Beyond 'beyond the border': a proposal for implementation of the action plan's recommendation on cross-border critical infrastructure.

• Author: McDaniel, Michael C.
• Position: 35th Annual Henry T. King Conference: The US-Canadian Border Action Plan

Abstract

This paper will outline the concurrent development of Emergency Management Assistance Compacts ("EMACs") (1) and "regional critical infrastructure coalitions" ("RCCCs"), (2) note where they have both been expanded to include cross-border partners, and recommend that the two efforts be melded. Namely, explicit agreements should be incorporated for protection of key nodes of cross-border critical infrastructure networks within the State and Province Emergency Management Assistance Memoranda of Agreement. (3)

INTRODUCTION

On February 4, 2011, Prime Minister Stephen Harper and President Barack Obama signed a declaration titled "Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness" ("2011 Declaration"). (4) The 2011 Declaration, however, is in large part an aspirational document, intended to set goals for working groups of designated governmental officials to pursue. (5) For example, the section therein entitled "Integrated Crossborder Law Enforcement" consists of three sentences, all beginning with the words: "We intend to ..." (6) Similarly, the following section, "Critical Infrastructure and Cybersecurity", consists of three sentences, the first starting with, "We intend to ...," and the third beginning with "Our countries intend to ..." (7) Both leaders recognized that working groups, including the U.S.-Canada Beyond the Border Working Group, (8) in conjunction with "existing bilateral border-related groups" (9) are necessary to develop the objectives and metrics through a "Joint Plan of Action" (10) to operationalize their declared vision. (11) Thereafter, on December 1, 2011, President Obama and Prime Minister Harper released the United States-Canada Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness ("Action Plan"). (12)

Part IV, of the Action Plan, "Critical Infrastructure and Cybersecurity," (13) is quite short and vague. It contains three goals in the section entitled "Enhance the Resiliency of Our Shared Critical and Cyber Infrastructure," (14) and three goals in a section entitled "Rapidly Respond to and Recover from Disasters and Emergencies on Either Side of the Border." (15) The only objective which expressly and exclusively focuses on critical infrastructure states that the two countries will "enhance cross-border critical infrastructure protection and resilience" through the following step: "We will implement the Canada-United States Action Plan for Critical Infrastructure, including by executing programs and developing joint products to enhance cross-border critical infrastructure protection and resilience." (16) The Canada-United States Action Plan for Critical Infrastructure (17) was drafted in 2010 by Public Safety Canada and the U.S. Department of Homeland Security ("DHS") to create a "cross-border approach to strengthening the resiliency of critical infrastructure." (18)

It may seem that the 2011 Declaration and Action Plan give insufficient attention to cross-border infrastructure to assure protection and to establish the needed framework to assure the protection and resilience of cross border critical infrastructure. (19) This paper suggests, however, that the incorporation of the Canada-United States Action Plan for Critical Infrastructure, which recognizes the existing regional coalitions and the emergency management assistance compacts, provides both the framework and the opportunity for real movement forward in regional collaboration for the protection of cross-border critical infrastructure. This paper recommends that the collaborative contingency planning inherent in the emergency management compact framework be combined with the public and private sector partnerships which comprise the regional critical infrastructure consortia to create a system of partnerships, focused on the resilience of our shared systems of critical infrastructure across our shared border.

1. REGIONAL PARTNERSHIPS FOR CRITICAL INFRASTRUCTURE PROTECTION

   The use of regional cross-border partnerships to assure the proper balance of trade and security has been recognized as vital by both countries in numerous documents. (20) The use of such partnerships to assure the resilience of cross-border critical infrastructure systems has also been long-recognized. "Resiliency" refers to the ability of an organization, community or people to absorb the impact of a disaster and readily return to a pre-disaster state or to accept a new post-disaster state. Much of the confusion lies in the use of the word to refer to (1) the psychological ability of individuals or community to withstand the social or economic devastation; (2) the ability of emergency planners and managers to be adequately prepared; and (3) the systems of critical infrastructure to withstand the kinetic effects of human or natural violent events.

   The 2003 Northeast United States-Ontario blackout emphasized the need to protect critical infrastructure regionally, regardless of geophysical boundaries. The European Union ("EU") has suffered through emergency events similar to the 2003 blackout, including a large-scale blackout affecting France and Italy as well as parts of Spain, Portugal, the Netherlands, Belgium, and Austria as the result of the shutdown of a high-voltage line in Germany in November 2006. (21) Not surprisingly, the recommended solution included addressing the critical infrastructure networks holistically across the EU, rather than individually by country. (22)

   The U.S. National Infrastructure Protection Plan ("NIPP") recognized that there is an intertwined system of partnerships, all focused on critical infrastructure protection. (23) In their entirety, they create a "partnership of partnerships," an overarching public-private network of Federal departments and agencies, State and local government agencies, private sector entities, and regional consortia, all dedicated to an expansive focus from protection to resilience. (24) The concept of regional critical infrastructure consortia, as developed by the DHS, is broadly defined and includes "any regional group.... [including] multi-state economic development agencies; law enforcement or emergency response networks; or any public-private partnership that crosses jurisdictional, sector, or international boundaries," (25) with the goal of enhancing the protection, response, recovery, and resilience of the U.S. infrastructure. (26)

   Canada developed its National Strategy for Critical Infrastructure in 2009, (27) which similarly strives to assure critical infrastructure protection and resiliency, relying on partnerships between the levels of government and the private sector owners and operators. (28) This document, discussed in greater detail below, not only recognizes the need for regional critical infrastructure coalitions, but, like its U.S. counterpart, it too seems to recognize the need for the creation of express cross-border regional critical infrastructure coalitions. (29) Given this broad definition, there are a significant number of DHS recognized regional consortia in the United States. (30) But for the purposes of this paper, the focus is limited to those regional consortia that share the border with Canada. The Pacific Northwest Economic Region ("PNWER") is the oldest and strongest of the regional coalitions, with a much broader mandate than simply cross-border critical infrastructure resiliency. (31)

   PNWER was formed in 1991 by the legislatures of the states of Alaska, Washington, Idaho, Montana, Oregon, and the Canadian provinces of Alberta and British Columbia, with the province of Saskatchewan and the Yukon & Northwest Territories joining thereafter. (32) Ten years later, they created the Regional Disaster Resilience and Homeland Security Program (33) to focus on the region's ability to withstand, recover from, and protect critical infrastructure from all hazards. (34)

   The Great Lakes Hazards Coalition was established in 2008 by state officials charged with critical infrastructure protection in Michigan, New York, Wisconsin and Ohio, and now includes over twenty-five participating agencies and private sector members from those states as well as Illinois, Indiana, and Pennsylvania. (35) Its primary objectives are to "promote and enhance" regional Critical Infrastructure and Key Resources ("CIKR") resilience efforts, to provide the "foundation for regional cross-sector collaboration" and to educate the public and private sector on the inherent interdependencies in regional CIKR systems. (36)

   The Northern Lights Coalition was started by Infragard Minnesota with Safeguard Iowa and others to focus on the protection of the critical infrastructure of Minnesota, Iowa, North Dakota, South Dakota and Nebraska. (37) This recently established collaboration has three primary goals: (1)...