Trade Treaties, Citizen Submissions, and Environmental Justice

Abstract

The history of the U.S. environmental justice movement reveals that successful campaigns are seldom waged solely through litigation. Instead, communities have employed litigation and administrative actions as part of a broader grassroots struggle to achieve shortand long-term change. Even when not successful on the merits, such actions can facilitate both informationgathering and information-dissemination, with the accompanying public scrutiny providing an increased incentive to reform agency or corporate behavior. Latin American communities seeking environmental justice face similar, and often greater, obstacles in pursuing claims through the courts. Transnational corporations, operating under U.S. trade and investment treaties like the North American Free Trade Agreement, can take advantage of ineffective environmental protection regimes in Latin American countries and generally escape liability in U.S. courts as well. Yet these trade treaties also include a citizen submission on enforcement matters process, where citizens can spotlight environmental violations and force an oversight body to generate and publish an authoritative factual record. This Article assesses this citizen submissions process in the context of a holistic approach to environmental justice campaigns. Drawing on parallels from the U.S. movement, the Article highlights how the citizen submissions process can validate data gathered by the community, facilitate generation of new information, publicize that information to a much wider audience, and provide a meaningful rallying point for community organizing. The Article concludes that, while the factual record itself holds limited value as a standalone remedy, the informational aspects of the process nonetheless can be an effective compliance-promoting tool in a broader environmental justice campaign.