The Effectiveness of the NAFTA Environmental Side Agreement's Citizen Submission Process: A Case Study of the Metales Y Derivados Matter

Abstract

Among the most visible features of the North American Agreement for Environmental Cooperation, commonly referred to as the NAFTA Environmental Side Agreement, has been its citizen submission process. The submissions process allows private individuals to trigger an official international investigation into a NAFTA government's failure to effectively enforce its environmental laws. It remains one of the most advanced institutional mechanisms aimed at addressing international environmental issues related to trade liberalization.

Some commentators have been optimistic about its usefulness. However, an examination of one of the more recently published factual records, the Metales y Derivados matter, paints a more mixed picture.

Metales y Derivados is a former battery and lead waste recycling facility located in Tijuana, Mexico that was abandoned by its U.S. owner. For years, the poor and working-class neighboring community complained about pervasive environmental violations by the facility. When Mexican environmental officials finally instituted criminal enforcement proceedings, the owner fled across the border to the U.S. rather than face charges in Mexico. Left behind were thousands of tons of wastes and contaminated soil containing lead and other heavy metals. To this day, years after the facility was first abandoned and after the publication of a factual record detailing the enforcement failures of the Mexican government, little has changed. The piles of lead slag and barrels and sacks of waste still sit at the plant, and the toxic waste remains uncontrolled.

This article examines the Metales matter as a case study of the effectiveness of the citizen submission process and the implications for environmental governance more broadly. The first part of the article outlines the events that led to the filing of the citizen submission, the handling of the submission by the CEC, and the aftermath. Part two examines claims of success and failures of the process, especially with respect to promoting transparency and accountability. My conclusion is that while the case can be seen as a success in promoting openness and increasing public knowledge about governmental processes, it must, at present, also be considered a failure in bringing about substantive environmental improvements, enhancing enforcement activities, and improving public participation in environmental governance.

The third part of the article locates the reasons for the Metales failures at three levels: failures of 1) international governance, 2) national regulation, and 3) market and social mechanisms. The failures are rooted in the nature of international organizations, including the difficulty of enforcing the international obligations under the NAAEC, the political economy of the border region, and the failure of social institutions and markets.

The fourth and final part addresses the lessons for improving environmental governance at the border and the effectiveness of the citizen submissions process. In particular, the articles suggests a set of reforms to the submissions process that will make it more autonomous from control by the Council and the NAAEC parties. To address substantive issues of environmental governance, especially political accountability, at the border, the article proposes the creation of a binational border environmental quality district with a commission that is directly elected and accountable to border residents.

Ultimately, Metales is not only a cautionary tale about the effectiveness of the citizen submission process. Understanding its implications also yields broader insights into the role of civil society involvement in efforts to monitor and enforce state compliance with international environmental agreements as well as the relevance of North-South equity and environmental justice issues.

Keywords: NAFTA environmental side agreement, North American Agreement for Environmental Cooperation, citizen submission process, metales y derivados, treaty enforcement, environmental enforcement, environmental equity, environmental justice, environmental governance, US-Mexico border environment

JEL Classification: K32, K33