Citizen Participation in Environmental Enforcement in Mexico and the United States: A Comparative Study

Georgetown International Environmental Law Review, Winter 2004 by Bailey, Katherine M

I. INTRODUCTION

In 1993, the United States, Mexico, and Canada signed the North American Agreement on Environmental Cooperation (NAAEC), the side agreement to the North American Free Trade Agreement (NAFTA).1 The NAAEC was designed to assuage fears that Mexico would become a haven for pollution once NAFTA took effect, drawing all industry south of the border where environmental enforcement was weak.2 The NAAEC's passage assured environmental non-governmental organizations (NGOs) a forum for their complaints if the United States and Canada lowered their environmental enforcement standards to compete with Mexico in an international "race to the bottom."3 Under NAAEC Articles 14 and 15, North American residents could file a complaint against a member country if it did not comply with its own environmental laws.4

NGOs saw the NAAEC citizen submission process as an important tool because it let individuals challenge national governments on the international stage. In theory, one resident of North America could write one letter to the Commission for Environmental Compliance and eventually call the United States, Canada, or Mexico to task for any environmental action or omission that violated relevant law. A small outlay of time and resources could give individuals or groups a chance to be heard internationally.5

Nine years have passed since NAFTA and the NAAEC went into effect, but U.S. citizens and organizations have been slow to use the citizen submission process. U.S. citizens have brought or participated in twelve claims, only one of which was against Mexico, and six of which were against the U.S. government. In contrast, Mexicans have participated in twenty-one claims, eighteen of which were leveraged against the Mexican government.6 Why have U.S. actors shied away from using this process for enforcing domestic environmental law after they pressed so vociferously for it? And why have Mexicans used it much more readily? One answer lies in the nature of the legal systems in each country: Although Mexico's main environmental law was based heavily on U.S. laws, the legal and political systems in Mexico make enforcement through internal legal channels more difficult.7 Mexico's concentration of power in the executive branch, and the one-party system that prevailed from 1929 to 2000, made the executive untouchable and the legislature and judiciary ineffective.8 NGOs and citizens trying to vindicate their rights found administrative, legislative, and judicial channels corrupt, exclusive, and ineffective.

The U.S. legal system is based on a hybrid of court-made common law and statutory environmental law.9 Environmental activities are regulated by the executive branch's Environmental Protection Agency (EPA); citizens may challenge enforcement problems through administrative channels; and many statutes create the right of citizen suits, whereby parties who have not suffered direct harm may sue third parties to force compliance.10

In some ways, the Mexican and U.S. legal regimes are remarkably similar and grow more so every day, as U.S. citizens depend more heavily on statutes and administrative regulation, and Mexicans adopt laws and procedures almost verbatim from the United States.11 Nevertheless, centuries-old practices are not so easily erased. The United States's history of judicial lawmaking, citizen participation, and separation of powers provides a much more hospitable environment for citizens to be involved in enforcing the laws. Unlike Mexicans, U.S. actors can turn to a strong court system to supplement their administrative and political options.12

The ways these countries treat NGOs impact the public's participation options. Because the United States enjoys a tradition of involving the public in national governance, it has developed a legal system that provides for NGO participation and offers meaningful channels for NGOs to make their voices heard.13 NGOs in Mexico are comparatively weaker because tax laws offer them fewer benefits and less flexibility.14 This reflects Mexico's history of excluding the public from its governance system, adopting U.S. laws that do not always make sense in the Mexican context, and placing less emphasis than the United States does on following the law. In the United States, by contrast, federal tax laws subsidize NGOs for their charitable work and let them select a combination of tax benefits and allowed activities that will enable them to meet their individual goals.15 As a consequence, the Mexican government cannot offer NGOs as many meaningful options to take part in environmental compliance activities.16

This paper will explore the particulars of Mexican and U.S. federal tax laws governing non-profit organizations because of their enormous financial impact on NGO activities, the contours of both environmental regimes, and the options that actors - especially NGOs - have for enforcing environmental laws in each country. It will then evaluate the usefulness of the NAAEC's citizen submission process in light of the existing legal environment. Finally, it will present some initial conclusions about why the process has been used to the degree that it has on each side of the border; namely, that proactive attempts to educate the public, elect friendly officiais, and influence legislation have little or no impact in Mexico. Administrative and judicial remedies are not as effective in Mexico as they are in the United States. Mexicans are thus quicker to rely on the NAAEC citizen submission process as a last resort.