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Part Three: Commission For Environmental Cooperation
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Article 8: The Commission

  1. The Parties hereby establish the Commission for Environmental Cooperation.
  2. The Commission shall comprise a Council, a Secretariat and a Joint Public Advisory Committee.

Section A: The Council

Article 9: Council Structure and Procedures

  1. The Council shall comprise cabinet-level or equivalent representatives of the Parties, or their designees.
  2. The Council shall establish its rules and procedures.
  3. The Council shall convene:
    1. at least once a year in regular session; and
    2. in special session at the request of any Party.
  4. Regular sessions shall be chaired successively by each Party.

  5. The Council shall hold public meetings in the course of all regular sessions.  Other meetings held in the course of regular or special sessions shall be public where the Council so decides.
  6. The Council may:
    1. establish, and assign responsibilities to, ad hoc or standing committees, working groups or expert groups;
    2. seek the advice of non-governmental organizations or persons, including independent experts; and
    3. take such other action in the exercise of its functions as the Parties may agree.
  7. All decisions and recommendations of the Council shall be taken by consensus, except as the Council may otherwise decide or as otherwise provided in this Agreement.
  8. All decisions and recommendations of the Council shall be made public, except as the Council may otherwise decide or as otherwise provided in this Agreement.

Article 10: Council Functions

  1. The Council shall be the governing body of the Commission and shall:
    1. serve as a forum for the discussion of environmental matters within the scope of this Agreement;
    2. oversee the implementation and develop recommendations on the further elaboration of this Agreement and, to this end, the Council shall, within four years after the date of entry into force of this Agreement, review its operation and effectiveness in the light of experience;
    3. oversee the Secretariat;
    4. address questions and differences that may arise between the Parties regarding the interpretation or application of this Agreement;
    5. approve the annual program and budget of the Commission; and
    6. promote and facilitate cooperation between the Parties with respect to environmental matters.
  2. The Council may consider, and develop recommendations regarding:
    1. comparability of techniques and methodologies for data gathering and analysis, data management and electronic data communications on matters covered by this Agreement;
    2. pollution prevention techniques and strategies;
    3. approaches and common indicators for reporting on the state of the environment;
    4. the use of economic instruments for the pursuit of domestic and internationally agreed environmental objectives;
    5. scientific research and technology development in respect of environmental matters;
    6. promotion of public awareness regarding the environment;
    7. transboundary and border environmental issues, such as the long-range transport of air and marine pollutants;
    8. exotic species that may be harmful;
    9. the conservation and protection of wild flora and fauna and their habitat, and specially protected natural areas;
    10. the protection of endangered and threatened species;
    11. environmental emergency preparedness and response activities;
    12. environmental matters as they relate to economic development;
    13. the environmental implications of goods throughout their life cycles;
    14. human resource training and development in the environmental field;
    15. the exchange of environmental scientists and officials;
    16. approaches to environmental compliance and enforcement;
    17. ecologically sensitive national accounts;
    18. eco-labelling; and
    19. other matters as it may decide.
  3. The Council shall strengthen cooperation on the development and continuing improvement of environmental laws and regulations, including by:
    1. promoting the exchange of information on criteria and methodologies used in establishing domestic environmental standards; and
    2. without reducing levels of environmental protection, establishing a process for developing recommendations on greater compatibility of environmental technical regulations, standards and conformity assessment procedures in a manner consistent with the NAFTA.
  4. The Council shall encourage:
    1. effective enforcement by each Party of its environmental laws and regulations;
    2. compliance with those laws and regulations; and
    3. technical cooperation between the Parties.
  5. The Council shall promote and, as appropriate, develop recommendations regarding:
    1. public access to information concerning the environment that is held by public authorities of each Party, including information on hazardous materials and activities in its communities, and opportunity to participate in decision-making processes related to such public access; and
    2. appropriate limits for specific pollutants, taking into account differences in ecosystems.
  6. The Council shall cooperate with the NAFTA Free Trade Commission to achieve the environmental goals and objectives of the NAFTA by:
    1. acting as a point of inquiry and receipt for comments from non-governmental organizations and persons concerning those goals and objectives;
    2. providing assistance in consultations under Article 1114 of the NAFTA where a Party considers that another Party is waiving or derogating from, or offering to waive or otherwise derogate from, an environmental measure as an encouragement to establish, acquire, expand or retain an investment of an investor, with a view to avoiding any such encouragement;
    3. contributing to the prevention or resolution of environment-related trade disputes by:
    4. seeking to avoid disputes between the Parties,
    5. making recommendations to the Free Trade Commission with respect to the avoidance of such disputes, and
    6. identifying experts able to provide information or technical advice to NAFTA committees, working groups and other NAFTA bodies;
    7. considering on an ongoing basis the environmental effects of the NAFTA; and
    8. otherwise assisting the Free Trade Commission in environment-related matters.
  7. Recognizing the significant bilateral nature of many transboundary environmental issues, the Council shall, with a view to agreement between the Parties pursuant to this Article within three years on obligations, consider and develop recommendations with respect to:
    1. assessing the environmental impact of proposed projects subject to decisions by a competent government authority and likely to cause significant adverse transboundary effects, including a full evaluation of comments provided by other Parties and persons of other Parties;
    2. notification, provision of relevant information and consultation between Parties with respect to such projects; and
    3. mitigation of the potential adverse effects of such projects.
  8. The Council shall encourage the establishment by each Party of appropriate administrative procedures pursuant to its environmental laws to permit another Party to seek the reduction, elimination or mitigation of transboundary pollution on a reciprocal basis.
  9. The Council shall consider and, as appropriate, develop recommendations on the provision by a Party, on a reciprocal basis, of access to and rights and remedies before its courts and administrative agencies for persons in another Party's territory who have suffered or are likely to suffer damage or injury caused by pollution originating in its territory as if the damage or injury were suffered in its territory.

Section B: The Secretariat

Article 11: Secretariat Structure and Procedures

  1. The Secretariat shall be headed by an Executive Director, who shall be chosen by the Council for a three-year term, which may be renewed by the Council for one additional three- year term.  The position of Executive Director shall rotate consecutively between nationals of each Party.  The Council may remove the Executive Director solely for cause.
  2. The Executive Director shall appoint and supervise the staff of the Secretariat, regulate their powers and duties and fix their remuneration in accordance with general standards to be established by the Council.  The general standards shall provide that:
    1. staff shall be appointed and retained, and their conditions of employment shall be determined, strictly on the basis of efficiency, competence and integrity;
    2. in appointing staff, the Executive Director shall take into account lists of candidates prepared by the Parties and by the Joint Public Advisory Committee;
    3. due regard shall be paid to the importance of recruiting an equitable proportion of the professional staff from among the nationals of each Party; and
    4. the Executive Director shall inform the Council of all appointments.
  3. The Council may decide, by a two-thirds vote, to reject any appointment that does not meet the general standards.  Any such decision shall be made and held in confidence.
  4. In the performance of their duties, the Executive Director and the staff shall not seek or receive instructions from any government or any other authority external to the Council. Each Party shall respect the international character of the responsibilities of the Executive Director and the staff and shall not seek to influence them in the discharge of their responsibilities.
  5. The Secretariat shall provide technical, administrative and operational support to the Council and to committees and groups established by the Council, and such other support as the Council may direct.
  6. The Executive Director shall submit for the approval of the Council the annual program and budget of the Commission, including provision for proposed cooperative activities and for the Secretariat to respond to contingencies.
  7. The Secretariat shall, as appropriate, provide the Parties and the public information on where they may receive technical advice and expertise with respect to environmental matters.
  8. The Secretariat shall safeguard:
    1. from disclosure information it receives that could identify a non-governmental organization or person making a submission if the person or organization so requests or the Secretariat otherwise considers it appropriate; and
    2. from public disclosure any information it receives from any non-governmental organization or person where the information is designated by that non-governmental organization or person as confidential or proprietary.

Article 12: Annual Report of the Commission

  1. The Secretariat shall prepare an annual report of the Commission in accordance with instructions from the Council.  The Secretariat shall submit a draft of the report for review by the Council.  The final report shall be released publicly.
  2. The report shall cover:
    1. activities and expenses of the Commission during the previous year;
    2. the approved program and budget of the Commission for the subsequent year;
    3. the actions taken by each Party in connection with its obligations under this Agreement, including data on the Party's environmental enforcement activities;
    4. relevant views and information submitted by non-governmental organizations and persons, including summary data regarding submissions, and any other relevant information the Council deems appropriate;
    5. recommendations made on any matter within the scope of this Agreement; and
    6. any other matter that the Council instructs the Secretariat to include.
  3. The report shall periodically address the state of the environment in the territories of the Parties.

Article 13: Secretariat Reports

  1. The Secretariat may prepare a report for the Council on any matter within the scope of the annual program.  Should the Secretariat wish to prepare a report on any other environmental matter related to the cooperative functions of this Agreement, it shall notify the Council and may proceed unless, within 30 days of such notification, the Council objects by a two-thirds vote to the preparation of the report.  Such other environmental matters shall not include issues related to whether a Party has failed to enforce its environmental laws and regulations.  Where the Secretariat does not have specific expertise in the matter under review, it shall obtain the assistance of one or more independent experts of recognized experience in the matter to assist in the preparation of the report.
  2. In preparing such a report, the Secretariat may draw upon any relevant technical, scientific or other information, including information:
    1. that is publicly available;
    2. submitted by interested non-governmental organizations and persons;
    3. submitted by the Joint Public Advisory Committee;
    4. furnished by a Party;
    5. gathered through public consultations, such as conferences, seminars and symposia; or
    6. developed by the Secretariat, or by independent experts engaged pursuant to paragraph 1.
  3. The Secretariat shall submit its report to the Council, which shall make it publicly available, normally within 60 days following its submission, unless the Council otherwise decides.

Article 14: Submissions on Enforcement Matters

  1. The Secretariat may consider a submission from any non-governmental organization or person asserting that a Party is failing to effectively enforce its environmental law, if the Secretariat finds that the submission:
    1. is in writing in a language designated by that Party in a notification to the Secretariat;
    2. clearly identifies the person or organization making the submission;
    3. provides sufficient information to allow the Secretariat to review the submission, including any documentary evidence on which the submission may be based;
    4. appears to be aimed at promoting enforcement rather than at harassing industry;
    5. indicates that the matter has been communicated in writing to the relevant authorities of the Party and indicates the Party's response, if any; and
    6. is filed by a person or organization residing or established in the territory of a Party.
  2. Where the Secretariat determines that a submission meets the criteria set out in paragraph 1, the Secretariat shall determine whether the submission merits requesting a response from the Party.  In deciding whether to request a response, the Secretariat shall be guided by whether:
    1. the submission alleges harm to the person or organization making the submission;
    2. the submission, alone or in combination with other submissions, raises matters whose further study in this process would advance the goals of this Agreement;
    3. private remedies available under the Party's law have been pursued; and
    4. the submission is drawn exclusively from mass media reports.
  3. Where the Secretariat makes such a request, it shall forward to the Party a copy of the submission and any supporting information provided with the submission.

  4. The Party shall advise the Secretariat within 30 days or, in exceptional circumstances and on notification to the Secretariat, within 60 days of delivery of the request:
    1. whether the matter is the subject of a pending judicial or administrative proceeding, in which case the Secretariat shall proceed no further; and
      1. of any other information that the Party wishes to submit, such as
        1. whether the matter was previously the subject of a judicial or administrative proceeding, and
        2. whether private remedies in connection with the matter are available to the person or organization making the submission and whether they have been pursued.

Article 15: Factual Record

  1. If the Secretariat considers that the submission, in the light of any response provided by the Party, warrants developing a factual record, the Secretariat shall so inform the Council and provide its reasons.
  2. The Secretariat shall prepare a factual record if the Council, by a two-thirds vote, instructs it to do so.
  3. The preparation of a factual record by the Secretariat pursuant to this Article shall be without prejudice to any further steps that may be taken with respect to any submission.
  4. In preparing a factual record, the Secretariat shall consider any information furnished by a Party and may consider any relevant technical, scientific or other information:
    1. that is publicly available;
    2. submitted by interested non-governmental organizations or persons;
    3. submitted by the Joint Public Advisory Committee; or
    4. developed by the Secretariat or by independent experts.
  5. The Secretariat shall submit a draft factual record to the Council.  Any Party may provide comments on the accuracy of the draft within 45 days thereafter.
  6. The Secretariat shall incorporate, as appropriate, any such comments in the final factual record and submit it to the Council.
  7. The Council may, by a two-thirds vote, make the final factual record publicly available, normally within 60 days following its submission.

Section C: Advisory Committees

Article 16: Joint Public Advisory Committee

  1. The Joint Public Advisory Committee shall comprise 15 members, unless the Council otherwise decides.  Each Party or, if the Party so decides, its National Advisory Committee convened under Article 17, shall appoint an equal number of members.
  2. The Council shall establish the rules of procedure for the Joint Public Advisory
    Committee, which shall choose its own chair.
  3. The Joint Public Advisory Committee shall convene at least once a year at the time of the regular session of the Council and at such other times as the Council, or the Committee’s chair with the consent of a majority of its members, may decide.
  4. The Joint Public Advisory Committee may provide advice to the Council on any matter within the scope of this Agreement, including on any documents provided to it under paragraph 6, and on the implementation and further elaboration of this Agreement, and may perform such other functions as the Council may direct.
  5. The Joint Public Advisory Committee may provide relevant technical, scientific or other information to the Secretariat, including for purposes of developing a factual record under Article 15.  The Secretariat shall forward to the Council copies of any such information.
  6. The Secretariat shall provide to the Joint Public Advisory Committee at the time they are submitted to the Council copies of the proposed annual program and budget of the Commission, the draft annual report, and any report the Secretariat prepares pursuant to Article 13.
  7. The Council may, by a two-thirds vote, make a factual record available to the Joint Public Advisory Committee.

Article 17: National Advisory Committees

Each Party may convene a national advisory committee, comprising members of its public, including representatives of non-governmental organizations and persons, to advise it on the implementation and further elaboration of this Agreement.

Article 18: Governmental Committees

Each Party may convene a governmental committee, which may comprise or include representatives of federal and state or provincial governments, to advise it on the implementation and further elaboration of this Agreement.

Section D: Official Languages

Article 19: Official Languages

The official languages of the Commission shall be English, French and Spanish.  All annual reports under Article 12, reports submitted to the Council under Article 13, factual records submitted to the Council under Article 15(6) and panel reports under Part Five shall be available in each official language at the time they are made public.  The Council shall establish rules and procedures regarding interpretation and translation.

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