Marirose J. Pratt, the Citizen Submission Process of the Naaec: Filling the Gap in Judicial Review of Federal Agency Failures to Enforce Environmental Laws

• Citation: Vol. 20 No. 2
• Publication year: 2006

THE CITIZEN SUBMISSION PROCESS OF THE NAAEC: FILLING THE GAP IN JUDICIAL REVIEW OF FEDERAL AGENCY FAILURES TO ENFORCE ENVIRONMENTAL LAWS

INTRODUCTION

On July 3, 1918, Congress passed the Migratory Bird Treaty Act (MBTA)¹to protect what Justice Holmes described as "a national interest of very nearly the first magnitude."²Since its implementation, however, the U.S. Fish and Wildlife Service (FWS)³has never enforced the MBTA against loggers or logging companies,⁴despite having admitted that logging operations can "take"⁵migratory birds.⁶Based on this evidence, citizens who value migratory bird protection believe the FWS, although willing to enforce the MBTA in other contexts, is systematically neglecting to enforce the MBTA against loggers.⁷Yet under the U.S. doctrines of standing and reviewability, these citizens have virtually no means of challenging the agency's inaction in federal court.⁸U.S. law requires a plaintiff to establish that he or she has a real stake in his or her claim and courts have long held an agency's decision not to enforce is rarely subject to judicial review.⁹Thus, the doctrines of standing and reviewability create a gap in the U.S. legal system through which certain agency conduct can escape judicial scrutiny.¹⁰

While certain agency inactions are safe from review at the domestic level under the federal judicial system, this Comment argues that U.S. government agencies should nevertheless remain subject to review at an international level under the North American Agreement for Environmental Cooperation

(NAAEC).¹¹The NAAEC is the side agreement to the North American Free

Trade Agreement (NAFTA) between the United States, Canada, and Mexico (the "Parties").¹²The NAAEC's Citizen Submission Process (CSP) allows citizens and nongovernmental organizations (NGOs) to file "a submission on enforcement matters"¹³claiming that their government "is failing to effectively enforce its environmental law."¹⁴If a submission meets the NAAEC requirements at each step of the process, the submitters recover a response from their government and eventually a "factual record" providing information related to the alleged failure.¹⁵By providing a response to citizen claims of government inaction, the CSP can fill part of the gap that the doctrines of standing and reviewability create under domestic law.¹⁶

The signing of the NAAEC sparked a plethora of scholarly debate.¹⁷Most scholars agree that the CSP marks a positive and significant step towards allowing greater NGO involvement in international environmental issues.¹⁸

Many scholars also praise the NAAEC and its CSP as an innovative and promising approach to enforcing international environmental agreements.¹⁹

Others, however, contend that the CSP will prove ineffective. For example, Steve Charnovitz, a Policy Director at the Competitive Policy Council in Washington, D.C., suggests one major flaw is that the CSP bases compliance with the NAAEC on whether a party is effectively enforcing its own existing domestic environmental standards rather than establishing more stringent

NAAEC-specific standards for each party to enforce.²⁰Charnovitz argues a party's existing standards, if not already inadequate, are always vulnerable to the party's decision to weaken them.²¹Other skeptics contend that the CSP is too weak because it lacks coercive measures, such as economic sanctions, to ensure compliance.²²

After more than a decade, the NAAEC and its CSP continue to inspire scholarly discussion.²³What the literature has not yet touched upon, and what this Comment addresses, is the relationship between the CSP and U.S. administrative law, specifically the significance of the CSP in offering the public an alternative forum for challenging agency inaction. Because the

NAAEC allows a plaintiff to challenge his or her own government for failing to enforce a domestic law, as opposed to a rule or regulation that arises solely out of the international agreement,²⁴it offers the U.S. public an additional forum for participating in enforcing domestic environmental law.

A number of scholars have addressed the risks and benefits of regulatory and jurisdictional gaps and overlaps within the U.S. domestic legal system.²⁵

This Comment addresses the concept of jurisdictional gaps and overlaps across the domestic and international legal systems and argues that the NAAEC's CSP can serve a valuable gap-filling function. The CSP fills part of the gap in the domestic legal system by offering a substitute for judicial review when the doctrines of standing and reviewability bar citizens from seeking judicial relief. Moreover, the CSP provides a forum for challenging broad and systematic agency failures to enforce, challenges that the U.S. Supreme Court has called

"programmatic attacks" and held not subject to review.²⁶

Part I presents some of the gap-filling benefits that public participation in environmental law can generate for the domestic and international legal systems. Part II describes how the NAAEC and its CSP provide for public participation in both of these systems by discussing the origins of the NAAEC and by outlining the CSP, including the steps submitters must take to recover a factual record.

Part III presents the key domestic barriers to challenging federal agency inaction-standing and reviewability-and discusses the rationales behind these doctrines, including the arguments for and against judicial review of agency inaction. Part III also suggests that the Supreme Court's refusal to hear "programmatic attacks" is one of the domestic barriers to challenging agency inaction.

Part IV presents two submissions on enforcement matters by U.S. citizens, Migratory Birds²⁷and Coal-Fired Power Plants,²⁸as specific illustrations of the kinds of claims challenging agency inaction that U.S. law places outside the scope of judicial review.

Part V argues that the CSP fills the domestic gap by offering relief in the form of a party response and a factual record. Even in cases in which domestic review of discrete agency inaction is available, the CSP provides an additional, overlapping review of agency inactions that rise to the level of systematic failures to act. Part V also observes that while the Council of the NAAEC's Commission for Environmental Cooperation (CEC) has thwarted review of systematic failures in the past by limiting the scope of factual records,²⁹it has recently indicated a willingness to permit factual records of a broad scope.³⁰

This Comment concludes that the Council should commit to permitting factual records that address systematic challenges not only because this approach is consistent with the terms of the NAAEC but also because it provides the benefits of judicial review without the costs. Finally, this Comment urges citizens and NGOs to look to the CSP as an additional opportunity to participate in domestic environmental law and as an alternative form of judicial review when U.S. law places their claims beyond the reach of the courts.

I. VALUE OF PUBLIC PARTICIPATION

A. Public Participation in Enforcing Domestic Environmental Law

Public participation in the form of citizen suits is an integral element of environmental law enforcement.³¹Indeed, Congress included citizen suit provisions in many environmental statutes specifically to increase opportunities for public participation³²and even viewed this increase in participation as "an objective in its own right."³³Citizen suits are important because they fill gaps in government enforcement.³⁴Limited budgets and limited staff constrain both federal and state governments from enforcing environmental laws every time someone commits a violation.³⁵Citizens can identify those violations that overburdened and understaffed agencies are likely to miss.³⁶Additionally, incomplete information sometimes prevents agencies from enforcing the most egregious violations.³⁷Because citizens often possess location-specific information, they are often in a better position to identify the violations of the greatest environmental concern and thus can contribute to the government's enforcement efforts by reporting the violations or challenging the violators themselves.³⁸

Citizen suits can also fill those gaps in enforcement that occur for reasons other than resource constraints.³⁹For example, economic pressure can compel states to avoid imposing civil penalties for fear of creating an unattractive business climate.⁴⁰States with harsh penalties often find themselves at a competitive disadvantage compared to states with more relaxed and under enforced penalties.⁴¹

Political pressure can hinder state enforcement as well.⁴²Citizen suits are valuable because citizen groups are not subject to the same pressures and are therefore willing to bring actions when the government is unwilling to act.⁴³

Thus, citizen suits can both "force agencies . . . to comply with the terms of a statute in situations [in which] political forces would permit the government to turn a blind eye" and "provide political cover, allowing agencies to deflect responsibility for controversial decisions or strong statutory interpretations."⁴⁴

By forcing agencies to act when they would normally turn a blind eye, public participation also guards against "agency capture"⁴⁵-the notion that agencies are unduly sympathetic to the interests of the industries that they regulate.⁴⁶

Citizen suits give the public a greater voice in enforcement, making it less likely that agencies will succumb to pressures from the industries that they regulate. ⁴⁷

Finally, citizen suits are important for initiating judicial review of agency action and inaction.⁴⁸Judicial review is valuable, among other reasons, for promoting "fidelity to statutory requirements and, where those requirements are ambiguous or vague, . . . increasing the likelihood that the regulatory process will be a reasonable exercise of discretion instead of a bow in the direction of powerful private groups."⁴⁹Even though citizens may not always...