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

                                                                  Designated Federal Officer
                                                                  Oscar Carrillo
                                                                  Tel. 202-564-2294
                                                                  carrillo.oscar@epa.gov
   Committee
    Members

 Karen Chapman
      Ohio

  Timothy Bent
    Tennessee

Diana Bustamante
   New Mexico

 Michael Dorsey
 New Hampshire

Barry Featherman
 Washington, DC

 Kevin Gallagher
  Massachusetts

  Brian Houseal
    New York

Raymond Lozano
    Michigan

  David Markell
     Florida

 Cecilia Martinez
    Delaware

  Robert Pastor
 Washington, DC

  Ana Romero-
     Liz ana
    Missouri

    Gail Small
    Montana
                                           May 16, 2011
The Honorable Lisa P. Jackson
Administrator
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 fifth meeting on April 14th and
15th, 2011, in Washington DC.

As always, NAC members appreciate the competent assistance your staff provided to prepare for
this meeting. We thank Cynthia Jones-Jackson, Oscar Carrillo, Stephanie McCoy, Lois Williams
and  Mark  Joyce of the  Office  of Federal Advisory  Committee Management and  Outreach
(OFACMO) for their work to organize the meeting and for their presence through-out. The NAC
is also grateful to Jeff Wennberg, Chair of the Government Advisory Committee (GAC), for his
guidance and leadership during the meeting.

We are very pleased to have had the opportunity to interact with Michelle DePass, Assistant
Administrator for the Office of International and Tribal Affairs, and wish to convey sincere
gratitude for her presence and comments. Tribal representatives on the NAC and GAC, as well as
me and Jeff Wennberg as Chairs, were also glad to join Assistant Administrator DePass during a
pre-meeting breakfast to discuss the idea of a North American Indigenous Subcommittee. We gave
a report on the meeting to the full NAC and GAC committees. During this discussion, committee
members recommended that the idea be presented to both Canada and Mexico for their
consideration. Tribal representatives on the NAC and GAC will be following up with your staff to
discuss this idea further, as Ms. DePass requested.

We understand from Assistant  Administrator DePass that you are pleased with the Operational
Plan as a reflection of Council priorities,  and that the parties have engaged in extensive dialogue
about how the current Operational Plan reflects priorities in the Strategic Plan. We also thank Ms.
DePass for engaging in candid dialogue  with us about our previous advice letter which, among
other topics, dedicated much attention to commenting on the SEM process. Our current advice
letter will reflect that Ms. DePass indicated  your interest in receiving more such advice.  We are
also  very interested in providing advice on other, current priorities such as the CEC Operational
Plan, and have included such comments in this letter.

In your response, we would be  interested in hearing any follow up comments on specific actions
relative to Transboundary Environmental  Impact Assessment (TEIA)  that you  might  have
undertaken, as indicated in your letter of  February 28th, 2011, which stated that you  would take a
"fresh look" at TEIA and discuss a possible "new approach" with Canada and Mexico partners.

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The  NAC  also wishes  to  sincerely thank Sylvia Correa, Senior Advisor  for North American
Affairs, for sharing the  U.S. perspective on the Operational Plan, for being available throughout
the day to answer questions,  and for shedding light  on our role as advisors  relative to the
Operational Plan. We are very grateful also to Dolores Wesson, Director of Programs at the CEC
Secretariat, for her illuminating and very helpful presentation on the formation of the Operational
Plan and  background on some of the projects. Ms. Wesson's presentation also provided  an
extremely useful matrix  that succinctly captured the timeframe for past and current projects.

The  NAC members strive to provide timely and useful advice to you and hope  that this advice
helps you to further strengthen United States activities relative to the North American Agreement
on Environmental Cooperation and  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 on Environmental Cooperation
    Dolores Wesson, Director of Programs, Commission on 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

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

                             Advice 2011-1 (May 16,2011):
                   Response to EPA's request for advice regarding the
                          Draft Operational Plan and Projects

The NAC appreciates the opportunity to review and comment on the draft Operational Plan.  We
understand that Council is now setting the agenda for CEC work via their representatives on the
General Standing Committee. The NAC  also considered that this  Operational Plan and Projects
reflect Council's involvement and that the Projects  presented in the Operational Plan have been
selected for consideration because they represent Council's priorities.

In light of these facts, NAC  members decided that the bulk  of  our time might best be spent
examining the draft Operational Plan and Projects as a reflection of the CEC's overall work and
its relevance in the North American context and provide advice that might be helpful in the
future.

First,  the NAC believes that the Operational Plan should present a  context for the specific
projects - possibly through an executive summary - that explains why the Council has selected
the indicated projects and what the Council hopes to gain from each and overall.  We anticipate
that the North American public is one audience for the Operational Plan, and we believe it would
be very helpful for the plan to provide a clear picture  of: 1) the particular projects the CEC is
pursuing; 2) why the CEC  is pursuing the identified particular projects  given the CEC's
status/comparative advantage as a trilateral organization and other  features; and 3) what the CEC
hopes to  accomplish through its work.

By providing such a context, the Operational Plan would illuminate the unique role that the CEC
fulfills as a trilateral body operating on the North American scale and give readers a lens through
which to view the work and projects of the CEC, and a clear justification for the chosen projects
as the best possible use of the CEC's very limited resources.

The June 24, 2009 Denver Ministerial Statement committed to "revitalize and refocus" the CEC
and asked for a  proposal to examine  the governance of the CEC in order  to "enhance
accountability, improve transparency, ensure alignment with the Council priorities,  and set clear
performance goals." The subsequent September 17,  2009 "Draft Proposal to  Examine the
Governance of the CEC"  then offered  suggestions  for  "Streamlining  the  cooperative work
program" that included "focusing efforts  on fewer and interrelated projects with more significant
results."  In our view,  some of the projects presented in the 2011 Operational Plan could stand
further scrutiny. If members of the NAC  cannot discern a clear process  for project selection, nor
why certain projects are included and how they are inter-related, it is likely that the public cannot
either. In this regard the NAC feels that the process could be made  more transparent.

Second, the NAC discussed ideas regarding the North American Atlas  and how it might be used
to further illuminate the unique CEC role on the North American stage. The NAC appreciates the
Atlas  for its great utility as a platform for information.  The NAC discussed that a useful feature
might be a routinely updated map of "Institutional Ecology" - in other words, who is doing what
and where, the importance of these  activities to the North American public, and how the work
helps  illuminate progress, identify gaps, and point a path forward.  Such a map or template could
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provide additional defensible criteria for each Project presented in the Operational Plan, as it
would incorporate a constantly updated methodology and structure for work in such a way that
everyone - CEC, the Parties, the Advisory Committees and the public - could see and understand
new work or continuing work proposed and accompanying rationale.

NAC members also suggested that a very unique role the CEC already does play in this context
but could greatly expand upon would be to pull together and harmonize North American data on
an annual basis - a "data refresh" - possibly presented on the platform of the North American
Atlas.  In fact, the CEC publication produced earlier this year: North American Environmental
Outlook to 2030 might provide a useful starting point for regularly updating these indicators and
showing trends over time.

Energy resources were mentioned as an example  of a particularly pressing and critical North
American issue that might be presented on this platform. As an example, currently the North
American Atlas references installed renewable energy capacity, but could expand to include
potential energy  source "hot  spots" which, if overlaid with protected areas, wetlands, First
Nations,  and PRTR data, could  illuminate the  total landscape of variables  surrounding that
energy source.

Third, the NAC discussed the overall manner in which Projects are presented for consideration,
as well as the manner in which products  of the  CEC are made available to the public. For
example,  projects such as  the  North American  Atlas  might be better highlighted  through
expanded use of social media and other avenues for engaging with a broader cross-section of the
public. To that end, the NAC suggests that CEC projects should strive to include a social media
component, or if not included, be required to at minimum explain why a social media component
is not  included in the  project. This will help pull increased attention to the CEC website and
subsequently its products.

Finally, although members did not spend significant time on individual Projects, as mentioned,
two specific suggestions  for Projects did  emerge from our discussions. One was that every
attempt be made to include Adaptation issues in Projects falling under the Climate  Change/Low
Carbon Economy category, rather than focus on mitigation. A second suggestion was to include
marine sources of emissions in PRTR data.  Marine vessel emissions are currently  included and
mapped on  the North American Atlas, but there are other significant emissions relevant in the
North  American context such  as  off-shore petroleum reserves, exploration and  extraction
activities.

Recommendations:

    1)  Going forward, the United States should propose that a clear context for the Projects and work
       of the CEC be included as an Executive Summary in the Operational Plan.

    2)  The  United States should also propose that a clear process and structure be set forth for
       proposing Projects in the Operational Plan that reflect the unique trilateral role of the CEC in
       activities it carries  out, following on  significant  efforts to  capture that role  and activities
       through past work and reports.

    3)  The United States should propose that Climate Change Projects include adaptation issues, that
       PRTR Projects  include  marine petroleum  resources and extractive activities, and that all
       Projects include a social media component or rationale for why social media is not included.

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

                             Advice 2011-2 (May 16,2011):
                           Comments on the Parties Review of
                      Submissions on Enforcement Matters (SEM)

The NAC was very pleased to hear details from Assistant Administrator DePass regarding the
SEM review process that is to be launched by the Parties over the coming year. We understood
from her comments that the process will conclude with a report to Council in 2012. We welcome
this apparent acknowledgement that longstanding concerns exist regarding the effectiveness and
utility of the SEM process, and we commend your commitment to review the process in order to
develop concrete actions for making it more effective.

The NAC has a long history of providing advice in  which it has identified concerns with the
SEM process and offered recommendations for improving it.  It is interesting to observe that
these  comments,  past and present,  reflect  a certain amount of consistency. The NAC has
enumerated real problems (and offered solutions to  them) many times, and including in our
advice letter dated December 21, 2010. These comments have  been well-crafted, thoughtful and
thoroughly researched.

In the interest of moving forward, we strongly recommend that the current SEM review process
being conducted by the Parties legal advisors incorporate  a thorough examination of past  NAC
advice letters for the many substantive and thorough comments therein covering a broad range of
issues related to SEM. Specifically, advice letters dated June 12, 2009 (2009-2 and 2009-3) and
October 26, 2009 (2009-6) offer advice related to SEM  and  reference previous advice letters
regarding  SEM. The current  NAC membership also  stands ready to help in any way possible
during the review process.

The NAC is  hopeful that this commitment by the Parties to review the SEM will result in
improvements such that SEM becomes a meaningful process that is useful to concerned citizens.
We also urge that the review be conducted as openly and transparently as possible.

As in our advice letter dated December 21, 2010, we offer again here a brief summary of specific
actions that the Council and/or EPA can and should take that will help to address concerns.

A.   Improve timeliness.  Virtually every student of the SEM process has  concluded that the
process takes too long.  We offer three specific recommendations for Council action to improve
timeliness that are among the  many the NAC and others have offered before:

        1)  Adopt a two-year timeline for completion of each submission.  As you note in your
           February 28, 2011 letter to the NAC, the Council agreed in 2006 (more than five
           years ago) to a two-year timeframe for handling individual submissions.  However,
           the timeline for completing submissions has  become even more drawn out since
           Council embraced the two-year goal.  The NAC believes that it is critical that the
           Council reaffirm its commitment to this two-year goal for handling a submission in
           its entirety, and that it commit to performing its responsibilities so that the CEC can
           meet this overall timeline.

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        2)  Commit to have the Council vote within 90 days on each recommendation of the
           Secretariat to prepare a factual record. For some submissions, the Council has taken
           more than two years to complete this single step in the process. It is important that
           the Council lead by example and substantially expedite its decisions at this stage of
           the process.
        3)  Commit to have the Council vote within 60 days whether to release a final factual
           record as provided in NAAEC  15(7). Despite this 60-day timeframe in the
           NAAEC itself, it has taken the Council an average of about five months to make this
           decision for the past several factual records.

The NAC recommends that EPA work with the other governments to encourage the Secretariat
to make best efforts to expedite its work as part of the SEM process  as well. NAC urges EPA
proactively to take a  leadership  role within the Council  in  seeking  to address the significant
delays in current implementation of the SEM process.

B.  Address concerns about fairness and neutrality of the SEM process.  Various commentators,
including submitters, have expressed concerns that the Council's  performance in implementing
the SEM process has "eroded public confidence" in the process.  For example, the Council has
received considerable criticism for narrowing the scope of factual records so that the factual
record the Council  authorizes bears little  resemblance to the submission  itself  or to  the
Secretariat recommendation.   Submitters for SEM-06-005 withdrew their submission earlier this
year,  in January 2011, because they believed that the Council had changed the scope of the
submission so that a factual record would no longer address the concerns of the Submitters.  To
be useful, relevant, transparent and accountable to  citizens, the SEM process must be conducted
in a fair and neutral way.  Council has the ability to take several steps within the  scope of the
NAAEC that would restructure Council involvement and enhance  public confidence and support
for the process.   Past NAC  advice letters and other reports have identified several  of these
actions and the NAC  would be pleased to work with EPA during the review in order to elaborate
and explore options.

C.    Improve Party  accountability for the issues identified by the SEM  process.  The NAC
believes that including a "follow-up" feature to the SEM process would improve its effectiveness
and also make the process and the Parties' actions in connection with it more transparent  and
accountable.  Because promoting government effectiveness, transparency, and accountability are
central objectives of the NAAEC, the NAC believes that such follow-up would be extremely
beneficial in advancing the goals of the Agreement.  Such a step would also significantly bolster
the credibility of the SEM process in the eyes of the public.

There are many options  for incorporating a follow-up feature that would assess results from the
SEM process, and these options are also detailed in past advice letters. In addition to a CEC-wide
commitment to follow-up, the NAC believes that a U.S. commitment to pursue such follow-up
for submissions  involving the U.S.  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.

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Recommendations:
       1)  EPA legal advisors participating in the SEM review process should review past NAC advice
           letters as well as JPAC advice letters and other reports for substantive comments on
           specific actions that the Council can collectively take, and the United States can
           individually take, to improve SEM.

       2)  The United States, to the extent possible, should ensure that the SEM review process is
           open and transparent, and where appropriate incorporate public involvement in the
           process.

       3)  The United States should call on NAC members with particular interest in SEM to assist in
           the SEM review process where appropriate.

       4)  The United States should urge timely conclusion of the SEM review as is planned, and
           adhere to the deadline of Council Session 2012.

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