July 17, 2006

CEC requests factual record on Quebec Automobiles submission

The Council of the Commission for Environmental Co-operation (CEC) has asked the CEC secretariat to prepare a factual record on a submission alleging that Canada, and specifically Québec, is failing to effectively enforce sections 96.1 and 96.2 of Quebec's atmospheric quality regulation, as well as sections 19.1, 20 and 51 of Quebec's Environment Quality Act, relating to emissions of hydrocarbons, carbon monoxide and nitrogen oxides from post-1985 model year light-duty vehicles. Under these provisions, removing or modifying a catalytic converter from a vehicle constitutes an infraction punishable by a fine and/or a prison term.

The Quebec Association Against Air Pollution (Association québécoise de lutte contre la pollution atmosphérique) filed its submission (SEM-04-007-Quebec Automobiles) in November 2004 (ELW January 3, 2005). In February 2005, Ottawa filed a response from both governments, contending that the problem meant to be addressed by the "anti-tampering" provisions of the regulations was largely resolved by the ban on leaded gasoline that took effect in 1990, followed by the introduction of fuel injection and on-board computers in vehicles.

For its part, Quebec stated that it is concentrating on developing a motor vehicle inspection and maintenance program that will address socio-economic and technical issues encountered in other jurisdictions that have adopted such programs. The province further said it wants to start by dealing with pollution from heavy vehicles and has authorized the drafting of a regulation in this regard.

Quebec's response also noted that in addition to strict enforcement of the law, the Ministry of the Environment has carried out awareness raising, educational and information activities, and has monitored the state of the automobiles on Quebec's roads.

After reviewing the response, the secretariat recommended to the Council in May 2005 that a factual record be prepared for the submission. By a unanimous vote, the Council accepted the recommendation and issued the directive.

A work plan for the factual record has been drawn up, with information gathering scheduled to begin later this month. This phase should be completed by the end of the year and a draft factual record will be prepared early in 2007. A final version should be ready by July 2007. The Council-comprising Canada's Environment Minister and equivalent counterparts in the U.S. and Mexico-may, by a two-thirds vote, make this document publicly available within 60 days after receiving it.

In other activities, Sierra Legal Defence Fund has filed a revised submission concerning Devils Lake (SEM-06-002) with the CEC, as requested by the secretariat. The submission, filed on behalf of Friends of the Earth (in both Canada and the U.S.), People to Save the Sheyenne River, and representative residents of Manitoba and North Dakota, maintains that Canada and the U.S. are failing to effectively enforce anti-pollution provisions in the 1909 International Boundary Waters Treaty with respect to the construction and operation by North Dakota of an outlet to drain water from Devils Lake into the Sheyenne River, the Red River Basin, Lake Winnipeg, and ultimately into the broader Hudson Bay drainage system.

The original version was filed in March; last month, the CEC secretariat ruled that it did not meet the requirements of Article 14 of the North American Agreement on Environmental Co-operation (NAAEC) and gave the submitters 30 days to re-file a submission meeting those requirements.

The revised submission continues to assert that both Canada and the U.S. have failed to prevent cross-border pollution that the submitters claim results from the Devils Lake outfall. They contend that this contravenes Article IV of the Treaty, which states that "boundary waters and waters flowing across the boundary shall not be polluted on either side to the injury of health or property on the other."

In the revised version, however, the submitters no longer claim that the two countries are failing to effectively enforce provisions of the Treaty allowing for unilateral or joint referral of disputes to the International Joint Commission (IJC). They say that while referral to the IJC is one means to enforce the Treaty, Article IV "creates an absolute prohibition of transboundary pollution" and "it is up to the parties to the Treaty to enforce this mandatory provision."

The CEC secretariat will analyze the revised submission to determine whether it now meets the requirements of Article 14 of the NAAEC. This section of the agreement allows any person or nongovernmental organization to file a claim with the Secretariat a claim alleging that a North American Free Trade Agreement (NAFTA) partner is failing to effectively enforce its environmental law.

More information is available from the CEC's Submissions on Enforcement Matters Unit, 514/350-4300, FAX 514/350-4314, E-mail info@cec.org, Web site www.cec.org.

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