIA regime. These papers provide a survey and

critical review of the realm of existing legal instruments (formal and

informal) containing provisions, the consideration of which may be releXI
vant to the development of a TEIA regime. Each of these background

papers focuses on one of the commonly found components of existing

TEIA regimes: notification, assessment, mitigation, and dispute resolution. These components, as described and summarized by the Secretariat, are included at the beginning of Part I of this volume. It must be

noted that the description of commonly found TEIA components, as

well as the content of the background papers contained in this volume,

do not necessarily reflect the views of any of the governments of Canada,

Mexico or the United States.

The second part of this volume consists of a single background

paper prepared by the Secretariat to provide the governments and the

North American public-at-large, with baseline information on existing

domestic recourses and remedies generally available to citizens seeking

environmental redress. The paper also evaluates the potential barriers

that North American citizens seeking such redress may face as a result of

their living on the “wrong side of the border.”

It is hoped that the publication of these background papers will

assist individuals and organizations – in North America and beyond –

interested in the development and promotion of EIA in a transboundary

context, and in the removal of barriers to transboundary access to courts

and administrative agencies.

The CEC is indebted to a number of experts who have contributed

to the drafting and revision of the various background papers. In particular, the CEC would like to acknowledge the contribution of Mr.

Howard Mann in the preparation of the background papers contained in

Part I. Mr. Mann also coordinated the review of the final draft of the

background paper on access to courts. In addition to the other contributors acknowledged in the Part II paper itself, the CEC wishes to acknowledge the following for their work in the preparation and editing of this

compendium: Greg Block, CEC Director of Programs, Stéphanie Johnson, legal consultant, and Nathalie Herren and Julie-Anne Bellefleur,

program assistants. The CEC is also grateful for the help and courtesy of

Mr. Louis Bossé, Publications Director, Les Éditions Yvon Blais, Inc.

Please note that the background papers contained in Part I were

not initially intended for wide distribution and as a result, the various

drafts (and translations) have not been the subject of a review and clearance process as thorough as might otherwise have been the case.

Although every effort has been made to ensure the accuracy of the various background papers, the Commission for Environmental CooperaXII NORTH AMERICAN ENVIRONMENTAL LAW AND POLICY
tion, and the governments of Canada, Mexico and the United States

assume no responsibility for the contents of this publication. Readers are

always advised to consult the original sources referred to in the papers.

Marc Paquin

Editor, North American Environmental Law and Policy

CEC Council Secretary and Program Manager for TEIA and RAC

PRESENTATION AND ACKNOWLEDGEMENTS XIII

PART I

Transboundary Environmental

Impact Assessment

COMMONLY FOUND COMPONENTS IN

TRANSBOUNDARY ENVIRONMENTAL IMPACT

ASSESSMENT1 ARRANGEMENTS

This document does not necessarily reflect the views of the

Commission for Environmental Cooperation or of the Parties to

the North American Agreement on Environmental Cooperation

COMPONENT I

Notification of a Proposed Project with the potential to cause

significant adverse transboundary environmental impacts

1. A Party that, prior to its implementation, determines that a Proposed Project2 under its jurisdiction (“Party of Origin”) has the potential

to cause significant adverse transboundary environmental impacts

(“transboundary impacts”) should provide early notification to other

Parties which may be affected by that Proposed Project (“Potentially

Affected Parties”);

2. The Party of Origin should notify the Potentially Affected Parties, as

early as possible, but, in ordinary circumstances, no later than when

informing its own public about a Proposed Project described in paragraph 1 in order to provide the Potentially Affected Parties and their

public a meaningful opportunity to have their comments considered;

3. In their response to the notification of a Proposed Project, the Potentially Affected Parties should indicate whether or not they intend to provide comments, or to participate in an environmental impact assessment

if one is undertaken.

3

1. In this document, the term “environmental impact assessment” refers to either a formal EIA procedure, or a project approval procedure (such as a permitting procedure)

providing for the consideration of the environmental impacts of Proposed Projects.

2. The definition of the term “Proposed Project” is critical to the scope of TEIA arrangements. Entities entering into TEIA arrangements need to carefully consider what

activities are included and excluded from the scope of this term.
COMPONENT II

Provision of relevant information and consultation between Parties

with respect to a Proposed Project with the potential to cause

significant adverse transboundary environmental impacts

1. The Party of Origin should provide the Potentially Affected Parties

with relevant information sufficient to apprise the Potentially Affected

Parties of the nature of the Proposed Project;

2. If, prior to the implementation of the Proposed Project, the Party of

Origin becomes aware of new and material information relating to the

potential for significant adverse transboundary environmental impacts

of a Proposed Project, it should promptly transmit such information to

the Potentially Affected Parties;

3. The Party of Origin should promptly provide available information

on an existing or potential transboundary impact from a Proposed

Project at the request of a Potentially Affected Party which is or may

be affected, whether or not notification was given in accordance with

Component I;

4. The Parties should enter into consultation on an existing or potential

transboundary impact from a proposed project at the request of a Potentially Affected party which is or may be affected and should pursue such

consultations over a reasonable period of time.

COMPONENT III

Assessment of the impact of a Proposed Project with the potential to

cause significant adverse transboundary environmental impacts,

including full evaluation of comments provided by Potentially

Affected Parties and the public of such Parties

1. The Party of Origin should assess the transboundary impact of

a Proposed Project with the potential to cause significant adverse

transboundary effects and ensure that the Potentially Affected Parties

and their public have a meaningful opportunity to participate in the

assessment process;

2. The Party of Origin should fully evaluate comments provided by

Potentially Affected Parties and their public;

4 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
3. The Party of Origin should promptly transmit to the Potentially

Affected Parties the written documentation of any completed environmental impact assessment and communicate to them whether or not the

Proposed Project will proceed.

COMPONENT IV

Consideration of mitigation of the potential

significant adverse transboundary impacts

1. The Party of Origin should consider mitigation measures as early as

possible during the environmental impact assessment of a Proposed

Project;

2. In deciding which, if any, mitigation measures to adopt, the Party of

Origin should consider relevant comments provided on the matter by

the Potentially Affected Parties or their public.

COMPONENT V

On-going cooperation

1. The Parties should cooperate on an on-going basis in the sharing of

experiences and information to promote the improvement of methods

and techniques for conducting transboundary environmental impact

assessment, mitigating environmental impacts and conducting postproject monitoring.

COMMONLY FOUND COMPONENTS 5

Commission for Environmental Cooperation

Secretariat Distr.

GENERAL

TEIA/96.02.05/S/2

29 March 1996

Original: English

TERM OF ART DEFINITIONS CONTAINED

IN INTERNATIONAL AGREEMENTS

Background Paper

This document does not necessarily reflect the views of the

Commission for Environmental Cooperation or of the Parties to

the North American Agreement on Environmental Cooperation

At the February 1996 meeting of the Parties on transboundary

environmental impact assessment, the Parties requested that the Secretariat prepare a list of definitions already found in existing agreements

and documents dealing with transboundary environmental assessment

issues. This list is presented below.

To prepare this list, the documents and treaties noted in the

attached list of sources were each reviewed. All definitions per se that

are the same or similar in intent to the list of terms set out by the Parties in

February are reprinted below, with the specific source. In some cases,

the definitions are quite specific, for example to air or oil pollution

issues, reflecting the scope of the document quoted. In addition to definition sections, other sections that set out definition-like language are

included. These were distinguished from operational and standard setting provisions found in these agreements. Those terms identified by the

Parties, but for which no definitions were found, are set out at the end of

the material.

7
In all cases, the documents reviewed contained very few definitions. There appears, rather, to be a general understanding of many of

the terms of art associated with Environmental Impact Assessments that

the Parties to these instruments have relied upon. In addition, the more

detailed operational and standard setting provisions have provided

contextualized applications of the various terms that go beyond any

traditional notion of a definition. These types of provisions are considered in other material the Secretariat has prepared for the Parties on this

project.

DEFINITIONS

Transboundary

• “Border area”: refers to the area situated 100 kilometers on either side

of the inland and maritime boundaries between the Parties. (La Paz

Agreement, Art. 4, 1983; see also the US-Mexico BECC, Part I, Art. VII)

Impacts, Adverse effects

• “Polluting incident”: a discharge or the threat of a discharge of any

hazardous substance on one side of the inland international boundary of a magnitude which causes, or threatens to cause, imminent and

substantial adverse effects on the public health, welfare, or the environment. (Annex II to the La Paz Agreement, Art. 1, 1985)

• “Pollution of an international watercourse”: any detrimental alteration in the composition or quality of the waters of an international

watercourse which results directly or indirectly from human conduct. (I.L.C. Draft Articles, Art. 21.1, 1994)

• “Air pollution”: the introduction by man, directly or indirectly, of

substances into the air resulting in deleterious effects of such a nature

as to endanger human health, harm living resources and ecosystems

and material property and impair or interfere with amenities and

other legitimate uses of the environment, and “air pollutants” shall be

construed accordingly. (Air Quality Accord, Art. 1, 1991)

• “Impact” means any effect caused by a proposed activity on the environment, including human health and safety, flora, fauna, soil, air,

water, climate, landscape and historical monuments or other physical

8 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
structures or the interaction among these factors; it also includes

effects on cultural heritage or socio-economic conditions resulting

from alterations to those factors. (Espoo, Art. 1(vii), 1991)

• “Effects”: ...particularly complex and potentially adverse effects,

including those giving rise to serious effects on humans or on valued

species or organisms, those which threaten the existing or potential

use of an affected area and those causing additional loading which

cannot be sustained by the carrying capacity of the environment.

(Espoo, Appendix III, Art. 1(c), 1991)

• “Effects”: means any direct or indirect, immediate or delayed adverse

consequences caused by an industrial accident on, inter alia,

(i) human beings, flora and fauna;

(ii) soil, water, air and landscape;

(iii) the interaction between factors in (i) and (ii);

(iv) material assets and cultural heritage, including historical monuments.

(ECE Transboundary Accidents, Art. 1, 1992)

• “Adverse effects of climate change”: means changes in the physical

environment or biota resulting from climate change which have significant deleterious effects on the composition, resilience or productivity of natural and managed ecosystems or on the operation of

socio-economic systems or on human health and welfare. (Climate

Change Convention, Art. 1.1, 1992)

• “Harm”: ...including harm to human health or safety, to the use of the

waters for any beneficial purpose or to the living resources of the

watercourse. (I.L.C. Draft Articles, Art. 21.2, 1994)

Transboundary effects

• “Transboundary air pollution”: air pollution whose physical origin is

situated wholly or in part within the area under the jurisdiction of one

Party and which has adverse effects, other than effects of a global

nature, in the area under the jurisdiction of the other Party. (Air Quality Accord, Art. 1, 1991)

TERM OF ART DEFINITIONS 9
• “Transboundary impact” means any impact, not exclusively of a

global nature, within an area under the jurisdiction of a Party caused

by a proposed activity the physical origin of which is situated wholly

or in part within the jurisdiction of another Party. (Espoo, Art. 1(viii),

1991)

• “Transboundary impact” means any significant adverse effect on the

environment resulting from a change in the conditions of

transboundary waters caused by a human activity, the physical origin

of which is situated wholly or in part within an area under the jurisdiction of a Party, within an area under the jurisdiction of another

Party. Such effects on the environment include effects on human

health and safety, flora, fauna, soil, air, water, climate, landscape and

historical monuments or other physical structures or the interaction

among these factors; they also include effects on the cultural heritage

or socio-economic conditions resulting from alterations to those factors. (ECE Transboundary Watercourses, Art. 1(2), 1992)

• “Transboundary effects” means serious effects within the jurisdiction

of a Party as a result of an industrial accident occurring within the

jurisdiction of another Party. (UNECE Transboundary Accidents,

Art. 1, 1992)

• “Transboundary impacts”: any significant adverse effect on the

riverine environment resulting from a change in the conditions of the

waters caused by human activity and stretching out beyond an area

under the jurisdiction of a Contracting Party. Such changes may affect

life and property, safety of facilities and the aquatic ecosystems

concerned. (Danube River Convention, 1994, Art. 1(c))

Mitigation

• “Response measures”: to eliminate to the extent possible the threat

posed by such incidents and to minimize any adverse effects on the

environment and the public health and welfare. (Annex II to the

La Paz Agreement, Art. III, 1985)

• ...providing adequate means within their power to eliminate the

threat posed by such incidents and to minimize the adverse effects

to the marine environment and the public health and welfare.

(Mexico-US Marine Pollution Agreement, Art. III, 1980)

• ...the measures envisaged in order to avoid, reduce and, if possible,

remedy significant adverse effects. (EU Directive, Art. 5(2), 1985)

10 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Significant

• “Of a magnitude or significance” that requires an immediate response in

order to contain, recover or destroy the substance for the purpose of

eliminating the threat or of minimizing its effects on the marine flora

and fauna and on the public health and welfare. (Mexico-US Marine

Pollution Agreement, Art. II(a), 1980)

• ...according to whether those activities are identified as having:

(a) less than a minor or transitory impact;

(b) a minor or transitory impact; or

(c) more than a minor or transitory impact.

(Antarctic Treaty Protocol, Art. 8, 1991)

Competent government authority

• “Competent authority” means the national authority or authorities

designated by a Party as responsible for performing the tasks covered

by this Convention and/or the authority or authorities entrusted by a

Party with decision-making powers regarding a proposed activity.

(Espoo, Art. 1(ix), 1991)

• “Competent authority or authorities”: that or those which the Member States designate as responsible for performing the duties arising

from this Directive. (EU Directive, Art. 1(3), 1985)

Project

• “Project”: the execution of construction works or of other installations

or schemes; other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.

(EU Directive, Art. 1(2), 1985)

• “Proposed activity”: any activity or any major change to an activity

subject to a decision of a competent authority in accordance with an

applicable national procedure. (Espoo, Art. 1(v), 1991)

TERM OF ART DEFINITIONS 11
Environment

• “Environment” means the atmosphere, land, and surface and ground

water, including the natural resources therein, such as fish, wildlife,

forests, crop and rangeland, rivers, streams, aquifers and all other

components of the ecosystem. (Annex II to the La Paz Agreement,

Art. 1(b), 1985)

• ...”the environment”, including human health and safety, flora,

fauna, soil, air, water, climate, landscape and historical monuments

or other physical structures or the interaction among these factors.

(Espoo, Art. 1(vii), 1991)

• Such effects on the “environment” include effects on human health

and safety, flora, fauna, soil, air, water, climate landscape and historical monuments or other physical structures or the interaction among

these factors; they also include effects on the cultural heritage or

socio-economic conditions resulting from alterations to those factors.

(ECE Transboundary Watercourses, Art. 1(2), 1992)

• ...the aspects of the “environment” likely to be significantly affected by

the proposed project, including, in particular, population, fauna,

flora, soil, water, air, climatic factors, material assets, including the

architectural and archeological heritage, landscape and the interrelationship between the above factors. (EU Directive, Annex III, Art. 3,

1985)

Environmental impact assessment

• “Environmental Impact Assessment” means a national procedure for

evaluating the likely impact of a proposed activity on the environment. (Espoo, Art. 1(vi), 1991)

• ...comprehensive analytical procedures for prior and simultaneous

assessment of the impacts of decisions, including the impacts within

and among the economic, social and environmental spheres ... analysis should also include assessment of costs, benefits and risks.

(Agenda 21, Ch. 8, Par. 8.5(b)

• “EIA” means an examination, analysis and assessment of planned

activities with a view to ensuring environmentally sound and sustainable development. (UNEP, 1987, Preliminary Notes)

12 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Monitoring

• Regular and effective “monitoring” shall take place to allow assessment of the impacts of ongoing activities, including the verification of

predicted impacts;

• ...to facilitate early detection of the possible unforeseen effects of

activities carried on both within and outside the Antarctic Treaty area

on the Antarctic environment and dependent and associated ecosystems. (Antarctic Treaty Protocol, Art. 3.2(d) and (e), 1991)

• “Monitoring”: to assess and verify the impact of any activity that proceeds ... to provide a regular and verifiable record of the impacts of the

activity. (Antarctic Treaty Protocol, Annex I, Art. 5)

Decision

• “Development consent”: the decision of the competent authority or

authorities which entitles the developer to proceed with the project.

(EU Directive, Art. 1(2), 1985)

Statement

• “An initial environmental evaluation”: a quick and informal assessment of the proposed activity to determine whether its effects are

likely to be significant. (UNEP, Prin. 2, footnote (d), 1987)

• “Initial Environmental Evaluation”: ...assess whether a proposed

activity may have more than a minor or transitory impact. (Antarctic

Treaty Protocol, Annex I, Art. 2(1), 1991)

Terms for which no definitions were found

• Notification; Environmental damage; Public consultation; Responsibility; List of documents.

TERM OF ART DEFINITIONS 13
SOURCES REVIEWED

Accord sur l’Escaut: Accord concernant la protection de l’Escaut,

République Française, Royaume des Pays-Bas, la Région de

Bruxelles-Capitale, la Région Flamande et la Région Wallonne,

1994.

Agenda 21: Agenda 21, United Nations Conference on Environment and

Development, Rio de Janeiro, 1992.

Air Quality Accord: Agreement between the Government of Canada

and the Government of the United States of America on Air Quality, 1991.

Annex II to the La Paz Agreement: Agreement of Cooperation between

The United States of America and the United Mexican States

Regarding Pollution of the Environment Along the Inland International Boundary by Discharges of Hazardous Substances, 1985,

Annex II to the Agreement between the United States of America

and the United Mexican States on Cooperation for the Protection

and Improvement of the Environment in The Border Area.

Antarctic Treaty Protocol: Protocol on Environmental Protection to the

Antarctic Treaty, Annex I: Environmental Impact Assessment,

1991.

Bay of Fundy Protocol, Draft: Protocol on Transboundary Environmental Impact Assessment, Gulf of Maine Council on the Marine Environment, draft for discussion purposes, 1994.

Biodiversity Convention: Convention on Biological Diversity, June,

1992.

British Columbia/Washington State Environmental Cooperation

Agreement: Environmental Cooperation Agreement Between the

Province of British Columbia and the State of Washington, May 7,

1992.

Climate Change Convention: United Nations Framework Convention

on Climate Change, 1992.

Danube River Protection Convention: Convention on Cooperation for

the Protection and Sustainable Use of the Danube River, June, 1994.

ECE Transboundary Watercourses: ECE Convention on the Protection

and Use of Transboundary Watercourses and International Lakes,

1992.

14 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
ECE Transboundary Accidents: ECE Convention on the Transboundary

Effects of Industrial Accidents, 1992.

Espoo Convention: Convention on Environmental Impact Assessment

in a Transboundary Context, UN Economic Commission for

Europe, 1991.

EU Directive: Council Directive 85/337/EEC of 27 June 1985 on the

Assessment of the Effects of Certain Public and Private Projects on

the Environment.

I.L.C. Draft Articles, 1994: International Law Commission, Draft Articles

on the Non-Navigational Uses of International Watercourses, as

submitted to the Sixth Committee of the United Nations General

Assembly, 1994.

La Paz Agreement: Agreement Between the United States of America

and the United Mexican States on Cooperation for the Protection

and Improvement of the Environment in the Border Area, 1983.

Mexico-US Marine Pollution Agreement: Agreement of Cooperation

between the United States of America and the United Mexican

States Regarding Pollution of the Marine Environment by Discharges of Hydrocarbons and other Hazardous Substances, 1980.

New York State-Québec MOU: Memorandum of Understanding on

Environment Cooperation between the Government of the State of

New York and the Gouvernement du Québec, May 10, 1993.

Transboundary Impact Assessment Overarching Principles, adopted by

the Council of the Commission for Environmental Cooperation,

October, 1993.

United Nations Environment Programme (UNEP), Goals and Principles

of Environmental Impact Assessment, June 17, 1987.

US-Mexico Border Environment Cooperation Commission (BECC)

Agreement: Agreement Between the Government of the United

States of America and the Government of the United Mexican

States Concerning the Establishment of a Border Environment

Cooperation Commission and a North American Development

Bank, 6 November 1993.

TERM OF ART DEFINITIONS 15

Commission for Environmental Cooperation

Secretariat Distr.

GENERAL

TEIA/96.02.05/S/WP.01

15 March 1996

Original: English

ISSUES UNDER ARTICLE 10(7) OF THE NORTH AMERICAN

AGREEMENT ON ENVIRONMENTAL COOPERATION

Background Paper

This document does not necessarily reflect the views of the

Commission for Environmental Cooperation or of the Parties to

the North American Agreement on Environmental Cooperation

INTRODUCTION

As a follow-up to the meeting of the Parties of February 1-2, 1996,

the Secretariat was requested to prepare a brief description of the issues

identified by the Parties as relevant to the transboundary environmental

impact assessment (TEIA) project, and an indication of the associated

options. This document provides these two elements. The issues raised

by the Parties are each found in separate sections. In some cases, however, issues have been joined or moved where it was considered that a

more logical flow to the document would emerge from this editorial

step.

The document is set out in four main parts, corresponding to the

issues identified by the Parties:

• notification;

• exchange of information and assessment;

17
• mitigation;

• consultation and dispute resolution.

PART ONE: NOTIFICATION

1. Trigger for notification

In this context, the trigger is not for the conduct of a TEIA, but for

notification to another jurisdiction that there may be a need to consider

potential transboundary impacts of a proposed project in an assessment

process. The possible triggers below show that the primary responsibility lies with the jurisdiction of origin, but that a triggering role can also be

played by the potentially affected jurisdiction. One trigger or a combination of triggers are possible.

1.1 List of possible projects

A list of public and private sectors projects that would trigger a

notification could be prepared and included in an Annex. The projects

would include those expected to have a potential significant

transboundary environmental impact due to their nature and/or size.

1.2 Proximity to border

Any project or a listed project within a fixed distance from a border

can be made subject to notification. Used alone, this provides certainty

that all projects within this distance will be notified. Attached to a list of

projects, this approach limits the projects to be notified to those that meet

both criteria (on the list and within the distance).

1.3 Potential significance of impact

An initial determination in the jurisdiction of origin that a proposed project may have a significant transboundary impact can be used

as a stand-alone trigger for notification covering any project proposal.

This would cover any type of project at any distance from the border.

This test can also be combined with one or both of the previous tests

either:

• as a second or third condition on when to notify (project list

and/or distance from border and a possible significant impact);

or

18 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
• as a residual test to be applied when other triggers do not

capture a proposed project that has a potential significant

transboundary impact.

Determining a potential “significant” impact can itself present difficulties. One approach is to set out initial criteria to guide such a determination in an Annex. The application of a precautionary principle

approach to this determination could be included either as part of the

determination or as a separate element. The essence here would be, simply, when in doubt – notify. This part of the process can be connected to a

consultation and/or dispute resolution process (see sections 12 and 13

below).

1.4 Discretionary notification / Awareness of available information

A further option is to leave notification fully to the discretion of the

jurisdiction of origin of a project. This approach would rely on principles

of good neighborliness and reciprocity as the basis for its implementation, with none of the additional guidance found in the previous options.

As an additional rather than sole trigger, this could be similar to the “significant impact” trigger being applied as a residual test as per section 1.3.

1.5 Domestic regulatory obligations / Pro-active domestic measures

Domestic environmental assessment or related legislation may

require an assessment of any potential transboundary impacts, even in

the absence of an internationally adopted trigger for this, or in the

absence of an assessment of domestic impacts by the same or any authority. Where there is such a requirement, the Parties may wish to apply the

notification process developed here.

1.6 Request by potentially affected jurisdiction

Where a proposed project for which no notification is given comes

to the attention of another jurisdiction, and it believes that the project

may significantly affect its environment, information and “notification”

may be requested by that jurisdiction. As the primary responsibility for

notification lies with the jurisdiction of origin, this would normally be a

residual means for gaining notification. This might be coupled with a

process for formal or informal consultations. (See section 12 on consultations below.) Criteria for such a request can be developed.

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 19
1.7 Public request (formal or informal)

In the absence of a formal notification between governments, or a

request by a potentially affected Party, a process for notification could be

initiated by the public of either jurisdiction. One might consider imposing some conditions on this approach, most notably the reasons leading

to the request, including an indication of the anticipated impacts.

1.8 Exemptions from TEIA process

In some circumstances an exemption from a TEIA may be necessary. These circumstances could include necessary and immediate

actions related to national security, responses to natural disasters or

other emergency situations.

2. Content: Information contained in the notification

As noted above, the initial notification is about possible

transboundary impacts that may be included in a project assessment.

Thus, the information included would be preliminary in nature,

designed to provide sufficient information for the jurisdictions involved

(potentially more than just two) to consider in an informed way whether

significant transboundary impacts are likely and should, therefore, be

fully assessed.

2.1 Minimum information requirements

Minimum information requirements would be designed to meet

this sufficiency threshold. This information could include:

• type of project and the rationale for the project;

• location, design and size of the project;

• date of proposal and planned start of work or operation;

• designated responsible authority, with contact information;

• potential transboundary impacts of the project and any contemplated mitigation measures; and

• a time frame for responding to notification (if not dealt with

elsewhere).

20 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Where a minimum requirement is set out in this way, each jurisdiction would have the liberty to provide additional information. Where

the location and nature of a proposed project make it reasonable to presume a TEIA will be required, it may be desirable to include any additional available information as early as possible in the process, including

with the notification.

2.2 Alternative formulations

An alternative to minimum information requirements could be a

more generalized requirement to submit to the other jurisdiction(s):

• all available public information related to the proposal, or

• all information made available to the public by the responsible

authority in the jurisdiction of origin of the project.

These or a similar alternative could be combined with the previous

alternative to supplement the minimum required information. This

approach might, however, be less standardized, particularly if several

jurisdictions are involved.

2.3 Standardized formats and protocols

A standard form (format or protocol) on which to supply the notification information could be seen as a means to assist the jurisdiction of

origin to ensure consistency and completeness in their notification information. If a form is adopted, it should reflect the information that has to

be included, as determined by the Parties or the jurisdictions involved,

rather than become a second source of a different requirement. A standardized form could be set out in a technical Annex.

2.4 Protected information / Trade secrets / Confidential information

This issue relates to both information provided in a notification

and information required for the purposes of conducting a TEIA (and

perhaps follow-up reviews). It is generally understood that some constraints on the provision of information are appropriate, as they are

under domestic laws. Reference to these domestic laws provides one

option for indicating the constraints to be adopted. Alternatively, customized criteria or guidance can be set out. Such a list might include confidential personal information protected by law, trade secrets and/or

information related to national security.

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 21
If protected or confidential information is provided, either at the

notification stage or later, a condition can be adopted that would require

the receiving jurisdiction to treat the information in the same confidential/protected manner as the jurisdiction of origin. If this could not be

done, one would expect the receiving jurisdiction not to receive the

information in question.

3. Notification logistics: When, how and who

This section looks at four basic logistical issues for notification:

when should it be provided, by what means, by whom and to whom.

3.1 When to notify

Once again, notification as used here is for the purposes of determining the need for a TEIA, not for any subsequent stages of the process.

Options for the timing of this notification include:

• “As early as possible”: this ensures a very early time line, and

may require a jurisdiction to actively pursue information

beyond its normal process for receiving and processing such

information in the context of its administrative operations.

• “As early as practical”: this can be seen as somewhat less

demanding, allowing the notification to fit into the other administrative processes more easily while still requiring an early

notification to be given.

• “At the same time as the local public”: this requires knowledge

of the domestic law which sets the timing for this notice to the

public in the jurisdiction of origin. This option can also be combined with one of the above options to set a maximum time

frame for their application: i.e., as early as possible/practical but

no later than when the public in the jurisdiction of origin is notified of the proposed project. One might note here that local public involvement sometimes arises only after an assessment has

been completed, and is for the purposes of public comment.

3.2 How: By what means should a notification be sent

Today’s technologies provide options for the transmission of information. Possible means for notification to other government authorities

include:

22 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
• electronic means: e-mail, Internet, computer disk;

• facsimile;

• mail or registered mail; or

• phone.

Presumably, a written form to ensure accurate transmission of the

information included is necessary. A combination of means, for example

a brief facsimile notice that a fuller notification has been prepared and is

available by electronic means could also be considered. This approach

might have particular relevance where a broad distribution is required.

(See sections 3.3 and 3.4)

The above choices presume a non-diplomatic approach to notification. If a diplomatic route is chosen, the Parties may wish to select a more

formal means for transmission of the notification. (See sections 3.3 and

3.4)

3.3 Sender: By whom should a notification be sent

The issue of who should provide notice raises the question of the

role of the central federal authorities and of state and provincial authorities. The Parties have signaled this issue through several references to

the roles of federal, state and provincial entities in their list of issues.

In all three jurisdictions, environmental assessment responsibility

as well as other licensing and permitting responsibilities are shared

between federal and non-federal jurisdictions. In some cases, responsible authorities at both levels of government will have permit, license or

assessment responsibilities in relation to the same proposed project.

These factors highlight the issue of the role of the different authorities. In the present context, notification can be made by the authority initially seized of the conduct of an assessment of the project in question.

This could be a federal, state or provincial authority. Notification can

also be made by a designated “notification authority” for a region in

each transboundary area. Thirdly, notification can be made at the central

levels, by environmental assessment authorities. Fourthly, notification

can be made through diplomatic channels at the central levels.

3.4 Recipient: To whom should a notification be sent

The same questions discussed above apply to the issue of to whom

notification should be sent. Presumably, the principle that is applied to

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 23
the question of who gives the notification will apply to the recipient. If

the notifier is defined as the authority responsible for the conduct of the

assessment in the jurisdiction of origin, whether a central, state or provincial authority, the recipient would logically be the authorities responsible in the potentially affected jurisdiction. This could be more than one

authority (and more than one jurisdiction).

If central authority notification is adopted, appropriate authorities

can be identified at this level to receive the original information from its

own authorities and transmit it to counterparts in the affected jurisdiction. This would apply equally where environmental assessment

authorities or diplomatic channels are chosen as the appropriate route.

Where centralized notification is adopted, the central authorities could

be expected to take on the function of retransmitting the received notification to the local authorities in its territory. This would ensure the

appropriate involvement in the TEIA process in accordance with administrative and jurisdictional divisions within the respective Parties.

Notification can also be made to a central repository of the two

Parties on each border at a regional or national level, or to a tri-lateral

central repository. This can be in addition to the notification processes

described above, or as an alternative to them. A central repository might

assist in improving access to the notification information by government

authorities as well as interested members of the public.

3.5 Need for coordination

Irrespective of which notification formula is adopted, coordination

of the process and the responses of the notified authorities will be important for an effective and efficient operation of the TEIA process. Some

options can be loosely described.

Where centralized notification is adopted, internal processes for

local authorities of the originating jurisdiction to inform the responsible

“notification authority” would need to be established. The reverse process of sending the information to the local authorities involved would

be required following receipt of a notification by the national notification authority of the potentially affected jurisdiction. An additional process for coordinating the conduct of the TEIA may be required here.

Where notification is not centralized at the federal level but left

with the authorities directly implicated, regional notification points can

be established to facilitate access to and diffusion of the required infor24 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
mation. Circulation of a brief facsimile or other written notice of the

inclusion of a proposed project on a registry could be used to initiate the

process.

One or several regional committees for each bilateral border area

could also be established to facilitate this aspect of the process, as well as

later stages of the TEIA. Such a committee structure might also increase

the relevance of the TEIA process to the local communities. This

approach would have to ensure respect for local processes, and would

seek to ensure maximum efficiency and effectiveness in the TEIA process, as per the Overarching Principles (Transboundary Impact Assessment Overarching Principles adopted by the Council of the CEC,

October, 1995).

The Parties could, perhaps more simply, choose to set out an information flow chart that could be adapted for the different projects to facilitate the notification process. These charts could be regionalized for

increased accuracy and relevance.

Most of the above approaches would require some preliminary

work by the local federal and non-federal authorities in a region to identify their roles and responsibilities. One can anticipate this leading to

efficiencies in the process later on.

3.6 Language (Responsibility for translation)

The issue of language is one the Parties may wish to address, in

particular whether information should be sent in the official language(s)

of the receiving jurisdiction.

3.7 Notification to the public

In addition to notification to other government authorities, the

responsibility for notification to the public in the potentially affected

jurisdiction is also a subject for consideration. This includes the same

issues of timing and language as seen above, but also raises the issue of

whether the jurisdiction of origin or the local authorities should undertake this aspect of the process. Generally, responsibility for notification

lies with the jurisdiction of origin. However, in the case of the public,

familiarity with the appropriate means for public notice and involvement, as well as the familiarity of the public with the local process, may

suggest the alternative of local agencies taking on this function, or of

some form of shared responsibility.

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 25
3.8 Costs

The Parties may also have to address the issue of who pays for a

notification, most notably in the event of a translation requirement

and/or widespread agency or public distribution. The Parties may consider whether the application of the “polluter pays principle” may be

appropriate here. Costs for notification should be distinguished from

the costs of participation of notified authorities or members of the public

in the review of the information and any TEIA process.

4. Issues regarding the notified jurisdiction/country

The notified jurisdiction must, if the TEIA process is to succeed,

accept the responsibility to review the information and respond in an

appropriate period of time.

4.1 Response

A set period of time for a response, or a more flexible period can

be identified. Recalling again that the response at this time is on the need

for a TEIA, the efficiency and effectiveness of the process, as noted in the

Overarching Principles, should be enhanced by the response time frame.

Options can be:

• a fixed (thirty, sixty, ninety day) period;

• a notion of “as soon as possible/practicable”;

• a combination of the above, e.g. as soon as possible/practicable,

but no later than 60 days; or

• a time period set by the notifying Party, perhaps with a minimum period of thirty to sixty days.

A provision for exceptional circumstances requiring an extension

of the time period could be included. Such a provision might require an

explanation of the circumstances leading to the delay.

4.2 What to do if there is no response

Following the expiry of the response period, a situation of no

response can lead to the termination of the TEIA process. Subsequent

reconsideration might be provided for, perhaps subject to the ability to

adjust the process accordingly.

26 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
In the spirit of good neighborliness highlighted by the Overarching Principles, a notification by the jurisdiction of origin of the pending expiry of the response period might be desirable.

4.3 Request for additional information

Following a notification, the receiving jurisdiction might wish to

receive further information to allow for a more informed decision. A

provision on this might be included here or in the section on consultations. Informal contacts for clarification of information or further details

could facilitate the process. Where additional information is provided,

and where several jurisdictions or agencies are involved in a notification, the Parties may wish to ensure that all originally notified jurisdictions receive the additional information through the same means as the

original.

Where this new information is significant, an extension of the original response period may be required. This could be at the request of the

notified jurisdictions or be seen as a factor that might lead to an extension of the response time under section 4.1.

4.4 Opportunities in light of new information

Following the end of the response period or a decision not to have a

TEIA, additional information might come to the attention of any of the

involved jurisdictions that calls this decision into question. In such circumstances, it should be incumbent on the jurisdiction that becomes

aware of the information to share it as quickly as possible, with a view to

further consultations to consider the facts as they then are. Again, informal contacts could facilitate an early resolution of possible difficulties

that could arise in such circumstances.

5. Responsibilities of notifying jurisdiction/country following a

response

In the event of a response indicating a desire to initiate a TEIA, the

notifying jurisdiction and responding jurisdiction(s) would move to the

processes and options set out in the following Parts. In the event that two

or more jurisdictions did not agree on the need for a TEIA, further consideration through consultations or possibly dispute resolution could be

warranted. This is addressed in Part Four below.

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 27
PART TWO: EXCHANGE OF INFORMATION AND

ASSESSMENT

This Part looks at the issues identified by the Parties that relate to

the information needed for an effective TEIA and the assessment itself.

This is the second stage of the process, and flows from the notification

stage.

The concept of exchange of information here would relate to a

more extensive range of information than in the notification stage. Further, one can anticipate mutual responsibilities for the jurisdiction of origin and the jurisdiction(s) potentially affected. It may also be necessary

to envisage a continuous flow of the necessary information as opposed

to simply a one step exchange of documents.

The issues relating to the assessment follow a consideration of the

exchange of information issues. These issues include what is being

assessed, who does it, how the assessment is reported, and any supplemental information. This in turn is followed by a consideration of issues

relating to public participation.

6. Exchange of information

6.1 Supplemental information that might be needed

The type of information that might be required to supplement the

original notification information includes information relating to the

procedure to be followed in the assessment, and the subsequent review

and decision-making processes. This would support the transparency of

the overall process and its timely and effective implementation.

Additional substantive information might also be required. This

could include:

• further details on the nature of the project and possible alternatives to the project;

• information on the local geography, weather, etc.;

• environmental attributes and capacities (waterways, air sheds,

biodiversity, etc.);

• types of land uses (agricultural, urban, industrial);

28 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
• socio-economic information;

• specially protected areas in the regions involved;

• relevant historical and cultural sites;

• possible mitigation measures;

• methodologies for the assessment, including underlying

assumptions and predictive methods;

• etc.

Information on the first item would likely come from the jurisdiction of origin. Information on the subsequent issues could be equally relevant from all involved jurisdictions.

Information at this point can be seen as baseline information

against which an assessment of impacts would take place. A time frame

for the provision of this baseline information might be designated by the

Parties. Information in the hands of the potentially affected jurisdictions

may be provided at the time of response to the notification, or within

a designated period afterwards. Where complete information is not

readily available, the nature and extent of information to follow might

be identified.

A time frame for providing the additional information in the hands

of the proponent jurisdiction may be provided for as well.

6.2 Ongoing exchange of information

As the process of assessment unfolds, cooperation between the

authorities involved will undoubtedly require clarification of some

of the information provided, supplementary information, or different

types of information as progress in the assessment indicates different

issues should be studied. A provision highlighting the need for this type

of ongoing cooperation might, therefore, be foreseen.

6.3 Mechanism for exchange of information

The issues here are similar to those noted in sections 3.3, 3.4, and

3.5, concerning notification by whom and to whom, and coordination. If

the TEIA process is to be run as a diplomatic process, more formal

approaches and mechanisms will be adopted. This will necessitate

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 29
proper coordination between diplomatic personnel and EIA professionals. If national environmental authorities control the process, similar

mechanisms will be needed, adapted to these offices.

Where the process is one that relies on the local EIA authorities to

undertake the TEIA, coordination for the exchange of information by the

local agencies can be achieved directly between these agencies. This may

occur in any event, at least in an informal way, where either of the previous alternatives are adopted. (We note again here that local EIA authorities, as used here, includes the relevant federal, state and provincial

authorities that might be involved with the assessment of any given proposed project.)

The technological medium for the exchange of information, i.e.,

mail, fax, electronic form, etc., can be adapted to the local capacities,

but should reflect the type and sources of information that are being

exchanged. For example, it may be difficult to put some information that

is only available in hard copy into electronic form, making fax or mail a

more effective alternative in these cases. The Parties may, therefore,

wish to focus on the identification of the information being exchanged

and confirmation of its receipt as parts of the more formal process here.

7. Assessment

Article 2(1)(e) of the NAAEC creates the general obligation of each

Party to “assess, as appropriate, environmental impacts” with respect to

its territory. Article 10(7) concerns the assessment of likely significant

transboundary impacts of a proposed project, not the domestic assessment issues. Although one might anticipate significant overlap in the

informational and procedural aspects of implementing these two Articles, and many of the issues identified by the Parties show this, the comments below (as well as above) are restricted to the implementation of

Article 10(7) and the review of potential significant transboundary

impacts.

7.1 Determination of significant impacts (Initial determination –

Phased approach)

The initial (or preliminary) determination that a proposed project

may have significant transboundary impacts is an important aspect of

the discussion on notification as it may constitute one of the triggers for

such notification (see section 1.3) whereas the full determination (or

assessment) of these potential significant impacts is at the core of the

TEIA process.

30 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
7.2 Scope of the project

Among the various factors involved, the scope of the assessment

will relate first and foremost to the nature and size of the project being

assessed. The definition of the project will, therefore, be critical. For

example, an airport project might be defined to include the runways, terminal, cargo and repair facilities. It might also be defined to include all

related road or rail links, hotels, and other associated infrastructure.

Similarly, a project for pre-construction access roads to a possible new

facility might be associated with the main project or be evaluated as a

separate project. The Parties may wish to consider what role, if any,

potentially affected jurisdictions should play in this area.

7.3 Scoping the assessment

The scope of the assessment is also related to the potential impacts

of a project. Conceptually, environmental, socio-economic (including

development), historical and cultural factors will be included. The

scoping process should identify with precision the areas to be studied.

Where project alternatives are being considered, the Parties may wish to

consider a weighting process for these areas to allow a comparison to be

based on the relative values of the areas identified. The Parties may wish

to consider what role, if any, potentially affected jurisdictions should

play in this process in relation to the potential transboundary impacts.

The potential environmental impacts of a project, and thus the elements to be assessed, will vary with every project. Thus, identifying a

definitive list of factors to include in an assessment might prove to be an

impossible task. The Parties may wish to consider two more general

options as a result:

• a general statement that all potentially affected environmental,

socio-economic (including development), historical and cultural factors will be included;

• a general statement of this type that is developed through an

illustrative list that the involved jurisdictions can refer to while

recognizing that a) all the factors may not be relevant to each

project and b) in some cases additional factors may be added.

This latter type of list could be drawn from an array of actual

assessments that represent different sectors or types of projects that EIA

authorities have been involved with.

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 31
The Parties may consider an express reference to the cumulative

impacts of the proposed project in the areas potentially affected, as well

as the interaction between possible impacts.

7.4 Who conducts the assessment and what process is applied:

Government participation

A critical issue in the TEIA context is who conducts the assessment

and under what process. The Overarching Principles put a focus on

existing practices and procedures as a preference for this, as well as the

need for effective and efficient conduct of a TEIA. They also note the

important role of the affected jurisdiction in this area. The NAAEC also

provides some guidance in that regard.

Three primary options may be seen here, each based on the

assumption of involvement of the potentially affected jurisdiction(s)

prior to the assessment being prepared:

• the TEIA is conducted by the jurisdiction of origin based on the

information supplied by the other jurisdictions (and the public);

• the TEIA is conducted by the potentially affected jurisdiction(s)

based on information provided by the jurisdiction of origin;

• the TEIA is conducted in a more integrated manner by authorities from both the jurisdiction of origin and potentially affected

jurisdictions.

Each of these can be paired with one of three process alternatives

for assessing the transboundary impacts:

• the process of the jurisdiction of origin is deemed to apply;

• the process of the potentially affected jurisdiction(s) is deemed

to apply; or

• a special process is agreed to in advance (a mandatory basis) or

on an ad hoc basis (a discretionary basis).

This last alternative can be developed by the Parties in the Recommendation to be developed pursuant to NAAEC Article 10(7) or the

Parties can call for local authorities on a regional basis to adopt their own

processes for this purpose. Bearing in mind the Overarching Principles,

32 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
one might anticipate the use of the existing processes, adapted as necessary for the specific transboundary work, rather than the full development of a new process.

If the Parties identify a post-assessment commentary role as more

appropriate, these issues will be less central to the process.

Another factor to consider in identifying a process for the assessment is the role of the public. While this issue is addressed more fully

below, the Parties may wish to consider the impact of the choice of process on the ability of the local public in the potentially affected jurisdiction to participate in a meaningful manner, including the familiarity

with the local process and ease of access to administrative mechanisms

and officials. The Parties may also wish to consider holding Government

to Government consultations prior to public consultations.

7.5 Costs

An additional issue that the Parties may want to consider in this

context is the costs associated with undertaking the TEIA. Depending on

the type of process that is considered most appropriate, the Parties may

wish to consider this issue, perhaps based on the “polluter pays principle”.

8. Public participation opportunities

The general structure and intent of the NAAEC supports a high

level of public involvement in environmental issues under the Agreement. Specifically in relation to Article 10(7), the “full evaluation of

comments provided by other Parties and persons of other Parties” is

called for. The Overarching Principles call for adequate information and

opportunities for the public to be able to “participate in a meaningful

manner” in the TEIA process that results from the current work of the

Parties, consistent with national and sub-national regimes. The general

issues of what authorities are best suited to be responsible for public participation as well as the efficiency of the process are also important factors to consider here.

8.1 Opportunity for public of potentially affected jurisdiction(s)

to participate

Placing the public of the potentially affected jurisdiction(s) at par

with the public of the jurisdiction of origin or the government authorities of the affected jurisdiction, subject to confidentiality or privacy considerations, are two options that set minimum standards here.

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 33
8.2 Involvement of non governmental organizations

The Parties may wish to consider whether the public involvement

should be distinguished from the involvement of local, national or international non governmental organizations.

8.3 Timeliness and effective provision of information

Ensuring meaningful participation requires the provision of sufficient information. The issues include the timing and responsibility for

this, and the mechanism for doing so. Timing and responsibility options

to provide the information will be affected by the choices, as per section

7.4, of how the TEIA process will be undertaken by governmental

authorities. Some options include:

• local potentially affected jurisdiction authorities providing the

information received from the jurisdiction of origin to its public

as soon as it is received, subject to any specific confidentiality or

privacy requirements attached to the information (as per section

2.4);

• providing the information to the public in the potentially

affected jurisdiction when it is provided to the public in the

jurisdiction of origin, either directly by the jurisdiction of origin

or by the jurisdiction potentially affected.

The mechanism for providing the information is also important. A

broader form of notice to the public may be required to alert as many

persons as possible of the availability of the information and where it can

be accessed. Electronic and hard copy sources may be envisaged. Notice

through local newspapers may be appropriate, and/or local television

or radio stations.

Issues relating to the limitation of the type or quality of information

to be made available apply, mutatis mutandis, from section 2.4. Language

and translation issues apply as per section 3.6. The Parties may also wish

to consider a vehicle for public requests of additional information during the assessment process.

8.4 Credibility of the process

A number of the other issues identified by the Parties can be

grouped under the notion of meaningful participation, identified by the

34 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Parties as the critical goal in this area in the Overarching Principles. For

many observers today, effective public participation processes are a litmus test for the credibility of the EIA process.

Previously, issues such as the rationale for the project and alternatives to the project have been identified as subjects for the exchange of

information and thus possible governmental comment. These, as well as

issues relating to the scope of the project to be assessed, the scoping of

the TEIA itself, weighting of the factors assessed, etc., may be areas

that the Parties wish to expressly consider as appropriate for public

comment.

One alternative the Parties may wish to consider to ensure meaningful participation is to expressly identify the stages requiring public

involvement. Alternatively, the Parties may wish to suggest a minimum

standard of equal treatment of the public of the jurisdiction of origin and

the jurisdiction potentially affected. This alternative could be made subject to the exclusion from certain legal processes or remedies available to

the local public to challenge the process or information provided or not

provided. If this approach is taken, the Parties may wish to provide alternative processes to address these issues, perhaps through a consultation

or dispute resolution mechanism.

8.5 Involvement of affected native peoples

An issue the Parties may wish to address as a separate consideration for participation in the TEIA process is the role of native or indigenous peoples. This can be in a more formal governmental sense where

such bodies are concerned with a project, or a less formal sense of special

consideration and input for cultural/historical issues of particular significance to indigenous peoples where these may be known to be a factor

to assess or these issues are brought to the attention of the authorities

involved.

8.6 Costs and public interest support

Beyond translation costs, other costs may be associated with a public participation process. This includes dissemination of information to

the public and costs of public participation fora, hearings, presentations,

etc. Costs here may include both those of government officials and of the

public participants. The Parties may wish to consider, in this context, the

issue of public interest involvement and intervenor funding for this purpose, as provided for in many EIA laws.

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 35
8.7 Incorporating results of public participation in the TEIA report

This issue raises questions of what is to be included, the responsibility for doing this and its presentation. The information and analysis

provided by public participants on the merits of the issues (the project,

the environmental impacts, mitigation, etc.) and a full reflection of the

scope and nature of public concern with the potential impacts of the proposed project itself could be considered for inclusion.

Options for the presentation of this information can include being

part of the main report on the project itself if an assessment is also being

done in the affected jurisdiction, being part of a specific TEIA report, or

as a separate report on the public participation process. Direct comments from the public may also be considered for inclusion as an Annex.

Responsibility for this aspect of the report could fall to the authorities responsible for the public participation element of the TEIA. This

will be a function of the decisions made on the issues under sections 7.4

and 8.3.

9. TEIA Report

9.1 Content of report

The report on the TEIA can be part of the main report on the EIA of

the proposed project or an Annex or separate report looking only at this

issue. The Parties may wish to develop a draft outline of such an annex or

report to provide a standard format and a checklist of elements that

should be included. These might include, inter alia:

• a description and rationale of the project;

• its location and start-up time;

• a description of the review process, assessment methodology

and the factors assessed;

• the likely transboundary impacts and an assessment of their

significance;

• a plain language (or languages) summary of the findings;

• any recommendations to decision-makers on a project or the

decisions themselves, as appropriate to the reporting process of

the jurisdiction in question;

36 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
• the results of government consultations.

Technical annexes might be included, as required.

9.2 Possible phases of a report

The Parties may consider whether a report on the transboundary

impacts should be submitted for governmental and/or public comment

in draft form before being made final. This might be a means to facilitate

public participation as well as final governmental review by concerned

agencies. A time limit for comments or a public meeting on the report

might be considered here.

10. Decision

“Decision” as used here, refers to the decision on whether to proceed with a proposed project and, if so, subject to what conditions. The

first issue that arises here is whether any particular type of finding of an

impact will have a fully determinative effect on the decision, i.e., become

binding on a project decision-maker. Can an outcome of a TEIA bind the

decision-maker or does it act as essential information to guide and

inform the decision-maker? The processes and issues discussed above

can be developed to support either approach.

10.1 Transmission to government authorities

The decision in relation to a project should be transmitted to all

interested jurisdictions. This could include any conditions to mitigate

the likely impacts of the project as originally designed, and any associated follow-up programs or measures that will be applied to ensure

compliance with these conditions. The Parties may wish to identify a

time frame for this transmission.

10.2 Public release of the decision

The Overarching Principles support the view that the decision

should be issued publicly. The issues that arise here are: by which

authorities should the decision be released and when should it be

released. The issues raised in section 8.3 will be critical here, and one

might consider the desirability of paralleling the responsibilities under

that section with the transmission of this information to the public. Timing can include when the governmental authorities are informed or

when the public of the party of origin is informed.

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 37
10.3 Reasons for the decision

Release of the decision by the decision-maker should be accompanied by appropriate reasons.

10.4 Additional information

The Parties may wish to consider the possible situation of where

another jurisdiction or member of the public wishes to bring additional

information to the attention of the decision-maker after the decision has

been taken.

PART THREE: MITIGATION

11. Definition and application

11.1 Definition

Notionally, the discussion below includes any measure that eliminates, reduces or compensates for likely environmental damage from a

project, including design and process modifications or alternatives to

the project.

11.2 Substantive requirement to mitigate transboundary impacts

The Parties may wish to consider establishing a substantive

requirement for the mitigation of likely significant effects of a proposed

project. Arguably, this could be seen as consistent with existing international law and consistent with the spirit and goals of the NAAEC. An

alternative approach could be to ensure that each Party (including

non-federal jurisdictions) considers the mitigation of transboundary

impacts in the same way as mitigation of domestic impacts.

These approaches, at a minimum, could eliminate the ability to

treat foreign environments as a free cost and is thus consistent with the

“polluter pays principle”. It may be noted here that this issue is linked to

the role of a finding of a significant impact seen in section 10.

11.3 Selection criteria of projects requiring mitigation

Determining when mitigation is required is a function of the

assessment process combined with the role of the decision-maker on a

38 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
project. (These functions may be performed by the same or different

officials.) A finding of likely significant transboundary impacts may be

seen as creating a prima facie case for considering mitigation measures for

these impacts, or for triggering mitigation requirements if the Parties

choose this option. A project proponent may also wish to consider, in the

course of an assessment, alterations or alternatives to the proposal that

would prevent a finding of likely significant impacts in the first place.

11.4 Types of corrective or preventive measures

In keeping with the previous paragraphs, mitigation measures

could include, inter alia:

• design and operational/process changes to avoid or address a

specific finding of a significant impact based on pollution prevention approaches;

• application of cleaner production technologies;

• alternative locations;

• pollution control technologies;

• reclamation or preservation of alternative environmental sites

to balance losses in any given area of impact;

• financial or other compensation for losses of private environmental property, benefits or amenities (this could include economic losses associated with the damage foreseen); and

• financial or other compensation for losses of public environmental property, benefits or amenities (this could include economic loss associated with the damage foreseen).

11.5 International technical cooperation for environmental

technologies and management

The Parties may wish to consider whether international technical

cooperation should be encouraged in this context. Such cooperation can

include information exchanges, technology transfer, training and education, etc., as part of the process of mitigating potential likely effects of a

project. Such a provision might address requirements for consistency

with the NAAEC and the NAFTA.

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 39
In addition to the technical capacities of proponents, best environmental management practices might also be considered as a factor or a

condition in mitigation measures. Application and enhancement of

these practices may also be supportable through outside technical cooperation.

11.6 Follow-up of mitigation activities

Where mitigation measures for likely transboundary impacts are

required, the Parties may wish to address the issue of follow-up monitoring and assessment. Because the issues being addressed here remain

transboundary in nature, follow-up measures should be conceived of as

part of the cooperative process while respecting, as per the Overarching

Principles and the provisions of the NAAEC, the sovereignty and jurisdiction of each Party. Such steps could include:

• post-project analysis of actual impacts;

• monitoring of mitigation steps for compliance and for their

effectiveness;

• obligations in case of a failure to mitigate due to non-compliance

or non-effectiveness;

• “lessons learned” analysis; and

• project abandonment and reclamation.

The Parties may wish to consider what would be the obligations of

the originating jurisdiction in case of failure of the mitigation measures.

11.7 National and international financing mechanisms

The Parties may wish to consider the issue of financial support

through national or international mechanisms to assist in undertaking

any mitigation measures to reduce or eliminate the likely significant

transboundary environmental impacts of a proposed project.

PART FOUR: CONSULTATION AND DISPUTE RESOLUTION

Transboundary environmental assessment is, by its nature, a process of ongoing interaction and exchange of information and views. This

will be particularly the case for the professional interaction of those

40 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
involved in the assessment process. This may be considered as a less formal type of consultation than is generally associated with the term when

used at the international level. The issues identified by the Parties relate

to both this informal process and a more formal one. Dispute resolution

generally implies a more formal process, and this is seen below.

12. Consultation

12.1 Consultation between which authorities

If the Parties adopt an approach which centers on diplomatic processes, this will encourage more formal types of consultations. The same

will apply if central environmental agencies are identified as the key

actors in the process. By contrast, if local authorities in the area affected

are identified as the key actors, a wider range of informal contact can be

anticipated.

If the focus is placed on the interaction of locally-based authorities,

the Parties may wish to consider a general principle of having an initial

consultation process at this level prior to consultations at the national

levels. This type of option would, in essence, seek to have all issues

resolved at the local levels, and hence the levels closest to where the

more technical work is going on, before recourse to diplomatic intervention.

12.2 Issues for consultation

Stages or issues where formal or informal consultation may be

foreseen include:

• pre-determination

• trigger;

• notification;

• assessment;

• determining significant impacts;

• report;

• mitigation measures;

• public participation;

• decision; and

• post project review and monitoring.

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 41
The Parties may wish to identify such stages or, alternatively, to

encourage consultations as needed on any issue arising out of the process. Depending on views on the above noted possible general principle,

the Parties may identify both a local and national level for these consultations, as needed.

13. Dispute resolution

13.1 Recognition of bilateral negotiation or other steps taken /

Exhaust bilateral mechanisms

A final stage of dispute resolution may be required from time to

time. If the Parties have adopted the general principle option noted for

consultations, they may wish to consider the same principle for dispute

resolution. Diplomatic approaches would then only be used when the

local level efforts to address and resolve disputes had not been successful.

Additionally, a general principle of seeking cooperative, bilateral

means of dispute resolution prior to having recourse to formal dispute

settlement processes can be considered in this regard.

The Parties may wish to consider a variety of approaches to dispute resolution, such as the use of good offices, mediation, arbitration, or

judicial processes. Of these, all but the last could be equally applicable at

the local level or the diplomatic level. The range of issues suitable for dispute resolution may be considered in light of the list found in section

12.2.

42 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
ANNEX

NOTIFICATION

1) Trigger – Prompt for the country to notify:

• At what stage should the TEIA process be triggered

• List of possible triggers:

– List of projects

– Proximity to border

– Potential significance of impact

– Request by potentially affected country

– Domestic regulatory obligations

– Awareness of available information

– Discretionary notification

– Over-notification: when in doubt notify

– Pro-active domestic measures

– Public request (formal or informal)

• Exemptions from TEIA process

2) Content – Information contained in the notice

• Minimum information requirements

– all available public information

– type of project, location, date of proposal

– common reporting format

• Protected information / Trade secrets / Confidential information

• Standardized formats and protocols

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 43
3) Logistics – When, how and who

• When?

– Possible two or multi-stage process

– As early as practicable or possible

– At the same time as the local public

• How?

– Medium

– Who pays?

Distribution

Responsibility for translation

– Need for coordination

• Who does notification go to?

– Centralized federal, state, provincial entity (list)

– Information flow-chart

– Competent authority

– Local counterpart

– Coordination of response if multiple authorities notified

• Who is responsible for notifying?

– Who is responsible for multiple copies

– Responsibility for informing the public of the potentially affected

Party

4) Issues regarding the notified country

• Response

– Response timing

• What to do if there is no response

– Termination of process

– Continuation of process

44 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
• Request for additional information

• Opportunities in light of new information

5) Responsibilities of notifying country

• Following a response

EXCHANGE OF INFORMATION

1) Supplemental information that might be needed

2) Ongoing exchange

3) Mechanism for exchange

ASSESSMENT

1) Determination of significant impacts

• Scope of the assessment of the project (factors taken into account)

– Evaluation of social, economic and environmental damage

• Who conducts the assessment

– Regulatory authority

• Who provides data and detailed information

• Scope of the project covered by TEIA process

• Initial determination – Phased approach

• Costs

2) Public participation opportunities

• Timeliness

• Sufficient information

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 45
• Credibility of the process

• Opportunity for debate

• Opportunity for citizens of Parties to be involved

– Equal opportunity

• Involvement of non governmental organizations

• Incorporating results of public consultation in report

• Involvement of affected native peoples

• Costs and Public interest support

3) Government participation opportunity

• Incorporating results of government consultation in report

• Involvement of state, provincial and local authorities

• Mechanisms

• Government to government consultation prior to public consultations

4) Report

• Content of report

• Possible phases of a report

5) Existing practices and procedures currently in operation

• Priority to local framework

• Consistency with the NAAEC

6) Possibility of parallel or joint assessment

46 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
7) Decision

• Provide reasons

• Transmission

• Additional information that could affect the decision

MITIGATION

1) Definition of mitigation

2) Selection criteria of projects requiring mitigation

• Mitigation avoiding finding of significance

3) Type of corrective or preventive measures

4) International technical cooperation

5) National and international financing mechanisms

6) Follow-up of mitigation activities

• Post-project analysis, monitoring of mitigation, lessons learned

• Project abandonment and reclamation

• Obligations in case of failure to mitigate

7) Recognizing country’s best management practices in the

determination of mitigation

8) Substantive requirement to mitigate transboundary impacts?

ISSUES UNDER ARTICLE 10(7) OF THE NAAEC 47
CONSULTATION AND DISPUTE RESOLUTION

1) Consultation

• Consultation between which authorities

• Pre-determination consultation

• Encourage consultations as needed

• Consultation on

– any issue arising out of the process

– trigger

– notification

– significant impacts

– assessment

– report

– mitigation

– public participation

– decision

– post project

2) Dispute resolution

• Recognition of bilateral negotiation or other steps taken

• Exhaust bilateral mechanisms

48 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Commission for Environmental Cooperation

Secretariat Distr.

GENERAL

TEIA/96.02.05/S/1

15 March 1996

Original: English

THE PROCESS OF “NOTIFICATION” IN THE CONTEXT

OF TRANSBOUNDARY ENVIRONMENTAL IMPACT

ASSESSMENT: A COMPARATIVE REVIEW OF SELECTED

BILATERAL AND MULTILATERAL AGREEMENTS

Background Paper

This document does not necessarily reflect the views of the

Commission for Environmental Cooperation or of the Parties to

the North American Agreement on Environmental Cooperation

SCOPE

Under Article 10(7) of the North American Agreement on Environmental Cooperation (NAAEC), the Parties undertook to develop Recommendations, “with a view to agreement between the Parties pursuant

to this Article within three years on obligations”, on the transboundary

environmental impact assessment of proposed projects. This discussion

paper looks at the issues and models associated with environmental

impact assessment notification in a transboundary context, pursuant to

Article 10(7) of the NAAEC. It focuses on the singular reference to “notification” in Art. 10(7)(b) as its subject matter, exploring a range of issues

that are involved in building a transboundary environmental impact

assessment system in the NAAEC context. The paper also takes into

account the Transboundary Impact Assessment Overarching Principles

adopted by the Council of the CEC in October, 1995.

49
As a document looking exclusively at the notification issues, other

issues that may be closely related are not included here. Most notably,

the threshold or trigger issue for notification is not covered here. Thus,

the parameters for determining this, such as the application of the terms

“project”, “decision”, “likely” and “significant” found in paragraph (a)

are not considered. Essentially, the subject matter of this paper presupposes that the threshold for notification has been met, or is believed

by a Party to have been met. It is, therefore, without prejudice to any

application of the provisions of paragraph (a).

Still, for some issues it will be necessary to either deal with or raise

points associated with other paragraphs or elements of Art. 10(7). This is

particularly the case for the identification of the “competent government

authority” referred to paragraph (a). This issue relates to the question of

who is to notify and to whom a notification is to be given, as seen below.

In other cases, a reference is made to a possibly more appropriate place

to consider an issue than under the notion of notification in paragraph

(b). All paragraph numbers or letters refer to Art. 10(7) unless

specifically noted otherwise.

One important factor should be noted here. The primary focus of

this paper assumes that a government or private sector proposal that

will trigger a domestic environmental assessment process is involved.

Different issues arise where no such process is triggered. This is raised

specifically in the discussion on the absence of notification issue found

below. This may, however, be an equally relevant issue in the context of

discussions on the trigger for notification, in particular whether a special

trigger should be established to ensure notification and a possible

environmental assessment because of the potential for significant

transboundary impacts where there is no other trigger. This issue is

beyond the scope of the present paper.

FORMAT

The central purposes of notification are twofold:

• to ensure that the notified governments or persons are aware of

a proposed project and its possible significant transboundary

impacts, and

• to provide a timely opportunity to said governments or persons

to participate in an assessment process to ensure such impacts

are appropriately considered and addressed.

50 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
This discussion paper identifies several issues that require consideration in achieving these purposes. These issues are:

• Notification by whom and to whom

• When to notify

• What information should be included in a notification

• The decision to participate

• Absence of notification

• Notification to the public

The discussion of each issue includes a general analysis of its place

in the development of a Council Recommendation under Art. 10(7), a

brief description of how other agreements, legally binding and otherwise, have looked at the issue, and how these precedents might relate to

the present context.

The agreements considered include formal treaties under international law and less formal agreements involving jurisdictions other than

States. North American, other regional instruments and more global

instruments are included. These texts are used to reflect, as best as possible, existing practice in the area. No priority or preferred option should

be implied from the discussion.

One might note here that there are relatively few agreements

between Mexico and the United States and Canada and the United States

dealing with the specific details of EIA in a transboundary context. For

example, while the 1983 La Paz Agreement does call for the assessment

of projects that may have significant impacts in the border area1, neither

it nor any of its related Annexes include specific details on how to do

this. Annex II does have notification provisions relating to actual or

likely inland incidents in the border area, and these are considered as an

analogy for present purposes. But the provisions of the other Annexes or

the La Paz Agreement itself are not reviewed here. The same holds for

the Mexico-US and Canada-US agreements that govern the InternaTHE PROCESS OF “NOTIFICATION” 51

1. Art. 7, La Paz Agreement, 1983. The border area is defined as the area within 100 kilometers on either side of the inland and maritime boundaries between the Parties

(Art. 4).
tional Boundary Waters Commission and International Joint Commission, respectively.2

Of the agreements that do develop the issues, the Espoo Convention of 1991, which Canada and the US have both signed,3 is the

most developed regime, being specifically devoted to the issue of

transboundary environmental assessment. It provides, therefore, an

ongoing reference point in this review. In addition, the signatories to the

Convention have developed several documents that explore the questions raised in the implementation of the Convention. Two of these

documents are particularly relevant here, and will be drawn on appropriately.4

Literature on the issues relating to notification in the

transboundary context is, at best, scarce. There is considerable writing

on the general international law requirement for assessment of the

potential transboundary impacts of proposed projects (and policies).5

There is also copious amounts of literature on the extra-territorial jurisdiction issues associated with the US National Environmental Protection Act (NEPA). Very little of this literature, however, goes beyond the

larger issues encompassed by these themes to actually address the issue

of notification. We have tried to capture only such literature in the present document, leaving consideration of the more general material to

other occasions when necessary.

This discussion paper is accompanied by a separate chart which

summarizes the precedents and options found in the agreements

reviewed. As with the present review, these should not be seen as “pre52 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

2. These are primarily the 1944 United States-Mexico Treaty Relating to the Utilization

of the Waters of the Colorado and Tijuana Rivers and of the Rio Grande, 3 UNTS 313;

and the 1909 Treaty between the United States and Great Britain Respecting Boundary Waters between the United States and Canada, 4 American Journal of International Law (Supp.) 239, 1909.

3. The Convention originates in the UN Economic Commission for Europe regional

grouping, to which Mexico does not belong.

4. These are the Bilateral and Multilateral Cooperation on Environmental Impact Assessment

in Transboundary Context, Report submitted by the delegation of the Netherlands for

a meeting of the Signatories to the Convention, CEP/WG.3/R.4, 11 January, 1995,

hereinafter the Netherlands Report; and the Final Report of the Task Force on Legal and

Administrative Aspects of the Practical Application of the Relevant Provisions of the Convention, ENVWA/WG.3/R.12, 31 August 1993, hereinafter the ECE Task Force

Report.

5. For a recent review of the development of international law in this area, including an

analysis of the three major instruments adopted in recent years, the European Union

Directive on Environmental Assessment, the Espoo Convention and the Antarctic

Treaty Protocol, see Philippe Sands, Principles of International Environmental Law I,

(Manchester University Press, 1995), Ch. 15, Environmental Impact Assessment.
ferred” options, merely variations or alternatives that may assist the

Parties in their discussions. These are drawn from the existing agreements, and include language from those, where it was reasonable to do

so in light of the space available. The charts can be used as a separate

background document.

To assist the flow of the paper, and considering the high level of

awareness of the Parties and Secretariat of the issues, every effort has

been made to avoid detailed footnotes and references. A full list of

sources and references follows the text. A separate list of the sources

used in the charts follows that part of the report.

ISSUES

Notification by whom and to whom

The issue of notification by whom and to whom focuses on the official governmental involvement by competent government authorities in

a transboundary EIA process. A separate question of public notice,

whether or not there is official governmental participation, is raised

below under the issue of notification to the public.

Notification by whom and to whom raises directly the question of

which authorities are included in the phrase “competent government

authority” in paragraph (a). This issue is particularly relevant to the

CEC context, where environmental assessment jurisdiction is shared

between the federal and state/provincial6 levels of government for all

three Parties. Thus, what role should be played by the sub-national

authorities in the process set out in a Council Recommendation is

directly raised by this issue. The issue is also raised by the several references in the Transboundary Impact Assessment Overarching Principles

adopted by the Council in October, 1995, to both national and subnational environmental assessment processes.

Most international law agreements on this issue have not included

sub-national authorities in the notification process. Under the Espoo

Convention, for example, notification is between national level authorities, with the responsibility given to the foreign affairs departments of

the Parties. This reflects the notion of state-to-state diplomacy as central

to transboundary environmental issues, a notion given much support in

the origins of international environmental law.

THE PROCESS OF “NOTIFICATION” 53

6. In keeping with the NAAEC, “provincial” includes territorial governments in this

paper.
This historical sense of transboundary environmental questions

being a state-to-state “issue” requiring diplomatic involvement and resolution is supported in no small measure by the Canada-US Trail

Smelter Arbitration of 1941, one of the first examples of how international law has dealt with environmental issues. It is also found in other

bilateral agreements on the Mexico-US and Canada-US borders, agreements developed in the traditional mold of international law. It will be

noted below, however, that in practice this approach is now expanding

to include the non-federal jurisdictions as well.7

The federal-to-federal level of Espoo appears to be the operational

model that has been applied to the Canada-US Air Quality Accord. This

Accord has no mandatory involvement of sub-federal level governments set out within the Accord, but rather an obligation to make best

efforts to ensure that these governments participate in meeting its objectives and obligations. Notification, as dealt with in Art. V of the Accord,

has been pursued on a state to state basis, with input from the provincial/state jurisdictions on a less formal basis. Formal arrangements to

expand on the use of the term notification in the Accord have not been

arrived at as yet.8

The framework 1983 La Paz Agreement Between the United States

of America and the United Mexican States on Cooperation for the

Protection and Improvement of the Environment in the Border Area

contains a direct reference in Art. 7 to assessing transboundary impacts

of proposed projects, “as appropriate, in accordance with their respective national laws, regulations and policies.” The Agreement calls for the

elaboration of more detailed agreements on specific issues. Five have

been developed to date, none dealing with transboundary impact

assessment in a general way.

Annex II to the La Paz Agreement concerns the protection of the

inland border area from hazardous substances. It is focused on spills or

similar incidents. This agreement does include notification provisions

54 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

7. The La Paz Agreement, Art. 9, for example, allows the Parties to invite local state and

municipal participation in the meetings of the National Coordinators, as well as

other governmental and non-governmental organizations. Local state participation

in the four working groups established under the Agreement now takes place. See

Stephen P. Mumme, “New Directions in United States-Mexican Transboundary

Environmental Management: A Critique of Current Proposals”, 32 Nat. Res. J. 539

(1993) at 558-559.

8. The Canada-United States Air Quality Accord: 1994 Progress Report, notes that efforts to

develop a joint notification procedure proved impractical in the short term. Less formalized procedures have been adopted as a result. P. 17.
that begin with an “on-scene coordinator” designated by each party on a

regional basis in the border area. This coordinator is given the initial

responsibility to notify the two national chairs of a bi-national joint

response team, established by the agreement, of an incident or the imminent danger of an incident that could lead to transboundary damage.

This process closely follows a previous 1980 Mexico-US agreement on

the protection of the marine environment. It appears to be the most

developed example of environmental notification analogous to an EIA

context.

The US-Mexico Border Environment Cooperation Commission

Agreement of November, 1993, established the Border Environment

Cooperation Commission (BECC) and the North American Development Bank (NADBANK). It includes a requirement for all projects that it

certifies for financing as an environmental infrastructure project to have

an EIA done prior to the application process. This must include consideration of any significant transboundary environmental effects. The

Agreement requires the Board of the BECC to determine that the project

meets necessary conditions to achieve high levels of environmental protection “in consultation with affected states and localities”.9 In this way,

the Agreement signals the relevance and role of state and local authorities in the evaluation of a project prior to a decision on certification for

financing being made by the BECC. While this is not made expressly

applicable to the conduct of the required EIA, it acts as a supplement to

any such processes where they may not be included. The Agreement

goes on to provide the public with an opportunity to comment on

the projects in question. This aspect is reviewed below. The BECC is

limited in its actions to environmental infrastructure projects that it is

approached to become involved with.

While these prior agreements do not fully include non-federal

jurisdictions in the scope of their obligations, the NAAEC does do so for

Mexico and the United States, and provides a mechanism for doing so

for Canada. This creates an opportunity to further consider the role of all

the jurisdictions that share the responsibility for environmental assessment in North America. This includes both the questions of notification

by whom and to whom which has motivated this discussion.

On the Canada-US border, several agreements that are not part of

the body of international law have been signed between state and

THE PROCESS OF “NOTIFICATION” 55

9. Art. II, Sec. 3(c)(2) of the US-Mexico Agreement, 1993.
provincial governments to encourage and support transboundary

approaches to environmental issues. These include:

• the British Columbia/Washington State Environmental Cooperation Agreement, which has no specific reference to

transboundary EIA, but has established a local mechanism, the

Environmental Cooperation Council, that has fostered local

level notice and interaction for that purpose;

• the New York State-Québec Memorandum of Understanding

on Environment Cooperation, which includes an express reference to notification between the parties of a proposed project,

prior to carrying it out, that may impact the environment of the

other; and

• the draft Gulf of Maine Protocol on Transboundary Environmental Impact Assessment, (Maine, New Hampshire, Massachusetts, New Brunswick and Nova Scotia) which calls for

notification, information sharing, and goes so far as to suggest

consideration of the harmonization of the various EIA processes

and the use of each others processes for information gathering

in the jurisdictions of the other parties.10

We are not aware of any similar agreements on the Mexico-US

border.11

In Europe, where the Espoo Convention and the European Union

Directive on Environmental Assessment both create obligations for

States, there are now indications that sub-national level interaction is

developing.12 The Yearbook of International Environmental Law, 1992,

reports that the German Federal State of North Rhine-Westphalia and

the Dutch Provinces of Gelderland, Limburg and Overijssel signed an

56 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

10. In addition to the state and provincial participants in the Gulf of Maine Council on

the Marine Environment, the regional offices of federal agencies are represented on

the Council.

11. Some legal impediments on state extra-territorial activity are seen by one analyst as

a reason for this. He notes that such impediments can be overcome through existing application of American law. Thomas Lundmark, “Local US Agencies and

Mexican Infrastructure”, 25 Env’t Pol. & L. 103 (1995) at 104.

12. The ECE Task Force Report suggests that, for reasons of expediency, the notification and assessment tasks should be divided between the Parties, unless otherwise

agreed. The party of origin would conduct its process for domestic impacts, while

the party affected would apply its process for the study of impacts in its jurisdiction. The information would then be integrated into a single report. Proper notification and exchange of information underlies this approach. Supra, note 4, p. 7,

par. 28.
agreement that included the exchange of information on environmental

assessment. The scope of this agreement is not, however, made clear in

the report.13

The Accord sur L’Escaut, 1994, does specifically include two federal and three sub-federal jurisdictions in a Commission established to

protect the Escaut River.14 Its function includes serving as a centre for the

exchange of information, including information on the assessment of

environmental impacts.

In this context, the state-to-state “top down” notification approach

may be evolving towards a less centralized model or mechanism which

includes a greater role for subnational and/or local entities. A decentralized process may leave more operational authority at the local level in all

three Parties. This could include both the state/provincial and local levels and the regional offices of the federal agencies.15

A second element for consideration is the question of whether

there is an “issue” to be resolved or dealt with through traditional

state-to-state international law mechanisms when a project is being notified for the purpose of reviewing its possible transboundary environmental impacts. An alternative approach might focus more on the

development of cooperative mechanisms for the professionals (and

public) directly involved in the identification and assessment of the

environmental issues. Under this conception, an international “issue”

only arises when the cooperative processes established are seen to break

down by one of the involved agencies or a Party.16

THE PROCESS OF “NOTIFICATION” 57

13. Ulrich Beyerlin and Torsten Bartsch, “Transboundary Environmental Cooperation: Prior Information/Consultation/Environmental Impact Assessment”, 3 Yb.

Int’l Env’t L. 185 (1992).

14. These jurisdictions are France, the Netherlands and three Belgian jurisdictions: the

Bruxelles-Capitale Region, the Flamande Region and the Wallonne Region.

15. A fuller discussion of this precise trend in the context of transboundary environmental assessment of projects proposed in Canada is found in Steven Kennett, “The

Canadian Environmental Assessment Act’s Transboundary Provisions: Trojan Horse

or Paper Tiger?”, 5 J.E.L.P. 263 (1995). Lundmark, supra, note 11, at 105, argues it is

preferable to “funnel responsibility and funds to existing local agencies. They have

the expertise. They have the experience. And they have a stake in the outcome.”

16. One recent analysis of the link between trade agreements and environmental cooperation argues that “Ideally, the perfect solution for regions which share a single

ecosystem rests with cooperative agreements which make the border irrelevant in

terms of environment-related costs of production.” The author advocates ex ante

approaches to cost internalization in this cooperative context. See Nick Johnstone,

“International Trade, Transfrontier Pollution, and Environmental Cooperation: A

Case Study of the Mexican-American Border Region”, 35 Nat. Res. J. 33 (1995) at 61.

A different starting point for analysis, one of environmental security, has led other
The most advanced implementation of this latter type of approach

is found in two agreements far removed from the North American environment, but not necessarily the three Parties. One is the 1991 Antarctic

Treaty Protocol, Annex I on Environmental Impact Assessment. Under

the Agreement, each Party conducting an activity in the Antarctic area

must perform an environmental assessment prior to a decision to go

ahead. Where an Initial Assessment shows the likelihood of significant

impacts, a Comprehensive Environmental Assessment is required

under Annex I. This Assessment must then be provided to the Committee for Environmental Protection established by the Protocol, to all other

Parties, and made available to the public in all Parties. Project approval

must then await comments and a review by the Antarctic Treaty Consultative Committee after receiving the advice of the Environment

Committee. While notification comes after the completion of a draft

assessment here, the context of performing an assessment for projects in

the region make this more feasible when combined with the extensive

breadth of notification and involvement of the organizational structure

of the Parties. Of course, the unique circumstances of the Antarctic area

and its governance raise questions as to the full applicability of this

model in the immediate context. Nonetheless, it may provide some

insights into the development of a broader approach pursuant to Art.

10(7).

The second example is the 1994 Danube River Protection Convention. This Convention establishes the Danube River International Commission. Among its functions is the collection of information for the

purpose of the assessment of environmental impacts of proposed projects throughout the Danube River catchment area. Notification and

information is to go from the Party of origin, through the Commission to

the other Parties. The additional ability to help determine what information is required only adds to the cooperative structure encouraged by the

use of the Commission.

The Netherlands Report on the Espoo Convention also suggests

that a joint body, either new or existing, could be useful in fulfilling the

functions under its general regime in the context of bilateral or regional

agreements to implement the Convention.17 Each of these examples

58 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

analysts to the same conclusion, under the notion of “emerging international ecosystem law”: “The central hypothesis of this paper is that efforts to promote and

ensure environmental security require that international environmental law shift

emphasis from its territorial focus to a more ecosystem-oriented approach.” Jutta

Brunnée and Stephen Toope, “Environmental Security and Freshwater Resources:

A Case for International Ecosystem Law”, 5 Yb. Int’l Env’t L. 41 (1994) at 55.

17. Supra, note 4, p. 9, par. 29.
would have the tendency to make the transboundary EIA process more

of a routine professional activity than a diplomatic activity.

In summary, three models can be suggested for the issue of notification by whom and to whom:

• The Party-Party model, which requires the local or national

agencies that may be first informed of a project that is subject to

a decision to notify their designated federal authority. Notification would then be transmitted to the designated federal

authority of the affected Party. This Party would then be responsible for providing the information to its own appropriate agencies at the various levels to assess whether they or the national

authority wished to participate in the EIA;

• Ad hoc notification by the agency responsible for the government decision or the assessment of the proposed project to the

other government agencies on both sides of the border in question responsible for environmental assessment or protection

issues of the proposed project and assessment plans. A separate

notification to a designated federal authority for additional

state-to-state notification could be added here;

• A regional grouping of agencies can be pre-identified, each of

which is responsible for certain areas of environmental protection or certain EIA activities within the identified region. Under

such a structure, when a project is proposed that meets the

threshold for notification, all the regional agencies, including

state/provincial agencies and federal agencies operating

through regional or central offices, would be notified of the project. Again, notification at the state-to-state level through diplomatic channels could also be done in conjunction with this

approach. Regional groupings could reflect administrative as

well as jurisdictional divisions prevailing in the designated

area. This could be done directly or via a more structured organization.

Each of these approaches is compatible with the NAAEC and the

Overarching Principles previously agreed by the Council. The last two

may, however, provide a greater reflection of those Principles that refer

to the existing range of procedures that collectively make up the continental system for EIA. These approaches are also likely more consistent

with what is already happening on the ground between non-federal

jurisdictions, at least on the Canada-US border.

THE PROCESS OF “NOTIFICATION” 59
One might note here that the Netherlands Report on the Espoo

Convention suggests that for an effective application of that Convention

it would be useful for the Parties to be informed of the authorities

responsible for EIA, the authorities that will be responsible for the various stages of the EIA, and a flow chart describing the process and time

frames. This may provide a more familiar alternative for consideration

by the parties to the NAAEC.18

Having considered the major issue of the role of the non-federal

authorities in this context, the elaboration of the remaining issues will be

significantly briefer than this section.

When to notify

Three orientations appear from the existing agreements:

• Notification that is done so as to support participation of the potentially affected jurisdiction or its public in the process being initiated by

the proponent jurisdiction.

The guiding principle that consistently emerges in relation to this

orientation is to notify as early as possible in the process. The Air Quality

Accord, Art. V, refers to notification as early as practicable in advance of

a decision. The Espoo Convention, Art. 3, requires notification as early as

possible and no later than when informing its own public. The EU Directive, Art. 7, requires Party-Party notification at the same time information is made available to a Party’s own nationals. In all cases, it is clear

that notification must be timely to allow the development and exchange

of information required to perform a proper assessment of the impacts

under these agreements.

Existing processes between states and provinces on the Canada-US

border all reflect this approach.

• Notice after a draft assessment is complete, including the

transboundary impacts, but in time for comments to be fully considered prior to a final decision on the project.

This is the approach that is applied in the Antarctic Treaty Protocol, as well as in the case of the US-Mexico BECC Agreement. In the former case, the circumstances are fairly unique in terms of geography and

60 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

18. Supra, note 4, p. 4, par. 10.
environmental factors, as already noted. Specified time delays prior to a

decision on the project being permitted accompany this approach.

In the BECC Agreement, the purpose is to decide on funding for a

project, not to issue a governmental permit on whether the project can

proceed. The BECC does not undertake the assessment, but only ensures

its review by governmental authorities and the public.

This approach does not appear to have been used in more general

transboundary EIA agreements.

• Notification timely for the potentially affected jurisdiction to assess

the impacts in its own territory and report on these to the Party of

origin.

This last orientation is reflected in the proposals of the International Law Commission on the Non-Navigational Use of International

Watercourses. Its approach has as its central feature a very traditional

approach to territorial sovereignty, whereby the affected Party undertakes its own assessment and reports back in a separate report. Time limits and the requirement to provide information on the project and

subsequently on the potential impacts provide the two-way support for

this approach. “Timely notification” is what the I.L.C. suggests for this

purpose (Art. 12). The process is also supported by a traditional consultation between the States following the report phase.

A much less traditional variation appears to be signaled in the

Draft Bay of Fundy Protocol. Seen in its full context, this Draft Protocol

appears to suggest that the affected jurisdiction in essence “lend” its process to the proponent jurisdiction to study the transboundary impacts,

but as part of the proponents EIA report. This would allow a familiar

process and mechanism to be used in the potentially impacted jurisdiction while still producing an integrated report.

The Netherlands Report seems to indicate that when notification is

made dependent on a specific part of the process of the Party of origin, in

its case the time of notification of its public, this can lead to significant

divergences if the processes involved differ.19 A careful understanding

of all the involved processes is therefore required to ensure consistent

applications if such an approach is used.

THE PROCESS OF “NOTIFICATION” 61

19. Supra, note 4, p. 9. This point is reviewed in a little more detail in the Task Force

Report, supra, note 4, p. 3, par. 8.
What information should be included in a notification20

The key differences that emerge in the agreements that have considered this issue in detail relate to whether the notification precedes or

follows the assessment. In the latter situation, the notification provides

at the same time for an opportunity to comment on the findings of the

assessment. If notification is tied to a specific step of the EIA process in

the country of origin, and the order of occurrence of this step varies, the

content of the notification will also vary.21

For those applying the approach of participation in the assessment

process prior to its completion, the existing agreements do provide a

guiding theme for this issue. They suggest that the critical element is to

ensure that sufficient information is included with the initial notification

to allow the notified authorities (or public) to make an informed decision

on participation in the EIA. The Espoo Convention, for example, sets out

a two step process for providing information. The first is for the decision

on participation and is less detailed, covering information on the proposed activity, any information available on impacts it might have, and

the nature of the possible decision. The second is more detailed and supportive of the actual informed participation in an assessment process. It

includes information on the EIA procedure, time frames for transmitting

information and the relevant information on the project and its potential

impacts.

Signatories to Espoo have been reviewing these provisions for both

their substance and for the issue of the form in which the notice is to be

made. Work is continuing on both these aspects, with a focus on developing a standard form for notification.22

The EU Directive also has a hierarchy, but one less expressly tied to

a decision to participate. Under its terms, a proponent must provide a

minimum set of information for each project. Such information can in

turn be included in the notification process. This includes:

• a description of the project site, design and size,

• the measures envisaged to avoid, reduce and remedy significant effects,

62 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

20. Note: The exchange and provision of information after the notification phase is not

considered here. This may be more appropriately dealt with under the subject of

exchange of information, also found in paragraph 10(7)(b).

21. See the ECE Task Force Report, supra, note 4, p. 6, par 25.

22. This was suggested in the ECE Task Force Report, ibid., p. 11, par. 44.
• the data required to assess the main effects the project is likely to

have, and

• a non-technical summary of these items.

The following additional information may also be required from

the proponent and therefore be included in the notification process:

• further details of the project, such as the production process,

nature of materials to be used, etc.,

• an outline of the main alternatives,

• the rationale for the choice,

• a description of the aspects of the environment likely to be

affected and the causes of these likely impacts, such as the use of

resources, emissions or wastes,

• measures to prevent or offset impacts, and

• a description of the forecasting methods used and any difficulties encountered in the assessment.

The European Commission is reviewing these information

requirements as part of the process of suggesting amendments to the

Directive, with a view to making them more consistent among the EU

members.23

The institutional mechanism associated with the Danube River

Protection Convention supports a much more abbreviated approach,

calling for an exchange of information “as determined by the International Commission” (Art. 12). Whether this will be sufficient in the longer term is difficult to tell. The directions of both the EU and the Espoo

Convention suggest it will not be effective.

Where the notification is of the actual completed draft assessment,

as in the Antarctic case, the draft report itself is included as part of the

notification.

THE PROCESS OF “NOTIFICATION” 63

23. See the Proposal for a Council Directive amending Directive 85/337/EEC, 1985,

adopted March 16, 1994 by the Commission, Bulletin of the European Union No. 3,

1994.
This is also found in the BECC Agreement, where the requirement

for the EIA itself is supplemented by the requirement for the BECC

Board to examine the potential environmental benefits, environmental

risks, costs and available alternatives in the context of the environmental

standards and objectives for the affected area (Art. II, sec. 3(c)(1)). This

provides, at least by implication, a minimum level of required information which the BECC must receive in the assessment or in associated documents, and which it must also make available for comment.

An issue closely associated with the inclusion of information in a

notice is the exclusion of information protected by applicable laws from

public release. The Espoo Convention (Art. 2.8) excludes from notification information identified by national laws, regulations, administrative

provisions or accepted legal practice as prejudicial to industrial or commercial secrecy or national security. The EU Directive references limits

imposed by national law and administrative provisions with regard to

safeguarding the public interest, and industrial and commercial secrecy

in the state of origin of the project. The Air Quality Accord does not reference what information should be included in a notification, but does

require in a separate reference that any information identified as proprietary by the owner under the laws of the place where such information

has been acquired not be released without the consent of the owner

(Art. VII.2).

The Danube River Protection Convention adds a provision to these

types of exclusions that any protected information that is transferred

shall be treated in the same confidential manner by the recipient. It also

notes that personal privacy is a basis for non-release of information (Art.

13).

A related issue is addressed by several instruments, including the

International Law Commission Draft Articles: Utmost urgency situations which vitiate the need for the notification itself (Art. 19).

A further issue of relevance in the present context is the language

of the notification and the information included: Should the materials be

made available in the language of the affected party and public? If so,

who should be responsible for the costs and preparation of translations?

The ECE Task Force Report suggests that these be borne by the Party of

origin.24

64 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

24. ECE Task Force Report, supra, note 4, p. 10, par. 40-41. The Report also includes a

consideration of what types of material should be translated.
Finally, a question may be raised here as to whether the party of

origin should use the occasion of the notice to request information it may

require to fully assess potential transboundary impacts. This question

may be considered under this issue or under the rubric of exchange of

information.

The decision to participate

Here again the focus is placed on the official participation of government authorities in the assessment of the possible transboundary

impacts. Public participation is considered below, under a separate

heading.

Two distinct items are considered here:

• the time frame for a response on participation, and

• the information to be included with an affirmative response to

participate.

These issues are not treated extensively in the existing agreements.

The Espoo Convention is the only one to deal fully with this issue

in the context of a notification to participate in an assessment process. It

puts the burden on the notifying party to identify a “reasonable” time

period for a response, “taking into account the nature of the proposed

activity” (Art. 3.2). The notified party is to respond within this time

frame, including an acknowledgement of receipt of the notification and

its decision on participation in the review.

Both the Task Force Report and the Netherlands Report for the

Espoo Convention have suggested that a period of one to four months

would be reasonable in most cases.25

The International Law Commission Draft Articles regarding international watercourses is based on each party doing its own assessment

of the impacts in its territory. Here, a six month evaluation period is provided to do the study and communicate the findings. This delay is

extendable where the evaluation poses special difficulties. The responding party must then provide its findings and the reasons for them (Part

III).

THE PROCESS OF “NOTIFICATION” 65

25. Supra, note 4, p. 4, par. 15 and p. 10, par. 37 respectively.
The Antarctic Treaty Protocol provides only for a review of the

completed evaluation. A 90-day period is provided for comments from

other parties and the public, but at least 120 days are required for

comments from the Antarctic Treaty Consultative Meeting. This is a

minimum period. A maximum response period from the Consultative

Meeting is set at fifteen months before the project can proceed in the

absence of such comments (Annex I, Art. 3).

Implicit in the absence of defined schedules for responses would

appear to be the de facto time frames set by the actual processes involved

at the domestic level. One would expect the time frame required by the

Espoo Convention to be reasonably tied to this as well.

Related to this issue is the question of what information should be

provided to the party of origin for the purposes of making the assessment. This issue might be more suitably addressed in the context of an

examination of the exchange of information requirement of Art. 10(7)(b).

Absence of notification

An absence of notification can occur for two main reasons. First,

the party of origin does not have, under its legislation or policy, a government decision to make. This can be at the national level only, or at the

national and sub-national levels where both are included in the agreement. Second, where such a decision is required, the party of origin does

not believe that significant transboundary impacts are likely to occur.

The first case raises the question of requiring, through an international agreement, an assessment of the likely transboundary impacts to

be a domestic trigger for environmental assessment or a government

decision in its own right. The general transboundary assessment agreements to date have not done this. Sectoral or regional agreements, such

as transboundary watercourse agreements have put such requirements

in place, however, in so far as the impacts on the watercourse are concerned. This is seen in the Danube River Protection Agreement and

the International Law Commission Draft Articles, as well as such

agreements as the ECE Convention on the Protection and Use of

Transboundary Watercourses and International Lakes, 1992.26

The BECC Agreement requires an assessment of the transboundary impacts of a proposed project for which a proponent is

66 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

26. This text can be found at 3 Yb. Int. Env’t L. 703 (1992).
seeking NADBANK financing. This requirement may be in addition to

the domestic requirements for EIA in the jurisdiction of origin of the

project.

According to the 1994 Progress Report on the Air Quality Accord,

implementation of the provisions on notification has been impacted by a

“fundamental disagreement” as to whether paragraph 1 of Article V of

the Accord created an obligation to assess potential transboundary air

impacts or deferred such an obligation to existing laws, regulations and

policies in the respective countries.27This disagreement remains today.

The Antarctic Treaty Protocol requires an assessment to be

conducted for all projects in that area, notwithstanding domestic law

requirements.

While general developments in international law may support the

articulation of an obligation to assess transboundary impacts irrespective of domestic requirements, it remains clear that its articulation in the

present circumstances will remain difficult. Implementation would also

remain difficult. The language of Art. 10(7)(a) reflects this in speaking of

“projects subject to decisions by a competent government authority.”

The Parties may wish to consider this issue further in a discussion of that

paragraph.

The more often raised concern relates to the situation where the

party of origin does not believe that significant transboundary impacts

are likely to occur. The options for the other parties in this circumstance

are considered by some of the agreements in this area. The Espoo Convention requires the parties to enter into discussions at the request of

any concerned party as to whether a project may cause significant

transboundary effects. When a party alleges an impact from a project for

which an assessment is mandatory under the Convention28, and for

which no notice has been given, the parties are required to exchange sufficient information to hold such discussions. If agreement is not reached,

a special inquiry procedure is established by the Convention (Appendix

IV).

Article 7 of the EU Directive more simply invites a state that has not

received notice to request information from the state of origin. The International Law Commission Draft Articles (Art. 18) require a state to have

“serious reason to believe” a significant impact will be likely from a

THE PROCESS OF “NOTIFICATION” 67

27. Canada-United States Air Quality Agreement, 1994 Progress Report, at p. 16.

28. The Convention provides for both mandatory assessment of projects listed in its

Appendix I and discretionary assessment when designated criteria are met (Art. 3).
planned measure before making such a request, and it must provide

documented reasons for this belief. Consultations and negotiations are

called for in the event of further disagreement.

The Air Quality Accord places the matter into the context of notifying and consulting in the event of an air pollution problem that is of joint

concern. Dispute resolution procedures, including a possible reference

to the International Joint Commission when agreed by both parties, are

options that emerge generally from the agreement (Art. XIII.2). A formal

dispute resolution option is also found in most other agreements.

What is generally signaled by the existing texts is a two stage process where notification is absent but a party believes a significant

transboundary impact will occur. The first stage is notification and consultation. The second is a more formal entry into dispute resolution processes.

Notification to the public

The issue of notification to the public is raised directly by the principle on Public Participation in the Overarching Principles adopted by

the Council of the CEC in October, 1995.

Notification to the public can be an issue both when there is official

notice and participation by government agencies, and where there is

no such notice and/or participation. A critical conceptual question is

whether to apply the same rights and process as exist in the party of

origin for public participation, as exist in the party being notified, or

to create a minimum international right for public notification and

participation.29

Many agreements have simply not addressed this issue. Of those

that have, most existing agreements have chosen the first route. This is

seen in the EU Directive, which provides equal rights to the public in the

impacted state. The result of this choice is that the rights and roles of the

public differ from jurisdiction to jurisdiction under these instruments.30

68 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

29. A recent review of the EU Directive, for example, shows that some commentators

criticized the Directive for “not bringing to the Community the beginning of a new

kind of community-wide participatory public decision making, but merely a

rehashing of existing administrative procedures.” Paul McHugh, “The European

Community Directive – An Alternative Environmental Impact Assessment Procedure”, 34 Nat. Res. J. 589 (1994) at 614.

30. See, e.g., Gisèle Bakkenist, “Notification of Transnational Environmental

Impacts”, 3 Rev. E. C. Int’l . Env’t. L. 7 (1994).
No instruments appear to take the approach of providing the public the

same rights as in the impacted state. The relevant Overarching Principle

adopted by the CEC Council holds that public participation should be

consistent with national and sub-national regimes, but does not identify

of which party.

The BECC Agreement and the Antarctic Treaty Protocol both create rights of review and comment on completed draft assessments

before their respective decision-making bodies can consider a decision.

The former requires all documentary material to be available to the public on all the implicated projects. The latter requires the draft assessment

to be made available to the public by the proponent state as well as by all

parties when they receive a copy for their own comments. Additional

information is to be made available by the proponent party on request.

The Netherlands Report argues that detailed arrangements are

needed in bilateral or regional agreements to address this issue. It suggests three alternatives:

• the party of origin be responsible for all public notification,

• the party affected notify its own public,

• a shared responsibility between these two parties that ensures

both the speed of the first option and the effectiveness of the second.31

While the issues are not clearly broken down in the comparatively

few instances they are treated in existing agreements, the Parties may

wish to consider the following circumstances and questions in their

work on this issue:

• notification to the public when there is official participation by a

notified government authority,

• notification to the public where there is notification to the government authorities but a decision not to participate in the EIA,

• notification to the public in the absence of any other official notification or participation,

THE PROCESS OF “NOTIFICATION” 69

31. Netherlands Report, supra, note 4, p. 11-12.
• contents of a notification to the public, and

• a public registry of information.

Other elements, such as the actual participation of the public in an

assessment process, public hearings and the treatment of comments

from the public, may be more appropriately considered in relation to the

exchange of information, consultations, and the conduct of the assessment.

The goal identified in the Overarching Principles, of ensuring “that

the public has adequate information and the opportunity to participate

in a meaningful manner in such mechanisms or procedures” may

require provisions to address each of these aspects.

70 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
SOURCES REVIEWED

Accord sur l’Escaut: Accord concernant la protection de l’Escaut,

République Française, Royaume des Pays-Bas, la Région de

Bruxelles-Capitale, la Région Flamande et la Région Wallonne,

1994.

Air Quality Accord: Agreement between the Government of the United

States of America and the Government of Canada on Air Quality,

March, 1991.

Annex II to the La Paz Agreement: Agreement of Cooperation between

The United States of America and the United Mexican States

Regarding Pollution of the Environment Along the Inland International Boundary by Discharges of Hazardous Substances, 1985,

Annex II to the Agreement between the United States of America

and the United Mexican States on Cooperation for the Protection

and Improvement of the Environment in The Border Area.

Antarctic Treaty Protocol: Protocol on Environmental Protection to the

Antarctic Treaty, Annex I: Environmental Impact Assessment,

1991.

Bay of Fundy Protocol, Draft Protocol on Transboundary Environmental Impact Assessment, Gulf of Maine Council on the Marine

Environment, draft for discussion purposes, 1994.

British Columbia/Washington State Environmental Cooperation

Agreement: Environmental Cooperation Agreement Between the

Province of British Columbia and the State of Washington, May 7,

1992.

Danube River Protection Convention: Convention on Cooperation for

the Protection and Sustainable Use of the Danube River, June, 1994.

Espoo Convention: Convention on Environmental Impact Assessment

in a Transboundary Context, UN Economic Commission for

Europe, 1991.

EU Directive: Council Directive 85/337/EEC of 27 June 1985 on the

Assessment of the Effects of Certain Public and Private Projects on

the Environment.

I.L.C. Draft Articles, 1994: International Law Commission, Draft Articles

on the Non-Navigational Uses of International Watercourses, as

submitted to the Sixth Committee of the United Nations General

Assembly, 1994.

THE PROCESS OF “NOTIFICATION” 71
La Paz Agreement: Agreement Between the United States of America

and the United Mexican States on Cooperation for the Protection

and Improvement of the Environment in the Border Area, 1983.

Mexico-US Marine Pollution Agreement: Agreement of Cooperation

between the United States of America and the United Mexican

States Regarding Pollution of the Marine Environment by Discharges of Hydrocarbons and other Hazardous Substances, 1980.

New York State-Québec MOU: Memorandum of Understanding on

Environment Cooperation between the Government of the State of

New York and the Gouvernement du Québec, May 10, 1993.

Transboundary Impact Assessment Overarching Principles, adopted by

the Council of the Commission for Environmental Cooperation,

October 1993.

US-Mexico Border Environment Cooperation Commission (BECC)

Agreement: Agreement Between the Government of the United

States of America and the Government of the United Mexican

States Concerning the Establishment of a Border Environment

Cooperation Commission and a North American Development

Bank, 6 November 1993.

72 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Commission for Environmental Cooperation

Secretariat Distr.

GENERAL

TEIA/96.02.05/S/1 – Annex

15 March 1996

Original: English

THE PROCESS OF “NOTIFICATION” IN THE CONTEXT

OF TRANSBOUNDARY ENVIRONMENTAL IMPACT

ASSESSMENT: A COMPARATIVE REVIEW OF SELECTED

BILATERAL AND MULTILATERAL AGREEMENTS

Background Paper

Annex: Tables

This brief background paper provides, in chart form, a review of

selected agreements that have considered issues relating to the process

of “notification” of potential transboundary environmental impacts of a

proposed project with a view to assessing those impacts. These agreements include some that are full treaties under international law, others

that are treaties not yet in force, and still others that are agreements not

captured by international law. They have been included here not

because of their legal status, but as examples the Parties may wish to

consider in developing recommendations pursuant to Article 10(7) of

the North American Agreement on Environmental Cooperation

(NAAEC).

The order of presentation implies no choice or priority of the

approach set out in the agreements. Generally, North American agreements are cited first, other agreements or documents in which the Parties

have a role are looked at next, and agreements in which the parties do

not have any role are considered last.

73
The agreements listed here include detailed references to at least

one aspect of the notification process:

• Notification by whom and to whom

• When to notify

• What information should be included in a notification

• The decision to participate

• Absence of notification

• Notification to the public

Not every agreement covers each of these points.

Readers may notice some agreements relating specifically to one or

other of the borders to be absent from this review. These include the 1983

La Paz Agreement itself (Annex II of that Agreement is included below

as an example of a notification regime in the area even though it does

not deal expressly with prior impact assessment), and the agreements

concerning the International Boundary Waters Commission between

Mexico and the United States and the International Joint Commission

between Canada and the United States. While all these agreements may

have some relevance to transboundary assessment issues (La Paz, for

example, specifically calls for the assessment of all impacts in the border

area), none of them provide any detail on how to go about implementing

the process. The scope of this review is limited to agreements that

include details specifically on notification.

This document does not necessarily reflect the views of the Commission for Environmental Cooperation or of the Parties to the North

American Agreement on Environmental Cooperation.

74 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
ISSUE: NOTIFICATION BY WHOM AND TO WHOM

Agreement Notification by whom Notification to whom Notes

Air Quality Accord,Canada-US

Art. V.2: National government. National government. - “party” is defined as being the national governments;

- Under Art. XIV.2, the parties shallseek the cooperation of provincialand state governments in theimplementation of the agreement.

Bay of FundyProtocol,(Draft only)

Provincial/state authorityand/or regional nationalauthority.

Provincial/state authorityand/or regional nationalauthority.

The Protocol operates on a regionalecosystem basis, including the landand water components of the Bayof Fundy basin. State, provincialand regional offices of nationalauthorities are all participants inthe Bay of Fundy Council process.The draft protocol has not yet beenendorsed by the Council or itsWorking Group.

THE PROCESS OF “NOTIFICATION” 75
ISSUE: NOTIFICATION BY WHOM AND TO WHOM (continued)

Agreement Notification by whom Notification to whom Notes

US-Mexico BECCAgreement

The approach here is not one ofnotification to a governmentauthority, but provision of the EIAto the BECC. It must then review allthe information in consultationwith state and local authorities aspart of the certification for financing process. (Part I, Art. II, sec. 3(c)(1))

Annex II to the La PazAgreement, 1985(Pollution of inlandinternationalboundary)

Notification by a designated“on-scene coordinator”. Eachcountry has on-scene coordinators designated by distinctregions in the border area.(Appendix I, Art. 1)

Notification is sent to bothChairmen of the JointResponse Team established todeal with actual or likelytransboundary impacts. Following notification to the designated local officials, an additional notification is sent at thediplomatic level. (Appendix I,Art. 1.2(f) and 2.5)

This is not directly on EIA notification, but on the notification of anactual or likely hazardous substance incident impacting the border area waters. It is included hereas an example of a highly developed notification regime on theMexico-US border, and as an application of La Paz.Notification is for consultation purposes, and does not mean a jointresponse is necessary. (Appendix I,Art. 2.5)

76 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
ISSUE: NOTIFICATION BY WHOM AND TO WHOM (continued)

Agreement Notification by whom Notification to whom Notes

Mexico-US MarinePollution Agreement,1980 (on marineaccidents with atransboundary aspect)

Notification by a designated“on scene coordinator” tohis/her own Joint ResponseTeam Chairman. (Annex I)

One chair notifies the other.Following notification to thedesignated local officials, anadditional notification is sentat the diplomatic level. (AnnexII)

This is not directly on EIA notification, but for notification of anactual or likely marine oil incident.This was the forerunner agreementthat provided the model copiedalmost exactly for the Annex IIAgreement to La Paz.

Espoo Convention National government.

(Art. 3.1)

National government(Art. 3.1).

Espoo defines Parties as the statesParty, and extends recognition toother levels of government wherethey are designated by the Partyas a competent authority orentrusted by the Party with decision-making powers regarding aproposed activity (Art. 1(ix)).

THE PROCESS OF “NOTIFICATION” 77
ISSUE: NOTIFICATION BY WHOM AND TO WHOM (continued)

Agreement Notification by whom Notification to whom Notes

Antarctic TreatyProtocol, Annex I,1991

The Protocol is silent in thisregard. Notification couldpotentially be by the Partyinvolved in the project or theperson or organization whichprepared a draft comprehensive Environmental Evaluation (CEE) (Annex I, art. 3.2(l)).The process itself is coordinated either by the Party involvedor, if more than one Party isinvolved, the said Parties shallnominate one of their own tocoordinate it (Art. 8).

The draft CEE must be madeavailable to all Parties, thepublic and to the Committeefor Environmental Protectionestablished by the Protocol(Annex I, Art. 3.3 and 3.4)

This Protocol concerns assessmentof an area of the global commons bystates undertaking activities in thearea, as opposed to transborderissues. All parties “share” responsibility for protection of the environment. Notification is of a draft CEE,prepared only after an “Initial EEindicates or it is otherwise determined that a proposed activity islikely to have more than a minor ortransitory impact” (Annex I, Art3.1).

Accord sur l’Escaut,1994

Art. 5: Does not deal with notification per se, but uses itsCommission as a centre for theexchange of information submitted by the Parties orobservers on projects submitted to an assessment that havea transboundary impact on theEscaut River. (Art. 5 and 7)

Information would be sharedby all the contracting parties.

The Commission is composed ofFrance, the Netherlands and threesub-federal level governments inBelgium. (The Accord also includesa definition of the precautionaryprinciple in a transboundary context.)

78 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
ISSUE: NOTIFICATION BY WHOM AND TO WHOM (continued)

Agreement Notification by whom Notification to whom Notes

Danube RiverConvention, 1994

By the Party. (Art. 10) To the Danube River International Commission. (Art. 10) The Convention is a specific appli- cation of the UNECE Agreement on

Transboundary Watercourses. Itdeals with transboundary environmental assessment for the DanubeRiver catchment area.

THE PROCESS OF “NOTIFICATION” 79
ISSUE: WHEN TO NOTIFY

Agreement Timing Notes

Air Quality Accord,US-Canada

Art. V.2: “As early as practicable in advance of adecision concerning such action, activity or project.”

The actions, activities or projects contemplatedare proposed ones subject to the trigger identifiedfor notification in Art. V.1, i.e., would be likely tocause significant transboundary air pollution.

New York State/Québec MOU

Sect. 5: “Before any major action or project in anarea under their respective jurisdictions...” iscarried out.

The section does not specify EIA processes, but itapplies in that context.

Bay of FundyProtocol

“at an early stage in the decision-making process” and “prior to any decision being made toauthorize a proposed activity.”

Also includes a reference to consulting early inthe process to provide a cooperative determination of the extent and scope of the EIA.

US-Mexico BECCAgreement

Prior to a decision on certification for financingbeing made by the BECC. (section 3)

The EIA must be presented as part of the application for financial certification process.

Annex II to the La PazAgreement, 1985

Notification by the on scene coordinator“immediately” about any polluting incidentthat has occurred or is in imminent danger ofoccurring and which may require a jointresponse. (Appendix I, Art. 1.2(f))

This is not on EIA, but provides a basis for a jointresponse to an actual or imminent incidentimpacting the inland border area. The Mexico-USmarine agreement of 1980 provides a similarstructure.

80 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
ISSUE: WHEN TO NOTIFY (continued)

Agreement Timing Notes

Espoo Convention Art. 3: “As early as possible and no later than

when informing its own public about the proposed activity.”

I.L.C. Draft Articles, 1994 Art. 12: “Timely notification.”EU Directive, 1985 Art. 7: at the same time as it makes [the information] available to its own nationals.Antarctic Treaty Protocol,Annex I, 1991

At least a ninety day comment period; and tothe Committee for Environmental Protection atleast 120 days before the next Antarctic TreatyConsultative Meeting. (Art. 3.3 and 3.4)

THE PROCESS OF “NOTIFICATION” 81
ISSUE: WHAT INFORMATION SHOULD BE INCLUDED IN A NOTIFICATION

Agreement Basic provisions: content/form Exceptions Notes

Air Quality Accord Art. VII.2: the Committees

“shall not release, without theconsent of the owner, anyinformation identified to themas proprietary informationunder the laws of the placewhere such information hasbeen acquired.”

Bay of Fundy Protocol The Protocol is not specific on this

but calls for the use of another jurisdiction’s EIA process as the information gathering mechanismwhere appropriate.

New YorkState/Québec MOU

S. 5: Special mention is made of“appropriate mitigation measures.”

The section is not specific to EIAnotification.

82 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
ISSUE: WHAT INFORMATION SHOULD BE INCLUDED IN A NOTIFICATION (continued)

Agreement Basic provisions: content/form Exceptions Notes

Espoo Convention Art. 3.2: information on the

proposed activity; includingany available information onits possible transboundaryimpact; the nature of the possible decision; time frame for aresponse by the Party to thenotification.Must also include, initially orafter a decision by the affectedParty to participate: relevantinformation on the EIA procedure; time schedule for thetransmittal of comments; relevant information on the proposed activity and its possiblesignificant transboundaryimpact.

Art. 2.8: The Parties retain theright to implement nationallaws, regulations, administrative provisions or acceptedlegal practices protectinginformation the supply ofwhich would be prejudicial toindustrial and commercialsecrecy or national security.

Technical reviews by the Partieshave identified gaps in the notification process. These are still beingaddressed.Espoo has a two-stage informationproviding approach, with significantly more details required after adecision to participate.

THE PROCESS OF “NOTIFICATION” 83
ISSUE: WHAT INFORMATION SHOULD BE INCLUDED IN A NOTIFICATION (continued)

Agreement Basic provisions: content/form Exceptions Notes

I.L.C. Draft Articles Art. 12: “available technical

data and information in orderto enable the notified States toevaluate the possible effects ofthe planned measures.”Art. 14: obligation to providenotified state with additionaldata and information availableon request that is necessary foran accurate evaluation.

Art. 14: data that is availableand necessary for an evaluation.Art. 19: exception for plannedmeasures that are “of utmosturgency in order to protect public health, public safety or otherequally important interests.”Art. 31: exception for information vital to a state’s nationaldefense or security.

The provisions apply for plannedmeasures that could impact onwatercourses.The provisions set out a one stageprocess rather than a two stage one.They support a non-integratedassessment process, each partyassessing the impacts within itsown jurisdiction.

Danube RiverConvention, 1994

Art. 12(1) calls for an exchangeof available information “asdetermined by the International Commission.”

- subject to reasonable chargesfor information requested thatis not readily available (Art.12(3))- subject to domestic laws onpersonal data, intellectualproperty rights or nationalsecurity (Art. 12(5))- protected information provided shall be treated the sameway by the recipient. (Art.12(6))

84 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Agreement Basic provisions: content/form Exceptions Notes

EU Directive, 1985 Art. 5: Minimum: a description

of the project site, design andsize; the measures envisagedto avoid, reduce and remedysignificant effects; the datarequired to assess the maineffects the project is likely tohave; a non-technical summary of the above.Annex III: Additional information as considered relevant bythe party: further details of theproject, such as the productionprocess, nature of materials tobe used, etc.; outline of the mainalternatives; rationale for thechoice; description of theaspects of the environmentlikely to be affected; the causesof the likely impacts of the project, such as the use of resources,emissions, wastes; measures toprevent or offset impacts; asummary of the above information; any difficulties encountered in the assessment.

Limitations imposed bynational regulations, administrative provisions andaccepted legal practice withregard to safeguarding thepublic interest, and industrialand commercial secrecy in thestate of origin of the project.(Art. 10)

Two tier system of minimum information and more detailed information.

THE PROCESS OF “NOTIFICATION” 85
ISSUE: RESPONSE/DECISION TO PARTICIPATE

Agreement Timing Information to include Notes

Espoo Convention Art. 3.3: “within the time

period specified in the notification.”

Art. 3.3: acknowledge receiptof notification; indicate itsdecision to participate in theEIA procedure.

Art. 3.2 requires the notifying partyto include an indication of a reasonable time frame for responding,“taking into account the nature ofthe proposed activity.”

I.L.C. Draft Articles,1994

Art. 13: six months in which toevaluate and study the possible effects of the planned measure and communicate itsfindings.Art. 15: Reply as early as possible with findings.

Findings, together with thedocumented reasons settingforth the findings. (Art. 15)

These provisions apply “unlessotherwise agreed” by the parties.(Art. 13)The provisions set out a one stageprocess rather than a two stage one.They also reflect a non-integratedassessment process, each partyassessing the impacts within itsown jurisdiction.A consultation and negotiationprocess to resolve different views isprovided for.

86 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
ISSUE: RESPONSE/DECISION TO PARTICIPATE (continued)

Agreement Timing Information to include Notes

Antarctic TreatyProtocol, Annex I,1991

No decision can be taken on aproposed project until afterthe Antarctic ConsultativeCommittee has had a chance toconsider the draft assessmenton the advice of the Committee; subject to a maximum of 15months delay from the circulation of the draft assessment.(Art. 3(5))

There is no specific requirement forresponses.

THE PROCESS OF “NOTIFICATION” 87
ISSUE: ABSENCE OF NOTIFICATION

Agreement Process Notes

Air Quality Accord,Art. V.6Art. IX, XI, XII

Notify of and consult on a problem that is of joint concern;Possible joint reference to the International Joint Commission;Consultations and formal dispute resolution.

Espoo Convention Art. 2.5: Enter into discussions at the request of any concerned

Party as to whether a project is likely to cause significanttransboundary impacts.Art. 3.7: where a party considers that it would be affected by aproposed project for which an assessment is mandatory underAppendix 1, and for which no notice has been given, the partiesshall exchange “sufficient information for the purposes of holding discussions on whether there is likely to be a significantadverse transboundary impact.” An inquiry process is established in the event of continued disagreement.

Espoo has a list of mandatory projects for assessment based ondefined conditions, and discretionary transboundary assessments forprojects not on this list likely tocause a significant impact. It alsoincludes a guidance annex for thepurpose of determining this.

I.L.C. Draft Articles,1994

Art. 18: In absence of notification, request for the application ofthe notification provisions may be made where a state “has serious reason to believe” planned measures will have a significantadverse effect on it.Art. 16: Allows a notifying party to proceed with a notified measure after the expiry of the response period if no response isgiven.

Documented reasons must be provided. (Art. 18.1)Consultations and negotiations arecalled for if there is continued disagreement. (Art. 17.2, 17.3, 18.2)

EU Directive, 1985 Art. 7: A state likely in its view to be impacted can request information.

88 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
ISSUE: NOTIFICATION TO THE PUBLIC

Agreement Who/Timing Information to include Notes

US-Mexico BECCAgreement

Part I, Art. II, sec. 4: Makeavailable information on allprojects, prior to a decision oncertification; give writtennotice of and a reasonableopportunity to comment on allgeneral guidelines and on allapplications for certification.

No specific details: refers to“documentary information onall projects” for which assistance or certification is requested. (Part I, Art. II, sec. 4)There is a limitation on disclosure of information that wouldimpede law enforcement,business or propriety information, violate personal privacyor breach the confidentiality ofgovernment decision-making;and any other information thatthe Commission agrees, onrequest, to keep confidential.(Part I, Art. III, sec. 10)

The BECC does not undertake anassessment, but requires one aspart of the certification processwhere there might be significanttransboundary impacts. Certification is required for NADBANKfinancing.

Espoo Convention Art. 3.8: By the concerned parties; to the public of the

affected Party in the areaslikely to be affected; providean opportunity to make comments or objections on the proposed activity.

No details provided. Under Art. 2.6, the Convention provides equal rights of comments and

participation to the public in allaffected parties and the party of origin.

THE PROCESS OF “NOTIFICATION” 89
ISSUE: NOTIFICATION TO THE PUBLIC (continued)

Agreement Who/Timing Information to include Notes

EU Directive, 1985 Does not specifically identify

notice to the public in theaffected country, but doesspeak of acting on a reciprocaland equivalent basis. The public in the Party of origin hasaccess to all the informationrequired by the local authority.

Same as state to state. (Art. 5, 6,7)

90 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
ISSUE: NOTIFICATION TO THE PUBLIC (continued)

Agreement Who/Timing Information to include Notes

Antarctic TreatyProtocol,Annex I, 1991

Public release of the draftComprehensive Environmental Evaluation by the state oforigin.

The draft ComprehensiveEnvironmental Evaluation(Art. 3(3). Other information tobe made publicly availableincludes the description of theprocedures, an annual list ofany initial evaluations andrelated decisions, the initialevaluations (upon request),information obtained frommonitoring the projects implemented pursuant to an Initialor Comprehensive Evaluationand any action taken in consequence thereof, and FinalComprehensive Evaluationswith notice of related decisions and related impact evaluations (Art. 6).

This is not notice for participationin its drafting, but for comments onthe draft assessment. Any interested member of the public in anyParty can comment. (Art. 3(3))

THE PROCESS OF “NOTIFICATION” 91
SOURCES REVIEWED

Accord sur l’Escaut: Accord concernant la protection de l’Escaut,

République Française, Royaume des Pays-Bas, la Région de

Bruxelles-Capitale, la Région Flamande et la Région Wallonne,

1994.

Air Quality Accord: Agreement between the Government of the United

States of America and the Government of Canada on Air Quality,

March 1991.

Annex II to the La Paz Agreement: Agreement of Cooperation between the

United States of America and the United Mexican States Regarding

Pollution of the Environment Along the Inland International

Boundary by Discharges of Hazardous Substances, 1985, Annex II

to the Agreement between the United States of America and the

United Mexican States on Cooperation for the Protection and

Improvement of the Environment in The Border Area.

Antarctic Treaty Protocol: Protocol on Environmental Protection to the

Antarctic Treaty, Annex I: Environmental Impact Assessment,

1991.

Bay of Fundy Protocol: Draft Protocol on Transboundary Environmental

Impact Assessment, Gulf of Maine Council on the Marine Environment, 1994.

Danube River Protection Convention: Convention on Cooperation for the

Protection and Sustainable Use of the Danube River, June, 1994.

Espoo Convention: Convention on Environmental Impact Assessment in

a Transboundary Context, UN Economic Commission for Europe,

1991.

EU Directive: Council Directive 85/337/EEC of 27 June 1985 on the

Assessment of the Effects of Certain Public and Private Projects on

the Environment.

I.L.C. Draft Articles, 1994: International Law Commission, Draft Articles

on the Non-Navigational Uses of International Watercourses, as

submitted to the Sixth Committee of the United Nations General

Assembly, 1994.

La Paz Agreement: Agreement Between the United States of America and

the United Mexican States on Cooperation for the Protection and

Improvement of the Environment in the Border Area, 1983.

92 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Mexico-US Marine Pollution Agreement: Agreement of Cooperation

between the United States of America and the United Mexican

States Regarding Pollution of the Marine Environment by Discharges of Hydrocarbons and other Hazardous Substances, 1980.

New York State-Québec MOU: Memorandum of Understanding on Environment Cooperation between the Government of the State of

New York and the Gouvernement du Québec, May 10, 1993.

US-Mexico BECC Agreement: Agreement Between the Government of the

United States of America and the Government of the United Mexican States Concerning the Establishment of a Border Environment

Cooperation Commission and a North American Development

Bank, 6 November 1993.

THE PROCESS OF “NOTIFICATION” 93

Commission for Environmental Cooperation

Secretariat Distr.

GENERAL

TEIA/96.02.05/S/3

2 April 1996

Original: English

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS

UNDER ARTICLE 10(7)(a) OF THE NORTH AMERICAN

AGREEMENT ON ENVIRONMENTAL COOPERATION:

A COMPARATIVE REVIEW OF SELECTED BILATERAL AND

MULTILATERAL AGREEMENTS

Background Paper

This document does not necessarily reflect the views of the

Commission for Environmental Cooperation or of the Parties to

the North American Agreement on Environmental Cooperation

INTRODUCTION

Under Article 10(7) of the North American Agreement on Environmental Cooperation (NAAEC), the Council is required to consider and

develop recommendations regarding the transboundary environmental

impact assessment (EIA) of proposed projects, with a view to agreement

between the Parties within three years. This discussion paper is one of

a series that examine the various components of Article 10(7) in light

of other existing and proposed international agreements related to

transboundary EIA.

95
This discussion paper addresses the issues raised by Article

10(7)(a) of the NAAEC, which reads:

(a) assessing the environmental impact of proposed projects subject to

decisions by a competent government authority and likely to cause significant adverse transboundary effects, including a full evaluation of comments provided by other Parties and persons of other Parties;

This paper is based on an evaluation of a number of bilateral and

multilateral agreements, as well as several “soft law” instruments, relating to transboundary EIA.1 Although many bilateral and multilateral

agreements refer to environmental assessment generally, only a few

provide any significant detail regarding the process or content of an EIA.

These more detailed agreements include the Espoo Convention on Environmental Impact Assessment in a Transboundary Context of 1991, the

European Union Directive on Environmental Assessment of 1985, and

the Antarctic Treaty Protocol on Environmental Protection of 1991.

Although this paper necessarily depends most on these three agreements, the paper refers to other agreements, guidelines or principles that

can illuminate a particular issue. The paper was also written in light of

the Council’s Transboundary Impact Assessment Overarching Principles

adopted in October 1995 (the “Council’s Overarching Principles”).

The paper is based primarily on an analysis of the text of the agreements and instruments considered. It does not reflect domestic EIA law

and practice of the NAAEC Parties or any other countries. This is particularly important, because most international instruments relating to

EIA rely heavily on domestic EIA law and practice to provide the details

of implementation. This deference to established domestic EIA regimes

is also reflected in the Council’s Overarching Principles on complementarity and respect for national and subnational processes. For the most

part, we do not highlight instances where interpretation of specific projects is left to domestic law, although this is always an option available in

any treaty negotiation.

This discussion paper considers a number of issues raised by

Article 10(7)(a) in light of three generally accepted objectives of

transboundary EIA:

96 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

1. The agreements and other instruments examined while preparing this paper and the

accompanying charts are listed at the end of this paper. For more information regarding transboundary EIA in international law, see P. Sands, Principles of International

Environmental Law I, ch. 15 (Manchester Univ. Press, 1995); D. Hunter et al., International Environmental Law Concepts and Principles (UNEP Trade and Environment

Series, No. 2) (1994); N. Robinson, “International Trends in Environmental Impact

Assessment”, 19 B.C. Envtl. Aff. L. Rev. 591 (1992).
• to provide decision-makers with reliable and timely information on

the environmental consequences of proposed projects, regardless of

whether the consequences are located inside or outside a particular

State’s jurisdiction,

• to ensure that decisions on such projects take into account such consequences, and

• to provide a mechanism for potentially affected people and institutions in other jurisdictions to learn how a proposed project in a neighboring jurisdiction will affect their environment and to participate in

the process leading to a decision on the proposed activity.

The paper is divided into three parts. Part I addresses the threshold

“screening” requirements that must be met to trigger the obligation to

conduct an EIA. Specific triggering issues raised by Article 10(7)(a)

include:

(i) what is a “proposed project”;

(ii) how is “subject to decisions by a competent government

authority” defined; and

(iii) how is “likely to cause significant adverse transboundary

environmental impacts” defined.

Part II relates to the process and contents of actual EIAs. Specific

issues raised by Article 10(7)(a) include:

(i) what type of impacts must be assessed,

(ii) what information, at a minimum, should the assessment contain, and

(iii) who conducts the assessment.

Part III addresses those issues raised by the requirement in Article

10(7)(a) to evaluate fully comments provided by other parties and persons of other parties. These issues include:

(i) what is the role of the public in the EIA process;

(ii) how to elicit comments from other parties; and

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 97
(iii) how should the comments be integrated into the final assessment.

I. ISSUES RELATED TO SCREENING REQUIREMENTS

Every environmental assessment regime must establish a standard

for when and how its assessment obligations are triggered. Article

10(7)(a) contemplates EIAs for any “proposed projects subject to decisions by a competent government authority and likely to cause significant adverse transboundary effects.” Article 10(7)(a) requires at least

three “screening” criteria be met. First, the proposed activity must be a

“project.” Second, the project must be “subject to decisions by a competent government authority.” Third, the project must be “likely to cause

significant adverse transboundary effects.” These three criteria are discussed below.

A. “Proposed Projects”

Projects v. Activities. Transboundary EIA regimes generally

apply either to “projects” or “activities.” The EU Directive, for example,

applies to “projects,” while more recent agreements, including the

Espoo Convention and the Antarctic Protocol, refer to the potentially

broader term “activities.”2

Where the term project has been used, it has not appeared to be

defined substantially more narrowly than the term “activities.”3Regardless of the term used, it appears that most EIA requirements extend

beyond narrow definitions of “projects,” such as basic construction and

infrastructure projects, and are designed to capture a broader range of

human activity. The EU Directive, for example, defines “project” to

include “the execution of construction works or of other installations or

schemes” and “other interventions in the natural surroundings and

landscape including those involving the extraction of mineral

resources.”4 In addition to mining operations, other activities are also

included among the “projects” listed in the EU Directive, including agriculture, aquaculture, and forestry activities.5

98 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

2. The Rio Declaration, the Bay of Fundy Draft Protocol and the Cuixmala Model Treaty

also refer to “activities.” For simplicity, abbreviated references to international

agreements and other instruments are used throughout the text and footnotes. Full

titles of the relevant documents are listed in the bibliography appended hereto.

3. The US-Mexico BECC Agreement also applies EIAs to “projects.” The BECC may not

provide a good example in this context, however, because the agreement’s scope is

limited by the BECC’s narrow mandate to review environmental infrastructure projects near the US-Mexico border.

4. EU Directive, Art. 1(2).

5. See EU Directive, Annex II.
Lists of Projects. Rather than defining the term “projects” or

“activities,” several international instruments as well as many national

laws provide lists of specific project categories that are covered by the

EIA obligations. For example, the Espoo Convention lists activities that

trigger the assessment obligations of the convention in Appendix I,

assuming the listed activity is likely to cause significant adverse

transboundary impact.6 Similarly, the EU Directive relies heavily on

lists. Annex I and II of the Directive respectively list those projects subject to mandatory assessment requirements and those projects that are

subject to assessment obligations “where Member States consider that

their characteristics so require.”7

Although the use of lists lends clarity to EIA regimes, allowing the

project proponents to know more easily whether they must conduct an

EIA, the provisions may not provide sufficient flexibility to cover all

types of projects that can threaten the environment. For that reason,

most international instruments and domestic laws, in practice, have

combined lists of certain projects with some more flexible standard relating to the significance of the environmental threat. For the most part, the

regimes rightly interpret activity or project broadly thereby making the

“significance of environmental harm” the threshold question.

Specific Exemptions. Among the agreements examined, only the

EU Directive explicitly exempts certain classes of activities from EIA

obligations. Projects that serve national defense purposes and projects

adopted by a specific act of the national legislature are not covered by the

EU Directive.8

Projects v. Policies, Programs or Plans. To date, transboundary

EIA agreements have only imposed formal assessment obligations at the

project or activity level, and not at the more general level of policies, programs, or plans. There is a trend, however, toward imposing some level

of assessment obligation, short of a formal EIA, on the broader policy

level. For example, during the NAFTA process all three of the parties

conducted some form of EIA on the broad impacts of North American

economic integration. Similarly, the Espoo Convention provides that

“to the extent appropriate, the Parties shall endeavor to apply the principles of environmental impact assessment to policies, plans and

99 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

6. Espoo Convention, Art. 2.2.

7. EU Directive, Art. 4.2. Except for the general obligation on Member States to ensure

that “projects likely to have significant effects on the environment” are properly

assessed, the Directive provides no further guidance for making the determination

as to whether an Annex II project requires an EIA. Ibid. at Art. 2.1.

8. EU Directive, Art. 1(4) and (5).
programmes.”9 Many national laws also apply some form of environmental assessment to policies and programs, and many commentators

believe it should be included in international treaties.10

Public v. Private Projects. The existing transboundary EIA agreements apply equally to activities undertaken by national governments

and by private parties or subnational governments acting with the

approval of the national government. The EU Directive specifically

refers to “public and private projects,” although the EIA obligations fall

only on those developers that must apply for authorization of a project.11

The formulation used in the Espoo Convention implicitly provides that

private activities “subject to a decision of a competent authority in accordance with an applicable national procedure”12 would be subject to the

assessment requirements. This is consistent with Article 10(7)(a)’s

requirement that the projects be subject to a decision of a competent government authority. This provision is analyzed further in the next section.

B. ”Decisions by Competent Government Authorities”

Article 10(7)(a) of the NAAEC only applies to those projects subject

to a “decision by a competent government authority.”

Types of Decisions. This provision in the NAAEC is similar to

many others in international EIA instruments designed primarily to

restrict the application of EIA to decisions involving some public authority. Thus government decisions to fund or conduct a project are clearly

covered by all EIA regimes.13 As well, most recent international instruments tend to apply EIA to private projects that require government

approval. Thus, for example, EIA obligations under the Espoo Convention apply to decisions to “authorize” or undertake a covered activity,

and the EU Directive requires Member States to ensure EIAs are conducted before giving consent to private projects. The Rio Declaration

also calls for EIAs for activities that are “subject to a decision of a competent national authority.”14 In this way, these and other EIA regimes

cover most private activities that are likely to have significant

100 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

9. Espoo Convention, Art. 2.7.

10. See, e.g., Cuixmala Model Treaty, Art. 31(5) requiring the parties to “take appropriate measures to ensure that before they adopt policies, programmes, and plans that

are likely to have a significant transboundary adverse effect on the environment,

the environmental consequences of such actions are duly taken into account.”

11. EU Directive, Art. 1(2).

12. Espoo Convention, Art. 1(v), refers to any activity or major change.

13. See, e.g., EU Directive, Art. 1(2) (which explicitly makes a public authority that initiates a project meet the obligations of a project “developer”).

14. Rio Declaration, Principle 17.
transboundary impact, because most countries employ some form of

permitting process to regulate potentially environmentally damaging

activities.

Timing of Decisions. Given that the primary goal of an EIA is to

provide information to decision-makers, all international instruments

that address the issue clarify that the EIA should be conducted before

final decisions are made. For example, both the Espoo Convention and

the EU Directive are explicit that the EIA must be conducted before the

relevant decision or approval is made. Similarly, the Antarctic Protocol

applies to “planned” activities, implying that the EIA must be done

before an activity begins.

Competent Government Authority. Like Article 10(7), the agreements examined in the preparation of this paper refer to decisions by the

“competent authority” as part of the operative language of environmental assessment obligations. For the most part, this language refers to government agencies that have been provided with the decision-making

authority over the proposed project and/or government agencies specifically delegated to conduct EIAs. The Espoo Convention, for example,

defines the “competent authority” as “the national authority or authorities designated by a Party as responsible for performing the tasks covered by this Convention and/or the authority or authorities entrusted

by a Party with decision-making powers regarding a proposed activity.”15 In essence this provision is usually interpreted to complement

domestic environmental laws, allowing countries maximum flexibility

for differences in national EIA systems.

National v. Subnational Authority. The “competent government

authority” formulation in international EIA agreements raises an important issue of the extent to which decisions of subnational government

authorities are covered. Because transboundary EIA agreements have

followed the traditional “federal-to-federal” model of international

agreements, they typically operate to bind national governments and

not subnational governments. This distinction is particularly important

when dealing with federal systems, such as the US, Canada, and Mexico,

which reserve significant authority for state or provincial governments.

The discussion paper on notification issues (The Process of “Notification” in the context of Transboundary Environmental Impact Assessment: A Comparative Review of Selected Bilateral and Multicultural

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 101

15. Espoo Convention, Art. 1(ix). The EU Directive, Art. 1(3), refers to those authorities

“which the Member States designate as responsible for performing the duties arising out of this Directive.”
Agreements, TEIA/96.02.05/S/1.) includes an extended discussion of

the relationship between federal and state/provincial governments in

the context of the “competent government authority.” That discussion

will not be repeated here, however, several points are worth emphasizing. First, existing agreements such as the Canada-US Air Quality

Accord, while only binding federal governments, may obligate those

governments to seek the cooperation of state and provincial governments to implement the agreement.16 Second, particularly along the

Canada-US border, neighboring states and provinces have already

entered into agreements to cooperate on environmental issues and have

set up institutional arrangements to enhance such cooperation.17 These

existing arrangements provide an important basis for involving state

and provincial authorities in transborder EIA. Building on these existing

mechanisms would be consistent with the Council’s Overarching Principlesrelating to respect for national and subnational processes and ensuring cost effectiveness and efficiency.

The same three models identified in the notification context to

address the national/subnational issue can be utilized in the context of

EIAs:

• The Party-Party model requires designated federal authorities to

oversee assessment activities in their respective jurisdictions and

coordinate such activities with the federal authority in neighboring

nations;

• The ad hoc model requires grouping concerned authorities on both

sides of the border in response to a particular situation;

• The regional grouping model pre-identifies authorities on both

sides of the border and establishes specific procedures for assessing

transboundary environmental impacts.

The experience of the parties to the Espoo Convention, as

expressed in a report prepared pursuant to a workshop of the parties,

suggests that assessment in the transboundary context would be

enhanced by adopting the regional grouping model. The report highlights the importance of “good working relations on a subregional level

between government authorities,” and notes that the implementation of

transboundary EIA obligations would be enhanced by the establish102 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

16. Canada-US Air Quality Accord, Art. XIV.

17. See, e.g., British Colombia/Washington State Environmental Cooperation Agreement; New York State-Québec MOU on Environment Cooperation; Bay of Fundy

Draft Protocol.
ment of a joint body.18 The regional grouping model would help build

good working relations and could incorporate some form of joint body

to facilitate the transboundary EIA process.

C. Projects “Likely to Cause Significant Adverse Transboundary

Effects”

While virtually all existing transboundary EIA agreements require

assessment where a proposed activity is “likely to have significant

adverse effects” on the environment, the agreements themselves provide little guidance as to how the terms “likely” and “significant” are to

be applied.19 As noted above, the EU Directive includes a list of projects

for which EIA is mandatory and a list of projects that may require EIA

depending on the likelihood of significant adverse effects. The Espoo

Convention also lists types of activities that will trigger assessment obligations, but they are still subject to the “likely to cause significant harm”

qualification. Thus, for the most part, even where lists are used to help

define the coverage of the agreement, the parties must nevertheless

make a determination of the likelihood of significant adverse effects.

Likelihood of Impact. Most international instruments that use the

term “likely” to have significant impacts do not clarify what degree of

probability is required to meet the “likelihood” standard. Other international instruments that use triggers other than the “likely” standard,

provide some guidance in interpreting this standard. Thus, for example,

UNEP’s Guidelines on Shared Natural Resources suggest that EIAs

be adopted for any activity that “may create a risk of” significant

impacts (Principle 4). In a slightly different context, the Convention on

Transboundary Effects of Industrial Accidents focuses on those activities that are “reasonably capable” of causing transboundary effects

(Art. 4(2)). Some commentators support a sliding standard: the level of

probability of an impact needed to trigger an EIA should vary depending on the significance of the potential harm. For example, the Cuixmala

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 103

18. Bilateral and Multilateral Cooperation on Environmental Impact Assessment in A

Transboundary Context, Report prepared by the delegation of the Netherlands,

CEP/WG.3/R.4, p. 4 par. 8 and p. 9 par. 29, 30, January 1995, hereinafter the Netherlands Report. The report uses the example of a joint EIA expert group, but does

not otherwise suggest how such a group should operate.

19. This approach is also reflected in the New York-Québec MOU on Environmental

Cooperation. Section 5 of the MOU provides that notice and consultation obligations are triggered by actions or projects “likely to adversely affect the environmental quality of the other Party’s territory.” Similarly, the US-Mexico BECC

Agreement requires an environmental assessment for border region projects “having significant transboundary environmental effects.” US-Mexico BECC Agreement, Part I, Art. II, sec. 3(c)(1).
Draft Model Treaty defines “risk of significant transboundary harm” to

include both “a low probability of causing disastrous harm and a high

probability of causing other significant harm.”20

Significance of Impact. Although many international instruments

do not define “significant,” it is generally considered to be a nonnegligible impact or more than a de minimis effect.21 The Espoo Convention does provide the parties with general criteria to assist in the determination of significance. The criteria are designed to be applied to both

proposed activities located close to an international frontier and those

that are more remote if they could give rise to transboundary effects far

removed from the site of development. The parties to the Espoo Convention are instructed to consider the following:

(a) Size: proposed activities which are large for the type of the activity;

(b) Location: proposed activities which are located in or close to an area of

special environmental sensitivity or importance (such as wetlands designated under the Ramsar convention, national parks, nature reserves, sites

of special scientific interest, or sites of archaeological, cultural or historical

importance); also, proposed activities in location where the characteristics

of proposed development would be likely to have significant effects on the

population;

(c) Effects: proposed activities with particularly complex and potentially

adverse effects, including those giving rise to serious effects on humans or

on valued species or organisms, those which threaten the existing or

potential use of an affected area and those causing additional loading

which cannot be sustained by the carrying capacity of the environment.22

The Espoo Convention also provides a dispute resolution mechanism if the parties are unable to agree on whether a particular activity

will have significant effects. Appendix IV of the Convention creates an

inquiry procedure under which a panel of three experts determines the

likely significance of a disputed proposed activity.

104 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

20. Cuixmala Model Treaty, Art. 2(8).

21. See, e.g., UNEP Guidelines on Shared Natural Resources (”‘Significantly affect’

refers to any appreciable effects on a shared natural resource and excludes de

minimis effects” (Definition section)). The Cuixmala Model Treaty defines “significant harm” as “an adverse effect that 1) can be established by objective evidence,

2) is not trivial in nature, and 3) is more than measurable and entails a) some degree

of importance without need to rise to the level of being of serious importance or to

the level of substantial harm, and b) real impairment of use” (Art. 2 (7)).

22. Espoo Convention, Appendix III.
Several instruments or national laws take a tiered approach to the

issue of the magnitude or significance of the potential environmental

impacts. Usually three or more categories of projects or activities are

identified depending on their potential impact on the environment. The

Antarctic Protocol, for example, divides proposed activities into three

tiers and uses a screening step to determine when a comprehensive EIA

is required. The three tiers correspond to whether the activity is

expected to have a) less than a minor or transitory impact, b) a minor or

transitory impact, or c) more than a minor or transitory impact. If, in

accordance with national procedures, an activity is determined to have

less than a minor or transitory impact, the activity may proceed. All

other activities must undergo an “initial” EIA, which must include sufficient information to determine if the impact will be more than minor or

transitory. If so, then a full scale impact assessment is required.23

II. ISSUES RELATING TO THE ASSESSMENT OF IMPACTS

Article 10(7)(a) states that the Council should make recommendations for “assessing the environmental impact” of proposed projects.

Definition of Environmental Impacts. To ensure consistency

across jurisdictions as to what impacts require analysis in the EIA process, a number of agreements have provided additional guidance on the

types of effects that must be covered by an EIA. All three of the major

multilateral EIA instruments reviewed here require assessment of

impacts beyond those that are strictly environmental. The EU Directive

defines impact to include effects on “material assets and cultural heritage”(Art. 3). The Espoo Convention is typical of the trend to define

environment broadly as it specifically includes “human health and

safety, flora, fauna, soil, air, water, climate, landscape and historical

monuments or other physical structures.”24 Finally, although it relates to

an extranational area and has no permanent human inhabitants, the

Antarctic Protocol requires examination of impacts on scientific and

other existing activities in the area (Art. 3).

Cumulative, Indirect and Long-term Impacts. The trend among

international EIA agreements, and national laws for that matter, is to

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 105

23. These requirements are spelled out in the Antarctic Protocol, Art. 8 and Annex I. A

similar tiered approach is used in the World Bank’s Operational Directive on Environmental Assessment. World Bank, Op. Dir. 4.01 (Oct. 1991).

24. Espoo Convention, Art. 1(vii), defining “Impact.”
ensure that EIAs cover all reasonably foreseeable impacts. These include

direct and indirect impacts, cumulative impacts of small projects, distant or global impacts, as well as short-term and long-term impacts.25

What Is Included In the Assessment. Both the EU Directive and

the Espoo Convention provide a list of elements that must, at a minimum, be included in the EIA documentation.26

The Espoo Convention is the most detailed; in addition to a

description of the proposed project or activity and a discussion of the

impacts, the Espoo Convention requires EIAs to include the following:

• an examination of reasonable alternatives to the proposed activity,

including the “no-action” alternative,

• a discussion of measures designed to mitigate the adverse consequences of the activity,

• a description of predictive methods, underlying assumptions and relevant environmental data used,

• a discussion of any uncertainties or data gaps involved in the preparation of the assessment,

• where appropriate, an outline of plans for management, monitoring

and post-project analysis, and

• a non-technical summary of the assessment.

Each of these elements of an assessment is important. Indeed, mitigation is the focus of Article 10(7)(c) of the NAAEC, and is thus covered

by another discussion paper. Just as important is the requirement that

EIA involves an analysis of alternatives to the proposed project or activity. Alternatives have been explicitly included in both the EU Directive

and the Espoo Convention primarily because they are considered critical to providing necessary information to the decision-maker.

106 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

25. See, e.g., Antarctic Protocol, Annex I, Art. 3.2. This is further supported by soft law

instruments and by many analysts. See, e.g., UNEP Goals and Principles of Environmental Impact Assessment, Princ. 4(d); IUCN Draft Covenant, Art. 37(2);

Cuixmala Model Treaty, Art. 31.2.

26. Espoo Convention, Appendix II; EU Directive, Art. 5 and Annex III.
Who Conducts the Assessment. The obligation for conducting an

assessment of the transboundary impacts of proposed activities or projects typically falls on the party within whose territory or under whose

control the proposed activity or project falls (usually referred to as the

“Party of origin”).27

The Antarctic Protocol and the Espoo Convention provide for the

preparation of joint impact assessments where appropriate. For joint

activities in the Antarctic Treaty area, the parties may work together to

develop the required EIA; however, they must appoint one party as primarily responsible for meeting the requirements of the Protocol.28 The

Espoo Convention explicitly provides for the use of multilateral or bilateral agreements or arrangements among the parties to implement the

obligations of the Convention,29 and lays out guidelines for such

arrangements in Appendix VI. In addition, a working group under the

Espoo Convention has focused on ways to improve multilateral and

bilateral cooperation under the Convention and has published additional guidance.30

While still in a preliminary form, the draft Bay of Fundy Protocol

raises the possibility that the EIA process of one jurisdiction could be

used as an information gathering mechanism to assist another jurisdiction to analyze fully the effects of a proposed activity.31 In this way two

separate EIAs can be coordinated, with one Party (probably the Party of

Origin) taking the lead.

Process for Impact Assessment. The EIA process of the party of

origin is typically relied upon when conducting transboundary EIAs.

The agreements examined in the preparing of this report universally

refer the parties to their own laws and procedures for conducting EIAs

while generally imposing certain minimum criteria on such domestic

systems.32

Distinct from the assessment process, notification and consultation

obligations are likely to be controlled by relevant international agreements.

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 107

27. See, e.g., Espoo Convention, Arts. 1(ii) and 2(3); Convention on the Transboundary

Effects of Industrial Accidents, Arts. 1(g) and 4(1).

28. Antarctic Protocol, Art. 8.4.

29. Espoo Convention, Art. 8.

30. The Netherlands Report, supra, note 18, p. 11.

31. Bay of Fundy Draft Protocol, Implementation.

32. The exception to this statement may be the EU Directive, which under certain circumstances unique to the European Union may be directly applicable in the Member States in the absence of domestic legislation.
III. ISSUES RELATING TO THE INTEGRATION OF

COMMENTS INTO THE FINAL ASSESSMENT

Article 10(7)(a) requires that an EIA include “a full evaluation of

comments provided by other Parties and persons of other Parties.” All

three of the major transboundary EIA agreements examined in the preparation of this paper impose explicit public participation obligations

on the parties. At a minimum, potentially affected persons are to be

informed of proposed activities that may have environmental impacts

and provided with an opportunity to comment on the proposed activity

before a final decision is made concerning that activity. The Council’s

Overarching Principles echo this concern by calling for “meaningful participation” of those who may be subject to adverse environmental effects

in the decision to authorize proposed activities.33

A. The Role of the Public

Which Party is Responsible for Ensuring Public Participation.

While the party of origin has primary responsibility for preparation of

the EIA, the obligation to ensure public participation is generally shared

by the party of origin and the affected parties. This approach reflects

the fact that although environmental consequences may not respect

geo-political borders, institutional responses to such consequences must

be consistent with long established notions of national sovereignty.

The Espoo Convention, for example, provides that the concerned

parties (which include the party of origin and any affected parties) shall

ensure that the public in areas likely to be affected be informed of and

have the opportunity to comment on the relevant proposed activity.34As

noted in the Netherlands Report, there are a number of ways to implement this obligation: a) communication directly between the proper

authority in the party of origin and the affected public, b) communication through an authority of the affected party, or c) a combination of the

first two options.35While the first option is most direct and less subject to

delay, the second option takes advantage of the fact the authority in the

affected party is more familiar with existing mechanisms of eliciting

public comment in that country. A combination of the two options could

reap the benefits of both.

108 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

33. See also Rio Declaration, Principle 10.

34. Espoo Convention, Art. 3(8).

35. The Netherlands Report, supra, note 18, p. 11, par. 42.
Similarly, under the Antarctic Protocol, the party conducting an

EIA must submit a draft EIA to all other parties for review. Each party is

then responsible for making the draft EIA publicly available for comment in their own country.36 While not directly relating to EIA, the

La Paz Agreement on Cooperation for the Protection and Improvement

of the Environment in the Border Area provides that technical information is to be available to both parties, who then decide by mutual agreement whether to distribute it more broadly.37

Notice and Comment Procedures. The procedures for ensuring

public participation under the treaties reviewed for this paper are

largely left to the parties to determine. Nonetheless, several agreements

provide important baseline criteria for implementing transboundary

public participation. One of the most common criteria is one of nondiscrimination, requiring parties to provide equal access to participate

to the public of neighboring states. Under the Espoo Convention, the

party of origin is required to grant to the public in affected areas of

foreign jurisdictions the same level of participation as it grants to its

own nationals.38 In a slightly different context, the Convention on

Transboundary Effects of Industrial Accidents also requires that foreign

nationals be granted the same opportunity to participate as those of the

party of origin and explicitly requires that foreign nationals be granted

equal access to and treatment in relevant administrative and judicial

proceedings.39

An important issue relevant to ensuring cross border public participation that is generally not addressed in the agreements reviewed

concerns translations. To ensure meaningful public participation, information and materials must be made available in accessible form to the

potentially affected public. The responsibility for providing translations

when necessary could fall on either the party of origin or the affected

party, or on both parties jointly.

Timing. The Antarctic Protocol is the only agreement that imposes

specific time periods for public comment. The public of each Party must

be given at least 90 days to comment on a draft EIA, and at least 60 days

to review the final EIA before the activity can begin.40 By contrast, the

Espoo Convention provides only that the public must be given “reasonASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 109

36. Antarctic Protocol, Annex I, Art. 3(3).

37. La Paz Agreement, Art. 16.

38. Espoo Convention, Art. 2(6).

39. Convention on Transboundary Effects of Industrial Accidents, Art. 9(2) and (3).

40. Antarctic Protocol, Annex I, Art. 3(3) and 3(6) respectively.
able time” to comment.41 Otherwise, provisions of national law relevant

to the timing of public notice and comment will likely be determinative.

B. Procedures for Receiving Comments from Other Parties

The separate paper prepared on notification issues deals with the

mechanisms created to ensure that the national governments whose territory may be affected by a proposed activity in another jurisdiction have

the opportunity to comment or consult regarding the proposed activity.

Depending on how the parties decide to implement the public participation requirements discussed above, these country-to-country notice and

consultation provisions may also provide the mechanism for the transmittal of comments between the parties.

The coordinating bodies established under most international EIA

agreements may also serve a vital information sharing role and serve as a

communication conduit. The institutions and processes of the European

Union, for example, allow the Member States ample opportunity to consult on both a formal and informal basis concerning their respective obligations under the EU Directive. Similarly, the Antarctic Protocol and the

Treaty of which it forms a part create a standing Environmental Committee and an annual “consultative” meeting of the Parties.42 The existing cross border cooperative arrangements already in existence (such

as the New York State-Québec MOU, a similar cooperative effort

between Washington State and British Columbia, and the BECC) provide a solid base for building border institutions and processes to facilitate party-to-party notice, comment, and consultation.

C. Evaluation and Integration of Comments

The Antarctic Protocol has the most specific requirements for

incorporating comments from the public and other parties into the final

EIA.43 The final draft of a comprehensive assessment must include or

summarize and address all such comments received. Moreover, the final

EIA and notice of any decisions relating thereto must be made publicly

available within each party’s territory for 60 days before the proposed

activity may commence.

110 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

41. Espoo Convention, Art. 4.2.

42. Antarctic Protocol, Art. 1 and 10; Antarctic Treaty, Art. IX. The Antarctic Protocol is

unique in that it requires the approval of draft EIAs at the annual meeting of the

Parties following a review by the Committee for Environmental Protection. Antarctic Protocol, Annex I, Art. 3(5). This provision granting approval authority to the

parties is unique in international EIA agreements and no doubt reflects the Antarctic’s unique status as a global commons.

43. Antarctic Protocol, Annex I, Art. 3(6).
The Espoo Convention is less specific, but nevertheless mandates

that all comments be considered in making a final decision on the proposed activity.44 The Espoo Convention also requires that the final decision must be made available to affected parties as well as the reasons and

considerations upon which the decision was made.45 However, there is

no requirement that the final decision (and relevant reasons and considerations) be made publicly available. By contrast, the EU Directive also

requires that comments from the affected public and any other Member

States be taken into consideration during the consent procedure.46 But

the final decision, including conditions thereto and the reasons and consideration on which it is based, must be made available to the concerned

public and other Member States that are likely to be affected.47

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 111

44. Espoo Convention, Art. 6(1) (requiring that parties take “due account” of comments received).

45. Espoo Convention, Art. 6(2).

46. EU Directive, Art. 8.

47. EU Directive, Art. 9.
SOURCES REVIEWED

Air Quality Accord: Agreement between the Government of the United

States of America and the Government of Canada on Air Quality,

March 1991.

Antarctic Protocol: Protocol on Environmental Protection to the Antarctic Treaty, Annex I, Environmental Impact Assessment, 1991.

Bay of Fundy Draft Protocol: Protocol on Transboundary Environmental Impact Assessment, Gulf of Maine Council on the Marine Environment, draft for discussion purposes, 1994.

British Columbia/Washington State Environmental Cooperation

Agreement: Environmental Cooperation Agreement Between the

Province of British Columbia and the State of Washington, May 7,

1992.

Cuixmala Model Treaty: Cuixmala Model Draft Treaty for the Protection

of the Environment and the Natural Resources of North America,

by A. Székely, J.A. Beesley, A.E. Utton, International Transboundary Resources Center, University of New Mexico Law

School, 1995.

Convention on the Transboundary Effects of Industrial Accidents, Helsinki, 1992.

Espoo Convention: Convention on Environmental Impact Assessment

in a Transboundary Context, UN Economic Commission for

Europe, 1991.

EU Directive: Council Directive 85/337/EEC of 27 June 1985 on the

Assessment of the Effects of Certain Public and Private Projects on

the Environment.

IUCN Draft Covenant, Draft International Covenant on Environment

and Development, Commission on Environmental Law of IUCN.

The World Conservation Union in cooperation with International

Council of Environmental Law, Environmental Policy and Law

Paper No. 31, IUCN Environmental Law Centre, 1995.

I.L.C. Draft Articles, 1994: International Law Commission, Draft Articles

on the Non-Navigational Uses of International Watercourses, as

submitted to the Sixth Committee of the United Nations General

Assembly, 1994.

112 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
La Paz Agreement: Agreement Between the United States of America

and the United Mexican States on Cooperation for the Protection

and Improvement of the Environment in the Border Area, 1983.

Mexico-US Marine Pollution Agreement: Agreement of Cooperation

between the United States of America and the United Mexican

States Regarding Pollution of the Marine Environment by Discharges of Hydrocarbons and other Hazardous Substances, 1980.

New York State-Québec MOU: Memorandum of Understanding on

Environment Cooperation between the Government of the State of

New York and the Gouvernement du Québec, May 10, 1993.

Overarching Principles: Transboundary Impact Assessment Overarching Principles, adopted by the Council of the Commission for

Environmental Cooperation, October 1995.

Rio Declaration: Rio Declaration of the UN Conference on Environment

and Development, Rio de Janeiro, 1992.

UNEP Goals and Principles of Environmental Impact Assessment, June

17, 1987.

United Nations Environment Programme (UNEP) Governing Council

Decision: Principles of Conduct in the Field of the Environment for

Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, 1978.

US-Mexico Border Environment Cooperation Commission (BECC)

Agreement: Agreement Between the Government of the United

States of America and the United Mexican States Concerning the

Establishment of a Border Environment Cooperation Commission

and a North American Development Bank, 1993.

World Bank, Operational Directive 4.01: Environmental Assessment,

October, 1991.

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 113

Commission for Environmental Cooperation

Secretariat Distr.

GENERAL

TEIA/96.02.05/S/3 – Annex

2 April 1996

Original: English

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS

UNDER ARTICLE 10(7)(a) OF THE NORTH AMERICAN

AGREEMENT ON ENVIRONMENTAL COOPERATION:

A COMPARATIVE REVIEW OF SELECTED BILATERAL AND

MULTILATERAL AGREEMENTS

Background Paper

Annex: Tables

This annex is a series of charts, which provide comparative

excerpts from several bilateral and multilateral treaties, declarations or

guidelines relating to those issues raised by Article 10(7)(a) of the North

American Agreement on Environmental Cooperation (NAAEC). Article

10(7)(a) provides that the Council shall consider and develop recommendations with respect to:

(a) assessing the environmental impact of proposed projects subject to

decisions by a competent government authority and likely to cause significant adverse transboundary effects, including a full evaluation of comments provided by other Parties and persons of other Parties[...].

The charts are organized according to the major issues raised by

this section. Thus, Tables1–3 address those threshold requirements in

Section (a) that must be met to trigger the need to conduct an environ115
mental impact assessment (i.e. the screening requirements), including

that there be (i) a “proposed project” (ii) “subject to decisions by a competent government authority” and that are (iii) “likely to cause significant adverse transboundary environmental impacts”. Tables 4 and 5

relate to the process and contents of the actual assessment of environmental impacts, including what type of impacts must be assessed (Table

4) and who conducts the assessment (Table 5). Tables 6 and 7 relate to

those issues raised by the requirement to evaluate fully comments provided by other Parties and persons of other Parties. These issues include:

who should evaluate the comments and how should comments be integrated into the Final Assessment (Table 6) and how to solicit comments

from “other Parties” and “persons of other Parties” (Table 7).

The instruments reviewed here include treaties that are fully in

force and some that are not yet in force, as well as some that reflect “soft

law” principles or concepts helpful in understanding the current international practice and law relating to transboundary environmental

impact assessment. The instruments have been selected not because of

their legal status, but because they offer illustrative examples for the

Parties to consider in developing recommendations pursuant to Article

10(7).

The order of presentation of the instruments implies no preference

or priority of the approach reflected in the agreements. Generally, North

American treaties are presented first, followed by other treaties in which

the Parties have a role, treaties not involving any of the Parties, and then

soft law documents.

Not every instrument reviewed was relevant to every issue, and

thus not every instrument is included in every Table. In addition, instruments that provide only general statements about the need to conduct an

environmental impact assessment were typically not included in the

chart. Only those instruments having language that could help in further

defining or understanding the issue presented by the NAAEC were

included.

116 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 1

WHAT TYPE OF “PROJECTS” REQUIRE AN IMPACT ASSESSMENT?

AGREEMENT DEFINITION OF PROJECT/ EXCLUSIONS NOTES

FORM OF DEFINITION

Air Quality Accord,Canada-US

Not specified in agreement. None specified. Art. V indicates that the Parties shall conduct

EIAs in accordance with domestic law. EachParty’s domestic EIA law thus determineswhich projects trigger EIA requirements.

US-Mexico BECCAgreement

Applies to environmental infrastructure projects in the border area,defined as “a project that will prevent,control or reduce environmental pollutants or contaminants, improve thedrinking water supply, or protectflora and fauna so as to improvehuman health, promote sustainabledevelopment, or contribute to ahigher quality of life.” Part I, Art. VII.

None specified. Commission’s purpose is to facilitate funding

for environmental infrastructure projects inthe border region.

Espoo Convention - Appendix I lists specific categories of

activities that require EIA under theConvention.- In addition, Appendix III enumeratescriteria to be used to determine if a proposed activity not listed in Appendix Imay have a significant adverse environmental impact and thus fall withinthe purview of the Convention.

For some of the listedactivities, those that aresmaller or for research purposes are excepted.(Appendices I and III)

In addition to requiring EIAs for projects, theConvention also urges the Parties to apply EIAprinciples to policies, plans, and programmes.Art. 2.7.

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 117
TABLE 1

WHAT TYPE OF “PROJECTS” REQUIRE AN IMPACT ASSESSMENT?

AGREEMENT DEFINITION OF PROJECT/ EXCLUSIONS NOTES

FORM OF DEFINITION

Antarctic Protocol Covered activities include any activities pursuant to scientific research

programmes, tourism, expeditions,and operation of the stations, or introduction of military personnel including associated logistic supportactivities. Changes to existing activities, whether they increase or decreasethe intensity of the activity, must meetEIA requirements. Protocol Art. 8(2)and Treaty Art. VII(5).

Activities that are identified as having less than aminor or transitory impactare excluded from anyassessment obligation.(Annex I, Art. 1(2)).

Some of the covered activities are defined byreference to the notification provision of theAntarctic Treaty (Art. VII.5).

EU Directive Assessment required for all “public

and private” projects listed in Annex Iand for those projects listed in AnnexII that are likely to have a significantimpact (Art. 4).

Projects serving nationaldefense purposes and thoseapproved by a specific actof the national legislatureare exempt. Art. 1.

In “exceptional cases” Member States mayexempt a specific project from the Directive’srequirements; however, in such cases theMember state must consider an alternativeform of assessment and make informationavailable to the concerned public and the Commission concerning the exemptions and thereasons for using it. Art. 2.3.

Convention on Transboundary Effects ofIndustrial Accidents

Hazardous activities that arereasonably capable of causingtransboundary effects are coveredArt. 4(2).

Hazardous activities are defined as those atwhich a hazardous substance is present inexcess of amounts specified in Annex I, Art.1(b).

118 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 1

WHAT TYPE OF “PROJECTS” REQUIRE AN IMPACT ASSESSMENT?

AGREEMENT DEFINITION OF PROJECT/ EXCLUSIONS NOTES

FORM OF DEFINITION

IUCN DraftCovenant onEnvironment andDevelopment

Proposed “activities” likely to have asignificant environmental effectrequire an EIA. Art. 37. Activitiesinclude public or private activitiesrequiring governmental approval,whether on the territory of a State oroutside the territory. Implicit fromArts. 11(1) and 37.

“Activities” are essentially projects and do notinclude “policies, programmes, and plans,”which are covered by another provision. Art.37(5).

UNEP Guidelines onShared NaturalResources

The guidelines apply to “activities”with respect to a shared naturalresource that may significantly affectthe environment of another state.“Activities” is not further defined.(Principle 4.)

UNEP Principles onEnvironmentalImpact Assessment

Assessments should be undertakenwhere the extent, nature, or location ofa proposed activity is likely to significantly affect the environment. “Activity” is not further defined. (Principle1.)

These principles are intended largely to provide guidance for domestic EIA regimes, butwhere transboundary effects are likely, a partyshould notify, inform, and consult withaffected parties. (Principles 11 and 12.)

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 119
TABLE 2

WHAT TYPES OF “DECISIONS” BY WHICH “COMPETENT GOVERNMENT AUTHORITIES”

AGREEMENT WHAT TYPE OF DECISION COMPETENT GOVERNMENT NOTES

AUTHORITY

Air Quality Accord,Canada-US

Not specified in agreement. Not specified in agreement. - Art. V indicates that the Parties shall

conduct EIAs in accordance withdomestic law.- Art. XIV requires the Parties to seek thecooperation of provincial and state governments to implement the Accord.

Espoo Convention Decisions to “undertake” or

“authorize” projects thatinvolve a listed activity mustbe preceded by an EIA. (Art.2(3))

Convention defines “competent authority” as the “national authority or authorities designated by a Party as responsiblefor performing the tasks covered by thisConvention and/or the authority orauthorities entrusted by a party withdecision-making powers regarding a proposed activity.” (Art. 1(ix))

Antarctic Protocol EIA must be implemented in

the “planning processes leading to decisions” about anycovered activity. (Art. 8(2))

The Protocol applies to all decisionsabout planned activities includingactivities by both governments and nongovernmental entities. Application of theEIA requirement does not depend onwho makes the decision. (Art. 8(2))

“Decision” is not defined or qualified inthe Protocol.

120 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 2

WHAT TYPES OF “DECISIONS” BY WHICH “COMPETENT GOVERNMENT AUTHORITIES”

AGREEMENT WHAT TYPE OF DECISION COMPETENT GOVERNMENT NOTES

AUTHORITY

EU Directive Assessment is required before

“consent” is given (Art. 2(1));“development consent” isdefined as the decision of thecompetent authority or authorities which entitles the developer of a project to proceed(Art. 1(2)).

The competent authority is that which theMember State designates as responsiblefor performing the duties under theDirective (Art. 1(3)).

Convention onTransboundaryEffects of IndustrialAccidents

Parties are to adopt policiesthat require an analysis andevaluation of hazardous activities and their potential impactson health and the environmentbefore making decisions on siting. Art. 7, Annex V.

Not defined in the treaty. The Convention does not require an

EIA, but does require the adoption ofcertain policies similar to EIA for sitingof hazardous activities.

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 121
TABLE 3

DEFINING “LIKELY TO CAUSE SIGNIFICANT ADVERSE EFFECTS”

AGREEMENT DEFINING “LIKELY” NOTES

Air Quality Accord,Canada-US

Not specified in agreement. Under Art. V each Party must conduct EIAs in

accordance with their own domestic law.

Antarctic Protocol Not defined in Protocol. The Protocol’s three tier approach (Art. 8(1)) is different than that used in other agreements; however,

“likelihood” of the magnitude of the impact is still akey to determining the level of analysis required(Annex I, Arts. 2 and 3).

EU Directive Not defined in Directive; however, assessment of projects listed in Annex I are mandatory (Art. 4 (1)). Other projects require an EIA if they are “likely to have significant effects on the environment.” With

respect to those listed in Annex II more particularly,they are subject to an EIA only “where Member Statesconsider their characteristics so require” (Art. 4(2)).

Convention onTransboundary Effects ofIndustrial Accidents

Convention uses alternative wording, focusing onthose activities that are “reasonably capable of causingtransboundary effects.” Art. 4(2).

“Reasonably capable” is not defined.

UNEP Guidelines on SharedNatural Resources

Guidelines use an alternative formulation, suggestingthat EIAs be adopted for any activity “which may createa risk of “significantly affecting the environment” ofother States sharing that resource.” (Principle 4.)

122 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 3

DEFINING “LIKELY TO CAUSE SIGNIFICANT ADVERSE EFFECTS”

AGREEMENT DEFINING “LIKELY” NOTES

Air Quality Accord,Canada-US

Not specified in agreement. Under Art. V each Party must conduct EIAs in

accordance with their own domestic law.

Espoo Convention Criteria in Appendix III include size, location, and

effects of proposed activities.

Criteria are to be used by both Party of origin andParties affected to determine if Convention’s EIArequirements are triggered (Art. 2(5)). Failing agreement among the concerned Parties, the Conventionprovides for a determination of significance to bemade by panel of three experts pursuant to AppendixIV (Art. 3(7)).

Antarctic Protocol The Protocol adopts a slightly different approach by

dividing the possible impacts into three tiers andrequiring different levels of assessment for each. Thethree tiers are 1) less than a minor or transitory impact;2) a minor or transitory impact; and 3) more than aminor or transitory impact. (Art. 8 and Annex I, Arts. 1to 3)The Protocol does not provide detailed guidance fordetermining the application of the three tiers.

Only the latter two categories require detailed environmental assessments, and only those activities thatare likely to have more than a minor or transitoryimpact are subject to the comprehensive evaluationprocedures of Annex I to the Protocol.

EU Directive Not defined in Directive; however, assessment of projects listed in Annex I are mandatory. (Art. 4(1)) Other projects, including those listed in Annex II, are subject to “likely to have significant effects on the

environment” language. (Art. 2(1))

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 123
TABLE 3

DEFINING “LIKELY TO CAUSE SIGNIFICANT ADVERSE EFFECTS”

AGREEMENT DEFINING “LIKELY” NOTES

UNEP Guidelines on SharedNatural Resources

“Significantly affect” refers to “any appreciable effectson a shared natural resource and excludes “de minimis”effects.” (Definition section)

124 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 4

ASSESSING WHAT TYPES OF IMPACTS

AGREEMENT TYPES OF IMPACTS COVERED NOTES

Air Quality Accord,Canada-US

Not specified in agreement. Art. V indicates that the Parties shall conduct EIAs in

accord with domestic law.

Bay of Fundy Protocol,Draft

Scope includes both environmental and socioeconomic effects within the coastal area of the Gulfof Maine.

The Protocol takes an ecosystem approach to the Bayof Fundy basin. State, provincial, and regionalnational authorities participate in the Bay of FundyCouncil process. The draft protocol has not yet beenformally endorsed.

US-Mexico BECCAgreement

In order to certify a border area project for funding,under Part I, Art. II, sec. 3, the Commission must examine an environmental assessment that includes “environmental benefits, environmental risks, costs, aswell as available alternatives and the environmentalstandards and objectives of the affected area.” (subsec.(c)(1))

Further definition of impacts is not spelled out in theBECC Agreement.

La Paz Agreement,US-Mexico

Potentially significant impacts. Art. 7. Art. 7 is a general statement, depending on each country’s laws for implementation.

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 125
TABLE 4

ASSESSING WHAT TYPES OF IMPACTS

AGREEMENT TYPES OF IMPACTS COVERED NOTES

Espoo Convention The Convention defines “impact” to include “any effect

caused by a proposed activity on the environmentincluding human health and safety, flora, fauna, soil,air, water, climate, landscape and historical monuments or other physical structures or the interactionamong these factors; it also includes effects on culturalheritage or socio-economic conditions resulting fromalterations to those factors.” (Art. 1(vii))

Antarctic Protocol The assessment must include, inter alia, direct, indirect,

and cumulative effects of the project, mitigation measures, and impacts on scientific and other existing activities in the area. Annex I, Art. 3.2.

The particular status of the Antarctic obviates theneed for assessment of socio-economic impacts.

EU Directive The assessment must address the direct and indirect

effects on 1) human beings, fauna and flora, 2) soil,water, air, climate, and the landscape, 3) the interactionbetween the above factors, and 4) material assets andthe cultural heritage. (Art. 3.)

Convention onTransboundary Effectsof Industrial Accidents

Defines “effects” as “any direct or indirect, immediateor delayed adverse consequences caused by an industrial accident on, inter alia: (i) human beings, flora and

fauna; (ii) soil, water, air and landscape; (iii) the interaction between the factors in (i) and (ii); and (iv) materialassets and cultural heritage, including historical monuments.” Art. 1(c).

This definition mirrors that in the EU Directive.

126 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 4

ASSESSING WHAT TYPES OF IMPACTS

AGREEMENT TYPES OF IMPACTS COVERED NOTES

Convention onTransboundaryWatercourses

Transboundary impact means “any significant adversetransboundary effect on the environment resultingfrom a change in the conditions of transboundarywaters caused by a human activity. [Such effects]include effects on human health and safety, flora,fauna, soil, air, water, climate, landscape and historicalmonuments or other physical structures or the interaction among these factors; they also include effects onthe cultural heritage or socio-economic conditionsresulting from alterations to those factors.” Art. 1(2).

The Convention provides for the development ofbilateral and multilateral agencies or institutions thatcan, among other things, participate in the implementation of environmental impact assessments relatingto transboundary waters. Art. 9(2)(j).

UNEP Principles onEnvironmental ImpactAssessment

EIA should include, at a minimum, “an assessment ofthe likely or potential environmental impacts of theproposed activity and alternatives, including the direct,indirect, cumulative, short-term and long-term effects.”(Principle 4(d))

IUCN Draft Covenanton Environment andDevelopment

Assessment must cover “cumulative, long-term, indirect, long-distance, and transboundary effects.” Art.37(2)(a).

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 127
TABLE 5

WHO ASSESSES THE IMPACT AND BY WHAT PROCESS?

AGREEMENT WHICH PARTY CONDUCTS EIA WHAT PROCESS USED NOTES

Air Quality Accord,Canada-US

Each Party is responsible for assessingprojects within its jurisdiction. (Art.V.1)

Laws of jurisdiction inwhich project is sited control EIA process. (Art. V.1)

“Party” is defined as being the national governments. (Preamble)

US-Mexico BECCAgreement

Project sponsor is responsible formaking submission to the Commission (i.e.: states, localities and privateentities and public investors) (Part I,Art. II, sec. 3).

Process is not specified inAgreement.

The unstated implication is that the processesof the jurisdiction in which the project is to besited would govern the preparation of theenvironmental assessment.

La Paz Agreement,US-Mexico

Each party is responsible for costs ofimplementing the Agreement, unlessotherwise agreed (Art. 14).

Each party uses its ownnational laws, regulationsand policies (Art. 7).

Espoo Convention Party of origin is required to conduct

EIA. (Art. 2(3))

Party of origin is to use ownEIA process which mustmeet standards set in Convention. (Art. 2)

The Convention provides that Parties mayundertake joint EIAs. (Appendix VI, Arts. 2(1)and 8)

128 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 5

WHO ASSESSES THE IMPACT AND BY WHAT PROCESS?

AGREEMENT WHICH PARTY CONDUCTS EIA WHAT PROCESS USED NOTES

Antarctic Protocol Each Party is responsible for ensuring

that EIA procedures are applied in theplanning process leading to decisionsabout activities undertaken in theAntarctic Treaty area. (Art. 8(2))

Each Party must use“appropriate national procedures”; however, AnnexI to the Protocol specifies anumber of necessaryrequirements. (Annex I,Art. 1(1))

For joint activities, the Parties involved shalldesignate one Party to coordinate EIA implementation. (Art. 8(4))

EU Directive Each Member State shall ensure EIAs

are conducted. (Arts. 2(1) and 5(1))

Each Member State appliesown EIA procedures, coupled with minimumrequirements set forth inthe Directive (Arts. 2, 5, 12and 13).

Directive intended to strengthen and harmonize Member State’s own EIA regimes.

IUCN DraftConvention ofEnvironment andDevelopment

A Party under whose jurisdiction aproposed activity will be conducted isresponsible for the EIA. (Arts. 33 and37).

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 129
TABLE 6

THE ROLE OF THE PUBLIC

AGREEMENT ROLE OF THE PUBLIC NOTES

Air Quality Accord,Canada-US

Art. V indicates that the Parties shall conduct EIAs inaccord with domestic law.

The public is involved at the more general level ofensuring the proper implementation of the Accordvia consultation and comment processes (Arts. IX(1)and XIV(3))

Bay of Fundy Protocol, Draft Calls for development of mechanisms to ensure public

involvement in early planning stages of the assessmentprocess.

US-Mexico BECCAgreement

The Commission must establish procedures to providepublic access to documentary information on proposedprojects and to provide public with “reasonable opportunity to comment.” Part I, Art. II, sec. 4.

La Paz Agreement,US-Mexico

Technical information under treaty given to Parties; upto the Parties, by mutual agreement, to decide whetherto give it to public (Art. 16).

Espoo Convention The concerned parties are jointly responsible for ensuring that the public in areas likely to be affected are

informed of and have the opportunity to comment orobject to the proposed activity and to review and comment within a “reasonable time” on the documentationrequired by the Convention. Arts. 2(6), 3(8) and 4(2).

130 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 6

THE ROLE OF THE PUBLIC

AGREEMENT ROLE OF THE PUBLIC NOTES

Antarctic Protocol All parties must provide 90-day period for public comment. Party of origin must make draft assessment available to all Parties, who, in turn, must make it publicly

available. Final draft must address all comments and bemade publicly available by all Parties 60 days prior tocommencement of activity. (Annex I, Arts. 3(3) and 3(6))

EU Directive The Directive requires that information be made available to the public and that the “public concerned” be

given the opportunity to comment. Art. 6(2).

Detailed arrangements, including determining whois the “public concerned,” for public participation areleft to the Member States (Art. 6(3)). It is unclear fromthe Directive whether citizens of other countries havethe right to participate directly.

Convention onTransboundary Effects ofIndustrial Accidents

The Parties have joint obligation to provide informationto the public in areas potentially affected by an industrial accident. Party of Origin must grant to potentiallyaffected public of other countries the same opportunityto participate as it does to its own public, includingaccess to administrative and judicial proceedings. Art. 9.

Annex III provides notification and consultation procedures for the parties to follow. Although EIAs per seare not required under the Convention, Annex V listscertain information about potential impacts of industrial accidents that must be provided to the public.

IUCN Draft Convention ofEnvironment andDevelopment

The Draft Convention generally gives all persons, without being required to prove an interest, the right toinformation on activities likely to adversely affect theenvironment and the right to participate in the decision-making process. Art. 12(3).

Article 33(c) requires that affected persons in otherStates be granted access to and due process in alladministrative and judicial proceedings in the country of origin.

ASSESSING TRANSBOUNDARY ENVIRONMENTAL IMPACTS 131

Commission for Environmental Cooperation

Secretariat Distr.

GENERAL

TEIA/96.02.05/S/4

Original: English

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL

IMPACTS UNDER ARTICLE 10(7)(c) OF THE NORTH

AMERICAN AGREEMENT ON ENVIRONMENTAL

COOPERATION: A COMPARATIVE REVIEW OF SELECTED

BILATERAL AND MULTILATERAL AGREEMENTS

Background Paper

This document does not necessarily reflect the views of the

Commission for Environmental Cooperation or of the Parties to

the North American Agreement on Environmental Cooperation

INTRODUCTION

Article 10(7) of the North American Agreement on Environmental

Cooperation (NAAEC) requires the Council to consider and develop

recommendations regarding the transboundary environmental impact

assessment (TEIA) of proposed projects. This discussion paper considers the issues relating to the “mitigation of the potential adverse effects

of such projects,” as per Art. 10(7)(c) of the NAAEC.

The paper reviews, primarily, bilateral and multilateral agreements that provide relevant examples of the application of mitigation

objectives and strategies for the work of the Council in this area. In addition, some recent publications are considered for their insights into the

progressive development of international instruments in this area.

133
This paper starts from the view that Art. 10(7)(c) concerns mitigation measures in a transboundary environmental impact assessment

(TEIA) context. This is indicated in the language of mitigating “potential” adverse effects, as well as the general context of the subparagraph.

This paper also takes into account that reviews of the issues relating

to paragraphs 10(7)(a) and (b) have previously been completed (TEIA/

96.02.05/S/1 and /3).

This paper discusses only the issues related to “mitigation” in the

TEIA context. These include:

• the general requirement to mitigate in a TEIA context;

• prioritizing mitigation measures; and

• verification of the mitigation measures and their effectiveness.

1. The general requirement to mitigate in a TEIA context

The language of Art. 10(7)(c) itself tends towards the notion of an

obligation to mitigate potential transboundary environmental impacts

of a project in development. This is drawn from the chapeau of Art. 10(7),

as well as the broader context of the NAAEC as a whole. This broader

context includes, inter alia, the preambular reference to the Stockholm

Declaration of 1972 and the Rio Declaration of 1992. Both of these Declarations recognize the sovereign right of States to develop their own

resources according to their environmental policies, with the Rio Declaration adding “developmental” policies as well. In both cases, however,

this right is balanced with the principle of international environmental

law that states have the “responsibility to ensure that activities within

their jurisdiction or control do not cause damage to the environment of

other States or of areas beyond the limits of national jurisdiction.”1

Seen within this context, the role of a TEIA process, it may be suggested, is to allow the sovereign rights to exploit ones’ resources to be

exercised in a manner that takes full cognizance of the responsibility that

is attached to the right. Indeed, analysts such as Professors Sands and

Robinson have noted the close relationship between Principle 21 of

134 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

1. This same language appears in both Principle 21 of the Stockholm Declaration and

Principle 2 of the Rio Declaration. This is widely considered to reflect a principle of

customary international law today.
Stockholm (and Principle 2 of Rio) with the obligation to prevent,

reduce, limit, or mitigate transboundary environmental harm.2

Other elements of the NAAEC are relevant to mitigation in a TEIA

context. These include the objectives of promoting sustainable development based on cooperation and mutually supportive environmental

and economic policies (Art. 1(b)), increasing cooperation between

the Parties to better conserve, protect, and enhance the environment

(Art. 1(c)), and promoting pollution prevention policies and practices

(Art. 1(j)).

At the multilateral level, the general duty to mitigate is recognized

in several existing agreements, most notably since 1990. Specific details

on its application are only found, however, in regional agreements.

The UNEP Goals and Principles of Impact Assessment (1987)

include only a general reference to identifying and describing the measures available to mitigate adverse impacts.

The Climate Change Convention of 1992 calls for the parties to take

precautionary measures to anticipate, prevent, or minimize the causes of

climate change and limit its adverse effects (Art. 3.3). The operative commitments in relation to environmental assessment remain very general,

however, and are addressed more directly as measures taken to mitigate

or adapt to climate change, rather than proposed projects that might

contribute to climate change.

The Convention on Biological Diversity contains a fairly weak

form of obligation in this area : it requires parties to introduce appropriate procedures to assess the impacts of proposed projects on biological

diversity with a view to avoiding or minimizing such effects; it further

requires the parties to promote, on the basis of reciprocity, bilateral or

regional processes for the transboundary impacts (Art. 14(1)).

The IUCN Draft International Covenant on Environment and

Development, while not a binding international agreement, can be seen

as reflective of the general trends in international environmental law.3 It

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL IMPACTS 135

2. Philippe Sands, “International Law in the Field of Sustainable Development:

Emerging Legal Principles”, pp. 53-66 in Winfried Lang, ed., Sustainable Development

and International Law, Graham & Trotman/Martinus Nijhoff, London, 1995; and

Nicholas Robinson, “International Trends in Environmental Impact Assessment”, 19

Boston College Environmental Affairs Law Review 591-621 (1992).

3. The Draft Covenant was prepared over several years by the IUCN – World Conservation Union. Its members include both governmental and non-governmental lawyers,
identifies environmental impact assessment as a primary requirement

and basic tool to prevent transboundary harm from occurring (Art. 33).

Art. 37.3 of the Draft requires that measures to avert or minimize such

harm be included as part of the TEIA process.

The International Law Commission has also enunciated this general duty to mitigate in a shared watercourse context.4 This duty is to

be exercised by states sharing a watercourse, either “individually or

jointly,” as set out in its Draft Articles on the Law of the NonNavigational Uses of International Watercourses (ILC Draft Articles,

Art. 24).

Mitigation is treated in more detail at the regional level. Two agreements in particular show this development: one is the Espoo Convention

of 1991, to which the US and Canada are signatories,5 and the Antarctic

Treaty Protocol of 1991 which includes a detailed annex on environmental assessment (Annex I).

The Espoo Convention is directly concerned with environmental

assessment in a transboundary context, and is the most developed international agreement on this issue. Art. 5 of Espoo calls for consultations

between the parties affected by a proposed project. These consultations

are to include possible alternatives to the project, including a no-action

alternative, and possible measures to mitigate and monitor the impacts.

This general duty in a consultation context is further supported by a

requirement to consult on other forms of possible mutual assistance

in reducing any transboundary impacts of a proposed project. The

exchange of information obligations in the Espoo agreement also support this general requirement, and the cooperative approach to minimizing and mitigating potential impacts, set out in Art. 8 and Appendix VI.

The obligations of Espoo are themselves embellished by two agreements concluded in 1992 by the United Nations Economic Commission

for Europe (UNECE). These are the UNECE Convention on Transboundary Watercourses and the UNECE Convention on Industrial

Accidents. Each provides additional specific details for preventing and

mitigating transboundary environmental impacts within their sphere

136 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

much as the broader membership of the IUCN includes both governmental and

non-governmental agencies. The Draft Covenant was completed in 1995.

4. Other work in progress in the International Law Commission, for example on the

consequences of acts not prohibited by international law and on state responsibility,

also support the duty to mitigate through prevention and other means. These works

have not been concluded as yet, and are not referenced here.

5. The Espoo Convention is not yet in force. Neither Canada nor the US has ratified it to

date. See Art. 5 and Appendix II.
of coverage. The Convention on Industrial Accidents, for example,

focuses on siting and emergency preparedness as key issues for the prevention of transboundary harm from the hazardous activities that are

included within its scope (Arts. 7, 8, and Annex VI, VII).6 Art. 6 and

Annex IV of the agreement concern specific accident prevention measures that would be appropriate for these activities, and their application in a transboundary context. Many of these measures would also fit

into the context of monitoring and verification, as used below. This

agreement applies for both existing and proposed activities, with Art.

4.4 expressly requiring TEIAs for hazardous activities conducted pursuant to the Espoo Convention to also meet its own requirements.

The UNECE Convention on Transboundary Watercourses is dedicated to the prevention of environmental impacts in that context. It, too,

places its emphasis expressly on the prevention of pollution, including

through bilateral and multilateral agreements to implement effective

TEIA procedures (Art. 9(2)(j)).

The Antarctic Treaty Protocol, with its Annex on environmental

assessment, provides a very developed framework for environmental

assessment. It directly articulates the duty to mitigate through preventive steps as a first choice, and through other steps such as the subsequent review of the projects undertaken. The details on these issues are

considered in the two sections that follow. Although the Protocol is concerned with the unique environmental and jurisdictional circumstances

of the Antarctic region, its provisions extend to activities and impacts

both within and outside the region. This, combined with its scope and

completeness, make the protocol a useful precedent to consider.

Annex II to the La Paz Agreement, concerning environmental incidents in the US-Mexico border area, requires the joint response team

established by the Agreement to recommend the measures necessary to

mitigate the adverse effects of such an incident (Appendix II). Annex III

to the La Paz Agreement, regarding the Transboundary Shipments of

Hazardous Wastes, also contains a similar general commitment (Art.

X.1).

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL IMPACTS 137

6. These Annexes are fairly lengthy. They are not reprinted in the attached charts both

for this reason and their limited application to hazardous activities as defined by the

Convention. Nonetheless, they can provide valuable detail in terms of the types of

measures that can be considered in a TEIA process, and adopted and monitored to

help prevent accidents with local and transboundary impacts. Technical working

groups may, therefore, wish to make reference to them.
The Air Quality Accord between Canada and the United States

calls for the parties to include consideration of appropriate mitigation

measures in environmental assessments of transboundary impacts

under the Accord. Paragraph V.4 ensures that such mitigation measures

will be the subject of consultations between the parties. Paragraph V.5

goes on to require the parties to take measures to avoid or mitigate the

potential risk posed by actions, activities, or projects likely to cause significant transboundary air pollution.

The New York State-Québec MOU requires giving prior notice and

consultation among the two parties concerning appropriate mitigation

measures as a statement of its general obligation in this area (sec. 5).

The Cuixmala Draft Model Treaty for the Protection of the Environment and the Natural Resources of North America is a private initiative of Dr. Alberto Székely, J. Alan Beesley, and Albert E. Utton, through

the International Transboundary Resources Centre, University of New

Mexico Law School in 1995. It is not a governmental document, and is

referenced for its contribution to the analysis of international law in the

areas relevant to this paper. However, its contemporaneous nature,

along with the eminence of the authors, make it an important contribution in this respect. The Cuixmala Draft Model Treaty also expressly

supports the duty to mitigate.

The structure of some international environmental agreements

draw linkages between undertaking mitigation measures and accessing

financial and technological support for doing so. This is seen, for example, in the obligations for developing countries in the Climate Change

and Biodiversity Conventions, and the related developments in relation

to the Global Environment Facility of the World Bank. However, the

agreements that adopt this approach do not appear to directly link

access to financial and technological support to the mitigation of specific

project-related impacts in an environmental assessment context. Still, a

general notion of mutual assistance in taking mitigation measures can be

seen in some cases, as was already seen in the Espoo Convention.

2. Prioritizing mitigation measures

In prioritizing mitigation measures, notional choices must be

made between targeting the source of the environmental impacts, the

impacts themselves, or a form of compensation for the impacts that may

be equitable in the circumstances. Within this broad context, possible

approaches for mitigation include:

138 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
• design and operational/process changes to avoid or address a

specific finding of a significant impact based on pollution prevention approaches;

• application of cleaner production technologies;

• alternative locations or projects;

• pollution control technologies;

• reclamation or preservation of alternative environmental sites

to balance losses in any given area of impact;

• financial or other compensation for losses of private environmental property, benefits, or amenities (this could include economic losses associated with the damage foreseen); and

• financial or other compensation for losses of public environmental property, benefits, or amenities (this could include economic losses associated with the damage foreseen).

The objective of promoting pollution prevention found in Art.1 of

the NAAEC could be read to highlight the priority to be given to preventing environmental damage at the source. In the present context, this

would imply that mitigation measures should first be considered at the

source of the potential impacts, through design or process changes, location changes, or alternatives to the project. This could include a “do

nothing” option.

The priority for prevention at source is expressly noted in Art. 26 of

the Cuixmala Draft Model Treaty prepared by Székely, Beesley and

Utton. They state that priority should be given to “prevention obligations, rather than merely relying on remedies or compensating for environmental harm.” This same notion is also expressed in Art. 6 of the

IUCN Draft International Covenant on Environment and Development,

which states that environmental protection “is best achieved by preventing environmental harm rather than by attempting to remedy or compensate for such harm.”

Prevention is also recognized as necessary in a recent empirical

study by Johnstone, based on an analysis of environmental agreements

in the North American context. He draws the conclusion that it is important to distinguish between cooperative agreements that constitute ex

post attempts to clean up the environment and those that constitute ex

ante attempts to prevent degradation by attaching an appropriate price

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL IMPACTS 139
to the environmental dimensions of a project. It is the latter type that

relate directly to the means by which pollution is addressed in the emitting country, and are seen as more effective.7

The few international instruments that actually address the issue

also recognize this priority. As importantly, no agreements appear to

adopt a different hierarchy.

The Espoo Convention sets out in several places the need for prevention, including through an assessment of alternatives to the project,

as the basis for approaching a proposal, with mitigation measures being

designed to keep adverse effects to a minimum rather than compensate

for them. Most directly, Art. 2.1 requires the Parties to take all appropriate measures to prevent, reduce and control significant adverse impacts

of proposed projects. No reference to compensation is found in the

Espoo Convention. Once again, the Conventions on Transboundary

Watercourses and on Industrial Accidents adopt this same approach in

their more sectoral contexts.

The Antarctic Treaty Protocol sets a general requirement to limit

impacts of activities in the Antarctic area as a priority in planning activities or operations (Art. 3(2)). This is made applicable to the Annex dealing with environmental assessment, and is further supplemented with

the specific attribution to the Environmental Committee set up by the

Protocol of a role in advising on means of minimizing or mitigating environmental impacts of activities in the area (Art. 12(1)(e)).

The EU Directive on Environmental Assessment sets out a notional

order of mitigation as measures envisaged to avoid, reduce, and, if possible, remedy significant adverse effects. However, as this order is in the

context of a description of the information required of a project proponent, it does not prescribe a priority for action (Art. 5). Similarly, a subsequent provision requires a description of the measures proposed to

prevent, reduce, and, where possible, offset any significant adverse

effects, but does not mandate this as a prioritized order (Annex III, Art.

5).

The draft Bay of Fundy Protocol notes that environmental assessment processes must be applied early in the decision-making process so

that adjustments to a proposal, or the consideration of alternatives, can

140 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

7. Nick Johnstone, “International Trade, Transfrontier Pollution, and Environmental

Cooperation: A Case Study of the Mexican-American Border Region”, 35 Natural

Resources Journal 33-62 (1995), at p. 61.
be undertaken to prevent or minimize environmental impacts prior to

any decision being made. Thus, prevention at source is again highlighted.

The Accord sur l’Escaut focuses on the four principles of precaution, prevention, reduction at source, and “polluter pays” as the foundation of its principles of cooperation (Art. 3.2). This also supports the

general priority of mitigation through prevention.

Compensation for environmental damages implies a recognition

that certain impacts will not be mitigated. As an environmental matter,

this is the least favorable approach to addressing potential impacts.

However, compensation may be the only alternative where the development objectives of a project override the environmental losses. In this

case, compensation may be seen as an application of the polluter-pays

principle, and a means of internalizing some of the environmental costs

of a project. No agreements appear to reflect this approach.

3. Monitoring of the mitigation measures and their effectiveness

Many international agreements include references to monitoring

the environment in a general context. While such agreements can have a

relevance to specific project-related circumstances, they are not considered here. Rather, only such project-related obligations are noted.

The IUCN Draft Covenant includes a specific call for post-project

periodic reviews to determine whether activities are carried out in compliance with any required measures, and whether these measures have

been effective. (Art. 37.4) The IUCN commentary to this article notes two

different purposes here. The first is to follow-up with enforcement activities to ensure compliance. The second is seen as more forward-looking,

designed to instruct future decision-makers which mitigation measures

are likely to be most effective.

The Espoo Convention employs the concept of post-project analysis to refer to the post-authorization phase of a project in a TEIA context.

Art. 7 sets out a general requirement for a cooperative process to review

the actual impacts of a project. The agreement of the parties is foreseen,

with each case reflecting the specific projected impacts of the project in

question. Art. 7 further provides that where a significant impact occurs

or may occur, the parties should consult on additional measures needed

to reduce or eliminate the impact. Briefly put, Art. 7 sets out a supplementary obligation on the Parties in the post-project phase.

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL IMPACTS 141
Art. 7 of the Espoo Convention is supplemented with prescribed

objectives for the post-project analysis phase in Appendix V. These

include monitoring compliance with permit conditions, reviewing the

actual impacts to ensure proper management and coping with uncertainties, and verifying past predictions in order to transfer the experience to future projects.8

The UNECE Convention on Transboundary Watercourses also

places a strong emphasis on monitoring and verification. Art. 11.3 calls

for joint or coordinated assessments, at regular intervals, of the effectiveness of measures taken to prevent, control, and reduce transboundary

impacts. The results of these assessments are to be made public. This

public component is further supported and detailed by Art. 16 of the

Agreement.

The emergency preparedness provisions of the UNECE Convention on Industrial Accidents provide additional detail on the types of follow-up measures that could be considered for hazardous activities that

might cause a transboundary impact in the event of an incident. These

measures work, in many ways, to address and reduce the risk of such an

incident occurring. This Convention also notes the need for, where

appropriate, joint contingency planning to reduce the risks of widespread harm in the event of an incident (Art. 8).

Annex III to the La Paz Agreement requires the parties to work

together to enforce the obligations and national laws on the

transboundary movement of hazardous wastes or other substances. It

further requires parties to ensure legal action is taken and that mitigation measures, in the form of a return as far as possible to the status quo

ante or compensation, are taken in the event of damage resulting from

any illegal movements. These provisions are at least partly analogous to

a post-project obligation of verification and follow-up action (Arts. XII,

XIV).

The Antarctic Treaty Protocol requires “regular and effective”

monitoring to assess the impacts of activities in the region, including the

verification of predicted impacts of ongoing activities, and to facilitate

the early detection of unforeseen impacts (Art. 3(2)(d) and (e)). Annex I

on the environmental assessment process further develops the commitment to monitoring the implementation of projects following an EA pro142 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

8. A Canadian paper on implementing the Espoo Convention re-iterates the cooperative approach to post-project analysis set out in the Convention, as well as the

objectives of this phase. Federal Environmental Assessment Review Office (now

Canadian Environmental Assessment Agency), “Implementing the Convention on

Environmental Impact Assessment in a Transboundary Context: Proposed Procedures”, March 16, 1994.
cess and this is made clear on several occasions. Art. 3(2)(g) requires an

early identification of the measures to be taken for this purpose. Art. 5 is

dedicated to the monitoring issue, requiring procedures to be put in

place to assess the impacts of projects, including key environmental

indicators. These procedures must be designed to provide a “regular

and verifiable record of the impacts.”

The Antarctic Treaty Protocol associates some precise objectives to

this monitoring procedure. These are to enable an assessment of the

extent to which the impacts are consistent with the Protocol, which itself

has several environmental performance standards; to provide information useful to minimizing or mitigating impacts; and to assess the need

to suspend, cancel or modify an activity (Art. 5(2)). Annual release of any

“significant” information obtained by the monitoring measures, along

with any resulting actions, is required by Art. 6 of Annex I, as well as the

public availability of this information.

The Antarctic Treaty Protocol operates in a unique environmental

and organizational context, including the absence of traditional sovereign rights over the area. This both allows and requires more internationalization of procedures than is evident in other agreements. Despite

these circumstances, the nature, objectives, and procedures associated

with the monitoring requirements can be considered as a relevant model

for North America.

The Cuixmala Draft Model Treaty also refers to the need for states

to periodically review whether the approved projects are carried out in

accordance with any conditions set out with the approval, and the effectiveness of the prescribed mitigation measures. It also argues that the

results of these reviews should be made public. The Draft goes on to suggest strong enforcement measures be linked to failures either to comply

or in the effectiveness of the measures taken (Art. 31).

A related issue goes beyond national review of compliance with

the conditions and effectiveness of the mitigation measures to consider

the role of judicial oversight. The EU Directive, for example, fits into the

context of the full EU treaty system, in particular the Treaty of Rome.

Arts. 155 and 169 provide a basis for action by the European Commission and for proceedings before the European Court of Justice. Much of

this process is based on citizen complaints.9 No other process reviewed

established this type of judicial review system.

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL IMPACTS 143

9. For a description of the process see Paul McHugh, “The European Community Directive – An Alternative Environmental Impact Assessment Procedure?”, 34 Natural

Resources Journal 589-625 (1994), at 615 et seq. See also Philippe Sands, Principles of

International Environmental Law I, Manchester, Manchester University Press, 1995, at

583-588.
SOURCES REVIEWED

Accord sur l’Escaut: Accord concernant la protection de l’Escaut,

République Française, Royaume des Pays-Bas, la Région de

Bruxelles-Capitale, la Région Flamande et la Région Wallonne,

1994.

Agenda 21: Agenda 21, United Nations Conference on Environment and

Development, Rio de Janeiro, 1992

Air Quality Accord: Agreement between the Government of the United

States of America and the Government of Canada on Air Quality,

March, 1991.

Annex II to the La Paz Agreement: Agreement of Cooperation between

The United States of America and the United Mexican States

Regarding Pollution of the Environment Along the Inland International Boundary by Discharges of Hazardous Substances, 1985,

Annex II to the Agreement between the United States of America

and the United Mexican States on Cooperation for the Protection

and Improvement of the Environment in The Border Area.

Annex III to the La Paz Agreement: Agreement of Cooperation between

The United States of America and the United Mexican States

Regarding the Transboundary Shipments of Hazardous Wastes

and Hazardous Substances, 1987, Annex III to the Agreement

between the United States of America and United Mexican States

on Cooperation for the Protection and Improvement of the Environment in The Border Area.

Antarctic Treaty Protocol: Protocol on Environmental Protection of the

Antarctic Treaty, Annex I: Environmental Impact Assessment,

1991.

Bay of Fundy Protocol, Draft: Protocol on Transboundary Environmental Impact Assessment, Gulf of Maine Council on the Marine Environment, draft for discussion purposes, 1994.

Biodiversity Convention: Convention on Biological Diversity, June,

1992.

British Columbia/Washington State Environmental Cooperation

Agreement: Environmental Cooperation Agreement Between the

Province of British Columbia and the State of Washington, May 7,

1992.

Climate Change Convention: United Nations Framework Convention

on Climate Change, 1992.

144 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Danube River Protection Convention: Convention on Cooperation for

the Protection and Sustainable Use of the Danube River, June, 1994

UNECE Transboundary Watercourses: UNECE Convention on the Protection and Use of Transboundary Watercourses and International

Lakes, 1992.

UNECE Industrial Accidents: UNECE Convention on the Transboundary Effects of Industrial Accidents, 1992.

Espoo Convention: Convention on Environmental Impact Assessment

in a Transboundary Context, UN Economic Commission for

Europe, 1991.

EU Directive: Council Directive 85/337/EEC of 27 June 1985 on the

Assessment of the Effects of Certain Public and Private Projects on

the Environment.

I.L.C. Draft Articles, 1994: International Law Commission, Draft Articles

on the Non-Navigational Uses of International Watercourses, as

submitted to the Sixth Committee of the United Nations General

Assembly, 1994.

IUCN Draft International Covenant: International Covenant on Environment and Development, Commission on Environmental Law

of IUCN – The World Conservation Union in cooperation with

International Council of Environmental Law, Environmental Policy and Law paper No. 31, IUCN Environmental Law Centre, 1995.

La Paz Agreement: Agreement Between the United States of America

and the United Mexican States on Cooperation for the Protection

and Improvement of the Environment in the Border Area, 1983.

Mexico-US Marine Pollution Agreement: Agreement of Cooperation

between the United States of America and the United Mexican

States Regarding Pollution of the Marine Environment by Discharges of Hydrocarbons and other Hazardous Substances, 1980.

New York State-Québec MOU: Memorandum of Understanding on

Environment Cooperation between the Government of the State of

New York and the Gouvernement du Québec, May 10, 1993.

Transboundary Impact Assessment Overarching Principles, adopted by

the Council of the Commission for Environmental Cooperation,

October, 1995.

United Nations Environment Programme (UNEP), Goals and Principles

of Environmental Impact Assessment, June 17, 1987.

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL IMPACTS 145
US-Mexico Border Environment Cooperation Commission (BECC)

Agreement: Agreement Between the Government of the United

States of America and the Government of the United Mexican

States Concerning the Establishment of a Border Environment

Cooperation Commission and a North American Development

Bank, 6 November 1993.

146 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Commission for Environmental Cooperation

Secretariat Distr.

GENERAL

TEIA/96.02.05/S/4 - Annex

Original: English

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL

IMPACTS UNDER ARTICLE 10(7)(c) OF THE NORTH

AMERICAN AGREEMENT ON ENVIRONMENTAL

COOPERATION: A COMPARATIVE REVIEW

OF SELECTED BILATERAL AND MULTILATERAL

AGREEMENTS

Background Paper

Annex: Tables

147
TABLE 1

GENERAL REQUIREMENT TO MITIGATE

AGREEMENT GENERAL OBLIGATION NOTES

Espoo Convention, 1991 Art. 2.1: “The parties shall, either individually or

jointly, take all appropriate and effective measures toprevent, reduce and control significant adversetransboundary environmental impact from proposedactivities.”Art. 5 requires consultations between the parties on (a)possible alternatives; (b) “other forms of possiblemutual assistance in reducing any significant adversetransboundary impact of the proposed activity.”

This sets a general context for the obligations andcooperative focus of the agreement, which is solelydedicated to ensuring TEIA processes between theparties. It also indicates the priority for actions in thiscontext.This article further develops the cooperative nature ofthe process.

Air Quality Accord, 1991 Art. V.1: “Each Party shall, as appropriate and as

required by its laws, regulations and policies, assessthose proposed actions, activities and projects ... including consideration of appropriate mitigation measures.”Art. V.4: “Consultations...shall include consideration ofappropriate mitigation measures.”Art. V.5: “Each Party shall, as appropriate, take measures to avoid or mitigate the potential risk...”

The Accord deals with air pollution, actual and potential, between Canada and the US. By placing the obligation to mitigate within the consultative process, itensures a right of input from the potentially impactedstate.

Annex II to the La PazAgreement, 1985

Appendix II requires the joint response team composedof representatives of the two parties to recommend themitigation measures needed following an incident.(Art. 2.6 (e))

The agreement addresses hazardous substances incidents in the border area.

148 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 1

GENERAL REQUIREMENT TO MITIGATE

AGREEMENT GENERAL OBLIGATION NOTES

New York-Québec MOU,1993

Sec. 5: The Parties further agree to give prior notice andto consult one another before any major action is carriedout, ... appropriate mitigation measures must be indicated.

The MOU does not specify any further details. Rather,its focus is on promoting cooperative actions.

IUCN Draft Covenant, 1995 Art. 37: “(1) Parties shall establish or strengthen environmental impact assessment procedures to ensure

that all activities which are likely to have a significantadverse effect on the environment are evaluated beforeapproval. (2) The assessment shall include evaluationof ... (c) measures to avert or minimize the potentialadverse effects.”

This is a non-governmental document, but is widelyseen as indicative of the current trends in international environmental law.

UNEP Goals and Principles,1987

Principle 4(e): “... an identification and description ofmeasures available to mitigate adverse environmentalimpacts of the proposed activity and alternatives, andan assessment of those measures.”

This is in the context of what an EIA should include.

IUCN Draft Covenant, 1995 Art. 6: “Protection of the environment is best achieved

by preventing environmental harm rather than byattempting to remedy or compensate for such harm.”

This general statement provides a clear setting for thebalance of the IUCN draft articles. It can be seen asboth preambular and substantive in nature, though itis clearly used as a substantive element in the IUCNtext.

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL IMPACTS 149
TABLE 1

GENERAL REQUIREMENT TO MITIGATE

AGREEMENT GENERAL OBLIGATION NOTES

UNEP Goals and Principles,1987

Principle 9: “The decision [should] ... include the provisions, if any, to prevent, reduce or mitigate damage tothe environment.”

This is in the context of what the decision on any proposed activity subject to an EIA should include. Thenon-mandatory language also reflects the soft-lawnature of the document.

150 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 2

MITIGATING AT SOURCE, AT THE IMPACTS, AND COMPENSATION

AGREEMENT PRIORITY FOR MITIGATION EFFORT NOTES

Espoo Convention, 1991 Art. 2.1: “The parties shall, either individually or

jointly, take all appropriate and effective measures toprevent, reduce and control significant adversetransboundary environmental impact from proposedactivities.”Appendix II requires certain information in the EIAdocumentation: par. (e): “A description of mitigationmeasures to keep adverse environmental impact to aminimum.”

This sets out a general priority for the Convention,though it is not articulated as a mandatory prioritization.There is no mention in the Convention of compensation as an approach.

UNECE TransboundaryWatercourses, 1992

Art. 2.3: “Measures for the prevention, control andreduction of water pollution shall be taken, where possible, at source.”

This sets out a clear priority for actions. This is furthersupported by a repetition of the precautionary principle later in the article, as well as the polluter pays principle.

UNECE IndustrialAccidents, 1992

Art. 7: Sets out an obligation for risk evaluation in thesiting of new hazardous activities, in order to reducethe risk of transboundary harm.Art. 8: This article is on emergency preparedness as abasis for risk reduction planning and management,with an emphasis on cooperative actions.Art. 8.3 references expressly “off-site contingency planscovering measures to be taken within its territory toprevent and minimize transboundary effects.... Whereappropriate, joint off-site contingency plans shall bedrawn up in order to facilitate the adoption of adequateresponse measures.”

These articles are accompanied by annexes whichinclude detail beyond what can be usefully accommodated in these charts. The emphasis on risk assessment, siting, and emergency preparedness is specificto the defined hazardous activities, but can be considered for possible wider applications.

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL IMPACTS 151
TABLE 2

MITIGATING AT SOURCE, AT THE IMPACTS, AND COMPENSATION

AGREEMENT PRIORITY FOR MITIGATION EFFORT NOTES

Antarctic Treaty Protocol,1991

Art. 3(2)(a): Activities in the area “shall be planned andconducted so as to limit adverse impacts on the Antarctic environment and dependent and associated ecosystems.”

The Protocol is applicable only to activities planned orconducted in or near the Antarctic area. Art. 3(2)(a)sets a general obligation to limit impacts as a firstobjective.

EU Directive, 1985 Art. 5: “...a description of the measures envisaged in

order to avoid, reduce and, if possible, remedy significant adverse effects.”Annex III, Art. 5: “A description of the measures envisaged to prevent, reduce and where possible offset anysignificant adverse effects on the environment.”

The listing is descriptive of the information to be provided by a project proponent, not prescriptive of priorities.

Bay of Fundy Protocol,Draft, 1994

“... to permit adjustments to a proposal/considerationof alternatives to minimize impact, prior to any decision being made to authorize a proposed activity.”

This sets a priority on preventive mitigative steps atsource, while the Draft as a whole also notes the needfor adaptive measures to be considered in thelong-term life of the ecosystem of the region.

Accord sur l’Escaut, 1994 Art. 3(2): Sets out four primary principles of precaution,

prevention, reduction at source, and polluter pays asthe basis for its obligations on cooperation.

These support the priority of mitigation at sourceprior to recourse to other approaches.

152 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 3

MONITORING OF THE MITIGATION MEASURES AND THEIR EFFECTS

AGREEMENT PRIORITY FOR MITIGATION EFFORT NOTES

Espoo Convention, 1991 Art. 7: “Post-project analysis”: (1) “The concerned

Parties, at the request of any such Party, shall determinewhether, and if so to what extent, a post-project analysisshall be carried out, taking into account the likely significant adverse transboundary impact of the activity forwhich an [EIA] has been undertaken ... Anypost-project analysis undertaken shall include, in particular, the surveillance of the activity and the determination of any adverse transboundary impact. Suchsurveillance and determination may be undertakenwith a view to achieving the objectives listed in Appendix V.(2) “When, as a result of post-project analysis, the Partyof origin or the affected Party has reasonable groundsfor concluding that there is a significant adversetransboundary impact or factors have been discoveredwhich may result in such an impact, it shall immediately inform the other Party. The concerned Partiesshall then consult on necessary measures to reduce oreliminate the impact.”

This paragraph highlight the cooperative nature ofthe post-project phase under the Convention. Appendix V notes three objectives specifically:“(a) Monitoring compliance with the conditions as setout in the authorization or approval ... and the effectiveness of mitigation measures; (b) Review of animpact for proper management and in order to copewith uncertainties; (c) Verification of past predictionsin order to transfer experience to future activities ofthe same type.”This paragraph sets out a continuing obligation on theParties to address the situation where an unanticipated impact occurs or may occur, and is found in thepost-project phase.

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL IMPACTS 153
TABLE 3

MONITORING OF THE MITIGATION MEASURES AND THEIR EFFECTS

AGREEMENT PRIORITY FOR MITIGATION EFFORT NOTES

IUCN Draft Covenant, 1995 Art. 37.4: “Parties shall conduct periodic reviews both

to determine whether activities approved by them arecarried out in compliance with the conditions set out inthe approval and to evaluate the effectiveness of theprescribed mitigation measures. The results of suchreviews shall be made public.”

The purpose of the evaluation is identified as toinform future decision-makers about the most effective mitigation measures.

154 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
TABLE 3

MONITORING OF THE MITIGATION MEASURES AND THEIR EFFECTS

AGREEMENT PRIORITY FOR MITIGATION EFFORT NOTES

Antarctic Treaty Protocol,1991

Art. 3(2): “(d) regular and effective monitoring shalltake place to allow assessment of the impacts of ongoing activities, including the verification of predictedimpacts; (e) regular and effective monitoring shall takeplace to facilitate early detection of the possible unforeseen effects of activities carried on both within andoutside the Antarctic Treaty area on the Antarctic environment and dependent and associated ecosystems.”Annex 1, Art. 3: requires an identification, in the information to be provided by the proponent, of themonitoring programmes and measures “that could betaken to minimize or mitigate impacts of the proposedactivity and to detect unforeseen impacts and thatcould provide early warning of any adverse effects ofthe activity as well as to deal promptly and effectivelywith accidents.”Annex 1, Art. 5: “(1) Procedures shall be put in place,including appropriate monitoring of key environmental indicators, to assess and verify the impact of anyactivity that proceeds following the completion ofa Comprehensive Environmental Evaluation. (2) Theprocedures referred to in paragraph 1 above ... shall bedesigned to provide a regular and verifiable record of

This is a general obligation imposed on the parties.The Protocol provides probably the highest level offocus on monitoring of all existing agreements. Theunique and fragile nature of the environment it dealswith, in part, accounts for this.

MITIGATION OF TRANSBOUNDARY ENVIRONMENTAL IMPACTS 155
TABLE 3

MONITORING OF THE MITIGATION MEASURES AND THEIR EFFECTS

AGREEMENT PRIORITY FOR MITIGATION EFFORT NOTES

Antarctic Treaty Protocol,1991

the impacts of the activity in order, inter alia, to: (a)enable assessments to be made of the extent to whichsuch impacts are consistent with the Protocol; and (b)provide information useful for minimizing or mitigating impacts, and, where appropriate, information onthe need for suspension, cancellation or modification ofthe activity.”Art. 6: 1. “The following information shall be circulatedto the Parties, forwarded to the Committee and madepublicly available: ... (c) significant informationobtained, and any action taken in consequence thereof,from procedures put in place in accordance with...[Art.] 5.”

The requirement to circulate and make publicly available the monitoring information is made clear here,though “significant” is not defined.

156 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Commission for Environmental Cooperation

Secretariat Distr.

GENERAL

TEIA/96.02.05/S/15

18 March 1997

Original: English

DISPUTE RESOLUTION IN THE CONTEXT OF

TRANSBOUNDARY ENVIRONMENTAL IMPACT

ASSESSMENT: A COMPARATIVE REVIEW OF SELECTED

BILATERAL AND MULTILATERAL AGREEMENTS

Background Paper

This document does not necessarily reflect the views of the

Commission for Environmental Cooperation or of the Parties to

the North American Agreement on Environmental Cooperation

I. BACKGROUND: DISPUTES IN THE CONTEXT OF A

TRANSBOUNDARY EIA REGIME

Under Article 10(7) of the North American Agreement on Environmental Cooperation (NAAEC), the Parties agreed to develop recommendations “with a view to agreement between the Parties pursuant

to this Article within three years on obligations” relating to the

transboundary impact assessment of proposed activities. This discussion paper analyzes different dispute avoidance and resolution

mechanisms, particularly as they relate to transboundary environmental impact assessment (TEIA). The paper aims at assisting the Commission for Environmental Cooperation (CEC) and the NAAEC Parties in

the development of such provisions for TEIA.

157
This paper is based on a survey of dispute avoidance and resolution approaches found in select environmental instruments. Of the

instruments examined, the Convention on Environmental Impact

Assessment in a Transboundary Context (the Espoo Convention) is the

most analogous to the current task of defining a TEIA regime for the

NAAEC Parties. The paper addresses the Espoo Convention in detail.

Nonetheless, a survey of other environmental instruments does provide

a broader understanding of potential approaches for dispute avoidance

and resolution.

For purposes of this paper, dispute avoidance mechanisms include

those mechanisms such as information exchange, monitoring, and

capacity building, that are designed to increase cooperation generally,

identify potential conflicts as they are emerging, build confidence

between parties, or otherwise assist in allowing the parties to avoid and

prevent disputes before they arise. Dispute resolution generally speaking implies the informal and formal methods for settling or resolving

disputes after such disputes have emerged. The terms “dispute resolution” and “dispute settlement” are used interchangeably in this paper.

For obvious reasons, avoiding disputes can be more effective and less

costly than resolving disputes after they have arisen.

The entire process of TEIA can be seen as a dispute avoidance

mechanism. It is designed to allow neighboring States to assess cooperatively the likely environmental effects of projects or other activities with

transboundary impact, before such projects or activities are commenced. Successful use of the TEIA process should minimize the potential for conflict by giving all concerned parties – including private

individuals and non governmental organizations – the opportunity to

participate in the environmental evaluation of the proposed activity.

The TEIA process also results in more complete information about the

likelihood of damage, thus allowing the Parties to understand better the

nature of any potential dispute. Even with a perfect TEIA regime, however, some environmental disputes may still arise, including on the

interpretation, implementation, or application of the regime.

The nature of potential disputes under the TEIA regime will be

determined to some degree by the provisions of the regime itself.

Because those provisions are not yet available, this paper cannot address

with specificity the particular situations that could arise under its provisions. Nevertheless, the types of disputes inherent to TEIA can be identified and, for purposes of this general discussion of dispute avoidance

and resolution mechanisms, divided into the following categories:

158 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
• The Threshold/Trigger Issue: When do the obligations of the TEIA

agreement attach? A typical formulation of the trigger is when a proposed activity is “likely to have a significant adverse transboundary

impact.” Differences of opinion over what is “likely” or “significant,”

for example, may present a potential point of dispute. Recognizing

the need for an efficient way to resolve such differences, the Espoo

Convention provides the parties with an independent inquiry procedure to resolve questions concerning the applicability of the EIA

requirements (Appendix IV).

• Procedural Issues: Challenges to the process of conducting the EIA.

Examples of such disputes might be disagreements over whether the

notice and opportunity to comment were adequate or whether the

project proponent disclosed all the information on possible adverse

effects.

• Substantive Issues: Challenges to the substantive conclusions of the

EIA process and the decision to authorize a controversial project. This

substantive decision may not be within the jurisdiction of the TEIA

regime, as such a regime may only focus on the decision-making process with little or no substantive oversight on the particular project. In

that case, resolving disputes that have not been avoided through the

TEIA process may need to be resolved in other ways outside the reach

of the agreement (and thus outside the scope of this paper).

A number of options are available to address these potential areas

of conflict. A complete menu of basic dispute resolution and settlement

procedures have become more or less routine in international environmental agreements. This basic model of dispute resolution and settlement is described in Part II. Part III is a discussion of dispute avoidance

or prevention which has recently become a preferred method for resolving conflict through information sharing and cooperative approaches

before the conflict has a chance to develop fully. Part IV addresses

the institutional arrangements that could accompany a dispute avoidance/settlement process. Finally, in Part V we examine additional issues

posed by potential conflicts that involve non-State actors.

II. THE BASIC MODEL FOR DISPUTE RESOLUTION

The obligation of States to settle disputes in a peaceful manner is

well established in international law, and is enshrined in Article 33 of the

United Nations Charter. Article 33 sets out a menu of dispute settlement

mechanisms that are available to States including “negotiation, inquiry,

DISPUTE RESOLUTION IN THE CONTEXT OF TEIA 159
mediation, conciliation, arbitration, judicial settlement, resort to

regional agencies or arrangements, or other peaceful means of their own

choice.” These mechanisms and other closely related measures are

familiar provisions of most international agreements, including those

relating to the environment. Collectively, they represent the basic model

for settling disputes between parties once they arise. The basic model

involves a progressive process that facilitates dispute resolution by subjecting the dispute to gradually more intrusive and formal mechanisms.

Initially, notification and information exchange requirements allow the

parties to understand the factual basis for the other side’s position. Consultation and negotiation requirements give the parties the opportunity

to resolve the dispute among themselves in a mutually satisfactory way.

Non-binding third party mechanisms (such as conciliation, fact-finding,

use of good offices, or mediation) allow disputing parties to obtain an

impartial perspective on the dispute. Finally, if all else fails, the parties

may submit the dispute to binding procedures such as arbitration or

judicial settlement.

This model of dispute resolution follows a logical progression and

is included in many environmental and other agreements. In practice

environmental disputes rarely, if ever, reach the point of binding settlement.1 Nonetheless, detailed dispute settlement procedures must lurk

in the background to ensure the effectiveness of dispute avoidance

mechanisms or less intrusive dispute settlement mechanisms. This section will briefly describe the basic model of dispute settlement found in

existing international agreements. Appendices I and II summarize the

salient dispute avoidance and resolution mechanisms of select international environmental instruments and provide more detail on these

largely familiar mechanisms.2

A. Preliminary Obligations: Cooperation, Notification,

Information Exchange

Parties to international environmental agreements are usually

required to cooperate to ensure that the agreement operates effectively.3

A subset of this obligation is a general duty to exchange information

160 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

1. In fact, the Gabcikovo Dam Case currently before the International Court of Justice

(ICJ) is widely considered the first major environmental case before that tribunal.

2. Appendix I contains three tables that briefly summarize the dispute avoidance and

settlement mechanisms of selected international environmental agreements organized by type of mechanism. Appendix II provides a more detailed summary of each

agreement’s dispute avoidance and settlement provisions.

3. See, e.g., United Nations Convention on the Law of the Sea, Art. 197 ff., reprinted in 21

I.L.M. 1261 (1982) [hereinafter LOS Convention].
with other parties regarding circumstances that may lead to a dispute

over compliance with the obligations of the agreement or issues of interpretation or application of the agreement.4 Some agreements require

the parties to exchange information concerning progress towards

implementing their obligations on an ongoing basis or through annual

reports.5 These obligations are particularly relevant where two or more

parties share a common resource.6 The purpose of these provisions is to

foster a general atmosphere of cooperation that will allow parties to

identify potential areas of conflict early and begin to develop methods

for minimizing or resolving potential conflicts.

In addition to general obligations to exchange information, States

are also frequently required to provide prior notification regarding specific activities that might cause environmental damage in neighboring

States. For example, under Article 19 of the Rio Declaration: “States shall

provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse

transboundary environmental effect [...].”7 Because the TEIA regime

itself will focus on issues such as notification and information exchange,

these provisions may not need to be addressed separately in the context

of establishing adequate dispute resolution provisions.

DISPUTE RESOLUTION IN THE CONTEXT OF TEIA 161

4. See, e.g., ibid. at Art. 200 (requiring exchange of data regarding marine pollution);

Vienna Convention for the Protection of the Ozone Layer, Art. 4,reprinted in 26 I.L.M. 1529

(1987) [hereinafter Vienna Convention] (facilitating the exchange of scientific, technical, socio-economic, and commercial data relating to ozone depletion); Convention on

Biological Diversity, reprinted in 31 I.L.M. 818, at Art. 17 [hereinafter Biodiversity Convention] (requiring exchange of information relating to the conservation and sustainable use of biological diversity).

5. US/Canada Air Quality Accord, Art. VIII; see also, e.g., Convention on International

Trade in Endangered Species of Wild Fauna and Flora, Article VIII(7), done March 3, 1973,

993 U.N.T.S. 243, reprinted in 12 I.L.M. 1085 (1973) [hereinafter CITES] (reporting on

efforts to curb wildlife trade); Framework Convention on Climate Change, reprinted in 31

I.L.M. 849, at Art. 12 (reporting on greenhouse gas emissions); Montreal Protocol on

Substances that Deplete the Ozone Layer, reprinted in 26 I.L.M. 1550 (1986) at Art. 7

(reporting on reduction of ozone destroying substances); Biodiversity Convention,

supra, note 5, at Art. 26 (reporting on the conservation of biological diversity).

6. See World Commission on Environment and Development, Experts Working Group

on Environmental Law, Environmental Protection and Sustainable Development:

Legal Principles and Recommendations, Art. 15 and comment (citing the principle of

providing relevant and reasonably available information upon request regarding

the use or interference with a shared resource or transboundary environmental

effects); U.N. Economic Commission for Europe Convention on the Protection and Use of

Transboundary Watercourses and International Lakes, reprinted in 31 I.L.M. 1312, at Art. 6

(1992).

7. Rio Declaration on Environment and Development [hereinafter Rio Declaration], Principle 19; see also, e.g., Montreal Rules of International Law Applicable to Transfrontier

Pollution (International Law Association, 1982) [hereinafter Montreal Rules for

Transfrontier Pollution]; UNEP Governing Council Decision: Principles of Conduct in the

Field of the Environment for the Guidance of States in the Conservation and Harmonious

Utilization of Natural Resources Shared By Two or More States, Principle 6 [hereinafter
B. Measures between Parties: Consultations and Negotiations

When a dispute arises and throughout the life of the dispute, the

disputing parties are often in the best position to reach an accommodation. Most dispute settlement regimes reflect this dynamic by creating a

clear preference in favor of negotiated settlements between the parties.

The potential for subsequent binding arbitration or judicial settlement

also puts pressure on the parties to settle their dispute before they lose

some measure of control over the process.

The measures typically included in most international environmental instruments are consultation and/or negotiation.8 As a practical

matter, consultation and negotiation tend to be closely linked. Generally

consultation involves discussions between States that elaborate the positions and justifications of each side, whereas negotiations require a good

faith effort to reach agreement based on a compromise between the positions elaborated during consultations. Many instruments may require

that consultation or mediation be “in good faith and over a reasonable

period of time.”9Otherwise, the mechanics of consultations and negotiations are frequently left up to the States, who typically conduct them in

private, through diplomatic channels.

C. Non-binding Third-party Measures: Good Offices, Fact-finding,

Conciliation, and Mediation

Where consultation and negotiation fail to produce a resolution of

a dispute, many agreements refer the parties to one (or more) of several

measures involving the participation of a third party.10 Under each of

162 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

UNEP Principles on Shared Natural Resources]. Emergency notification is the afterthe-fact version of prior notice, but can still be important for mitigating potential

damage and for limiting any dispute. See, e.g., London International Convention for

the Prevention of Pollution From Ships, reprinted in 12 I.L.M. 1319 (1973), as modified by

the Protocol of 1978 relating thereto, done February 17, 1978, reprinted in 17 I.L.M. 546

(1978); Council of European Communities, Council Directive on the Major Accident

Hazards of Certain Industrial Activities, O.J. Comm. Eur. (No. L23.0/1) Art. 11 (June

24, 1982); International Atomic Energy Agency Convention on Early Notification of a

Nuclear Accident, done on September 26, 1986, reprinted in 25 I.L.M. 1370 (1986). See

generally UNEP Principles on Shared Natural Resources, Principle 9(1).

8. See, e.g., Espoo Convention, Art. 15(1); UNEP Principles on Shared Natural Resources,

supra, note 7, at Principle 6.

9. See, e.g., Montreal Rules for Transfrontier Pollution, supra, note 7, Art. 8; see also, e.g.,

UNEP Principles on Shared Natural Resources, supra, note 7, at Principles 6-7; OECD

Principles on Transfrontier Pollution, Principle 7; Convention on the Protection of the

Environment Between Denmark, Finland, Norway and Sweden [hereinafter Nordic

Convention] done February 19, 1974, 1092 U.N.T.S. 279 (1974), reprinted in 13 I.L.M.

591 (1974) [hereinafter Nordic Convention for Protecting the Environment].

10. See, e.g., North American Agreement on Environmental Cooperation, reprinted in

32 I.L.M. 1480 (1994), at Art. 23 (where consultations fail to resolve dispute in 60
these methods, the third party attempts to assist the parties to reach an

agreement that ends the dispute, although the level of involvement varies. Typically third party intervention attempts to clarify the facts underlying the dispute, facilitate communication between the disputants,

encourage disputants to reevaluate their positions, and offer compromise suggestions or solutions. None of these methods can present a

binding decision that would resolve the dispute, but they nonetheless

can be very effective in moving entrenched disputants closer to a mutually acceptable resolution. Obviously the choice of the intervening third

party is crucial. The third party could be another party to the agreement,

one of any number of ad hoc or permanent bodies organized under the

relevant agreement (ranging from a governing council to an ad hoc technical panel), an external body or organization, or even a professional

mediator or conciliator. Some of these institutional issues are discussed

further below.

D. Binding Third-party Measures: Arbitral Tribunals and

Judicial Bodies

The final step in most dispute settlement procedures is reference of

the dispute to a binding arbitral or judicial process. Some environmental

agreements, such as the Law of the Sea (LOS) Convention or the Espoo

Convention, contain detailed provisions for the constitution of an arbitral panel to resolve disputes.11 Typically, the parties select equal numbers of panelists from a roster and those panelists select another to serve

as the head of the panel. The panels are typically empowered to establish

their own rules of procedure, take whatever steps are necessary to

gather all relevant information, and render a decision based on a majority vote. The decision is final and may or may not be made public.

Reference to the International Court of Justice (ICJ) is a common

provision of last resort in many environmental agreements. Reliance on

the ICJ is problematic, however, as ICJ jurisdiction will depend on agreement of the parties since relatively few countries have accepted compulDISPUTE RESOLUTION IN THE CONTEXT OF TEIA 163

days, any party may refer the matter to the CEC Council which may “a) call on such

technical advisers or create such working groups or expert groups as it deems necessary, b) have recourse to good offices, conciliation, mediation or such other

dispute resolution procedures, or c) make recommendations...”) [hereinafter

NAAEC].

11. See, e.g., LOS Convention, supra, note 3, at Arts. 286-296 (parties have four choices of

fora, the ICJ, the LOS Tribunal, or one of two types of arbitral tribunals). The LOS

regime is unique in that its process is compulsory: whereas most international

agreements require the parties to agree to submit the dispute to a binding process,

the LOS allows any one party unilaterally to trigger such a process. In essence, the

parties have agreed in advance (by ratification) to submit to this compulsory process.
sory ICJ jurisdiction. Parties may be wary accepting the jurisdiction of

the ICJ for fear of establishing a negative precedent. Where the parties

reach a settlement on their own, they will not necessarily be bound by

that agreement in another circumstance in the future, whereas they

might be if an ICJ decision were rendered. In addition, reference to the

ICJ is likely to be costly and time consuming, and thus not suited to expeditious resolution of the dispute. Moreover, the confrontational model

of judicial settlement may be better suited to cases where the parties are

trying to assign liability and determine compensation for environmental

damage than it is to cases involving prevention of future harm or steps

necessary to achieve sustainable use of natural resources.

E. Dispute Resolution under the Espoo Convention

Except for the creation of an inquiry commission for determining

threshold questions of whether the treaty applies, the basic model of dispute resolution is followed generally in the Espoo Convention where the

interpretation or application of the Convention is at issue.12 Article 15

and Appendix VII set forth these dispute resolution mechanisms. The

initial obligation of disputing parties is to settle the dispute through

“negotiation or by any other method of dispute settlement acceptable to

the Parties to the dispute” (Art. 15(1)). If negotiations fail, Article 15 provides two subsequent methods to resolve the dispute: reference to the

ICJ or to arbitration in accordance with Appendix VII to the Convention

(Art. 15(2)). The choice of venues will depend on which option the disputing parties have declared their willingness to accept as compulsory

or on the agreement of the parties (Art. 15(3)). The ICJ has been discussed

above.

Arbitration under the Espoo Convention is before a tribunal of

three individuals: one appointed by each party and the third selected by

those two to serve as the president of the tribunal. In the event that a

party does not select an arbitrator, the Convention delegates the responsibility to appoint one to the Executive Secretary of the Economic Commission for Europe. Moreover, the tribunal is empowered to proceed

with its functions even where a party refuses to participate. Other parties to the Convention having a legal interest in the dispute may intervene with the permission of the tribunal. The tribunal shall determine its

own rules of procedure and may obtain relevant documents from the

164 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

12. The Espoo Convention’s “inquiry” procedure relates to the threshold question of

the applicability of the Convention and is discussed below in the dispute avoidance

section. The dispute mechanisms discussed here are in addition to the inquiry process.
parties, call witnesses or experts, and recommend interim measures of

protection while the case is pending. It must render a decision, which is

binding on the parties, within five months, subject to an additional fivemonth extension if necessary. Questions regarding the implementation

or execution of the tribunal’s decision may be submitted to the same tribunal, or an entirely new tribunal may be formed. Unless the tribunal

determines otherwise, the costs are to be divided equally between the

parties.

III. DISPUTE AVOIDANCE MEASURES: THE NEW APPROACH

With the growing recognition that it is typically far less expensive

and more effective to prevent the occurrence of environmental disputes

than it is to resolve them, international environmental regimes increasingly emphasize dispute avoidance or dispute prevention. Part of dispute avoidance is ensuring that parties are in compliance with the

obligations of the relevant agreement, and, where a party is not in compliance, searching in a non-confrontational manner for ways to bring

that party into compliance. While the emphasis on dispute avoidance is

relatively new, it is not occurring in a vacuum, but rather within the

context of the basic dispute settlement regime described above. As a

consequence, no bright line separates dispute avoidance and settlement

procedures. Some of the institutional dispute resolution mechanisms

described above may also serve as dispute avoidance mechanisms. For

example a recent UNEP’s Expert Group Workshop on International

Environmental Law Aiming at Sustainable Development noted that dispute avoidance and confidence-building mechanisms and procedures

include “exchange of available information; the use of independent

scientific and technical experts and panels; national reporting; notification and consultation procedures; prior informed consent; and

transboundary environmental impact assessment.”13

A. Information Exchange, Reporting and Fact-finding Inquiry

As mentioned above, the information exchange and notification

obligations that have traditionally been included in environmental

agreements provide the basis for dispute avoidance mechanisms.

Where, as in the US-Canada Air Quality Accord, the parties are required

DISPUTE RESOLUTION IN THE CONTEXT OF TEIA 165

13. Final Report of the Expert Group Workshop on International Environmental Law

Aiming at Sustainable Development, UNEP/IEL/WS/3/2, 4 October 1996, par. 23;

see also Experts Working Group on Environmental law of the World Commission

on Environment and Development, supra, note 6, at Arts. 17 and 18 and comments

(regarding obligations of States to consult and exchange information to avoid or

reduce adverse environmental effects).
to provide periodic implementation progress reports to the secretariat or

governing body, each other, and the public, there is increased pressure

on the parties to ensure that they are in compliance (Art. VIII). Where

parties are in compliance with their obligations under an agreement, disputes are far less likely to develop.14 In addition, where the parties are

able to clearly understand the basis for another party’s position, disputes are less likely to develop.

As a complement to information exchange, some have suggested

standing inquiry mechanisms that can be called upon to help parties

come to a common understanding of the facts relevant to a particular situation that has the potential for evolving into a dispute. A common

understanding of the relevant facts would provide a good basis for

parties to avoid a developing dispute.

B. Compliance Committees – The Montreal Protocol Model

The parties to the Montreal Protocol have developed a compliance

procedure that has become a model for other treaty regimes.15 The

procedure is a flexible mechanism adopted at the Fourth Meeting

of the Parties pursuant to Article 8 of the Montreal Protocol.16 The

non-compliance provisions of the Montreal Protocol are triggered when

a party reports itself or is reported by another party or the secretariat as

not being able to meet its commitments under the protocol. Following an

inquiry process by the Secretariat that includes an opportunity for the

non-complying party to respond, a report is submitted to a standing

Implementation Committee comprised of ten parties elected at the meeting of the parties. The composition of the Committee is required to

reflect the geographic diversity of the parties to the protocol. The Imple166 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

14. Even where parties are “in compliance” however, there may still be disputes over

interpretation or application of provisions of the agreement and thus there may be

disagreement as to the precise nature of a party’s obligations thereunder.

15. Protocols adopted under the UN-ECE Convention on Long-Range Transboundary

Air Pollution have called for compliance provisions similar to the Montreal Protocol. See Protocol on Further Reductions of Sulphur Emissions,reprinted in 33 I.L.M. 1540

(1994) at Art. 7; Protocol Concerning the Control of Emissions of Volatile Organic Compounds or Their Transboundary Fluxes, reprinted in 31 I.L.M. 568 (1992), at Art. 3.3

(directs the parties to establish a compliance monitoring mechanism once the protocol enters into force). The legal drafting group of the Sulphur Protocol has proposed a compliance regime that follows closely the Montreal Protocol model. See

UN Doc. EB.AIR/WG.5/24 of 10 March, 1994, Annex I.

16. Article 8 directs the parties to “consider and approve procedures and institutional

mechanisms” for determining non-compliance with the protocol’s requirements

and dealing with parties found to be in non-compliance. The non-compliance procedure was adopted at the Fourth Meeting of the Parties held in Copenhagen, 23-25

December, 1992, Decision IV/5, Annex IV.
mentation Committee reviews the situation, conducts any additional

information gathering it deems necessary and reports (with recommendations) to the meeting of the parties. In addressing issues of

non-compliance, the Implementation Committee is directed to coordinate closely with the Multilateral Fund set up under the protocol to provide financial and technical support to developing country parties. The

meeting of the parties will then vote on appropriate measures to ensure

compliance.

The non-compliance procedure has been widely praised, and thus

far it has been used primarily to address failures in compliance that have

been self-reported by a party. The true test of the Committee may be yet

to come, however, as the Committee thus far has dealt largely with

issues of failure to report adequately rather than with issues relating to

the substantive obligations of the protocol, which may pose more difficult and controversial issues.

C. Capacity Building to Avoid Disputes over Compliance

The compliance-based approach to dispute avoidance raises the

larger issue of ensuring that all parties, particularly developing countries, have the institutional, technical, and financial capacity to fulfill

their obligations under environmental agreements. This is particularly

relevant for agreements like the Montreal Protocol or Climate Change

Convention where the parties must implement new technologies or

make fundamental institutional commitments in order to meet their

obligations under the agreement. Clearly, traditional dispute settlement

mechanisms will not help a country develop the capacity to reduce emissions of a particular substance or train a new generation of civil servants.

However, the compliance enhancing mechanism of the Montreal Protocol, linked as it is to the financial assistance mechanism, can assist in the

progressive development necessary to ensure that all parties are able to

fully meet their commitments. This approach can be important where a

lack of capacity, as opposed to a lack of political will, is the reason for a

failure to fully comply with the environmental instrument.

Compliance/dispute avoidance mechanisms like the Montreal

Protocol’s Implementation Committee are not without their drawbacks.

Some countries fear the mechanisms threaten their sovereignty, by

allowing external reviews of a country’s performance and the reasons

for inadequate performance. These concerns highlight why a compliance review procedure should be sensitive, non-confrontational, and

linked to the provision of concrete compliance assistance.

DISPUTE RESOLUTION IN THE CONTEXT OF TEIA 167
D. Dispute Avoidance under the Espoo Convention.

As mentioned in the introduction, the Espoo Convention contains

an inquiry procedure to assist parties when they are unable to agree as to

the applicability of the Convention to a particular proposed activity. The

inquiry procedure, which is set out in Appendix IV to the Convention,

mirrors the arbitral tribunal procedure pursuant to Article 15 as

described above. The inquiry commission is to be composed of three scientific or technical experts, one is selected by each of the parties to the

dispute and those two experts agree on the third member of the commission. The major differences between the two procedures are: the inquiry

procedure may be triggered unilaterally by a party; it focuses on the relatively narrow question of whether a proposed project is likely to cause

significant adverse transboundary impact; and the commission has just

two months to render its non-binding decision. The potential disputes

here will likely revolve around specific technical questions regarding

the possible impacts of the proposed project.

If, following the inquiry commission’s report, the parties are still

unable to resolve the issue of applicability of the Convention, they may

still refer the matter to the binding settlement provisions of Article 15

(described above). The inquiry commission is important because it provides a technical and less formal mechanism for obtaining recommendations regarding a critical aspect of any TEIA regime: the threshold

question of whether the regime applies at all.

IV. INSTITUTIONAL ISSUES

Dispute avoidance and settlement systems, particularly with

respect to the compliance measures described above, can depend substantially on the implementing institutions created or endorsed by the

particular instrument. Both ad hoc and permanent institutions can provide familiar and consistent methods for exchanging information, for

monitoring or enforcing compliance, for holding consultations or negotiations, and/or for fact-finding. Below we discuss the potential role of

secretariats, bi-lateral institutions, and technical subsidiary bodies in

helping to avoid or resolve disputes.

A. Role of Secretariat

The role of the secretariat in any environmental regime can be very

important for facilitating the avoidance or settlement of disputes. The

secretariat could play a critical role in ensuring that information is trans168 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
ferred in a timely and effective manner. Depending on the precise dispute avoidance and settlement mechanisms chosen for the TEIA regime,

the secretariat could play a number of additional roles: from conducting

independent fact-findings to providing conciliation or mediation services. Depending on the role for non-State actors adopted in the TEIA

regime, the secretariat could also have an important role in coordinating

such participation.

B. Reference to Existing Bilateral Institutions

For disputes that arise or could arise along the two relevant international borders, existing bi-lateral institutions could play an important

role in TEIA dispute avoidance or settlement. For example, the USCanada International Joint Commission (which already has similar

functions conferred upon it by the US-Canada Air Quality Accord)

could serve as a body to which a potential or actual dispute could be

referred for fact-finding, conciliation, mediation, or arbitration.

C. Technical Subsidiary Bodies

Recent environmental conventions have institutionalized the

collection and distribution of information by creating separate international bodies with explicit information generating and distribution functions. For example, Article 9 of the Climate Change Convention created a

subsidiary body to provide the Conference of the Parties information

and advice on scientific and technological matters relating to the Convention. Other instruments have created ad hoc or standing bodies to

monitor compliance or to examine particular technical questions regarding implementation. The Montreal Protocol Implementation Committee

is one such model. The Inquiry Procedure under the Espoo Convention

also allows for the creation of ad hoc technical bodies that could support

better implementation of the convention.

V. DISPUTES INVOLVING NON-STATE ACTORS

As the Rio Declaration clarified, “environmental issues are best

handled with the participation of all concerned citizens, at the relevant

level.”17 The UNEP working group recently highlighted the potential

DISPUTE RESOLUTION IN THE CONTEXT OF TEIA 169

17. Rio Declaration, supra, note 7, at Principle 10; see also Biodiversity Convention, supra,

note 4, Preamble; OECD Council Recommendation Concerning the Provision of Information to the Public and Public Participation in Decision-Making Processes Related to the

Prevention of, and Responses to, Accidents Involving Hazardous Substances, July 8, 1982,

C(88)85 (Final) (1988); World Charter for Nature, Arts. 23-24.
role for non-State actors to help avoid and resolve disputes and called for

affected persons and their representatives to have “access to administrative and judicial proceedings in the country where the alleged harm

originated without discrimination on the basis of their residence or

nationality,” particularly within the context of regional economic integration.18

Such a focus on public participation seems particularly important

for environmental impact assessments. Any TEIA regime will presumably aim at ensuring that potentially affected individuals at least receive

notice of and information regarding proposed activities and provide an

opportunity to participate in certain phases of the EIA process. These

procedural rights are a significant component of any EIA regime, and

some consideration could be given to providing mechanisms within the

regime for avoiding or resolving disputes between parties and non-State

actors.

The environmental agreements reviewed in the preparation of this

report typically do not provide for public participation in dispute resolution processes-with two notable exceptions: the NAAEC and the

Nordic Convention (art. 3).19 Typically dispute avoidance and settlement procedures apply only to States and the only recourse for individuals is to persuade their government to promote their claim before the

relevant body. These two agreements could provide some guidance in

designing a dispute avoidance and settlement procedure for the TEIA

agreement that ensures some ability of the public to participate in dispute resolution and avoidance.

For example, the Montreal Protocol Implementation Committee

permits issues of compliance to be raised by the secretariat, a party

implicating another party, or a party admitting its own difficulties in

complying. There is no provision for individuals or non governmental

organizations, however, who may be uniquely qualified to raise such

issues, to trigger the compliance review and remediation process. It is

not difficult to envision a mechanism, perhaps modeled on Article 14 of

the NAAEC, that would allow the public to raise such issues with the

secretariat which would then investigate and decide whether or not to

refer the matter to the compliance committee.

170 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

18. Supra, note 13, at par. 28.

19. The LOS Convention provides for the participation of certain individual or other

private entities, but only to the extent that they are involved in a contractual capacity with seabed exploration and exploitation. LOS Convention, supra, note 3, at

Arts. 187(d) and (e).
A. NAAEC Model: Flag Non-compliance

Under the NAAEC, members of the public or non governmental

organizations may bring matters concerning a party’s failure to enforce

its environmental laws to the attention of the Secretariat of the CEC.20

The Secretariat will determine if the matter so raised merits further

inquiry, including requesting a response from the party alleged to be

in non-compliance. Where certain conditions are met, the Secretariat

informs the CEC Council of the situation, and when requested to do so

by two-thirds vote of the CEC Council, will prepare a factual record for

the CEC Council. The factual record may be made publicly available by

vote of the CEC Council. This process is without prejudice to the other

dispute resolution provisions that operate between the parties.

Presumably, this model could also be explored in the TEIA context.

Private parties and non governmental organizations would be able to

raise potential issues concerning applicability of the regime as well as

issues relevant to the implementation of the procedural obligations

imposed thereunder. The chief benefit of such an arrangement is that it

would allow the parties to rely in part on local interested parties to

ensure that the obligations of the TEIA agreement were being met, without expending additional government resources to constantly monitor

situations that could trigger the TEIA obligations. In addition, it would

provide the concerned public with an opportunity to present their own

issues for dispute resolution.

B. Nordic Convention Model: Reciprocal Access to

National Remedies

The Nordic Convention provides another unique approach to

ensure public participation in transboundary environmental matters. It

provides reciprocal access to administrative and judicial authorities of

each party for the citizens of each participating nation. The purpose is to

provide affected individuals the ability to bring an action against the

source of an environmental “nuisance” located in another State in

that State’s tribunals. Under the Nordic Convention, the complaining

foreign national must be accorded the same treatment that a host country national would have under purely domestic circumstances.21 An

affected individual may seek both to prevent environmental harm and

to recover compensation for damages already suffered.

DISPUTE RESOLUTION IN THE CONTEXT OF TEIA 171

20. NAAEC, supra, note 10, at Art. 14.

21. Nordic Convention, supra, note 9, at Art. 3.
The Nordic Convention thus provides another model for improving the opportunities of non-State actors to bring directly actions to protect their interests. Non-discrimination in providing access to judicial

and administrative oversight in the TEIA context could provide strong

opportunities for non-State actors to have their disputes resolved.

172 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
DISPUTE RESOLUTION IN THE CONTEXT

OF TRANSBOUNDARY ENVIRONMENTAL IMPACT

ASSESSMENT: A COMPARATIVE REVIEW OF SELECTED

BILATERAL AND MULTILATERAL AGREEMENTS

Appendices

The two appendices present largely the same information organized in

different ways. Appendix I includes three charts that are designed to facilitate

examination of a particular dispute avoidance or settlement mechanism across

all the agreements analyzed. Essentially, the three charts can be viewed as continuous: there are only three charts because the amount of information would

not fit easily into a single chart. By contrast, Appendix II is organized by agreement which allows the reader to get a complete picture of that agreement’s dispute, avoidance and settlement provisions. This Appendix includes slightly

more information than the charts, which have been edited slightly to fit the available space.

The appendices are designed to supplement the information presented in

the accompanying discussion paper. The agreements or instruments summarized in these appendices are:

• Charter of the United Nations

• Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)

• United Nations Convention on the Law of the Sea (LOS Convention)

• Vienna Convention for the Protection of the Ozone Layer and the Montreal

Protocol on Substances that Deplete the Ozone Layer (Vienna Convention

and Montreal Protocol)

• Agreement Between the Government of Canada and the Government of the

United States of America on Air Quality (Canada-US Air Quality Accord)

• North American Agreement on Environmental Cooperation (NAAEC)

• IUCN Draft Convention on Environment and Development (IUCN Draft

Convention)

• International Law Commission, Draft Articles on the Law of NonNavigational Uses of International Watercourses (ILC Draft Articles)

• Convention on the Protection of the Environment Between Denmark, Finland, Norway and Sweden (Nordic Convention)

• Gulf of Maine Council on the Marine Environment, Draft Protocol on

Transboundary Environmental Impact Assessment (Gulf of Maine Protocol)

173
APPENDIX I

Charts of Dispute Avoidance and Settlement Mechanisms of Select International Environmental Agreements

Chart 1: Trigger/Timing, Compliance/Avoidance, and Notification/Information Exchange Provisions

Trigger/Timing Compliance/Avoidance Notification/Information Exchange

Charter of theUnited Nations

Where continuance of any disputelikely to endanger international peaceand security, Parties required to settlepeacefully. Art. 33. Security Councilhas power to investigate any situationthat may endanger internationalpeace and security. Art. 34.

Security Council authorized to recommend measures to resolve impendingdisputes. Art. 36.

N/A

EspooConvention

Two triggers. Inquiry procedure triggered where parties cannot agree onthreshold question of likelihood ofsignificant adverse transboundaryimpact and thus whether convention’s provisions are applicable. Art.3(7) and Appendix IV. Dispute Settlement provisions (Art. 15 and Appendix VII) triggered when parties unableto agree on interpretation or application of Convention.

Parties are bound to exchange information, and have discussions regarding applicability of EIA requirements.Arts. 2(5) and 3(7). Guidance inAppendix III provided to help makedetermination of significant adverseimpact. Where no agreement, 3 person inquiry panel will make nonbinding determination of applicability of Convention. Art. 3(7) andAppendix IV.

Notification of likely significantadverse transboundary impactrequired–including sufficient information to evaluate. Art. 3. Informationexchange also required where partiesdisagree over likelihood or significanceof impact. Art. 3(7).

174 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Chart 1: Trigger/Timing, Compliance/Avoidance, and Notification/Information Exchange Provisions

Trigger/Timing Compliance/Avoidance Notification/Information Exchange

LOS Convention Parties directed to resolve disputes

between themselves in accordancewith Art. 33 of the UN Charter. Art.279. Failing to reach an accommodation, one party may invite the other(s)to submit dispute to LOS Convention’s non-binding conciliation procedure. Art. 284 and Annex V. If thatfails, any one of the disputing partiescan trigger the compulsory and binding resolution procedures. Arts. 286and 287.

The Convention contains provisionsfor scientific and technical assistanceto developing States to assist them inmeeting their obligations with respectto the marine environment. Arts. 202and 203.

Parties are required to notify potentially affected States where the marineenvironment is in imminent danger ofharm or where harm has alreadyoccurred. Art. 198. Parties are alsorequired to cooperate in conductingstudies and exchanging information onpollution of the marine environment.Art. 200.

ViennaConventionand MontrealProtocol

Non-compliance provision of Montreal Protocol triggered when partyreports itself or is reported by anotherparty or the Secretariat as not beingable to meet its commitments underthe protocol. Fourth Meeting of theParties, Annex VII. The dispute settlement provisions of the Vienna Convention are triggered when a disputearises. Art. 11.

Standing Implementation committeecomprised of 10 parties elected bymeeting of parties (MOP). Followingnotification on non-compliance, Secretariat solicits information and prepares report for the Implementationcommittee. Committee examines situation and reports (with recommendations) to MOP. ImplementationCommittee directed to coordinatewith Multilateral Fund on availabilityof financial and technical assistance toassist in promoting compliance. MOPwill vote on appropriate measures toensure compliance. Fourth MOP,Annex VII.

Non-compliance procedure contemplates that interested parties will provide information to Secretariat for itsreport to the Implementation Commission. Provisions exist to protect confidential information. Fourth MOP,Annex VII, par. 16.

DISPUTE RESOLUTION IN THE CONTEXT 175
Chart 1: Trigger/Timing, Compliance/Avoidance, and Notification/Information Exchange Provisions

Trigger/Timing Compliance/Avoidance Notification/Information Exchange

Canada-USAir QualityAccord

A party may request consultation onany matter within scope of agreement. (Art. XI)

Periodic review and assessment(every 5 years) of the agreement andimplementation. Art. X. InternationalJoint Commission (established byBoundary Waters Treaty) acts assounding board for parties and implementation of agreement. Art. IX. Article VIII creates the Air QualityCommittee which is charged withreviewing implementation and preparing periodic progress reports forsubmission to the parties, the IJC, andthe public. Art. VIII (2).

Detailed and ongoing informationexchange required for broad range ofair quality issues. Art. VIII.

176 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Chart 1: Trigger/Timing, Compliance/Avoidance, and Notification/Information Exchange Provisions

Trigger/Timing Compliance/Avoidance Notification/Information Exchange

NAAEC A party may request consultations

with another party regarding persistent pattern of non-enforcement ofenvironmental laws. If consultationsfail to resolve matter within 60 days,any party may request special sessionof the CEC Council. If that fails toresolve the matter within another 60days, the CEC Council may convenean arbitral panel. (Arts. 22-24)

Art. 20 requires the parties toendeavor to agree on the interpretation and application of the agreementand cooperate to resolve mattersaffecting its operation.Art. 10(6) states that the CEC Councilshall cooperate with the NAFTA FreeTrade Commission to achieve theenvironmental goals and objectives ofthe NAFTA by:

“(c) contributing to the prevention or

resolution of environment-relatedtrade disputes by:(i) seeking to avoid disputes betweenParties,(ii) making recommendations to theFree Trade Commission with respectto the avoidance of such disputes, and(iii) identifying experts able to provide information or technical adviceto NAFTA committees, workinggroups and other NAFTA bodies.”

Parties required to notify and onrequest provide information on anyactual or proposed measure that mightmaterially affect operation of agreement or the other party’s interests.Parties may notify and inform anotherparty of possible violations of its environmental laws. Art. 20(2-4). Partiesmust provide information to the CECCouncil or Secretariat as requested. Art.21.Under Art. 12(2), the Secretariat shallprepare an annual report covering, interalia, “(c) the actions taken by each Partyin connection with its obligations under[the] Agreement, including data on theParty’s environmental enforcementactivities.”

DISPUTE RESOLUTION IN THE CONTEXT 177
Chart 1: Trigger/Timing, Compliance/Avoidance, and Notification/Information Exchange Provisions

Trigger/Timing Compliance/Avoidance Notification/Information Exchange

IUCN DraftConvention

Reporting and implementation obligations are ongoing. Parties requiredto pursue efforts among themselves toresolve disputes, but if resolution notreached within one year, any partycan trigger a binding arbitral or judicial process. Art. 62.

Parties directed to promote and utilize compliance and dispute avoidance mechanisms in theirparticipation in environmental treaties. Preference is for simple, transparent, and non-confrontationalmeasures. Art. 61. Comment to Art. 61reviews trend toward complianceenhancement mechanism rather thantraditional dispute settlement particularly where lack of compliance iscaused by lack of national capacity.Compliance and dispute avoidancemechanisms often adopted informally by parties to an agreementrather than in the agreement itself,although institutional arrangements(such as implementation or technicalbodies) can facilitate dispute avoidance.

Parties required to submit periodicreports on steps taken and problemsencountered implementing obligationsunder the convention. Art. 60. Reportssubmitted to ECOSOC, but follow-up isnot specified.

178 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Chart 1: Trigger/Timing, Compliance/Avoidance, and Notification/Information Exchange Provisions

Trigger/Timing Compliance/Avoidance Notification/Information Exchange

ILC Draft Articles When dispute arises, parties must

enter consultations/negotiations for 6months, at which time a party mayrequest appointment of a fact-findingcommission. If fact-finding commission fails to resolve the dispute within12 months, parties may refer the dispute to a permanent or ad hoc tribunalor to the ICJ. Art. 33.

Parties must cooperate (Art. 8) andregular information/data exchangedesigned to promote cooperation andimplementation. Art. 9.

Data and information exchange is to beconducted on a regular basis. Art. 9. Inaddition, parties are required toexchange information and consult oneffect of planned measures on theshared watercourse. Art. 11. Where aplanned measure is likely to haveadverse effects on other parties, notification is required, Art. 12. Notifiedstates have the opportunity to respond.Arts. 13 and 15

NordicConvention

Any person who is or may be affectedby an environmental “nuisance,” hasopportunity to bring administrativeor judicial action. Art. 3.

N/A Parties have obligation to notify other

potentially affected parties when examining the permissibility of environmentally harmful activities. Art. 5. Theparties reviewing such notice shallinform the public if necessary. Art. 7.

DISPUTE RESOLUTION IN THE CONTEXT 179
Chart 1: Trigger/Timing, Compliance/Avoidance, and Notification/Information Exchange Provisions

Trigger/Timing Compliance/Avoidance Notification/Information Exchange

Gulf of MaineProtocol

The protocol calls upon the parties–New Brunswick, Nova Scotia,Maine, New Hampshire, and Massachusetts–to take actions to implementthe goals and objectives of the protocol which are directed at promotingsustainable development by improving transboundary impact assessment. It does not contain any directlyenforceable specific TEIA obligations,although it does set out a roadmap forthe individual parties to follow.

Creates Marine EnvironmentalAssessment Committee to developcooperative regional approaches tomanaging environmental conditionsin the Gulf of Maine including “preventative, mitigative and/or adaptivestrategies to deal with marine degradation.” Encourages parties todevelop specific principles and methods for cooperation on general andproject specific basis.

Contemplates “systematic observationsystems” to monitor marine environmental conditions and an efficientmechanism of regular informationexchange among parties. In addition,parties are directed to designate environmental assessment offices as contactpoints, to adopt procedures for information sharing of project specific information, and to ensure other parties arenotified of any proposed activity likelyto have a significant adversetransboundary impact.

180 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Chart 2: Consultation/Negotiation, Conciliation/Mediation, and Arbitration/Adjudication Provisions

Consultation/Negotiation Conciliation/Mediation Arbitration/Adjudication

Charter of theUnited Nations

Suggested, without elaboration, as ameans of peaceful settlement. Art. 33.

Suggested, without elaboration, as ameans of peaceful settlement. Art. 33.

Encourages reference by parties to ICJ.Art. 36. Security Council may act as tribunal of last resort if parties so agree.Art. 38.

EspooConvention

Discussion/Negotiation required asfirst step under both dispute resolution provisions. Arts. 3(7) and 15(1).

Parties free to pursue other mutuallyacceptable dispute resolution mechanisms which could include, for example, third party mediation or inquiry.Arts. 3(7) and 15(1). Inquiry commission under Art. 3(7) and Appendix IVprovides non-binding resolution onthreshold applicability questions.

Full dispute resolution provision (Art.15), provides for alternate binding forafor settlement: ICJ or arbitration inaccordance with Appendix VII. Arbitration mechanism: 3 member panelwith each side appointing one memberwith those two choosing the third member to serve as head panel and may notbe national of nor resident in a disputing party. If party refuses to designate apanelist, Convention provides thatExecutive Secretary of the EconomicCommission for Europe shall make theappointment. Panel adopts rules of procedure and all decisions by majorityvote. It may request documents and callwitnesses or experts, and all parties arerequired to comply/facilitate. Absenceor failure of party to participate doesnot bar proceedings. Decision duewithin five months of date panel established with option to extend for additional five months. Appendix VII.

DISPUTE RESOLUTION IN THE CONTEXT 181
Chart 2: Consultation/Negotiation, Conciliation/Mediation, and Arbitration/Adjudication Provisions

Consultation/Negotiation Conciliation/Mediation Arbitration/Adjudication

LOS Convention Parties required to exchange views

regarding the settlement by negotiation or other peaceful means. Art. 283.

Art. 284 contains conciliation procedure that may voluntarily be used byparties following failure to resolvedispute by other means. Procedure forconciliation (not binding) set out inAnnex V. Conciliation commissionchosen from list of conciliators maintained by UN Secretary General–twochosen by each side, fifth chosen aschairman by the other four. Commission establishes own procedure, hearsviews of parties, and reports within 12months (if no resolutions reachedsooner) on conclusions and recommendations for amiable settlement.Conciliation process ends when settlement reached, all parties accept orone rejects the commission’s findings,or three months following release offinal report.

If conciliation fails to resolve dispute,any party can trigger compulsory andbinding dispute resolution process. Art.286. Compulsory reference to one offour fora based on relevant parties’ declaration of acceptance of dispute forumas part of ratification: 1) InternationalTribunal for the Law of the Sea, established under Annex VI; 2) ICJ; 3) arbitraltribunal constituted under Annex VII;and 4) for certain disputes, the specialarbitral tribunal constituted in accordance with Annex VIII. Art. 287. Arbitration under Annex VII is defaultforum. Art. 287(5). These tribunals havejurisdiction over any dispute concerning the application or interpretation ofnot only LOS Convention but any international agreement related to purposesof LOS Convention. Art. 288. Tribunalsmay engage experts to sit as non-votingmembers. Art. 289.

182 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Chart 2: Consultation/Negotiation, Conciliation/Mediation, and Arbitration/Adjudication Provisions

Consultation/Negotiation Conciliation/Mediation Arbitration/Adjudication

ViennaConvention andMontreal Protocol

Vienna Convention requires partiesin dispute to seek solution throughnegotiation. Art. 11.

If negotiation fails, Vienna Convention encourages, but does not require,disputing parties to seek good officesof or mediation by a third party. Art.11(2).

If parties have accepted compulsoryjurisdiction, unresolved dispute goes toICJ or arbitration; if not, then conciliation commission may be formed to render a non-binding resolution whichparties must consider in good faith.Art. 11.

Canada-USAir QualityAccord

Upon request, consultations on anymatter within scope of agreementto take place within 30 days. Art. XI.Negotiations also required. Art.XIII(1).

Following consultations, if outstanding dispute not subject to Art. XIIIremains, the Parties must refer thematter to an appropriate third partyunder agreed terms of reference. Art.XII.

If consultations and negotiations fail,the parties may submit dispute to theInternational Joint Commission inaccordance with Article IX or X of theBoundary Waters Treaty. Parties mayagree to an alternate form of disputeresolution. Art. XIII(2).

DISPUTE RESOLUTION IN THE CONTEXT 183
Chart 2: Consultation/Negotiation, Conciliation/Mediation, and Arbitration/Adjudication Provisions

Consultation/Negotiation Conciliation/Mediation Arbitration/Adjudication

NAAEC Consultations required if dispute

develops regarding enforcement of aParty’s environmental laws. Art. 22.

If consultations fail, matter referred toCEC Council which may 1) enlist technical advisors or working groups; 2)refer parties to mediation, goodoffices, or other dispute resolutionprocedures; or 3) make its own recommendations. Art. 23.

If CEC Council’s efforts unsuccessful,upon request of a party and a 2/3 voteof CEC Council, CEC Council shallconvene an arbitral panel. Art. 24.Chairman of five-member panel chosenjointly by parties from roster of prospective panelists, then each partychooses two panelists who are citizensof other disputing party. Art. 27. Panelmust follow rules of procedure adoptedby CEC Council. Art. 28. It may seektechnical advice from any person orbody subject to approval of disputingparties. Art. 30. Following commentperiod (disputing parties only) on aninitial report, panel presents final reportto disputing Parties which in turn transmit report to CEC Council with viewsappended. Report made public fivedays following transmittal to CECCouncil. Arts. 31-32.

184 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Chart 2: Consultation/Negotiation, Conciliation/Mediation, and Arbitration/Adjudication Provisions

Consultation/Negotiation Conciliation/Mediation Arbitration/Adjudication

IUCN DraftConvention

If dispute arises, parties required toexercise peaceful means to resolve,including “negotiation, inquiry,mediation, conciliation, arbitration,judicial settlement, resort to regionalagencies or arrangements, or by anyother peaceful mean of their ownchoice.” Art. 62(1). Convention thusdefers to other existing environmentaltreaties’ dispute settlement procedures when applicable.

See previous box. If measures identified in Article 62(1)

fail to resolve matters within one year,any disputant can submit dispute tobinding arbitration or judicial settlement. Precise forum left to parties todetermine, but requires that they exercise good faith in negotiating an acceptable venue. Art. 62(2) and relatedcommentary.

ILC Draft Articles Following notification of planned

measures, parties must enter into consultation or negotiations while implementation of planned measure maybe suspended for 6 months. Art. 17.Where dispute arises between partiesconcerning question of fact or interpretation or application of agreement,they are required to enter into consultation and negotiations using anyexisting joint watercourse institutions. Art. 33(a).

If negotiation/consultation fails toresolve dispute within 6 months, aparty can trigger an impartial factfinding commission comprised of onemember nominated by each party anda chairman chosen by those members.Art. 33(b). Fact-finding commissionmay also provide mediation and conciliation functions if so requested byparties. Commission has access to anyinformation or facilities necessary toinquiry and shall prepare a reportsetting forth findings and makingrecommendations. Cost of inquiry tobe shared by parties and report notbinding. Art. 33(b).

If commission fails to resolve conflictwithin 12 months and a party sorequests, parties shall submit dispute tounspecified arbitral tribunal or ICJ forbinding resolution of dispute. Art.33(c).

DISPUTE RESOLUTION IN THE CONTEXT 185
Chart 2: Consultation/Negotiation, Conciliation/Mediation, and Arbitration/Adjudication Provisions

Consultation/Negotiation Conciliation/Mediation Arbitration/Adjudication

NordicConvention

At the request of a potentially affectedparty, consultations are required. Art.11.

N/A N/A

Gulf of MaineProtocol

Consultation among the parties isimplicit in the draft protocol.

N/A N/A

186 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Chart 3: Implementation/Enforcement, Third Party Participation, and Non-State Participation

Implementation/Enforcement Third Party Participation Non-State Participation

Charter of theUnited Nations

N/A N/A N/A

EspooConvention

Arbitral panel may recommendinterim measures of protection.Appendix VII, par. 11. Disputes overinterpretation or execution of arbitralpanel’s decision may be submitted tosame panel or new panel constitutedin same manner. Appendix VII, par.18.

Any party to the convention “havingan interest of a legal nature” in the dispute may intervene with consent ofarbitral panel or inquiry commission.Appendix VII, par. 15. Appendix IV,par. 11.

Although public is granted broad participatory rights in conduct of EIAunder convention, public has no specified role in inquiry or arbitral process.

LOS Convention Tribunals or courts with compulsory

and binding jurisdiction may prescribe provisional measures to protectrights of disputant. Art. 290. Decisionsof tribunal/court are final and arbitralawards may only be appealed if disputants agreed at outset to process forappeal. Annex VI, Art. 33. Annex VII,Art. 11. Clarification or interpretationof final decision may be sought fromtribunal that made decision. AnnexVI, Art. 33. Annex VII, Art. 12.

Other parties have right to intervenein cases before LOS Tribunal wheninterpretation or application of Convention is concerned, Art. 32, and mayrequest intervention for other matters.Art. 31. Intervenors are bound bydecision of the court. Art. 32(3).

Convention and dispute resolutionmechanisms apply only to State Parties,except for disputes under deep seabedprovisions which may involve states,the Seabed Authority, and/or privatecontractors involved in mining operations. Arts. 187(d) and (e). General public has no participatory rights in disputesettlement.

DISPUTE RESOLUTION IN THE CONTEXT 187
Chart 3: Implementation/Enforcement, Third Party Participation, and Non-State Participation

Implementation/Enforcement Third Party Participation Non-State Participation

ViennaConvention andMontreal Protocol

Non-compliance procedure of Montreal Protocol designed to provideconstructive assistance to parties,where appropriate, to encourageeffective implementation.

Non-compliance mechanismdesigned to involve all parties inimplementation/compliance process.

N/A

Canada-USAir QualityAccord

N/A N/A Annual reports to be made available to

public and IJC holds public hearings onprogress in resolving transboundary airpollution problems, but no provisionfor formal public role in dispute resolution. Arts. VIII(2) and IX(1).

NAAEC Following panel report, disputing

parties may agree on action plan toremedy conditions cited by the panel.Art. 33. If parties unable to agree on aplan or disagree as to whether anagreed plan is being fully implemented, panel may be reconvened toestablish a plan or examine implementation of existing plan. Art. 34. Ineither case, a panel may impose amonetary enforcement assessmentagainst a disputing party. Arts. 34(4)(5) and (6). Failure to pay an assessment may lead to suspension ofNAFTA benefits in amount of assessment. Art. 36.

An intermediate third party mayintervene in panel process as a complaining party at outset. Art. 24(2). Inany event, a third party may attendpanel meetings, make written or oralsubmissions, and receive written submissions of disputing parties. Art. 29.

Other than panel’s report beingreleased to public and option for use ofexperts, there is no public participationin the panel process. NAAEC does contain mechanism for individuals andnon governmental organizations tobring a potential violation of Agreement to attention of Secretariat whichmay then decide to pursue matter further. Art. 14. If warranted andrequested by CEC Council, Secretariatwill prepare factual record for CECCouncil. Art. 15.

188 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Chart 3: Implementation/Enforcement, Third Party Participation, and Non-State Participation

Implementation/Enforcement Third Party Participation Non-State Participation

IUCN DraftConvention

N/A N/A N/A

ILC Draft Articles N/A N/A N/ANordicConvention

N/A Each party designates a “Supervisory

Authority” which will have an opportunity to bring an administrative orjudicial action in another party’s jurisdiction relating to an environmental“nuisance.” Art. 4.

Any affected or potentially affected person may bring an action in the State inwhich the environmentally harmfulactivity is being carried out. Art. 3.When such an action is brought, foreignnationals must be afforded the sametreatment as host country nationals.Art. 3.

Gulf of MaineProtocol

N/A One main purpose of protocol is to

enhance open communication andcooperation among governments ofthe parties in matters relating totransboundary environmental impactassessment.

Parties are directed to build mechanisms for public involvement in earlyplanning phases of the assessment process.

DISPUTE RESOLUTION IN THE CONTEXT 189
APPENDIX II

Summary of Dispute Avoidance and Settlement Mechanisms

of Select International Environmental Agreements by Agreement

Charter of the United Nation

Trigger/Timing. Where continuance of any dispute likely to endanger

international peace and security. Parties required to settle peacefully.

Art. 33. Security Council has power to investigate any situation that may

endanger international peace and security. Art. 34.

Compliance/Avoidance. Security Council authorized to recommend

measures to resolve impending disputes. Art. 36. Not generally exercised as an avoidance mechanism for environmental disputes.

Notification/Information Exchange. N/A

Consultation/Negotiation. Suggested, without elaboration, as a means

of peaceful settlement. Art. 33.

Conciliation/Mediation. Suggested, without elaboration, as a means of

peaceful settlement. Art. 33.

Arbitration/Adjudication. Encourages reference by parties to ICJ. Art.

36. Security Council may act as tribunal of last resort if parties so agree.

Art. 38.

Implementation/Enforcement. N/A

Third Party Participation. N/A

Non-State Participation. N/A

Espoo Convention – Convention on Environmental

Impact Assessment in a Transboundary Context

Trigger/Timing. Two triggers. Inquiry procedure triggered where parties cannot agree on threshold question of likelihood of significant

adverse transboundary impact and thus whether convention’s provisions are applicable. Art. 3(7) and Appendix IV. Dispute Settlement provisions (Art. 15 and Appendix VII) triggered when parties unable to

agree on interpretation or application of Convention.

190 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Compliance/Avoidance. Parties are bound to exchange information,

and have discussions regarding applicability of EIA requirements. Arts.

2(5) and 3(7). Guidance in Appendix III provided to help make determination of significant adverse impact. In the absence of agreement, 3-

person inquiry panel will make determination of applicability of Convention. Art. 3(7) and Appendix IV. EIA process itself designed to avoid

conflict by involving concerned parties in decision process. Art. 5.

Notification/Information Exchange. Notification of likely significant

adverse transboundary impact required–including sufficient information to evaluate. Art. 3. Information exchange also required where parties disagree over likelihood or significance of impact. Art. 3(7).

Consultation/Negotiation. Discussion/Negotiation required as first

step under both dispute resolution provisions. Arts. 3(7) and 15(1).

Conciliation/Mediation. Parties are free to pursue other mutually

acceptable dispute resolution mechanisms which could include, for

example, third party mediation or inquiry. Arts. 3(7) and 15(1). Inquiry

commission under Art. 3(7) and Appendix IV provides non-binding

resolution.

Arbitration/Adjudication. Full dispute resolution provision (Art. 15),

provided for alternate binding fora for settlement: International Court of

Justice or arbitration in accordance with Appendix VII. Arbitration

mechanism: 3-member panel with each side appointing one member

with those two choosing the third member who serves as president of

the panel and may not be a national of nor a resident in a disputing party.

If one or another party refuses to designate a panelist, the Convention

provides that the Executive Secretary of the Economic Commission for

Europe shall make the appointment. The panel shall adopt its own rules

of procedure and all decisions are by majority vote. It may request documents and call witnesses or experts, and all parties are required to comply/facilitate. Absence or failure of a party to participate does not bar

the proceedings. A decision is due within five months of date panel was

established with option to extend by an additional five months. Appendix VII.

Implementation/Enforcement. Arbitral panel may recommend interim

measures of protection. Appendix VII, par. 11. Disputes over interpretation or execution or arbitral panel’s decision may be submitted to same

panel or new panel constituted in same manner. Appendix VII, par. 18.

DISPUTE RESOLUTION IN THE CONTEXT 191
Third Party Participation.Any party to the convention “having an interest of a legal nature” in the dispute may intervene with consent of the

arbitral panel or inquiry commission. Appendix VII, par. 15. Appendix

IV, par. 11.

Non-State Participation. Although public is granted broad participatory rights in conduct of EIA under the convention, public has no specified role in inquiry or arbitral process.

LOS: United Nations Convention on the Law of the Sea

Trigger/Timing. Parties are directed to resolve disputes between themselves in accordance with Art. 33 of the UN Charter. Art. 279. Failing to

reach an accommodation, one party to the dispute may invite the

other(s) to submit the dispute to the LOS Convention’s non-binding conciliation procedure. Art. 284 and Annex V. If that fails, any one of the

disputing parties can trigger the compulsory and binding resolution

procedures. Arts. 286 and 287.

Compliance/Avoidance. The Convention contains provisions for scientific and technical assistance to developing States to assist them in meeting their obligations with respect to the marine environment. Arts. 202

and 203.

Notification/Information Exchange. Parties are required to notify

potentially affected States where the marine environment is in imminent

danger of harm or where harm has already occurred. Art. 198. Parties are

also required to cooperate in conducting studies and exchanging information on pollution of the marine environment. Art. 200.

Consultation/Negotiation. Parties required to exchange views regarding the settlement by negotiation or other peaceful means. Art. 283.

Conciliation/Mediation. Art. 284 contains conciliation procedure that

may voluntarily be used by parties following their failure to resolve a

dispute by other means. Procedure for conciliation (not binding) set out

in Annex V. Conciliation commission chosen from list of conciliators

maintained by US Secretary General–two chosen by each side, fifth chosen as chairman by the other four. Commission establishes own procedure, hears views of parties, and reports within 12 months (if no

resolutions reached sooner) on its conclusions and recommendations for

amiable settlement. Conciliation process ends when settlement reached,

all parties accept, or one of the parties rejects the commission’s findings,

or three months following release of the final report.

192 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Arbitration/Adjudication. If conciliation is rejected or fails to resolve

the dispute, any party to the dispute can trigger the Convention’s compulsory and binding dispute resolution process. Art. 286. Compulsory

reference to one of four fora based on relevant parties’ declaration of

acceptance of dispute fora as part of ratification. Four choices are 1)

International Tribunal for the Law of the Sea, established under Annex

VI; 2) International Court of Justice; 3) arbitral tribunal constituted

under Annex VII; and 4) for certain disputes, the special arbitral tribunal

constituted in accordance with Annex VIII. Art. 287. Arbitration under

Annex VII is the default forum Art. 287(5). These courts or tribunals have

jurisdiction over any dispute concerning the application or interpretation of not only the LOS Convention but any international agreement

related to the purposes of the LOS Convention. Art. 288. Tribunals or

courts may engage experts to sit as non-voting members. Art. 289.

Implementation/Enforcement. Tribunals or courts with compulsory

and binding jurisdiction may prescribe provisional measures to protect

rights of disputant. Art. 290. Decisions of tribunal/court are final and

arbitral awards may only be appended if disputants agreed at outset to

process for appeal. Annex VI, Art. 33. Annex VII, Art. 11. Clarification or

interpretation of the final decision may be sought from the court or tribunal that made the decision. Annex VI, Art. 33. Annex VII, Art. 12.

Third Party Participation. Other parties have right to intervene in cases

before the LOS Tribunal when interpretation or application of the Convention is concerned, Art. 32, and may request intervention for other

matters. Art. 31. Intervenors are bound by the decision of the court. Art.

32(3).

Non-State Participation. Convention and dispute resolution mechanisms apply only to State Parties, except for disputes under deep seabed

provisions which may involve States, the Seabed Authority, and/or private contractors involved in mining operations. Art. 187(d) and (e). General public has no participatory rights in dispute settlement.

Vienna Convention for Protection of the Ozone Layer

and the Montreal Protocol

Trigger/Timing. Non-compliance provision of the Montreal Protocol

triggered when a party reports itself or is reported by another party or

the secretariat as not being able to meet its commitments under the protocol. Fourth Meeting of the Parties, Annex VII. The dispute settlement

provisions of the Vienna Convention are triggered when a dispute

arises. Art. 11.

DISPUTE RESOLUTION IN THE CONTEXT 193
Compliance/Avoidance. The Montreal Protocol non-compliance provisions are a unique attempt to avoid disputes and assist parties to comply

with their obligations. Standing Implementation committee comprised

of 10 parties elected by meeting of parties (MOP). Following notification

on non-compliance, secretariat solicits information and prepares report

for the Implementation committee. Committee examines situation and

reports (with recommendations) to the MOP. Implementation Committee is directed to coordinate with Executive Committee of the Multilateral Fund on availability of financial and technical assistance to assist in

promoting compliance. MOP will vote on appropriate measures to

ensure compliance. Fourth MOP, Annex VII.

Notification/Information Exchange. Non-compliance procedure contemplate that interested parties will provide information to secretariat

for its report to the Implementation Commission. Provisions exist to

protect confidential information. Fourth MOP, Annex VII, par. 16.

Consultation/Negotiation. Vienna Convention requires parties in dispute to seek solution through negotiation. Art. 11.

Conciliation/Mediation. If negotiation fails, Vienna Convention

encourages but does not require disputing parties to seek good offices of

or mediation by a third party. Art. 11(2).

Arbitration/Adjudication. If parties have accepted compulsory jurisdiction, unresolved dispute goes to ICJ or arbitration; if not, then conciliation commission may be formed to render a non-binding resolution

which parties must consider in good faith. Art. 11.

Implementation/Enforcement. Non-compliance procedure of Montreal Protocol designed to provide constructive assistance to parties,

where appropriate, to encourage effective implementation.

Third Party Participation. Non-compliance mechanism designed to

involve all parties in implementation/compliance process.

Non-State Participation. N/A

Canada-US Air Quality Accord

Trigger/Timing. A party may request consultation on any matter within

scope of agreement. Art. XI.

194 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Compliance/Avoidance. Agreement includes periodic review and

assessment (every 5 years) of the grant and implementation. Art. X.

International Joint Commission (established by Boundary Waters

Treaty) acts as sounding board for parties and implementation of agreement. Art. IX. Article VIII creates the Air Quality Committee which is

charged with reviewing implementation and preparing periodic progress reports for submission to the parties, the International Joint Commission, and the public. Art. VIII(2).

Notification/Information Exchange. Detailed and ongoing information

exchange required for broad range of air quality issues. Art. VIII.

Consultation/Negotiation. Upon request of either party, consultations

on any matter within scope of the agreement to take place within 30

days. Art. XI. Negotiations also required Art. XIII(1).

Conciliation/Mediation. Following consultations, if outstanding dispute not subject to Art. XIII remains, the parties must refer the matter to

an appropriate third party under agreed terms of reference. Art. XII.

Arbitration/Adjudication. If consultations and negotiations fail, the

parties may submit dispute to the International Joint Commission in

accordance with Article IX or X of the Boundary Waters Treaty. Parties

may agree to an alternate form of dispute resolution. Art. XIII(2).

Implementation/Enforcement. N/A

Third Party Participation. N/A

Non-State Participation. Annual reports are to be made available to the

public and International Joint Commission holds public hearings on

progress in resolving transboundary air pollution problems, but no provision for formal public role in dispute resolution. (Art. VIII(2) and

IX(1))

North American Agreement on Environmental Cooperation

Trigger/Timing. A party may request consultations with another party

regarding a persistent pattern of non-enforcement of environmental

laws. If consultations fail to resolve the matter within 60 days, any party

may request a special session of the CEC Council. If that fails to resolve

the affair within another 60 days, the CEC Council may convene an arbitral panel. (Arts. 22-24)

DISPUTE RESOLUTION IN THE CONTEXT 195
Compliance/Avoidance. Article 20 requires the parties to endeavor to

agree on the interpretation and application of the agreement and cooperate to resolve matters affecting its operation.

Notification/Information Exchange. Parties required to notify and on

request provide information on any actual or proposed measure that

might materially affect operation of agreement or the other party’s interests. Parties may notify and inform another party of possible violations

of its environmental laws. Art. 20 (2-4). Moreover parties must provide

information to the CEC Council or Secretariat as requested. Art. 21.

Consultation/Negotiation. Consultations are required if a dispute

develops regarding enforcement of a party’s environmental laws. Art.

22.

Conciliation/Mediation. If consultations fail, the matter is referred to

the CEC Council which may 1) enlist technical advisors or working

groups; 2) refer the parties to mediation, good offices, or other dispute

resolution procedures; or 3) make its own recommendations. Art. 23.

Arbitration/Adjudication.If the CEC Council’s efforts are unsuccessful,

upon request of a party and a 2/3 vote of the CEC Council, the CEC

Council shall convene an arbitral panel. Art. 24. The chairman of the

five-member panel is to be chosen jointly by the parties from a roster of

prospective panelists, then each party chooses two panelists who are citizens of the other disputing party. Art. 27. The panel must follow rules of

procedure adopted buy the CEC Council. Art. 28. The panel may seek

technical advice from any person or body subject to approval of the disputing parties. Art. 30. Following a comment period (disputing parties

only) on an initial report, the panel presents a final report to the disputing parties which in turn transmit the report to the CEC Council with its

views appended. The report is made public five days following transmittal to the CEC Council. Arts. 31-32.

Implementation/Enforcement. Following the panel report, the disputing parties may agree on an action plan to remedy any conditions cited

by the panel. Art. 33. If the parties are unable to agree on a plan or there is

disagreement as to whether an agreed solution plan is being fully implemented, the panel may be reconvened to establish a plan or examine

implementation of an existing plan. Art. 34. In either case, a panel may

impose a monetary enforcement assessment against a disputing party.

Arts. 34(4), (5) and 5(6). Failure to pay such an assessment may lead to

suspension of NAFTA benefits in the amount of the assessment. Art. 36.

196 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Third Party Participation. An intermediate third party may intervene in

the panel process as a complaining party at the outset. Art. 24 (2). In any

event, a third party may attend panel meetings, make written or oral

submissions, and receive written submissions of the disputing parties.

Art. 29.

Non-State Participation. Other than the panel’s report being released to

the public and the option for use of experts, there is no public participation in the panel process. The Agreement does however contain a mechanism for individuals and non gouvernmental organizations to bring a

potential violation of the Agreement to the attention of the Secretariat

which may then decide to pursue the matter further. Art. 14. If warranted and requested by the CEC Council the Secretariat will propose a

factual record for the CEC Council. Art. 15.

IUCN: Draft Convention on Environment and Development

Trigger/Timing. Reporting and implementation obligations are ongoing. Parties required to pursue efforts among themselves to resolve disputes, but if resolution not reached within one year, any party can

trigger a binding arbitral or judicial process. Art. 62.

Compliance/Avoidance. Parties directed to promote and utilize compliance and dispute avoidance mechanisms in their participation in environmental treaties. Preference is for simple, transparent, and

non-confrontational measures. Art. 61. Comment to Article 61 reviews

trend toward compliance enhancement mechanism rather than traditional dispute settlement particularly where lack of compliance is

caused by lack of national capacity. Compliance and dispute avoidance

mechanisms are often adopted informally by parties to an agreement

rather than in the agreement itself, although institutional arrangements

(such as implementation or technical bodies) can facilitate dispute

avoidance.

Notification/Information Exchange. Parties are required to submit

periodic reports on steps taken and problems encountered implementing their obligations under the convention. Art. 60. Reports submitted to

ECOSOC, but follow-up is not specified.

Consultation/Negotiation. If dispute arises, parties required to exercise

peaceful means to resolve, including “negotiation, inquiry, mediation,

conciliation, arbitration, judicial settlement, resort to regional agencies

or arrangements, or by any other peaceful mean of their own choice.”

DISPUTE RESOLUTION IN THE CONTEXT 197
Art. 62(1). The Convention thus defers to other existing environmental

treaties’ dispute settlement procedures when applicable.

Conciliation/Mediation. See above.

Arbitration/Adjudication. If the measures identified in Article 62(1) fail

to resolve matters within one year, any disputant can submit the dispute

to binding arbitration or judicial settlement. The precise forum is left to

the parties to determine, but requires that they exercise good faith in

negotiating an acceptable venue. Art. 62(2) and related commentary.

Implementation/Enforcement. N/A

Third Party Participation. N/A

Non-State Participation. N/A

ILC: Draft Articles on Law of Non-Navigational

Uses of International Watercourses

Trigger/Timing.When dispute arises, parties must enter consultations/

negotiations for 6 months, at which time a party may request appointment of a fact-finding commission. If that fact-finding commission fails

to resolve the dispute within 12 months, the parties may refer the dispute to a permanent or ad hoc tribunal or to the ICJ. Art. 33.

Compliance/Avoidance. Parties must cooperate, Art. 8, and regular

information/data exchange designed to promote cooperation and

implementation. Art. 9.

Notification/Information Exchange. Data and information exchange is

to be conducted on a regular basis. Art. 9. In addition, parties are

required to exchange information and consult on effect of planned measures on the shared watercourse. Art. 11. Where a planned measure is

likely to have adverse effects on other parties, notification is required,

Art. 12. Notified States have the opportunity to respond. Arts. 13 and 15.

Consultation/Negotiation. Following notification regarding planned

measures, the parties must enter into consultation or negotiations

while implementation of the planned measure may be suspended for

6 months. Art. 17. In addition, where a dispute arises between parties

concerning a question of fact or the interpretation or application of the

agreement, they are required to enter into consultation and negotiations

using any existing joint watercourse institutions. Art. 33(a).

198 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Conciliation/Mediation. If negotiation/consultation fails to resolve a

dispute within 6 months, a party can trigger an impartial fact-finding

commission comprised of one member nominated by each party and a

chairman chosen by those members. Art. 33(b). The fact-finding commission may also provide mediation and conciliation functions if so

requested by the parties. The commission has access to any information

or facilities necessary to the inquiry and shall prepare a report setting

forth its findings and making its recommendations. The cost of the

inquiry is to be shared by the parties and the report is not binding. Art.

33(b).

Arbitration/Adjudication. If the commission fails to resolve the conflict

within 12 months and a party so requests the parties shall submit the dispute to an unspecified arbitral tribunal or the ICJ for binding resolution

of the dispute. Art. 33(c).

Implementation/Enforcement. N/A

Third Party Participation. N/A

Non-State Participation. N/A

Convention on the Protection of the Environment

Between Denmark, Finland, Norway and Sweden

Trigger/Timing. Any person who is or may be affected by an environmental “nuisance,” has opportunity to bring administrative or judicial

action. Art. 3.

Compliance/Avoidance. N/A

Notification/Information Exchange. Parties must notify other potentially affected parties when examining the permissibility of environmentally harmful activities. Art. 5. The parties reviewing such notice

shall inform the public if necessary. Art. 7.

Consultation/Negotiation. At the request of a potentially affected

party, consultations are required. Art. 11.

Conciliation/Mediation. N/A

Arbitration/Adjudication. N/A

Implementation/Enforcement. N/A

DISPUTE RESOLUTION IN THE CONTEXT 199
Third Party Participation. Each party designates a “Supervisory

Authority” which will have an opportunity to bring an administrative or

judicial action in another party’s jurisdiction relating to an environmental “nuisance.” Art. 4.

Non-State Participation. Any affected or potentially affected person

may bring an action in the State in which the environmentally harmful

activity is being carried out. Art. 3. When such an action is brought, foreign nationals must be afforded the same treatment as host country

nationals. Art. 3.

Gulf of Maine CEC Council on the Marine Environment: Protocol

on Transboundary Environmental Impact Assessment

Trigger/Timing. The protocol calls upon the parties–New Brunswick,

Nova Scotia, Maine, New Hampshire, and Massachusetts–to take

actions to implement the goals and objectives of the protocol which are

directed at promoting sustainable development by improving

transboundary impact assessment. It thus does not contain any directly

enforceable specific TEIA obligations, although it does set out a

roadmap for the individual parties to follow.

Compliance/Avoidance. Creates Marine Environmental Assessment

Committee to develop cooperative regional approaches to managing

environmental coalitions in the Gulf of Maine including “preventative,

mitigative and/or adaptive strategies to deal with marine degradation.”

Encourages parties to develop specific principles and methods for cooperation on general and project specific basis.

Notification/Information Exchange. Contemplates “systematic observation systems” to monitor marine environmental conditions and an

efficient mechanism of regular information exchange among parties. In

addition, parties are directed to designate environmental assessment

offices as contact points, to adopt procedures for information sharing of

project specific information, and to ensure other parties are notified of

any proposed activity likely to have a significant adverse transboundary

impact.

Consultation/Negotiation. Consultation among the parties is implicit in

the draft protocol.

Conciliation/Mediation. N/A

Arbitration/Adjudication. N/A

200 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT
Implementation/Enforcement. N/A

Third Party Participation. One main purpose of protocol is to enhance

open communication and cooperation among governments of the parties in matters relating to transboundary environmental impact assessment.

Non-State Participation. Parties are directed to build mechanisms for

public involvement in early planning phases of the assessment process.

DISPUTE RESOLUTION IN THE CONTEXT 201

PART II

Access to Courts and

Administrative Agencies

in Transboundary

Pollution Matters

SECRETARIAT OF THE COMMISSION

FOR ENVIRONMENTAL COOPERATION

BACKGROUND PAPER ON

ACCESS TO COURTS AND ADMINISTRATIVE AGENCIES

IN TRANSBOUNDARY POLLUTION MATTERS

A survey of available rights and remedies before courts and administrative

agencies for persons who have suffered or are likely to suffer damage or injury

caused by pollution and of barriers to equal access by foreigners

Prepared pursuant to Article 10(9) of the North American

Agreement on Environmental Cooperation

FINAL DRAFT

MAY 1999

205

TABLE OF CONTENTS

FOREWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211

EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . 213

1.0 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 215

1.1 Purpose of the paper . . . . . . . . . . . . . . . . . . . . . . . 216

1.2 Structure of the paper . . . . . . . . . . . . . . . . . . . . . . . 216

2.0 ACCESS TO COURTS. . . . . . . . . . . . . . . . . . . . . . . 218

2.1 Common Law/Civil Law Actions for Environmental

Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

2.1.1 Description . . . . . . . . . . . . . . . . . . . . . . . . 218

2.1.1.1 Common law remedies for damages in

Canada and the United States. . . . . . . . . 220

2.1.1.2 Civil law remedies for damages in Mexico

and the Province of Québec . . . . . . . . . . 223

2.1.1.3 Conclusion . . . . . . . . . . . . . . . . . . . 226

2.1.2 Potential barriers to transboundary access to

common law and civil law remedies. . . . . . . . . . 227

2.1.3 Application in Canada. . . . . . . . . . . . . . . . . . 229

2.1.4 Application in Mexico . . . . . . . . . . . . . . . . . . 232

2.1.5 Application in the United States . . . . . . . . . . . . 232

2.2 Statute-based Civil Actions for Environmental Damages . . . 237

2.2.1 Description . . . . . . . . . . . . . . . . . . . . . . . . 237

207
2.2.2 Potential barriers to transboundary access to

statutory recourses for damages . . . . . . . . . . . . 243

2.2.3 Application in Canada. . . . . . . . . . . . . . . . . . 244

2.2.4 Application in Mexico . . . . . . . . . . . . . . . . . . 246

2.2.5 Application in the United States . . . . . . . . . . . . 246

2.3 Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . 249

2.3.1 Description . . . . . . . . . . . . . . . . . . . . . . . . 249

2.3.2 Potential barriers to transboundary access to

injunctive relief . . . . . . . . . . . . . . . . . . . . . . 251

2.3.3 Application in Canada. . . . . . . . . . . . . . . . . . 251

2.3.4 Application in Mexico . . . . . . . . . . . . . . . . . . 252

2.3.5 Application in the United States . . . . . . . . . . . . 253

2.4 Private Prosecutions and Enforcement Actions in Court . . . 254

2.4.1 Description . . . . . . . . . . . . . . . . . . . . . . . . 254

2.4.2 Potential barriers to transboundary access to private

prosecutions and enforcement actions. . . . . . . . . 256

2.4.3 Application in Canada. . . . . . . . . . . . . . . . . . 257

2.4.4 Application in Mexico . . . . . . . . . . . . . . . . . . 257

2.4.5 Application in the United States . . . . . . . . . . . . 258

3.0 ACCESS TO ADMINISTRATIVE ACTIONS . . . . . . . . . . 258

3.1 Administrative Actions for Enforcement . . . . . . . . . . . . 259

3.1.1 Description . . . . . . . . . . . . . . . . . . . . . . . . 259

3.1.2 Potential barriers to access to administrative actions

for enforcement. . . . . . . . . . . . . . . . . . . . . . 264

3.1.3 Application in Canada. . . . . . . . . . . . . . . . . . 264

3.1.4 Application in Mexico . . . . . . . . . . . . . . . . . . 265

3.1.5 Application in the United States . . . . . . . . . . . . 265

208 TRANSBOUNDARY ACCESS TO COURTS
3.2 Administrative Action in Environmental Assessment. . . . . 265

3.2.1 Description . . . . . . . . . . . . . . . . . . . . . . . . 265

3.2.2 Potential barriers to transboundary access

to administrative actions for environmental

assessment . . . . . . . . . . . . . . . . . . . . . . . . 270

3.2.3 Application in Canada. . . . . . . . . . . . . . . . . . 270

3.2.4 Application in Mexico . . . . . . . . . . . . . . . . . . 272

3.2.5 Application in the United States . . . . . . . . . . . . 273

3.3 Participation in Permitting and Siting Decisions . . . . . . . . 275

3.3.1 Description . . . . . . . . . . . . . . . . . . . . . . . . 275

3.3.2 Potential barriers to transboundary access to permit

and siting decisions . . . . . . . . . . . . . . . . . . . 280

3.3.3 Application in Canada. . . . . . . . . . . . . . . . . . 280

3.3.4 Application in Mexico . . . . . . . . . . . . . . . . . . 282

3.3.5 Application in the United States . . . . . . . . . . . . 283

3.4 Participation in Regulation and Rule-making . . . . . . . . . 283

3.4.1 Description . . . . . . . . . . . . . . . . . . . . . . . . 283

3.4.2 Potential barriers to transboundary access to

regulation and rule-making. . . . . . . . . . . . . . . 287

3.4.3 Application in Canada. . . . . . . . . . . . . . . . . . 287

3.4.4 Application in Mexico . . . . . . . . . . . . . . . . . . 288

3.4.5 Application in the United States . . . . . . . . . . . . 288

4.0. ACCESS TO JUDICIAL REVIEW OF ADMINISTRATIVE

ACTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290

4.1 Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290

4.2 Potential barriers to transboundary access to judicial

review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294

4.3 Application in Canada . . . . . . . . . . . . . . . . . . . . . . 295

TRANSBOUNDARY ACCESS TO COURTS 209
4.4 Application in Mexico. . . . . . . . . . . . . . . . . . . . . . . 295

4.5 Application in the United States . . . . . . . . . . . . . . . . . 296

5.0 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . 297

ANNEX I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 299

A. OECD RECOMMENDATIONS . . . . . . . . . . . . . . . . . . 299

1. Description . . . . . . . . . . . . . . . . . . . . . . . . . . . 299

2. Implementation in Each Country . . . . . . . . . . . . . . . 301

3. Potential or Actual Effectiveness at Overcoming

Barriers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301

B. ABA/CBA DRAFT TREATY. . . . . . . . . . . . . . . . . . . . 301

1. Description . . . . . . . . . . . . . . . . . . . . . . . . . . . 301

2. Implementation in Each Country . . . . . . . . . . . . . . . 303

3. Potential or Actual Effectiveness at Overcoming

Barriers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303

C. UNIFORM TRANSBOUNDARY POLLUTION RECIPROCAL

ACCESS ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304

1. Description . . . . . . . . . . . . . . . . . . . . . . . . . . . 304

2. Implementation in Each Country . . . . . . . . . . . . . . . 305

3. Potential or Actual Effectiveness at Overcoming

Barriers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305

D. OTHER INTERNATIONAL APPROACHES. . . . . . . . . . . 306

210 TRANSBOUNDARY ACCESS TO COURTS
FOREWORD

The Commission for Environmental Cooperation (CEC) is the only

international organization with the mandate to foster dialogue among

the North American governments with a view to developing recommendations on access to courts and administrative agencies in

transboundary pollution matters.

The CEC’s work in this area is governed by Article 10(9) of the

North American Agreement on Environmental Cooperation (NAAEC),

which directs the CEC Council to address transboundary access to environmental recourses and remedies. This specific provision of the

NAAEC builds on a number of key objectives of the NAAEC, including

strengthening cooperation on the development and improvement of

environmental laws, regulations, procedures, policies and practice, and

enhancing compliance with–and enforcement of–environmental laws

and regulations.

To assist the Council of the CEC to fulfill its obligations under Article 10(9) of the NAAEC, the Secretariat of the CEC has engaged a number

of North American experts to prepare this background report, designed

to provide the governments and the North American public at large

with baseline information on existing domestic recourses and remedies

generally available to citizens seeking environmental redress. The

report also evaluates the potential barriers that some North American

citizens seeking such redress may face as a result of their living on the

“wrong side of the border.”

In the end, reciprocal access to courts seeks to improve environmental justice in North America by ensuring that no citizen is left without a remedy for environmental harm for the sole reason that he or she

lives in a neighboring country and not in the country where the harm for

which redress is sought originates.

The CEC is indebted to the several individuals and organizations

in the three countries who have contributed to this background paper,

including Greg Block, Director, CEC; Linda Duncan and Darlene

211
Pearson, Heads, Environmental Law and Enforcement, CEC; Professors

Victor Blanco, Patrick Borchers, Lorne Giroux, John Knox, Alastair

Lucas, and Steve McCaffrey; Wilehaldo Cruz Bressant, Howard Mann,

Claudia Saladin, Alberto Székely, Esqs., and; the Joint Working Group of

the American Bar Association, Canadian Bar Association and Barra

Mexicana.

Although every effort has been made to ensure the accuracy of this

report, the Commission for Environmental Cooperation, the Government of Canada, the Government of Mexico and the Government of the

United States assume no responsibility for the accuracy or reliability of

the contents of this document. This document is designed to inform participants at a consultative meeting. It does not, and is not intended to,

constitute a legal opinion and should not serve as a basis for any decision

related to any specific lawsuit. Appropriate legal counseling should be

sought in any such circumstance. The views expressed in this report do

not necessarily reflect those of the governments of Canada, Mexico, or

the United States.

The Secretariat of the CEC welcomes comments on this document.

Marc Paquin

Council Secretary and

Program Manager Special Legal Projects

212 TRANSBOUNDARY ACCESS TO COURTS
EXECUTIVE SUMMARY

The North American Agreement on Environmental Cooperation (the

“Agreement” or NAAEC) provides that the Commission for Environmental Cooperation (CEC) shall examine the issue of access to courts

and administrative agencies in other jurisdictions in transboundary pollution matters. Article 10(9) of the Agreement states that the CEC:

shall consider and, as appropriate, develop recommendations on the provision by a

Party, on a reciprocal basis, of access to and rights and remedies before its courts

and administrative agencies for persons in another Party’s territory who have suffered or are likely to suffer damage or injury caused by pollution originating in its

territory as if the damage or injury were suffered in its territory.

This paper provides a survey and background information for the

Parties and the public on the range of issues and concerns associated

with the implementation of Article 10(9) of the Agreement. It describes a

range of situations in which transboundary access might be sought.

These include:

– access to courts to remedy or prevent environmental harm

through civil and common law actions, or based on remedies

provided in environmental laws. This includes actions for damages and actions to prevent harm occurring;

– access to the administrative actions of governments regarding

the administration and implementation of environmental laws;

and

– access to the judicial review of administrative actions in the

environmental area.

The paper briefly describes the various domestic recourses and

remedies generally available to citizens seeking environmental redress

under these categories. Their relevance to the different Parties is seen to

vary, depending on legal tradition and, in some cases, the manner in

which environmental laws are set out and applied.

213
Each description of the identified action or remedy is followed by a

presentation of the potential barriers for transboundary access. These

are categorized under three main themes:

– the local action rule;

– the territorial scope of laws; and

– the residency requirements.

The paper concludes that existing barriers do indeed diminish or

eliminate transboundary access to courts or administrative recourses,

particularly in Canada and the United States. Some of these barriers

arise from common law jurisprudence, such as the local access rule. The

interpretation of federal, state and provincial statutes that address a

range of environmental issues also raises concerns for transboundary

access to courts. These barriers either eliminate or, in some cases, reduce

the access of citizens in the other country to domestic legal and administrative processes.

Although the relatively small number of published decisions on

transboundary environmental harm defy easy characterization, few

jurisdictions appear to provide unrestricted access to all their legal remedies. The paper also shows that several states and provinces have taken

important steps to reduce barriers to equal access in specific areas.

The situation in Mexico is, in some ways, different. Mexico has few

legal obstacles to equal access. Some result from the “legal interest” rule,

upon which Amparo proceedings are based, which implies a degree of

specificity such that in many cases the remedy is inaccessible to potential

claimants. There are also some administrative proceedings and remedies for which it is necessary to be domiciled in the corresponding jurisdiction to be party to legal proceedings. In such cases, the members of

transboundary communities would, in principle, be unable to have

access.

The Annex to the paper describes a number of previous international initiatives aimed at improving transboundary access to remedy or

prevent environmental harm. The potential effectiveness of these examples for the three Parties to the Agreement is then assessed.

214 TRANSBOUNDARY ACCESS TO COURTS
1.0 INTRODUCTION

Pollution knows no boundaries. It can and does cross international

borders, causing harm to the environment as well as to human health

and property.

Although national boundaries do not detain pollution, they do

affect the ability of individuals and governments to address the problems pollution causes. In particular, international boundaries can limit

the domestic laws that protect against environmental harm or provide

for remedies where such harm occurs. While these laws often provide

remedies to persons affected by pollution or other environmental degradation, the remedies may be available only to residents of the country in

which the environmental harm originates, but not to residents of the

country where the impacts are felt. In addition, residents in an affected

country may not be able to pursue remedies in their own country

because it may not have jurisdiction over the polluter. In practice, residents of an affected country may often have no recourse to any domestic

remedies for transboundary environmental harm.

Harm occasioned by cross-border pollution may become the subject of an international claim brought by the government of the affected

country on its citizens’ behalf, in accordance with principles of customary international law. In that case, the governments may agree to resolve

the claim through negotiations or arbitration. The Trail Smelter Arbitration1 is a well-known example of one such resolution of a claim arising

from transboundary pollution between Canada and the United States.

However, international arbitration is expensive, slow, and uncertain. In

addition, transforming an issue between private parties into an international dispute between governments is an inefficient way to address the

issue because, by nature, such disputes are more complex and may be

more difficult to resolve.

215

1. (1938/1941) 3 U.N.R.I.A.A. 1905. The Trail Smelter Arbitration was necessary because

of certain barriers to private actions from transboundary damage. See J.E. Read, “The

Trail Smelter Dispute”, (1963) 1 Canadian Y.B. of International Law 213. As such, if

there had been no barrier to resolution of the problem on the private level, the Trail

Smelter Arbitration would not have occurred.
A number of attempts have been made, by private and intergovernmental organizations and by state and provincial governments, to

allow residents of affected states to enjoy the same legal remedies available to residents of the originating state. These attempts have not led to

the creation of new substantive causes of action. Rather, they have been

designed to provide new procedural rights: to give residents of an

affected country access to whatever remedies the originating country

already makes available to its own residents.

1.1 Purpose of the paper

The North American Agreement on Environmental Cooperation provides, in Article 10(9), that the Commission for Environmental Cooperation (CEC):

shall consider and, as appropriate, develop recommendations on the provision by a

Party, on a reciprocal basis, of access to and rights and remedies before its courts

and administrative agencies for persons in another Party’s territory who have suffered or are likely to suffer damage or injury caused by pollution originating in its

territory as if the damage or injury were suffered in its territory.

This paper provides background information for the Parties and

the public on the range of issues and concerns associated with the implementation of Article 10(9) of the Agreement.

1.2 Structure of the paper

This paper focuses on private access to rights and remedies before

courts and administrative agencies in order to prevent or remedy

transboundary environmental harm, i.e., where the cause of harm originates from one State (the “country of origin”) and the damage is suffered

by residents of another State (the “affected country”). More precisely,

this paper looks at the locally available remedies for environmental

harm and at the potential barriers to their use by residents of one state–

the affected country–when seeking redress in a different state, the country of origin.2

However, this paper does not examine the reverse issue: the ability

to seek remedies in the affected country against a polluter located in a

different country of origin. This approach further raises a number of

216 TRANSBOUNDARY ACCESS TO COURTS

2. While governments may often exercise similar rights to remedy or prevent environmental harm, this paper focuses on the actions that can be initiated by private persons or groups. The discussion is limited to the private initiation of such actions.
significant issues, from the original jurisdiction of the courts to the ability to enforce possible awards.3 Given that such actions do not raise

questions of reciprocal access per se, and are not referred to in Article

10(9) of the Agreement, they are not included here. However, many

experts and commentators believe that this issue is growing in potential

importance and would merit thorough discussion in a separate, but

related, paper.

Following this Introduction, the paper is divided into three main

sections devoted to an analysis of the current situation as it pertains to:

2.0 access to courts;

3.0 access to administrative actions; and

4.0 access to judicial review of administrative actions.

Each section presents the various recourses and remedies generally available to citizens seeking environmental redress, indicating their

relevance to each of the Parties.4

Each description of the identified action or remedy is followed by

an indication of the potential barriers for transboundary access. In

gaining access to the courts or administrative agencies of a foreign

jurisdiction, non-resident plaintiffs will have to establish jurisdiction

in the court where they plan to bring suit. The fact that a plaintiff is a

non-resident may raise special barriers to the jurisdiction of the courts.

These potential barriers are categorized under three main themes: the

local action rule, territorial scope of laws, and residency requirements.

The actual application of these barriers in each of the three Parties–

Canada, Mexico, and the United States–is then considered.

The main text is supplemented by an Annex that provides a review

of past international efforts to develop transboundary access regimes to

redress or prevent environmental damages. This Annex includes a consideration of the relevance of the different approaches to the prevailing

North American context.

TRANSBOUNDARY ACCESS TO COURTS 217

3. Such issues may include personal jurisdiction, service of process, choice of law,

obtaining evidence abroad, and enforcing judgments.

4. For Canada, the analysis is generally limited to the federal level and to two provinces, Ontario and Québec. While the variety of environmental law is much greater

than this in Canada, Ontario and Québec provide a general indication of several

different approaches to addressing transboundary environmental damage issues

and cover common law and civil law regimes.
The first draft of this paper was prepared and reviewed by practicing lawyers in the three Parties, and further reviewed by a Joint Working

Group of the Canadian Bar Association, the American Bar Association

and the Mexican Bar, academics, senior international lawyers, environmental law groups, and representatives of the Parties. It is hoped that

this final version is reflective of this considerable input and of the interest this topic continues to generate.

2.0 ACCESS TO COURTS

This section on access to courts highlights four types of proceedings that might be commenced by a private person or group to either

remedy or prevent environmental harm arising from different types of

pollutants. These are:

2.1 Common law/civil law actions for environmental damages;

2.2 Statute-based civil actions for environmental damages;

2.3 Injunctive relief; and

2.4 Private prosecutions and enforcement actions in courts.

Each of these types of actions will be briefly described in separate

subsections below.

As already noted, this report focuses on the access of private persons or groups to different actions and remedies. The discussion deals

with the initiation of these actions by a private person or group in a court

of competent jurisdiction in order to address a specific pollution situation. In the first three cases, litigation would be directed against the person or facility alleged to have caused environmental damage, or that is

thought likely to be about to cause environmental damage. In the last

case, it might be directed against the private “polluter” or, in some cases,

against the government agency responsible for the enforcement of a

given environmental law.

2.1 Common Law/Civil Law Actions for Environmental Damages

2.1.1 Description

The common law is applicable in the United States, except Louisiana, and in all the Canadian provinces, except Québec. The civil law

system applies in Mexico, the province of Québec and the State of

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Louisiana. Both the common law and civil law systems provide for

recourse to the courts in the event of damage to real or personal property, or injury to an individual.

In an environmental context, common law and civil law actions

can be brought for damages to the physical environment as well as damages to a person’s health and economic damages. Injunctive relief is also

available at common law.5 In the next subsections, a brief description of

the main types of actions applicable to environmental harm in both the

common law and civil law systems is provided.

Canada. In Canada, common law and civil law are matters of provincial, as opposed to federal, jurisdiction.

Mexico. In Mexico, environmental law is a matter of both federal

and state jurisdiction. At the federal level, the Ley General del Equilibrio

Ecológico y Protección al Ambiente (LGEEPA) provides that anyone who

pollutes or degrades the environment, or adversely affects natural

resources or biodiversity, is liable for the damage caused. The LGEEPA

also provides that anyone who misuses environmental information

obtained from the authorities or fails to take proper precautions in the

production, handling, and ultimate disposal of hazardous wastes resulting in soil contamination, is liable for any damage caused. These provisions are complemented by the civil law liability regime, which is by

definition local in nature.6 The Ley de Responsabilidad Civil por Daños

Nucleares provides that civil liability arising from atomic energy use is a

matter of federal jurisdiction, and is governed by the Federal Code of

Civil Procedure. The environmental laws of the various states, replicate

the liability provisions of the LGEEPA, and also rely on the civil law

general liability regime, more specifically on the strict liability and civil

liability provisions of the civil codes of the state and of the Federal

District to complement their provisions.

United States. In the United States, the common law is primarily

found at the state level, though federal common law does exist in a few

areas, including cases involving interstate or international disputes.7

The US Supreme Court, for example, has long applied the federal comTRANSBOUNDARY ACCESS TO COURTS 219

5. For a general description of these rights and remedies in Canada, see Roger Cotton

and Robert Mansell, “Civil Liability for Environmental Damage,” Ch. 18 in Roger

Cotton and Alastair Lucas, eds., Canadian Environmental Law, Second Edition

(Butterworths, loose-leaf edition). For the United States, see William H. Rodgers, Jr.,

Environmental Law, Vol. 1, Ch. 2 (West Publishing, 1986) [hereinafter 1 Rodgers, Environmental Law].

6. Articles 151, 152bis, 159bis(6) and 203 of the LGEEPA.

7. Texas Industries Inc. v. Radcliff Materials Inc., 451 U.S. 630 at 640 (1980).
mon law of interstate nuisance to cases involving transboundary air or

water pollution.8More recently, however, it has held that theClean Water

Act displaces the federal common law of nuisance in the area of water

pollution.9 That decision suggests that the other federal environmental

statutes probably also displace federal common law. In any event, if federal common law is available, it would probably not provide causes of

action that are substantially different from the state common law causes

of action.10

2.1.1.1 Common law remedies for damages in Canada and the United States

Nuisance. The law of nuisance is probably the most important of

the common law causes of action. Traditionally, nuisances have been

private, defined as an unreasonable interference with the use and enjoyment of land. The most common causes of this tort in an environmental

context are air and water pollution, but noise and visual pollution can

also provide the basis for a claim.11

Liability can be created whether or not the person responsible for

the activity was acting lawfully and was taking reasonable care to prevent the harm from occurring.12 The outcome of the case will typically

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8. Georgia v. Tennessee Copper, 206 U.S. 230 (1906); Missouri v. Illinois, 200 U.S. 496

(1906); New York v. New Jersey, 256 U.S. 296 (1920); New Jersey v. New York, 283 U.S.

473 (1930); Illinois v. Milwaukee, 406 U.S. 91 (1972).

9. Milwaukee v. Illinois, 451 U.S. 304 (1981) (ruling that statutory law had eliminated

any federal common law remedies for sewerage over-flows from municipal treatment plants that contaminated the Illinois waters of lake Michigan); Middlesex

County Sewerage Authority v. National Sea Clammers Ass’n, 453 U.S. 1 at 21-22 (1981).

In Middlesex County, the US Supreme Court held that the citizen suit provisions of

the Clean Water Act (CWA) and the Marine Protection, Research and Sanctuaries Act

(MPRSA) preempted the federal common law of nuisance with regard to water pollution and pollution of the ocean. The holding was based on the more comprehensive scope of the regulatory scheme laid out in the CWA and the MPRSA. It seems

likely that in the field of air pollution, which has a similarly comprehensive federal

regulatory structure, federal common law would also be preempted. The Safe

Drinking Water Act has also been held to preempt the federal common law of nuisance; Mattoon v. Pittsfield, 980 F.2d 1 (1st Cir. 1992).

10. Federal courts may also hear “diversity” cases between citizens of different states

or between US and foreign citizens; Judiciary Code, 28 U.S.C. § 1332. In those cases,

the federal courts hear causes of action based on state law, which may include state

common law. The “state law” applied by federal courts sitting in diversity includes

state choice-of-law rules; Klaxon v. Stentor, 313 U.S. 487 (1941). Thus, the federal

court could potentially apply the law of another country, if that law would govern

the issue in question under the state conflicts rule.

11. See, generally, 1 Rodgers, Environmental Law, supra, note 5, §§ 2.1-2.14; Cotton and

Mansell, supra, note 5.

12. Canada (A.G.) v. Ottawa-Carleton (Regional Municipality)(1991), 5 O.R. (3d) 11 (C.A.).
depend on the reasonableness of the pollution, whether it has caused

damage, and the extent of damage. Still, actual damage is not required: it

is sufficient for the plaintiff to have suffered some form of substantial

discomfort or inconvenience.

A public nuisance is created when there is an unreasonable and

substantial interference with a right common to the general public. Nuisance is deemed public when it is so widespread in nature and effect that

it would not be reasonable to expect one person to take proceedings

against those responsible, or in situations where no one individual can

claim to be specially harmed in a manner different from any other person affected. Such actions, because of their public nature, can generally

only be brought by a government authority. An individual affected by a

public nuisance may bring independent action only if he or she suffered

special damage (such as personal injury or property damage) in addition to the damage suffered by the public at large.13 The differences

between these two types of nuisance are narrowing, and it is possible

today for some actions to mix both the private and public components of

nuisance.

Trespass. Trespass may be defined as “any intentional invasion of

the plaintiff’s interest in the exclusive possession of property.” Although

closely related to nuisance, trespass is available only in response to a

direct and immediate physical invasion of property, while nuisance is

available for the indirect effects of pollution as well. As a result, trespass

does not include indirect damage that may arise from the release of contaminants onto a neighbor’s land as a result of the activities underway

on the defendant’s land. This is often the case of pollutants carried onto

property by air or water, or of interference caused by noise or vibrations.14 Nevertheless, to a large extent, trespass and nuisance are coextensive, and courts often apply them together.15

Negligence. The common law doctrine of negligence allows remedies against defendants that have not acted with the degree of care that a

reasonable person of ordinary prudence would exercise in similar circumstances. It covers actions that, while not intentional, violate this

standard of care. To prove liability, a plaintiff must show that the defendant owed a duty of care to the plaintiff and that the defendant’s actions

were the proximate cause of the harm in question. Plaintiffs who can

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13. Ontario recently removed procedural barriers to bringing public nuisance actions

by allowing actions based on common issues of fact and law to be brought by a

group of plaintiffs under the Class Proceedings Act, 1992.

14. Phillips v. California Standard (1960), 31 W.W.R. 331 (Alta. S.C.).

15. See, generally, 1 Rodgers, Environmental Law, supra, note 5, §§ 2.15-2.16.
show, for example, that the defendant’s careless and improper disposal

or handling of hazardous waste harmed them may recover under a

negligence cause of action.16

Strict Liability or the Rule in Rylands v. Fletcher. The common

law also provides that those who carry out abnormally dangerous activities on the property are “strictly liable” for any harm that results from

that activity. This rule is founded on the English case of Rylands v.

Fletcher,17 where it was held that a person who brings onto his land anything likely to do damage to his neighbor if it escapes, is liable for all

damage that is the natural consequence of that escape.

Under strict liability rules, the degree of care taken by the defendant is irrelevant; if the activity causes harmful effects, the defendant is

liable. To date, courts have not established a clear principle to explain

what activities fall within the scope of this rule. However, it is usually

applied only to ultra-hazardous activities with large-scale or catastrophic risks, such as impounding large amounts of water, burning

fields, blasting, and the disposing of toxic wastes.18 The scope of this rule

has also been limited by requiring that the defendant’s use of his land

must have been “non-natural.”19 Again, there is no clear judicial pronouncement on what constitutes a non-natural use of land. A further

qualification added by recent jurisprudence requires that the damage

caused by the activity must have been foreseeable.20

Public Trust Doctrine.Although the public trust doctrine has been

described as “resoundingly vague, obscure in origin and uncertain of

purpose,”21 it enjoys considerable usage in the United States. In general,

the doctrine assumes that the government holds some natural resources

in trust for the benefit of the public and must therefore protect the

resources against “unfair dealing and dissipation.” The courts have

never clearly delineated its scope, but usually confine the doctrine to

submerged lands and navigable waters. Still, some state courts have

long since defined the doctrine to cover a wide range of resources.22 The

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16. See Environmental Law Handbook 13-15 (13th ed., 1995).

17. Rylands v. Fletcher (1866), L.R. 1 Ex. 265 at 279, aff’d (1868), L.R. 3 H.L. 330.

18. See generally, 1 Rodgers, Environmental Law, supra, note 5, § 2.18.

19. Rylands v. Fletcher (1868), L.R. 3 H.L. 330 at 339.

20. Cambridge Water Co. v. Eastern County’s Leather (1994), 1 All E.R. 53 (C.A. and H.L.).

For a case comment see P. Bowal and N. Koroluk, “Closing the Floodgates: Environmental Implications of Revisiting Rylands v. Fletcher”, 4 J.E.L.P. 311 (1995).

21. 1 Rodgers, Environmental Law, supra, note 5, § 2.20 at 156.

22. See J.L. Sax, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial

Intervention”, (1970) 68 Mich. L.R. 471.
doctrine allows only certain “public uses” of the natural resources to

which it applies. The traditional three uses, other than conservation, are

navigation, commerce, and fishing.23

The common law public trust doctrine is not recognized in Canada. However, a similar concept has been created by statute under the

Yukon Environment Act24 and the Environmental Rights Act of the Northwest Territories.25 It is defined to mean the collective interest of the people of such territory in the quality of the environment and the protection

of the environment for future generations. However, the public trust

will extend only to the environment of the territory enacting such legislation, leaving it questionable whether it would extend to considering

transboundary pollution effects.

Riparian Rights. Owners of land bordering on or containing a

water source are entitled to a series of rights known as riparian rights,

which include the right to the natural state of the water flow, a right of

access to the water, and a right to use the water for domestic and certain

secondary purposes, such as industrial purposes. The possessor of these

riparian rights is entitled to bring an action in damages or an application

for an injunction against anyone who unreasonably alters the natural

flow, quantity, or quality of the water.26

In Canada, several provinces have either eliminated these rights or

restricted them to the domestic use of water.27

In practice, riparian rights are similar to the general right to be free

from a nuisance.28

2.1.1.2 Civil law remedies for damages in Mexico and the Province of

Québec29

Civil law regimes in Mexico and the province of Québec also recognize an array of actions that can be applied to environmental damages,

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23. See, generally, 1 Rodgers, Environmental Law, supra, note 5, § 2.20.

24. Yukon Environment Act, S.Y. 1991, c. 5, s. 2.

25. Northwest Territories, Environmental Rights Act, R.S.N.W.T. 1988, c. 83 (Supp.), s. 1.

26. Scarborough Golf & Country Club Ltd. v. Scarborough (City) (1988), 66 O.R. (2d) 257

(C.A.).

27. These provinces include Alberta, British Columbia, Manitoba, Newfoundland,

and Saskatchewan.

28. See generally, 1 Rodgers, Environmental Law, supra, note 5, § 2.19.

29. Generally, the same concepts apply in the state of Louisiana, but the law of that

state has not been reviewed for the purposes of this report.
broadly based on principles of servitude and fault or delict.30 These

actions can include:

Servitudes. The Civil Code of Québec has a recourse based on servitude (or easement) similar to the common law notion of riparian rights.

Owners of land bordering on watercourses or containing surface or

underground water sources cannot impede the natural flow of water or

substantially change the quantity or quality of the water.31 A recourse

based on servitude rights is generally restricted to landowners whose

rights are affected by the activities of an upstream landowner, though

some authors suggest a broader use of public interest rights in maintaining clean water is possible under the new Civil Code of Québec provisions.32

The civil codes of the various states and of the Federal District of

Mexico have a “servitude of drainage” provision which makes the

owner of a dominant tenement responsible for restoring the quality of

water made unsafe, prior to passing it on to the servient estate. As to

other laws governing this resource, flowing bodies of water and the discovery of subterranean sources of water fall within federal jurisdiction

and are subject to certain restrictions.33

Fault or Delict. In Quebec, most of those provisions are found in

the Civil Code of Québec. In broad terms, these impose a duty to act so as

not to cause injury (whether corporeal or material) to another.34 The

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30. For a general review of the law in this area in Québec, see Odette Nadon, “La

responsabilité du pollueur et l’évolution de la notion de faute”, in Développements

récents en droit de l’environnement (1996), Service de la formation permanente du

Barreau du Québec (Cowansville, Éditions Yvon Blais, 1996) at 141-185. For an

overview of the law in this area in Québec under the Civil Code of Lower Canada (now

replaced by the Civil Code of Québec), see Marc Paquin, Le droit de l’environnement et

les administrateurs d’entreprises, Cowansville, Éditions Yvon Blais, 1992, 96 p.

31. Civil Code of Québec, Arts. 979-982; Mexico, Código Civil para el Distrito Federal en

Materia del Fuero Común y para toda la República en Materia del Fuero Federal (or Civil

Code for the Federal District), Arts. 1071-1096.

32. E.g., Anne-Marie Sheahan, “Le nouveau Code civil du Québec et l’environnement”, in Développements récents en droit de l’environnement (1994), Service de la formation permanente du Barreau du Québec (Cowansville, Éditions Yvon Blais,

1994) at 1-28.

33. For example, Article 17 of the Ley de Aguas Nacionales states as follows: In accordance with these regulations, national surface waters shall be freely available for

exploitation and utilization by manual means for household purposes and watering of animals, provided that the course of the respective waterway is not altered

and there is no deterioration in water quality nor any significant reduction in its

rate of flow.

34. Civil Code of Québec, Art. 1457; Art. 16, 837, 840, 1910, and 1915 of the Civil Code for the

Federal District, Diario Oficial, 1 de septiembre de 1932; and, Baja California: Arts.

1979, 1788; Chihuahua: Arts. 1987, 1795; Coahuila: Arts. 1998, 1807; Nuevo León:

Arts. 1779, 1807, 1998; Sonora: Arts. 2284, 2109, 2081; and Tamaulipas: Art. 746.
traditional basis for civil responsibility has been a combination of three

elements: fault, damages suffered, and a causal link between the fault

and the damages. More recently, however, the new Civil Code of Québec

provides that the contravention of normal rules of conduct generally

applicable in the circumstances, as seen in common usage or the law,

constitutes the fault required. Hence, negligence per se may not be

required in such cases.35 In addition, the guardian of a thing is presumed

responsible for any damages caused by that thing, unless he or she can

establish that they acted with all the necessary precautions in the circumstances and was thus not at fault.36

The general notion of civil responsibility also covers cases of the

abuse of rights of ownership with intent to harm others or in a manner

that is excessive or unreasonable,37 as well as cases of negligence where

someone fails to meet the reasonable expectations and standards that

society has set for ownership and use of property.38 It also extends to situations where there is an undue interference with the use and enjoyment

of property, similar to nuisance or trespass under the common law.39 In

Québec, these areas have been largely codified in the new Civil Code of

Québec. In particular, Articles 7 and 976 of the Civil Code provide rights

that are increasingly similar to those of nuisance and trespass under the

common law. The historic reliance on fault as the basis for such actions is

significantly diminished, if not altogether removed from the circumstances a plaintiff must show.40

In Mexico, most civil actions for environmental harm fall under the

general provision of civil liability contained in the civil codes of the

states and Federal District of Mexico, the federal Ley de Responsabilidad

por Daños Nucleares. The Civil Code for the Federal District (which includes

a number of provisions applicable not only to the federal District but to

the entire federation), contains general rules governing the applicability

of Mexican civil law to persons and actions carried out within Mexican

territory. There are provisions in the civil codes of the states and Federal

District which establish a duty to act and use property in a manner

which is not abusive, nor solely designed to cause harm to individuals,

nor harmful to the interests of society. Other provisions provide a right

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35. Civil Code of Québec, Art. 1457. See Nadon, supra, note 30, at 141-158. See also

Laferrière v. Lawson, [1991] 1 S.C.R. 541.

36. This is derived from Art. 1465 of the Civil Code of Québec.

37. Air Rimouski v. Gagnon, [1952] C.S. 149.

38. Drysdale v. Dugas (1896), 26 S.C.R. 20.

39. Canada Paper v. Brown (1921), 63 S.C.R. 243; Lessard v. Bernard, [1996] R.D.I. 210

(C.S.).

40. See the commentary in Nadon, supra, note 30, at 165-175.
of action to obtain reparation for harm caused by actions contrary to law

or accepted custom or due to negligence.41 Such reparation is in keeping

with the damage caused and consists of restoration to the prior state or,

where this is impossible, providing compensation for an injury or damage. The various provisions set out the parameters and procedures for

determining the amount of same.42

Strict Liability. Mexican civil law, as set out in the civil codes of the

states and Federal District, creates a regime called “strict liability” under

which persons (owners or operators, as the case may be) are liable for

harm caused, whether willfully or otherwise, through the use of hazardous goods or the performance of dangerous activities, or resulting from

explosions, the production of fumes or gases, the falling of trees, the

emission of sewage or infectious materials, the impounding of water

causing dampness or leakage, or the movement or weight of machinery.

In the first case (implied risk), civil law makes explicit provision for only

one exemption from liability: namely, in the case where the damage is

due to a fault or inexcusable negligence on the part of the victim. There

are no explicit exclusions for the second case, although the wording of

constitutional provisions on the enforcement of civil law can be construed as allowing the above-mentioned exemption in this case as well.

The new Civil Code in Québec has also moved closer to a direct

expression of a strict liability regime. In particular, Article 7 indicates

that acts done in accordance with statutory or civil rights can still provide a basis for an action in damages when the consequences of the activity lead to damages.43

2.1.1.3 Conclusion

Common law and civil law actions for damages are instigated by

the person suffering the damages, directly against the person alleged to

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41. See Article 12 of the Civil Code for the Federal District; and the indicated articles in the

following state Civil Codes: Baja California (821, 1788, and 1979), Chihuahua (800,

1795 and 1987), Coahuila (830, 1807, and 1998), Nuevo León (830, 1799, 1807, and

1998), Sonoro (1001, 2081, 2109, and 2284) and Tamaulipas (743, 746, 1158, 1159, and

1388).

42. See for example: Articles 14, 17, and 18 of the Ley de Responsabilidad Civil por Daños

Nucleares, as well as the indicated articles in the Civil Codes of Baja California

(1793), Chihuahua (1800), Coahuila (1812), Sonora (2086), and Tamaulipas (1166).

43. Article 7 of the Civil Code of Québec more expressly invokes a regime preventing the

abuse of rights. In an environmental context, this is not identical to a strict liability

regime but has aspects that are similar to it and that may have analogous impacts.
have caused the damage. In general, the remedies available can include

damages and injunctive relief, as well as restoring the situation to its previous state. In some jurisdictions, punitive damages are also available if

the court finds the defendant has committed deliberate wrongdoing.

Under both common law and civil law, the person alleging damage

must be able to link the damage caused with the alleged source of the

damage. The burden of proving the facts on a balance of probabilities is

generally applicable in this context.

In the following subsections, we discuss the potential barriers to

the initiation of common and civil law remedies for damages resulting

from transboundary environmental harm.

2.1.2 Potential barriers to transboundary access to common law

and civil law remedies

Perhaps the most noted common law barrier to actions concerning

environmental damage to land in another jurisdiction is the local action

rule. (It can be noted here that the local action rule does not apply, at least

not with the same vigor, in civil law jurisdictions.) Given the frequency

with which the rule is noted, added detail on it is perhaps warranted.

The local action rule, where it is applied, requires plaintiffs to bring

actions concerning real property only where the land is located. Therefore, an owner of land located in a foreign jurisdiction may have to overcome the local action rule in order to bring an action in the country where

the activity causing harm originates.

The rule originated as a common law doctrine in England, probably in the fourteenth century, on the assumption that questions relating

to title to or possession of land could only be adjudicated in the jurisdiction where the land was located. However, English courts also applied

the rule to actions for damages to real property, even where the central

issue was not related to title or possession.

Courts and commentators have criticized the broad application of

the rule to such actions because it allows a defendant that causes damage

to land to escape liability if the defendant is not in the jurisdiction where

the land is located.

Nevertheless, common law jurisdictions in the United States and

Canada adopted the local action rule. Although the trend in the United

States is to limit the rule to actions involving title to or possession of

TRANSBOUNDARY ACCESS TO COURTS 227
property, many US states and all Canadian common law provinces still

apply the rule to actions for harm to real property.44

The English common law recognized that the local action rule is

particularly inequitable when an action in one jurisdiction injures land

located in another. Therefore, for those cases, English courts created an

exception to the rule under which the injured person may bring a cause

of action in either of the two jurisdictions.45 If North American courts

were to uniformly follow this exception, the local action rule would not

bar actions for international transboundary environmental harm.

In Mexico, the rules for establishing which court has jurisdiction to

hear a given case depend, in the case of so-called real actions (involving

property, possession, servitudes, and damage to real assets), on the

place where the property is located. In the case of “personal” actions

involving credit instruments and rights with respect to personal property, however, the link is to the place in which the complainant is domiciled. The extent to which the local action rule applies in the United

States and areas of Canada outside Québec varies between the different

states and provinces.

In addition to the local action rule, some jurisdictions require

plaintiffs in a suit to be residents of the jurisdiction where they bring a

suit. Whereas the local action rule applies to the geographic location of

the property that is damaged, any residency requirements would apply

to the geographic location of the person bringing the legal action.

A related issue is the doctrine of forum non conveniens, which is the

right of the court to decline jurisdiction, even when venue is proper, if it

appears that for the convenience of the litigants and witnesses, and in the

interests of justice, the action should be instituted in another jurisdiction.

Thus, where an injury occurs in one jurisdiction as a result of activities in

another, the court where the activity occurred could conceivably dismiss

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44. The strict Canadian interpretation of the rule differs from the situation in Great

Britain, where the rule is no longer applied to such actions. See J.G. Collier, Conflict

of Laws, 2nd ed. (Cambridge: Cambridge University Press, 1994) at 261, where the

author cites section 30 of the Civil Jurisdiction and Judgments Act of 1982, which

allows British courts to entertain jurisdiction in proceedings in trespass or other

tort to real property situated outside Great Britain in cases where no questions of

title to or possession of that property arise. In the United States, however, the willingness of courts to exercise jurisdiction beyond the territorial boundaries of the

state where they are located–so called “Long-arm” jurisdiction–has expanded, and

US plaintiffs have been increasingly able to avoid much of the apparent inequity of

the rule by establishing jurisdiction over an absent defendant in the place where the

harm occurred. Friedenthal, Kane & Miller, Civil Procedure, § 2.16 (1985).

45. Bulwer’s Case (1584), 7 Coke 1a, 77 E.R. 411 (Lord Coke).
for forum non conveniens if it feels that convenience or the interests of

justice would be better served by bringing the suit where the injury was

sustained. Forum non conveniens assumes there are at least two courts

with potential jurisdiction.

2.1.3 Application in Canada

Local Action Rule. Canadian courts in the common law provinces

have to date strictly adhered to the local action rule by relying on the

leading British case46 from the nineteenth century on jurisdiction with

respect to actions for injury to foreign real property.47 Although the British case applied to a fact situation that involved both trespass and questions of title to the foreign land, Canadian courts have adopted and

applied the rule even in situations where no such issues arose.48 The rule

under this broad application arguably applies to any tort situation

where there is injury to foreign realty. The exception adopted by English

courts in Bulwer’s Case has been specifically rejected by Canadian

courts.49 In addition, Canadian courts will also decline to exercise jurisdiction in cases involving damage to personal property if such damages

were caused indirectly through damages to the real property on the

basis that lack of jurisdiction over the damages to realty excludes jurisdiction over consequential damages to personal property.50 Only if injuries to a person’s health are a direct consequence of the polluting action

will the courts entertain jurisdiction.51

Four provinces (Manitoba, Nova Scotia, Ontario, and Prince

Edward Island) have removed the local action rule by enacting the Uniform Transboundary Pollution Reciprocal Access law into their jurisdicTRANSBOUNDARY ACCESS TO COURTS 229

46. British South Africa Co. v. Companhia de Mocambique, [1893] A.C. 602 (H.L.).

47. Godley v. Coles (1988), 39 C.P.C. (2d) 162 (Ont. Dist. Ct.).

48. Albert v. Fraser Cos. (1936), [1937] 1 D.L.R. 39 (N.B. C.A.). In this case, a Québec

plaintiff sued in a New Brunswick court for damage resulting from flooding to his

land and personal property in Québec. The damage was allegedly caused by the

defendant’s negligence in allowing logs to dam a river in New Brunswick. The

court declined to exercise jurisdiction stating that “the moment it appears that the

controversy relates to land in a foreign country our jurisdiction is excluded.” In the

court’s view, the local action rule applies irrespective of whether title to land is in

question.

49. Ibid. The judgement specifically rejects the exception propounded by Bulwer’s Case.

50. Albert v. Fraser Cos., supra, note 48. See also Brereton v. Canadian Pacific Railway

(1898) 29 O.R. 57 (H.C.). In this case, sparks from one of the railroad company’s

engines caused damage, in another province, to the plaintiff’s house and its contents. The principal complaint being about the house, the court refused to sever and

entertain the action.

51. See Boslund v. Abbotsford Lumber, Mining & Development Co., [1925] 1 D.L.R. 978

(B.C. S.C.).
tions. Under this legislation, persons of a foreign jurisdiction can sue in

the court where the damage originates even if the damage is to property

in another jurisdiction, as long as the foreign jurisdiction provides similar rights of access in the reverse circumstances.52

The province of Québec, as a civil law jurisdiction, is not bound by

the common law local action rule. Québec courts have jurisdiction over

immovable property situated within provincial territorial limits. This

principle, as well as its corollary that immovable property situated outside Québec is governed by the law of the country in which it is located,

was previously codified in the Civil Code of Lower Canada at Article 3097.

Thus, this article recognized the reluctance of Québec courts to adjudicate matters relating to land in foreign jurisdictions, and acted as a near

equivalent to the local action rule.53

However, recent changes brought about in the new Civil Code of

Québec have broadened the jurisdiction of the province’s courts. The

new Civil Code grants jurisdiction to its courts in personal actions for

damages under any one of four circumstances:

– a fault was committed in Québec;

– damage was suffered in Québec;

– an injurious act was committed in Québec; or

– the defendant is domiciled or resident in Québec.54

This alters the former restrictive rule that required that the “whole

cause of action” (i.e., all elements of fault, damage, and causality) arise

in the judicial district where the action is brought.55 The new Civil

Code considerably broadens the Québec courts’ competence in

transboundary matters by requiring that only one of the elements of the

cause of action be in Québec. Therefore, an injurious act committed outside Québec, which causes harm in Québec and thus giving rise to a personal action for damages to land, would be sufficient to give the Québec

courts jurisdiction, making previous Québec law equivalent to the local

action rule no longer applicable.

230 TRANSBOUNDARY ACCESS TO COURTS

52. The nature and origin of the Uniform Transboundary Pollution Reciprocal Access

statutes is reviewed in Annex I to this paper.

53. W.S. Johnson, Conflict of Laws, 2nd ed. (Montreal: Wilson & Lafleur, 1962) at

485-487.

54. Civil Code of Québec, Art. 3148(3); Morissette v. Entreprises de systèmes Fujitsu du

Canada Inc., [1994] R.J.Q. 976 (S.C.).

55. Code of Civil Procedure, R.S.Q., c. C-25, art. 68(2) [hereinafter “C.C.P.”].
Residency Requirements.With regard to residency requirements,

both residents and non-residents are equally entitled to sue and be sued

under the laws of Canada. Traditional common law rules, reflected in

procedural statutes, have held that nationality or residency of a plaintiff

is irrelevant when the courts otherwise have jurisdiction.56 It has been

argued that this principle has been incorporated into the Canadian Charter of Rights and Freedoms,57 which applies throughout Canada. Section

15(1) of the Charter provides that every individual “is equal before and

under the law and has the right to equal protection and equal benefit of

the law without discrimination and, in particular, without discrimination based upon ... national or ethnic origin.” Although dealing with

notions of citizenship rather than residency, the Charter, it is argued,

would grant to foreign plaintiffs (who may be non-residents) the same

rights of access to Canadian courts and Canadian law as Canadian citizens (who may be residents) have.58

In the province of Québec, Article 57 of the Code of Civil Procedure

provides that any person or corporation domiciled outside Québec, who

is authorized by the law of his domicile to appear in judicial proceedings, may do so before the courts of Québec.59 The capacity to appear is

the rule, and incapacity the exception.60 The foreign plaintiff may be

required, however, to furnish security for the costs resulting from suit.61

In Ontario, the Rules of Civil Procedure do not explicitly mention

the right to access of a foreign plaintiff. However, Rule 56.01(1), which

deals with security for costs, states that the court may make an order for

security where “the plaintiff or applicant is ordinarily resident outside

Ontario.”62 This implies that a non-resident and/or a foreign plaintiff

has the legal capacity to appear in judicial proceedings in Ontario.

TRANSBOUNDARY ACCESS TO COURTS 231

56. See the discussion in Paul Muldoon, Cross-Border Litigation: Environmental Rights in

the Great Lakes Ecosystem (Toronto, Carswell, 1986) at 37-38.

57. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the “Charter”].

58. Muldoon, supra, note 56, at 37.

59. For commentary see, J.-G. Castel, Droit international privé québécois (Toronto,

Butterworths, 1980) at 765-766; D. Ferland and B. Émery, Précis de procédure civile du

Québec, 2 volumes, 2nd ed. (Cowansville, Éditions Yvon Blais, 1994), vol. 1 at 69.

60. Montana v. Développements du Saguenay, [1977] 1 S.C.R. 32 at 36; see Ferland and

Emery, supra, note 59, Ibid.

61. Article 65 Code of Civil Procedure.

62. See the case law reported in G.D. Watson and M. McGowan, Ontario Civil Practice

1996 (Toronto, Carswell, 1996) at 809-811. See also the two following cases concerning the examination of non-resident plaintiffs (Rule 34.07): Groner v. Lake Ontario

Portland Cement Co. [1958] O.W.N. 469 (H.C.); Dow v. Brady, [1944] O.W.N. 633

(H.C.).
Common law and procedural legislation relating to judicial

proceedings do generally allow for the application of the forum non

conveniens doctrine. Québec, for example, does allow for the discretion

of the court to be exercised on this basis as a codified exception to the

requirement to accept jurisdiction where it is otherwise available.63

2.1.4 Application in Mexico

Local Action Rule. In the case of Mexico, a distinction must be

made based on the type of action. If the action relates to real property,

judicial competence is determined on the basis of the place in which the

property is located.64 In all other civil liability actions, the courts wherein

the defendant is domiciled have jurisdiction.

Residency Requirements. There are no residency requirements

under Mexican legislation that might discriminate against foreigners

seeking redress through appropriate civil actions for damage relating to

the environment.65

There is no equivalent in Mexico to forum non conveniens. According to the Federal Code of Civil Procedure (Article 14) and corresponding provisions of the Codes of Civil Procedure of the states, no tribunal

may deny to adjudicate a case if it has jurisdiction under the applicable

laws.

2.1.5 Application in the United States

Local Action Rule. Common law states of the United States66 may

have initially adopted the local action rule as part of their common law,67

232 TRANSBOUNDARY ACCESS TO COURTS

63. Civil Code of Québec, Art. 3135.

64. Art. 13(III) of the Civil Code for the Federal District; Art. 24 of the Federal Civil Code

of Procedures; Art. 1576 of the Civil Code of Procedures of Baja California; Art. 155

of the Civil Code of Procedures of Chihuahua; Art. 156 of the Civil Code of Procedures of Coahuila; Art. 111 of the Civil Code of Procedures of Nuevo León; Art. 109

of the Civil Code of Procedures of Sonora; Art. 192 of the Civil Code of Procedures

of Tamaulipas.

65. Art. 44 of the Civil Code of Procedures for Baja California; Art. 60 of the Civil Code

of Procedures for Chihuahua; Art. 44 of the Civil Code of Procedures for Coahuila;

Art. 9 of the Civil Code of Procedures for Nuevo León; Art. 41 of the Civil Code of

Procedures for Tamaulipas.

66. Every state but Louisiana.

67. See. e.g., Livingston v. Jefferson, 15 Fed. Cas. 660, No. 8411 (C.C.D.Va. 1811) in which

Chief Justice Marshall, sitting at circuit, applied the local action rule to bar an action

in Virginia for trespass to land in Louisiana, even though questions of title were not

involved.
but most states long ago incorporated it into their venue statutes.68 Virtually all state venue statutes still require actions concerning title to land

to be brought in the jurisdiction in which the land is located. The statutes

vary, however, in whether they apply the local action rule to claims for

trespass or other harm to land located in another jurisdiction.

Of the US states bordering Canada or Mexico, eight have venue

statutes that require actions for injuries to land to be brought in the jurisdiction (usually, the “county”) where the land is located: Arizona,

California, Idaho, Montana, North Dakota, Texas, Vermont, and Washington.69 The other ten border states70 do not retain this requirement for

actions for injuries to land. In those states, such actions are usually subject to the general venue rules, which typically allow actions to be

brought where the defendant resides or the cause of action arose.71 New

York is the only border state that expressly provides for jurisdiction over

injuries to land outside the state.72 In addition, Montana has enacted the

Uniform Transboundary Pollution Reciprocal Access Act, which would

appear to allow non-residents access to Montana courts despite the

Montana venue statute.73

The local action rule has been widely criticized in the United

States.74 In general, courts in the twentieth century have been reluctant

to apply the local action rule to actions that are not directly related to title

to property, even when interpreting venue statutes that provide that

injuries to land must be brought in the county where the land is located.

Many state courts have been quite willing to interpret “injury to land”

cases as either tort or contract as a way of avoiding unjust application of

the local action rule.75 In the only reported court case where the local

TRANSBOUNDARY ACCESS TO COURTS 233

68. Venue statutes determine where within a state a case should be heard. Usually the

same venue statute will designate a particular county within the state. More than

one county within a state may have jurisdiction, but generally only one will have

venue.

69. Ariz. Rev. Stat. § 12-401(12); Cal. Civ. Proc. Code § 392(1)(a); Idaho Code § 5-401;

Mont. Code § 25-2-123; N.D. Cent. Code § 28-04-01; Tex. Civ. Prac. & Rem. Code

§ 15.011; 12 Vt. Stat. § 402(a); Wash. Rev. Code § 4.12.010(1).

70. These are Alaska, Maine, Michigan, Minnesota, New Hampshire, New Mexico,

New York, Ohio, Pennsylvania, and Wisconsin.

71. See, e.g., Alaska Stat. § 09.05.015; Wis. Stat. § 801.50(2). New Mexico expressly

allows suits for trespass to land to be brought where either the plaintiff or defendant resides, or the cause originated; N.M. Stat. § 38-3-1(E).

72. N.Y. Civ. Prac. L. & R. § 302.

73. Mont. Code §§ 75-16-101 to 75-16-109. See Annex I, Section C, for a discussion of the

Uniform Transboundary Pollution Reciprocal Access Act.

74. See, e.g., Restatement (Second) of the Law, Conflict of Laws (1969) § 87, comment a.

75. See, e.g., North Valley Water Association v. Northern Improvement Company and Fireman’s Association, 415 N.W.2d 492 (1987) (North Dakota venue statute provided

that actions for injuries to real property must be brought in the county where the
action rule is discussed in connection with a transboundary action, the

court did not use the rule to bar the non-resident plaintiff’s claim.76

State courts have developed three possible exceptions that a plaintiff might invoke to avoid the application of the local action rule. First,

some courts have held that when an action for injury to land is combined

with another action to which the local action rule would not apply, the

rule does not apply to the combined actions (e.g., where questions of

injury to land are also combined with questions of tort or contract).77

Second, two often-cited decisions78 have held that the local action

rule, even when contained in the state’s venue statute, should only apply

to injuries to land within the state. In other words, an action for injury to

land located in a county of the state would have to be brought in that

county, but an action for injury to land located outside the state could be

brought in any county of the state. These decisions, however, have not

been universally followed. More importantly, neither of the decisions

concerns injury to land outside the United States, and one of the decisions strongly suggests that the local action rule should apply to such

cases.79

Third, plaintiffs might try to invoke the exception to the local

action rule set out in Bulwer’s Case. As noted above, this exception allows

234 TRANSBOUNDARY ACCESS TO COURTS

property is located; the case involved a dispute over damage that had occurred in

the construction and installation of an underground water pipeline; the court

found the dispute to be one over breach of contract and not damages to real property and allowed suit in the county where defendant had its principle place of business, which was not where the pipeline was buried); Mueller v. Brunn, 105 Wis. 2d

171, 313 N.W.2d 790 (1982) (Wisconsin venue statute provided that civil actions for

injury to real property were to be brought in the county where the land was situated; court found contamination of a well on the property was not “injury to property,” but rather an action in tort, and the court did not require the suit to be

brought in the county where the property was located); Silver Surprize v. Sunshine

Mining Company, 74 Wash. 2d 519; 445 P.2d 334 (1968) (Washington courts found to

have jurisdiction over a mine in Idaho, because the relief that plaintiff sought was

related to recovery for breach of contract; the court did not find the fact that defendant’s answer placed the question of title incidentally into issue was sufficient to

displace the court’s jurisdiction pursuant to the local action rule, as codified in the

venue statute); In re School Asbestos Litigation, 921 F.2d 1310 (3d. Cir. 1990) (Federal

appeals court rejected defendant’s claim that the local action rule applied to asbestos damage to property because it raised only issues of tort and did not put the

question of title to the property in issue).

76. Armendiaz v. Stillman, 54 Tex. 623 (1881).

77. See, e.g., Raphael J. Musicus Inc. v. Safeway Stores Inc., 743 F.2d 503 (7th Cir. 1984), in

which the Court construes Illinois law.

78. Reasor-Hill Corp. v. Harrison, 249 S.W.2d 994 (Ark. 1952); Little v. Chicago, St.P., M. &

O.R.R., 67 N.W. 846 (Minn. 1896).

79. Reasor-Hill Corp. v. Harrison, 249 S.W.2d 994 (Ark. 1952).
victims of transboundary harm to bring an action in the jurisdiction

where the harm originated as well as in the jurisdiction where the land is

located. Some state courts incorporated the exception into their common

law.80 Furthermore, in an important nineteenth century case, the Texas

Supreme Court said that the Bulwer’s Case exception would allow a

plaintiff whose land in Mexico was harmed by an action in Texas to

bring suit in Texas.81

Unfortunately, it is not clear whether the Bulwer’s Case common

law exception is relevant to the local action rule as it is now codified in

states’ venue statutes. None of the border states’ venue statutes explicitly provides an exception to the local action rule for transboundary

harm. One might argue that the venue statutes were intended to incorporate the existing common law exceptions to the local action rule but, in

the absence of any reported cases, it is unclear whether this argument

would succeed.

However, even in the border states with venue statutes that seem

to fix venue in the county of the injured real property, serious questions

might be raised as to the applicability of these venue statutes to

transboundary pollution cases. California’s statute, for instance, provides that in cases involving “injuries to real property” the “county in

which the real property is situated, is the proper county for trial.”82 Such

a provision seems to assume that there is some California county that

contains the real estate in question. If no California real estate is injured,

the action might well be covered by the more typical, general venue provisions that allow for venue, inter alia, in the place of the defendant’s residence,83 which in the case of a corporation is its principal office.84

Moreover, even in states with apparently strict venue statutes, courts

have allowed plaintiffs to choose between counties if realty in more than

one county is injured.85 In the case of transboundary air pollution, for

example, realty in both the source and affected nations would surely

be injured, and this principle of plaintiff choice should allow for the

venuing of such an action at its source.

TRANSBOUNDARY ACCESS TO COURTS 235

80. See Restatement (Second) of the Law, Conflict of Laws (1969) § 87 comment c, Bulwer’s

Case, supra, note 45; Thayer v. Brooks, 17 Ohio 489 (1848).

81. Armendiaz v. Stillman, 54 Tex. 623 (1881). The Court’s discussion of this point was

dicta, however, because the Court based its decision on the Texas venue statute,

which the Court held did not apply the local action rule to a cause of action for trespass.

82. Cal. Code Civ. Proc. § 392(1)(a).

83. Cal. Code Civ. Proc. § 395(a).

84. See, e.g., Jenkins v. California Stage Co., 22 Cal. 537.

85. See, e.g., McClatchy v. Laguna Lands Ltd., 32 Cal.App. 718, 164 P. 41 (1917).
It is also important to note that state court litigation is likely to be

the exception, not the rule, in the United States. In most cases of a foreign

national suing in the United States on a transborder pollution action, the

federal courts will have concurrent jurisdiction either because federal

law provides the right of action86 or because the foreign nationality of the

plaintiff creates alienage jurisdiction.87 In cases that proceed in federal

court, state venue statutes are irrelevant, as federal courts are governed

by their own venue laws.88 One federal venue statute does make reference to the local action rule by providing that “[a]ny civil action, of a

local nature, involving property located in different districts in the same

state, may be brought in any of such districts.”89 It is clear, however, that

whatever vestiges of the local action rule might exist for federal court litigation, the rule does not apply to actions for injury to real property.90

Thus, for cases in federal court–surely the majority of transboundary

pollution cases likely to be pursued in the United States–the local action

rule is no limitation on venue.

In summary, the local action rule survives in a limited form in the

United States, and might be an occasional obstacle to the pursuit in state

court of a transboundary pollution case by a foreign plaintiff. However,

even in those states with strict venue statutes that appear to codify the

local action rule, it is likely that plaintiffs will be able to venue cases at the

source of the pollution. For federal court actions–the more likely forum

for such cases–the local action rule is no obstacle, as it does not apply to

property damage claims.

Residency Requirements. There are no particular residency

requirements for a plaintiff to bring suit under the common law in the

United States. Non-resident plaintiffs may actually have greater access

to the federal courts in common law causes of action because, under the

courts’ federal diversity jurisdiction, the federal district courts have

original jurisdiction in cases between citizens of a state of the United

States and citizens or subjects of a foreign state, provided the amount in

controversy exceeds $ 75,000.91

236 TRANSBOUNDARY ACCESS TO COURTS

86. 28 U.S.C. § 1331 (giving federal court jurisdiction in all cases “arising under” federal law).

87. 28 U.S.C. § 1332(a)(2),(3).

88. See, e.g., 28 U.S.C. §§ 1391, 1392.

89. 28 U.S.C. § 1392.

90. See, e.g., In re School Asbestos Litigation, 921 F.2d 1310, 1319 (3d Cir. 1990), cert. denied

111 S.Ct. 1623 (1991) (property damage actions are transitory and not limited by the

local action rule); Central Wesleyan College v. W.R. Grace & Co., 143 F.R.D. 628 at 639

(D.S.C. 1992) (same).

91. 28 U.S.C. § 1332. Typically the federal courts in the United States hear issues of federal law. However, federal courts also have what is called diversity jurisdiction.
In general a resident plaintiff’s choice of forum is given great deference by US courts. In the case of a non-resident plaintiff, however, the US

Supreme Court has held that their choice of the United States as a forum

is not given the same deference to which it would be entitled if they were

US residents.92 In In re Union Carbide Corporation, the court dismissed the

case of a group of Indian plaintiffs bringing suit against a US corporation

in federal district court for harm occurring in India on forum non

conveniens grounds. Likewise, in Piper Aircraft Co. v. Reyno, the court

dismissed on forum non conveniens grounds in a product liability suit

involving Scottish plaintiffs (real parties in interest) for wrongful death

against US defendant manufacturers. Although these cases indicate that

the courts can treat non-resident plaintiffs differently from a resident

plaintiff in deciding motions to dismiss on the basis of forum non

conveniens, they do not directly address the issue of transboundary

harm. This is because each of these cases addresses damage whose

immediate cause and effect were both in a foreign jurisdiction. Presumably, where the United States is the origin of the harm that is the subject

of the suit, plaintiffs would be on stronger grounds to contest a defendant’s motion to dismiss on forum non conveniens grounds.93

2.2 Statute-based Civil Actions for Environmental Damages

2.2.1 Description

Canada. At the federal level, creating civil causes of action is

mainly outside the scope of federal jurisdiction. It is, therefore, only by

way of exception that statute-based actions for environmental damage

TRANSBOUNDARY ACCESS TO COURTS 237

The basis for the court’s jurisdiction in a diversity case is the fact that the parties are

either citizens of different states, for example, New York and Connecticut, or one of

the parties is a citizen of the United States and the other is the citizen or subject of a

foreign state. Diversity suits, as they are called, need not deal with any issues of federal law. The federal court will apply the law of the state where they are located,

including choice of law rules. In order to bring a case under federal diversity jurisdiction there must also be at least $ 75,000 in controversy. This jurisdictional

amount is periodically amended upwards by Congress.

92. In re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December 1984,

809 F.2d 195 at 198 (2nd Cir. 1987, cert. denied), citing Piper Aircraft Co. v. Reyno, 454

U.S. 235 at 256. For surveys of US law on this point as it applies to environmental

actions, see Clagett, Comment, “Forum Non Conveniens in International Environmental Tort Suits: Closing the Doors of U.S. Courts to Foreign Plaintiffs”, 9 Tul.

Envtl. L.J. 513 (1996); White, Comment, “Home Field Advantage: The Exploitation

of Federal Forum Non Conveniens by United States Corporations and its Effects on

International Environmental Litigation”, 26 Loy. L.A. L. Rev. 491 (1993).

93. Cases in which the only environmental harm is alleged to have occurred outside the

United States, and in which plaintiffs are all foreign, are very likely to be dismissed

on forum non conveniens grounds. See, e.g., Sequihua v. Texaco Inc., 847 F.Supp. 61

(S.D. Tex. 1994) (case dismissed on forum non conveniens grounds where all harm
can be created federally. The primary basis for this exception would be

that the damages provisions are ancillary to the substantive prohibitions

and limitations in the statute and act as a means to support their effective

operation.

The Canadian Environmental Protection Act (CEPA) establishes a

civil cause of action for losses or damage suffered as a result of conduct

contrary to the Act or its regulations.94 The defendant must be the person

responsible for the conduct. The claim that can be recognized by the

court is for the amount of loss or damage actually suffered, an amount to

compensate for the costs of an investigation of the matter and costs in the

legal proceedings under this provision. There is no recorded case of this

provision having been used to date.

The Fisheries Act also sets out a more limited civil liability provision.95 Section 42(3) of the Act establishes the civil liability on the part of

any person who illegally deposits a deleterious substance in water frequented by fish that subsequently causes economic harm to fishermen.

The plaintiff under this section must be a licensed fisherman and must

establish that the loss was a result of the deposit of the substance or of a

closure of the fishery by the authorities as a result of the deposit. Costs

for the action to recover damages are also recoverable.

The International Boundary Waters Treaty Act appears to include a

very broad federal cause of action for damages caused in the United

States by changes in water quality or quantity originating in Canadian

waters.96 Stemming from the 1909 Boundary Waters Treaty between

Canada and the United States, section 3 of this Act incorporates the provisions of the treaty into Canadian law. Section 4 then makes remedies

available in the Federal Court of Canada for damages suffered in the

United States that originate in Canada on the same basis that they would

otherwise be available for a purely domestic damage claim under provincial laws. There is little doubt that changes in water quantity leading

to damages, including environmental damages from changes in water

flow, are a basis for a cause of action before the Federal Court of Canada

under this statute. Doubt remains as to whether damages resulting from

238 TRANSBOUNDARY ACCESS TO COURTS

alleged to have occurred in Ecuador, all plaintiffs Ecuadorian, and court found that

attempting to hear the case would interfere with Ecuador’s jurisdiction to enforce

its own environmental laws).

94. Canadian Environmental Protection Act, R.S.C. 1985, c. 16 (4th Supp.), as amended,

Art. 136(1). Art. 137 provides that the inclusion of this civil remedy provision shall

have no effect on any other civil rights or remedies under any other statute, common law or civil law.

95. R.S.C. 1985, c. F-14, as amended.

96. R.S.C. 1985, c. I-17. The Treaty itself is appended as a schedule to the Act.
pollution emanating in Canada can also found a cause of action.97 As no

cases have been reported in Canada on the use of this remedy, its full

scope remains unclear. What is clear, however, is that for an action

within its proper scope, the legislation ensures equal treatment for a foreign and domestic plaintiff. The Act does not remove other possible remedies at common or civil law, or pursuant to statutes.

The Canada Shipping Act has a limited field of operation as it relates

to environmental damages.98 It incorporates the provisions of the International Convention on Civil Liability for Oil Pollution Damage of 1969 and

the Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of 1971. The Act establishes an exclusive set

of remedies against shipowners for oil pollution. The liability of the ship

owner for oil-pollution damage extends to oil pollution damage from

the ship, all costs for cleanup, prevention, repair, etc. of oil pollution

damage, and related monitoring or other costs. The liability is strict liability under the Act.99 However, shipowners can avoid direct liability by

participating in the fund mechanism set up by the International Fund for

Compensation for Oil Pollution Damage, which then takes on the liability pursuant to the Act.

Some environmental legislation creates causes of action for environmental damage resulting from conduct that is in breach of the legislation or otherwise impacts on the environmental quality of others’

property or rights. This differs from a traditional common law or civil

law remedy for environmental damages in that the statute provides a

specific basis for the action, as well as the limitations of when the action

can be used.

One might also note here that many jurisdictions now provide, in

their environmental statutes, for the repayment of cleanup costs to government agencies following a spill, in particular as part of the sentencing

process after a prosecution. These types of awards are based on the public duties of the government to respond to a dangerous situation. They

are beyond the type of private, statutory-based cause of action for damages discussed here.

Where a statutory right of action is found, one must look at the statute carefully to establish whether it covers, in particular, plaintiffs from

TRANSBOUNDARY ACCESS TO COURTS 239

97. These issues are more fully addressed in Muldoon, supra, note 56, at 118-122, and

the sources cited therein.

98. Canada Shipping Act, R.S.C. 1985, c. S-9, as amended. See Part XVI.

99. See s. 677 of the Act.
outside the jurisdiction and the environment outside the legislating

jurisdiction.

Provincial environmental statutes are increasingly including civil

causes of action for environmental damages. In Ontario, for example, the

Environmental Bill of Rights provides individuals a right of action to

protect public resources from damage resulting from the breach of environmental protection laws.100 This essentially expands the role of the

provincial Attorney General under common law public nuisance rules

by allowing individuals to sue to protect or for damages to public

resources.101

For its part, Ontario’s Environmental Protection Act includes provisions for private civil damage actions resulting from an environmental

contaminant spill. The damages allowed for here were among the first to

include economic losses as well as direct property or personal damages.102

Québec’s Environmental Quality Act does not, however, contain a

similar type of civil liability regime, relying instead on the continued

role of the Civil Code of Québec for civil actions for damages. (The Act

does, however, set out a special regime for injunctive relief, which is

discussed below.)

Mexico. In Mexico, environmental civil liability provisions are

found in federal laws as well as in the laws of each state and of the Federal District. At the federal level, a distinction is made between civil liability actions that are heard before federal courts, those that are referred

to the jurisdiction of courts in the states and the Federal District (based

on where the property is located or where the defendant is domiciled,

according to the type of action brought), and those arising under the Ley

de Responsabilidad Civil por Daños Nucleares, which fall within federal

jurisdiction and are subject to the Federal Code of Civil Procedure. In the

case of civil liability falling under the LGEEPA and referred to the civil

codes of the states and Federal District, there are three main statutory

causes of action for such liability: a generic provision (Art. 203 of the

LGEEPA) concerning pollution, environmental degradation, and harm

to natural resources or biodiversity; and two specific causes of action,

one relating to environmental information provided by the authority to

240 TRANSBOUNDARY ACCESS TO COURTS

100. Environmental Bill of Rights, 1993, S.O. 1993, c. 28, s. 84.

101. A fuller description can be found, inter alia, in Dianne Saxe, ed., Ontario Environmental Protection Act Annotated, Vol. 3 (Canada Law Book, loose-leaf edition), pp. EBR 62

ff.

102. Environmental Protection Act, R.S.O. 1990, c. E-19, as amended, s. 99.
private parties (Art. 159bis of the LGEEPA), and the other concerning

hazardous waste (Arts. 151 and 151bis of the LGEEPA). At the local level,

the environmental laws of the states and Federal District, complemented

by the civil codes, regulate civil liability in environmental matters.

Therefore, civil liability with respect to environmental questions

are handled at two levels. At the federal level there are, on the one hand,

provisions for referring matters to the civil legislation of the states and

Federal District, and on the other hand the Ley de Responsabilidad Civil por

Daños Nucleares. Civil liability actions brought at the federal level and

governed by the civil law of the states and Federal District, may arise

from:

– improper use of information which the environmental authority has provided on request under the Sistema Nacional de

Información Ambiental [National Environmental Data System]

(Art. 159bis6 of the LGEEPA);

– the production, handling or ultimate disposal of hazardous

wastes, or contamination of soil due to such wastes (Arts. 151

and 152bis of the LGEEPA);

– acts of pollution, environmental degradation, or impairment of

natural resources or biodiversity (Art. 203 of the LGEEPA).

The competent jurisdiction is that of a state or the Federal District,

and actions are prosecuted in accordance with the applicable Code of

Civil Procedure of the state or Federal District. The Ley de Responsabilidad

Civil por Daños Nucleares establishes a regime of strict liability with

regard to harm resulting from nuclear energy,103 the only exemption

being cases where the victim causes or contributes to such injury

through inexcusable negligence or a willful act or omission. The competent jurisdiction is federal district courts, and actions are prosecuted in

accordance with the Federal Code of Civil Procedure.

At the local level, the environmental laws of the states and Federal

District, complemented by the general civil law liability regime, provide

for environmental liability. The civil codes of the states and Federal

District also contain strict liability provisions. The states and the Federal

TRANSBOUNDARY ACCESS TO COURTS 241

103. The legislation is intended to regulate civil liability arising from the employment of

nuclear reactors and the use of nuclear fuels and substances, as well as their waste

products (Art. 1 of the Ley de Responsabilidad por Daños Nucleares).
District are competent to hear these actions which are governed by the

appropriate state or federal District Code of Civil Procedure.

United States. In the United States, the general trend in statutory

environmental law has been to include citizen suit provisions that allow

private “attorneys general” to enforce the specific regulatory framework. There are now some fifteen such statutes that include citizen suit

provisions.104While citizen suit provisions in US environmental statutes

generally preserve other remedies (typically common law remedies),

they do not generally create additional rights to recover damages.105

The courts have tended to be conservative in implying rights of

action for damages under statutes that do not expressly provide for

them. The Supreme Court has held, for example, that neither the Clean

Water Act nor the Marine Protection, Research and Sanctuary Act created an

implied right of action for individuals to recover damages for violations

of the act, as such relief is not expressly authorized by the acts.106 In

reaching this conclusion they relied on the elaborate enforcement provisions created by Congress in the acts, which the court assumed were

the exclusive remedies Congress intended to create for individuals.

Recently, the Supreme Court also held that the Resource Conservation and

Recovery Act’s citizen suit provision does not authorize a private cause of

action to recover damages or prior clean-up costs.107

Of the citizen suit provisions, only the Surface Mining Control

and Reclamation Act explicitly provides for recovery of monetary damages.108 In addition, the Comprehensive Environmental Compensation and

Liability Act(CERCLA) and theOil Pollution Act(OPA) provide explicitly

for recovery of environmental cleanup costs. Under CERCLA, a private

plaintiff can sue a generator, transporter, owner, or operator of hazardous waste for response costs that are consistent with the National

242 TRANSBOUNDARY ACCESS TO COURTS

104. These include, for example, the Clean Air Act, Clean Water Act, RCRA, CERCLA,

OWA, and others.

105. Clean Air Act § 304 does not allow for the recovery of money judgements, but at the

same time, compliance with the Act is not a defense to nuisances, 1 Rodgers, Environmental Law , supra, note 5, at § 3.4, or under Clean Water Act § 505, William H.

Rodgers, Jr., Envcironmental Law, vol. 2 (1986) at § 4.5.

106. Middlesex County Sewerage Authority v. National Sea Clammers Association, 451 U.S. 1

at 11-21 (1981).

107. Meghrig v. KFC Western Inc., 516 U.S. 479 (1996).

108. 33 U.S.C. 1270(f) (“any person who is injured in his person or property through the

violation by any operator of any rule, regulations, order, or permit issued pursuant

to this act may bring an action for damages...”).
Contingency Plan (NCP).109 The Oil Pollution Act of 1990 also allows the

recovery of removal costs consistent with the NCP.110

2.2.2 Potential barriers to transboundary access to statutory

recourses for damages

One of the two main potential barriers to transboundary access to

statutory remedies, where they exist, are residency requirements that

might be included in the terms of the statute. Residency requirements

would operate similarly to those that might restrict access to courts

for civil or common law actions for damages. They would be either

expressed in the text of the statute, or otherwise inferred from other statutory provisions.

The second major potential barrier to statutory recourses for damages being available in a foreign jurisdiction arises from the limitations

derived from the territorial scope of a statute. A basic tenet of international law is the sovereignty and equality of states. The principal corollaries of the notion of the sovereignty of states are that each state has

exclusive jurisdiction over its own territory and should recognize and

refrain from interfering in the area of exclusive jurisdiction of other

states.111

This limit on the extraterritorial application of laws does not, however, restrict countries from regulating activities in their own territory

that have effects on the territory and people of other countries. On the

contrary, the international community has recognized that each state

should ensure that activities within its jurisdiction do not damage the

environment of other states.112

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109. 42 U.S.C. § 9607(a). The National Contingency Plan establishes the procedures and

standards for responding to releases of hazardous substances under CERCLA, discharges of oil under the OPA, and discharges of oil and hazardous substances

under the Clean Water Act. It establishes responsibilities among various federal,

state, and local authorities that respond to releases, sets criteria for prioritizing federal responses, identifies acceptable methods of identifying and remediating contamination, and sets standards for testing alternative technologies for remediating

releases of hazardous substances. 33 U.S.C. § 1321(d), 42 U.S.C. § 9605. The Plan

applies only within the United States.

110. 33 U.S.C. § 2707(a).

111. I. Brownlie, Principles of Public International Law, 3rd ed. (Oxford: Clarendon Press,

1979) at 287; Iles de Palmas (1928), II R.S.A. 829.

112. Rio Declaration on Environment and Development, adopted 13 June 1992, U.N. Doc.

A/Conf.151/5/Rev.1, reprinted in 31 International Legal Materials 874 (1992), Principle 2.
However, the usual emphasis on territorial application of laws

may cause environmental laws to be written and/or interpreted with a

focus on the internal, rather than foreign, effects of the activities regulated by the laws. As a result, statute-based actions for environmental

damage may be restricted, by the language or intent of the statute, to

property or residents of the jurisdiction enacting the statute.

2.2.3 Application in Canada

Generally, any civil actions for environmental damages to private

property included in provincial and federal environmental law are not

exclusive to residents of Canada. The rights are often expressed as being

open to “any person,” an expression that in its broadest application

would extend to anyone, including non-residents. In the absence of

explicit restrictions, the more generic wording found in many statutes

arguably does not exclude non-residents.113

Recourses under federal legislation are generally available to residents and non-residents alike. This is clearly the intent of the International Boundary Waters Treaty Act and the special provisions of theCanada

Shipping Act. Both of these expressly include persons outside Canada,

the latter as long as they are resident in a state that is party to the International Convention on Civil Liability for Oil Pollution Damage.114

The Canadian Environmental Protection Act, in its civil liability provision, establishes no limitation based on residency, referring simply to

“any person” who suffers damage as a result of a breach of the Act or its

regulations.115

The Fisheries Act provisions on civil liability for loss of commercial

fisheries are directed to licensed commercial fishermen.116 As the Act

elsewhere includes some references to such licenses, one might presume

this means those licensed under Canadian federal or provincial law.

However, there are no instances where this has been tested in court. As

noted below, the Act only applies following deposits in Canadian waters

of deleterious substances.

In Ontario, the right to sue for harm to a public resource under the

Environmental Bill of Rights117 is restricted to residents of Ontario. It must,

244 TRANSBOUNDARY ACCESS TO COURTS

113. Muldoon, supra, note 56, at 123.

114. Canada Shipping Act, supra, note 98, s. 677(1)(iv).

115. Canadian Environmental Protection Act, supra, note 94, s. 136(1).

116. Fisheries Act, supra, note 95, s. 42(3).

117. Environmental Bill of Rights, 1993, supra, note 100, ss. 82ff.
however, be noted that section 89 authorizes the court to permit any

person to participate in the action as a party or otherwise. Hence,

non-residents may have standing as intervenors but cannot initiate the

lawsuit. However, this restriction does not apply to the general right to

sue for compensation for harm to a private resource caused by the owner

or person having control of the pollutant, or from the person causing the

release of the pollutant, as set out in the Environmental Protection Act.

For those federal laws that include a civil cause of action, there are

generally no territorial limits applicable. Both the Canada Shipping Act

and the International Boundary Waters Treaty Act expressly address damage outside Canada from a source inside Canada. The CEPA does not

include any terms restricting the application of its civil law provisions.

Only the Fisheries Act, through its definition of “waters frequented by

fish” as Canadian waters,118 places a territorial limit on damages that

would appear to exclude foreign waters from the scope of its civil liability provisions. These provisions, however, deal only with damages suffered by commercial fishermen due to lost fishing opportunities.

Provincial statutes have tended to be drafted with more of a view

to the internal effects of the activities they purport to regulate. With

respect to environmental protection statutes, this can mean that the subject matter of the law is expressly restricted to the protection of the “environment” of the province.

Ontario’s Environmental Protection Act defines “natural environment” in section 1(k) as the “air, land and water, or any combination or

part thereof, of the Province of Ontario.”119 Arguably, at least for those

sections where an offense under the Act is created by the harm done as

opposed to the fact of an act contrary to another type of emissions or

waste limitation or prohibition, only those actions having an adverse

effect on the Ontario environment will constitute such an offense. However, section 3(2) of this Act states that “no action taken under this Act is

invalid by reason only that the action was taken for the purpose of the

protection, conservation or management of the environment outside

Ontario’s border.”120 This raises a question as to whether foreign damage can also be a basis for a statute-based damages action.121

Alberta, by way of contrast, includes civil liability provisions in its

Environmental Protection and Enhancement Act comparable to Ontario’s,

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118. Fisheries Act, supra, note 95, s. 34(1).

119. Environmental Protection Act, supra, note 102, s. 1.

120. Ibid., s. 3(2).

121. There are no reported cases on this point.
but its definition of environment is not expressly limited to Alberta.122

Thus, these provisions would appear to be more readily available to

non-resident persons damaged by transboundary pollution.

As there is no right to sue for damages in the Québec Environmental

Quality Act, there are no potential barriers to the exercise of such a

recourse.

2.2.4 Application in Mexico

To the extent that in Mexico the competent authority for cases of

environmental harm, except that originating from nuclear sources, is the

local authority of each State, the issue must be referred to local legislation.

2.2.5 Application in the United States

CERCLA provisions on cost-recovery actions merely provide that

“any person” may recover costs consistent with the National Contingency Plan but do not specify that that person must be a resident of the

United States.123 The Oil Pollution Act (OPA) specifically allows foreign

claimants to recover removal costs or damages resulting from oil discharges.124 However, the OPA requires foreign claimants to demonstrate, in addition to the showings required of domestic claimants, that

they have not been otherwise compensated, that the recovery is authorized by a treaty or executive agreement between the United States and

the claimant’s country, or that the US Secretary of State has certified that

the claimants country provides a comparable remedy.125

Among the border states, North Dakota’s Environmental Law

Enforcement Act provides, inter alia, that “any person ... aggrieved by the

violation of any environmental statute, rule or regulation of this state

may bring an action ... to recover any damages that have occurred as a

result of the violation.”126 This appears to be the only border state with

an explicitly broad approach. But, the general assumption among

United States courts is that foreign plaintiffs aggrieved by violations of

246 TRANSBOUNDARY ACCESS TO COURTS

122. Environmental Protection and Enhancement Act, S.A. 1992, c. E-13.3, as amended. See

sections 1 and 207.

123. 42 U.S.C. § 9607(a)(4)(B).

124. 33 U.S.C. § 2707.

125. Ibid.

126. N.D. Cent. Code § 32-40-06.
United States environmental laws are free to pursue those claims in

United States courts.127

The territorial scope of laws is also an issue in the United States.

Under general US law, there is a presumption that domestic laws do

not apply extraterritorially. This presumption can be overcome by a

clear expression of legislative intent to have the law apply extraterritorially.128 Although in close cases US courts will generally not

interpret statutes to apply extraterritorially,129 recent authority from the

US Supreme Court applied a US federal statute to foreign conduct, without express indication of legislative intent to do so, because that foreign

conduct caused direct effects within the United States.130Although some

commentators have argued that the United States’ environmental laws

should apply to certain actions by US agencies or persons outside the territory of the United States,131 in view of the mixed guidance provided by

the US Supreme Court on the question of extraterritoriality, lower US

courts have come to inconsistent conclusions as to the extraterritorial

application of US environmental laws.132

In at least some kinds of transboundary pollution cases, however,

United States courts are likely not to view the problem as one of extraterritoriality. United States courts, as noted above, have been reluctant to

TRANSBOUNDARY ACCESS TO COURTS 247

127. See, e.g., Beanal v. Freeport-McMoran Inc., 969 F.Supp. 362 (E.D. La. 1997) (Indonesian plaintiff injured by mining activities of an American company in Indonesia

may sue company in federal court for environmental violations).

128. E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244 at 248 (1991); Foley Bros. v. Filardo,

336 U.S. 281 at 285 (1949). This presumption applies to state as well as federal laws.

See, e.g., Marmon v. Mustang Aviation Inc., 430 S.W.2d 182 at 186-87 (Tex. 1968).

129. Smith v. United States, 507 U.S. 197 at 203-204 (1993) (holding that the Federal Tort

Claims Act did not apply to tortious acts committed by the United States in

Antarctica).

130. See Hartford Fire Ins. Co. v. California, 113 S.Ct. 2891 (1993).

131. See “Developments in the Law: International Environmental Law”, (1991) 104Harv.

L. Rev. 1484 at 1610, in which several such papers are cited.

132. See, e.g., Amlon Metals Inc. v. FMC Corp., 775 F. Supp. 668 at 672-76 (S.D.N.Y. 1991)

(holding that the Resource Conservation and Recovery Act, 42 U.S.C.A. § 6901 et seq.,

does not apply extraterritorially); Greenpeace USA v. Stone, 748 F. Supp. 749 at 759-76

(D. Haw. 1990) (holding that NEPA does not apply to transport of munitions by the

US Army within Germany). The court of appeals for the District of Columbia Circuit has held that the National Environmental Policy Act of 1969, 42 U.S.C. § 4321,

requires an environmental impact statement with respect to federal agency activities in Antarctica. Environmental Defense Fund Inc. v. Massey, 986 F.2d 528 at 531

(D.C. Cir. 1993). In a subsequent case, however, the district court in the same circuit

refused to apply the rationale in Massey to US military bases in Japan, NEPA Coalition of Japan v. Aspin, 837 F. Supp. 466 (D.D.C. 1993) (NEPA does not require the

Defense Department to prepare an environmental impact study for military installations in Japan). Finally, see Beneal v. Freeport-McMoran Inc., supra, note 127 (foreign plaintiff injured abroad may sue American company in federal court under US

environmental laws).
apply United States law to foreign conduct,133 although the most recent

United States Supreme Court case on the question of extraterritoriality

did apply US law to foreign conduct because of that conduct’s direct

effect within the United States.134 But many transboundary pollution

cases, including the kind addressed most directly by this paper, will

involve conduct within the United States that has effects outside the

United States. In one such case, a US court concluded that no significant

question of extraterritoriality was involved, and applied US law.135

A related barrier to seeking relief in US courts is that of standing. In

most environmental cases, a plaintiff in a US action must show an injury

in fact and that the relief sought is likely to redress the injury.136 Additionally, in cases in which review of an agency decision is sought, the

plaintiff must also generally show that he is within the “zone of interests” sought to be protected by the statutes under which the action is

brought.137 The standing doctrine presents challenges to both domestic

and foreign plaintiffs in seeking relief in US courts. The Supreme Court

has consistently ruled that a plaintiff’s injury must be a special one, well

beyond a generalized injury suffered by the public at large.138

The standing requirement does not make any formal distinction

between foreign and domestic plaintiffs. However, foreign plaintiffs

must show that their injuries can be redressed by application of US law,

which turns on the question of whether US law applies to them. In practice, therefore, the question of whether a foreign plaintiff has standing in

a transboundary pollution case is likely to turn entirely upon the question of whether US law applies. If US law applies and the foreign

plaintiff is injured, US courts have found that foreign plaintiffs have

standing.139

248 TRANSBOUNDARY ACCESS TO COURTS

133. See, e.g., E.E.O.C. v. Arabian American Oil Co., supra, note 128.

134. See Hartford Fire Ins. Co. v. California,supra, note 130 (conspiracy in the United Kingdom to fix prices in the United States primary insurance market allows US court to

apply US antitrust law); see also Defenders of Wildlife v. Lujan, 911 F.2d 117 (8th Cir.

1990) (holding that the Endangered Species Act applies to actions that threaten species

outside the United States), rev’d on other grounds at 504 U.S. 555 (1992).

135. See Environmental Defense Fund Inc. v. Massey,supra, note 132, at 529 (decision made

in the United States to allow burning of wastes in Antarctica is subject to US National

Environmental Policy Act because “the conduct regulated by the statute occurs primarily, if not exclusively, in the United States. . . .”).

136. See, e.g., Lujan v. Defenders of the Wildlife, 504 U.S. 555 at 560 (1992).

137. See, e.g., Corrosion Proof Fittings v. Environmental Protection Agency, 947 F.2d 1201

(5th Cir. 1991).

138. See, e.g., Lujan, supra, note 136, at 563 (plaintiff’s assertions that she intended to

return to Egypt to view the habitat of the Nile crocodile is insufficient to show an

injury protected by the Endangered Species Act).

139. See, e.g., Beanal v. Freeport-McMoran Inc., supra, note 127.
2.3 Injunctive Relief

2.3.1 Description

Injunctive relief is granted to prevent pollution from causing

damage in the first place, or stopping an activity that would make the

damages worse after they have begun to materialize. Injunctions are,

therefore, intended to be preventive in nature. In Canada and the United

States, all of the common law/civil law actions discussed above in section 2.1 can result in both damages and injunctive relief.

Injunctive relief is also an increasingly prominent feature of statutory regimes. In most cases, where relief for damages is provided for,

injunction is also a remedy set out in the act. In some cases, an injunction

may be the primary or only civil cause of action found in the environmental statute.

In Canada, at the federal level, injunctive relief against an actual or

potential polluter is specifically provided for where there is actual damage or likely damage as a result of a breach of Canadian Environmental

Protection Act (CEPA) or its regulations.140 The Fisheries Act provides for

a civil cause of action to private parties, but injunctive actions are only

made available to the government.

The International Boundary Waters Treaty Act makes all remedies

otherwise available at the provincial level available to transboundary litigants at the federal level.141 Thus, injunction being a traditional remedy,

it would be available through the Federal Court under this statute, subject to the open question described earlier as to whether water-quality

issues are included within its scope as well as the water-quantity issues.

The Canada Shipping Act includes prevention in its listing of objectives for a civil action that could be initiated by any person.142 Thus, pursuant to this statute, injunction would also appear to be a possible

remedy when a breach of the Act has occurred or is imminent.

At the provincial level, both Ontario and Québec have instituted

civil causes of action for injunctive relief. In Ontario, the Environmental

Bill of Rights contains provisions that allow injunctive relief for actual or

possible harm to a public resource to be initiated by a private citizen,

where there is an actual or imminent breach of an environmental law.

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140. CEPA, s. 136(2).

141. International Boundary Waters Treaty Act, supra, note 96, ss. 3-4.

142. Canada Shipping Act, supra, note 98, s. 677(1).
This would include injunctive relief.143 Common law remedies for actual

or potential private harm are not altered by this legislation.

In Québec, the Environmental Quality Act (EQA) establishes a very

similar provision to that of Ontario’s Environmental Bill of Rights. Section

19.2 of the EQA provides that a judge can issue an injunction to protect

the quality of the natural environmental from the consequences of

actions in breach of the Act or its regulations. Again, private interest

remedies under the Civil Code of Québec, which include injunctive relief,

are not altered by this legislation.

In the United States, many “citizen suit” provisions of environmental statutes allow private individuals to sue to enjoin violation of the

respective act. For example, under the Clean Air Act, a person can bring a

suit to stop construction or modification of a source in violation of the

act.

In Mexico, the Ley General del Equilibrio Ecológico y Protección

al Ambiente (LGEEPA), the federal environmental law provides that

safety measures may be taken by the environmental authorities (Article

170), and that physical or corporate persons “from the affected communities” have the right to challenge acts by the authorities, as well as to

demand that action be taken to ensure due compliance with the law

(Article 180). In both instances, actions take the form of an application for

judicial review [recurso de revisión] and is clearly limited to persons

domiciled in “affected communities.” However, this will not necessarily

have the effect of excluding foreign nationals since the affected community may be a transboundary one. The requirement is the demonstration

of a causal relation between the source works or activities and the damage done to natural resources, wildlife, human health, or quality of life.144

The environmental laws or civil codes in Mexico do not contain

injunctive relief provisions in the sense of a preventive and protective

remedy granted by a court and aimed at future acts.

250 TRANSBOUNDARY ACCESS TO COURTS

143. Environmental Bill of Rights, 1993, supra, note 100, s. 84.

144. Article 180. In the event of works or activities which contravene the provisions of

this law, environmental management programs, edicts declaring protected natural

areas, or the official Mexican regulations or standards governing same, physical or

corporate persons from the affected communities shall have the right to challenge

the administrative acts in question, and to demand that the necessary actions be

taken to ensure compliance with the applicable legal provisions, provided they

demonstrate in the proceedings that such works or activities damage or may cause

damage to natural resources, wild flora and fauna, human health, or quality of life.

To exercise this right, such persons must file an application for administrative

review under the procedures set out in that chapter of the LGEEPA.
Article 4(IV) of the LGEEPA gives the Mexican federal authority

jurisdiction over matters which arise within Mexican territory and affect

ecological balance in territories or zones subject to the sovereignty or

jurisdiction of another state. This does not mean however that the competent jurisdiction for hearing cases involving liability for damages and

injuries ceases to be the courts of the respective state; rather, it means

that the competent administrative authority for this type of case is

the federal authority, which results in a homogenous and centralized

administrative level for dealing with transboundary issues.

2.3.2 Potential barriers to transboundary access to injunctive relief

Local Action Rule. As discussed in section 2.1.2, the local action

rule is a concern in some jurisdictions for common law actions for damages to land. To the same extent that the rule is applicable in actions for

damages, it would be applied to actions for injunctive relief. This is the

case both in Canada and the United States. Again, we recall here that neither Mexico nor the province of Québec apply the local action rule.

Where injunctive relief is derived from an environmental statute, the

local action rule is not applicable. The application of the local action rule

is discussed in the above-noted sections, and is not repeated here.

Residency Requirements. The second significant potential barrier

to injunctive relief is residency requirements. These can apply to common law and civil law actions, or to statutory-based actions.

Territorial Scope of Statutes. The third potential barrier is the

territorial scope of a statute, the essence and application of which is

described in relevant subsections of section 2.2 above. This discussion

will not be repeated here, except for some additional approaches to this

issue in the United States.

2.3.3 Application in Canada

At the federal level, no residency requirements are found for using

the injunctive remedy provided in environmental statutes.

At the provincial level, the residency issues raised for common law

and civil law actions for damages would apply equally to actions for

injunctive relief. Where a statute provides an expanded or alternative

basis for injunctions, the statute must be looked at to establish any residency requirements. In this regard, both Ontario and Québec have a

similar type of limitation on their injunctive action to protect a public

TRANSBOUNDARY ACCESS TO COURTS 251
resource. In both cases, the person taking the action must be a resident of

the province in question. In the province of Québec, the limitation goes

further than provincial residency to include a requirement that the person bringing the action must also frequent either the place in question

where the harm will occur, or its immediate vicinity.145

2.3.4 Application in Mexico

In Mexico, transboundary environmental harm falls within the

competence of the federal authorities. The LGEEPA addresses two situations: one relates to administrative acts that relate to works or activities

which do not meet with environmental regulations, or that authorize

works or activities in contravention of these same environmental provisions; while the other consists in the failure of the federal authority to

comply with the applicable legal provisions.

In the first case, an application for judicial review may be filed in

order to nullify the government’s action in contravention of legal provisions, or reverse its approval of works or activities which contravene the

applicable environmental laws. In either case, the immediate or eventual

effect will be to halt the act which is damaging or may cause damage to

natural resources, wild flora and fauna, human health, or quality of life.

Thus, the action is intended to remedy existing damage, or prevent the

effects that would otherwise arise.

In the second case, a judicial review may be sought for the purpose

of requiring that authorities take the necessary steps to ensure compliance with environmental provisions, thus serving as a remedy for official inaction and a means by which citizens can demand effective

enforcement. Once again, this recourse applies to damage which has

already arisen, or which may take place in the future.

In both of these cases, the right to challenge administrative acts or

to demand the actions necessary for enforcement of environmental provisions is available to “physical and corporate persons in the affected

communities,” which means that there is a direct relationship between

this right and the domicile of the person exercising it. Yet this is not

discriminatory vis-à-vis physical and corporate persons located in

cross-border communities. In both the first and the second cases, it is

necessary to demonstrate that the works or activities are causing or may

cause damage, i.e., to show a causal relationship between the work or

activity and actual or potential damage.

252 TRANSBOUNDARY ACCESS TO COURTS

145. Environmental Bill of Rights (Ontario), supra, note 100, s. 84; Environmental Quality

Act (Québec), s. 19(2), (3).
Since the action refers to a government authority and its actions,

persons exercising the rights conferred by Article 180 of the LGEEPA

may get standing to bring an action for amparo, if they feel that their

constitutional guarantees have been violated, once appeals has been

exhausted and the sequence of procedures required under the Amparo

Act have been complied with.

Reference has already been made to actions for remedying environmental damage regulated by the Code of Civil Procedure of the states

and federal district and those related to environmental damage arising

from nuclear energy which fall under the Federal Civil Code of Procedure. Neither of these is subject to any restriction based on domicile or

nationality.

2.3.5 Application in the United States

In the United States, there is no residency requirement per se to

bring an action for injunctive relief. See section 2.1 above for a discussion

of residency requirement as they apply to all common law actions. See

section 2.4 below for a discussion of residency requirements as they

apply to “citizen” suits.

Where the issue of the territorial scope of laws has been the most

important, the courts have not addressed the application of US law to

enjoin activities in the United States that have transboundary effects.

Where a non-resident plaintiff is seeking to enjoin activity in the United

States that is causing harmful transboundary effects, the arguments

against giving extraterritorial effect to the statute seems less applicable

and the policy consideration dictating against such application less persuasive. On the other hand, the application of the “zone of interest” test

to non-resident plaintiffs may keep courts from applying statutory provisions to enjoin activities in the United States that are having harmful

transboundary effects. In Detroit Audubon Society v. City of Detroit, for

example, the federal district court, sitting in diversity, held that the

Province of Ontario lacked standing to bring suit under the Michigan

Environmental Protection Act, because the act was concerned with

protecting Michigan’s natural resources and therefore the Province of

Ontario was not within the “zone of interest” protected by the statute. 146

However, it appears that the federal courts have not yet addressed this

issue vis-à-vis federal law.

TRANSBOUNDARY ACCESS TO COURTS 253

146. Detroit Audubon Society v. City of Detroit, 696 F. Supp. 249 at 253 (E.D. Mich. 1988),

rev’d on other grounds in Her Majesty the Queen in Right of the Province of Ontario v.

City of Detroit, 874 F.2d 332 (6th Cir. 1989).
2.4 Private Prosecutions and Enforcement Actions in Court

2.4.1 Description

Private prosecutions refer to the ability of private individuals to go

to court to enforce an environmental law against a violator (usually also

a private entity). In essence, these cases allow a private citizen to act as a

prosecutor or attorney general. Private enforcement actions refer to the

ability of private citizens to sue the government to force it to take a

required action.

Canada. In Canada, private individuals may, subject to certain

exceptions, initiate criminal proceedings on their own initiative.147 This

is known as a “private prosecution” and reflects the general principle of

common law that any person has the right to institute a criminal prosecution. This process applies to all federal laws containing environmental

protection provisions that create criminal or quasi-criminal offenses.

One should note, however, that these proceedings are subject to the

overriding right of the Attorney General to intervene at any time to

either stay the proceedings or continue them as a Crown prosecution.

While convictions can result in the imposition of a fine or prison

term, private prosecutors cannot generally recover damages for any

prejudice they may have suffered personally. Any fines recovered are

paid to the government. Thus, if the intent is to obtain redress for harm

caused (damages) or to prevent the occurrence or reoccurrence of a

harm, this avenue is of little interest to a potential plaintiff. Only the Fisheries Act provides a monetary incentive for private prosecutions, namely

that the person who commences a private prosecution is entitled to one

half of any fine imposed.148

The CEPA provides an alternative to this approach. Following a

successful prosecution by the Crown for an offense under the CEPA, any

person who has suffered damages as a result of the violation of the Act

may apply to the Court at the time of sentencing for an award in respect

of those damages to be included as part of the sentence itself.149

254 TRANSBOUNDARY ACCESS TO COURTS

147. Sections 504 and 788 of the Criminal Code, R.S.C. 1985, c. C-46, as am. by R.S.C. 1985,

c. 2 (1st Supp.), allow anyone who believes on reasonable and probable grounds

that an offence has occurred to commence a prosecution. See P. Burns, “Private

Prosecutions in Canada: The Law and a Proposal for Change”, (1975) 21 McGill L.J.

269. See also Muldoon, supra, note 56, at 87-88.

148. Penalties and Forfeiture Proceeds Regulations, C.R.C., c. 827, s. 5. However, as the cost

of a private prosecution will often well exceed the fine imposed, the incentive here is

marginal, at best.

149. CEPA, s. 131.
With respect to private prosecutions for violations of provincial

statutes, these same basic considerations apply.150 In addition, certain

statutes impose limitations, such as requiring the consent of the Attorney General or a judge before commencing a prosecution.151 These proceedings are also subject to the overriding right of the Attorney General

to intervene at any time to either stay the proceedings or continue them

as a Crown prosecution.

Mexico. In Mexico, Article 182(2) of the LGEEPA provides that

“anyone” may file a complaint alleging environmental crimes under the

applicable legislation. The actual prosecution of such crimes, from the

instituting of criminal action onwards, is carried out by the Ministerio

Público, a government department and the only authority empowered

to represent the state in criminal trials.

United States. In the United States, in addition to providing for

enforcement by the federal government,152 federal environmental statutes nearly all provide for private enforcement through so-called “citizen suits.”153 Most federal environmental laws specifically empower

individuals to bring a civil action to enforce compliance with the statute.

They typically allow actions against both private violators of the act and

government agencies who have failed to meet duties that are mandatory

under the act ( “non-discretionary duties”). A plaintiff must usually first

provide sixty days’ notice to the defendant and a suit cannot be brought

if the responsible government agency or a state is already “diligently

prosecuting” a civil action. Penalties received through citizen suits go to

the government and are usually earmarked for compliance and enforcement activities or for projects designed to protect public health.

TRANSBOUNDARY ACCESS TO COURTS 255

150. Muldoon, supra, note 56 at 300-303.

151. Code of Penal Procedure, R.S.Q., c. C-25.1, s. 9(3); R. v. Schwerdt (1957), 27 C.R. 35. See

also R. Cotton and R. Mansell, “Role of the Public”, in A.R. Lucas and R. Cotton,

eds.,Canadian Environmental Law, vol. 1 (Toronto: Butterworths, 1994) Ch. 19, paras.

19.16-19.23.

152. Most of the statutes provide civil and criminal penalties for violations of their standards. They may be enforced either through administrative proceedings initiated

by the federal agency responsible for their implementation or through judicial proceedings initiated by the Attorney General.

153. See, e.g., Toxic Substances Control Act § 20, 15 U.S.C. § 2619; Endangered Species Act

§ 11(g), 16 U.S.C. § 1540(g); Surface Mining Control and Reclamation Act § 520, 30

U.S.C. § 1270; Clean Water Act § 505, 33 U.S.C. § 1365; Marine Protection, Research, and

Sanctuaries Act § 105, 33 U.S.C. § 1415(g); Act to Prevent Pollution from Ships § 11, 33

U.S.C. § 1910; Safe Drinking Water Act § 1449, 42 U.S.C. § 300j-8;Noise Control Act § 12,

42 U.S.C. § 4911; Solid Waste Disposal Act § 7002, 42 U.S.C. § 6972; Clean Air Act § 304,

42 U.S.C. § 7604; CERCLA, supra, note 109, § 310, 42 U.S.C. § 9659; Emergency

Planning and Community Right-to-Know Act § 326, 42 U.S.C. § 11046.
Some states provide that private persons may enforce state environmental laws through “citizen suits” or their equivalents. State citizen

suits sometimes allow private persons to sue violators directly. They

may also allow private persons to sue a state agency to require it to take a

non-discretionary action. Border states that provide for private enforcement action with respect to at least some of the state’s environmental

prohibitions include Arizona,154 California,155 Michigan,156 Minnesota,157 New York,158 North Dakota,159 and Pennsylvania.160 State law

private enforcement actions may usually obtain only declaratory and

injunctive relief.161

2.4.2 Potential barriers to transboundary access to private

prosecutions and enforcement actions

Residency Requirements. Residency requirements may limit the

ability of non-resident persons to use private prosecutions or citizen

suits for enforcement purposes. Such requirements would come either

from the general rules applicable to court proceedings under procedural

laws or the specific statute that authorized the private enforcement

action.

Territorial Scope of Laws. The issues relating to the territorial

scope of laws have been canvassed previously. They generally apply in

the same manner to private prosecution actions as to civil actions for

damages or injunctive relief under environmental statutes. But one

additional element may be noted. There may be territorial constraints on

the ability to initiate a private prosecution if the pollution emanating

from one country has effects only in a foreign territory.162 This could

raise a question as to whether the elements of the offense have taken

place in the jurisdiction where the prosecution might be launched. The

issue here would be whether the statute requires that all the elements of

an offense–the discharge, emission or other causal activity, and the dam256 TRANSBOUNDARY ACCESS TO COURTS

154. Ariz. Rev. Stat. Ann. § 49-407.

155. Cal. Health & Safety Code § 25249.7 (Deering 1996).

156. Michigan Environmental Protection Act, Mich. Comp. Laws Ann. § 324.1701.

157. Minnesota Environmental Rights Act, Minn. Stat. § 116B.03.

158. N.Y. Envt’l. Conserv. Law § 71-1715.

159. Environmental Law Enforcement Act, N.D. Cent. Code § 32-40-06.

160. 35 Pa. Cons. Stat. § 691.601(c) (water pollution); § 4013.6(c) (air pollution).

161. One exception is the North Dakota Environmental Law Enforcement Act, which provides that a plaintiff may also recover damages; N.D. Cent. Code § 32-40-06. New

Jersey’s Environmental Rights Act allows “any person to sue for injunctive relief or

civil penalties for violation of any provision designed to prevent or minimize pollution, impairment or destruction of the environment.” N.J. Stat. Ann. § 2A:35A-4a.

162. Muldoon, supra, note 56, at 153-154.
age – be suffered in the jurisdiction in question. In Ontario, for example,

the natural environment is defined as the environment in Ontario only.

Here, the injury must be in Ontario for an offense to be established. Otherwise, a prosecution will likely fail.

2.4.3 Application in Canada

Non-residents appear to have the same rights as Canadians to

institute private prosecutions, as there are no apparent statutory limits

on this right.

2.4.4 Application in Mexico

Under Article 182(2) of the LGEEPA everyone has the ability to

lodge a complaint regarding environmental crimes:

[TRANSLATION] Where the [Environment] Department, in the exercise of

its functions, discovers acts or omissions which may constitute crimes

under the applicable legislation, it shall file a complaint to that effect

before the Ministerio Público.

Anyone may directly lodge a complaint alleging environmental crimes

under the applicable legislation.

The [Environment] Department shall provide technical or expert opinions

on matters that fall within its purview, when requested to do so by the

Ministerio Público or judicial authorities in connection with accusations

alleging the commission of environmental crimes.

Thus, provision is made for private reporting of environmental

crimes to the office of the Ministerio Público, independently of any

action undertaken by the federal environmental authority which in this

case is the Federal Prosecutor for the Protection of the Environment

(Procuraduría Federal de Protección al Ambiente or “PROFEPA”). This

provision may well be considered a check on the environment authority

since it allows private parties to trigger the state’s prosecutorial mechanism in the event that PROFEPA, for whatever reason, fails to do so.

There are no domicile or nationality limits on the exercise of this right.

Otherwise, and except for the possibility set out in Article 180 of

the LGEEPA and commented on earlier, there is no private enforcement

mechanism similar to those available in Canada and the United States.

TRANSBOUNDARY ACCESS TO COURTS 257
2.4.5 Application in the United States

Although the private enforcement mechanisms in the United

States are often called “citizen suits,” they do not explicitly limit potential plaintiffs to citizens or residents of the United States. The statutes

provide that “any person” may bring a civil action to enforce them, and

“person” is not defined to exclude non-citizens or non-residents.163 Of

the border states that provide for private enforcement actions, however,

Minnesota and New York explicitly limit the persons who may bring

private enforcement actions to residents of the state.164

Although “citizen suits” are not restricted by their terms to citizens, it does not necessarily mean that courts will interpret the term “any

person” broadly. The phrase “any person” must be read together with

the presumption against extraterritorial application of laws and the

“zone of interest” component of standing. In United States v. Hooker

Chemical,165 Ontario sought to intervene in a case involving the dumping

of chemicals in a landfill in Niagara Falls, New York, that involved both

state common law claims and claims under the Clean Water Act and

Resource Conservation and Recovery Act. The court allowed Ontario to

intervene, but only with regard to state common law actions. Although

the court explicitly refused to address the issue of whether the Province

of Ontario was a “citizen” within the meaning of the Clean Water Act’s

citizen suit provision, or a “person” within the meaning of the Resource

Conservation and Recovery Act citizen suit provision, it nonetheless

refused to exercise jurisdiction over those claims.166

3.0 ACCESS TO ADMINISTRATIVE ACTIONS

In environmental issues, the preference is to prevent damage

before it occurs, rather than to provide for damages after the fact. Much

of this preventive work occurs in the context of administrative decision-making on permits, authorizations, licenses, etc. Therefore, access

to administrative procedures is an important avenue for potentially

affected persons to act to prevent transboundary environmental harm

before it occurs.

258 TRANSBOUNDARY ACCESS TO COURTS

163. The Clean Water Act uses the phrase “any citizen,” but it defines “citizen” as “a person or persons having an interest which is or may be adversely affected”; 33 U.S.C.

§ 1365(a), (g).

164. See Minnesota Environmental Rights Act, Minn. Stat. § 116B.03; N.Y. Envtl. Conserv.

Law § 71-1715.

165. 101 F.R.D. 444 (W.D.N.Y. 1984).

166. In a related decision in the same case, the same court ruled that Canadian environmental groups could not intervene because their interests were already being represented by the Province of Ontario. 101 F.R.D. 450 (W.D.N.Y. 1984).
As between residents and non-residents, effective access to administrative procedures can encounter both legal and practical barriers. For

example, although non-residents may be able to participate in the consultation process related to the development of policies and legislation,

they may not be among the groups receiving notification of this process,

thereby posing a practical barrier to participation. The present analysis

only focuses on the legal issues involved in transboundary access to

administrative actions.

In this section, we look at four types of administrative actions for

which transboundary access might be sought:

3.1 Administrative actions for enforcement;

3.2 Administrative actions in environmental assessment;

3.3 Participation in permitting and siting decisions; and

3.4 Participation in regulation and rule-making.

As in section 2, each category of action is described, followed by a

note on potential barriers to transboundary access and a discussion of

their application in each of the three NAAEC Parties.

3.1 Administrative Actions for Enforcement

3.1.1 Description

Historically, enforcement was seen as a judicial process requiring

prosecutions to be initiated. Increasingly, however, actions for enforcement are administrative in nature, including fines, compliance schedules and agreements, tickets, and other techniques. In addition, actions

to initiate investigations or enforcement activities are also an important

part of public participation in the administrative enforcement process.

Canada. In Canada, there is an increased movement to provide

greater flexibility to enforcement officers to assess compliance and

impose sanctions or compliance programs. This can be seen in the proposed revisions to the CEPA that were tabled in Parliament in 1998.167

The proposed new Act included environmental protection alternative

measures (EPAMs), such as compliance agreements and ticketing as

TRANSBOUNDARY ACCESS TO COURTS 259

167. Bill C-32, introduced 12 March 1988.
alternatives to prosecutions, in addition to the type of warning letters

and compliance orders that were previously available. Much of the

enforcement mechanism is predicated on the ability of enforcement officers to launch investigations and inspections in order to verify compliance and investigate possible non-compliance.

The Fisheries Act, following its recent amendments, provides an

array of compliance mechanisms that includes warning letters, orders

for compliance, tickets and, finally, prosecutions. All these are in addition to the general provisions in the Act that also provide for rights of

inspection and sampling in order to establish whether an offense took

place.168

At the provincial level, this same trend is only slowly beginning to

emerge. Québec’s Environmental Quality Act allows enforcement officers

to ticket offenders in lower-risk cases associated with unauthorized

waste disposal sites.169 It also allows any person who believes that he or

she can attribute damage to their health or property to the presence or

release of a contaminant to call for an inquiry by the government within

thirty days after ascertaining the damage.170 This is a much more limited

form of public access to instigate an inquiry than under the CEPA.

Administrative orders requiring a facility to stop polluting are also

available to the government.171

In Ontario, both remediation and preventive orders are available

to the government in response to actual or likely releases of contaminants.172 However, public participation in relation to such orders is not

found in the Environment Protection Act, but rather in the Environmental

Bill of Rights. Part V of the Bill of Rights allows any two persons resident

in Ontario to request an investigation of a possible offense under an

environmental law in Ontario.173

Mexico. Mexican environmental laws at both federal and state

level impose administrative sanctions, which are usually fines but may

260 TRANSBOUNDARY ACCESS TO COURTS

168. Fisheries Act, supra, note 95, s. 37(2), 4055, 4978-79.6, 79.7.

169. Environmental Quality Act, ss. 66, 108.1.

170. Ibid., s. 117. This section also makes attributing damage to their health or property a

precondition to the exercise of this right. Under s. 118, the person exercising this

right is entitled to receive the Minister’s report.

171. Ibid., s. 25. See the commentary in Lorne Giroux, “La loi sur la qualité de l’environnement: grands mécanismes et recours civils”, in Développements récents en droit

de l’environnement (1996), Service de la formation permanente du Barreau du Québec (Cowansville, Éditions Yvon Blais, 1996), pp. 263-349, at pp. 318-323.

172. Environmental Protection Act, supra, note 102, ss. 17, 18, 94, 97, and Part XI.

173. Environmental Bill of Rights, supra, note 100, ss. 74-81.
include orders to close down facilities or seize assets. In addition, federal

or local environmental authorities may order gradual “safety measures”

ranging from the closing down of facilities and seizure of assets, to

actions designed to neutralize waste products damaging to the environment. As well, both federal legislation and the environmental regulations in the states and Federal District make provision for the filing of

“popular complaints” (denuncia popular) a process by which citizens may

help to protect the environment. Finally, Article 180 of the LGEEPA

gives private parties the right to demand that the authorities implement

environmental provisions.174

Mexican environmental laws, both at the federal level and those of

the states and Federal District, include procedures by which cooperation

agreements may be sought with private parties to ensure their compliTRANSBOUNDARY ACCESS TO COURTS 261

174. The LGEEPA has a chapter specifying administrative sanctions, another establishing safety measures, and one setting out the procedures for popular complaints.

The laws in all of Mexico’s northern border states contain equivalent provisions:

The Ley de Equilibrio Ecológico y Protección del Ambiente del Estado de Baja California (or

Environmental Protection Law of the State of Baja California) of 29 February, 1992,

provides for administrative infractions (Arts. 230 and 238), revocation and dissent

actions (Arts. 239-247) and popular complaints (Arts. 248-255). Articles 253-255 also

set out provisions on civil liability for environmental harm.

The Ley de Equilibrio Ecológico y Protección del Ambiente del Estado de Chihuahua (or

Environmental Protection Law of the State of Chihuahua) of 26 October, 1991, creates administrative infractions (Arts. 130-135) and crimes (Arts. 142-147), provides

for dissent actions (Arts. 135-141) and popular complaints (Arts. 148-152), and

cover civil liability for environmental harm under Article 152. This Law includes, in

Article 153, a specific provision on “civil actions,” available through the State’s Civil

Code to a victim whenever a finding of environmental harm has been issued by an

authority, independently of the sanctions imposed in accordance with the Law.

The Ley de Equilibrio Ecológico y Protección del Ambiente del Estado de Coahuila de

Zaragoza (or Environmental Protection Law of the State of Coahuila) of 30 January,

1990, provides for administrative infractions (Arts. 154-157) and crimes (Arts.

165-169), dissent actions (Arts. 159-164), and popular complaints (Arts. 148-153).

Article 152 of this Law also specifies that a finding by the environmental authority

may be used as evidence in legal proceedings.

The Ley de Equilibrio Ecológico y Protección del Ambiente del Estado de Nuevo León (or

Environmental Protection Law of the State of Nuevo Leon) of 26 June, 1989, creates

administrative infractions (Arts. 131-134) and crimes (Arts. 142-147), provides for

dissent actions (Arts. 135-141) and popular complaints (Arts. 148-153), and covers

civil liability for environmental harm under Article 152.

The Ley de Equilibrio Ecológico y Protección del Ambiente del Estado de Sonora (or Environmental Protection Law of the State of Sonora) of 3 January, 1991, provides for

administrative infractions (Arts. 152-156), dissent actions (Arts. 157-162) and popular complaints (Arts. 163-168), and covers civil liability for environmental harm

under Article 168.

The Ley de Equilibrio Ecológico y Protección del Ambiente del Estado de Tamaulipas (or

Environmental Protection Law of the State of Tamaulipas) of 1 February, 1992,

defines administrative infractions (Arts. 153-158) and crimes (Arts. 164-168), and

provides for popular complaints (Arts. 159-163).
ance with environmental obligations. The LGEEPA also provides for

environmental audits as another means of ensuring environmental compliance.175

There are certain mechanisms available to the public for ensuring

enforcement of environmental laws and regulations. They are (1) the

Review Action; (2) the Popular Complaint; (3) the request for a technical

report as evidence in a civil liability suit; and (4) the Amparo proceeding.

Of these, the Review Action and Amparo proceeding are primarily associated with the administrative or judicial review of government decisions, and are considered below.

Popular Complaint. The Popular Complaint is an administrative

remedy available under the LGEEPA to “any person.” This remedy does

not require the complainant to meet any specific legal interest, domicile,

or nationality requirements. The complaint need only to be submitted in

writing (or by phone followed by a written ratification), provide the

name and address of the complainant, and identify the source of the

environmental harm.

A Popular Complaint may be submitted with respect to any illegal

act of an authority or private person that causes environmental harm.

This includes a governmental decision illegally authorizing an environmentally harmful activity, as well as the undertaking of activities by any

person in violation of the law or of the terms of the government decision

that authorized it.

Once a Popular Complaint is received by the Federal Prosecutor

for the Protection of the Environment (PROFEPA), that authority shall

notify the person identified as the violator,176 verify the alleged facts,

evaluate the Popular Complaint,177 and, within fifteen working days of

its submission, report to the complainant regarding any action taken.

The PROFEPA must then notify the complainant of the result of its verification of the alleged facts and the action taken with respect to the information supplied by the complainant.178

262 TRANSBOUNDARY ACCESS TO COURTS

175. For example, Article 38 of the LGEEPA provides for “self-regulation in environmental matters,” Articles 38bis and 38bis1 describe environmental audits, and Article 158 establishes the cooperation agreement as one of the means for ensuring

public participation in environmental protection.

176. LGEEPA, Art. 191.

177. Ibid., Art. 192.

178. Ibid., Art. 193.
Although controversy exists as to the exact scope and legal status

of this remedy and the obligations it imposes on the government, there is

judicial precedent to the effect that the Popular Complaint constitutes an

administrative remedy.179

The environmental laws of Mexico’s northern border states also

make provision for the popular complaint as a recourse for private parties. Access to this remedy appears to be available to all without restriction as to domicile or nationality.

Request for technical report. Article 204 of the LGEEPA states:

[TRANSLATION] Where contravention of this Law causes damage or injury,

interested parties may request that the Semarnap prepare a technical

report on such damage or injury, which shall constitute evidence in the

event the matter is litigated in court.

Equivalent provisions are made in state laws. A technical report

carries much weight since it must be given full probative value in any

civil action brought by victims of environmental harm. It thus falls

within what Mexican procedural law classifies as a “public document,”

giving it added legal authority.

United States. Environmental enforcement in the United States

can be either administrative or judicial. The Environmental Protection

Agency (EPA) is primarily responsible for administrative enforcement

procedures. Judicial enforcement cases are referred to the Department of

Justice. The vast majority of environmental enforcement cases in the

United States, however, are administrative.180

Minor violations can be handled by sending an administrative

notice of violation that requires correction of the violation without

assessment of a penalty. In the case of more serious violations, administrative enforcement actions can include the use of administrative orders

and the assessment of civil penalties. Administrative orders give officials the flexibility to specify remedial action181 and can be enforced in

TRANSBOUNDARY ACCESS TO COURTS 263

179. See Tercero Ajeno al Procedimiento, No Existe Cuando la Ley Concede “Denuncia

Popular” para Intervenir en El. Tribunales Colegiados de Circuito/Semanario Judicial de la Federación/8A/XII-Octubre/pág. 497/Amparo en Revisión 110/93.

Distribuidora de Gas Noel, S.A. de C.V./24 de agosto de 1993.

180. Percival et al., Environmental Regulation: Law, Science and Policy (2nd ed. 1996) at

1051-1052. Roughly 90 percent of environmental enforcement cases are handled

administratively.

181. See, e.g.,Clean Air Act § 113(a), 42 U.S.C. § 7413(a);Clean Water Act § 309(g), 33 U.S.C.

§ 1319; Resources Conservation and Recovery Act § 3008(a), 42 U.S.C. § 6928(a).
court after notice and an opportunity for a hearing. Civil penalties may

be contested before an administrative law judge whose decisions are

subject to judicial review. The adjudication provisions of the Administrative Procedures Act govern hearings before an administrative law

judge.182 Most administrative cases, like most judicial cases, are settled.

Administrative enforcement decisions can be appealed to the EPA’s

Environmental Appeals Board.183 Government Enforcement authorities

have considerable discretion in deciding whether to initiate enforcement proceedings and in choosing the type of action to pursue.

The issue of primary relevance to the present analysis is to what

extent individuals may have recourse to promote the effective implementation of these different types of administrative mechanisms for

enforcement purposes.

3.1.2 Potential barriers to access to administrative actions for

enforcement

Residency Requirements. The main barrier for transboundary

access to administrative actions for enforcement is likely to be residency

requirements in the environmental statutes. This is seen to some extent

in Canada and the United States.

Territorial Scope of Laws. The potential barrier of the territorial

scope of laws has been dealt with previously. No further issues arise specifically relating to access to enforcement. Hence, this issue is not dealt

with below.

3.1.3 Application in Canada

Section 108 of the Canadian Environmental Protection Act (CEPA)

allows Canadian residents to petition the Minister of the Environment to

investigate possible non-compliance by a person or facility with the

requirements of the CEPA and its regulations. This section is, on its face,

limited to persons residing in Canada.

In Québec, as already noted (see subsection 3.1.1), residency is not

required with respect to the right to request an investigation under the

Environmental Quality Act, but having suffered some personal or property damage is.

264 TRANSBOUNDARY ACCESS TO COURTS

182. 5 U.S.C. §§ 554, 556, 557.

183. Percival, supra, note 180, at 1052.
Under Ontario’s Environmental Bill of Rights, an application to the

Minister for investigation where a person believes that certain acts, regulations, or instruments have been contravened can only be made by a

resident of Ontario.184

3.1.4 Application in Mexico

Except as provided under Article 180 of the LGEEPA, there are no

residency requirements in the environmental statute for enforcement

actions. Thus, foreigners affected by transboundary harm originating in

Mexico enjoy the same access to remedies in Mexico in this regard as

Mexican nationals have.

3.1.5 Application in the United States

In general, the opportunity for the public to participate in the

enforcement process in the United States is limited. Any administrative

enforcement order or notice of violation will be available under the

Freedom of Information Act (FOIA).185 At this point, it is relatively noncontroversial that non-residents are able to request information under

the FOIA.186 Citizen suit provisions in environmental statutes also allow

individuals to bring actions against persons for violation of an administrative order.187 Neither the FOIA nor the citizen suit provision contain

residency restrictions per se. Notices of proposed settlements are published in the Federal Register and are thus available to the public. Settlement documents and court decisions are published and available to the

public. Both court proceedings and formal administrative hearings are

open to the public. The notice and publications, however, are designed

to reach the public in the United States, and will be more available there

than abroad.

3.2 Administrative Action in Environmental Assessment

3.2.1 Description

Environmental assessment (EA) is one of the most important tools

available for the prevention of environmental harm. As such, the public

consultation and public hearing components of many modern EA statutes are often seen as important parts of a strategy of public access to

TRANSBOUNDARY ACCESS TO COURTS 265

184. Environmental Bill of Rights, supra, note 100, ss. 74-81.

185. 5 U.S.C. § 552.

186. See subsection 3.4.5, infra, and cases cited there, for more discussion on this point.

187. See, e.g.,Clean Air Act, 42 USC § 7604(a)(1)(B),Resource Conservation and Recovery Act

42 USC 6972 (a)(1)(A), Clean Water Act, 33 USC 1365(a)(1)(B).
environmental rights and remedies. In this section, we will review, generally, both the types of public rights available through the administrative processes attached to EA laws and any barriers to their use by

non-residents arising from these statutes.

Canada. In Canada, environmental assessment is one of the most

developed areas of environmental law. All provinces and the federal

government have adopted environmental assessment laws in the last

ten years or so. The key areas of concern here are the rights of public

involvement in the processes and whether these rights are equally available to non-residents.

Under the Canadian Environmental Assessment Act (CEAA),188 public involvement can arise in different ways. The process involves a preliminary determination by the responsible federal authority of the level

of EA that is required for each project decision. This includes one of four

levels: a screening, a comprehensive study, a public review by a panel, or

a mediation.

Public involvement in screening is at the discretion of the responsible authority. Where public participation in screening is considered to be

appropriate, an opportunity for public review and comment on the

screening report will be provided prior to a decision on the project. In

addition, the screening report must be included in the public registry

established for the project.189

A comprehensive study report must be submitted to the minister

and to the Canadian Environmental Assessment Agency. The Agency is

then required to facilitate public access to the report by publishing a

notice stating when the report will be available to the public, how copies

may be obtained, and the deadline for filing comments. These factors

may vary depending on the extent of public involvement in the issue.

The comprehensive study report and any public comments will be filed

in the public registry for the project.

If the project is referred to mediation between a project proponent

and other individuals or groups, the mediator submits a final report to

the responsible authority and the minister whether or not an agreement

has been reached. Confidentiality must be respected and the report

should be limited to a brief account of any agreements and unresolved

issues. An analysis of the differences among the parties should be

included only if it has been reviewed and approved by the parties.

266 TRANSBOUNDARY ACCESS TO COURTS

188. S.C. 1992, c. 37, as amended.

189. Ibid., s. 18(3).
The most extensive provisions for public involvement under the

CEAA relate to panel reviews for major projects.190 Panel reviews are

conducted by persons independent of the project proponent and the

government department responsible for the review. CEAA specifies that

review panels shall ensure that information required for the assessment

is available to the public and shall hold public hearings. Furthermore,

the panel report must include a summary of public comments.

Access to information is also an important component of effective

public participation. The CEAA provides for a public registry to ensure

access to information relating to projects for which an EA is conducted.191 To facilitate access to the registry, document indexes and, to some

extent, the actual documents are available on the Internet at the following address: <http://www.ceaa.gc.ca/index_e.htm>.

At the provincial level, EA processes apply to both private and

public-sector projects, except in Ontario, where only public sector projects are automatically included. Private-sector projects may be designated as subject to EA in Ontario. Ontario’s Environmental Assessment

Act requires a project proponent to consult with interested persons

when they are preparing proposed terms of reference for an EA and the

EA itself.192 The results of this consultation must accompany the proposed terms of reference sent to the ministry for approval.193 When the

assessment is completed by the proponent, it must provide public notice

of the results and announce where the report can be seen. Public

comments can then be made to the ministry on the assessment.194 In

addition, the public may comment on the review of the assessment

conducted by the ministry itself.

Where a mediation is ordered by the minister, members of the public may be identified as participants. The mediation would not otherwise

generally be open to public viewing.195

TRANSBOUNDARY ACCESS TO COURTS 267

190. Ibid., ss. 33-35.

191. Ibid., s. 55(1), (2). The responsible authority must keep a registry for its own screenings, comprehensive studies, and decisions, and all associated EA documents. The

Canadian Environmental Assessment Agency keeps a public registry of all public

panel and mediation processes and associated documents and reports. The proposals for the amendment of the CEPA, in Bill C-32, Part 2, also include greater access to

environmental information related to the Act via an environmental registry.

192. Environmental Assessment Act, R.S.O. 1990, c. E-18, as amended, s. 5.1.

193. Ibid., s. 6(3).

194. Ibid., ss. 6.3, 6.4.

195. Ibid., s. 8. The mediation can be made open to the general public by decision of the

mediators.
Any person may also request the referral of a proposed project to

the Environmental Assessment Board for an independent hearing.196

Board hearings are to be public unless decided otherwise by way of

exception.197 Public notice of the time and place of Board hearings must

also be given, in accordance with the regulations governing Board procedures.198

In Québec, EA law is governed by Division IV.1 of the Environmental Quality Act, and the Environmental Impact and Assessment and Review

Regulation.199

Section 31.3 of the Act sets out the minimum public consultation

rights in the process. When an environmental assessment is required

under the law and regulation, the minister is responsible for setting its

scope and content. The proponent of the project is then responsible for

preparing the environmental impact assessment statement required by

the Act. 200 The minister must make the statement public when it is

received, at which point the proponent must initiate the public consultation phase of the EA process by publishing a notice in newspapers of the

municipality where the project would be located. Any person, group or

municipality may then request the minister to hold public hearings on

the project.201

These requirements are further detailed in the Regulation, Division IV. Public notice of the right to consult the EA report must be provided in newspapers in the municipality where the project would be

located, as well as in Montréal and Québec City. A 45-day period is

provided for public comments to be received.

The public consultation procedure in Québec is qualitatively

different from that in Ontario, where the public hearing allows for

witnesses, summonses, testimony, etc., in a quasi-judicial setting. A

decision of the Board in Ontario is binding unless overturned by special

decisions of the government. In Québec, the process is one where the

Bureau d’audiences publiques sur l’environnement facilitates public consul268 TRANSBOUNDARY ACCESS TO COURTS

196. Ibid., s. 7.2.

197. Ibid., s. 19.

198. Rules of Practice – Environmental Assessment Board, R.R.O. 1990, Reg. 335.

199. Environmental Quality Act, R.S.Q., c. Q-2, as amended; Environmental Assessment and

Review Regulation, R.R.Q. 1981, c. Q-2, r. 9, as amended. There are also individual

Acts and regulations applicable to the northernmost region of Québec. For a general

overview of these regimes, see L. Giroux, supra, note 171, at 299 ff.

200. Environmental Quality Act, s. 31.2.

201. Ibid., s. 31.3.
tation and can make recommendations to the Minister of the Environment, but has no further authority.202

Mexico. Subject to appropriate safeguards for the protection of

industrial and intellectual property rights, environmental impact statement received by the environmental authorities must be made public.

However, it is unclear what the immediate effect of making this document available to the public is. As indicated below, the LGEEPA provides the possibility of holding public consultations.

It is worth noting the provision made under Article 59 of the Ley

Ambiental de Baja California:

[TRANSLATION] Environmental impact studies may also be conducted at

the request of any group affected by the proposed work or activity, provided the request is accompanied by a technical report or represents a

consensus representative of the local community. The Department may

request technical assistance from the federal government in assessing the

environmental impact statement.

Neither the LGEEPA nor any of the laws of Mexico’s other northern border states grant individuals the right to request an environmental

impact study.

Under the LGEEPA’s federal environmental impact provisions,

any member of a community may request that a public consultation be

held. The granting of such requests is at the discretion of the environmental authority. Article 34 of the LGEEPA establishes the procedure for

conducting these consultations.

With regard to “protected natural areas,” the legal regime, both at

the federal level and at the states and Federal District levels, encourages

the participation of local inhabitants, indigenous communities and

social groups, etc., for example by requiring that their opinions be heard

prior to the issuance of a permit.

United States. In the United States, environmental assessment is

governed at the federal level by the National Environmental Policy Act

(NEPA). The NEPA requires the preparation of an environmental

impact statement (EIS) for any major federal action that significantly

affects the quality of the human environment,203 including projects with

TRANSBOUNDARY ACCESS TO COURTS 269

202. See L. Giroux, supra, note 171, at 306-307. See also Bellefleur v. Québec (P.G.), [1993]

R.J.Q. 2320 at 2332 (C.A.).

203. 42 U.S.C. § 4332(2)(C).
federal financing, assistance, or approval of a project, as well as the

adoption of most official policies, formal plans, or programs.204 There

are three types of documents that can be prepared during the environmental assessment process in the United States: an environmental

assessment (EA); a “finding of no significant impact” (FONSI); and an

EIS. An agency will often prepare an EA when it is considering whether

to prepare a full Environmental Impact Statement (EIS). If the EA indicates that there will be no significant environmental impacts, the agency

will issue a FONSI. If the agency determines that there will be a significant impact then a full EIS will be prepared. Many states, having

adopted statutes similar to the NEPA, also require environmental

impact assessments.205

Some efforts to address the practical issue of the notification of

transboundary pollution in an environmental assessment context have

taken place bilaterally between Canada and the United States and

trilaterally between Canada, Mexico, and the United States. These

efforts are noted in the annex to this paper.

3.2.2 Potential barriers to transboundary access to administrative

actions for environmental assessment

As in other areas of law, EA statutes may establish specific residency requirements for participation in public consultation processes or

for any other form of public recourse or review. The often intensive participatory nature of some EA processes makes this an important issue.

The second major potential barrier is the territorial scope of EA

laws. Given the investigative nature of most EA processes, territorial

scope can be a larger issue than in many other types of environmental

protection statutes.

3.2.3 Application in Canada

The Canadian Environmental Assessment Act (CEAA) does not distinguish between domestic and foreign interventions by the public in an

270 TRANSBOUNDARY ACCESS TO COURTS

204. 40 C.F.R. § 1508.18.

205. See, e.g., Cal. Pub. Res. Code §§ 21000-21178, Conn. Gen. Stat. Ann. §§ 22a-1 to

22a-1h, Haw. Rev. Stat. §§ 343-1 to 343-8, Ind. Code Ann. §§ 13-12-4-1 to 13-12-4-10,

Md. Nat. Res. Code Ann. §§ 1-301 to 1-305, Mass. Gen Laws Ann. ch. 30, § 61, Minn.

Stat. Ann. §§ 116D.01 to 116D.11, Mont. Code Ann. §§ 75-1-101 to 75-1-324, N.Y.

Envtl. Conserv. Law §§ 8-0101 to 8-0117, N.C. Gen. Stat. §§ 113A-1 to 113A-13,

S.D. Codified Laws Ann. §§ 34A-9-1 to 34A-9-13, Va. Code Ann. §§ 10.1-1182 to

10.1-1192, Wash. Rev. Code Ann. §§43.21C.010 to 43.21C.500, 43.21C.900 to

43.21C.914, and Wis. Stat. Ann. §1.11.
environmental assessment process. Section 2 of the CEAA simply

defines “interested party” as being “any person or body having an interest in the outcome of the environmental assessment for a purpose that is

neither frivolous nor vexatious.” However, access by non-residents to

certain recourses may encounter problems on a practical level with

respect to notification.

Although the Act provides for the establishment of joint review

panels with governments of foreign states in the event that projects carried out in Canada may have significant adverse environmental effects

outside Canada, notification is left to the Minister of the Environment.206

The identification of interested non-resident parties and the timeliness

of the notice to such non-resident parties remain practical obstacles. To

some extent, these obstacles are addressed by the public registry system

established pursuant to the Act. This registry contains key documents

concerning projects undergoing an assessment; it can be accessed

through the Internet, at the following address: <http://www.ceaa.gc.

ca/index_e.htm>.

As regards territorial scope, the CEAA expressly includes the environment outside Canada as part of the scope of an assessment, unlike

most of its provincial counterparts.207 It also contains additional express

provisions dealing with extraterritorial effects. Section 47 allows the

Minister of the Environment and the Minister of Foreign Affairs to refer

to a mediator or a review panel any assessment on projects that may

cause significant adverse environmental effects outside Canada. This

would support the potential access by non-residents concerned with

possible environmental impacts of a proposed project, to the EA process.

At the provincial level, there is nothing in environmental assessment legislation to exclude non-residents from the assessment process.

However, there may be jurisdictional constraints on the ability of the relevant agency to consider extraterritorial impacts in the assessment process.

In Ontario, the Environmental Assessment Actlimits the definition of

environment to “in or of Ontario.” This is further emphasized by the

Purpose clause of the Act, which identifies the purpose as for “the betterment of the people of the whole or any part of Ontario by providing for

TRANSBOUNDARY ACCESS TO COURTS 271

206. Canadian Environmental Assessment Act, supra, note 188, s. 48. For a discussion of the

transboundary sections of the CEAA, see S.A. Kennett, “The Canadian Environmental Assessment Act’s Transboundary Provisions: Trojan Horse or Paper

Tiger?”, (1995) 5 J. Env. L. & Prac. 263.

207. CEAA, s. 2(1).
the protection, conservation and wise management in Ontario of the

environment.”208 These provisions raise the question as to whether any

impacts outside Ontario can be considered in the EA process. To date, it

does not appear that this issue has been ruled on by the courts. Hence, it

is not clear whether any non-resident would have a legal interest that

would sustain participation in the public consultation process.

In Québec, there is no similar limitation in the Environmental Quality Act on the definition of environment. However, the applicable regulation does state expressly that it applies to the whole of the territory of

Québec, except for specific areas covered by other EA processes under

Québec law.209 Thus, the same concerns as in Ontario arise over the

scope of an assessment and the ability of non-residents to sustain a legal

interest in the process based on concerns over foreign impacts.

3.2.4 Application in Mexico

Article 34 of the LGEEPA lays out the procedure to be followed

where the environmental authority agrees to conduct a public consultation on environmental impacts of a proposed project. In its third paragraph, the article states that only members of the affected community

may request a public hearing. The requirement that interested parties

belong to the affected community thereby excludes persons who do not

form part of that community, whether they are Mexican citizens or foreign nationals.

Provision is made for cooperation between federal and local

authorities in cases where activities will impact the environment of any

given state.

Under article 34(IV), any interested party may propose measures

for the prevention and mitigation of environmental damage, in addition

to those imposed by the environmental authority.

Federal and local provisions governing protected natural areas

also provide the right to those living in the respective community to participate at the various stages of the process, from the creation to the management or administration (as the case may be) of such areas.

It is worth noting as well that Mexico’s environmental legislation

establishes the principle of “public disclosure,” under which actions

272 TRANSBOUNDARY ACCESS TO COURTS

208. Environmental Assessment Act, supra, note 192, ss. 1 and 2.

209. Environmental Assessment and Review Regulation, supra, note 199, s. 17.
taken by environmental authorities must be published in official journals at both the federal and local levels. Although this measure is limited

in scope, it is a step forward toward greater transparency in environmental management by the authorities.

3.2.5 Application in the United States

Under federal law, affected federal, state and local agencies, Indian

tribes, the proponent of the action, and other interested persons (including those who might oppose the action on environmental grounds) must

be invited to participate in the process of determining the scope of the

EA (“scoping”).210 The public must be given access to a broad range

of information–including background information considered during

scoping–any comments, and the record of decision.211 Any interested

person or organization must be allowed to submit comments on a draft

EIS.212

Neither the NEPA itself nor the implementing regulations would

seem to exclude non-residents. Where a proposed action has

transboundary effect, the courts have allowed non-residents to intervene in the EA process. In Swinomish Tribal Community v. Federal Energy

Regulatory Commission,213 Canadian intervenors were allowed to challenge the adequacy of an EIS prepared by the Federal Energy Regulatory

Commission (FERC) in connection with its approval of an amendment

to the City of Seattle’s license that permitted raising the height of

the Ross Dam on the Skagit River in Washington state. Canadian

intervenors also participated in the hearings held in association with

approval of the license (which were held in the United States). In Wilderness Society v.Morton,214 a non-resident Canadian citizen and a Canadian

environmental organization were permitted to intervene in litigation

testing whether the Secretary of the Interior had complied with the procedures of the NEPA in issuing a permit for the trans-Alaska pipeline.

Canadian petitioners were permitted to intervene because their interests

might diverge from those of the existing American parties.

Although the NEPA seems to make no distinction between potential environmental effects that are within the United States and those

TRANSBOUNDARY ACCESS TO COURTS 273

210. 40 C.F.R. § 1501.7.

211. 40 C.F.R. §§ 1506.6 (public involvement) and 1505.2 (record of decision in cases

requiring EISs).

212. 40 C.F.R. § 1503.1(a)(4) (inviting comments).

213. 627 F.2d 499 (D.C. Cir. 1980).

214. 464 F.2d 1261 (D.C. Cir. 1972).
that may have transboundary effects, there is a general presumption, as

already noted, that United States laws do not apply extraterritorially,

absent an express statement of legislative intent or the existence of foreign conduct that causes direct effects in the United States. One court has

held that the NEPA of 1969215 requires an environmental impact statement with respect to federal agency activities in Antarctica, but it is

unclear whether that holding would extend to actions in other contexts.216

In the case of proposed actions within the United States that have

potential transboundary effects, it now seems fairly clear that these

effects are to be taken into account in the NEPA analysis. The US courts

have recognized the interest of non-residents to participate in the NEPA

process where there are transboundary effects.217 Recently, the Council

on Environmental Quality–the agency charged with implementing the

NEPA–issued a guidance memorandum for the application of the NEPA

analysis to potential transboundary effects. This memorandum purports only to clarify the existing policy, rather than creating new policy,

and states that it does not expand the range of actions to which the NEPA

currently applies. The guidelines apply only to actions that take place

within the United States and its territories and not to actions outside the

jurisdiction of the United States. The guidance directs agencies “to

include analysis of reasonably foreseeable transboundary effects of

proposed actions in their analysis of proposed actions in the United

States.”218 The guidance further states that federal agencies should use

the scoping process to identify actions with potential transboundary

effects. The guidance states that the analysis with regard to

transboundary effects should be included in the EA or EIS prepared for

the proposed action.219

274 TRANSBOUNDARY ACCESS TO COURTS

215. 42 U.S.C. § 4331 ff.

216. See Environmental Defense Fund Inc. v. Massey, supra, note 132, at 531 (the NEPA

requires the National Science Foundation to prepare an EIS for agency actions to be

taken in Antarctica); NEPA Coalition of Japan v. Aspin, supra, note 132 (the NEPA

does not require the Defense Department to prepare an environmental impact

study for military installations in Japan). See also Defenders of Wildlife v. Lujan,supra,

note 134 (holding that the Endangered Species Act applies to actions that threaten species outside the United States), rev’d on other grounds at 504 U.S. 555 (1992).

217. Wilderness Society v. Morton, 463 F.2d 1261 (D.C. Cir. 1972) (Canadian environmental groups allowed to intervene in litigation testing whether the Secretary of Interior

had complied with the requirements of the National Environmental Policy Actin issuing a permit for the trans-Alaska pipeline), Swinomish Tribal Community v. Federal

Energy Regulatory Commission, supra, note 213 (Canadian intervenors allowed to

challenge the adequacy of an EIS prepared by the FERC, where proposed agency

action would have impacts in Canada).

218. Council on Environmental Quality Guidance on NEPA Analyses for Transboundary

Impacts, 1 July, 1997.

219. Ibid.
In Swinomish Tribal Community v. Federal Energy Regulatory Commission, discussed above, one of the issues the court addressed was

whether the FERC, in approving the license for an increase in the height

of the Ross Dam, complied with the NEPA by adequately considering

the environmental impact on lands in Canada.220 The International Joint

Commission (IJC) had investigated the environmental effects in Canada

resulting from raising the dam. The IJC report was then incorporated as

part of the EIS. The court concluded that careful consideration had been

given to the effects in Canada and that the record showed these effects

had been adequately evaluated in compliance with the NEPA.221

Consequently, there is no longer any reason to suggest, at least

under federal EA law in the United States, that there is a territorial

restriction in the legislation to including transboundary impacts, and

hence persons capable of representing them effectively, in the EA process.

3.3 Participation in Permitting and Siting Decisions

3.3.1 Description

Permitting and siting decisions take place routinely, at both the

federal and state/provincial level, for all three Parties. Permitting and

siting decisions can include not only approval of the location of a facility

or activity that can, by its nature, have some environmental impacts, but

can also include express conditions on the construction, operation,

safety, or other aspects of the facility as part of the permit decision.

Hence, these types of decision are an important feature of many environmental control and management regimes.

Public participation in the elaboration, administrative review or

implementation of permitting and siting decisions can be an important

aspect of seeking to prevent environmental damage before it occurs.

Such participation varies from place to place and legislation to legislation.

TRANSBOUNDARY ACCESS TO COURTS 275

220. 627 F.2d 499 at 505 (D.C. Cir. 1980).

221. Ibid. at 512. The IJC report was initiated pursuant to the International Boundary

Waters Treaty between Canada and the United States, which established the IJC.

The report is entitled “Environmental and Ecological Consequences in Canada of

raising the Ross Lake in the Skagit Valley to Elevation 1725.” It is discussed at pp.

510-512 of the case report.
The critical issue for this section is whether, to the extent that public

participation in permitting or siting decisions or similar types of authorizations is available in a jurisdiction, those from outside that jurisdiction

who might be affected by the decision can participate in the process.

In Canada, federal law requires permits for activities that may

cause environmental damage, such as ocean dumping, transboundary

movements of hazardous wastes, or alterations to fish habitats.222 However, there are no specific rights of public comment provided for in the

legislation for such permits.223

There are also other sectoral acts, such as those relating to oil, gas

and electricity export facilities, that require the consideration of environmental impacts before a permit can be issued.224 Where such acts are

involved, they would determine the specific rights of public involvement in relation to the consideration of the environmental impacts. In

addition, decisions of specialized agencies established by these types of

acts may also be subject to the CEAA and whatever public review processes would be applicable under its terms.

Provincial laws, by contrast, can be heavily focused on permitting

decisions, often allowing only very minor activities to take place without

a permit being obtained. Public participation, however, is still often limited. In Québec, for example, there are no provisions for public input into

these types of decisions under the Environmental Quality Act.225

In Ontario, the Environmental Bill of Rights does establish a set of

public participation rights for different types of siting or permitting

decisions. The scheme is detailed, and can only be outlined here.226

276 TRANSBOUNDARY ACCESS TO COURTS

222. CEPA, supra, note 94, ss. 45(3), 71; Fisheries Act, supra, note 95, s. 35(2).

223. Note, however, that several types of permit are subject to assessment under the

CEAA prior to being issued. Hence, opportunities for public comment could arise

in this way. The permit and similar decisions that are subject to the CEAA are set out

in the Law List Regulations, SOR/94-636. This is the most critical of the regulations

here. But see also the Inclusion List Regulations, SOR/94-637 and the Comprehensive

Study List Regulations, SOR/94-638.

224. E.g., National Energy Board Act, R.S.C. 1985, c. N-7, ss. 34, 35, 36.

225. See the discussion and cases cited in L. Giroux,supra, note 171, at 289. Unofficially, a

directive exists that allows a person seeking a permit or authorization thirty days’

notice to comment in the event it is going to be refused. No similar directive exists

for other public input.

226. The scheme is developed in ss. 3-48 of the Environmental Bill of Rights. For a full

review and discussion, see Paul Muldoon and Richard Lindgren, The Environmental

Bill of Rights: A Practical Guide, (Emond Montgomery Publications, 1995). The summary description that follows draws from the Bill, as well as the description provided by Muldoon and Lindgren. Note that environmental assessment decisions

are exempted from this process as they undergo a substantially equivalent process.
Essentially, a wide variety of government decisions are intended to be

set out in a regulation on a minister-by-minister basis. (To date, only the

Ministry of Environment and Energy has done this.) All permitting, siting, and other decisions listed in the regulation are then grouped into

Class I, II, or III decisions by the responsible ministry for public input

purposes.227 The primary guiding factors are the anticipated environmental impact of the decision and the amount of public interest. Public

consultation is then scaled according to the class of each individual decision. Class I instruments are subject to very limited public input rights.

Class III decisions are subject to full public hearings. The public is notified of all pending decisions via a public registry located in each municipality; the registry is also available through the Internet, at the following

address: <http://www.ene.gov.on.ca/envision/env_reg/ea/English/

index.htm>. A minimum thirty-day comment period applies to all decisions covered by the process.

Following public notification of the decision being made, there is

an appeal process to the Environmental Appeal Board. This right of

appeal must be exercised by someone with “an interest” in the decision,

though how narrowly or broadly such an interest is to be defined is not

clear in the Bill.228 There is also a right to seek a review by the responsible

minister of any permit, authorization, etc., if two persons resident in

Ontario believe that the failure to do so would harm the environment.229

Mexican laws do not generally establish a right for the public to

comment on permitting decisions. There are no means allowing interested persons to comment on draft permits or participate in public hearings on permits.

The one exception, as noted earlier, is Article 59 of the Ley de

Equilibrio Ecológico y Protección al Ambiente del Estado de Baja California,

which grants communities the right to request an environmental impact

study.

Nevertheless, the LGEEPA and the environmental laws of the

northern border states allow individuals to file objections to permits and

other decisions through the Review Action.

At the federal level, the Review Action superseded the Dissent

Action, which was abrogated by the 1994 Ley Federal de Procedimiento

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227. Classification of Proposals for Instruments Regulation, O. Reg. 681/94.

228. See Muldoon and Lindgren, supra, note 226, at 96-102.

229. Environmental Bill of Rights, supra, note 100, ss. 71-73.
Administrativo (Federal Administrative Procedure Act).230 This remedy

is available against acts or decisions that are, inter alia, illegal because

they have been issued by an authority acting without jurisdiction, without respecting legally required formalities, or without sufficient legal

basis.231

The Review Action must be submitted in writing by “interested

persons aggrieved by final acts or decisions of administrative authorities”232 within fifteen days of the date on which notification of such acts

or decisions has been made.233 This remedy is therefore not open to any

interested party, but only to those with a direct interest as a result of the

harm suffered from the act or decision.

The review action must specify the “prejudice” caused to the interested person, and it will be dismissed if no legal interests are affected by

the act or decision in dispute.234 However, the authority that issues a

finding on the contested act or decision must annul such act or decision if

a “manifest illegality is evident even if no sufficient prejudice is identified.”235

Execution of the act being challenged is suspended pending the

outcome of an action, if the petitioner so requests, the appeal is in order,

and the public interest is not affected. In addition, if the rights of third

parties may be affected, the posting of a bond is required to cover possible damage to them.236 “Security measures” may also be requested in

order to protect public health or safety.237 No time limit is imposed on

the authorities for issuing their decision pursuant to a Review Action.

The states and Federal District have laws governing administrative procedures which specify their elements, requirements, and effects.

The Federal Administrative Procedure Act is not applicable to cases

which fall within local jurisdiction. The right to file a Review Action is

subject to the claimant’s legal interest in the matter.

Although the Federal Administrative Procedure Act does not contain any specific residence or nationality requirements for seeking an

administrative review (instead requiring only that the claimant have a

278 TRANSBOUNDARY ACCESS TO COURTS

230. Diario Oficial (Official Gazette), 4 August, 1994.

231. Ibid., Art. 3.

232. Ibid., Art. 83.

233. Ibid., Art. 85.

234. Ibid., Art. 89(II).

235. Ibid., Art. 92.

236. Ibid., Art. 87.

237. Ibid., Art. 81.
legal interest in the matter), it must be noted that Article 180 of the

LGEEPA–which establishes the right to request a review of acts of the

authority that are deemed to violate environmental regulations, or to

demand effective enforcement of these same regulations–limits this

right to those who form part of the affected community.

There is, finally, the case of interested parties residing within natural protected areas, who have the right to participate in the creation,

management, and administration of these areas.

In the United States, many federal laws rely on permits by which

agencies authorize activities that are otherwise prohibited.238 Federal

laws also often provide for states to establish or administer permitting

programs. A final permit is a final agency action subject to judicial

review under the Administrative Procedures Act (APA).239

Federal statutes that include permits generally allow “interested”

persons to comment on draft permits and, under certain conditions, to

request and participate in public hearings on the permits.240 The Clean

Air Act, for example, sets out the minimum elements of a permit program to be administered by any air pollution control agency. These minimum elements include procedures for public notice and opportunity

for public comment and a hearing as well as the opportunity for judicial

review in state court of the final permit action by any person who participated in the public comment process.241 The Clean Water Act requires

that all permit applications and permits issued under the national pollutant discharge elimination system (NPDES) be available to the public,242 that there be an opportunity for public hearing,243 and that state

permit programs approved under the NPDES insure the public receives

notice of each application for a permit and provide an opportunity for

hearing.244 Similarly, state laws that use a permit system generally give

individuals an opportunity to comment on proposed permits before

they are issued.

TRANSBOUNDARY ACCESS TO COURTS 279

238. See, e.g., Clean Air Act §§ 501-507, 42 U.S.C. §§ 7661-7661f; Clean Water Act § 402, 33

U.S.C. § 1342; Endangered Species Act § 10(a), 16 U.S.C. § 1539(a).

239. See section 4, infra, for a discussion of judicial review of agency action.

240. See, e.g.,Clean Air Act § 502 (b)(6), 42 U.S.C. § 7661a (b)(6); 40 C.F.R. §§ 124.11, 124.12

(permits under Clean Water Act, Resource Conservation and Recovery Act (RCRA).

241. 42 U.S.C. § 7661a(b)(6). EPA has interpreted this to require states to grant standing

for review to participants in the public comment process who meet the Article III

elements of standing. Virginia v. Browner, 80 F.3d 869 (4th Cir. 1996), cert. denied,

117 S. Ct. 764 (1997).

242. 33 U.S.C. § 1342(j).

243. 33 U.S.C. § 1342(a)(1).

244. 33 U.S.C. § 1342(b)(3).
3.3.2 Potential barriers to transboundary access to permit and siting

decisions

Once again, residency requirements and the territorial scope of the

relevant statutes pose the largest potential barriers to transboundary

access to permit and siting decisions.

The issue of the territorial scope of laws as it relates to permitting

and siting decisions concerns the inclusion of environmental impacts

and input from outside the local jurisdiction, but does not include the

question of permitting facilities outside that jurisdiction.

There is also the question of implicit territorial limitation for those

statutes that do not expressly limit the scope of the act to the territory of

the enacting legislative authority. Judicial and administrative bodies

may very well consider that the purpose of environmental protection

statutes is to protect the environment within the territorial boundaries of

the province or territory. Statutory recourses for effects outside those

boundaries may be deemed to exceed the scope of legislative intent and

ability. As pointed out by one author, “territorial limitations imposed by

legislation may limit the range of ... inquiry”245 in a policy-setting consultation (i.e., if the consultation is with respect to activities and effects

within provincial boundaries, non-residents may not be able to bring up

concerns regarding effects outside provincial boundaries).

3.3.3 Application in Canada

Federally, significant participatory rights are limited to specialized

statutes. The National Energy Board Act, for example, provides for those

whose lands might be directly affected by a proposed pipeline or power

line to make an objection to the proposal. This would trigger a public

hearing in the area where the land is located. Beyond that, other “interested” persons may file objections to a proposal or appear before the

Board in a public hearing process. The Board is given the discretion to

determine who is an interested person for this purpose.246

As noted above, of the provincial jurisdictions being examined in

detail here, only Ontario provides significant rights for public input into

permits and similar types of authorizations or decisions. Under the Environmental Bill of Rights, however, these rights are only available to

280 TRANSBOUNDARY ACCESS TO COURTS

245. Muldoon, supra, note 56, at 187.

246. National Energy Board Act, supra, note 224, ss. 34(4), 35, 52-53.
Ontario citizens. This appears to be the case as a result of the purpose

section, which references access to participation in government decisions impacting the environment for Ontario residents.247 Similarly, an

application for review of a policy, statute, regulation or instrument can

only be made by no fewer than two residents of Ontario.248

There are also examples in Canada of explicit territorial scope limitations in provincial legislation that impact on permitting or siting

decision-making. For example, we have already noted that Ontario’s

Environmental Protection Act defines “natural environment” in section

1(k) as the “air, land and water, or any combination or part thereof, of the

Province of Ontario.”249 Presumably, this would exclude foreign environmental considerations and would diminish, if not eliminate, the role

of foreign input into decision-making. However, section 3(2) of this Act

states that “no action taken under this Act is invalid by reason only that

the action was taken for the purpose of the protection, conservation

or management of the environment outside Ontario’s border.”250

Although this would seem to contradict the territorial limitations of the

definition of “natural environment,” it would appear to prevent the

rejection of governmental actions that factor in environmental harm that

affects people and property outside Ontario borders.

The same restrictive definitions of “environment” are found in the

environmental bill-of-rights type of provincial statute.251 In Ontario,

public participation in the environmental decision-making process is

limited to residents, but is also likely to be limited by the territorial scope

attributed to the Environmental Bill of Rights.

At the federal level, neither the Canadian Environmental Protection

Act (CEPA) nor the Canadian Environmental Assessment Act restrict the

definition of “environment” to the Canadian environment. Nothing in

these Acts would limit a foreign resident who suffers, or who may suffer,

damage in a foreign jurisdiction from the release of a toxic substance in

Canada, from seeking to use this legislation on the basis of an explicit

limitation to the territory of Canada. However, there are few permitting

TRANSBOUNDARY ACCESS TO COURTS 281

247. Environmental Bill of Rights, supra, note 100, s. 2(3)(a). And see the commentary in

Saxe, supra, note 101, p. EBR-16 concerning the controlling nature of section 2(3).

248. Ibid., s. 61. However, section 66 provides that the minister shall give a notice of the

application for review to any person the minister considers ought to get a notice

because that person may have a direct interest in the matters raised in the application. The term “person” could include non-residents. Here a non-resident could

intervene in the process but could not initiate the application.

249. Environmental Protection Act, supra, note 102, s. 1.

250. Ibid., s. 3(2).

251. Ontario’s Environmental Bill of Rights, supra, note 100, s. 1.
powers under the CEPA, and these have an even more limited relationship to siting of facilities.252

The Fisheries Act does appear to have a territorial limitation, as

already noted. However, as there are no public input processes, this

would be of little impact for present purposes.

More specific sectoral statutes would have to be looked at for their

possible limitations. The National Energy Board Act, for example, in dealing with international pipelines and power lines, would include the consideration of impacts in the partner country within its scope of study.

This would suggest that persons in such jurisdictions would also have

an interest that supports their input into the process as interested persons under the Act.

3.3.4 Application in Mexico

A Review Action under Article 180 of the LGEEPA can only be

filed by persons from the affected community. Therefore, only residents

of communities where impacts of activities from a facility operating with

a permit granted in violation of the LGEEPA are suffered may file an

action to nullify the permit. Despite the fact that this right is subject to a

person’s domicile (by requiring that the claimant in a review action be a

member of the affected community), the provision does not necessarily

exclude cross-border communities. This interpretation has not yet been

tested and it remains to be seen in practice what consideration, if any, the

federal environmental authority will give to actions for reversal filed by

cross-border communities.

Article 59 of the Ley de Equilibrio Ecológico y Protección al Ambiente

del Estado de Baja California (at least part one of that article) could be interpreted in the same way as Article 180 of the LGEEPA, leading to the conclusion that affected groups on any side of the border would be entitled

to request an environmental impact study. On the other hand, an interpretation based on the reference to “society” could lead to the opposite

conclusion. Part two of Article 59 refers to the “community” as the one in

which the work or activity for which the environmental impact study

has been requested is to take place. Consequently, the reference in that

section that a complainant be a group “representing a substantial con282 TRANSBOUNDARY ACCESS TO COURTS

252. The main permitting functions are for ocean dumping, certain imports or exports of

ozone depleting substances, and the export or import of hazardous waste. The latter

is not a permit, but requires the issuance of a letter of consent by the federal government.
sensus of the local community” indicates that domicile within the territory of Baja California is a requirement for standing.

With regard to protected natural areas, the right to participate is

likewise linked to domicile, in this case domicile in a protected natural

area, which therefore excludes persons and communities from abroad

since the “protected natural areas” referred to in the law are those established on Mexican territory.

3.3.5 Application in the United States

The provisions for public participation in the permitting process

generally do not explicitly restrict the public to residents in the United

States. There has been little case law on this point. In an October, 1996,

unpublished opinion, a Texas administrative law judge allowed the city

of Juarez, Mexico, and Greenpeace Mexico to intervene in an administrative proceeding on whether to issue a permit for a low-level radioactive

waste disposal facility in Texas. It is unclear whether intervention would

be permitted in other cases, particularly given that an unpublished case

has little value as precedent. The fact that the proposed location of the

facility is near the Texas-Mexico border was enough to support their

intervention.

As noted previously, there is a general presumption against the

extraterritorial application of US laws, absent an express statement of

legislative intent or the existence of foreign conduct that causes direct

effects in the United States. The extent to which a statute or regulation

providing for permitting will be deemed to be concerned with the extraterritorial or transboundary effects of the facility being permitted will

depend on the scope of the statute. A federal appeals court has found

that the Environmental Protection Agency is not required to take into

account effects outside the United States when issuing regulations

under theToxic Substances Control Act because it is concerned exclusively

with domestic issues.253

3.4 Participation in Regulation and Rule-making

3.4.1 Description

Many environmental statutes provide substantive content as well

as directions to administrative officials to develop further rules in the

TRANSBOUNDARY ACCESS TO COURTS 283

253. Corrosion Proof Fittings v. Environmental Protection Agency, 947 F.2d 1201 (5th Cir.

1991).
form of regulations.254 To what extent is the public able to participate in

this process? Do these opportunities extend to non-residents? This section looks at express provisions that go beyond a general right of any

person to send in comments to a minister, legislature, or government

department concerning their activities.

Canada. In Canada, the making of regulations is generally governed by the Statutory Instruments Act.255 Under this Act, regulations

must be published in draft form in the Canada Gazette Part I, usually

30 days prior to the intended date of finalization. In some circumstances,

this period can be extended to 60 days, while in others it can be eliminated altogether. The 30 to 60-day period is a public comment period for

all interested persons.

The Canadian Environmental Protection Act (CEPA) includes a

requirement for the publication of some regulations at least 60 days prior

to their being finalized.256 In addition to this, the CEPA has put in place

several provisions that allow public involvement in regulatory processes. These include the right to ask that a substance be placed on the

Priority Substance List for in-depth assessment as to whether it qualifies

as a toxic substance under the Act;257 objections to decisions not to place

a substance on the Toxic Substance List;258 seeking to ensure regulatory

action is taken after a delay of five years from when a substance is placed

on the Toxic Substance List; and requesting a board of review to consider

proposed regulations.259 The board of review, when requested, can be

convened to determine the toxic or other harmful nature of the substance

at issue and the degree of danger posed by that substance. These are best

described as technically oriented functions, and do not carry a regulation-making power per se. The establishment of the board is generally a

discretionary act for the minister. The exception to this is for proposed

international air pollution regulations. In that case, when a notice of

objection is received from any person or from a foreign government that

might be impacted by or benefit from such a regulation requesting a

board, it must be established.260 When a board of review is convened, it

shall give any person an opportunity to appear before it.

284 TRANSBOUNDARY ACCESS TO COURTS

254. These are often referred to as “technical regulations” in Mexico and are legally binding.

255. R.S.C. 1985, c. S-22.

256. Canadian Environmental Protection Act, supra, note 94, s. 88, dealing with ocean

dumping issues.

257. Ibid., s. 12(4).

258. Ibid., s. 13(2).

259. Ibid., ss. 48(2), 51(2), 55(2), 62(2), 86(4), and 89.

260. Ibid., ss. 89(2) and 62(2). While the scope for access is large here, it might be noted

that the international air pollution regulation-making power has not to date been

used by the Government of Canada.
Beyond these legislative requirements, Environment Canada also

has adopted a public consultation strategy that is applied to each regulation-making process. It involves the use of consultations with stakeholders from early in the regulation-making process until its final

completion.261

In Québec, the Regulations Act requires a 45-day public comment

period after a proposed regulation is published and before it can be finalized. Any “interested person” can submit comments during this

period.262 The Environmental Quality Act adds little in the way of further

public participation rights in the regulation-making process.

In Ontario, participation in environmental rule-making is primarily governed by the Environmental Bill of Rights. The process here is very

similar to that described in relation to permitting and siting decisions

(see section 3.3 above), with the operative language for inclusion of

rule-making activities being policies, Acts, and regulations. All new acts

and regulations are subject to public input for a minimum 30-day

period, though more is generally allocated.

Mexico. The Ley Federal de Procedimiento Administrativo (Federal

Administrative Procedure Act) provides that draft administrative regulations may be submitted to the parties concerned for observations and

comments. The conditions for these procedures are the following: a Congressional Law shall provide that administrative regulations for its

branch shall be subject to the process of public hearings; the public interest is affected; and the draft regulations shall previously be published in

the Official Gazette of the Mexican Federation263. For the environment,

the Congressional Law providing for the consultation process is the Ley

de Metrología y Normalización (Metrology and Standardization Act),

which regulates the entire process for setting Normas Oficiales

Mexicanas (Mexican Official Standards), among which environmental

standards are included. Article 47 of this Act provides for the process of

consultation in the establishment of NOMs, while Article 51 of the same

Act provides for the consultation process for amendments to NOMs.

United States. In the United States, federal environmental laws

often set standards that are elaborated and implemented by federal

TRANSBOUNDARY ACCESS TO COURTS 285

261. Environment Canada, “Our Commitment to Effective Consultations,” 27 May 1996.

Available on the Internet at <http://www.doe.ca/consult/policy_e.html>.

262. Regulations Act, R.S.Q., c. R-18.1, s. 11.

263. These procedures will not be observed in situations of emergency, where the

administrative authority may issue a standard without public consultations (Article 48). Such standards may only be in force for a period of six months.
agencies through binding regulations. For the most part, the Department of the Interior implements conservation laws, and the Environmental Protection Agency (EPA) implements the others, including the

Clean Air Act, Clean Water Act, TOSCA, CERCLA, RCRA, etc. Implementation is carried out through the rule-making process, governed at the

federal level by the Administrative Procedures Act (APA).264 In addition,

many federal laws rely on the states for their implementation. The Clean

Air Act, for example, establishes air quality standards that are met

through implementation plans devised by the states and approved by

the EPA.

The Administrative Procedures Act (APA) sets the procedural floor

for federal agency rule-making. It provides for both formal and informal

rule-making, although as a practical matter the formal rule-making

requirements are rarely triggered. Informal rule-making–also referred

to as “notice-and-comment” rule-making–requires publication of proposed rule-making in the Federal Register, an opportunity for public participation by the submission of written comments, and publication of a

final rule and accompanying statement of basis and purpose at least

30 days prior to the rule’s effective date. The statement of basis and purpose must include a reaction to all comments received. If the agency has

rejected an issue raised by the comments, they must state why. Although

the statute says this is to be a “concise” statement, it is often hundreds of

pages long; the requirements have been developed by the courts.265 The

Negotiated Rulemaking Act of 1990 supplemented the APA’s rule-making

provisions, allowing the agency to bring together representatives of

affected interest groups to negotiate the text of a proposed rule.266Once a

final rule is promulgated, it is subject to challenge and review in the

court (see subsection 3.4.5 below).

Federal environmental statutes sometimes add to the APA’s basic

“notice-and-comment” requirements. For example, the Toxic Substances

Control Act (TSCA) requires a hearing on proposed regulations,267 and

the Clean Air Act requires the agency to provide specific information in

support of the proposed rule and allows interested persons an opportunity for oral as well as written presentations.268

State laws require state agencies to provide notice of proposed regulations and an opportunity for private persons to comment on the pro286 TRANSBOUNDARY ACCESS TO COURTS

264. 5 U.S.C. § 553 (also permits certain exemptions, including the exercise of the foreign

affairs function).

265. Davis and Pierce, Administrative Law Treatise § 7.4 (3rd ed., 1994).

266. 5 U.S.C. §§ 581-590.

267. TSCA § 6(c), 15 U.S.C. § 2605(c).

268. Clean Air Act § 307(d), 42 U.S.C. § 7607(d)(5).
posals before the agency finalizes them. These requirements are often

contained in a state Administrative Procedure Act,269 which state environmental laws may supplement.

3.4.2 Potential barriers to transboundary access to regulation and

rule-making

Once again, the main potential barriers to transboundary access

to regulation and rule-making are whether there are any residency

requirements that impact on the ability of non-residents to participate in

the process, and whether there are territorial limitations that would

eliminate or reduce the need for any transboundary input.

As a practical matter, there is currently no means of notifying

potentially affected persons across borders of proposed regulations or

projects, except for the formal diplomatic channels.

3.4.3 Application in Canada

The Statutory Instruments Act contains no residency requirements

for any public comment purposes, and we have already noted that there

are generally no residency requirements in the CEPA. This applies to the

sections that impact on the ability to participate in requesting a public

review board or providing input into the work of such a board. Indeed,

the nature of the regulations that are the potential object of such a

request for a board–which include transboundary movement of hazardous wastes, ocean dumping, and international air pollution–would militate against any residency requirement being employed during the

operation of a board of review, at least in these areas.

The CEPA clearly includes no territorial limitations as to the consideration of environmental impacts, or for the purposes of allowing

public input. As noted above, the aim of several of the sections that are

open to the board of review process are transboundary or international

TRANSBOUNDARY ACCESS TO COURTS 287

269. See, e.g., Alaska Stat. §§ 44.62.190 & 44.62.210; Ariz. Rev. Stat. Ann. §§41-1022 to

41-1023; Cal. Gov’t Code §§ 11346.4 to 11346.7; Idaho Code § 67-5221 to 67-5222; Me.

Rev. Stat. Ann. tit. 5, §§8051-8059; Mich. Comp. Laws Ann. § 24.241; Minn. Stat.

Ann. §§ 14.13-14.28; Mont. Code Ann. § 2-4-302; N.H. Rev. Stat. Ann. §§541-A:6 &

541-A:11; N.M. Stat. Ann. § 12-8-4; N.Y. A.P.A. Law § 202; N.D. Cent. Code

§ 28-32-02; Ohio Rev. Code Ann. § 119.03; Pa. Stat. Ann. tit. 71, §745.5; Tex. Gov’t

Code Ann. § 2001.029; Vt. Stat. Ann. tit. 3, §§ 836-843; Wash. Rev. Code Ann.

§§ 34.05.320-34.05.325; Wis. Stat. Ann. §§ 227.16-227.17.
in nature. Hence, it would be reasonable to assume an openness to the

inclusion of input from persons outside Canada in these circumstances.

In Ontario, where special provisions are set out in the Environmental Bill of Rights, these provisions are open only to residents of Ontario.

This issue has been discussed previously.

The Regulations Act in Québec, s. 11, refers only to “interested

persons.” This could be interpreted broadly or narrowly by different

authorities, but an expectation of environmental impact resulting from a

particular pending decision on a regulation would be a significant

factor.

As regards Ontario, the previous comments on the territorial limitation of the Environmental Protection Act and the Environmental Bill of

Rights apply in this present context as well.

3.4.4 Application in Mexico

The Federal Metrology and Standardization Act establishes no

residency requirement to comment on draft environmental standards. It

requires only that the “interested” persons present their comments to

the ad hoc committees, which will review and respond to them.

Mexican environmental standards have no extraterritorial effects.

Nevertheless, if a facility located in Mexico causes or may cause

transboundary environmental impacts, and that a Mexican Official

Standard is being considered to regulate the activities carried out by that

facility, then members of cross-border communities are allowed to submit comments on the proposed standard.

3.4.5 Application in the United States

The Administrative Procedures Act (APA) allows “interested persons” to comment on proposed rules.270 “Person” is not defined by reference to citizenship or residency. The APA defines “person” as “an

individual, partnership, corporation, association or public or private

organization other than an agency.”271To the extent that there is case law

fleshing out this definition with respect to non-residents, it has involved

the Freedom of Information Act (FOIA).272 Both the FOIA and the

288 TRANSBOUNDARY ACCESS TO COURTS

270. 5 U.S.C. § 553(c).

271. 5 U.S.C. § 551(2).

272. 5 U.S.C. § 552.
rule-making provisions of the APA,273 however, are governed by the

same set of definitions.274 In interpreting the definition of “person” the

courts have found that a foreign government or instrumentality is a

“public or private organization”275 and that an alien is a “person” and

therefore entitled to government records under the FOIA.276

However, in Corrosion Proof Fittings v. Environmental Protection

Agency, the courts found that the TSCA section granting judicial review

of regulations issued under TSCA to “any person” was not sufficient to

grant standing to Canadian petitioners to challenge the rule, since the

TSCA was concerned primarily with domestic issues.277 In this case,

however, the court was dealing with the question of a non-resident

seeking judicial review of agency action, and therefore had to inquire

whether the plaintiff’s interests were within the zone of interests regulated by the statute (prudential standing).278 While this case does not

bode well for non-residents, the threshold for participation in the

rule-making process may arguably be lower than the threshold for

standing in court to challenge the action. In fact, foreign governments

and organizations often submit comments in EPA rule-makings.

In negotiated rule-making, where the agency convenes representatives of interested parties to negotiate a proposed rule, non-residents are

typically not directly included as negotiators. However, an industry

association whose members include non-US companies may, for example, be included as one of the interested parties in the negotiation, and

non-US companies do attend negotiated rule-makings as observers in

these situations.

Some statutes do provide limited rights to participate in administrative rule-making to foreign governments in connection with international environmental harm. The Clean Air Act and Clean Water Act create

procedures through which the EPA may determine that pollution origiTRANSBOUNDARY ACCESS TO COURTS 289

273. 5 U.S.C. § 553.

274. 5 U.S.C. § 551.

275. Neal Cooper-Grain Co. v. Kissinger, 385 F.Supp. 769 (D.D.C. 1974). This case dealt with

a request for information under the Freedom of Information Act, 5 U.S.C. § 551, by the

Mexican government.

276. O’Rourke v. Department of Justice, 684 F.Supp. 716 (D.D.C. 1988). This was an immigration case, which makes it unique in some ways.

277. Corrosion Proof Fittings v. Environmental Protection Agency, supra, note 253, at 1211. In

this case the Canadian petitioners were producers and manufacturers of asbestos

challenging an EPA regulation that prohibited future manufacturing, importation,

processing and distribution of asbestos. It is fairly clear that had the petitioners been

US producers and manufacturers of asbestos they could have challenged the rule.

278. See section 4, infra for a discussion of judicial review of agency action.
nating in the United States endangers public health or welfare in a foreign country and may take actions to stop the pollution.279 The foreign

country that might be affected may participate in hearings on the issue.

The procedures only apply, however, if the foreign country gives the

United States essentially the same rights. In practice, the EPA has never

triggered either law’s procedure.280

As discussed previously, there is a general presumption that US

law does not apply extraterritorially, absent an express statement of legislative intent or the existence of foreign conduct that causes directs

effects in the United States. The territorial scope of the rule-making process will probably depend upon the scope of the statute under which a

given rule is issued. In Corrosion Proof Fittings v. Environmental Protection

Agency, Canadian plaintiffs unsuccessfully argued that the EPA should

have taken into account the effects of a rule issued under the TSCA outside the country.281 The court ruled that the TSCA does not require the

EPA to consider effects outside the United States. Generally, federal

environmental law (and state environmental law) is concerned primarily with the national (or state) environment.

4.0 ACCESS TO JUDICIAL REVIEW OF ADMINISTRATIVE

ACTIONS

4.1 Description

The principle object of judicial review is to have the courts review

the legality of a governmental action or decision. The role of the court in

judicial review is to examine whether the act is or would be legal, and

provide an appropriate remedy if it is not. This can include injunctions to

prevent certain acts, remedies quashing the decisions in question, or

orders for the government agency to perform certain functions. Damages are not generally awarded in judicial review cases.

290 TRANSBOUNDARY ACCESS TO COURTS

279. Clean Air Act § 115, 42 U.S.C. § 7415; Clean Water Act § 310, 33 U.S.C. § 1320.

280. See Her Majesty the Queen in Right of Ontario v. US E.P.A., 912 F.2d 1525 (D.C. Cir.

1990), in which the Court rejected Ontario’s argument that the EPA’s failure to

make finding under Clean Air Act § 115 violated its obligations under the Administrative Procedures Act. While pollution originating in the United States was harming

Canada in the form of acid precipitation and Canada provided a reciprocal right,

the EPA had refused to make the required endangerment finding because it could

not identify a particular source. Since the statute required the EPA to take action to

abate the pollution, the EPA had interpreted the statute to mean that they were not

required to make the endangerment finding unless they could identify the specific

source of the harm. The court deferred to the EPA’s interpretation of the statute.

281. 947 F.2d 1201 (5th Cir. 1991).
Judicial review can apply to the legality of a governmental decision

on a new regulation, a permit or other authorization, an environmental

impact assessment review, and many other types of environmentrelated government decisions.

Canada. The Canadian legal system allows judicial review of government action or inaction. This extends to reviewing whether a government agency, administrative body or tribunal, or a public official has

acted (or failed to act) fairly, reasonably, impartially, and within its

authority. A precondition to this review is sometimes the exhaustion of

all administrative rights of appeal from the decision of the administrative body.

At the federal level, judicial review of decisions by ministers,

departments, boards, commissions or tribunals must be brought pursuant to the Federal Court Act.282 The remedies include the traditional prerogative remedies of certiorari, prohibition and mandamus as well as

injunctions and declaratory relief. One of the most active areas of judicial

review over the past eight or nine years has, in fact, been environmental

assessment law, with some hundred cases filed before the courts on the

federal law alone in this period.283

Provincial courts have supervisory jurisdiction over the administrative actions of provincial government authorities, agencies, boards,

tribunals, and commissions. In some cases, appeals regarding the decisions, recommendations, acts, or omissions of provincial authorities are

made to administrative boards or tribunals prior to judicial review being

available284; in other cases, appeals are made to the appropriate court in

the province.285 The applicable statute must be consulted to ascertain the

type of appeal mechanism available. The types of relief the court may

order include mandamus, prohibition, certiorari, declaration, and relief.

TRANSBOUNDARY ACCESS TO COURTS 291

282. R.S.C. 1985, c. F-7, ss. 18, 18.1, 28.

283. A comprehensive review of this body of litigation is found in Beverly Hobby et al.,

Canadian Environmental Assessment Act: An Annotated Guide (Canada Law Books,

1997).

284. In Ontario, the Environmental Appeal Board hears appeals from orders under the

Environmental Protection Act, supra, note 102, ss. 137-145, including appeals regarding applications for licenses, permits, and authorizations. Section 38 of Ontario’s

Environmental Bill of Rights, supra, note 100, allows any citizen “with an interest”

leave to appeal. More broadly, the Ontario Judicial Review Procedure Act, R.S.O. 1990,

c. J-1, confirms the broad basis for making applications for judicial review.

285. In Québec, appeals from orders of the minister are made to the Commission

municipale du Québec; Environment Quality Act, s. 96.
Mexico. The Amparo procedure is the legal proceeding by means

of which a judicial review of administrative acts is carried. Given the

nature of the procedure, it is an effective means for reviewing actions

taken by both federal and local authorities.

The Amparo procedure is a Constitutional remedy of last resort,

the purpose of which is, inter alia, settling disputes arising from a governmental “law or act” that violates the guaranteed Constitutional rights

of individuals.286 This proceeding extends to federal and local laws,

international treaties, and administrative and other regulations and

decrees or agreements of general compliance that, by virtue of their

entry into force, or as a result of their first act of implementation, cause

harm to a person.287 The Amparo procedure can also be used to contest

both final judicial acts or decisions when violations committed during

trial render a person defenseless or deprive a person of the rights

granted by law.288 The Amparo procedure may also be used against judicial acts or decisions, the execution of which may cause irreparable

harm.289

The Amparo remedy may only be initiated by the party “injured”

by the law or act in question, either directly or through legal counsel. The

Amparo remedy can only be used to redress a prejudice suffered contrary to a right explicitly granted by the law.290

The Amparo procedure allows judges to “suspend the act objected

to” (prohibiting execution of the act pending an Amparo hearing), either

at the court’s initiative or in response to a petition from a complainant.

Where the act in dispute would cause irreparable damage, making it

physically impossible to restore the violated constitutional rights of the

aggrieved person, the court is justified in acting on its own to order such

suspension.291 Suspension of the act objected to consists of ordering the

maintenance of the status quo and preventing the commission of the

act.292

292 TRANSBOUNDARY ACCESS TO COURTS

286. Ley de Amparo, Reglamentario de los Articulos 103 y 107 de la Constitución Politica

de los Estados Unidos Mexicanos.” Official Gazette of the Federation, 10 January, 1936,

Article 1(I).

287. Ibid., Art. 114(I).

288. Ibid., Art. 114(II).

289. Ibid., Art. 114(IV).

290. Ibid., Art. 4.

291. Ibid., Art. 123(II).

292. Ibid., Art. 123.
In the case of a suspension requested by the aggrieved party, an

order to this effect may be issued by the judge provided it is not contrary

to the interest of society or violate provisions of public order,293 and the

damage or injury to the aggrieved person cannot be repaired easily.294

The notion of “legal interest” is central to Mexico’s Amparo procedure.295 Based on Articles 4, 73(V) and 114(I) of the Ley de Amparo, the

federal courts have determined that there is a legal interest wherever the

act objected to (a law or regulation, or the act of a judicial or government

authority) is in direct violation of a right expressly granted to the complainant under the laws of Mexico.

The court decisions and the jurisprudence of the nation’s courts

have delineated with great precision the concepts of “legal interest,”

“injury,” and “act objected to.” The Supreme Court of Justice has used

certain provisions set out in the environmental laws to establish the existence of collective rights which meet the “legal interest” requirements.296

Where an Amparo procedure is sought against acts of the environmental authorities, one must take into account the analysis presented

earlier with respect to Article 180 of the LGEEPA297 for acts carried out

by the federal authority. In this case, the possibility of obtaining a successful result by means of an Amparo procedure is tied to the question of

domicile, since complainant’s “legal interest” is based upon explicit provisions granting the right to request judicial review of the act of an

authority to persons who form part of the affected community. Nevertheless and as noted earlier, this could include members of an affected

community located outside of Mexico’s borders.

Private parties must exhaust review procedures before being

granted standing to file an Amparo procedure as a means of opposing

acts by a government authority which are deemed to contravene environmental laws.

TRANSBOUNDARY ACCESS TO COURTS 293

293. Ibid., Art. 124(II).

294. Ibid., Art. 124(III).

295. There are innumerable citations in the jurisprudence and legal theses handed down

by the Supreme Court, either sitting en banc or its separate Divisions, and the appellate courts of Mexico, referring to this issue–all of which are consistent with respect

to the need for and conceptual design of this law.

296. Amparo en Revisión 435/96. Novena Epoca. Pleno, Semanario Judicial de la Federación y

su Gaceta. Volume V, June 1977, Thesis P, CXI/97.

297. Article 180 of the LGEEPA grants to members of the affected community the right to

initiate legal action corresponding to the Review Action.
United States. In the United States, judicial review of final federal

agency action is governed by the Administrative Procedures Act (APA).298

After an agency makes any type of final decision, including issuing a

permit, a final regulation, an administrative order, or an environmental

impact statement, private persons may challenge that decision in court.

The APA provides that a person “adversely affected or aggrieved by

agency action” is entitled to judicial review of that action.299 The federal

court in which review is sought may set aside agency action it finds to be

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or in excess of statutory authority.300 The court may

award only declaratory and injunctive relief, not damages.

Many federal environmental statutes add to these basic APA provisions. For example, they often require challenges to be brought within

a certain period of time and to be filed in a federal court of appeals rather

than a district court.301 The statutes generally do not change the APA

standard of review. The citizen suit provisions of environmental statutes

that allow review of agency action (or inaction) are also discussed above.

Like federal environmental law, state law generally provides for

judicial review of state agency regulations or other final agency decisions, either through a state administrative procedures act or provisions

in specific statutes. Judicial review is usually available at the request of

persons “adversely affected” or “aggrieved” by the agency action.

4.2 Potential barriers to transboundary access to judicial review

We have already noted that there are few residency requirements

for access to the courts for civil or common law actions today, or for

actions under specific environmental statutes. Here, we will find the

same general situation with respect to legal actions for judicial review.

As in the previous sections, the second main potential barrier is the

territorial scope of the relevant laws. Again, there are some variations in

the application of this potential barrier.

294 TRANSBOUNDARY ACCESS TO COURTS

298. 5 U.S.C. §§ 701-706.

299. 5 U.S.C. § 702.

300. 5 U.S.C. § 706.

301. See, e.g., TSCA § 19, 15 U.S.C. § 2618; Clean Water Act § 509, 33 U.S.C. § 1369; Solid

Waste Disposal Act § 7006, 42 U.S.C. § 6976; Clean Air Act § 307, 42 U.S.C. § 7607;

CERCLA § 113, 42 U.S.C. § 9613.
4.3 Application in Canada

The application for judicial review of federal acts or decisions can

be made by “anyone directly affected by the matter in respect of which

relief is sought.”302 Over the years, the courts have established broad

rules of standing to determine who qualifies as “directly affected.”303

Arguably, non-residents have the same access to the federal judicial

review process, provided that their interests are “directly affected.”

However, if the territorial scope of the application of a law is limited to Canada, a foreign resident may then lack an interest in the substantive issue against which a claim for judicial review could be made.

This is the case, for example, with some of the Fisheries Act provisions, as

already noted. This would be the major factor in considering whether

there is a territorial scope to the substantive issue being raised in the

application for judicial review. This question has been canvassed in previous sections, for both federal and provincial laws.

Article 57 of Québec’s Code of Civil Procedure expressly authorizes

persons from outside the province, who are authorized by the laws of

their own jurisdiction to appear in court, to initiate an action in Québec.

In Ontario, there is an implied right of non-residents stemming from the

provisions on posting a bond for costs.304

4.4 Application in Mexico

There are no residency requirements to file an Amparo suit, the

Mexican action equivalent to judicial review. An aggrieved person who

resides outside of Mexico has the right to sue for an Amparo remedy

against a final judicial sentence or administrative decision within 180

days from the date such person acquires knowledge of the said sentence

or decision.

The Amparo remedy is also not restricted by the territorial scope of

Mexican environmental laws. As already noted on several occasions,

Mexican law generally rules all the persons within its boundaries, as

well as the acts or events occurring in its territory or jurisdiction. ThereTRANSBOUNDARY ACCESS TO COURTS 295

302. Federal Court Act, supra, note 282, s. 18.1.

303. Friends of the Island Inc. v.Canada (Min. of Public Works), [1993] 2 F.C. 229 at 235 (T.D.).

See also D. Sgayias et al., Federal Court Practice 1996 (Scarborough, Carswell, 1996) at

763-767. In fact, in Energy Probe v. (Canada) Atomic Energy Control Board, [1985] 1 F.C.

563 (C.A.), it was held that issues should not be immune to review by the application of overly stringent rules of standing.

304. Ontario Rules of Procedure, s. 56.01(1).
fore, if a foreigner is injured by an act of the Mexican authorities, he can

seek to have his rights enforced or have a violation of a right prevented,

redressed, or compensated, whether he is in Mexican territory or not.

This is because the link to make Mexican law applicable is either the personal presence in Mexican territory, or the occurrence of the acts or

events in Mexican territory or jurisdiction. The Amparo remedy should

therefore be available in cases of transboundary damages originating in

Mexico.

4.5 Application in the United States

The federal laws allowing private persons to bring challenges to

final agency actions do not explicitly exclude persons on the basis of residency or citizenship. Nevertheless, two environmental statutes may

have de facto residency requirements. The Clean Water Act requires a

plaintiff to seek judicial review of an agency action in the federal court of

appeals for the judicial district in which such person resides or transacts

business which is directly affected by “the challenged action.”305 As a

practical matter, this language would appear to impose a residency

requirement that would exclude residents of Canada or Mexico from

bringing suits for judicial review of agency actions under the Clear Water

Act. The Solid Waste Disposal Act contains similar language.306

In general, state administrative procedures acts that provide that

interested persons may seek judicial review of agency decisions do not

explicitly limit their scope to residents of the state.

In terms of the territorial scope issue, the general presumption in

US law that domestic laws do not apply extraterritorially, absent clear

evidence of contrary legislative intent or direct US effects, has been previously noted. In Corrosion Proof Fittings v. Environmental Protection

Agency,307 Canadian plaintiffs unsuccessfully argued that the EPA

should have taken into account the impact on Canadian workers and the

Canadian economy of a rule banning the sale of asbestos products.

In that case, the US Court of Appeals for the Fifth Circuit applied

the “zone of interests” test, originally designed as a limit on suits seeking

296 TRANSBOUNDARY ACCESS TO COURTS

305. Clean Water Act § 509(b)(1), 33 U.S.C. § 1369(b)(1).

306. Solid Waste Disposal Act § 7006(b), 42 U.S.C. § 6976(b). This language applies only to

certain permit and authorization decisions under the Act, not to every agency decision.

307. Supra, note 253.
judicial review of agency actions pursuant to the APA.308 The APA

grants standing to a person “aggrieved by agency action within the

meaning of a relevant statute.”309 The Supreme Court has interpreted

this to mean that the complainant must be “adversely affected or

aggrieved, i.e., injured in fact,” and that the interest sought to be protected by the complainant be arguably within the zone of interests to be

protected or regulated by the statute or constitutional guarantee in question.310

Corrosion Proof Fittingsis the only case that has discussed the application of the “zone of interests” test to a non-resident plaintiff in the context of judicial review. Both US and Canadian entities challenged an EPA

rule issued under the Toxic Substances Control Act. The Canadian parties

argued that the EPA had erred by not considering the economic effects of

its rule banning asbestos products on foreign workers and countries. A

federal court of appeals held that the Canadian parties were not within

the TSCA’s zone of interests because the statute does not require the EPA

to consider the economic effects of its actions outside the United States.

The court’s discussion also might imply that the EPA is not generally

required to consider the extraterritorial environmental effects of its

actions. For instance, the court noted that the statute “speaks of the

necessity of cleaning up the national environment and protecting

United States workers but largely is silent concerning the international

effects of agency action.”311 If other courts follow this analysis, nonresident plaintiffs will have a difficult time establishing standing to

review agency rules under the federal environmental statutes because

they tend to emphasize national rather than international concerns.

5.0 CONCLUSION

A number of potential barriers continue to hinder access to the

courts and administrative agencies in North America. Some of these are

based on traditional common law issues, such as the local access rule,

though perhaps to a lesser extent than the fame of the rule might suggest.

But the interpretation of federal, state, and provincial statutes that

address a range of environmental issues also raises some concerns for

transboundary access to the courts. As the source of legal and administrative recourses has moved from the generally applicable common and

TRANSBOUNDARY ACCESS TO COURTS 297

308. See Clarke v. Securities Industry Association, 479 U.S. 388 at 400 n.16 (1986).

309. 5 U.S.C. § 702.

310. Clarke v. Securities Industry Association, supra, note 308, at 395-396 (1986), citing Association of Data Processing Service Organizations Inc. v. Camp, 397 U.S 150, 153 (1970).

311. Corrosion Proof Fittings, supra, note 253, at 1209.
civil law regimes to a mix of these and statutory recourses, these statutory barriers either eliminate or, in some cases, reduce the effective

access of citizens in the other country to domestic legal and administrative processes. While the relatively small number of published decisions

on transboundary environmental harm make easy characterizations difficult, few jurisdictions appear to provide unrestricted access to all their

legal remedies.

The paper demonstrates that several governments have taken

important steps to reduce barriers to equal access in some areas. However, these important steps do not yet apply to all the potential barriers.

Barriers in Mexico appear to be of a different nature, with few or no

legal barriers to transboundary access. In general, non-residents may

have access to the remedies for environmental harm that it makes available to its residents. But those remedies do not have the same scope as

the remedies available in Canada and the United States.

The Annex that follows this conclusion describes a number of previous international initiatives aimed at improving transboundary access

to remedy or prevent environmental harm. The potential effectiveness

of these examples for the three NAAEC Parties is then assessed. This

provides some ideas that may be useful in further reducing the existing

barriers.

298 TRANSBOUNDARY ACCESS TO COURTS
ANNEX I

Previous Attempts to Overcome Potential

Barriers to Access to Courts and Administrative

Agencies in Transboundary Pollution Matters

Over the years, efforts have been made both in Europe and in

North America to devise legal solutions to recognize access to courts and

administrative processes in transboundary pollution problems. Three of

these attempts to overcome potential procedural barriers are discussed

below.

A. OECD RECOMMENDATIONS

1. Description

The first international organization to identify and elaborate the

concept of access to courts and non-discrimination in matters of

transboundary pollution was the Organization for Economic Cooperation and Development (OECD).312 In 1974, it adopted non-binding “Recommendations on Principles Concerning Transfrontier Pollution,”

which state, inter alia, that countries should make “every effort” to provide persons affected by transboundary pollution “the same rights of

standing in judicial or administrative proceedings in the country where

[the pollution] originates as those [persons] of that country.”313 In 1976,

it adopted a more detailed version of this principle:

TRANSBOUNDARY ACCESS TO COURTS 299

312. The OECD consists primarily of industrialized countries in Western Europe, but its

members also include Canada, the United States and, since 1994, Mexico.

313. OECD Doc. C(74)224 (1974), reprinted in 14 International Legal Materials 242 (1975).

In general, the OECD Recommendation was inspired by Principle 22 of the Stockholm Declaration of the United Nations Conference on the Human Environment, U.N.

Doc. A/CONF. 48/14, at 2-65, and Corr. 1 (1974), reprinted in 11 International Legal

Materials 1416 (1972), which provides: “States shall cooperate to develop further the

international law regarding liability and compensation for the victims of pollution

and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.” More particularly, the OECD

Recommendation follows the Nordic Convention on the Protection of the Environment,

done at Stockholm on 19 February, 1974, reprinted in 13 International Legal Materials

591 (1974) [hereinafter “Nordic Convention”], which contains the principle of equal

access in its Article 3: “Any person who is affected or may be affected by a nuisance

caused by environmentally harmful activities in another Contracting State shall

have the right to bring before the appropriate Court or Administrative Authority of

that State the question of the permissibility of such activities, including the question

of measures to prevent damage, and to appeal against the decision of the Court or

the Administrative Authority to the same extent and on the same terms as a legal

entity of the State in which the activities are being carried out.” Parties to the Nordic

Convention include Denmark, Norway, Sweden, and Finland.
The rights accorded to persons affected by transfrontier pollution should be equivalent to those accorded to persons whose personal and/or proprietary interest

within the territory of the country where the transfrontier pollution originates are

or may be affected under similar conditions by a same pollution, as regards:

a) information concerning projects, new activities and courses of conduct

which may give rise to a significant risk of pollution;

b) access to information which the competent authorities make available to persons concerned;

c) the participation in hearings and preliminary inquiries and the making of

objections in respect to proposed decisions by the public authorities which

could directly or indirectly lead to pollution;

d) recourse to and standing in administrative and judicial procedures (including emergency procedures);

in order to prevent pollution, or to have it abated and/or obtain compensation for

the damage caused.314

The OECD Recommendation, in its final form, expands the concept of transboundary access to courts to include the notion that persons

should have access to information about, and an opportunity to provide

comments on, a project or activity that may cause transboundary pollution. This idea has since been included in a number of international

agreements, notably the 1991 Convention on Environmental Impact Assessment in a Transboundary Context.315

300 TRANSBOUNDARY ACCESS TO COURTS

314. Recommendation of the Council on Equal Right of Access in Relation to

Transfrontier Pollution, OECD Doc. C(76)55 (1976), reprinted in OECD, Legal

Aspects of Transfrontier Pollution 19 (1977); 15 International Legal Materials 1218 (1976).

The next year, the OECD adopted a Recommendation for the Implementation of

a Regime of Equal Right of Access and Non-Discrimination in Relation to

Transfrontier Pollution, OECD Doc. C(77)28 (1977), reprinted in 16 International

Legal Materials 977 (1977), which further describes how member governments

should implement the principle of equal access.

315. Done at Espoo, Finland, on 25 February, 1991, reprinted in 30 International Legal

Materials 800 (1991). The Convention was negotiated under the auspices of the U.N.

Economic Commission for Europe, to which Canada and the United States belong.

It provides, inter alia, that with respect to activities covered by the Convention that

have the potential to cause an adverse transboundary impact the “concerned

Parties shall ensure that the public of the affected Party in the areas likely to be

affected be informed of, and be provided with possibilities for making comments or

objections on, the proposed activity,” and that “due account” shall be taken of these

comments before a final decision is taken on the proposed activity (Arts. 3(8), 6(1)).

Furthermore, Article 2(6) states that “[t]he Party of origin shall provide, in accordance with the provisions of this Convention, an opportunity to the public in

the areas likely to be affected to participate in relevant environmental impact
2. Implementation in Each Country

To date, progress has been slow at the governmental level in Canada, Mexico, and the United States towards implementing the OECD

Recommendation. Instead, the principal initiatives in furthering this

Recommendation were undertaken by private organizations, specifically, the American and Canadian Bar Associations, discussed in Section

B below.

However, it should be noted that in the case of Mexico, it may not

be necessary to take any specific steps in this matter to amend Mexican

legislation to ensure equal access since none of the barriers identified

restrict access to Mexican courts by foreign plaintiffs. Practical barriers

to access in Mexico persist, however.

As regards the environmental assessment process component of

the OECD recommendations, Canada, Mexico, and the United States are

currently endeavoring, under the auspices of the Commission for Environmental Cooperation, to implement Article 10(7) and of the North

American Agreement on Environmental Cooperation, which calls on

the Parties to said agreement to consider and develop recommendations

with respect to transboundary environmental impact assessment.

3. Potential or Actual Effectiveness at Overcoming Barriers

If adopted and made effective at the state or provincial as well as

the federal levels, the OECD Recommendation, with its principles of

equal access and non-discrimination, would eliminate all legal barriers

posed by the local action rule, residency requirements, and territorial

scope limitations.

B. ABA/CBA DRAFT TREATY

1. Description

In the mid-1970s, representatives of the American Bar Association

(ABA) and the Canadian Bar Association (CBA) created a Joint Working

Group on Settlement of International Disputes (Joint Working Group),

TRANSBOUNDARY ACCESS TO COURTS 301

assessment procedures regarding proposed activities and shall ensure that the

opportunity provided to the public of the affected Party is equivalent to that provided to the public of the Party of origin.” Canada and the United States both signed

the Convention but only Canada has ratified it thus far. Mexico not being a member

of the UN-ECE did not participate in the negotiations. The Convention went into

force on 10 September, 1997.
with a mandate to research methods of resolving public and private disputes between the two countries. One of the Joint Working Group’s first

projects was to examine the issue of equal access to domestic legal remedies for harm caused by transboundary pollution.316

Drawing on the work of the OECD, the Joint Working Group

agreed that persons in Canada and the United States should have equal

access to judicial and administrative procedures for prevention of and

compensation for pollution damage.

Consistent with the OECD Recommendations, the Joint Working

Group did not suggest creating any new substantive remedies to

address harm caused by transboundary pollution. Rather, it proposed

that the two countries ensure that each country’s existing domestic remedies are available to residents of the other country for claims arising

from such harm by doing away with the local action rule.

To that end, the Joint Working Group prepared a Draft Treaty on a

Regime of Equal Access and Remedy in Cases of Transfrontier Pollution

(the “Draft Treaty”) for consideration by Canada and the United States.

The Draft Treaty contains only five articles. Its core provision is Article

2(a), which provides:

The Country of origin shall ensure that any natural or legal person resident in the

exposed Country, who has suffered transfrontier pollution, shall at least receive

equivalent treatment to that afforded in the Country of origin, in cases of domestic

pollution or the risk thereof and in comparable circumstances, to persons of equivalent condition or status in the Country of origin.317

Article 2(b) clarifies this language as follows:

From a procedural standpoint, this treatment shall include but shall not be limited

to the right to take part, or have resort to, all administrative and judicial procedures existing within the Country of origin, in order to prevent domestic pollution, to have it abated, and/or to obtain compensation for the damage caused.

302 TRANSBOUNDARY ACCESS TO COURTS

316. See Report of the Joint Working Group to the 1979 Annual Meeting of the Canadian

Bar Association, reprinted in Settlement of International Disputes Between Canada and

the USA: Resolutions Adopted by the American Bar Association and the Canadian Bar

Association with Accompanying Reports and Recommendation xxxiv (1979) [hereinafter

“Settlement of International Disputes”].

317. “Exposed country” is defined as “the Country affected by transfrontier pollution or

exposed to a significant risk of transfrontier pollution”; Draft Treaty, Art. 1(e).

“Transfrontier pollution” is defined as “any intentional or unintentional pollution

whose physical origin is subject to, and situated wholly or in part within the area

under the jurisdiction of one Party and which has effect in the area under the jurisdiction of the other Party”; Art. 1(c).
The Joint Working Group made clear that it expected this language

to apply to state and provincial courts as well as federal courts.318

The Draft Treaty also requires the “country of origin” to take

appropriate measures to give notice to persons exposed to a “significant” risk of transboundary pollution, so that they may be able to exercise the rights provided in the Treaty.319

2. Implementation in Each Country

In 1979, the ABA and CBA adopted resolutions urging the governments of the United States and Canada to negotiate a treaty on equal

access, based on the draft prepared by the Joint Working Group. The

governments took note of the recommendations, but never entered into

negotiations aimed at drafting a treaty.320 Although this treaty was not

designed at the time to include Mexico, its extension to Mexico may not

be necessary since none of the barriers identified seem to restrict access

to Mexican courts by foreign plaintiffs.

3. Potential or Actual Effectiveness at Overcoming Barriers

The wording in Article 2 of the Draft Treaty is arguably not as

broad as the wording in the OECD Recommendation. It grants rights of

access to all administrative and judicial proceedings to prevent, abate, or

obtain compensation for pollution damage. The OECD Recommendation specifically sets out rights of access to information and participation

in hearings and preliminary inquiries with respect to public decisions

and policies. Non-residents, therefore, may not have equal access under

the Draft Treaty with respect to input into decision-making and/or policy-making or environmental assessment hearings.

The Draft Treaty does eliminate the restriction imposed by the

local action rule. Although it is unclear whether the Draft Treaty also

does away with the residency and territorial limitations, arguably such

limitations would cease to apply if the purpose of Article 2 of the Draft

Treaty is held to ensure that non-residents are to receive “at least equivalent treatment” as residents and that non-domestic pollution is to be

equated with domestic pollution.

TRANSBOUNDARY ACCESS TO COURTS 303

318. Settlement of International Disputes, supra, note 316 at 50.

319. Draft Treaty, Art. 4(a).

320. Gallob, “Birth of the North American Transboundary Environmental Plaintiff:

Transboundary Pollution and the 1979 Draft Treaty for Equal Access and Remedy”,

(1991) 15 Harvard Environmental Law Review 85 at 92.
C. UNIFORM TRANSBOUNDARY POLLUTION RECIPROCAL

ACCESS ACT

1. Description

At the suggestion of the ABA/CBA Joint Working Group, the

Canadian and US institutions dedicated to the promotion of uniform

laws (the Uniform Law Conference of Canada and the US National Conference of Commissioners on Uniform State Laws) established a liaison

committee to discuss drafting uniform legislation for both countries.

The liaison committee drafted a Uniform Transboundary Pollution

Reciprocal Access Act that could be enacted as an alternative to a treaty.

Like the Draft Treaty, the statute overrides the local action rule and provides victims of transboundary pollution equal access to the courts of the

jurisdiction where the pollution originated. It provides:

A person who suffers, or is threatened with, injury to his person or property in a

reciprocating jurisdiction caused by pollution originating, or that may originate,

in this jurisdiction has the same rights to relief with respect to the injury or threatened injury, and may enforce those rights in this jurisdiction as if the injury or

threatened injury occurred in this jurisdiction.321

The statute defines “reciprocating jurisdiction” as a state of the

United States of America or a province or territory of Canada “which has

enacted this [Act] or provides substantially equivalent access to its

courts and administrative agencies.”322 The commentary to the statute

explains that the reference to “substantially equivalent access” is

intended to cover jurisdictions that already provide access to their courts

for non-resident victims of pollution. The commentary also says that

“[t]he Act does not apply to US/Mexico transboundary pollution or to

pollution from any other nation.”323

The statute also explicitly resolves “choice of law” questions by

stating that “[t]he law to be applied in an action or other proceeding

brought pursuant to this [Act], including what constitutes ‘pollution,’ is

the law of this jurisdiction [i.e., the jurisdiction in which the action is

brought] excluding choice of law rules.”324

304 TRANSBOUNDARY ACCESS TO COURTS

321. Uniform Transboundary Pollution Reciprocal Access Act (ABA/CBA Joint Working

Group), s. 3.

322. Ibid., s. 1(1).

323. Ibid., comment.

324. Ibid., s. 4.
In 1982, the US and Canadian uniform law organizations approved

the draft legislation and recommended it for enactment.

2. Implementation in Each Country

In Canada, four provinces have enacted the statute: Ontario, Manitoba, Nova Scotia, and Prince Edward Island.325 In the United States,

three states on the Canadian border (Michigan, Montana, and Wisconsin326) and four other states327 have enacted the statute. Somewhat surprisingly, there are no reported court decisions under any of the enacted

statutes.

Mexico has not adopted this statute. However, Mexico may not

need to do so given the fact that none of the barriers identified seem to

restrict access to Mexican courts by foreign plaintiffs.

3. Potential or Actual Effectiveness at Overcoming Barriers

As with the ABA/CBA Draft Treaty, The Uniform Transboundary

Pollution Reciprocal Access Act removes the barrier imposed by the local

action rule. It also goes further than the Draft Treaty with an added provision dealing with the choice of law issue. It provides that the law to be

applied is the law of the state where the proceeding is brought.

However, as with the Draft Treaty, it is unclear whether it eliminates the residency or territorial barriers. Arguably the wording in section 3 of the Act should be interpreted as also eliminating such barriers to

give full effect to the wording “same rights to relief ... as if the injury or

threatened injury incurred in this jurisdiction.” Allowing statutory residency or territory restrictions to prevail would nullify the intent of the

Act.

It is also questionable whether the Act is worded broadly enough

to include the broad range of rights of access recommended in the OECD

Recommendation, particularly with respect to access to information and

access to permitting and environmental assessment hearings.

TRANSBOUNDARY ACCESS TO COURTS 305

325. R.S.O. 1990, c. T-18; S.M. 1985-86, c. 11; S.N.S. 1994-95, c. 1, part XVI; R.S.P.E.I. 1988,

c. T-5.

326. Mich. Comp. Laws §§ 324.1801 to 324.1807; Mont. Code §§ 75-16-101 to 75-16-109;

Wisc. Stat. §144.995.

327. Colorado, Col. Rev. Stat. §§ 13-1.5-101 to 13.1.5-109; Connecticut, Conn. Gen. Stat. §

51-351b; New Jersey, N.J. Stat. §§ 2A:58A-1 to 2A:58A-8; and Oregon, Ore. Rev. Stat.

§§ 468.076 to 468.089.
The Act also incorporates two further restrictions. It will only operate between reciprocating jurisdictions. This means that equal access is

granted only to those citizens of states or provinces who adopt this or

equivalent legislation. Furthermore, it only affects laws on a state/provincial level and excludes federal laws. This means than an important

area of environmental legislation is not open to equal access.

Unfortunately, the small number of states and provinces that have

adopted this legislation limit its usefulness to a relatively small territory.

There is no case law interpreting this statute in any of the jurisdictions

where it has been enacted, so the scope of its application remains

unclear.

D. OTHER INTERNATIONAL APPROACHES

The Commission for Environmental Cooperation is currently

endeavoring to implement Article 10(7) of the North American Agreement on Environmental Cooperation (NAAEC). Under this article, the

three North American countries agreed to consider and develop recommendations on transboundary environmental impact assessment recognizing the significant bilateral nature of many transboundary

environmental issues.

In October of 1997, the three parties to the NAAEC, through the

Commission, released a draft agreement for discussion and public comment.328 The objective of the process is now to complete an international

agreement for signing by the three Parties by June, 1999.

Under the 1991 Air Quality Accord, Canada and the United States

established a system of notification of proposed projects in either country that might have an impact in the other country.329 This notification

system has now led to some ten notifications between the parties, which

are posted on the Internet for public access.330

306 TRANSBOUNDARY ACCESS TO COURTS

328. Commission for Environmental Cooperation, TEIA/97.02.04, 21 October 1997,

Draft North American Agreement on Transboundary Environmental Impact

Assessment. The text was developed by an intergovernmental group of experts

convened by the CEC and is available on the Internet at <www.cec.org>.

329. Agreement between the Government of the United States of America and the Government of

Canada on Air Quality, 2 Yearbook of International Environmental Law 679 (1991), Art.

V(1).

330. See Canada-United States Air Quality Agreement, Progress Report, 1996, p. 19, 61.

Available on the Internet at the following address: <http://www.ec.gc.ca/special/airqual.html>.
A different and more comprehensive approach has been used

in certain recent multilateral conventions. The conventions discussed

below require the parties to make substantive changes to their laws, or,

in some cases, to accept the changes the conventions make to their existing legal regimes.

The UN Economic Commission for Europe has recently concluded, in June 1998, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.331

The Convention directly or indirectly addresses the full range of issues

considered in this paper, providing detailed standards to be achieved to

ensure effective public participation and awareness for environmental

matters, including access to information, access to decision-making and

access to justice. In doing so, it seeks to ensure the broadest public access

for the public, as long as they may be affected by, or have an interest in,

the environmental issue being addressed.332 Further, such access is to be

on a non-discriminatory basis as between the public in different countries. Article 3.9 of the Convention states:

Within the scope of the relevant provisions of this Convention, the public shall

have access to information, have the possibility to participate in decision-making

and have access to justice in environmental matters without discrimination as to

citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective center of its activities.

For access to information, the Convention requires that no interest

need be stated in a public request for access to environmental information.333

A full legal assessment of this new Convention has not been undertaken. At first blush, however, its broad provisions appear to address the

problems of access or standing for non-residents or non-nationals as

they relate to most, if not all, of the barriers existing today.

The international community has created several liability regimes

for certain types of environmental harm. These regimes generally go

beyond the concept of “equal access,” by creating new substantive rights

TRANSBOUNDARY ACCESS TO COURTS 307

331. The Convention was opened for signature on 25 June, 1998, and signed by thirtyfive countries and the European Union. Canada and the United States were not

among the initial signatories. Mexico is not part of the UN-ECE and hence did not

participate in the elaboration of the Convention. The text of the Convention can be

found at the Web site of the UN-ECE at the following address: <www.unece.org>.

332. Ibid., Art. 2.5. These standing requirements are intended to be liberally interpreted

in favor of the public.
and remedies for environmental harm. For example, the Convention on

Civil Liability for Damage Resulting from Activities Dangerous to the Environment,334 an initiative of the Council of Europe, creates a liability

regime to ensure adequate compensation for damages resulting from

activities dangerous to the environment. It establishes liability rules for

those persons engaged in what the convention defines as a “dangerous

activity,” which includes the production, handling, storage, use and discharge of dangerous substances, and the operation of sites for the incineration, treatment, or ultimate disposal of waste.335 The liability regime

created recognizes common principles of liability, establishes the jurisdictions where actions can be brought for transboundary harm, and provides for the mutual recognition and enforcement of judgments among

the various countries party to the convention. The convention also provides for access to information held by public bodies.336 Neither Canada

nor the United States have become participants in the Council of Europe

Convention regime, and Mexico is not eligible to do so.

A similar regime-building approach is presently being taken with

respect to the Draft Protocol on Liability and Compensation for Damages

Resulting from Transboundary Movements of Hazardous Wastes and their

Disposal.337 This Protocol is being prepared in furtherance of obligations

under Article 12 of the Basel Convention on the Control of Transboundary

Movements of Hazardous Wastes and their Disposal.338 The Draft Protocol

has provisions providing for a liability regime for those in control of hazardous waste,339 jurisdiction of courts with respect to claims,340 choice of

law issues,341 and mutual recognition and enforcement of judgments.342

This type of regime-building approach attempts to deal with many

procedural issues at once. It goes much farther than the general principle

of equal access and non-discrimination originally proposed by the

308 TRANSBOUNDARY ACCESS TO COURTS

333. Ibid., Art. 4.1(a).

334. Done at Lugano on 21 July, 1993, reprinted in 32 International Legal Materials 1228

(1993) at 1230.

335. Ibid., Art. 2.

336. Ibid., Art. 14.

337. Report of the Ad Hoc Working Group, Third Session, 3 March, 1995. The issue here

is somewhat different, however. The Protocol, if completed and in force, would not

cover transboundary harm, but rather harm in one jurisdiction caused by hazardous waste originating in another jurisdiction and legally transferred between them.

338. Done at Basel on 22 March, 1989, U.N. Doc. UNEP/WG.190/4, UNEP/IG.80/3

(1989), reprinted in 28 International Legal Materials 657 (1989) [hereinafter “Basel

Convention”].

339. Supra, note 337, art. 4.

340. Ibid., art. 10.

341. Ibid., art. 11.

342. Ibid., art. 12.
OECD. In particular, with respect to the adoption of a liability regime, it

proposes to alter the legal regimes in the contracting states with respect

to subject matters falling within the purview of the convention. The

narrowly defined subject matter of the Basel Convention no doubt contributes to making this approach more acceptable to those states who are

parties to the Convention, though there is no guarantee they will also

become party to the Protocol.343

TRANSBOUNDARY ACCESS TO COURTS 309

343. The United States, it should be noted, is not a party to the Basel Convention, but

does participate as an active observer in the Protocol negotiations.