Ecojustice Blog – Healthy communities Posted on September 4, 2014 (updated: March 29, 2017)

Is 10 years too long to wait for an investigative report on mercury pollution?

Albert KoehlLawyer
© Shutterstock / Kodda
© Shutterstock / Kodda

You might be angry after reading this.

After 10 years, we have the results of an investigation into mercury pollution (Click here to get the full report). We believe the report confirms our allegation that the U.S. government allowed mercury from coal-fired power plants to degrade lakes and rivers — including shared ones, such as the Detroit and St. Clair Rivers — contrary to American law.

Ten years is too long to wait.

Mercury is a potent neuro-toxin. When it enters bodies of water, the mercury finds a pathway to our food system. People who eat fish risk exposure to mercury, which is especially harmful to infants and fetuses.

How much extra mercury was allowed to enter North American waters? We’ll likely never know.

So why the long delay?

We believe it’s because the Commission for Environmental Cooperation — NAFTA’s environmental watchdog — is broken. The Commission is chaired by the environment ministers of the United States, Mexico, and Canada. Their motto is “working together to protect our shared environment.” Indeed, the Commission’s founding principles include transparency, accountability, and public participation. But political meddling is undermining those principles, and the environment.

We don’t know what the ministers do behind closed doors when they make their decisions. In 2007, we filed an Access to Information request with Canada’s environment minister about this case. We were told that information about this decision was protected by international relations and defence considerations!

For another example, read this letter we wrote to the CEC in regards to our withdrawal of our species at risk case

What we do know is that ministers often place narrow and arbitrary restrictions on investigations. And we know that the absurd, unexplained delays, which are common, undermine a system that was supposed to be the pride of NAFTA’s environmental side-agreement.

How we got involved in the issue

In September 2004 — when George W. Bush was the U.S. president — a coalition of groups alleged that the U.S. Environmental Protection Agency had failed to stop coal-fired power plants from discharging mercury into lakes and rivers, contrary to the Clean Water Act. The alleged problem? Government regulators, in issuing permits, were failing to account for air emissions of mercury.

Ecojustice, then known as Sierra Legal Defence Fund, and the U.S. Waterkeeper Alliance represented the groups and formally petitioned the Commission to investigate based on detailed evidence uncovered by our staff scientist, Dr. Elaine MacDonald.

In 2005, the Commission’s expert body recommended an investigation into the matter. The ministers gave the go-ahead in 2008. We received the ”factual record” or investigation six years later, in July 2014.

Why is this a problem?

Although the CEC doesn’t officially make findings of guilt, their job is to establish facts and shine a light on non-enforcement of environmental laws. This allows people like you to push governments into taking action.

When this environmental watchdog was set up in 1993, it was heralded as one of the crowning achievements of the NAFTA negotiations. Unfortunately, we ended up with a watchdog that is unaccountable, opaque, and barks ten years after the fact.

This past Monday, Chris Plecash of The Hill Times covered the issue. (The Hill Times has given us permission to reprint the article in its entirety.)

Originally published at The Hill Times on Monday, July 21, 2014.

Governments obstructing NAFTA environmental protection provisions

By Chris Plecash

Canada, the United States, and Mexico are failing to enforce a major environmental provision of NAFTA, according to Canadian environmental charity Ecojustice, which waited 10 years for the intergovernmental Commission for Environmental Cooperation to respond to concerns that the U.S. Environmental Protection Agency was not regulating mercury emissions from coal-fired power plants south of the border.

Ecojustice first petitioned the Montreal-headquartered Commission for Environmental Cooperation (CEC) to investigate failed regulatory enforcement by the EPA in the fall of 2004, but the CEC only released the results of its investigation at the end of June, nearly an entire decade after the petition was initially filed.

Under the U.S. Clean Water Act, the EPA is responsible for issuing permits for the release of mercury into U.S. waterways. However, Ecojustice contended that the agency was failing to regulate the release of mercury into water bodies via air pollution from coal-fired power plants, including Canada-U.S. boundary waters like the Detroit and St. Clair rivers.

The CEC’s arm’s length secretariat recommended that the organization’s three-member council, comprised of Canada and Mexico’s environment ministers and the head of the U.S. EPA, authorize an investigation at the end of 2005. The council did not vote to approve an investigation, known as a factual record, until the summer of 2008—a full two-and-a-half years after the secretariat’s recommendation. It took the secretariat another five years to complete its investigation and submit its findings to the council. A final report was approved by the council in March of this year, and made publicly available on June 26.

Ecojustice lawyer Albert Koehl, who worked on the submission to the CEC, told The Hill Times that “political interference” on the part of the CEC council was to blame for the excessive delays.

“Any action that the expert [CEC secretariat] staff takes has to be approved by the ministers, and that’s where it breaks down because they take years to make these decisions,” Mr. Koehl said. “Essentially they kill these investigations by the long delays…. Hundreds of thousands of dollars of CEC money goes into these investigations, ultimately, to give you a report which is stale on the day it comes out.”

The CEC’s final factual record acknowledges a failure by the EPA to properly regulate mercury emissions from coal-fired power plants in 10 states—Alabama, Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Pennsylvania, Texas, and West Virginia. However, the study only covers 1994 until 2004.

“That took all of 10 years for [the CEC] to do, and now some of those laws have changed. U.S. laws now look at mercury contributions from air emissions, so I suppose in that sense some of these things have actually been addressed,” Mr. Koehl said.

The CEC was established in 1993 under the North American Agreement on Environmental Cooperation, a side agreement of the North American Free Trade Agreement that was meant to prevent NAFTA members from using weak regulatory enforcement to gain an unfair advantage in attracting foreign investment. In other words, the organization’s purpose was to prevent a “race to the bottom” when it came to environmental standards within the NAFTA trade bloc.

Twelve different ministers have represented Canada on the CEC council throughout the history of the organization. Since the Conservatives formed government in 2006, six Environment ministers have been tasked with representing Canada on the council. Environment Minister Leona Aglukkaq (Nunavut) has served on the council since last summer’s Cabinet shuffle. Mexican Environment Secretary Juan José Guerra Abud has sat on the council since 2012, and U.S. EPA administrator Gina McCarthy has served on the council since 2013.

One of the CEC’s primary roles is to investigate public concerns of inadequate enforcement of environmental regulations.

“The provision was really at the core of addressing concerns that environmental and community groups had when NAFTA was negotiated,” Mr. Koehl said. “They were really worried about countries not enforcing their environmental laws. I think the eyes were more on Mexico at the time, but the concern was countries not enforcing their environmental laws in order to gain a trade advantage.”

Geoffrey Garver, the director of the CEC’s public submission process from 2000 until 2007, said that the organization’s process for investigating public concerns around environmental oversight is “irreparably broken” because the organization’s political masters in the CEC council have been able to obstruct investigations by manipulating the terms of reference and delaying votes.

“I think it goes counter to anybody’s common sense on what this process was designed to do, and [the council] has all the cards because they vote on how the factual record goes forward and they can put in all these restrictions,” said Mr. Garver, who previously worked for the EPA and is currently a lecturer and PhD candidate at McGill University. “Beyond the timing problem and the submissions process, I think it’s hugely frustrating that this approach to trade and environment seems to be locked in with no movement towards putting in something better in the era of climate change and increasing recognition of the global ecological crisis.”

This isn’t the first time that a public submission to the CEC has resulted in extensive delays by the organization’s council. In 2010, the CEC council approved the production of a factual record on Canada’s enforcement of the Species at Risk Act more than three years after the CEC secretariat recommended an investigation. In 2012, CEC council approved an investigation into Mexico’s regulation of air pollution more than five years after a factual record had been recommended by the secretariat.

The federal ministers on the CEC council approved the creation of a task force to modernize the submissions process in 2011. The council adopted the task force’s recommended timelines for processing public submissions in 2012. At the time, the council was made up of Canada’s then-Environment minister Peter Kent (Thornhill, Ont.), then-EPA administrator Lisa Jackson, and Mexican Environment secretary Juan Rafael Elvira Quesada.

“In 2011, based on government experiences, as well as feedback in previous years from the CEC’s Joint Public Advisory Committee (JPAC) and from the public regarding the delays in processing Submissions on Enforcement Matters (SEMs), the CEC Council of federal environment ministers from Canada, U.S., and Mexico acknowledged the opportunity to improve and modernize the SEM process,” Environment Canada spokesperson Danny Kingsberry stated in an email to The Hill Times last week. “At the 2012 CEC Council Session in New Orleans, Council adopted important changes to the SEM process, which have since been implemented by the parties and the Secretariat.”

However, of the five investigations currently being undertaken by the CEC, two of the submissions are behind schedule based on the agreed upon timelines, both delayed by the ministerial council’s failure to hold the necessary votes on time. One investigation into Mexico’s oversight of a limestone quarry took the council 127 days to approve, but under the new timelines the council was supposed to take no more than 60 days to approve an investigation. The council is also passed the deadline for approving a second investigation into Mexico’s enforcement of environmental regulations.

“We’d expect Canada’s Environment Minister [Leona Aglukkaq] to really be pushing hard for these votes to happen quickly and for there to be some accountability. We’ve never gotten any serious answers from Canada’s minister as to what’s happening on these files or why it’s taking such a long time,” Mr. Koehl said. “Here was a shining example of a provision and strategy that allowed citizens in a very calm and professional way to address these problems. On the other side you see government having no interest in upholding this very important provision.”

Mr. Garver noted that while the CEC’s process for investigating SEM claims appears in disarray, the NAFTA provision aimed at protecting investors continues to work effectively. Chapter 11 of the free trade agreement allows companies to sue governments for compensation when regulatory changes result in lost profits for investors. Pharmaceutical manufacturer Eli Lilly is currently suing the Government of Canada for over $500-million under Chapter 11.

“It’s the only other place within the whole set of NAFTA rules where a non-governmental actor was given permission to file some kind of a complaint and get some kind of a remedy,” he said. “[I]n that case, it’s investors who are suing under Chapter 11, who are able to sue governments for millions, sometimes billions of dollars. It’s binding arbitration, they get to pick one of the arbitrators, they are massive trial-like proceedings…. As long as you have the priorities so imbalanced, I don’t think you’ve got a system that’s workable.”

Twitter: @chrisplecash

Emissions from smokestacks via © Shutterstock

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