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The Citizen Petition Process Under NAFTA's Environmental Side Agreement: It's Easy to Use, But Does It Work?

January 1996

Citation: ELR 10031

Author: Jay Tutchton

The relationship between trade and the environment was perhaps the hottest issue in the debate over the North American Free Trade Agreement (NAFTA) in 1993.1 The North American Agreement on Environmental Cooperation (NAAEC), commonly known as the Environmental Side Agreement, was the Clinton Administration's answer to environmentalists' concerns with NAFTA.2 After completion of the NAAEC, most major national environmental groups supported NAFTA's passage.3 A central tenet of this support was that the NAAEC's citizen petition process would allow environmental groups to force all three NAFTA Parties (the United States, Canada, and Mexico) to effectively enforce their environmental laws.4 The environmental community's support for NAFTA and the NAAEC was far from uniform, however;5 several national and perhaps most grass-roots environmental organizations continued to oppose NAFTA and the NAAEC, arguing, in part, that the NAAEC citizen petition process was too weak.6

With the benefit of hindsight, this Dialogue returns to the debate over whether the NAAEC citizen petition process is an effective environmental enforcement tool. The Dialogue first describes how to use the citizen petition process. It then criticizes the process on procedural and substantive grounds. Finally, based on the experience of the first citizen enforcement petition, the Dialogue discusses an emerging loophole in the NAAEC's enforcement scheme. The Dialogue concludes that if NAFTA and the NAAEC are to live up to their promise as a truly "green" trade accord deserving of environmentalists' support, the citizen petition process must be dramatically improved.

Mr. Tutchton is the Clinic Director of the Earthlaw Environmental Law Clinic at the University of Denver College of Law. Earthlaw is a nonprofit, public interest environmental law firm that represents a variety of national and grass-roots environmental organizations. On behalf of one Mexican and four American environmental groups, Earthlaw filed the first citizen enforcement petition under the North American Free Trade Agreement's (NAFTA's) Environmental Side Agreement. Special thanks are extended to Heather Hawker and Dawn McKnight for their excellent legal research on this project.

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