Environment and Trade Working Together
U.S. National Advisory Committee
Independent Federal Advisors on the
North American Agreement on Environmental Cooperation
                                                                 Karen M. Chapman
                                                                 Tel. 740-363-8269

                                                                 Designated Federal Officer
                                                                 Oscar Carrillo
                                                                 Tel. 202-564-2294

 Karen Chapman

  Timothy Bent

Diana Bustamante
   New Mexico

 Michael Dorsey
 New Hampshire

Barry Featherman
 Washington, DC

 Kevin Gallagher

  Brian Houseal
    New York

Raymond Lozano

  David Markell

 Cecilia Martinez

  Robert Pastor
 Washington, DC

  Ana Romero-

    Gail Small
                                        December 31,2010
The Honorable Lisa P. Jackson
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, D.C. 20460

Dear Administrator Jackson,

The  National Advisory Committee (NAC) to the  U.S.  Representative to the  North American
Commission for Environmental Cooperation (CEC) held its thirty fourth meeting on November
17th, 2010, in New Orleans Louisiana.

The NAC members are grateful for the assistance your staff provided to prepare for this meeting
and wish to recognize Cynthia Jones-Jackson, Oscar  Carrillo, Stephanie McCoy,  Lois  Williams
and  Mark  Joyce of the Office of Federal  Advisory  Committee Management  and  Outreach
(OFACMO) for organizing and arranging logistics for our meeting. The NAC is also grateful to
Jeff Wennberg, Chair of the Government Advisory Committee (GAC),  for helping  structure the
agenda. The NAC acknowledges the unprecedented  nature of this meeting,  as it was our first time
conducting a meeting in conjunction with the meeting of the Joint Public Advisory Committee
(JPAC).  Your staff was unflagging in their assistance  preparing for such a meeting and extremely
helpful arranging for our time spent together around the deliberations of the JPAC.

The NAC also wishes to extend our utmost gratitude to Glenn Wright, JPAC chair, as well as all
the members of the JPAC, for welcoming the NAC and GAC members to their meeting. Not only
was this the first meeting where JPAC, NAC and GAC members met together, it was also the first
meeting for most of the NAC and GAC, almost all of whom are new members beginning a term of

The  NAC members expressed great appreciation for the  excellent presentations arranged for the
JPAC meeting. Stewart Elgie's  wonderful overview in the  morning  helped set the  stage for
discussions on Greening the Economy, Dinah  Bear provided an excellent history and background
on the Transboundary Environmental Impact  Assessment (TEIA), and  the projects discussed by
Alejandro  Romay of JUMEX, Linda Stone  of Global  Green  USA,  and David  Abasz  with
Agricultural and Natural Resource  Sciences at the University  of Minnesota were innovative  and
enlightening, providing wonderful "real-world" examples of the goals set forth for the CEC by the

The  NAC also  wishes to  sincerely thank  CEC  Executive Director  Evan Lloyd for  his
comprehensive  presentation  to the  committees,  and Sylvia Correa   for sharing her unique
perspective with regard to the role of the NAC and CEC operations, and the relationship between
NAC and your office.

The  NAC  is also very grateful  to  Assistant Administrator Michelle DePass for providing a
response letter dated September 14, 2010, to the NAC advice letter of October 26, 2009. Several of
the NAC members expressed a desire to comment on certain points made in that letter regarding
the Submissions on Enforcement Matters, and we have included those comments  in our advice

We understand the pressing nature of the commitments that you and your staff face, but urge that
whenever possible you or Ms. DePass make every attempt to meet with us in person, as it is our
mandate to advise you and there is really no substitute for face to face interaction.

I would like to add as a personal aside that I so very much enjoyed meeting both you and Michelle
DePass in Guanajuato,  and look forward to seeing both of you  again during Council Session, and
whenever it might be possible for you to attend the NAC meetings.

We extend our comments and advice to  you in an attachment to this letter  in hopes that you will
find it useful and relevant in your deliberations and work - both as a member of the Council to the
North American Agreement on Environmental Cooperation and as you interact with other federal
agencies and the public. The NAC members strive to provide timely and useful advice that will aid
in supporting the Commission for Environmental Cooperation and its mission and goals.

Thank you in advance for your consideration of our advice.

                                         Very truly yours,
                                          Karen M. Chapman
                                          Chair, National Advisory Committee

cc:  Michelle DePass, Assistant Administrator, Office of International & Tribal Affairs
    Cynthia Jones-Jackson, Director, Office of Federal Advisory Committee Management  and
    Public Outreach
    Jeff Wennberg, Chair, U.S. Governmental Advisory Committee
    Oscar Carrillo, Designated Federal Officer
    Irasema Coronado, Chair, Joint Public Advisory Committee
    Evan Lloyd, Executive Director, Commission in Environmental Cooperation
    Members of the U.S. National Advisory Committee
     Administrative support for the NAC is provided by the U.S. Environmental Protection Agency,
              Office of Federal Advisory Committee Management & Outreach
           Mail Code 1601-M, 1200 Pennsylvania Ave. NW Washington, D.C. 20460
                        (t) 202-564-2294 (f) 202-564-8129

                                 National Advisory Committee
                                To the U.S. Representative to the
                           Commission for Environmental Cooperation
                              Advice 2010-1 (December 21,2010):
                             nse to EPA letter dated September 14th
                             Submissions on Enforcement Matters
The NAC appreciates the EPA September 14, 2010 response letter referenced above.  The NAC
very much supports the Council's plan to renew, revitalize and refocus the CEC as an effective
organization, which EPA references in its letter.  The significance of the SEM process in the
public's mind makes it even more important that the Council takes steps to improve the process,
since lack of confidence in the process likely undermines the reputation and effectiveness of the
CEC  more  generally.  Because  of  the longstanding  concerns  with  how the Council  is
implementing the SEM process, the need to  renew,  revitalize,  and refocus  the SEM process
seems indisputable.

Respectfully, the NAC's view is that the September 14, 2010 EPA letter does not truly grapple
with the very real concerns about the SEM process that  the NAC, JPAC, Independent Review
Committees, outside reviewers,  and others have highlighted in their assessments of the process
over the past several years.  At the end of this section we provide six recommendations that we
believe are essential to renewing, revitalizing and refocusing the SEM process.

Citizens' declining use of the process to raise concerns about U.S. enforcement policies and
practices strongly suggests that citizens have lost confidence in the process, highlighting the need
for revitalization.   The SEM process has been active since 1995, when the first submission was
filed.  While citizens used the process relatively actively in  its early years  to raise concerns
about U.S. enforcement, citizen use for this purpose has basically dried up.  Six submissions
involving  the U.S. were  filed  during  the  first  five  years  (1995-1999), while three such
submissions   were  filed during  the next five  years (2000-2004), and only  a  single such
submission has been filed over the past six years (2005-2010).  This track record suggests that
citizens have effectively abandoned the process as a useful mechanism to raise concerns  about
the effectiveness of U.S. enforcement practices and policies.

Dissatisfaction with SEM Process:
The series of NAC letters of advice, JPAC Advices, and  various outside reports have identified
several reasons why many citizens have become dissatisfied with the Council's (and the Parties')
performance in implementing the SEM process.   We focus on two such concerns here.   First,
the slow pace of the process is a significant impediment to success. The CEC June 1998  Four-
Year Review noted that delays "place at risk the public credibility of the process" (p. 21). The
Lessons Learned report, issued in June 2001, noted that "[t]o be credible with the  public and to
increase its effectiveness, the  citizen submission process  must  ... be timely (p. 14), and JPAC
Advice to  Council No. 08-01 stated that "[t]he procedure is too slow."

Unfortunately, the process has slowed down even more since those reports were prepared and the
JPAC Advice was  given.  Thus, calls to speed up the  process are even  more timely and
compelling now than when they have been made previously.  While there  are opportunities to
speed up each stage of the process, the NAC  focuses in  this advice on two ways in  which the

Council could  dramatically expedite the process through its  own  actions,  as well as on
establishing an overall time frame for the process.

The Council  has  two "decision points" in the process -  to decide whether to:  1)  approve  a
Secretariat  Recommendation to prepare a factual record, and 2) release a final factual record.
The Council is now taking much longer to make each decision than it did during earlier years of
the process.  It has been more than three  years, and counting, since  the Council received
Secretariat  recommendations  to  prepare factual  records  for  Hermosillo II,  SEM-05-003
(Recommendation submitted to Council on April 4, 2007), and Species at Risk, SEM-06-005
(Recommendation submitted  to  Council  on  September  10,  2007).  A third  Secretariat
Recommendation  is still awaiting Council action even though it has been pending for more than
two years, Ex Hacienda II and III, SEM-06-003 (Recommendation submitted to Council on May
12, 2008).  The Council has moved  extremely slowly to  make  decisions on other Secretariat
recommendations  as  well, such as  SEM-04-005 on Coal-Fired Power Plants. In that case the
Secretariat  Recommendation was made December 5, 2005, with a Council Vote on June 23,
2008, or over  2  %  years.  In the  case of  Lake Chapala II, SEM-03-003,  the Secretariat
Recommendation  was made on May 18, 2005, with Council Vote on May 30, 2008, or more than
3 years.  In short, Council delays  in making decisions about Secretariat recommendations to
prepare factual records guarantee the process will take many years to complete.

The  Council's  record  in  deciding  whether to  release final factual  records  is  similarly
disappointing and has become more so over time. The Council's record in meeting the NAAEC
60-day time frame for voting to release factual records was very good in the early years of the
process.   In contrast, the Council has taken  far longer than 60 days to  vote on factual record
publication for four of the last five votes. The Article 15(7) vote on the Tarahumara factual
record took 5 months (July 2005 - December 2005); the Pulp  and Paper and Ontario Logging
factual records  votes took 7 months  (June 2006 -  January 2007); and the Alca Iztapalapa II
factual record vote took over 6 months (November 2007 - May 2008).

Further, it is of considerable concern to the NAC that EPA's September 2010 letter to the NAC
incorrectly suggests that the Council virtually always meets the 60-day deadline  contained in the

     "If the NAC is proposing  that the Council commit to voting more quickly on whether to
     publish completed factual records, it is unclear that such a step is needed.  To our
     knowledge, the Council has only once taken more  than the 60 days that are  prescribed in
     the NAAEC to vote on whether to publish a factual record, as described in Article 15.7."

From the published statements of U.S. submitters, Council's failure to act in a reasonably timely
way is an important reason for the loss of confidence in the SEM process that has led citizens to
abandon using it to raise concerns about U.S. enforcement.  The NAC would hope and expect
that EPA is as alarmed as the NAC by the much longer time periods it is taking the Council to
act and by the message citizens are getting from these delays.  EPA's response in its September
2010  letter, however, was not to express  concern about the delays and a  commitment to
encourage its counterparts on the Council to do better.  Instead,  EPA noted that "a hasty vote...
may actually do  more  harm to the  process" and that "it is  important  to recognize that  a
considered approach that may take months or in some cases years does not constitute a failure to
support  the process.  . ."  Respectfully, the NAC believes that the Council is doing a great
disservice to the process through its long delays and that EPA should be proactively seeking to
address this significant flaw in current implementation of the SEM process rather than excuse it.

The  NAC offers recommendations for EPA to proceed proactively in this way.  The JPAC
Lessons Learned report (p. 15) concluded that the  Council  "should be able to authorize (or
decline to authorize) the development of a factual record within 90 days" except in exceptional
circumstances.  The NAC endorses this recommendation and urges EPA to make best efforts to
persuade the Council to make  decisions within this target time frame.   Further,  the NAC
recommends that EPA urge the Council to meet the 60-day deadline in the NAAEC for releasing
final factual records,  a goal the  Council met during the early years of the process but which it
routinely has failed to meet in recent years.

The  NAC respectfully requests  that EPA reconsider its September 2010 letter with respect to
both of these issues (Council decisions on Secretariat recommendations and on releases of final
factual records) and that EPA embrace the role of encouraging Council to act in a more timely
way as a concrete strategy to renew, revitalize, and refocus the SEM process.

More generally, the NAC believes that it is important to speed up the SEM process as a whole.
The Lessons Learned report concluded (at p. 15) that two years from the filing of  a submission is
an appropriate time frame.  The Lessons Learned report pointed out that "it is  important to
attempt to complete factual records while the conditions that prompted their development are
still  current and when the available policy options have not been narrowed by  the passage of
time." (p. 15).  The NAC endorses the report's  conclusions and supports EPA's encouraging the
Council to establish a time frame of two years for completion of the process for each submission.

In short, as a party to the NAAEC, the United States could at the very least press the Council to
take three steps to  respond to delays that have played  an important role in  diminishing citizen
interest in using the process to  raise concerns  about U.S. enforcement:  1) significantly reduce
Council delays in voting on Secretariat recommendations to prepare factual records; 2) adhere to
the NAAEC 60-day requirement to vote on publishing factual records; and 3) establish a clear
time frame for the process as a whole.

Limited Accountability of the SEM Process:
Limits in the accountability of  the SEM process represent a second significant  shortcoming.
President Obama and Administrator Jackson have both emphasized the importance of improving
accountability of government.  In the SEM process, the lack of any follow-up to a factual record
significantly reduces  government accountability concerning the  issues raised in  the submission
and covered in the factual record.

There have been many calls for  follow-up to factual records to improve accountability (see e.g.,
Lessons Learned 2001, at 12,  16-17, suggesting that JPAC "encourage the Council to consider
ways in which  an  institutionalized system of cooperation . . . could be used to follow up  on
factual records;" TRAC at 54; NAC Advice 2003-08, which includes excellent ideas for how to
conduct such follow-up).  While the Council has not welcomed such proposals in the past (see
e.g., David McGovern, Alternate Representative for Canada to Jane Gardner - August  14, 2008,
and  Letter from Council dated  June 14, 2002),  the NAC urges EPA to try to  persuade the
Council to include a degree of follow-up in the SEM process to enhance its accountability.

The NAC also recommends that  the United States create its own follow-up strategy for
submissions involving U.S. enforcement. To reiterate the NAC's suggestion in Advice  03-08:

       "The U.S. government should ... establish a systematic procedure for considering any
       factual records concerning allegations of [U.S. failures to enforce effectively]. ..  Such
       procedures should insure interagency consideration and consultation concerning the
       findings of factual records, and should result in publicly available consultations as to how
       the Executive Branch intends to respond to them."

The  NAC believes  that follow-up is essential to the credibility of virtually  any government
procedure.   It further believes that a U.S. commitment to pursue such follow-up would be the
type of concrete  gesture that would help to persuade  U.S. citizens that the United States
government  is committed to the effective implementation of the SEM process.   The NAC is
willing to conduct such follow-up itself of factual records involving the United States if that
would a useful role for the NAC to play.


       1)     The United States should support the development of factual records
             concerning enforcement efforts of the United States consistent with E.0.12915
             and take a vote to approve the development of such factual records at the first
             alt reps meeting following the publication of the recommendation from the
             Secretariat to prepare a factual record.

       2)     The United States should propose a Resolution, to be adopted by Council, which
             directs Council to vote on a recommendation of the Secretariat to prepare
             factual records within 90 days of the recommendation.

       3)     The United States should urge Council to reiterate its commitment to meeting
             the NAAEC deadline for Council to make decisions about the release of a final
             factual record within 60 days.

       4)     The United States should recommend that the Council adopt a timeline that will
             ensure completion of each submission in no more than two years from the time
             of submission.

       5)     The United States should work with its Council partners to devise and
             implement an approach to make the CEC SEM process more accountable by
             following up on issues raised in factual records.

       6)     EPA should establish  a systematic procedure for following up on any factual
             records involving U.S. enforcement, with the involvement and assistance of the
             NAC members if appropriate and if so desired.

                                 National Advisory Committee
                                To the U.S. Representative to the
                           Commission for Environmental Cooperation

                          Advice 2010-2 (December 21,2010):
                   Response to EPA's request for advice regarding the
                   CEC 2010 - 2015 Strategic Plan and Future Projects

The NAC had insufficient time to deliberate fully as a committee regarding the Charge Questions
we received for this meeting; nevertheless NAC members had several concrete recommendations
regarding the Strategic Plan as well as future projects the CEC could develop. With regard to the
other Charge Questions, we did not have a copy of the Operational Plan for 2011 and understand
that an alternative procedure for plan development and approval is underway, therefore we spent
no time on this question. The NAC felt that Charge Question #4, on Greening the Economy, was
also relevant to Charge Question #1, therefore the bulk of our time in the committee was devoted
to a discussion of Charge Question #1.

NAC members noted that between the three priorities listed in the Strategic Plan of Greening the
Economy, Healthy Communities and Ecosystems, and Climate Change, a unifying theme that
would help lend synergy to the three areas could include emphasis on reduction of private sector
reliance on fossil fuels.

Related to reducing fossil fuels,  several  members noted that the North American Atlas is a very
useful tool for adding layers that would enhance and highlight the CEC's priorities. For example,
the map could track North American energy infrastructure, including areas of possible concern or
interest such as Tar Sands, off-shore oil  rigs,  and coal deposits, and include, in conjunction with
that, communities of particular vulnerability to energy development - again, the Tar Sands were
specifically mentioned.

Another  suggestion related to  the North American  Atlas was  to map emissions, emissions
sources, and their potential impacts on the different areas of Canada, the US and Mexico, with an
eye toward developing over time a picture that would aid in the development of climate change

NAC members  also mentioned  that an  interesting and useful mapping  exercise could include
North American species migrations and indigenous communities.

In addition, several members thought that another appropriate sector to focus on which crosses
all sectors in North America and which relates to the three priority areas is the automotive sector.
The  suggestion  was made that an Article 13 report  on the Automotive Sector could focus on
supply chains related to auto production, as  well as harmonizing fuel efficiency standards for

It was noted that data harmonization across North America - particularly with regard to Public
Registry  of Toxic Releases (PRTR) and Greenhouse  Gases (GHG) would make that data much
more useful to  industry leaders, but  that a concerted effort would need to be made  to bring
leaders  to  the  table,  perhaps  in partnership with universities,  to   determine  a  common

      1.     The NAC recommends that the United States support a unifying theme of
             reduced reliance on fossil fuels in order to build synergy among the three
             priorities of the CEC.

      2.     The NAC recommends that the United States propose that the CEC undertake
             mapping of energy infrastructure, energy sources, and communities vulnerable
             to energy development - such as Tar Sands - as a project for the North
             American Atlas.

      3.     The NAC would like to see data harmonization among the three North
             American countries be apriority of the United States with regard to PRTR and

      4.     The NAC feels that an appropriate sector to concentrate on for a future Article
             13 report is the automotive sector, and that the report could include information
             related to supply chains and fuel efficiency standards.

                                 National Advisory Committee
                                To the U.S. Representative to the
                           Commission for Environmental Cooperation

                              Advice 2010-3 (December 21,2010)
                   Transboundary Environmental Impact Assessment (TEIA)

The NAC members support renewing Transboundary Environmental Impact Assessment (TEIA)
discussions as a priority for the parties. The  EPA  response letter of September  14th, 2010
references the difficulty of reaching a comprehensive agreement among the three countries  due
to differences  in governance systems. The NAC  recognizes that there is  a long  history of
unsuccessful negotiations on  TEIA, and that there are limited resources available to renew such
negotiations at this time. Insofar as such negotiations might be possible, we reiterate our support
for undertaking renewal of negotiations on TEIA. We note also that the TEIA was a requirement
of the initial NAAEC, and that failure to successfully reach agreement on TEIA constitutes a
failure to fully implement the NAAEC.

A renewed commitment to a  North American approach to the environment should begin with a
new initiative to reach agreement on a TEIA with both Canada and Mexico.  We recognize  this
has proven very difficult, but we would like to suggest an approach that might bring the three
governments to an  agreement.  Perhaps,  a  new agreement should focus  on  drafting analytical
environmental impact  assessments  rather than on  assessments  that include  references to
enforcement.   If the three governments could agree on the parameters and questions that should
be incorporated or answered in an Impact Assessment, then the separate issue of enforcement
could be addressed later.

The NAC notes that the Good Neighbor  Environmental  Board (GNEB), in its latest report
entitled   Blueprint  for  Action  on  the  US-Mexico  Border  (June  2010),  states  in   its
recommendations section (p 65, paragraph 3): Improved cooperation across the border, that "a
serious institutional  gap is the lack of a  transborder environmental impact assessment process
between Mexico and the United States,  and  this needs to addressed as  a high priority."  The
GNEB is an independent US Presidential advisory committee providing non-partisan advice on
US-Mexico border environment and infrastructure.

The NAC also notes recent support from government officials in Mexico for renewing TEIA
negotiations.  Dr. Eduardo Peters of Mexico's Instituto Nacional de Ecologia, during a keynote
address at the Binational Conference on Restoring Rivers in the Southwestern US and Northern
Mexico  (December  7-9, 2010), stated it was his belief that  both the US and Mexico  had
matured sufficiently to approach negotiations on TEIA again, and that an agreement on TEIA
might serve to bring agencies  and groups to  the table under a formalized process to confront
some of the very serious ecological issues faced in water-stressed binational basins, specifically
the Colorado and Rio Grande.


      1.     The NAC recommends that the United States take the initiative in encouraging
             a renewed negotiation with Canada and Mexico to complete the TEIA.

                                 National Advisory Committee
                                To the U.S. Representative to the
                           Commission for Environmental Cooperation

                              Advice 2010-4 (December 21,2010)
                               Response to Charge Question #3:
              North American Partnership for Environmental Community Action
                      Project Selection Criteria and Community Groups

As noted above, the NAC had  insufficient time to deliberate Charge Question #3 related to
NAPECA grants, but would like to thank you for your support of this important program. The
NAC is very excited that the CEC community grants program will be reinstated in the form of
NAPECA. As you know, our past advice has clearly supported reinstating this program, as we
felt that it  greatly  increased awareness of the CEC and  built  more solid  relationships with
communities in pursuit of common goals.

The NAC notes that when issuing Requests for Proposals (RFP's) under the NAPECA, the CEC
might consider very carefully targeting the RFP so that proposals are submitted that specifically
address themes identified within the three priority areas, as well as current priorities identified by
the Council. The current criteria for project selection appear to be  well-positioned to adhere to
CEC priorities, and the RFP should also reflect this emphasis.

The NAC did not have time  to deliberate on or suggest a list of innovative community groups
that might benefit from a CEC NAPECA grant. A potential, important niche that the NAPECA
grants could seek to fill is already listed in the proposal criteria - "build long-term partnerships
to improve  environmental conditions..." The NAC notes that there is limited funding to build
partnerships among groups, but that in such cases outcomes  from the partnership-building efforts
should be clearly identified and measurable.


       1.     The NAPECA Request for Proposals should include criteria that closely reflect
             the themes of the three priority areas set by Council  and implemented by the