Chapter Seventeen-- Environment

Chapter Seventeen-- Environment

Article 17.1:  Levels of Protection

 Recognizing the right of each Party to establish its own levels of domestic environmental

protection and environmental development policies and priorities, and to adopt or modify

accordingly its environmental laws and policies, each Party shall ensure that its laws and policies

provide for and encourage high levels of environmental protection, and shall strive to continue to

improve those laws and policies.

Article 17.2:  Enforcement of Environmental Laws

1. (a) A Party shall not fail to effectively enforce its environmental laws, through a

sustained or recurring course of action or inaction, in a manner affecting trade

between the Parties, after the date of entry into force of this Agreement.

(b) The Parties recognize that each Party retains the right to exercise discretion with

respect to investigatory, prosecutorial, regulatory, and compliance matters and to

make decisions regarding the allocation of resources to enforcement with respect

to other environmental matters determined to have higher priorities. 

Accordingly, the Parties understand that a Party is in compliance with

subparagraph (a) where a course of action or inaction reflects a reasonable

exercise of such discretion, or results from a bona fide decision regarding the

allocation of resources.

 

2. The Parties recognize that it is inappropriate to encourage trade or investment by

weakening or reducing the protections afforded in domestic environmental laws. Accordingly,

each Party shall strive to ensure that it does not waive or otherwise derogate from, or offer to

waive or otherwise derogate from, such laws in a manner that weakens or reduces the protections

afforded in those laws as an encouragement for trade with another Party, or as an encouragement

for the establishment, acquisition, expansion, or retention of an investment in its territory. 

 

3. Nothing in this Chapter shall be construed to empower a Party’s authorities to undertake

environmental law enforcement activities in the territory of another Party. 

 

Article 17.3:  Procedural Matters

1. Each Party shall ensure that judicial, quasi-judicial, or administrative proceedings, in

accordance with its law, are available to sanction or remedy violations of its environmental laws.

 

 

 

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(a) Such proceedings shall be fair, equitable, and transparent and, to this end, shall

comply with due process of law and be open to the public, except where the

administration of justice otherwise requires.

 

(b) The parties to such proceedings shall be entitled to support or defend their

respective positions, including by presenting information or evidence. 

 

(c) Each Party shall provide appropriate and effective remedies or sanctions for a

violation of its environmental laws that:

 

(i) take into consideration, as appropriate, the nature and gravity of the

violation, any economic benefit the violator has derived from the

violation, the economic condition of the violator, and other relevant

factors; and

 

(ii) may include criminal and civil remedies and sanctions such as compliance

agreements, penalties, fines, injunctions, suspension of activities, and

requirements to take remedial action or pay for damage to the

environment.

 

2. Each Party shall ensure that interested persons may request the Party’s competent

authorities to investigate alleged violations of its environmental laws, and that each Party’s

competent authorities shall give such requests due consideration in accordance with its law.

 

3. Each Party shall ensure that persons with a legally recognized interest under its law in a

particular matter have appropriate access to proceedings referred to in paragraph 1.  

 

4. Each Party shall provide appropriate and effective access to remedies, in accordance with

its law, which may include rights such as: 

 

(a) to sue another person under that Party’s jurisdiction for damages under that

Party’s laws;

 

(b) to seek sanctions or remedies such as monetary penalties, emergency closures or

temporary suspension of activities, or orders to mitigate the consequences of

violations of its environmental laws;

 

(c) to request that Party’s competent authorities to take appropriate action to enforce

its environmental laws in order to protect the environment or to avoid

environmental harm; or

 

(d) to seek injunctions where a person suffers, or may suffer, loss, damage, or injury

as a result of conduct by another person subject to that Party’s jurisdiction that is

 

 

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contrary to that Party’s environmental laws or that violates a legal duty under that

Party’s law relating to human health or the environment.

 

5. Each Party shall ensure that tribunals that conduct or review proceedings referred to in

paragraph 1 are impartial and independent and do not have any substantial interest in the

outcome of the matter. 

 

6. For greater certainty, nothing in this Chapter shall be construed to call for the

examination under this Agreement of whether a Party’s judicial, quasi-judicial, or administrative

tribunals have appropriately applied that Party’s environmental laws.

 

Article 17.4:  Voluntary Mechanisms to Enhance Environmental Performance 

1. The Parties recognize that incentives and other flexible and voluntary mechanisms can

contribute to the achievement and maintenance of environmental protection, complementing the

procedures set out in Article 17.3.  As appropriate and in accordance with its law, each Party

shall encourage the development and use of such mechanisms, which may include:

 

(a) mechanisms that facilitate voluntary action to protect or enhance the environment,

such as: 

(i) partnerships involving businesses, local communities, non-governmental

organizations, government agencies, or scientific organizations; 

(ii) voluntary guidelines for environmental performance; or

 

 (iii) sharing of information and expertise among authorities, interested parties,

and the public concerning methods for achieving high levels of

environmental protection, voluntary environmental auditing and reporting,

ways to use resources more efficiently or reduce environmental impacts,

environmental monitoring, and collection of baseline data; or

 

(b) incentives, including market-based incentives where appropriate, to encourage

conservation, restoration, and protection of natural resources and the environment,

such as public recognition of facilities or enterprises that are superior

environmental performers, or programs for exchanging permits or other

instruments to help achieve environmental goals.

 

2. As appropriate and feasible and in accordance with its law, each Party shall encourage:

 

(a) the maintenance, development, or improvement of performance goals and

indicators used in measuring environmental performance; and 

 

 

 

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(b) flexibility in the means to achieve such goals and meet such standards, including

through mechanisms identified in paragraph 1.

 

Article 17.5:  Environmental Affairs Council

1. The Parties hereby establish an Environmental Affairs Council comprising cabinet-level

or equivalent representatives of the Parties, or their designees.  Each Party shall designate an

office in its appropriate ministry that shall serve as a contact point for carrying out the work of

the Council.

 

2. The Council shall meet within the first year after the date of entry into force of this

Agreement, and annually thereafter unless the Parties otherwise agree, to oversee the

implementation of and review progress under this Chapter and to consider the status of

cooperation activities developed under the Dominican Republic – Central America – United

States – Environmental Cooperation Agreement (“ECA”).  Unless the Parties otherwise agree,

each meeting of the Council shall include a session in which members of the Council have an

opportunity to meet with the public to discuss matters relating to the implementation of this

Chapter.

 

3. The Council shall set its own agenda.  In setting the agenda, each Party shall seek views

from its public concerning possible issues for discussion.

 

4. In order to share innovative approaches for addressing environmental issues of interest to

the public, the Council shall ensure a process for promoting public participation in its work,

including by engaging in a dialogue with the public on those issues.

 

5. The Council shall seek appropriate opportunities for the public to participate in the

development and implementation of cooperative environmental activities, including through the

ECA.

 

6. All decisions of the Council shall be taken by consensus, except as provided in Article

17.8.  All decisions of the Council shall be made public, unless otherwise provided in this

Agreement, or unless the Council otherwise decides.  

Article 17.6:  Opportunities for Public Participation

1. Each Party shall provide for the receipt and consideration of public communications on

matters related to this Chapter.  Each Party shall promptly make available to the other Parties

and to its public all communications it receives and shall review and respond to them in

accordance with its domestic procedures.

 

2. Each Party shall make best efforts to accommodate requests by persons of that Party to

exchange views with that Party regarding that Party’s implementation of this Chapter.

 

 

 

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3. Each Party shall convene a new, or consult an existing, national consultative or advisory

committee, comprising members of its public, including representatives of business and

environmental organizations, to provide views on matters related to the implementation of this

Chapter.  

 

4. The Parties shall take into account public comments and recommendations regarding

cooperative environmental activities undertaken pursuant to Article 17.9 and the ECA.

 

Article 17.7:  Submissions on Enforcement Matters

1. Any person of a Party may file a submission asserting that a Party is failing to effectively

enforce its environmental laws.  Such submissions shall be filed with a secretariat or other

appropriate body (“secretariat”) that the Parties designate.1

 

2. The secretariat may consider a submission under this Article if the secretariat finds that

the submission:

 

(a) is in writing in either English or Spanish; 

 

(b) clearly identifies the person making the submission;

 

(c) provides sufficient information to allow the secretariat to review the submission,

including any documentary evidence on which the submission may be based;

 

(d) appears to be aimed at promoting enforcement rather than at harassing industry;

 

(e) 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

 

(f) is filed by a person of a Party.

 

3. The Parties recognize that the North American Agreement on Environmental Cooperation

(“NAAEC”) provides that a person or organization residing or established in the territory of the

United States may file a submission under that agreement with the Secretariat of the NAAEC

Commission for Environmental Cooperation asserting that the United States is failing to

effectively enforce its environmental laws.2  In light of the availability of that procedure, a

person of the United States who considers that the United States is failing to effectively enforce

                                                

1

  The Parties shall designate the secretariat and provide for related arrangements through an exchange of letters or

other form of agreement between the Parties.  

2

  Arrangements will be made for the United States to make available in a timely manner to the other Parties all such

submissions, U.S. written responses, and factual records developed in connection with those submissions.  At the

request of any Party, the Council shall discuss such documents.

 

 

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its environmental laws may not file a submission under this Article.  For greater certainty, a

person of a Party other than the United States who considers that the United States is failing to

effectively enforce its environmental laws may file a submission with the secretariat.

 

4. Where the secretariat determines that a submission meets the criteria set out in paragraph

2, 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:

 

(a) the submission is not frivolous and alleges harm to the person making the

submission;

 

(b) the submission, alone or in combination with other submissions, raises matters

whose further study in this process would advance the goals of this Chapter and

the ECA, taking into account guidance regarding those goals provided by the

Council and the Environmental Cooperation Commission established under the

ECA;

 

(c) private remedies available under the Party’s law have been pursued; and

 

(d) the submission is drawn exclusively from mass media reports.

 

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.

 

5. The Party shall advise the secretariat within 45 days or, in exceptional circumstances and

on notification to the secretariat, within 60 days of delivery of the request:

 

(a) whether the precise matter at issue is the subject of a pending judicial or

administrative proceeding, in which case the secretariat shall proceed no further;

and

 

(b) of any other information the Party wishes to submit, such as:

 

(i) whether the matter was previously the subject of a judicial or

administrative proceeding;

 

(ii) whether private remedies in connection with the matter are available to the

person making the submission and whether they have been pursued; or

 

(iii) information concerning relevant capacity-building activities under the

ECA.

 

 

 

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Article 17.8:  Factual Records and Related Cooperation

1. If the secretariat considers that the submission, in 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 vote of any Party,

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:

 

(a) that is publicly available;

 

(b) submitted by interested persons;

 

(c) submitted by national advisory or consultative committees; 

 

(d) developed by independent experts; or

 

(e) developed under the ECA.

 

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 vote of any Party, make the final factual record publicly available,

normally within 60 days following its submission.

 

8. The Council shall consider the final factual record in light of the objectives of this

Chapter and the ECA.  The Council shall, as appropriate, provide recommendations to the

Environmental Cooperation Commission related to matters addressed in the factual record,

including recommendations related to the further development of the Party’s mechanisms for

monitoring its environmental enforcement.

 

 

 

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Article 17.9:  Environmental Cooperation

1. The Parties recognize the importance of strengthening capacity to protect the

environment and to promote sustainable development in concert with strengthening trade and

investment relations. 

 

2. The Parties are committed to expanding their cooperative relationship, recognizing that

cooperation is important for achieving their shared environmental goals and objectives, including

the development and improvement of environmental protection, as set out in this Chapter.  

 

3. The Parties recognize that strengthening their cooperative relationship on environmental

matters can enhance environmental protection in their territories and may encourage increased

trade and investment in environmental goods and services.

 

4. The Parties have negotiated an ECA.  The Parties have identified certain priority areas of

cooperation for environmental activities as reflected in Annex 17.9 and as set out in the ECA. 

The Parties also have established an Environmental Cooperation Commission through the ECA

that is responsible for developing, and periodically revising and updating, a work program that

reflects each Party’s priorities for cooperative environmental programs, projects, and activities.

 

5. The Parties also recognize the continuing importance of current and future environmental

cooperation activities in other fora.

 

Article 17.10:  Collaborative Environmental Consultations  

1. A Party may request consultations with another Party regarding any matter arising under

this Chapter by delivering a written request to the contact point that the other Party has

designated under Article 17.5.1.

 

2. The consultations shall begin promptly after delivery of the request.  The request shall

contain information that is specific and sufficient to enable the Party receiving the request to

respond.  

 

3. The consulting Parties shall make every attempt to arrive at a mutually satisfactory

resolution of the matter, taking into account opportunities for cooperation relating to the matter

and information exchanged by the consulting Parties, and may seek advice or assistance from

any person or body they deem appropriate in order to fully examine the matter at issue.

 

4. If the consulting Parties fail to resolve the matter pursuant to paragraph 3, a consulting

Party may request that the Council be convened to consider the matter by delivering a written

request to the contact point of each of the other Parties.3

                                                

3

  For purposes of paragraphs 4, 5, and 6, the Council shall consist of cabinet-level representatives of the consulting

Parties or their designees.  

 

 

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5. The Council shall promptly convene and shall endeavor to resolve the matter, including,

where appropriate, by consulting outside experts and having recourse to such procedures as good

offices, conciliation, or mediation.

 

6. If the matter concerns whether a Party is conforming to its obligations under Article

17.2.1(a), and the consulting Parties have failed to resolve the matter within 60 days of a request

under paragraph 1, the complaining Party may request consultations under Article 20.4

(Consultations) or a meeting of the Commission under Article 20.5 (Commission – Good

Offices, Conciliation, and Mediation) and, as provided in Chapter Twenty (Dispute Settlement),

thereafter have recourse to the other provisions of that Chapter.  The Council may, as

appropriate, provide information to the Commission regarding any consultations held on the

matter.

 

7. No Party may have recourse to dispute settlement under this Agreement for any matter

arising under any provision of this Chapter other than Article 17.2.1(a).

 

8. No Party may have recourse to dispute settlement under this Agreement for a matter

arising under Article 17.2.1(a) without first pursuing resolution of the matter in accordance with

this Article.

 

9. In cases where the consulting Parties agree that a matter arising under this Chapter would

be more appropriately addressed under another agreement to which the consulting Parties are

party, they shall refer the matter for appropriate action in accordance with that agreement. 

 

Article 17.11:  Environmental Roster

1. The Parties shall establish within six months after the date of entry into force of this

Agreement and maintain a roster of up to 28 individuals who are willing and able to serve as

panelists in disputes arising under Article 17.2.1(a).  Unless the Parties otherwise agree, up to

three members of the roster shall be nationals of each Party, and up to seven members of the

roster shall be selected from among individuals who are not nationals of any Party.  Environment

roster members shall be appointed by consensus, and may be reappointed.  Once established, a

roster shall remain in effect for a minimum of three years, and shall remain in effect thereafter

until the Parties constitute a new roster.  The Parties may appoint a replacement where a roster

member is no longer available to serve.

 

2. Environment roster members shall:

 

(a) have expertise or experience in environmental law or its enforcement,

international trade, or the resolution of disputes arising under international trade

or environmental agreements;

 

(b) be chosen strictly on the basis of objectivity, reliability, and sound judgment;

 

 

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(c) be independent of, and not affiliated with or take instructions from, any Party; and

 

(d) comply with a code of conduct to be established by the Commission.

 

3. Where a Party claims that a dispute arises under Article 17.2.1(a), Article 20.9 (Panel

Selection) shall apply, except that the panel shall be composed entirely of panelists meeting the

qualifications in paragraph 2.

 

Article 17.12:  Relationship to Environmental Agreements 

1. The Parties recognize that multilateral environmental agreements to which they are all

party play an important role in protecting the environment globally and domestically and that

their respective implementation of these agreements is critical to achieving the environmental

objectives of these agreements.  The Parties further recognize that this Chapter and the ECA can

contribute to realizing the goals of those agreements.  Accordingly, the Parties shall continue to

seek means to enhance the mutual supportiveness of multilateral environmental agreements to

which they are all party and trade agreements to which they are all party.

 

2. The Parties may consult, as appropriate, with respect to ongoing negotiations in the WTO

regarding multilateral environmental agreements.

 

Article 17.13:  Definitions 

 

1. For purposes of this Chapter:

 

environmental law means any statute or regulation of a Party, or provision thereof, the primary

purpose of which is the protection of the environment, or the prevention of a danger to human,

animal, or plant life or health, through:

 

(a) the prevention, abatement, or control of the release, discharge, or emission of

pollutants or environmental contaminants;

 

(b) the control of environmentally hazardous or toxic chemicals, substances,

materials, and wastes, and the dissemination of information related thereto; or

 

(c) the protection or conservation of wild flora and fauna, including endangered

species, their habitat, and specially protected natural areas, 

 

in areas with respect to which a Party exercises sovereignty, sovereign rights, or

jurisdiction, but does not include any statute or regulation, or provision thereof, directly

related to worker safety or health.

 

 

 

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For greater certainty, environmental law does not include any statute or regulation, or provision

thereof, the primary purpose of which is managing the commercial harvest or exploitation, or

subsistence or aboriginal harvesting, of natural resources. 

 

For purposes of the definition of “environmental law,” the primary purpose of a particular

statutory or regulatory provision shall be determined by reference to its primary purpose, rather

than to the primary purpose of the statute or regulation of which it is part. 

 

statute or regulation means:

 

(a) for Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, and

Nicaragua, a law of its legislative body or a regulation promulgated pursuant to an

act of its legislative body that is enforceable by the executive body; and

 

(b) for the United States, an act of Congress or regulation promulgated pursuant to an

act of Congress that is enforceable by action of the federal government.

 

2. For purposes of Article 17.7.5, judicial or administrative proceeding means:

 

(a) a domestic judicial, quasi-judicial, or administrative action pursued by the Party

in a timely fashion and in accordance with its law.  Such actions comprise: 

mediation; arbitration; the process of issuing a license, permit, or authorization;

seeking an assurance of voluntary compliance or a compliance agreement;

seeking sanctions or remedies in an administrative or judicial forum; and the

process of issuing an administrative order; and

 

(b) an international dispute resolution proceeding to which the Party is a party.

 

 

 

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Annex 17.9

 

Environmental Cooperation

 

1. The Parties recognize the importance of protecting, improving, and conserving the

environment, including natural resources, in their territories.  The Parties underscore the

importance of promoting all possible forms of cooperation and reaffirm that cooperation on

environmental matters provides enhanced opportunities to advance common commitments to

achieve sustainable development for the well-being of present and future generations.

 

2. Recognizing the benefits that would be derived from a framework to facilitate effective

cooperation, the Parties negotiated the ECA.  The Parties expect that the ECA will enhance their

cooperative relationship, noting the existence of differences in the Parties’ respective natural

endowments, climatic and geographical conditions, and economic, technological, and

infrastructure capabilities.

 

3. As set forth in Article V of the ECA, the Parties have identified the following priorities

for environmental cooperation activities:

 

(a) strengthening each Party’s environmental management systems, including

reinforcing institutional and legal frameworks and the capacity to develop,

implement, administer, and enforce environmental laws, regulations, standards,

and policies;

 

(b) developing and promoting incentives and other flexible and voluntary

mechanisms in order to encourage environmental protection, including the

development of market-based initiatives and economic incentives for

environmental management;

 

(c) fostering partnerships to address current or emerging conservation and

management issues, including personnel training and capacity building; 

 

(d) conserving and managing shared, migratory, and endangered species in

international trade and management of marine parks and other protected areas; 

 

(e) exchanging information on domestic implementation of multilateral

environmental agreements that all the Parties have ratified;

 

(f) promoting best practices leading to sustainable management of the environment;

 

(g) facilitating technology development and transfer and training to promote the use,

proper operation, and maintenance of clean production technologies; 

 

 

 

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(h) developing and promoting environmentally beneficial goods and services; 

 

(i) building capacity to promote public participation in the process of environmental

decision-making;

 

(j) exchanging information and experiences between Parties wishing to perform

environmental reviews, including reviews of trade agreements, at the national

level; and

 

(k) other areas for environmental cooperation on which the Parties may agree.

 

4. Funding mechanisms for environmental cooperation activities under the ECA are

addressed in Article VIII of the ECA.