The approaching centennial of the Boundary Waters Treaty provides a unique opportunity to examine a range of experiments in environmental governance that span the U.S.-Canadian border. While much has been written about the institutional framework that emerged since the treaty was signed in 1909, there is still a need for serious discussion of the effectiveness of existing governance arrangements and reflection on their adequacy for addressing future U.S.-Canadian environmental challenges.

On May 8 and 9, the Canada Institute hosted a conference to provide participants with a better understanding not only of the varied institutional arrangements for cross-border governance but also provide some sense of whether their impacts are substantive or largely symbolic. The discussion provided analyses of the International Joint Commission's (IJC) initiatives, as well as other environmental governance mechanisms that focus on particular bioregions or sub-national jurisdictions. Panelists also addressed areas where Canada and the United States share serious environmental concerns, but currently lack an effective bilateral governance system to manage these challenges.

Assessing the Role and Relevance of the International Joint Commission

"In terms of both function and form, the IJC remains quite remarkable," noted Stephen Brooks of the University of Windsor. Through the Boundary Waters Treaty, the IJC was granted a broad scope of powers by the United States and Canadian governments to jointly manage trans-boundary water resources. Among the IJC's powers, said Brooks, is the authority to investigate and offer recommendations on a variety of environmental issues ranging from dam approval or other obstructions that affect the natural flow of water on either side of the border, as well as the responsibility to study and report any question regarding rights, obligations, or interests along the common frontier. In addition to its powers, the IJC's form has allowed the institution to maintain its importance and credibility. Brooks explained that the IJC is structured in a manner that allows for equal representation from each country, requires binational consensus in its decision making, and acts independently of the Canadian and U.S. governments.

Nevertheless, said Brooks, the changing nature of environmental issues and tremendous proliferation of institutions charged with managing environmental affairs since the establishment of the IJC has led some to question the institution's relevance. One emerging trans-boundary issue facing the IJC is coping with growing water scarcity in the Prairie region. Timothy Heinmiller of Brock University noted that many trans-boundary Prairie rivers have reached the point of full allocation (meaning they cannot sustain further use for agricultural irrigation or other purposes). This situation, argued Heinmiller, could lead to water shortages and environmental degradation, particularly when factoring in the effects of climate change.

According to Brooks, the IJC can perform a necessary role in managing water scarcity and other future trans-boundary issues. He cautioned, however, that an examination of IJC cases revealed that the Institution can only be expected to have a limited impact in situations where bilateral national interests diverge substantially. In these cases, argued Brooks, the IJC's influence on trans-boundary governance ultimately depends on the Canadian and U.S. governments' willingness to use the IJC as a venue for binding decisions. Mark Sproule-Jones of McMaster University added that without the development of a coherent methodology or framework for evaluating environmental governance, it will remain impossible to predict or assess how effective current institutions will be in addressing emerging environmental issues.

Looking Beyond the IJC

Effective freshwater governance may rest on answering a few key questions, argued Carolyn Johns of Ryerson University. Among those questions are how to find the right mix of hard (legislative) and soft (non-binding, voluntary agreements) law that would allow for the most effective governance of shared water resources. In addition, said Johns, policymakers should consider whether national or subnational actors would be more appropriate in managing water resources, as well as whether current institutions charged with transboundary governance are prepared to handle the environmental challenges of the next century.

Insights into how to meet these challenges were offered by several panelists. Johns maintained that dealing with the environmental challenges of the next century will not require additional institutions to address; rather, it will depend on making existing institutions more effective and capable of adapting to modern challenges. She also argued that subnational institutions have proven instrumental in overseeing the implementation of policies aimed at managing shared water resources, and should be utilized in any future strategy to address freshwater pollution and quality issues.

Marc Gaden of the Great Lakes Fishery Commission offered his perspective on whether hard or soft law was more effective in managing Great Lakes fisheries. Gaden noted that the primary management of the fisheries occurs at the subnational level in both Canada and the United States. According to Gaden, policymakers on both sides of the border have preferred negotiating non-binding agreements over enforceable agreements. One of the reasons behind this is the fact that negotiating parties on both sides of the border are often hesitant to agree to a binding agreement that would ultimately require sacrificing sovereignty and independence. In addition, the management of Great Lakes fisheries requires flexibility and the opportunity for ongoing consensus building between negotiating parties that non-binding agreements permit. The opportunity to build consensus has proven to be essential in establishing a shared vision of fisheries management in the Great Lakes and offers a potentially important lesson that could be applied in other areas of transboundary environmental governance, he said.

Understanding how to effectively manage transboundary water resources also requires knowledge of how environmental policies are created and changed in the United States and Canada, argued William Lowry of Washington University. He outlined several factors that explain why policy change occurs differently in Canada and the United States. For instance, interest groups, the media, and government agencies play more prominent roles as agents of change in the United States than in Canada. Consequently, significant change in the area of environmental policy is more likely to occur in the United States, he said. Nevertheless, there are factors that can lead to a convergence of environmental policies in both countries including the cross-national fertilization of ideas that can be facilitated through institutions like the IJC, scholarly exchanges, and frequent meetings between Canadian and U.S. officials at both the national and subnational levels of government.

Subnational Actors as Agents of Change

We are witnessing the increasingly decentralized relationship of Canada-U.S. environmental collaboration, said Debora VanNijnatten of Wilfrid Laurier University. VanNijnatten remarked that there has been a "groundswell of activity" at the subnational levels of government in an effort to coordinate environmental efforts over the past decade. The result has been the emergence of Environmental Cross-Border Regions (ECBR) in the Pacific Northwest, the Great Lakes Heartland, as well as the region encompassing the New England, Eastern Canadian provinces, and Quebec. VanNijnatten argued that environmental goal convergence among ECBRs offers compelling evidence that they do have a meaningful policy impact on transboundary environmental governance. She cited the Northeast region as particularly active in working collaboratively to address mercury reduction, air quality, and water issues. Nevertheless, VanNijnatten maintained that certain environmental issues, most notably climate change, will require action beyond regional initiatives to be effective.

The emergence of ECBRs has given rise to a discussion on how specific regions can most effectively manage shared resources. According to Donald Alper of Western Washington University, the Skagit River Treaty represents an important case study that offers valuable lessons in transboundary governance. Alper maintained that the treaty's success is attributable to the fact that it went beyond solving the original dispute over the State of Washington's plans to construct Ross Dam, which would have flooded areas of neighboring British Columbia. The treaty not only terminated plans to construct the dam but outlined the conditions for the joint management and funding of projects along Skagit River in Washington and British Columbia. Alper said that since the Ross Dam dispute, there has been little conflict over the management of the Skagit River, which reinforces the notion that policymakers "could learn something from this particular issue."

Despite some success in the realm of transboundary environmental governance, subnational actors still face questions of legitimacy in the absence of federal and private sector representation. The province of Quebec, on the other hand, has had considerable success in building regional cooperation in managing the Great Lakes and St. Lawrence River, argued Philippe LePrestre of Université Laval. LePrestre said that Quebec's motivation for engaging subnational actors in managing the St. Lawrence River was spurred not only by economic factors, but also because the river is closely tied with Quebec's national identity. According to LePrestre, these two factors represent the most convincing explanation as to why Quebec has aggressively pursued and successfully signed water treaties with all of its state and provincial neighbors, the most recent being the 2005 Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement.

A Closer Look at Energy, Climate Change, and Trans-Boundary Governance

Ten years ago a discussion on climate change and subnational cross-border governance would not have taken place, noted Barry Rabe of the University of Michigan. A decade earlier, issues pertaining to climate change were negotiated primarily at the federal level as illustrated most prominently by the Kyoto Accord. Though Canada choose to ratify Kyoto in spite of the United States' refusal to sign the accord, both countries' federal governments have failed to implement effective policies to reduce greenhouse gas emissions, noted Rabe. Consequently, subnational actors have been forced to take the lead in addressing climate change in both Canada and the United States, and have done so in part through the formation of regional agreements such as the Western Climate Initiative and the Regional Greenhouse Gas Initiative.

Rabe maintained that U.S. states have enjoyed more success than Canadian provinces in reducing greenhouse gases despite the fact that Canadian provinces possess "enormous latitude in the environmental realm" to address air quality issues. However, Rabe echoed other panelists in stating that successfully addressing climate change will require more effective leadership at the federal level in both Canada and the United States. While there are merits to creating a bilateral solution to climate change, argued Rabe, neither country has made significant strides in designing a common bilateral framework to lower greenhouse gas emissions.

Efforts to address climate change will be greatly affected by the development and implementation of renewable energy sources, said Ian Rowlands of the University of Waterloo. Rowlands argued that the criticism of renewable energy sources as being intermittent and unreliable could be overcome in part through broader bilateral cooperation. Utilizing renewable energy sources within a larger geographic area, explained Rowland, would increase its reliability as a viable power source by diversifying its supply. In the case of wind power, for instance, Rowland noted that while wind might not be blowing in a particular jurisdiction at any given time, it is "always blowing somewhere."

He also suggested that power sharing and collaboration in a bilateral context could also increase the market of energy renewables while lowering production and transaction costs. Despite the potential benefits of bilateral cooperation, the United States and Canada have continued to look past one another when seeking to bolster their output of renewable energy. State and provincial governments have preferred to ensure investment and energy output from renewable resources remain within their jurisdiction. According to Rowlands, policymakers should strongly consider looking beyond their own borders if they are serious about investigating ways to increase the use of renewable electricity in Canada and the United States.

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Drafted by Ken Crist.