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Abstract: The North American Commission for Environmental Cooperation (the NACEC or CEC) is an innovative international environmental institution in three important ways. It is the first international organization created to address the environmental aspects of economic integration. It is a regional environmental institution with powerful tools and almost unlimited jurisdiction. And it provides unprecedented opportunities for participation by civil society at the international level. In each of these respects, the Commission addresses critical international concerns. The effort to reconcile environmental protection and economic integration has become one of the flashpoints of international discourse; although rarely raised before 1990, since then environmental objections to trade and investment agreements have nearly prevented ratification of the North American Free Trade Agreement, contributed to the abandonment of talks aimed at a Multilateral Agreement on Investment, and helped lead to the 1999 Seattle riots that accompanied the failed effort to begin a new round of World Trade Organization negotiations. At the same time, the international community has become more aware of the interdependence of ecological systems and the need for international institutions to protect the environment. Despite the proliferation of environment policies effectively and the handful of regional environmental organizations are relatively powerless. With respect to economic integration and environmental protection, as well as many other areas of international cooperation, nations are struggling to respond to the demands of their citizens to participate in the development and implementation of international policies that affect them. The Commission is important because it provides creative answers to each of these issues. Its answers may or may not prove satisfactory but, either way, the lessons to be drawn from its experience should be of great value to all those trying to reconcile environmental protection and economic integration, to promote stronger regional and global environmental organizations, and to find ways for civil society to participate in international policy. The agreement creating the CEC has already been used as a model for bilateral agreements between Canada and Chile and between the United States and Jordan. Surprisingly, however, the Commission has received relatively little scholarly attention. Although political scientists and lawyers have described its relationship to NAFTA and have analyzed its submissions procedure, there are few comprehensive analyses of how it is fulfilling, or failing to fulfill, its mandates. This book is intended to fill that gap.
Abstract: This paper explores citizen perspectives about different types of participation mechanisms. An enormous number and variety of citizen participation mechanisms exist, in domestic and global governance. In recent years, support for citizen engagement has made creation of new hybrid approaches a regular feature of the governance landscape. Our hope is that enhanced understanding of citizen preferences for different types of participation processes will lead to improved design of such mechanisms.
The paper uses an empirical approach to focus on currently available citizen participation mechanisms in the field of environmental regulation. Through a questionnaire, we asked environmental activists about their preferences among different participation mechanisms, and about their preferences among different features of those mechanisms. We used insights from the procedural and distributive justice literatures in developing our menu of possible process features.
The most important finding from the questionnaire responses is that context seems to be a key determinant of participant preferences. Offered a menu of eleven process choices for participating in situations involving non-compliance with the environmental laws, respondents preferred different processes depending on the situation involved. Similarly, respondents, when asked specific questions about two procedures, citizen suits under the federal environmental laws and the Commission for Environmental Cooperation's (CEC's) citizen submissions process, preferred the different procedures for different reasons. These responses highlight the need for more detailed exploration of the importance of context in process design; prospective process participants appear to prefer different types of processes, and different features, in different contexts. Consistent with earlier work in different arenas, our respondents also valued procedural justice features of processes (fairness, neutrality, etc.) in addition to considering distributive justice (e.g., the likelihood of a successful outcome) in assigning preferences among process options.
Our fundamental argument is that this empirical governance approach (notably, using empirical research as a guide to designing legal procedures) is applicable throughout the realm of environmental use conflicts; more broadly, beyond this area of practice, it is a model, in our view, that will yield helpful insights for increasing citizen participation in procedures intended to promote such participation.
environmental enforcement, procedural preferences, procedural justice
Abstract: A little more than ten years ago, the three North American countries, Canada, Mexico, and the United States, adopted the North American Free Trade Agreement (NAFTA) and companion agreements intended to address environmental and labor issues (the NAAEC and the NAALC). This article is about the North American Agreement on Environmental Cooperation (NAAEC) and the institution it creates, the North American Commission for Environmental Cooperation (CEC). The CEC is an innovative international environmental institution in three important ways. It is the first international organization created to address the environmental aspects of economic integration. It is a regional environmental institution with powerful tools and almost unlimited jurisdiction. And it provides unprecedented opportunities for participation by civil society at the international level. The article's primary focus is on the structure of the CEC and on the opportunities the CEC provides for public participation in governance. The article focuses in particular on the CEC's citizen submissions mechanism, an innovative process that empowers citizens of any of the three North American countries to file submissions in which the citizens assert that a Party to the Agreement is failing to enforce its environmental laws effectively. The article considers expectations for the process, and perspectives on the performance of the process to date, among other topics.
Abstract: This Article explores the ongoing evolution of central features of the regulatory state in the field of environmental regulation. Its thesis is that while there are numerous signals that our system of governance is becoming increasingly open and transparent, important features of the administrative state have the potential to slow such trends, and even to shift our regulatory apparatus in the opposite direction, toward reduced openness and accountability and diminished leverage or influence for interested citizens. The Article first describes what many believe to be a trend in our administrative state in the direction of greater openness and accountability. It then digs deeper into critical aspects of the actual operation of the administrative state, and suggests that the picture this more in-depth perspective provides is one of a state that may be moving in the direction of less openness, transparency, and accountability, rather than more, or at least a state in which accountability and transparency may potentially be reduced because of two seemingly fundamental features of the regulatory state, notably devolution and the expanding size of the government's tool box for promoting compliance with the environmental laws. The Article concludes by reviewing the implications of these signals about the shape and direction of governance. The Article suggests that, at a minimum, there is a need to grapple with the underlying infrastructure of environmental law implementation in order to understand which way the state is going, and whether fine-tuning of the regulatory state, or perhaps a more dramatic shift in course and structure, is warranted.
Abstract: The number of international institutions has increased dramatically in recent years. This is true in the arena of environmental protection, among others. One of the important issues associated with the creation of these institutions involves the allocation of responsibility for their management and implementation. Specifically, a central question involves the roles that non-State actors play in the operation of such institutions. Some commentators suggest that the roles of such actors in international governance has expanded in recent years. The allocation of authority for the implementation of international regimes is obviously of considerable importance as we experiment with new forms of global governance. This article reviews this allocation of authority or jurisdictional boundaries question through a review of the structure and experience of a relatively new international institution, the North American Commission for Environmental Conservation (CEC). The CEC has been termed a brave experiment in institution-building. Among other things, the CEC: 1) is the first international organization created to address the environmental aspects of economic integration; 2) has innovative tools and almost unlimited jurisdiction to address regional environmental problems; and 3) provides unprecedented opportunities for participation by civil society at the international level. The CEC's citizen submissions process, an aspect of the CEC that has been called its most innovative and substantial mechanism for fostering transparency and public participation, is the particular focus of this article. Based on its review of the experience of the CEC, with particular attention to the issue of jurisdictional boundaries, the article offers some thoughts concerning the possible future of the citizen submissions process, including the possibility that particular actions by the State actors may undermine the credibility of the process and the interest of non-governmental organizations in continuing to use it. The article also identifies some of the issues the CEC experience raises for regional and global governance more generally.
Abstract: This Article explores possible insights from the procedural justice literature about features of government decision making processes that citizens are likely to consider to be particularly valuable or important. Numerous commentators have urged that the government take steps to increase citizen participation in its decision making processes as a way to offset concerns about government legitimacy. The premise of the Article is that incorporating into government decision making processes features that are important to citizens is a potentially helpful step in fostering meaningful citizen participation. Processes that citizens value are more likely to be processes that citizens use and that enhance citizen confidence in government, while processes with features that citizens find unsatisfactory are more likely to be processes that do not engender meaningful citizen input; they may even operate to undermine citizen confidence. This Article reviews a framework that the procedural justice literature proposes for assessing citizen satisfaction with decision making processes, and it applies this framework to an international decision making process that relies heavily on citizen participation, the Commission for Environmental Cooperation's (CEC) citizen submissions process. This process, which empowers citizens to file complaints in which they claim that any of the North American countries is failing to effectively enforce one or more of its environmental laws, was created with the hope that it would increase government accountability and transparency, and inform and thereby improve the exercise of agency discretion. This Article considers the track record of the process in light of the procedural justice literature in an effort to advance thinking about the design of government decision making processes that are intended to promote meaningful public participation.
Abstract: Numerous commentators have urged that government increase opportunities for citizen participation as a way to advance a variety of public policy goals (enhancing government legitimacy, promoting more informed government decisions, etc.). In this Article, David L. Markell explores the experience of an international decisionmaking process that relies heavily on citizen participation, the Commission for Environmental Cooperation's (CEC) citizen submissions process, through the lens of the procedural justice literature, which seeks to understand the reasons why citizens are satisfied with decisionmaking processes. He offers some thoughts about the design and operation of the CEC process in terms of its effectiveness in promoting citizen participation and also considers more generally the design of government processes intended to engage citizens and to promote meaningful public participation in governance.
Abstract: In this article we argue for an empirical governance approach - the use of public evaluations - as one basis for deciding whether and how to regulate decisions with public consequences. We propose a conceptual framework for evaluating public acceptability, notably that public judgments should be evaluated against five criteria: overall acceptability ex ante; robustness; consensus; procedurality; and their ranking on non-fairness issues such as cost and convenience. In the article we also move beyond theory to implementation by modeling our framework to evaluate public judgments concerning acceptability in the contentious area of land use decisions in Florida.
Data from a survey of Florida stakeholders offers several interesting findings about five procedures currently in use to make land use decisions: private negotiation; public hearings conducted by elected local officials; administrative law hearings; judicial adjudication; and public referendums. Based upon the above five criteria, judicial adjudication is evaluated as the most desirable of these procedures through which to govern land use decisions. Respondents view judicial and administrative adjudication differently, a finding that raises important questions concerning the appropriate roles for, and structure of, administrative and judicial adjudication. Referendums receive mixed reviews, while public hearings, the most common form of decision-making procedure in the land use arena, are the least acceptable. In short, as the paper details, our findings in the specific context of land use decision-making procedures raise interesting and important questions about the most appropriate procedure through which decisions should be made in this arena and whether there are ways to revise procedures to improve their acceptability to the public. Further, the findings raise important questions across policy arenas about the appropriate use and structure of different types of decision making processes.
Our more general objective is to offer a framework for using empirical governance to consider and, ultimately, enhance the public acceptability of government decision-making processes. Our basic premise in this project is that, to further good governance, government should make decisions using procedures in which the public has confidence and that will increase public acceptance of such decisions.
Abstract: Key officials at all levels of government have characterized climate change as "the greatest challenge [we have] ever faced." An enormous amount has already been written about climate change in the legal literature and elsewhere. Yet it is abundantly clear that we have not yet come up with a coherent strategy for tackling this challenge either domestically or beyond. My purpose in this article is to suggest the overarching importance of three fundamental features of rapidly evolving climate change initiatives.
Part I offers a conceptual frame for developing strategies for mitigating and adapting to climate change. The purpose of this Part is to articulate the goals we should pursue in addressing climate change. While it generally is sound strategy to articulate, and be clear about, goals as an essential element of policy development, doing so is particularly valuable when the goals tend toward the amorphous, such as the pursuit of "sustainable" climate solutions.
Part II reviews some of the foundational information policy makers need to make sound decisions about climate solutions. This is an area in which the need for information is great but the pace of activity is frenetic and accelerating rapidly. The goal in this Part is to provide an overview of some of the types of information policy makers should develop, and consider, in formulating sustainable climate solutions.
Part III considers the myriad institutional governance questions we face in developing climate solutions. The division of responsibility within our system of government has ebbed and flowed since the country's founding. This Part identifies some of the key components of our system of government and raises questions about whether our current division of responsibility is a good fit for developing and implementing climate solutions. There clearly is considerable skepticism that our current structure is adequate, including at the highest levels of government - witness President Obama's very early decision to create an entirely new office in the White House focused on climate change and to task EPA's former Administrator to head that office. New governance structures of this sort raise significant questions concerning the role they will fill, their impact on the roles and responsibilities of existing institutions, and how the new entities will interact with the old, in the environmental/natural resource arena (EPA, CEQ, DOI, etc.), and beyond (e.g., the Office of National Security, the Office of Economic Policy, the Department of Labor, etc.). California's 2008 enactment of Senate Bill 375, which has the potential to fundamentally change state/local relations in the land use area to address climate change issues, signals that governments at the state and local levels similarly are likely to consider modifying their governance structures to address climate solutions. It is likely, in short, that the perceived importance of the climate change challenge will lead to significant changes in the shape of governance institutions at all levels of government in the United States and perhaps beyond. The implications for government legitimacy, accountability, transparency, and effectiveness are potentially momentous.
Abstract: This Article explores the potential value of environmental enforcement for protecting ecosystems and the services they provide. The Article focuses primarily on the remedial (rather than the liability) side of enforcement, in particular on three specific types of relief available through the enforcement process: penalties, injunctive relief, and Supplemental Environmental Projects (SEPs). I suggest that, theoretically, there are at least five ways in which enforcement has the potential to protect ecosystems and their services. First, enforcement has the potential to prevent harm to ecosystems by 'deterring' violations that would cause such harm. Second, enforcement has the capacity to require violators to 'cease' violations that are causing or threatening harm. Third, in some cases enforcement includes authority to require violators to 'fix' ecosystems they have harmed (to 'restore' or 'remediate' harmed ecosystems). Fourth, EPA can use enforcement to negotiate settlements that commit violators to take action to benefit ecosystems in circumstances in which EPA otherwise lacks the legal authority to compel performance of such projects or to undertake them itself (to achieve ecosystem protection 'beyond compliance'). Finally, through each of these four strategies enforcement has the capacity to protect ecosystems and their services by 'advancing learning' about such ecosystems and their services - by advancing knowledge, for example, about the state of ecosystems, threats to them, and how best to protect them from such threats and to restore them if they have been degraded. The Article explores the promise of each of the three above-referenced enforcement tools for protecting ecosystems and their services in one or more of these five ways.
Abstract: Most federal environmental statutes currently operate under a framework known as "cooperative federalism," in which states receive primary authority to implement the requirements of federal laws, under EPA supervision. Over the years, states have gradually assumed "primacy" in more and more areas; they now have authority to implement approximately three-quarters of the major federal environmental programs that can be delegated to them, and carry out in the neighborhood of eighty percent of the enforcement actions under the federal statutes. This increased reliance on state implementation is a "double-edged sword" for the federal EPA, which remains ultimately accountable for administration of the federal environmental laws. This is true in the enforcement arena, among others. The federal concern with state performance in this arena is particularly salient in light of a host of studies that indicate that the performance of many state enforcement programs falls substantially short of EPA's expectations, which traditionally have been based on a deterrence-oriented model of enforcement. This article discusses a number of options for EPA to strengthen state performance and bring it more in line with EPA's expectations, including strategies that will enhance government accountability.
Abstract: Most federal environmental statutes currently operate under a framework known as "cooperative federalism", in which states receive primary authority to implement the requirements of federal laws, under EPA supervision. Over the years, states have gradually assumed "primacy" in more and more areas; they now have authority to implement approximately three-quarters of the major federal environmental programs that can be delegated to them, and carry out in the neighborhood of eighty percent of the enforcement actions under the federal statutes. While states have long resented aspects of EPA oversight, some states traditionally relied on the presence of the federal "gorilla in the closet" to motivate compliance by regulated entities. But in the 1990's, tensions between EPA and the state grew considerably. States began vigorously pressing for increased autonomy and flexibility from the strictures of EPA oversight. They formed a highly effective organization of environmental commissioners (the Environmental Council of States, or ECOS) in 1993 to represent their interests in Washington, D.C. As a result, EPA embarked on efforts to rethink how its relationship with the states should be structured, leading in 1995 to the creation of the National Environmental Performance Partnership System ("NEPPS"), described as "the most substantial reform in the EPA-state relationships since those relationships were first established over twenty-five years ago". This book provides an in-depth examination of the evolution of environmental enforcement policy and federal-state relations, beginning with the cooperative federalism model, first formalized in the mid-1980's, up through the current period of ongoing change and reevaluation. Our focus is on the fundamental questions at stake in the continuing and vigorous reinvention debate: Is deterrence-based enforcement, the prevalent societal approach for enforcing the law, best suited for ensuring compliance with environmental requirements? How well are the states performing their roles as the primary implementers and enforcers of federal environmental law? What does the "new relationship" between EPA and the states look like and can it be successfully integrated into EPA's traditional approach for evaluating state programs?
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