The attorneys general of New York, Connecticut and Rhode Island, along with forty-eight public interest groups and two municipalities, have filed a submission (SEM-03-001) (the "Submission") with the Commission for Environmental Cooperation ("CEC"), requesting the development of a public record to document the alleged failure of the Canadian government to effectively enforce its own environmental laws against Ontario Power Generation ("OPG").
According to the Submission, OPG operates numerous coal-powered electric generating facilities in Ontario, including one of the largest such facilities in North America, and most of the plants have few, if any, pollution control devices. The submitters claim that emissions of mercury, sulfur dioxide and nitrogen oxide from these plants contribute to air and water pollution downwind in the northeastern United States, particularly in the form of acid rain.
The Submission states that the Canadian government has been notified of the harm caused by OPG emissions, and refers to numerous letters written by the attorneys general of seven northeastern states (some of whom are parties to the Submission) over a period of years to various Canadian authorities and also to U.S. federal authorities requesting their intervention with Canadian authorities. The Submission asserts that the Canadian government has failed to enforce its own laws under which Canadian federal authorities are required to take certain steps in the event of cross-boundary air or water pollution. According to the Submission, such steps in this case might include requiring OPG to prepare and implement a pollution prevention plan.
The Submission requests that the CEC "document in a public record the failure of the Canadian government to enforce effectively its environmental laws against OPG." The CEC is an international body created by the North American Agreement on Environmental Cooperation ("NAAEC"), which in turn is an ancillary agreement to the North American Free Trade Agreement. Among other things, the CEC is authorized to develop a factual record in response to the complaint of any "non-governmental organization or person" that one of the signatory nations—Canada, Mexico and the United States—is failing to "effectively enforce" its own environmental laws. The CEC may decide to release the factual record to the public.
An unfavorable public record would presumably generate public pressure on the government to improve its own enforcement practices. Apart from such a public reaction, however, the NAAEC provides no clear remedies. In particular, the NAAEC makes no provision for any form of damages or injunctive relief against the target government. Nonetheless, if public pressure results in governmental enforcement action, parties against whom the enforcement action is brought will presumably suffer real consequences.
A submission under the NAAEC may be made against any of the three signatory nations. Thus, just as U.S. citizens have filed the Submittal to pressure Canadian authorities to enforce environmental laws against OPG, so Canadian and Mexican citizens could file a submission to pressure U.S. authorities to enforce U.S. environmental laws against U.S. power generators. Of the twelve active files listed on the CEC’s website, however, none are brought against the United States.