At the heart of Professors Hsu and Parrish’s excellent paper is the turn to transnationalism in environmental governance in North America. The authors point to both the potential increased demand for transnational litigation, due to the (political) unavailability of bi-lateral approaches, and the potential for increased supply of transnational solutions through the dismantling of jurisdictional and evidentiary barriers to successful claims. As a normative development, the authors are ambivalent about the turn to extraterritoriality, and perhaps with good reason, since it is far from clear whether the short gains in effectiveness will be outweighed by instability over the long term.
For my part, while I generally agree with Austen and Shi-Ling’s analysis of the legal issues surrounding the loosening restrictions on extraterritoriality, I think there remain some substantial disincentives for Ontario (or any other Canadian province) to embrace unilateralism. Firstly, while formal bi-lateral institutions, such as the International Joint Commission, appear to have fallen out of favour, there remains a fairly dense set of transgovernmental environment networks and interactions operating between Canada and the United States. For example, on the air quality issue, the Canada-U.S. Air Quality Committee, made up of officials from federal and sub-national agencies from Canada and the U.S., has, inter alia, provided a forum for reciprocal notification and consultation of activities having transboundary impacts on air quality and is currently developing strategies to address the must problematic air sheds around the Great Lakes and Puget Sound/Georgia Basin. Similarly, the Commission for Environmental Cooperation has created networks addressing biodiversity, marine ecosystems, and compliance issues, in addition to assisting in the development of pollution release and transfer registries in North America. The recent Security and Prosperity Partnership of North America includes a number of environmental initiatives that utilize transgovernmental networks as the primary means of implementation. Networks and other cooperative activities are also growing at the sub-national level, with provinces and states in the border regions entering into environmental cooperation agreements, such as the Great Lakes Agreement and Compact. The turn away from formal bi-lateral institutions has not resulted in a cessation of transboundary regulatory activity, but has lead to more informal transgovernmental cooperative activities. The question that governmental officials will need to ask themselves before taking extraterritorial measures is how unilateral actions will affect those activities.
A second avenue of recourse for transboundary pollution currently being pursued is direct involvement in the source state’s public regulatory process. Ontario has, for example, filed formal comments objecting to the EPA’s proposed changes to the New Source Review Program under the Clean Air Act and has commented on the proposed rulemaking on National Ambient Air Quality Standards for Ozone. Ontario also filed an amicus brief in United States v. Cinergy Corp., supporting the U.S. government’s NSR enforcement action. In these matters, the Ontario government has worked closely with state governments and may be reluctant to be seen as acting unilaterally when it is seeking to influence the decision-making process through public law avenues.
On the supply side, two potentially significant jurisdictional hurdles remain. Firstly, Canadian provinces face constitutional restrictions in enacting extraterritorial legislation. Here Shi-Ling and Austen rightly point to the Supreme Court of Canada’s decision in Imperial Tobacco v. B.C. as supporting a province’s right to enact legislation that has extraterritorial impacts. However, in Imperial Tobacco the legislation was not itself aimed at companies outside of Canada, but rather sought recourse from tobacco companies regardless of their presence in or out of the jurisdiction. Thus, in that case, the court found that the “pith and substance” of the legislation was not extraterritorial. Had the court found otherwise, the constitutional challenge would have been successful. If a statutory approach is taken towards seeking damages related to pollution, a purely extraterritorial approach would present a significant challenge. The alternative is to seek damages from polluters regardless of their location, but that may present difficulties of its own, given that much of Ontario’s air pollution originates within that province.
Secondly, the Canadian position on the international law of extraterritorial jurisdiction may be less fulsome than the American position. Canada has asserted extraterritorial jurisdiction, most prominently in support of its seizure of the trawler Estai in 1995, but has maintained, in the Pakootas litigation, for example, that extraterritoriality must account for an affected state’s interests through comity. Canadian courts while applying a “real and substantial connection” test to subject matter and personal jurisdiction, would temper that with considerations of comity. Any uncertainty could likely be overcome through clear statutory language, but the position would cause a great deal of unease within the federal government and a province would likely face some pressure to avoid an unequivocal extraterritorial extension of prescriptive authority such as Austen and Shi-Ling propose. This, of course, is emblematic of the concerns that Austen and Shi-Ling raise concerning transnationalism, where a sub-national government can potentially prejudice a national position by acting independently in the transnational sphere. Reciprocity in this instance may have its costs, in so far as it requires Canada to give up its long standing opposition to unilateralism in international law. Given the significant differences in relative power between Canada and the United States, the Canadian insistence on comity as a basis to resolve jurisdictional conflicts is less about the moral high ground (the Helms-Burton Act notwithstanding), than it is pragmatism.
Shi-Ling and Austen are absolutely correct in identifying that recalcitrance by a negotiating partner on matters of shared concern, be it transboundary pollution, climate change or trade, requires a response, and certainly one response is to resort to unilateral measures. Reciprocal unilateralism in its best light, and the one the authors emphasize, is a short term strategy; a form of tit-for tat that serves to bring an uncooperative partner back to the table. As a long term strategy, however, unilateralism lacks predictability and, ultimately, it lacks any transformative potential to create a shared normative vision regarding common threats to the natural environment.