SEM Process under CUSMA/USMCA

SEM Process under CUSMA/USMCA

A renewed trilateral commitment under the CUSMA and ECA 1994: Established under the North American Agreement on Environmental Cooperation (NAAEC) 2020: Renewed commitment under the Agreement on Environmental Cooperation and CUSMA/USMCA

Mission Facilitate cooperation and community participation for the conservation, protection and enhancement of the North American environment Support sustainable development in benefit of present and future generations

The CEC Environment Committee CUSMA/USMCA Chapter 24

NAFTA and NAAEC NAFTA was silent on environmental issues NAAEC made a commitment to effectively enforce environmental laws NAAEC creates the Commission for Environmental Cooperation CEC implements the SEM Process ECA and CUSMA/USMCA Chapter 24 ECA negotiated in parallel with CUSMA Both agreements entered into force simultaneously ECA replaces the NAAEC Continuity of the CEC as originally established in NAAEC The SEM process integrated into CUSMA Chapter 24

CUSMA Chapter 24 www.cec.org/atlas Creates the Environment Committee CEC operational provisions are now in the ECA All SEM-related provisions are now in CUSMA Chapter 24 Active submissions at the time of the entry into force of CUSMA are being processed according to NAAEC

Submissions on Enforcement Matters process Article 24.27(1) Any person of a Party may file a submission asserting that a Party is failing to effectively enforce its environmental laws. Note: “environmental law” is defined in Article 24.1 and there are specific definitions for each country Articles 24.27(2) and (3) contain requirements for submissions and criteria for the Secretariat’s review process Article 24.27(4) describes the government response

Article 24.28 Factual Record Following the Party response, the Secretariat determines whether to recommend preparation of a factual record The Council votes on whether to authorize the Secretariat to develop a factual record

Follow up to Factual Records Within the framework of CUSMA: Environment Committee can recommend that the CEC Council develop cooperative activities The Parties will provide updates to the Council and Environment Committee on closed Factual Records In the United States: Review process under the USMCA Implementing Legislation

Number of submissions 13 2 Total: 100 Mexico 52 33 US/Canada Canada 24 Factual Records: MEX (14), CAN (8), US (2) United States

Active Submissions Metrobús Reforma City Park Project Factual Record in preparation Council vote pending Hydraulic Fracturing Council vote pending in Nuevo León Loggerhead Turtle Awaiting Mexico’s response Fairview Terminal Awaiting Canada’s response

Who may file a submission? Under CUSMA Article 24.27(1), “Any person of a Party may file a submission asserting that a Party is failing to effectively enforce its environmental laws.” CUSMA Article 1.5: a “person of a Party means a national of a Party or an enterprise of a Party;”

What is a “environmental law” under the CUSMA? Article 24.1: “environmental law means a statute or regulation of a Party, or provision thereof the primary purpose of which is the protection of the environment .” – There are definitions of “statute or regulation” for each country. – For example: “(a) for Canada, an Act of the Parliament of Canada or regulation made under an Act of the Parliament of Canada that is enforceable by action of the central level of government”

How much information should a submission include? One of requirements for submissions in Article 24.27(2) is: “(b) provides sufficient information to allow for the review of the submission, including any documentary evidence on which the submission may be based and identification of the environmental law of which the failure to enforce is asserted”

Have the relevant authorities been notified? Another requirement in Article 24.27(2) is: “(e) indicates whether the matter has been communicated in writing to the relevant authorities of the Party and the Party’s response, if any”.

Has a private remedy been tried? Article 24.27(3) provides four criteria to guide the Secretariat’s review process, including: “(c) private remedies available under the Party’s law have been pursued”. This can be met by filing a complaint or referencing a complaint filed by another person, organization, or entity. – This criterion is evaluated according to a standard of reasonableness, keeping in mind that in some cases barriers exist to pursuing such remedies.

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