Canada Canada Institute InstItute February 2010 Occasional Paper Series Environmental tHIs publiCation contains twelve papers exploring the issues and themes that emerged from a two-day conference on Transboundary Environmental Governance on Governance in Canada and the United States, held at the Woodrow Wilson International Center for Scholars on May 8 and 9, 2008, and organized by the the 49th Parallel: Canada Institute. The conference aimed to provide participants with a better understanding of the varied institutional arrangements that make up environmen- New Century, New tal cross-border governance between Canada and the United States, and deter- mine whether these arrangements have had a substantive impact on the bilateral Approaches environmental relationship. Much of the discussion throughout the conference focused on the relevance and impact of the International Joint Commission (IJC) on bilateral environmen- tal issues. Through the Boundary Waters Treaty of 1909, the International Joint Commission was granted a broad range of powers by the Canadian and United States governments to jointly manage transboundary water resources. The IJC’s institutional structure—allowing equal representation from both countries and a commitment to binational consensus in its decision making—has been heralded as a model for building international cooperation. Yet new and emerging environmental developments, particularly the threat of climate change, underscore the urgent need to assess the ability of existing North American institutions to cope. As several authors in this publication highlight, while the IJC remains central to any examination of cross-border environmental governance, it is by no means the only institution that needs to be considered when contemplating an effective response. Enhancing cross-border environmental governance requires an understand- ing not only of future environmental issues, but also a firm grasp of the history of environmental cooperation between Canada and the United States, as well as the multitude of institutions and policy arrangements that have emerged at the national and subnational levels of government in both countries since the estab- lishment of the IJC. The authors in this publication United States in this new century. lend their considerable expertise and insight in each of these areas, while offering guidance on how best Ken CrIst to mount an effective response to the unprecedent- Program Associate, Canada Institute, ed environmental challenges facing Canada and the Woodrow Wilson Center EnvIronmEntAl GovErnAnCE on thE 49th PArAllEl: New CEntury, New APProachEs ■ Chapter 1: trans-border environmental Governance in Canada and the 3 united states: Introduction and Common themes. Barry G. Rabe. ■ Chapter 2: the International Joint Commission: Convergence, 16 Divergence or submergence? Stephen Brooks. ■ Chapter 3: Managing Water scarcity in the Prairie region: the role 32 of the International Joint Commission in a Changing Climate. Timothy Heinmiller. ■ Chapter 4: trans-boundaries of environmental Governance on the 48 Great Lakes. Mark Sproule-Jones. ■ Chapter 5: trans-boundary Water Pollution efforts in the Great Lakes: 63 the significance of national and subnational Policy Capacity. Carolyn M. Johns. ■ Chapter 6: Policy Changes on Canada’s rivers: Different but not Isolated. 83 William R. Lowry. ■ Chapter 7: Multi-jurisdictional Governance of the Great Lakes Fishery: 99 Can a nonbinding Agreement Work? Marc Gaden and Charles Krueger. ■ Chapter 8: environmental Cross-border regions and the Canada-u.s. 115 relationship: Building from the Bottom-up in the second Century? Debora L. VanNijnatten. ■ Chapter 9: trans-boundary environmental Governance in the 133 Pacific West.Donald K. Alper. ■ Chapter 10: Along the Domestic-Foreign Frontier: Quebec and the 152 Management of the st. Lawrence river Basin. Philippe LePrestre and Anaiz Parfait. ■ Chapter 11: renewable electricity and Canada-u.s. Cross-border 167 Development. Ian H. Rowlands. ■ Chapter 12: the Absence of Governance: Climate Change in 181 Canada and the united states. Barry G. Rabe. ■ Chapter 13: the next Century of trans-boundary environmental 197 2 Governance. Stephen Brooks. The International Joint Commission (IJC), whose centennial is celebrated by this volume, was a bold experiment when it rose upon the international scene 100 years ago. It evolved to become a major player in a number of environmental concerns and serves as an important test of concept, i.e., 3 can a binational commission guided by political appointees and possessing 19 few formal powers be truly effective? The answer is both yes and no. The 35 following chapters explore IJC performance, but also examine an array 53 of alternative mechanisms, including a growing phalanx of subnational cross-border institutions and governance arrangements, that are responding to new environmental challenges. This introductory chapter explores the concept of issue framing and its effects on forms and processes of governance. Another recurring theme in the chapters ahead, and discussed at length in this introduction, is the relative effectiveness of “hard” versus “soft” law in effecting change to promote environmental sustainability, mitigate climate Chapter 1: effects, and—specific to the IJC’s original role—manage water resources shared by U.S. and Canadian jurisdictions. “Hard law” tends to entail a Trans-border centralized regulatory response to new environmental problems or perceived failures by existing institutions. In contrast, soft law tends to involve less Environmental formal and authoritative arrangements in favor of policy networks sustained through epistemic communities and relying on cooperation and shared sci- Governance in entific and technologic expertise, rather than coercion, as a means to an end. National, regional and historic differences in approach—and their relative Canada and the effectiveness—are explored in subsequent chapters. United States: he odyssey of shared environmental governance involving BARRY G. RABE february 2010 february RABE G. BARRY Introduction and Canada and the United States was launched one century ago, Twith the establishment of the 1909 Boundary Waters Treaty. Common Themes This deal was struck at a point at which initial proponents at the high- est levels of their respective governments were nearing the end of their barry G. rabe careers in elective politics. Theodore Roosevelt was entering the final university of Michigan year of his presidency, followed by an unsuccessful effort to reclaim the Oval Office in 1912. Wilfrid Laurier was serving in his 13th year as prime minister in 1909, but would never regain power after a 1911 election in which his support for expanded “reciprocity” with the United States cost him dearly. Implementation of the treaty and the management of its enduring institution, the International Joint Commission (IJC), would be left to succeeding federal leaders. The Commission, as we shall see in many subsequent chapters, has been a major player in a number of envi- ronmental concerns spanning multiple generations. It constitutes an 3 important test of the effectiveness of a binational com- institutions and agreements? Is there evidence to sug- mission guided by political appointees, but one that pos- gest that one or more of these is particularly effective sesses few formal powers and so has to rely on powers of or do they simply carve up convenient turf to maintain suasion if it is to have influence. But while the Boundary institutional comity while doing little for environmental Water Treaty specified initial Commission duties and protection? Is it even possible to conceive of serious responsibility for “all such questions as may hereafter cross-border engagement and collaboration, given the arise,” it has become increasingly clear in recent decades historic tensions and asymmetries between these neigh- that many “such questions” have begun to be addressed, boring nations that share a profoundly long border? not by the IJC, but rather by an incredibly diverse patch- We remain struck by how few serious attempts have work quilt of other institutions and policy frameworks. been made to answer these questions. Indeed, much of The very issue of “Canadian-American environmen- the existing scholarly literature on cross-border environ- tal governance” reflects not one single treaty or institu- mental policy involving Canada and the United States tion but rather a loosely-structured experiment with focuses on just one institution, region or governance numerable players that represent virtually every model arrangement and tends to be rather dated (IJC 1975; of governance imaginable. This includes new institutions Caldwell 1988). Much of the more recent analysis fea- established through binational (or in some instances, con- tures internal self-assessment by officials serving these tinental via Mexican input) negotiation, formal regional institutions, offering important insider accounts from arrangements that address some specified portion of the individuals directly involved in policy development, border region, and loose confederations of neighboring but inherently limited by the challenge any participant- states and provinces. Some of these efforts are focused observer faces in offering dispassionate analysis (Durnil on a particular ecosystem, such as the Great Lakes Basin, 1995; Hartig and Zarull 1992). An even more glaring whereas others entail ad hoc partnerships among neigh- shortcoming is the absence of any volume