Transboundary Environmental Governance across the World’s Longest Border 2017039909, 9781611862881, 9781609175696, 9781628953350, 9781628963359

Table of contents :
Contents
Preface, Andrea Olive and Stephen Brooks
The International Joint Commission: The Promise and Limits of an Ambitious Model, Stephen Brooks
Transboundary Water Management and Governance in the Great Lakes–St. Lawrence Basin, Daniel Macfarlane and Noah D. Hall
Multi-jurisdictional Governance of the Shared Great Lakes Fishery: Can a Nonbinding Agreement Work?, Marc Gaden and Charles C. Krueger
Transboundary Environmental Governance and Water Pollution in the Great Lakes Region: Recent Progress and Future Challenges, Carolyn Johns
Transboundary Water Governance in the Prairie Region: Development Institutions in a Conservation Age, B. Timothy Heinmiller
Transboundary Environmental Governance in the Pacific West, Donald K. Alper
Canada/US Transboundary Energy Governance, Stephen Bird and Martin D. Heintzelman
Canada–United States Relations and a Low-Carbon Economy for North America?, Debora L. VanNijnatten and Marcela López-Vallejo Olvera
Lessons Learned and New Applications, Andrea Olive
Contributors
Index

Citation preview

CONTENTS

Transboundary Environmental Governance across the World’s Longest Border

CONTENTS

Transboundary Environmental Governance across the World’s Longest Border

Edited by Stephen Brooks and Andrea Olive

Michigan State University Press | East Lansing

Copyright © 2018 by Michigan State University

i The paper used in this publication meets the minimum requirements of ANSI/NISO Z39.48-1992 (R 1997) (Permanence of Paper).

p Michigan State University Press East Lansing, Michigan 48823-5245 Printed and bound in the United States of America. 27 26 25 24 23 22 21 20 19 18

1 2 3 4 5 6 7 8 9 10

Library of Congress Cataloging-in-Publication Data Names: Brooks, Stephen, 1956– editor. | Olive, Andrea, 1980– editor. Title: Transboundary environmental governance across the world’s longest border / edited by Stephen Brooks and Andrea Olive. Description: East Lansing : Michigan State University Press, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2017039909| ISBN 9781611862881 (pbk. : alk. paper) | ISBN 9781609175696 (pdf) | ISBN 9781628953350 (epub) | ISBN 9781628963359 (kindle) Subjects: LCSH: Environmental policy—United States. | Environmental policy—Canada. | Environmental management—Canadian-American Border Region. | Transboundary pollution—Canadian-American Border Region. | Canadian-American Border Region—Environmental conditions. Classification: LCC GE180 .T73 2018 | DDC 363.739/40973—dc23 LC record available at https://lccn.loc.gov/2017039909 Book design by Charlie Sharp, Sharp Des!gns, East Lansing, MI Cover design by Shaun Allshouse, www.shaunallshouse.com Cover image of the U.S.–Canadian border at Glacier National Park by Andrea Olive and used with permission.

G Michigan State University Press is a member of the Green Press Initiative and is committed to developing and encouraging ecologically responsible publishing practices. For more information about the Green Press Initiative and the use of recycled paper in book publishing, please visit www.greenpressinitiative.org.

Visit Michigan State University Press at www.msupress.org

CONTENTS

Contents vii 1

preface, Andrea Olive and Stephen Brooks The International Joint Commission: The Promise and Limits of an Ambitious Model, Stephen Brooks

31

Transboundary Water Management and Governance in the Great Lakes– St. Lawrence Basin, Daniel Macfarlane and Noah D. Hall

51

Multi-jurisdictional Governance of the Shared Great Lakes Fishery: Can a Nonbinding Agreement Work?, Marc Gaden and Charles C. Krueger

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Transboundary Environmental Governance and Water Pollution in the Great Lakes Region: Recent Progress and Future Challenges, Carolyn Johns

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Transboundary Water Governance in the Prairie Region: Development Institutions in a Conservation Age, B. Timothy Heinmiller

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Transboundary Environmental Governance in the Pacifijic West, Donald K. Alper

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Canada/US Transboundary Energy Governance, Stephen Bird and Martin D. Heintzelman

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Canada–United States Relations and a Low-Carbon Economy for North America?, Debora L. VanNijnatten and Marcela López-Vallejo Olvera

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Lessons Learned and New Applications, Andrea Olive

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contributors

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index

Preface Andrea Olive and Stephen Brooks

M

aps can be mysterious things. Deceptive in the way they fall flat across a table or sprawl across a computer screen. Lines on a map—so important to politics—are meaningless to a water basin, a migratory bird, an endangered salmon, or even to plumes of air pollution streaming from an industrial plastics facility. When we look at a map of Canada and the United States, the fijirst thing to notice is all the thick lines that have been inserted with purpose. Sometimes these thick lines even cut through rivers and lakes. These manmade boundaries, however, have been inserted against nature’s will. The 49th parallel is equivalent to a line in the sand for the endangered Sage Grouse of the prairies. But for the people living in the region, that bold line means the diffference between Prime Minister Trudeau and President Trump. On the Canada-US map, one also notices rivers running wild across the page, and fijive huge bodies of water that seem randomly placed and grouped together in the center-east part of the page. If the map offfers any topography or scale, then we can also notice deep green forest sprawling across the north until the whiteness takes over, as well as massive elevation jumping from the page in the west, and what looks like desert toward the center-south. While often devoid of natural boundaries,

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the line between Canada and the United States has signifijicant consequences for these ecosystems. If we look closely, what emerges is not two countries, but one home. Or perhaps, more specifijically, one habitat. This book is about how the human-made political institutions in the United States and Canada govern, or fail to govern, the shared natural environment. This area of inquiry is commonly referred to as “transboundary governance.” In the pages that follow, we not only look to institutions and formal laws, but defijine governance more broadly as a “continuously evolving decision-making process” that includes everything from elections to data collection (Norman et al. 2013, 12). We are concerned with not just how Canada and the United States, including the myriad of subnational actors, regulate environmental and natural resources, but how diffferent actors negotiate this responsibility on an ongoing basis. The inspiration for this edited volume stems from the recent developments in shared environmental resources, like pollution in the Great Lakes; shifts in natural-resource geopolitics, like energy independence in North America; and dramatic political matches at the federal level. As this book is being written, Donald Trump is the newly elected president of the United States. His working relationship with Justin Trudeau will become an important area of study for political scientists, international-relations scholars, environmental-policy scholars, and others over at least the next four to eight years. But looking back over the past decade, we see another mismatch. For all but the fijinal year of his presidency, Barack Obama’s Canadian counterpart was Prime Minister Stephen Harper. The nature of their relationship and whether it afffected Canadian interests became an issue during the 2015 Canadian election campaign, raised by the leaders of both the Liberal Party and the New Democratic Party (ndp). Such matters are often better judged with the distance that time and history affford. What is clear, however, is that Obama and Harper were quite diffferent in their views and preferences on at least some important environmental matters. Indeed, the defijining issue of Canada-US relations during this period, the fate of the Keystone XL Pipeline, highlighted rather stark diffferences between the two governments on energy, environmental protection, and climate change. Notwithstanding the cooperation and undeniable bilateral achievements during these years—cooperation on the auto-industry bailout in 2009 and greater coordination on border security through the US-Canada Beyond the Border Agreement—the environment was, to paraphrase Seymour Martin Lipset, the great continental divide between the Canadian and American governments.

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When it comes to transboundary environmental matters, however, the national governments of these two countries are just two of many players whose preferences and actions afffect outcomes. They may be, and indeed usually are, the key players. Nevertheless, those who study Canada-US transboundary relations know that other levels of government, including Indigenous governments, and the constellation of organized interests on both sides of the border are all parts of the complex mix that shapes both process and outcomes. This complexity is nowhere more apparent than in the case of transboundary environmental issues. Added to the usual complications created by multilevel governance and overlapping jurisdiction on both sides of the border is the borderless character of the matters that governments attempt to regulate: species whose ecosystems and migratory paths cross political borders; watersheds that are binational; energy infrastructure that crisscrosses state, provincial, and national lines; and airborne substances whose impact may be experienced far from their point of origin. This book aims to help us better understand the issues, processes, and challenges that characterize transboundary environmental governance between Canada and the United States. The major themes build on a 2008 Woodrow Wilson Center conference organized by Barry Rabe, Stephen Brooks, and David Biette (Canada Institute 2010). As was also true of that earlier step in an ongoing research process, the goal is to assess the efffectiveness of existing governance arrangements and their adequacy for addressing current and future American-Canadian environmental challenges. The several years since the 2008 Wilson Center conference have seen signifijicant and even dramatic changes in the political and environmental landscapes that shape the conversations, possibilities, and processes associated with transboundary environmental governance. More than ever, Indigenous populations are now recognized to be a necessary part of negotiations and decision-making on matters from pipelines to the protection of endangered species’ habitats. Globalization and, in particular, the continuing elaboration of a global conversation and architecture for addressing issues related to climate change have ramifijications for Canada-US transboundary issues, as has been so clearly evident in the case of the protracted struggle over the Keystone XL Pipeline. The greatly expanded use of hydraulic fracturing technology to release what were previously unexploitable reserves of natural gas from shale and other geologic formations has had enormous consequences for the supply and price of petroleum and has changed the energy scene in ways that were hardly imaginable only a decade ago. Political stalemate between a Democratic president and a Congress dominated by Republicans for most

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of the Obama years, and the recent defeat of the Conservative Party in Canada and its replacement by a Liberal majority government, as well as the stunning defeat of Democrats and the rise of Donald Trump Republicans—these are among the political factors that have shaped, and will shape, the policy conversation when it comes to some of these transboundary issues. It is important and timely to take the next step in this research process, building on what was accomplished by the 2008 Wilson Center conference, but reaching further in terms of the issues examined and the evaluation of ways forward in cross-border cooperation. Indeed, since the conference, numerous important contributions to the fijield of US-Canada environmental history and governance have emerged. For example, Water without Borders? Canada, the United States, and Shared Water, published in 2013, is an edited collection of scholarly essays that pushes the fijield to think more critically about the 1909 Boundary Waters Treaty (bwt). Notably, the authors point out that in the past one hundred years, new emerging trends have dramatically altered transboundary governance, including a decreasing role for the federal governments, an increasing role of aboriginal governments, and greater attention to ecosystem management. The book concludes by asking if the bwt is outdated and, if so, how we create institutional flexibility and integrated governance across the border. One answer to these questions can be found in energy and climate-change governance, as explored in Climate Change Policy in North America: Designing Integration in a Regional System (Craik et al. 1913). Essays in this collection explore cooperation within decentralized governance arrangements. While the federal binational bwt and the International Joint Commission anchor water politics, climate-change politics is completely devoid of federal binational treaties, or even strong collaboration at the federal level across the border. Thus, what emerges is a set of relationships among diverse actors and institutions at subnational, regional, and local levels—relationships that transcend the border. While fragmentation remains a concern in this approach to governance, flexibility and integrated governance are key features. More recently, Border Flows: A Century of the Canadian-American Water Relationship asked contributors to consider border water at multiple scales and locations across time. Starting from the premise that “the Canada-US border contains 20% of the world’s available fresh surface water,” the book highlights the complexities of the world’s longest border being also the most fluid border (Heasley and Macfarlane 2016, 11). The nine chapters of the book draw many of the same conclusions

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advanced in this volume—namely, that scarcity and abundance of resources shape human relationships, as well as human-nature relationships, in unpredictable and complex ways. In the concluding chapter of Border Flows, Graham Wynn asks readers to consider the fluidity of the border in terms of “people, ideas, animals, objects and power” (Heasley and Macfarlane 2016, 301). Does the border divide us, or does it actually bring us together? These are only three examples of literature in the expanding fijield of Canada-US transboundary governance. One could also look to the hundreds of journal articles published in recent years, including a special issue of Review of Policy Research in 2015 that focuses on trilateral North American governance, and a special issue of the Canadian Geographer in 2015 that focuses on the history, cartography, law, and ecology of the Great Lakes. What these volumes and other work in the fijield have in common is a close attention to the border and how it creates opportunities and challenges for managing shared environmental resources. In examining various aspects of the transboundary environmental relationship between Canada and the United States, contributors to this volume were asked to describe the state of the existing relationship, including the governance structures and processes that currently exist; assess the environmental impacts and adequacy of these structures and processes; and—without prejudging the adequacy of these existing governance arrangements—examine the opportunities and obstacles that exist for reform and improved outcomes. As is often the case in studies of Canada-US relations, this book, like Border Flows and Water without Borders (Norman et al. 2013), jumps across scales—from federal to subnational to local historical periods, geographies, and cultures. The resulting book is unofffijicially divided into two sections. The fijirst four substantive chapters examine transboundary governance in the Great Lakes region. The last four substantive chapters move west and then expand into energy politics across the continent. Together, the chapters explore political themes of federalism and state sovereignty, cooperation, consensus, compliance, social and environmental justice, and institutional flexibility. These are concepts that will be returned to and discussed in greater depth in the concluding chapter of the book. In the remaining pages of this introduction, we would like to provide an overview of the substantive chapters and highlight these broader themes. First, in “The International Joint Commission: The Promise and Limits of an Ambitious Model,” Stephen Brooks argues that we see divergence where we expected convergence in transboundary governance. The International Joint Commission

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(ijc), created by the Boundary Waters Treaty (bwt) of 1909, is often considered “the institution for the management of transboundary environmental relations between Canada and the United States” (Brooks, this volume). However, Brooks argues that over the past one hundred years there has been an “explosive growth in the number and complexity of issues that arise in transboundary governance.” As the other chapters in the book go on to argue, this is mainly true. And it calls into question the signifijicance of the ijc as well as its ability to work efffectively. The thrust of Brooks’s argument is that the ijc (and the bwt) was created with a goal of convergence between the policies of Canada and the United States, but the selection of ijc commissioners leads to divergence in policies because of the difffering backgrounds and outlooks of the individual commissioners on each side of the border. Drawing on personal interviews with past commissioners and archival primary-source material from other commissioners, Brooks illustrates how diffferences in commissioners’ personal backgrounds result in diffferences in outlook. For example, one Canadian commissioner chair believed that the ijc should not meet with government offfijicials because that would compromise its independence—a view that was not shared by the US chair. It is mismatches between personalities and personal government experience that can shape how the ijc functions on a day-to-day basis. Indeed, it can be a factor “determining the nature and frequency of interactions with offfijicials from other parts of the state” (Brooks, this volume). Brooks goes on to suggest that divergence in policy is partly a result of the ijc makeup (i.e., commissioners themselves), but is confounded by increasing complexity in environmental issues, ranging from invasive species to pipelines, that require new governance bodies. The result is a marginalization of the ijc and a tendency for the commission to be sidestepped, even on issues directly pertaining to the bwt. Brooks sets up the remaining chapters of the book with the observation that “the proliferation of a dense and complicated network of subnational relationships around transboundary water management and other environmental issues has left the ijc much less relevant than may once have been the case.” What remains, or emerges, to fijill the void of a less relevant ijc is a question picked up by other authors. In “Transboundary Water Management and Governance in the Great Lakes–St. Lawrence Basin,” Daniel Macfarlane and Noah D. Hall examine many of the same themes as Brooks, in the context of the Great Lakes–St. Lawrence water basin. In fact, their chapter provides ample evidence of Brooks’s claim regarding increasing complexity of issues and the subsequent creation of new institutions to foster

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binational water management. Macfarlane and Hall see the bwt and ijc as central to building a “regime and culture of cooperation and environmental protection” that was tested by the St. Lawrence Seaway and Power Project as well as proposals to divert water in the basin. In response to these tests, new governance regimes were founded, notably the 2005 Great Lakes–St. Lawrence River Basin Sustainable Water Resources Agreement and 2008 Great Lakes–St. Lawrence River Basin Water Resources Compact, subnational regional agreements that establish common water-conservation and ecosystem-protection standards. They do not see these agreements as sidestepping or replacing the ijc, but instead bolstering the overall culture of cooperation between Canada and the United States in the Great Lakes region. Their chapter takes a historical approach to understanding how cooperation developed and why it succeeds. While there were plenty of opportunities for conflict and divergence, instead we see the development of new decision-making standards and new agreements on water quality and quantity issues. The authors conclude that “cooperation is a constant in Great Lakes water management.” They are careful to caution readers about the need for the “right kinds of cooperation” in the face of new environmental challenges. Where the ijc once promoted ecologically destructive megaprojects in the Great Lakes region, the evolving governance body that includes new actors and new procedures “provides hope for a sustainable future on both sides of the border.” Marc Gaden and Charles C. Krueger argue in “Multi-jurisdictional Governance of the Shared Great Lakes Fishery: Can a Nonbinding Agreement Work?” that cooperation does not have to stem from binding agreements (the type Macfarlane and Hall examined) for transboundary governance to be successful. The chapter examines the case of fijisheries management in the Great Lakes and demonstrates how the Joint Strategic Plan for Management of Great Lakes Fisheries delivers cooperation and convergence, without the need for a legal framework. Similar to other resources investigated in this volume, fijisheries are a good example of a common-pool resource where access is open and conflict is likely, if not inevitable. However, in the case of Great Lakes fijisheries, we see cooperation emerge instead of conflict. This is somewhat surprising given the myriad of actors involved. While all authors deal with issues of federalism and quasi-sovereign subnational governments (including Indigenous governments), Gaden and Kreuger’s case involves twelve independent nonfederal governments that work together voluntarily and cooperatively for the benefijit of both countries.

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Transboundary agreements can take many shapes, as already suggested by Brooks, and Macfarlane and Hall. Binding agreements, like a formal treaty, are attractive to governments because they lower transaction costs by minimizing the need for ongoing bargaining. However, binding agreements require compliance and the efffective monitoring of that compliance. This is why Gaden and Kreuger look at the appeal of nonbinding agreements that can be flexible in dealing with compliance and, more importantly, can be ambitious with regard to goals. The authors argue that “informal agreements can be more flexible and dialogue-focused than formal agreements because informal agreements can prompt members to go beyond what is on paper, can lead to more enlightened discussions, and can be flexible enough to adapt to changing needs or participants.” After tracing the history of fijisheries management in the Great Lakes, Gaden and Kruger suggest that the appeal of informal agreements is exactly why modern management relies on a nonbinding agreement. They say, “In Great Lakes fijisheries, a soft-law approach was selected because participants historically jealously guarded their sovereignty and independence; because flexibility was recognized to be important . . . and because mechanisms were in place that could heighten compliance with a nonbinding agreement.” In the end, what emerges is a network of collaborative actors who hold each other accountable—while holding each other to high standards. The extent to which nonbinding agreements should be integrated into other transboundary governance networks is not explored by the authors, but implications about the necessity of flexibility and cooperation are readily apparent. In “Transboundary Environmental Governance and Water Pollution in the Great Lakes Region: Recent Progress and Future Challenges,” Carolyn Johns examines water quality and pollution in the Great Lakes. In many ways, her chapter summarizes a lot of the main points made in the prior chapters about the Great Lakes. Her case, similar to Macfarlane and Hall’s, also demonstrates how increasing issue complexity has led to the development of new institutions and frameworks beyond the ijc. However, she is less optimistic than they are, and sees enduring environmental problems in the region. These include new problems like pharmaceutical chemicals and climate changes as well as more long-standing concerns like invasive species and the “dead zone” in Lake Erie. After outlining the transboundary water governance approach under the Great Lakes Water Quality Agreement (glwqa), Johns examines the efffectiveness of the current regime. With little fanfare, the glwqa was amended in 2012 to improve “the performance of existing transboundary, national, subnational, and watershed-based

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policies and institutions to improve outcomes.” The federal governments and the ijc remain key actors and are still responsible for leadership and implementation. A new Great Lakes Executive Committee was created (to replace an existing binational committee) to coordinate policy across subnational, Indigenous, nongovernmental (ngo), and private-sector organizations. However, Johns argues that progress on implementation of the amended glwqa has been slow. Issues like shared Areas of Concern and Lakewide Management Plans are slowly being addressed, but overall progress is uneven and sporadic. This leaves Johns wondering if it is time for new approaches and tools. She considers the prospects of “adaptive governance,” which is defijined as a framework for “analyzing the social, institutional, economical and ecological foundations of multilevel governance modes that are successful in building resilience for the vast challenges posed by global change and complex socio-ecological systems” (Stockholm Resilience Centre 2013). According to Johns, the Great Lakes might be an excellent place to implement and examine this style of governance. She spells this out in the concluding sections of her chapter. Reflecting on forty years of complex transboundary governance in the Great Lakes region, Johns acknowledges that challenges are starting to pile up and the federal governments and the ijc will not be able to handle them alone. Leaving the Great Lakes region, B. Timothy Heinmiller, in “Transboundary Water Governance in the Prairie Region: Development Institutions in a Conservation Age,” moves us across the country to the Prairies. While the move is geographical, the area of focus is still the bwt and ijc. The rivers that snake through the region offfer up a classic common-pool resource problem, but one complicated by two signifijicant factors: the region is characterized by water supplies that are scarce and highly variable (unlike the Great Lakes region), and there are no clear upstream or downstream recipients of the benefijits or burdens of overconsumption. As Heinmiller puts it, “each country knows that if it exploits its upstream advantage to the detriment of the other on one river, it could be subject to similar retaliation on another river (or a diffferent reach of the same river).” What this means is that Canada and the United States must think carefully and strategically about sharing these common-pool resources. There are three major rivers of concern: the St. Mary River, the Milk River, and the Souris River. The location of these rivers, and the way they cross the border region, is why they played such an important role in the initial establishment of the bwt in 1909, and why they continue to flow as test cases for the enduring

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importance of the ijc. In agreement with Brooks’s initial assessment of the bwt and ijc, Heinmiller argues that these institutions are challenged by new developments in the past two decades, including the full allocation of rivers and the fact that “riverine environments have gone into decline, environmentalists and First Nations have emerged as political forces, and climate change has threatened key aspects of the region’s long-term water supply.” The question Heinmiller puts forward is whether or not the ijc is flexible enough to govern transboundary waters in a “conservation age.” To answer this question, Heinmiller looks at the ijc’s International Watersheds Initiative (iwi), which was launched in the early 2000s. From an institutional standpoint, the iwi created new international watershed boards in some areas of Canada and the United States. In the Prairie region, the International Souris River Board of 2007 was granted water-quality and ecosystem-health reporting responsibilities (on top of the traditional apportionment and flood-management mandate). Heinmiller suggests that is “reorienting the St. Mary–Milk and Souris governance regimes from development to conservation” in a slow and incremental process. This is presented as a case of ijc’s flexibility and adaptability. Heinmiller says, “The ijc has taken a slower, incremental approach, preserving the long-standing development-oriented functions of its transboundary regimes while adding new conservation-oriented features to them.” However, he acknowledges that progress is slow and uneven. The iwi has changed the Souris regime, but little progress has been made with the St. Mary–Milk regime. Thus, the question left unanswered is whether or not the ijc and iwi can adapt quickly enough to stave offf the major (and irreversible) consequences of climate change and environmental degradation in the region. From the Prairies, we continue to move west and explore the challenges of transboundary governance in Don Alper’s chapter on the Pacifijic West. Drawing on the rich natural resources of the region, Alper examines conflicts over gold and copper mining, the Columbia River Treaty, and the shared management of the Salish Sea ecosystems. These are each difffijicult test cases for transboundary governance. Disputes in these cases are increasingly contentious because they involve wildlife habitat (such as endangered salmon) and sensitive ecosystems that are under threat from not just development, but also climate change and invasive species. These disputes also introduce First Nations as signifijicant and powerful actors in transboundary governance. While the other chapters in the book have made reference to the increasing importance of First Nations in the governance of transboundary resources, Alper’s chapter is the fijirst to use concrete examples

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of bands and tribes that influence and establish institutions that shape the border relationship in signifijicant ways. For example, Alper looks at the Coast Salish Gathering, which has emerged as a highly important Indigenous-led governing body that meets annually throughout the Salish Sea region. Mining projects in the Alaska-BC transboundary watershed provide a concrete example of “sidestepping” the ijc, as Brooks hinted at in his chapter. Alper acknowledges that ngos in the region have requested ijc involvement, but that neither federal government has committed to ijc oversight. In fact, Alper argues that “the ijc has taken more of a back-seat stance on transboundary watersheds issues in the far west, while local, provincial, and state actors have moved to the forefront.” Federalism is really the main concept at play in Alper’s three case studies as a balancing act between national and subnational actors plays out in each case diffferently. The common thread is devolution as “state-provincial collaborative arrangements, Indigenous organizations, and ngos have become key sources of mobilization, innovation, and leadership.” Look, for example, at the Columbia River Treaty, which was signed by the federal governments in 1964. The treaty manages the largest hydropower system that is shared by the United States and Canada. In fact, the basin includes British Columbia, fijifteen First Nation bands, portions of seven states, and fijifteen tribes. The treaty needs to be renegotiated before some of the provisions expire in 2024. Who will do the hard work of renegotiation? Unlike in 1964, it will not be federal-to-federal government led. Instead, Alper argues, “Negotiations will have to include an active role by Indigenous sovereigns and organizations that speak on behalf of social and environmental values. Simply put, the process of shaping a new governance regime for the Columbia River will have to be democratized and conform to social-justice views.” The Columbia River Treaty process will not be a test of just transboundary governance, but also of governance itself. Canadian and US institutions and processes will need to be flexible and adaptable enough to include new voices that represent new interests. To this end, “extraordinary imagination and full participation is required from the government partners and associated stakeholders.” In “Canada/US Transboundary Energy Governance,” energy and climate change take center stage. First, Stephen Bird and Martin D. Heintzelman argue that energy systems in the United States and Canada are increasingly integrated, but not as integrated as they could, or should, be. The United States’ and Canada’s electricity-distribution systems are regionally integrated across the international

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border and involve extensive imports and exports in both directions. In fact, this is the largest integrated energy market in the world. However, institutions to govern this continental energy system are often lacking, especially at higher levels. Those institutions that do exist tend to be at regional or local levels, or targeted to a particular issue, rather than governing the energy system writ large. The authors turn to three examples that connect the lack of governance to tensions that remain in the energy relationship: Champlain Hudson Line, Keystone XL, and the Wolfe Island Wind Farm. Of the three, the best-known is the US State Department’s rejection of the proposed Keystone XL Pipeline under President Obama’s tenure in offfijice (and subsequent approval by the Trump administration). Bird and Heintzelman argue that the outcomes from decisions like this have extensive impacts on many other aspects of domestic and cross-border energy policies in each country. At the heart of the chapter is the concept of federalism. Similar to other authors, Bird and Heintzelman suggest that “a critical challenge for both countries in developing a coherent governance approach is federalism.” Policy is created at the subnational level and markets develop regionally. Oftentimes trade occurs across energy markets, both within a country and across borders, but with stark diffferences in policies there is little expectation of coherent governance. One exception to this regionalism may be the Quebec-California cap-and-trade market that was recently joined by Ontario. However, the authors suggest there is little integration in policy, and that even the cap-and-trade markets have been set up independently. They claim “it is more like a border-opening or free-trade agreement” than a truly integrated system. More recently, Trudeau’s announcement of a national price on carbon is looking to overcome some of the challenges of federalism. It is too soon for the authors, or anyone, to speculate if this agenda will bring provincial energy systems or markets into harmony. Bird and Heintzelman conclude that the challenges of federalism and political polarization around energy will prevent the creation of “a broad national approach to energy policy in each country.” The implication is that comprehensive transboundary governance will not be implemented any time soon. The authors are uncertain about the extent to which climate governance might increase and integrate within and across the border. This uncertainty is likely exacerbated by the election of Trump. Most climate governance is occurring at the subnational level, so Trudeau and Trump might not need to agree or even participate in increased

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climate-change governance integration. However, the political mismatch will only inflame the polarization around energy in North America. In “Canada–United States Relations and a Low-Carbon Economy for North America?,” Debora L. VanNijnatten and Marcela López-Vallejo Olvera also make energy and climate change their central focus, as they examine the transboundary governance architecture that exists for Canada-US cooperation on a low-carbon economy. They focus fijirst on the instruments and process that are normatively optimal, before they turn to a critical investigation of the mechanisms that currently exist within and across Canada-US borders. Bird and Heintzelman’s observations about a weak federal framework and a polarized political arena for energy integration are relevant here. Carbon-pricing systems, VanNijnatten and López-Vallejo Olvera argue, are “becoming more deeply rooted at the subnational and cross-border regional level, using formal market-linkage mechanisms that tie members tightly together politically and economically.” There is concern about “multiscalar tensions” and the ability of Trump and Trudeau to work together to promote integration in the bilateral relationship. This chapter is ultimately about the challenges and opportunities created by federalism within and across the two countries. Finally, in the concluding chapter of the book, Andrea Olive pulls together the main concepts and themes discussed by the previous authors and applies them to other transboundary environmental concerns. She argues that lessons from case studies in the book can push transboundary governance in new ways. For example, international water boards, discussed by Heinmiller, can serve as templates for international ecosystem boards to help protect and recover shared species and ecosystems at peril. Olive also examines invasive-species management and Arctic governance in the context of federalism and flexibility. Overall, the concluding chapter, like much of the book, reflects on increasing complexity and the need for transboundary bilateral governance to remain cooperative, adaptable, and open to new actors and institutions. Similar to other volumes on transboundary governance, this book is an examination of borders. Or more specifijically, sharing and transcending borders. As Dagenais (2016a) said in a recent examination of the Great Lakes, “transcending political borders—whether they are regional or national—is considered essential in order to . . . favour environmental criteria as much as, if not more than, cultural and political factors” (409). In doing so, the book contributes to the burgeoning literature on the transboundary environment of North America.

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References Canada Institute, Woodrow Wilson Center. 2010. Environmental Governance on the 49th Parallel: New Century, New Approaches. Occasional Papers series (February). https://www. wilsoncenter.org. Craik, Neil, Isabel Studer, and Debora VanNijnatten, eds. 2013. Climate Change Policy in North America: Designing Integration in a Regional System. Toronto: University of Toronto Press. Dagenais, Michele. 2016a. “Reconsidering the Great Lakes and the St. Lawrence River: History, Cartography, Law, and Ecology.” In “Reconsidering the Great Lakes and the St. Lawrence River.” Special issue, Canadian Geographer 60(4): 409–12. —, ed. 2016b. “Reconsidering the Great Lakes and the St. Lawrence River.” Special issue, Canadian Geographer 60(4). Gore, Christopher, ed. 2015. “Transboundary Natural Resource Governance in North America.” Special issue, Review of Policy Research 32(1). Heasley, Lynne, and Daniel Macfarlane, eds. 2016. Border Flows: A Century of the CanadianAmerican Water Relationship. Calgary: University of Calgary Press. Norman, Emma S., Alice Cohen, and Karen Bakker, eds. 2013. Water without Borders? Canada, the United States, and Shared Water. Toronto: University of Toronto Press. Stockholm Resilience Centre. 2013. “Adaptive Governance.” http://www.stockholmresilience. org.

The International Joint Commission The Promise and Limits of an Ambitious Model

Stephen Brooks

I

n many ways the International Joint Commission (ijc) appears to be the transboundary environmental governance institution par excellence. Created by the Boundary Waters Treaty (bwt) of 1909, the ijc has existed for over a century. It has a decision-making structure that includes equal representation from the United States and Canada. The treaty creating the ijc has been interpreted by some as having established a regime of shared sovereignty in regard to the management of transboundary water resources. Over the course of its history, many commentators have praised the ijc for its success in resolving bilateral water issues between the United States and Canada. Some have seen in the ijc a model that should be more widely adopted by countries seeking to manage issues that, by their very nature, spill over national boundaries. This very positive assessment of the ijc has not been shared by everyone. Indeed, the ijc has been described by some as being of marginal importance. Some commentators have pointed to the ijc’s low profijile as proof that it has been, particularly when it comes to contentious issues, sidelined by governments and not especially relevant. Between 1912 and 2016 the average annual mentions in the New York Times of the Boundary Waters Treaty and the International Joint Commission combined was about fijive. There was a spike in mentions in 1932

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(twenty-two) and 1952 (thirty-six).1 Since 1990, however, there have not been more than two to four mentions per year. Coverage has been somewhat greater in Canada, where between 2000 and 2016 there were seventy-six articles published by the Canadian Press news agency that mentioned the ijc. Some argue that this apparently low profijile is, in fact, evidence of the ijc’s quiet efffectiveness and that it achieves its influence through scientifijic and technical channels that depoliticize what otherwise could be intransigent conflicts between interests on opposing sides of the border. These very diffferent perspectives on the ijc and its efffectiveness as an institution for the resolution of transboundary environmental disputes agree on one point. The goal of overcoming selfijish national interests and taking the politics out of matters whose very nature requires transboundary stewardship is commendable. Some of the praise that has been directed toward the ijc over the years seems to have been based on admiration of the ideals that the ijc and the bwt embody. Likewise, some of the criticism that the ijc has received appears to have been based on disappointment that the promise of the ijc has not been achieved. In this chapter, I agree that the ijc has made a modest and occasionally even signifijicant contribution to the problem that the bwt was intended to address. That problem was and continues to be, of course, that Canada and the United States share enormous freshwater resources along their joint border, and that the actions of governments and private actors on either side of that border have the potential to afffect interests on the other side. The need for some mechanism to manage these resources and to resolve binational disputes over their use gave rise to the bwt and the ijc. When the ijc was created it was the institution for the management of transboundary environmental relations between Canada and the United States. In fact, it was preceded by the much less ambitious International Waterways Commission (1905–13), whose Canadian and American members were not empowered to negotiate, and which failed to resolve a single dispute during its brief existence. Since those early days in the creation of an architecture of transboundary water management, the map of institutions and processes for studying, advising, advocating, negotiating, resolving, and regulating these relations has become vast and complicated (Sadler 1986; Clamen and Macfarlane 2015). In part, this has been a reflection of the explosive growth in the number and complexity of the issues that arise in transboundary environmental governance. The ijc continues to be a part of this network of cross-border environmental management, although its role and influence have become less signifijicant over time.

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The ijc and the bwt of 1909 embody the goal of convergence between the policies of Canada and the United States, institutionalizing a decision-making process based on equal representation of the treaty’s signatories and the idea that commissioners should rise above mere national interests in deliberating and recommending on matters of shared concern between the two countries. But the selection of ijc commissioners for each of the national sections of the ijc has always been the prerogative of the respective governments, creating at least the potential that the backgrounds and outlooks of Canadian and American commissioners might difffer in signifijicant ways. The possibility of divergence on the ijc is, therefore, created by the manner in which commissioners are selected. Over the more than one hundred years of the ijc’s history, the commission’s status as the preeminent institution for the management of transboundary environmental matters has been diluted as a result of the multiplication of cross-border institutions, agreements, and processes, formal and informal. In a very real sense, the ijc has been submerged under a rising sea of players engaged in transboundary environmental governance. Part of this submergence may be ascribed to the inherent limitations of the ijc as an institution for the resolution of binational diffferences over water management and other transboundary environmental issues, but some part of this has been due, quite simply, to the much more crowded and competitive playing fijield that has arisen over the past few decades in particular. In this chapter, I examine the forces of convergence and divergence that operate within the ijc. These opposing forces are linked to the built-in contractions that exist between the commission’s form, which stresses national equality and impartiality, and its function, which inevitably must be afffected by national diffferences in outlook and interests. Interviews were conducted in 2007 with eight past commissioners, fijive from the American section and three from the Canadian side of the ijc. These interviews provide insights into how commissioners from the two sides of the border have seen their roles, and how they have viewed the possibilities and limitations of the ijc. In this examination, I conclude that the ability of the ijc to manage transboundary environmental issues between Canada and the United States, to the extent that the 1909 treaty assigns it this function—and even more to the point, to the degree that governments have been willing to permit the commission to play this role—is necessarily limited by the tension between these forces of convergence and divergence. But possibly even more important has been the submergence of the ijc, particularly since the 1960s, under a growing tide of transboundary processes and

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institutions, the most important of which has been the Great Lakes–St. Lawrence River Basin Water Resources Compact.

The Boundary Waters Treaty and the IJC as an Institution for the Convergence of Policies It is in the nature of international treaties to impose obligations on, and establish rights for, the governments that sign them. Treaties often include rules and mechanisms for dispute resolution and other forms of decision-making. Diminished national sovereignty or, to express it a bit diffferently, shared sovereignty in the area covered by a treaty is, at least in theory if not always in practice, the result of the agreed-upon rules and structures that the treaty creates. The bwt of 1909, Article III of which creates the ijc, was and remains a rather exceptional treaty in terms of the rules and decision-making structures that it established for transboundary environmental governance. Signed during an era when the management of border disputes between the United States and Canada—the latter represented by the United Kingdom—was a prominent and often thorny aspect of the bilateral relationship between these countries, the bwt resolved a number of specifijic conflicts. These included a general ban, with some exceptions, on water diversion from the Niagara River above the Falls (Article V), and agreement on the apportionment of water in the St. Mary River and Milk River watersheds. These were already important accomplishments. But the treaty went much further than the resolution of a couple of long-standing water disputes. It established what may well have been an unprecedentedly broad regime for the joint management of water resources across the Canada-US border under the auspices of a decision-making body, the ijc, whose form was exceptional. Indeed, in matters of both function and form, the bwt broke new ground. Article II establishes a reciprocal right of national treatment in the case of injury arising from interference with, or diversion from, boundary waters, stating that each country shall have “the same rights and entitle the injured parties to the same legal remedies as if such injury took place in the country where such diversion or interference occurs.” Article III limits the sovereignty of each government by requiring ijc approval for any diversion or obstruction that afffects “the natural level or flow of boundary waters on the other side of the line.” Article VIII imposes yet another limitation on

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national sovereignty by requiring ijc approval for the construction of dams or other obstructions “involving the elevation of the natural level of waters on either side,” and authorizing the ijc to establish conditions for the protection and indemnity of interests on the other side of the border. Finally, Article IX assigns the ijc a potentially sweeping role in transboundary governance that goes far beyond the joint management of water resources. The ijc is empowered by the treaty to study and report on “any other questions or matters of diffference arising between [Canada and the United States] involving the rights, obligations, or interests of either [country] in relation to the other or to the inhabitants of the other, along the common frontier between [them].” This function may be triggered by a reference from either national government or from both. Although the ijc’s report and recommendations would be in no way binding on either government or interests on either side of the border, the mere fact that the treaty expressly provides for referrals on virtually any transboundary issue suggests that some of those involved in its drafting anticipated the possibility that the ijc’s governance function might go beyond water. No less exceptional was the form chosen to carry out the transboundary environmental governance activities specifijied in the treaty. The idea of a bilateral commission with representation from both countries was not new. The Alaskan Boundary Commission had been created several years earlier with representation from the United Kingdom (one member), Canada (two), and the United States (three). What was novel about the ijc was the fact that both Canada and the United States were assigned three representatives (each country having a national section chair who would preside over meetings in his or her country). Article VIII of the bwt specifijies that the commission shall decide cases according to the majority principle, and Articles IX and X also provide that a report based on a reference also requires the support of a majority of commissioners, failing which the national sections may submit separate reports that would then be submitted to an independent umpire under Article XLV of the Hague Convention. Given the equality of national representation on the commission, it very quickly became clear that the decision-making style of the ijc would have to be consensual. Unanimity is not a requirement, but as a practical matter nothing can be accomplished without some degree of binational consensus. Three other features of the ijc as a decision-making body warrant mention. First, under Article XII of the treaty, each commissioner is required to sign a “solemn declaration” that he or she shall “impartially perform the duties imposed upon him

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under this treaty.” This is a clear indication that commissioners are not to view their role as that of advocates for their respective national interests, much less as loyal water carriers for whatever administration or government nominated them to the ijc. Second and related is the fact that the treaty does not empower either national government to issue instructions to its national section of the commission. The ijc enjoys, therefore, a degree of formal independence from governments that is quite remarkable. Finally, certain decisions of the ijc are fijinal and may not be appealed or overturned by national governments. Article IV states that the ijc’s decisions will be fijinal in cases arising under Article III of the treaty involving applications for water obstructions or diversions that afffect “the natural level or flow of boundary waters on the other side of the [border].” Final decision-making authority is also conferred on the ijc by Article X of the treaty, which authorizes the governments of Canada and the United States to refer transboundary matters—not just water management issues—to the commission for binding arbitration. The ijc has never received such a reference. Final authority on some matters, equality of national representation, and a potentially vast scope for investigating and making recommendations on virtually any matter with transboundary implications: it adds up to a rather exceptional institution with what seem to be quite important powers. But one of the puzzles associated with the ijc is the range of judgments on the commission’s importance and efffectiveness in transboundary environmental governance. Alongside glowing tributes to its signifijicance and accomplishments one also encounters dismissive and sometimes highly critical assessments of the ijc.2 An assessment of how well the ijc has done its job over the years depends on where one sets the bar. This, in turn, is determined by one’s understanding of the original and evolving expectations for the ijc and the possibilities realistically open to the commission to influence in various ways outcomes related to transboundary environmental governance. It is entirely possible that the ijc’s role and efffectiveness have varied at diffferent points in its history, as Clamen and Macfarlane (2015) argue in a recent analysis of the commission’s history. The question of how well the ijc has accomplished the goals held for it is, to say the least, problematic. An assessment of the ijc decision-making model and of the relationship of the commission to the political milieu in which transboundary environmental issues inevitably are embedded does not, however, require that we establish a yardstick for the assessment of the ijc’s performance. The goal of such an assessment is not to conclude whether the ijc has done a good or bad job in achieving the goals that stakeholders past and present may hold for it. Instead

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the goal is to identify those structural features of the commission and the treaty provisions under which it operates that have afffected its role and influence.

Cases Where the Resolution of National Differences Has Proved Problematic The terms of the bwt, the original aspirations held for the ijc, and the model of consensus decision-making that quickly became the commission’s hallmark all suggest that the ijc was expected to operate so as to facilitate some convergence between the interests and outlooks of Canada and the United States. But much of the secondary literature on the ijc, written by those not directly associated with the commission, suggests that it has been unable to achieve this goal in cases where the issue being dealt with was controversial and the stakes were perceived by governments as being high (Bothwell 1992; McDougall 1971; Environmental Law Institute 1995). What has happened when the interests of the two countries represented on the ijc come into serious conflict?3 Elihu Root’s original and ambitious vision for the ijc as an impartial arbiter for the management of transboundary environmental issues (Walker 2015) struck the shoals of reality early. In 1918 the ijc issued what Robert Bothwell describes as an “ambitious transnational regime” to clean up pollution in the Great Lakes (Bothwell 1992, 135). “The idea was so ambitious,” says Bothwell, “that it was promptly buried” (135). Although he acknowledges that the ijc proved to be much more efffective just over a decade later when it awarded damages on the American side as a result of pollution caused by a smelter at Trail, British Columbia (BC), Bothwell argues that this case was a particularly egregious one and did not leave as its legacy the sort of robust joint management of transboundary environmental issues that Root had envisaged. The stakes were certainly high in the case of the protracted negotiations that fijinally led to the Columbia River Treaty in 1961. The ijc had been involved in studying the environmental consequences of dam construction and flooding of the Columbia River valley since 1944 and issued two reports during this time. In the end, however, the determination of what to do was worked out through government-to-government negotiations. The former chair of the Canadian section of the ijc, General A.G.L. McNaughton, was outspokenly critical of the treaty (Dolman 1967), a fact that just seemed to confijirm that if the gap between the ijc’s view and

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that of the politicians was too wide, the ijc would be sidelined in preference for other decision-making processes and venues. Although the ijc operates without instruction from either government, the specifijic terms of a reference to the commission may impose limits rather similar to government instructions. This was the case, for example, when the Canadian and American governments agreed to refer to the ijc the study of the environmental consequences of raising the Ross Dam at the border between BC and Washington. The reference expressly prohibited the commissioners from commenting on whether the project should proceed, and stated that the ijc’s recommendations should be “not inconsistent” with either the 1942 decision that had approved a raising of the dam and therefore an extension of the dam’s reservoir into Canada, or a 1967 deal by which BC had agreed to increased flooding in return for an annual cash payment (IJC 1971). The Ross Dam case is particularly interesting for what it seems to reveal about the potential of the ijc to be an important venue for decision-making when the stakes are high. The Canadian government was opposed to the additional flooding in BC that would result from raising the dam. The issue dragged on until 1984, when Seattle agreed not to raise the dam and to provide cash compensation to BC in exchange for an eighty-year guarantee of electrical power exported from the province. The US regulatory process and governments on both sides of the border were important in the resolution of this drawn-out conflict, but the ijc appears to have been on the sidelines. Contentious, high-stakes issues do, however, reach the ijc from time to time. One such issue involved record high water levels in the Great Lakes in the early 1970s, causing widespread flood damage in 1972 and 1973. Reflecting on the ijc’s part in the resolution of what became a source of conflict between Canada and the United States, Peter Dobell (1985) writes: President Nixon was pressed in December 1972 by congressmen from the Great Lakes states to initiate negotiations with Canada to reduce the flow of water into the Lakes. Early in 1973 the Subcommittee on Inter-American Afffairs of the House Committee on Foreign Afffairs began hearings on complaints that the ijc had not done all it could to keep water levels from reaching record heights. These direct pressures on the Administration led to an insistence by the American section of the ijc that the flow of water out of Lake Superior be temporarily reduced at the locks at Sault Ste Marie. The Canadian section of the Commission was given only

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eleventh-hour notice of the United States’ intention and agreed reluctantly on 30 January to reduce the outflow and then only to preserve the traditional unanimity of commission decisions. (103; emphasis added)

At roughly the same time, the ijc had been assigned a case that did not, strictly speaking, involve boundary waters. This was the 1971 Point Roberts reference. Point Roberts is a small piece of American territory that juts south from BC and is physically separated from Washington State by Boundary Bay. The residents of Point Roberts and developers pushed for water exports from geographically contiguous BC into the community, a proposal that met with strong opposition from the provincial and local governments on the Canadian side. The ijc had established a binational committee to study and recommend what to do about the water-supply problem at Point Roberts. Its proposal that Point Roberts be made an international park, jointly administered by Canada and the United States, was strongly opposed by community interests. Unable to reach binational agreement on what to do, the ijc essentially abandoned the issue in 1977. During the 1980s the issue of acid rain, produced mainly by emissions from coal-burning power plants in the Midwest of the United States, was prominent on the agenda of the ijc. The commission received a referral under Article IX of the 1991 Canada–United States Air Quality Agreement, empowering it to hold public hearings and to produce a report, for both governments and for the public, on the environmental consequences of acid rain. In 1996 the International Air Quality Advisory Board (iaqab), in its report to the ijc, issued a report that was very critical of inaction by both governments on sulphur, nitrogen, and mercury emissions (IAQAB 1996). The commissioners were divided on whether to send the report to the Canadian and American governments, choosing to suppress it. The Canadian chair of the ijc, Adèle Hurley, resigned in protest over this decision. Boundary water disputes west of the Great Lakes have a history extending back to the late nineteenth century and were among the factors leading to the bwt and the creation of the ijc. One of the most recent of these disputes began in the 1990s in response to the flooding of Devils Lake in North Dakota and the state government’s resolve that an outlet needed to be built to relieve water levels during emergencies. The government of Manitoba was steadfastly opposed, arguing that alien invasive species could be introduced into Manitoba’s waters by such an outlet. First the US government proposed a joint reference to the ijc, a move that was rejected by the Canadian government. Two years later, in 2004, when it became clear that North

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Dakota intended to proceed with its own project for an outlet from Devils Lake and thereby avoid the need for a federal environmental review, it was the Canadian government’s turn to ask that the issue be referred to the ijc. This time the US government efffectively said no by failing to respond to the Canadian request. North Dakota’s two senators “were determined to see the state outlet project completed” (Paris 2008, 7), and the Bush administration was not inclined to take any action that might upset the state’s popular Republican governor during an election year. The ijc was sidelined by politics. The policy process that led to the construction of the Devils Lake outlet, with some relatively minor concessions to Canadian concerns, unfolded without ijc participation. The foregoing cases represent only a handful of those in which the ijc has been involved, or where there were calls from some quarters for ijc participation. They are not intended to demonstrate that the ijc has somehow failed in its role as an institution for the management of transboundary environmental issues. They are, however, intended to suggest that when governments and interests on opposing sides of the border are in serious disagreement, the likelihood that the ijc will be given the opportunity to play a role in the resolution of the issue is quite remote. If and when a dispute does come before the ijc through a reference or application under the bwt, there is no guarantee that the two national sections will reach agreement. History shows that they usually have. Nevertheless, the ijc decision-making model is incapable of depoliticizing all of the issues that come before the commission. Moreover, the most contentious of these issues never reach the ijc’s docket.

The IJC Model Commissioners on the ijc are very proud of the commission’s tradition of consensus decision-making. It is at the top of the list of commission attributes mentioned by virtually every commissioner, past and present, in explaining how the ijc operates and why they believe it has been successful. Canadian prime minister Mackenzie King would regularly mention the ijc model of binational cooperation as one that deserved to be emulated throughout the world. The ijc was routinely and glowingly mentioned by Canadian spokespersons in what became known as the “Canadian speech” at League of Nations meetings. After World War I the ijc was proposed by Canadian offfijicials as a model for resolving the border conflict between France and

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Germany, and in more recent times, the ijc has generated interest from as far away as the Middle East as a model that might have some applicability to governance in Jerusalem. But aside from rather general observations about how the ijc model works, observations that have usually come from commissioners themselves or from bureaucrats working for the ijc, almost no empirical work has been carried out on who the commissioners are, their backgrounds, how they have viewed their role on the ijc, how the experience of serving on the commission may have influenced their outlooks, and the consequences of these factors for ijc decision-making. The possible importance of the backgrounds and role perceptions of commissioners is suggested by the fact that the ijc has had, over the years, a considerably higher profijile in Canada than in the United States. In all frankness, it must be acknowledged that the ijc has not had much of a profijile in either country outside of the Great Lakes region, except when some very contentious issue has arisen, such as the Devils Lake controversy at the North Dakota–Manitoba border, or the protracted dispute over management of the Columbia River that led to the Columbia River Treaty. But within the hierarchy of public-sector organizations, there can be little doubt that the ijc is generally seen to be higher in status within Canada than it is within the United States. This point was brought home by the remarks of a former American commissioner who said that when he was contacted by the State Department about whether he might be interested in being nominated to the ijc, he asked, “What does it do?” The State Department offfijicial replied that he was not sure, but that he would check into it and get back to this potential nominee (personal interview). Having a higher profijile and greater institutional prestige in Canada than in the United States might be expected to produce asymmetry in the caliber of appointees to the two national sections. It would seem not unreasonable to expect that the Canadian appointees would tend to have a higher status within Canadian public life than their American counterparts have within their country. A number of background asymmetries might conceivably be generated by the simple fact of the commission being viewed as a “bigger deal” north of the border. This could, in turn, produce a dynamic within the commission whereby Canadian commissioners tend to attach greater importance to the ijc’s work and see its role and possibilities in transboundary environmental governance diffferently from their American counterparts. Or it could be that the shared experience of working together on the ijc dulls the impact of background and initial expectations of Canadian and

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American commissioners and generates greater convergence in their outlooks and behavior. In any case, there are good reasons to think that who decision-makers are— including their backgrounds, expertise, expectations, and role perceptions—will afffect how they see and perform their job. Moreover, the impact of the ijc’s structure on commissioners’ outlooks and behavior—involving equal national representation and a tradition of consensus decision-making in an agency that enjoys exceptional independence from the governments that fijinance it—is certainly relevant to any evaluation of what has been described as an institution of “transcendent importance” in Canada-US relations, but also as one that is rather marginal and disappointing. To better understand the possibilities and limits of the ijc model of transboundary environmental governance, the remainder of this chapter examines the background and outlooks of ijc commissioners. Interviews were conducted in 2007 with eight past commissioners, fijive from the American section and three from the Canadian side of the ijc. The questionnaire that formed the basis for all of these interviews, adapted as needed to the circumstances of each, is found in the appendix. This information was supplemented by the written reflections of some of the commissioners, past and present. Although most of this latter material very defijinitely falls into the category of “internal self-assessment” and is not particularly revealing, former US section chair Gordon Durnil’s book The Making of a Conservative Environmentalist (1995) is something of an exception to this rule. Information on the backgrounds of the commissioners was drawn mainly from such sources as the Canadian and American versions of Who’s Who, biographical material available in the Canadian parliamentary and US congressional records, and various online sources. This material was relatively easy to obtain for those who have served on the ijc over the last three to four decades. It was more difffijicult to fijind reliable or in some cases any pertinent information for some of those who served on the commission during its fijirst several decades, although this was not a problem in the case of more prominent commissioners or those who had held elective offfijice. Information was not found for about one-fijifth of the ninety-two persons who have served on the commission, creating the possibility that the fijindings reported below may not accurately reflect the reality of the ijc membership over its more than one hundred-year history.

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Backgrounds and Outlooks: A Model Whether the experience of Canadian and American commissioners serving together contributes to divergence or convergence in the manner in which they view the issues and information that comes before them depends on certain formative influences and experiences. Diffferences in background may be associated with diffferences in outlook. Engineers and environmental activists, for example, may have very diffferent outlooks on a dam intended to generate electrical power, or a water diversion for agricultural purposes. Likewise, someone who has spent her career in public service might be expected, other things being equal, to bring a somewhat diffferent outlook to bear on environmental-management issues than a person who comes from a business background. Obviously it is not possible to predict a person’s outlook on environmental or other matters from a handful of facts about her background. But we know that such diffferences can matter, and thus discovering a pattern of diffferences between Canadian and American commissioners might at least be suggestive of a diffference of outlook, independent of that which is produced by the fact that they come from and represent two diffferent countries whose culture and belief systems are not identical. Figure 1 identifijies four

FIGURE 1. Divergence and convergence in the backgrounds and outlooks of Canadian and American commissioners: Four possibilities

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possible scenarios that might characterize ijc commissioners at any point in time. The vertical axis measures the similarity (convergent) or dissimilarity (divergent) of commissioners’ outlooks after serving on the ijc for a certain period of time. The horizontal axis measures the similarity or dissimilarity in the background characteristics of commissioners from the two national sections. It is impossible to acquire accurate information on the initial role perceptions of former commissioners who cannot be interviewed, so I am making the bold assumption that background may be a rough-and-ready surrogate measure for initial role perception. Quadrants 1 and 4 involve relatively high learning as a result of the experience of serving on the ijc. Intuitively, the scenario in quadrant 1 seems improbable, and it is, moreover, at odds with most of what has been written about the ijc. Quadrant 4, on the other hand, seems plausible. The factors that might contribute to a learning experience that produces increased convergence in the outlooks of commissioners from each national section include the following: ■

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Many appointees have little background in the policy matters dealt with by the ijc, making it more likely that they will be open to influence from those who have expertise. The scientifijic character of much of what the ijc deals with and those with whom commissioners interact will reduce the importance of partisanship and other political influences on commissioners. The limited authority of the ijc may reduce the weight of partisanship and nationality in commissioners’ perceptions of their roles. Commissioners on the ijc, unlike ambassadors and State Department offfijicials, do not receive instructions upon appointment. Moreover, upon taking offfijice they sign a “solemn declaration” that he or she shall “impartially perform the duties imposed upon him under this treaty.”

Quadrant 3 describes a scenario where the ijc experience’s impact on commissioners’ outlooks is inconsequential. This scenario is possible, but as we will see, there are some patterns of diffference in the background characteristics of Canadian and American commissioners. Moreover, we should not lose sight of the fact that commissioners come from two diffferent societies and therefore there may well exist grounds on which to assume that their outlooks will reflect cultural diffferences between Canada and the United States. Quadrant 2 suggests that ijc decision-making is characterized by a high degree of conflict between the national

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sections and stalemate, neither of which has been typical of its operations. Both 2 and 3 involve scenarios where a low level of learning takes place as a result of serving on the ijc. Based on a survey of the secondary literature on the ijc, three specifijic expectations were identifijied before I examined the actual backgrounds of commissioners and conducted interviews with a sample of them. These expectations included the following: ■

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Canadian appointees have higher status within Canadian politics and society than American appointees do within the United States. Partisanship is more important in US appointments, so American ijc appointees are less likely to have environmental expertise than Canadian appointees. Service on the ijc tends to generate some degree of convergence in the outlooks of commissioners from the two national sections.

Background and Outlooks: Findings Of the three expectations identifijied above, only the last two were supported by data collected from biographical material on ijc commissioners and from personal interviews. It is, of course, rather difffijicult to measure the status of a commissioner within his or her political system and country, and both the Canadian and American sections of the ijc have included a fair share of “notables.” On the American side, the early history of the ijc saw a number of prominent members of Congress appointed, including Senator Thomas Carter (R-Montana), Congressman James Tawney (R-Minnesota), and Senator Clarence Clark (R-Wyoming), particularly to the position of US chair. It may be fair to say—although this is a judgment call—that the relative status of US appointees has declined somewhat in recent decades from what it was earlier in the history of the ijc. On the Canadian side there seems to be greater consistency over time in the relative status in Canadian public life of those appointed to the commission. For chairs in particular this status has usually been fairly high, including such prominent fijigures as Thomas Chase Casgrain, Arnold Heeney, General Andrew McNaughton, Maxwell Cohen, Davey Fulton, and Herb Gray. The expectation that partisanship is somewhat more important in American nominations to the ijc, and that American commissioners are less likely than

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Canadian appointees to have experience in environmental issues when appointed, found some support in the background data on commissioners. Indeed, John Hagen (2008) argues that even as academically oriented a president as Woodrow Wilson saw ijc appointments as “a mere vehicle for bestowing political patronage . . . [replacing] two capable and experienced members of the Commission with much less qualifijied political appointees” (340). Table 1 shows that appointees with backgrounds in Congress or state politics have constituted 63 percent of all American commissioners, compared to 47 percent of Canadian commissioners who had served in Parliament or been elected to a provincial legislature. Public service and academe have been more important recruiting grounds for Canadian than American commissioners. Careers in business or engineering constituted the dominant professional background of only a handful of commissioners in both national sections, although a couple of these individuals served as national section chairs, including Claude Lanthier on the Canadian side and Roger McWhorter on the American side. Again, the data was incomplete, with reliable information on 38 of 47 US commissioners (81 percent) and 36 of 45 Canadian commissioners (80 percent). Caution is therefore advised. As an aside, two of the four appointments to the American section of the commission made during the Obama presidency, including Lana Pollack, appointed American chair in 2010, have backgrounds in environmental activism. None of the commissioners appointed to the Canadian section during the prime ministership of Stephen Harper had such a background. The fijinal expectation is about the impact that service on the ijc has on commissioners’ outlooks and thus goes to the heart of evaluating the ijc model. Personal interviews with eight commissioners, past and present, and including several national chairs, formed the main basis for this assessment. This represents slightly less than one-tenth of all those who have served on the ijc and, moreover, includes only commissioners who have served over the past couple of decades. It is quite possible that commissioners who served earlier in the ijc’s history, and those who have been appointed to the commission during the past several years might have responded diffferently to the questions put to these more recent commissioners. Asked about the circumstances of their appointment to the ijc, four commissioners indicated that they had requested a position on the ijc, and four said that their name had been put forward by someone else—a governor or senator, for example—but that they had not specifijically asked for an appointment to the commission. All of those who had not requested an appointment to the ijc had low prior knowledge of the commission and its role. Among those who asked for an ijc

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TABLE 1. Career Backgrounds of IJC Commissioners COUNTRY

Parliament/Congress Provincial/State politics Public service (non-elected) Business Academe Engineering Environmental activism

CANADA

UNITED STATES

36% (13) 11% (4) 19% (7) 17% (6) 14% (5) 3% (1) 0% (0)

51% (18) 17% (6) 9% (3) 6% (2) 9% (3) 6% (2) 2% (1)

appointment, three began with a fairly high level of knowledge of the commission, and one had an interest in environmental issues and was also aware of the ijc, but mentioned the fact that American commissioners are not required to reside in the D.C. area as a key factor in his/her decision to request a position on the ijc. One of the eight commissioners interviewed had what could be described as a strong prior background in environmental policy, and another had a background in the natural sciences that made him/her familiar with the scientifijic and environmental modeling issues that come before the commission. It should be said that it has not been the policy of either government to appoint well-known environmentalists to the ijc, although there have been some exceptions to this rule. Pierre Béland, appointed by the Canadian government in 1995, was just such an exception. Adèle Hurley, appointed Canadian chair in that same year, was also well known in environmental circles for her policy advocacy work on the acid rain issue. On the American side, Lana Pollack, appointed American section chair by President Obama in 2010, is perhaps the only exception to this rule. American section chair Gordon Durnil (1989–94) became a conservative environmentalist of some public reputation as a result of his experience serving on the ijc. The fact that so few individuals who have served on the commission lack either serious scientifijic credentials in environmental matters or a background in environmental policymaking or advocacy may seem puzzling. On the other hand, the experience of Canadian commission chair Adèle Hurley may help to explain why this is so. Hurley resigned less than one year after her appointment in a dispute with her fellow commissioners over a report on acid rain. Had the ijc issued a formal written report to the Canadian and American governments, as Hurley believed ought to have been done, sections of the Clean Air Act would have been triggered to

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limit the U.S. government’s plan to allow some deregulation of coal-burning power generation in the Midwest. Instead, the ijc made oral representations to the two national governments—representations that efffectively were ignored—avoiding what surely would have been a political imbroglio in the United States over the ijc’s role and power. As a longtime environmental advocate who had been active in Canada on the acid-rain issue for well over a decade, Hurley apparently found herself unable to compromise her well-known beliefs on coal-burning electricity generation. Environmentalists applauded her choice. But one might speculate on what the consequences would have been if Hurley had won the day and the ijc’s written report and recommendations had been released. The commission had already acquired a reputation in some governmental circles, on both sides of the border, as an extension of the environmental movement and anti-industry. Some observers believed that it had become “captured” by the movement under Gordon Durnil’s leadership, when the issue of industrial chlorine discharges into the water system was high on the ijc’s agenda. Had the ijc inserted itself forcefully into the acid-rain issue in a way that would have driven a wedge between the Canadian and American governments, this probably would have accelerated its marginalization in the policymaking process on the American side of the border. Adèle Hurley clearly had a vision for the ijc, and when she found that its behavior did not conform with that vision she was quick to resign. In this respect she was surely exceptional. Only a couple of the eight commissioners interviewed could truly be said to have begun their terms on the ijc with an existing set of goals or a sense of direction for the commission. In both cases these goals and this direction involved reining in the ijc, which in the case of one commissioner was perceived to be “the most powerful commission in the world.” This description, expressed half-seriously, was based on this appointee’s experience with an issue on which the ijc had taken an active and, in this commissioner’s view, very negative role when he/she was an elected offfijicial. The other commissioner who started his/her term with a sense of the direction in which he/she thought the ijc should go believed that the commission had in some respects overreached its proper role at points in the recent past, particularly during the 1980s and 1990s. “I thought that the ijc had become too activist,” he/ she said, mentioning in particular his/her perception that the ijc’s Windsor offfijice, created in the early 1970s, had become a sort of advocate for the environmental movement, and the ijc’s support for the ban on chlorine discharges an example of environmental advocacy trumping sound science. This commissioner mentioned

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the ijc’s permanent stafff as part of what he/she believed to be a problem of bias that had developed over time on the commission, observing that “It’s a bit like having Greenpeace work for you.”4 All of the commissioners were asked about the sources of their goals and sense of what the ijc should be doing, including their role on the commission, and who or what influenced their initial expectations and acquisition of knowledge about the ijc activities. Commissioners could mention more than one factor that contributed to their learning about and expectations for the ijc, but in fact most of them mentioned only one factor or indicated that a particular one was dominant in their initial learning about the commission. Three of the commissioners, all of whom had requested appointment to the ijc, acquired their knowledge and expectations before their nomination. Only a couple of commissioners mentioned a formal briefijing by ijc stafff as an important part of their initial learning experience, and a couple of commissioners specifijically said that they had not received any formal briefijing. Three of the commissioners mentioned ijc stafff members, in every case by name, as being important to their acquisition of knowledge about the ijc and their role on it. Another couple of commissioners stressed the importance of on-the-job learning. What was most evident, however, was the relatively unstructured and informal nature of the process of learning to be an ijc commissioner. Former US section chair Gordon Durnil (1995) addresses this point in his book The Making of a Conservative Environmentalist: The learning curve is sharp for new commissioners, but it is up to them to make the job what they want it to be. They can quietly sit back, making no waves, issuing non-controversial and inconsequential reports. They can be receptacles of irritable government problems, hiding these problems from public view as they quietly spend years studying them. Or they can get ahead of the curve. They can be catalysts for government action at the state and provincial, federal and even international levels. (175)

In regard to the interaction of ijc commissioners with offfijicials from other parts of the state, the interviews made very clear that this is mainly—and, under some national section chairs, exclusively—a function of the Canadian and American chairs. This similarity aside, there appear to be some national diffferences that are related to the institutional diffferences between the Canadian and American systems of government and perhaps also to the relatively greater status that the ijc enjoys in

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the Canadian policymaking community compared to in the United States. On the American side, visits to members of Congress for what one commissioner called “budget maintenance” purposes appear to be common, as is occasional testimony before congressional committees. Meetings with offfijicials from the Army Corps of Engineers, the Environmental Protection Agency, state departments of natural resources, and the Great Lakes Fisheries Commission were among those mentioned by another American commissioner. If insecurities concerning the ijc’s budget were shared on the Canadian side, they certainly were not expressed. On the US side, however, they were mentioned by a couple of commissioners. One went so far as to state that possible budget cuts were a real concern in his/her time, when “there were some feelings that we were becoming an environmental commission to the detriment of our water role,” and “there was a sense in the Senate that the ijc was getting out ahead of issues.” Such concerns were not new. Indeed a 1989 report by the General Accounting Offfijice (gao) to the Senate had expressed similar and additional concerns about the ijc and had recommended a full review of US participation in the commission. On the Canadian side, at least one former chair was of the belief that the ijc should not meet with government offfijicials, on the grounds that this would in some way compromise its independence. This view was not shared by his US counterpart at the time. On the other hand, another Canadian commissioner reported meeting often with government offfijicials, including at the highest levels. The personal style and status of an ijc national section chair appear to be factors determining the nature and frequency of interactions with offfijicials from other parts of the state. On both national sides of the ijc, though more vocally from the American side, commissioners who were not section chairs expressed some frustration that the opportunities available to them to be more involved in the commission’s activities, including interaction with offfijicials from other parts of the government, were too few. “A shortcoming of the current model,” said one American commissioner, “is that it is at the discretion of the chair when and how the other commissioners are involved. . . . Given the broadening of the ijc’s activities,” this commissioner added, “the other commissioners should be more involved.” The question of how visible the ijc is—if not among the general public of the two countries, then at least among policymakers and opinion leaders in the environmental fijield on both sides of the border—might be seen as an indirect and admittedly very imperfect measure of the commission’s influence. Only one commissioner did not express some signifijicant doubts about the ijc’s importance as

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an institutional player in the process of transboundary environmental governance. “I’m not so sure that we were always supposed to be relevant,” said one American commissioner. “Once you get out of the Great Lakes you fijind that the ijc doesn’t have much of a profijile,” observed a Canadian member. At least two commissioners, both on the American side, used the terms “providing political cover” and “legitimization” for some of what the ijc was expected by government to do. Another US commissioner declared, “The ijc is more important in Canada, where it’s seen as an instrument of policy in dealing with the United States on environmental issues. It just isn’t on the radar screen outside the Great Lakes region in the US.” A somewhat diffferent observation about the perceived relevance of the ijc was made by another American commissioner who expressed the view that the “radicalization” of the commission during the years when a ban on industrial chlorine discharges was high on the environmental agenda had contributed to the marginalization of the ijc. This episode in the commission’s history left a legacy, he/she argued, of the ijc being perceived as a bit of a “loose cannon” by offfijicials within the American government. Every positive assessment of the ijc as a model for the binational resolution of transboundary issues emphasizes the commission’s tradition of consensus decision-making. Offfijicially, at least, Canadian and American commissioners have hardly ever found themselves on opposite sides of the fence. A 2006 presentation made by former American section chair Dennis Schornack included a striking slide showing that in only 2 percent of all cases resolved by the ijc did the commissioners split on national lines (Schornack 2006, slide 2). It is hard to argue with a 98 percent success rate. But interviews with the commissioners quickly reinforced a point made in some of the secondary literature on the ijc: matters that are considered too contentious or too important simply are not assigned to the commission. In the words of one American commissioner, “Neither government really trusts the ijc.” Another American commissioner, speaking of references to the ijc, said that “they are only used when the governments know pretty much what the answer will be.” When the recommendations of the commission do not accord with the preferences of one or another government, as happened in the case of the Lake Champlain reference, “We were told that we were out of line. Governments aren’t going to give up power to an independent-minded body if there is a risk of not liking the decision.” This same US commissioner went even further in his/her criticism of the ijc’s ability to carry out what he/she believed to be its functions. “We’re supposed to

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prevent and resolve disputes,” he/she said, “but we have never prevented anything. We haven’t had a history of anticipating, but this is what we need to do and are trying to do now.” The political background of this particular commissioner made him/her especially sensitive to the practical obstacles in the way of Canada-US agreement on contentious transboundary water issues. Several of the commissioners emphasized quality scientifijic information as the basis for binational cooperation and agreement on the consensus. A couple of commissioners, one from each national section, specifijically mentioned the “solemn declaration in writing” that ijc commissioners are obliged to undertake, requiring that they “impartially perform the duties imposed upon him under this treaty,” as a factor that encouraged binational consensus. No one criticized the consensus model of decision-making that is the hallmark of the ijc. But several commissioners identifijied limits on its efffectiveness. One of these limits involves diffferences in national values and interests. Several commissioners expressed the view that diffferences in the outlooks of Canadian and American commissioners sometimes came down to culture. This point is made by former US section chair Gordon Durnil (1995) in The Making of a Conservative Environmentalist: The fijirst principle is for the Commission to act as a binational fact-fijinding body rather than one which works as two separate national sections with individual national interests and agendas. It is a principle easier said than done, and easier for Canadians than Americans. Americans like to tell Canadians, “You are just like us.” The American thinks that he or she has just offfered the highest of compliments. The Canadian thinks that he or she has just been insulted. There are diffferences in the cultures of Canadians and Americans. We are not the same. (24)

A couple of Canadian commissioners echoed this point about the existence of a sort of “continental divide” between commissioners from the two countries. “There are diffferences,” said one Canadian commissioner. “We tend to be more progressive in Canada; even our businessmen are more progressive than American businessmen.” Another Canadian commissioner ventured the opinion that “the American commissioners perhaps operate more based on their own national interests.” One American commissioner expressed the view that, at least during his/her time on the commission, “The Canadian approach is more centralized than ours,” an observation that former commissioner Durnil (1995) also makes in

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his book (25). This view was echoed by another US commissioner who observed that “everything becomes the responsibility of local governments eventually” and who believed that much of the ijc’s work should be focused on local governments and regional authorities where the implementation of water policy is managed. Several of the commissioners mentioned the importance of personalities on the ijc, particularly those of the national section chairs, as crucial to the efffectiveness of the commission’s consensus model. It is clear from what little third-party information exists that leadership styles have varied between chairs, but also that a serious clash of personalities or leadership styles has seldom been a problem—although it did appear to impede the commission’s work at one point in the ijc’s history. One Canadian commissioner noted that under the leadership of a particular Canadian section chair the Canadians would caucus separately, “giving the Americans time to think.” This commissioner expressed the view that ideology and nationality had mattered much less during his time on the commission than the personalities of the commissioners. Interestingly, however, at least one Canadian and one American commissioner mentioned this particular colleague as being rather “parochial” and overly concerned with acting as a spokesperson for the regional interests he/she perceived himself/herself to represent. One of the American commissioners expressed the view that Canadian members were more sensitive than their American counterparts on the issue of water out-takings from the Great Lakes, and that issues involving the efffects of dams were always divisive. “Sometimes we would just put matters aside if things got too contentious,” he observed. In recent years much of what the ijc does has involved communicating with the public and organized interests on the increasingly broad range of transboundary issues that it studies and on which it makes recommendations. “We can talk to anyone,” said one Canadian commissioner. At certain points in the ijc’s history, its interactions with organized interests have been intense and not always amicable. Gordon Durnil has written about the very strained relations that existed between the ijc and representatives for businesses that relied on the use of chlorine in their industrial processes. But at least one American commissioner expressed the view that during his/her term, “business representatives understood the need for compromise and ultimately were easier to talk to than environmental groups.” Another US commissioner expressed the view that the ijc appeared to American politicians—he was, presumably, talking mainly about conservative politicians—to have become “captured” by the environmental movement in the 1980s and 1990s. “I

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don’t see myself as representing either industry or environmental groups,” he said, adding that government’s willingness to use the ijc had probably been damaged by the perception that it had become a champion of the environmental movement. Another commissioner, also an American, remarked on what he/she perceived to be the political naiveté of the scientifijic experts with whom the commissioners regularly interact. Canadian commissioners had comparatively little to say about the ijc’s relations with industry and environmental interests. One commissioner who did not serve as chair said that it was not his/her sense that the ijc had much in the way of direct dealings with such groups, but that the Ottawa offfijice of the ijc might have greater interaction than he/she was aware of. Another Canadian commissioner spoke mainly of his/her interlocutors in the public sector, giving the impression that direct meetings and contacts with industry and environmental groups were neither frequent nor particularly important to the ijc’s functioning.

Convergence, Divergence, or Submergence? The original expectations held for the ijc by at least some of those who had a hand in its creation were that it would help to overcome the diffferent interests of Canada and the United States on the management of shared water resources and perhaps even perform a broader role in the resolution of transboundary disputes between the two countries. The structure of the ijc and its tradition of binational consensus decision-making accord with this vision of convergence. But the record shows that the tug of diffferent national interests and outlooks has sometimes proved to be insurmountable, and that the likelihood of the ijc being expected or able to reconcile these diffferences, acting as the impartial arbiter that Elihu Root hoped it would become, is rather low in such cases. This does not mean, of course, that the ijc becomes irrelevant when the gap between national diffferences is wide and the stakes are high. It is to say, rather, that the ijc is capable of playing only a limited role in such circumstances, and that its influence will depend ultimately on the two governments’ willingness to use the commission as a venue for decision-making. Interviews with several past commissioners corroborated the importance of the factors that contribute to divergence between national sections of the ijc. This divergence is most easily overcome when the commission is engaged in activities that fall short of rendering binding decisions or recommendations on issues

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where the two national governments have staked out diffferent positions. Indeed, the historical record shows that the ijc will be bypassed when the stakes are high and the gap in preferences is wide. Based on his analysis of three major pollution issues between 1912 and the late 1980s, John Hagen (2008) concludes that “In none of the three cases did the two federal governments allow the ijc to strengthen to the point that it could compete with domestic institutions in decision-making for the regime” (334). Hagen (2008) argues that the limitations on the ability of the ijc to play a larger role in the management of transboundary water-pollution issues, the focus of his study, are mainly institutional. The fact that federalism divides authority over environmental policy between the national and regional governments in both Canada and the United States, and that states and provinces are seldom willing to cede control over matters that may have signifijicant economic consequences, a strong US Senate in which representatives from one or a handful of border states are able to leverage the influence of the interests in the state(s) they represent, and the emergence over time of other state institutions and cross-border networks that compete with the ijc for relevance and influence have combined to limit the role that the Canadian and American governments have allowed the ijc to play in these matters. “The ijc,” he concludes, “is a public symbol of the two countries’ joint commitment to resolving pollution problems in the [Great Lakes] basin” (360). The real action, however, lies elsewhere. As Hagen and others argue, it is likely that one of the most important limitations on the ijc as an institution for transboundary environmental governance involves the proliferation of other institutions and processes for the management of cross-border environmental issues. As the playing fijield of actors involved in studying, advocating, and regulating these matters has become more crowded, the ijc’s voice has become just one among many, although with a claim to being the most venerable. Fifty years ago a study of transboundary environmental governance between Canada and the United States would have been essentially about the role of the ijc. That might even have been true thirty years ago. It is, however, no longer the case. Submergence under a tide of competing cross-border processes and institutions has been an important factor contributing to what surely is a less prominent role for the ijc today than some expected and predicted one hundred years ago. Figure 2 shows a rather striking decline in the ijc’s docket over time. The number of referrals and applications coming before the commission remained

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FIGURE 2.

Applications and referrals to the IJC, 1912–2016

fairly steady over the fijirst several decades of the commission’s history, when the ijc’s activities were chiefly about managing water levels and flows (Clamen and Macfarlane 2015). Since the 1970s, however, the “trend has been toward broadening the attention of the ijc” (Allee 1993, 133). One might have expected this to result in an increase in the ijc’s workload as the commission became increasingly concerned with matters of water quality as opposed to the water quantity and apportionment issues that preoccupied it during its fijirst half-century. But as the ijc increasingly waded into waters that have included air quality, invasive species, the impact of agricultural practices on water quality, pipelines, nuclear-waste disposal, and more, governments have appeared to be increasingly reluctant to assign the commission a formal role in studying and making recommendations on these matters (Toope and Brunnée 1998; Lemarquand 1993; Parrish 2006). Writing a decade ago, Austen Parrish (2006) argued that “In the last few years the ijc has been bypassed completely, even in cases where the Boundary Waters Treaty would certainly apply and the ijc would be a logical place to turn” (1313). What Parrish refers to as the marginalization of the ijc in matters of transboundary environmental dispute resolution has taken place at the same time that the network of alternative forums for the study, negotiation, and resolution of such matters has proliferated. Several of the subsequent chapters in this book describe the development of this dense network of transboundary relations that includes state, provincial, and local governments;

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Native communities; and civil-society actors on both sides of the border. Perhaps foremost among them has been the Great Lakes–St. Lawrence River Basin Water Resources Compact and Agreement, under the authority of the Conference of Great Lakes and St. Lawrence Governors and Premiers. In his testimony to the US Senate on the resolution to approve the compact, Noah Hall (2008) wrote, “The Great Lakes Compact introduces a new cooperative horizontal federalism approach for crafting multi-state water resource and environmental policy that could be a model for future environmental policy effforts.” This is the sort of optimism that used to be expressed about the ijc. It seems, however, that a combination of structural limitations inherent in the commission’s decision-making model and, perhaps even more importantly, the proliferation of a dense and complicated network of subnational relationships around transboundary water management and other environmental issues has left the ijc much less relevant than may once have been the case.

NOTES 1. Based on data generated by the New York Times Chronicle, an online search tool for identifying word use in the pages of the New York Times. Chronicle was discontinued in 2016. 2. Most volumes of the Canadian Institute of International Afffairs’ longstanding “Canada in World Afffairs” series make only brief and passing mention of the IJC. In no annual issue of Carleton University’s prestigious “Canada among Nations” series, between 1996 and 2015, is there a single mention of the IJC, despite the fact that in most volumes there are chapters devoted to aspects of Canada-US relations. On the American side, the leading textbooks on American foreign policy make no or only passing mention of the IJC. 3. Roughly forty years after the signing of the Boundary Waters Treaty, George W. Brown (1948) stated his view that “[The IJC is] the most important single agency for peaceful settlement so far established between Canada and the United States” (26). Writing in the early 1960s, just after the completion of the Columbia Treaty negotiations between Canada and the US, G.V. LaForest (1963) referred to the “transcendent importance” of the IJC in Canada-US relations (37). A few decades later, Robert Bothwell (1992) was much less positive in his assessment of the IJC. He conceded that “over the years the IJC resolved a fair number of transboundary annoyances,” (9), but he also expresses the view that the Commission is of rather marginal importance. This, Bothwell argues, is reflected in the fact that “relatively few people . . . know of it” (9) and that it has fallen far short

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of the hopes of Elihu Root, the American Secretary of State who signed the Boundary Waters Treaty and who expressed the wish that it would “set an example to the world by the creation of a judicial Board as distinguished from a diplomatic and partisan one to deal with all these matters” (9). If attention, or inattention, is suggestive of importance, Bothwell may be right. 4. This perception of the IJC’s Windsor offfijice continues to exist, at least among some observers. Anecdotally, one of my graduate students did a full-semester internship at the Windsor offfijice during the period when a very prominent issue was the state of Enbridge’s Pipeline 5, which runs under the Straits of Mackinac, and potential spills from oil pipelines into the Great Lakes. Leaving aside any judgment on the environmental risk of this and other such pipelines, it certainly appeared to be the case that the view from the IJC’s Windsor offfijice was indistinguishable from that of the environmental NGOs that opposed them.

REFERENCES Allee, David. 1993. “Subnational Governance and the International Joint Commission: Local Management of United States and Canadian Boundary Waters.” Natural Resources Journal 33(1): 133–51. Bothwell, Robert. 1992. Canada and the United States: The Politics of Partnership. Toronto: University of Toronto Press. Brown, George W. 1948. The Growth of Peaceful Settlement between Canada and the United States. Toronto: Ryerson Press. Clamen, Murray, and Daniel Macfarlane. 2015. “The International Joint Commission, Water Levels, and Transboundary Governance in the Great Lakes.” Review of Policy Research 32(1): 40–59. Cohen, Maxwell. 1976. “Canada and the United States: Dispute Settlement and the International Joint Commission—Can This Experience Be Applied to Law of the Sea Issues.” Case Western Reserve Journal of International Law 8(1): 69–81. Dobell, Peter. 1985. Canada in World Afffairs, 1971–73. Toronto: Canadian Institute of International Afffairs. Dolman, Claude E. 1967. Water Resources of Canada. Toronto: University of Toronto Press. Durnil, Gordon. 1995. The Making of a Conservative Environmentalist. Bloomington: Indiana University Press. Environmental Law Institute. 1995. “An Evaluation of the Efffectiveness of the International Joint Commission.” Washington, DC: Environmental Law Institute. https://www.eli.org/

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sites/default/fijiles/eli-pubs/ijc.pdf. General Accounting Offfijice, Congress of the United States of America. 1989. “The Need to Reassess U.S. Participation in the International Joint Commission.” GAO/NSIAD-89-164. http://gao.gov. Hagen, John O., Jr. 2008. “The Dynamics of Binational Environmental Regime Formation in the North American Great Lakes Basin.” PhD diss., Fletcher School of Law and Diplomacy. Hall, Noah. 2008. Written testimony to the United States Senate Committee on the Judiciary Hearing on S.J. Res. 45, A Resolution Consenting to and Approving the Great Lakes–St. Lawrence River Basin Water Resources Compact, July 30, 2008. http://www.greatlakeslaw. org/fijiles/Hall_Great_Lakes_Compact_Senate_Testimony.pdf. International Air Quality Advisory Board. 1996. “Progress Report 21 to the International Joint Commission: Airshed of the Great Lakes.” April 1996. http://scholar.uwindsor.ca/cgi/ viewcontent.cgi?article=1512&context=ijcarchive. International Joint Commission (IJC). 1971. “Environmental and Ecological Consequences in Canada of Raising Ross Lake in the Skagit Valley.” Text of the joint references to the IJC from the Government of Canada and the Government of the United States, 157–58. LaForest, G. V. 1963. “Boundary Waters Problems in the East.” In Canada–United States Treaty Relations, edited by David Deener London. Cambridge University Press, 34–49. Lemarquand, D. 1993. “The International Joint Commission and Changing Canada-United States Boundary Relations.” Natural Resources Journal 33 (Winter): 59–91. McDougall, Ian A. 1971. “The Development of International Law with Respect to TransBoundary Water Resources: Co-operation for Mutual Advantage or Continentalism’s Thin Edge of the Wedge.” Osgoode Hall Law Journal 9(2): 261–311. Paris, Roland. 2008. “The Devils Lake Dispute between Canada and the United States: Lessons for Canadian Government Offfijicials.” Working paper. Centre for International Policy Studies, University of Ottawa. Parrish, Austen. 2006. “Mixed Blessings: The Great Lakes Compact and Agreement, the IJC, and International Dispute Resolution.” Michigan State Law Review 2006(5): 1299–321. Sadler, Barry. 1986. “The Management of Canada-US Boundary Waters.” Natural Resources Journal 26:359–76. Schornack, Dennis. 2006. “The International Joint Commission: A Case Study in the Management of International Waters.” Presentation at the Rosenberg International Forum on Water Policy, Banfff, Canada, September 10, 2006. Toope, Stephen, and Jutta Brunnée. 1998. “Freshwater Regimes: The Mandate of the International Joint Commission.” Arizona Journal of International and Comparative Law 15: 273–87.

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Walker, Gordon. 2015. “The Boundary Water Treaty 1909—A Peace Treaty?” Canada–United States Law Journal 39:170–86.

APPENDIX: QUESTIONS FOR IJC COMMISSIONERS 1. Do you recall when and how you learned that the government/administration wanted to nominate you to the ijc? Had you requested this position? (If yes, then why. Whether yes or no, why do you think the government chose you for this post?) 2. Did you know much about the ijc, the Boundary Waters Treaty, or environmental policy at the time of your appointment? 3. When you started at the ijc, how did you see your own role and that of the commission? I mean, did you start out with a set of goals or a sense of the direction in which the ijc should go, or were these things that you learned while on the job? Where did these goals or sense of direction come from? Who or what was most influential in your on-the-job learning at the ijc? 4. During your years as a commissioner, what other government agencies or departments did the ijc interact with most? What about Congress/Parliament and its members and committees? 5. Was it ever your sense that the ijc had a visibility problem within the policymaking community; that it just wasn’t central enough or often enough on the radar screen? 6. The ijc is the original binational Canada-US institution, and talking to commissioners I know that they are proud of the track record of cooperation. But were there ever occasions when you felt that US and Canadian commissioners were on diffferent wavelengths, representing diffferent points of view or responding to diffferent interests? 7. I know that as a commissioner you may have had extensive dealings with environmental and industry groups. Were some groups easier to deal with than others? (Elaborate)

Transboundary Water Management and Governance in the Great Lakes– St. Lawrence Basin Daniel Macfarlane and Noah D. Hall

T

he Great Lakes are the most signifijicant environmental resource on the world’s longest border. Thanks to a century of cooperative agreements and a binational culture of stewardship, the Canada–United States border is often just an imaginary dotted line through the largest surface freshwater system on the planet. In this chapter, we explore how the binational cooperative culture has been reflected in the history of transboundary water management in the Great Lakes region. And likewise how the shared water-management challenges in the Great Lakes have fostered a pursuit of cooperation in all governance endeavors. In short, how the most signifijicant freshwater resource in the Western Hemisphere has spurred, if not forced, a historic regime of cooperation across the border on many levels and issues. The Boundary Waters Treaty (bwt) and the International Joint Commission (ijc) are the foundation for cooperative transboundary environmental governance along the Canada–United States border, and this very much includes the Great Lakes. But as Brooks discusses, the Boundary Waters Treaty and the International Joint Commission have not been a be-all, end-all solution to all transboundary environmental problems. This chapter complements that conclusion by examining the historic and current transboundary water-management challenges and solutions

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in the Great Lakes. It is not a short and simple telling of the International Joint Commission’s administration of the Boundary Waters Treaty in the Great Lakes, as that would be a deceivingly incomplete picture of reality. Rather, the many water-management disputes that have arisen in the Great Lakes over the past century have often resulted in new agreements and governance institutions, even when the International Joint Commission could (or did) play an important, positive role. The lack of centralization of Great Lakes water management and governance in one institution (i.e., the ijc) is a defijining feature of the regime. The only constant among the many agreements is cooperation; they range widely in stewardship goals, subject matter, political level, and governance structure. Encyclopedic coverage of all Great Lakes water-management agreements is beyond the scope of this chapter and overkill for its main purpose—to show how water-quantity management challenges in the Great Lakes have resulted in diverse solutions with a relatively constant culture of cooperation. A discussion of transboundary water management in the Great Lakes region typically begins with the basic facts about the enormity and signifijicance of the water at stake. The Great Lakes are the largest freshwater resource in the world, holding approximately 20 percent of the world’s available surface water supply (Great Lakes Commission 2003). The fijive Great Lakes (Lake Erie, Lake Huron, Lake Michigan, Lake Ontario, and Lake Superior, along with the St. Lawrence River and connecting channels) provide about 40 million Americans and Canadians with their drinking water. The enormity of the system is matched by the complexity of its political geography—the Great Lakes in eight states and two provinces within the United States and Canada: Wisconsin, Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Ontario, Pennsylvania, and Quebec. Hundreds of tribes and First Nations and thousands of local governments and municipalities also share legal responsibilities. The Canada-US border practically bisects four of the fijive Great Lakes, almost perfectly opposite a drawing that would support a watershed approach. Mismatched political and natural/physical boundaries can be a structural disaster for transboundary environmental protection. While we might take for granted today that the Great Lakes–St. Lawrence is a connected system, a number of diffferent studies have shown that this concept has difffered in time and place (see, for example, the contributions to the Winter 2016 edition of the Canadian Geographer—including articles by Dagenais and Cruikshank, Benidickson, and Castonguay—as well as various contributions in Heasley and Macfarlane 2016). But overall, the Great

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Lakes region has overcome the challenges of binational and complex subnational transboundary water management and governance with a persistent culture of cooperation reflected in the agreements and institutions discussed in this chapter. The past century of transboundary water-quantity management in the Great Lakes can be seen in three parts: (1) development of the foundational Boundary Waters Treaty of 1909 and beginnings of the International Joint Commission; (2) effforts to further the shared goal of developing the Great Lakes for navigation, power, industry, and commerce with huge engineering projects, a period that roughly spans the fijirst half of this history; and (3) effforts to further the shared goal of protecting the Great Lakes from diversions, overuse, and other harms, a period that roughly spans the latter half of this historical period. This history demonstrates that transboundary cooperation can be both environmentally harmful and benefijicial—indeed, one of our central contentions is that current sustainable policy effforts need to be guided by awareness of how, and why, Great Lakes water environments have been degraded in the past. At the same time, these past binational undertakings also created a culture of cooperation, demonstrating that sharing a resource need not lead to externalization of harms and a tragedy of the commons. Indeed, only through cooperation can any vision for transboundary water management in the Great Lakes be realized.

A Foundation of Cooperative Governance: The Boundary Waters Treaty of 1909 and the International Joint Commission The Boundary Waters Treaty (1909) has provided the foundation for transboundary Canadian-American water management for over a century. Before 1903, no legal regime governed uses of Great Lakes water. As the Great Lakes region was relatively undeveloped until the late nineteenth century, there was little pressure on Great Lakes water resources and no need for international legal rules. By the turn of the century, both countries saw a need to avoid conflicts over use of the shared waters. The United States and Canada fijirst established the International Waterways Commission in 1905 to address potentially conflicting rights in the countries’ shared waterways (Woodward 1988). The International Waterways Commission recommended that the two countries adopt legal principles of shared water use and form an international body to protect the boundary waters. In 1907, the International Waterways Commission

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drafted a proposed treaty, which eventually led to the bwt of 1909. The treaty (1909: preliminary article) provides for joint management and cooperation between the United States and Canada for the shared boundary waters defijined as the waters from main shore to main shore of the lakes and rivers and connecting waterways . . . along which the international boundary between the United States and . . . Canada passes, including all bays, arms, and inlets thereof, but not including tributary waters which in their natural channels would flow into such lakes, rivers, and waterways, or waters flowing from such lakes, rivers, and waterways, or the waters of rivers flowing across the boundary.

While tributary rivers and streams, as well as tributary groundwaters, are excluded from coverage, the treaty governs four of the fijive Lakes (since Lake Michigan sits entirely within the United States) and other rivers and lakes that straddle or cross the border (Hall 2006). While the main goal was to fijind a practical way to mutually take advantage of their shared border environments, the treaty does directly address the potential transboundary harms from taking and diverting boundary waters. Put another way, the treaty was chiefly about conservation and maximized usage, though there were some preservationist impulses—such as the add-on to Article IV that boundary waters “shall not be polluted on either side to the injury of health or property of the other”—that would prove to be very prescient in the long run. Article III provides that neither party may use or divert boundary waters “afffecting the natural level or flow of boundary waters on the other side of the [border]” without the approval of the International Joint Commission, a six-member investigative and adjudicative body created by the bwt, with the United States and Canada equally represented by political appointees. The bwt and ijc create a legal foundation for cooperation and a duty to avoid harm. However, for the commission’s fijirst half-century, the avoidance of harm was focused more on human, and less on ecological, interests; over the commission’s second half-century, it was increasingly used as the legal basis for protecting the integrity of the Great Lakes water system. Among those who are aware of the ijc’s existence, which admittedly in many cases does not even include government offfijicials, it has earned a strong reputation for its objectivity and leadership on environmental issues. The commission’s reports rely on the best available science and generally put aside national biases, making them an important source of information for the public and decision-makers.

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Scores of issues have been referred to the commission for nonbinding investigative reports and studies pursuant to Article IX. The treaty only requires a reference from one of the countries to invoke this process, although as a matter of custom this has always been done with the support of both countries. This bilateral approach has strengthened the credibility of the commission’s nonbinding reports and recommendations. These reports and their objective recommendations have enabled diplomatic resolution of numerous transboundary water disputes and the crafting of new water-protection policies (Hall 2007); at the same time, in recent decades the ijc’s relevance has been in decline.

Transboundary Development in the Great Lakes: The Megaproject Era One of the ijc’s fijirst activities involved the St. Marys River, which flows from Superior to Huron, bisecting the sister cities of Sault Ste. Marie, Michigan, and Sault Ste. Marie, Ontario. Various schemes to develop hydroelectric power from the St. Marys River had resulted in the construction of several private hydro stations, particularly on the American side of the river, by the early twentieth century. Several diffferent locks had already been built by that time as well, with the fijirst going back to the fur trade era. However, these stations and plans to expand their electric production (e.g., in 1898 the Michigan Lake Superior Power Company sought to divert 32,000 cubic feet of water per second) impacted water levels in the St. Marys River, which had transborder implications, particularly for navigation. Consequently, hydroelectric production at the Soo was a factor in the push for the bwt, and subsequent structures to control water flows for hydro production there fell under the aegis of the ijc. One of the ijc’s earliest approvals was in 1914 for the building of the binational Compensating Works (a sixteen-gated structure with eight gates on each side of the boundary) in the St. Marys River. At the same time, the ijc established the fijirst of its joint boards, the Lake Superior Board of Control, to regulate water levels and flows of Lake Superior via these compensating works. On other major rivers in the Great Lakes Basin, such as the St. Lawrence and Niagara, private companies had built some of the world’s earliest hydroelectric generating stations before the enactment of the bwt. Other engineering advancements in or around these waterways meant that by 1905 there was a navigable channel with a minimum depth of 14 feet from the Gulf of St. Lawrence to Lake Superior.

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There had been serious contemplation of a comprehensive St. Lawrence deep canal system in the late nineteenth century. Discussions accelerated after 1900, but in the years leading up to World War I, both countries remained ambivalent about a cooperative waterway and wary of international commitments in general. There were, however, attempts in Congress and Parliament to legislate a St. Lawrence project, and several pro-seaway organizations were formed, like the Canadian Deep Waterways and Power Association. Additionally, the concept of twinning a deep canal system with a hydro development in the International Rapids section—the stretch of river between Kingston and Cornwall where the St. Lawrence forms the Canada–United States border—became widely accepted. During World War I, the United States was more excited about the prospect, but its proposals were not reciprocated by Canada. However, the growth of industrial and agricultural production in North America during the Great War, the ensuing strain that the conflict placed on railroad systems, the need for protected shipbuilding, and shortages of electrical power all resulted in the St. Lawrence idea gaining momentum in the post-1918 years (Macfarlane 2014). Soon after the war ended, the Canadian government consented to a US request that the International Joint Commission examine the St. Lawrence case. In 1920, the ijc began an extensive series of hearings on the project, and it, too, soon reported in the afffijirmative. Also in 1920, Washington and Ottawa created a joint two-man engineering board to study the issue, and the Wooten-Bowden Report that followed the next year strongly recommended a bilateral St. Lawrence deep waterway. At the end of 1921, the ijc endorsed the St. Lawrence route and urged the two national governments to forge a treaty authorizing the project and to include the Welland Canal as part of a wider waterway system. But Canadian prime minister William Lyon Mackenzie King was wary of accepting the American entreaties to join in constructing a deep waterway. Ongoing bilateral talks about a joint St. Lawrence navigation and power project produced the Great Lakes Waterway Treaty, signed on July 18, 1932, which outlined a 27-foot-deep waterway as well as a hydro development in the St. Lawrence River. The treaty also dealt with a range of issues in the Great Lakes–St. Lawrence Basin, including the Chicago diversion, but also other Great Lakes Basin water issues that will be discussed in more detail further on, such as Niagara Falls and Long Lac–Ogoki diversions. The range of Great Lakes–St. Lawrence Basin issues contained in the treaty reveal the extent to which planners conceived of the basin as a connected whole; not only was the deep waterway indeed to allow larger vessels

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TABLE 1. Water Control Developments in the Great Lakes–St. Lawrence Basin DEVELOPMENT

YEAR

FUNCTION

Chicago Diversion

1900

St. Marys River

1914

Long Lac–Ogoki Diversions Niagara River Diversion Treaty St. Lawrence Seaway and Power Project

1940s

US diverts water from Lake Michigan to Mississippi River watershed IJC approval of St. Marys compensating works and creation of the Lake Superior Board of Control Canada diverts water from Hudson’s Bay watershed into Lake Superior Binational agreement on water diversions and remedial works for Niagara Falls IJC approval of hydro development on St. Lawrence River; bilateral creation of deep-water canal system; creation of International St. Lawrence River Board of Control

1950 1952 & 1954

to travel from the Atlantic through the rapids of the upper St. Lawrence River and then the Great Lakes, but the water diversions were clearly understood as having ramifijications for water levels across the basin. However, the Great Lakes Waterway Treaty failed to pass in the US Congress. Nonetheless, other engineering projects were progressing: work on the new Welland Canal, begun in 1913, was completed in the early 1930s; it reduced the number of locks from twenty-six to seven, plus a guard lock, with lock dimensions of 859 feet long, 80 feet wide, and 30 feet deep, while the canal had a uniform depth of 25 feet. A similar large-scale project, the Beauharnois Canal, was completed about the same time as the new Welland Canal and featured similar proportions: it had a gigantic combined power channel and 27-feet-deep canal with a length of 24.5 kilometers that displaced vast tracts of agricultural land in western Quebec. After back-and-forth attempts throughout the 1930s to salvage the 1932 Great Lakes Waterway Treaty, hampered by the Ontario and Quebec premiers, in March 1941 Canada and the United States entered into the Great Lakes–St. Lawrence Basin Agreement, which was an executive agreement rather than a treaty. The agreement created the Great Lakes–St. Lawrence Basin Commission to oversee construction of a 27-foot seaway in conjunction with a hydro dam in the St. Lawrence River. Like the 1932 treaty, this accord addressed other water issues throughout the Great Lakes–St. Lawrence watershed, such as stipulating limits for the Chicago diversion and parameters for other diversions, such as those at Niagara. However, this 1941 agreement also failed to receive the assent of Congress, largely because of the entrance of the United States into World War II.

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Water power and hydro stations operating on both sides of the Niagara Gorge gave rise to more disputes. Water was diverted away from the Horseshoe and American Falls (the two main cataracts that make up Niagara Falls) in order to supply the various powerhouses, and then returned to the Niagara River below the waterfall. But the extent of these developments gave rise to public concerns about the aesthetic impact of decreased water levels on the Falls, as well as the industry that crowded the shoreline to take advantage of the water power (Macfarlane 2013). Both the American Burton Act (1906) and the 1909 bwt put restrictions on the amount of water that could be diverted away from the Falls. In response to public worries about safeguarding the scenic grandeur, Canada and the United States formed the International Niagara Board of Control in 1923, followed by a Special International Niagara Board in 1925. In an interim report that utilized photographs and aerial surveys, the Special International Niagara Board proposed the use of excavations and weirs, which are submerged barriers designed to strategically divert water from the middle part of the Falls to the flanks. This would improve the appearance of the crestline, both in quantity and color. Based on the Special International Niagara Board’s interim report, the Niagara Convention and Protocol was signed in 1929 by both countries. However, this Niagara convention was not able to make it through the US Senate. In 1931 the Special International Niagara Board released a report titled “Preservation and Improvement of the Scenic Beauty of the Niagara Falls and Rapids.” The report examined whether it was the height, width, volume, color, or lines that made Niagara such a spectacle. The report’s sections on water color were fascinating, and a special “telecolorimeter” was developed to test for the desired “greenish-blue” shade, which was considered superior to the whitish hue resulting from a thin flow over the precipice. The excessive mist and spray at Horseshoe Falls was considered a turnofff since it obscured the view and, unsurprisingly, made people wet. The denuded bare rock at the flanks of the Falls were labeled as one of the greatest detriments to the visual appeal, and erosion threatened to ruin the “symmetry” of the Falls. The report concluded that a sufffijiciently distributed volume of flow, or at least the “impression of volume,” which would create an unbroken crestline, was most important. The board therefore recommended that the riverbed above the Falls, and the Falls themselves, be manipulated in order to apportion the necessary volume of water to achieve the desired efffect. Remedial works (e.g., submerged weirs and excavations) would control the way water went over the precipice while

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simultaneously facilitating increased power diversions. Such measures were included in the failed 1932 Great Lakes Waterway Treaty and the 1941 St. Lawrence executive agreement. During World War II the two countries agreed that the limits on the amount of water diverted at Niagara Falls for wartime needs could be temporarily increased. Subsequently, further withdrawals were allowed during the war, rising to a total diversion of 54,000 cfs for Canada and 32,500 cfs for the United States (out of a total flow of 200,000 cfs). Canada and the United States agreed to split the cost of constructing a stone-fijilled weir above the Falls, which would raise the water level in order to facilitate greater diversions without an apparent loss of scenic beauty. Power generation at the Falls is connected to the Ogoki and Long Lac diversions, which are separate diversions that both put water into Lake Superior from the Albany River watershed, which drains north and eventually debouches into James Bay. Together they are the largest engineered diversions into the Great Lakes Basin, essentially balancing out the water removed by the Chicago diversion. Beginning in the 1920s the governments of Canada and the United States had discussed the economic potential of these diversions, but President Roosevelt refused to let the Ontario premier, Mitch Hepburn, go ahead with these diversions until Hepburn was more amenable to seaway and power development on the St. Lawrence. But it would not be until a wartime need for power become apparent that the two countries reached an arrangement through a diplomatic exchange of notes. The Long Lac diversion, completed in 1941, connects the headwaters of the Kenogami River with the Aguasabon River, which naturally discharges into Lake Superior about 250 kilometers east of Thunder Bay, Ontario. The Ogoki diversion, completed in 1943, connects the upper portion of the Ogoki River to Lake Nipigon and from there flows into Lake Superior 96 kilometers east of Thunder Bay. These diversions were developed to generate hydroelectric power (in the case of the Long Lac diversion, the transportation of the pulpwood logs southward was also a consideration), but the main benefijit of the Ogoki–Long Lac diversions was that the extra volume of water put into the upper Great Lakes could be used at Ontario’s Niagara power stations. The Ogoki–Long Lac diversions increase the mean level of each of the Great Lakes as follows: Lake Superior by 6.4 cm (0.21 feet); Lakes Michigan–Huron by 11.3 cm (0.37 feet); Lake Erie by 7.6 cm (0.25 feet); and Lake Ontario by 6.7 cm (0.22 feet) (ijc 1985). This undertaking powerfully underlines the connection in the engineers’ minds: water put into Lake Superior could be utilized far downstream in the Niagara River.

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The wartime Niagara diversions, enhanced by the extra Ogoki–Long Lac water, continued on an indefijinite—and technically illegal—basis after the end of World War II. The two countries separated the Niagara diversion issues from the repeatedly stalled St. Lawrence negotiations, and a Niagara Diversion Treaty was signed in February 1950. This Canadian-American treaty accord called for further remedial works, to be approved by the ijc, and virtually equalized water diversions while restricting the flow of water over Niagara Falls to no less than 100,000 cfs during daylight hours of what was deemed the tourist season (8 a.m. to 10 p.m. from April to mid-September, and from 8 a.m. to 8 p.m. during the fall), and no less than 50,000 cfs during the remainder of the year. This worked out to Canada and the United States together taking about three-fourths of the total flow over the Falls outside of tourist hours. Diverting such massive quantities of water around Niagara Falls would surely impact the cataract’s scenic appeal. In 1953 reports by the ijc and its International Niagara Falls Engineering Board, the objectives remained basically the same as they had been in the 1920s and 1930s: to ensure the appearance of an unbroken and satisfactory crestline while allowing for the diversion of water for power production. A 1,550-foot control dam was built from the Canadian shore, parallel to and about 225 feet downstream from the weir built in the 1940s, featuring thirteen sluices (fijive more were soon added) equipped with control gates. The purpose of this structure was to control water levels and spread out the water both for appearance and because flows concentrated in certain places caused more erosion damage. The diverted water went to the hydroelectric stations downstream. Excavation took place along the flanks of Horseshoe Falls (64,000 cubic yards of rock on the Canadian flank; 24,000 cubic yards on the American flank) in order to create a better distribution of flow and an unbroken crestline at all times. To compensate for erosion, crest fijills (100 feet on the Canadian shore and 300 feet on the American side) were undertaken, parts of which would be fenced and landscaped in order to provide prime public vantage points (Macfarlane 2013). In the immediate postwar years, a variety of economic and defense factors brought further pressure to bear on a St. Lawrence Seaway and Power Project: the need for hydroelectricity for industrial and defense production, the ability of a deep waterway to transport the recently discovered iron-ore deposits from the Ungava district in Labrador and northern Quebec to Great Lakes steel mills, the possibility of protected inland ship-building on the Great Lakes, and the economic and trade stimulation that a seaway would bring. Indeed, the main purpose of the seaway

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was to open up and connect the Great Lakes–St. Lawrence Basin by reconfijiguring spatial relationships, both physical and conceptual (Macfarlane 2014). The 1941 St. Lawrence agreement remained stalled in the US Congress, though the ability of a seaway to move the newly discovered Ungava iron-ore deposits, plus the idea of making the waterway costs self-liquidating through tolls, improved its prospects. In 1949, with Ontario experiencing major power shortages, the Liberal government of Louis St. Laurent realized that an “all-Canadian” waterway might be viable and would not need the permission of the US Congress. But an all-Canadian seaway was only cost-feasible in conjunction with a joint Ontario–New York State power dam. In 1948 New York and Ontario had both asked their respective federal governments for permission to forward to the ijc a “power priority plan” whereby the province and state would build a hydro dam separate from a deep waterway system. This scheme had been initially opposed by both President Harry Truman and Prime Minister St. Laurent. But the Canadians reversed their position since this Ontario–New York plan would accommodate the all-Canadian waterway approach. A waterway entirely in Canadian territory resonated with the Canadian public and continued to build momentum throughout the 1950s. The St. Lawrence River holds an exalted and iconic place in the Canadian national imagination, as the river served as the crucible of Canadian settlement and development. The Laurentian thesis, associated with the work of Donald Creighton, holds that the St. Lawrence River was the dominant element in shaping the physical, political, economic, and cultural evolution of Canada (Creighton 1956). This thesis incorporated key elements of the staples and metropolitan-hinterland theses. At the height of its popularity in the 1950s, the Laurentian thesis helped sustain the conception of the St. Lawrence watershed as the defijining and fundamental aspect of Canadian history and identity and, in turn, infused the notion of an all-Canadian seaway with the same nationalist importance and symbolism (Macfarlane 2014). An all-Canadian seaway, however, clearly threatened important US national-security and economic interests. Truman was opposed to the St. Lawrence project proceeding except as a joint Canada-US endeavor. The United States used a variety of means to pressure Canada into accepting a joint seaway, and the canal system and power works were constructed by various Canadian and American entities between 1954 and 1959. The St. Lawrence undertaking was a complex and highly integrated navigation, power, and water-control project on a scale much larger than previous transportation improvements along the river. Construction cost more than $1 billion (US

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dollars): $470.3 million split between Canada ($336.5 million) and the United States ($133.8 million) for navigation aspects, and $300 million spent on hydro works by Ontario and New York respectively. Along with power developments on the Niagara, the St. Lawrence Seaway and Power Project proved to be a formative event in the history of North American subnational governmental relations (Macfarlane 2015). The St. Lawrence project required three new dams, including the Moses-Saunders powerhouse, a gravity power dam with thirty-two generator units, which was a Canadian-American bilateral project. The resulting Lake St. Lawrence inundated over 20,000 acres of land on the Canadian side between the towns of Cornwall and Iroquois, and almost the same amount on the American shore. From west of Cornwall to Iroquois, on the Ontario side of the border, the scale of relocation was massive: more than two hundred farms; nine villages and three hamlets; eighteen cemeteries; around one thousand cottages; and more than one hundred kilometers of the main east-west highway and railway. The various engineering works that formed the St. Lawrence Seaway and Power Project also directly regulated the levels of Lake Ontario. Measures to regulate Lake Ontario water levels had been part of the ijc’s engineering plans for the St. Lawrence power project, but the Lake Ontario levels issue was turned into a separate ijc docket in the early 1950s after shore owners complained about the efffects of fluctuating water levels. As part of the St. Lawrence dual project, engineers had to establish a “river profijile” and develop a “method of regulation” for the St. Lawrence River and Lake Ontario. The “method of regulation” referred to the levels between which the water would be maintained by dams and control works in order to meet prescribed goals. The main future users of the St. Lawrence Seaway and Power Project at the time it was designed—power production, navigation, shoreline property, and downstream interests—wanted diffferent minimum and maximum water levels or varying ranges of stages (i.e., diffference between high and low levels). The engineering goal between 1954 and 1959 was to maintain the water levels at an average that equated to “natural levels,” but also to improve on nature by removing the extremes of high and low flows in order to create a predictable and orderly river and lake. “Natural” was defijined as that which had existed in the nineteenth century before the fijirst anthropogenic alterations to water levels. Yet establishing exactly what constituted a “state of nature” was problematic from the outset, for it was difffijicult to fijind information regarding the natural levels to use as a baseline. For example, there was concern that past measurements were unreliable, exacerbated by the geological phenomenon of earth tilt, as well as a 1944

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earthquake centered between Cornwall and Massena. Indeed, engineering studies were showing that natural factors must have played a much larger role in the recent rise in Lake Ontario water levels than had the anthropogenic factors (i.e., diversions into the Great Lakes Basin). All construction work was overseen by the bilateral St. Lawrence River Joint Board of Engineers. After the construction was fijinished, the International St. Lawrence River Board of Control took over supervision of water levels for the river and Lake Ontario (Macfarlane 2014).

Transboundary Protection in the Great Lakes: Modern Subnational Agreements With the completion of the St. Lawrence and Niagara megaprojects, engineering structures were in place that allowed the ijc to regulate Lakes Superior and Ontario, and indirectly regulate Lake Erie. At the same time, it was becoming apparent to the ijc that natural supplies played the greater role in determining lake levels and water fluctuations. Despite this growing ecological awareness, the St. Lawrence and Niagara undertakings had also paved the way for even more grandiose proposals to replumb the water flows of North America, including various schemes that would put water from northern Canada into the Great Lakes so that water could then be diverted from the Great Lakes Basin to the American Great Plains and Southwestern United States. Fears about diversions of Great Lakes water, and the apparent lack of legal means for preventing such diversions on the American side, prompted several decades of attempts to rectify the potential gaps and loopholes. Those effforts culminated in the Great Lakes–St. Lawrence River Basin Sustainable Water Resources Agreement (2005) and the Great Lakes–St. Lawrence River Basin Water Resources Compact (2008) (“Great Lakes Agreement” and “Great Lakes Compact”), which built on the foundation for cooperation and created a modern legal regime for water use in the Great Lakes Basin. Together, they provide a new model for transboundary water management with environmental protection. The Great Lakes Compact and Agreement are between states and provinces and do not include the federal governments. A recurring challenge has been negotiating the legal and political obstacles in order to create an international agreement between subnational governments. The Compact Clause of the US Constitution (Article I, Section 10) provides that “No State shall, without the Consent

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of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power.” The same section also provides that “No State shall enter into any Treaty, Alliance, or Confederation.” The limitation on states entering into an “Agreement or Compact,” even with a foreign government, is limited only by the political decision of Congress to consent, but the prohibition on states entering into a “Treaty, Alliance, or Confederation” is absolute. The question of what constitutes a “Treaty, Alliance, or Confederation” versus an “Agreement or Compact” could open the door to major constitutional issues of separation of powers and federalism. For the Great Lakes, there is a sensible answer. Congress has already exercised its treaty powers through the Boundary Waters Treaty of 1909, making any attempt by states to enter into a binding management arrangement with the provinces on a related subject an impermissible treaty. Furthermore, if Congress approached an agreement with the provinces as a compact, it would likely reject either the entire compact or the inclusion of the provinces. In an attempt to meet the goal of state-provincial cooperation without running afoul of constitutional treaty limitations, the Great Lakes governors and premiers developed the Great Lakes Compact (2008) as a binding agreement between American states, and the Great Lakes Agreement (2005) as a nonbinding, good-faith agreement that includes the provinces of Ontario and Quebec. (The compact’s efffective date of 2008 compared to the agreement’s date of 2005 was due to the time it took for the compact to be approved by all American party states prior to congressional approval.) This dual structure creates a legally and politically acceptable mechanism for cooperation with Canadian provinces. The Great Lakes Compact incorporates the provinces through the Great Lakes Agreement’s “Regional Body,” comprised of representatives from each state and province, and charges that body with responsibility to conduct the “Regional Review” procedure. The Regional Body’s authority is procedural rather than substantive; its determinations are advisory rather than fijinal (Great Lakes Agreement 2005, § 201). The Regional Body’s role includes notice, consultation, and public participation, but stops short of fijinal decision-making. The states and the Compact Council need only consider (but are not obliged to follow) Regional Review fijindings (Great Lakes Compact 2008, § 4.7(2)). The Regional Review process is also limited to “regionally signifijicant or potentially precedent setting” proposals (as determined by a majority of the members of the Regional Body) and the exceptions to the prohibition on diversions discussed previously. The Regional Review process avoids infringing on federal treaty powers, but

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still gives the provinces an evaluative and procedural role that may prove useful for them. Despite the Great Lakes Agreement’s nonbinding status, Canada is generally pleased with the Great Lakes Compact and the Great Lakes Agreement. Canada’s primary concern is that the United States, with signifijicant population growth in the South and Southwest far from the Great Lakes Basin, will look to divert Great Lakes water to other parts of the country. Canada welcomes any legal limitations of Great Lakes diversions within the United States, and the Great Lakes Compact and Agreement created strong new standards to protect the Lakes from overuse. The common standards (referred to as the “decision-making standards”) for new or increased water withdrawals of Great Lakes Basin water (Great Lakes Agreement 2005, §§ 201, 203; Great Lakes Compact 2008, §§ 4.9, 4.11) are the core of the protection regime. They provide that 1.

2.

3.

4.

5.

All water withdrawn shall be returned to the source watershed less an allowance for consumptive use; Withdrawals are to be implemented in a way that ensures no signifijicant individual or cumulative adverse impacts to the quantity or quality of the waters and water dependent natural resources of the Great Lakes basin and the applicable source watershed; Withdrawals will incorporate environmentally sound and economically feasible water conservation measures; Withdrawals will ensure compliance with all applicable municipal, state, and federal laws as well as interstate and international agreements, including the Boundary Waters Treaty of 1909; The proposed use is reasonable, based upon a consideration of the following factors: a. Whether the proposed withdrawal will provide efffijicient use of the water, and will avoid or minimize the waste of water; b. If a proposal is for an increased withdrawal, whether efffijicient use is made of existing supplies; c. The balance between economic development, social development, and environmental protection of the proposed withdrawal and use and other existing or planned withdrawals and uses sharing the water source; d. The supply potential of the water source, considering quantity, quality, reliability, and safe yield of hydrologically interconnected water sources; e. The probable degree and duration of any adverse impacts expected to be

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f.

caused by the proposed withdrawal and use under foreseeable conditions, to other lawful consumptive or non-consumptive uses of water, or to the quantity or quality of the waters and water dependent natural resources of the basin, and the proposed plans and arrangements for avoiding or mitigation of such impacts; and, Whether a proposal includes restoration of hydrologic conditions and functions of the source watershed.

These criteria are grounded in the common-law riparian rights (the doctrine of reasonable use) prevalent in Great Lakes states and provinces (although the expansion of the criteria to groundwater withdrawals is notable). The criterion requiring compliance with all applicable laws, agreements, and treaties has signifijicant importance, especially as the key bilateral agreements regarding water management sufffer from a lack of enforceability and private causes of action, which would allow citizens to bring suits in court to enforce treaty terms. By requiring compliance with the Boundary Waters Treaty and other agreements, the Great Lakes Compact elevates their terms to enforceable standards for new or increased water withdrawals. The decision-making standard further created a new standard for water use—improvement. Improvements are not strictly required, but can be considered, under criterion 5(f), in determining the reasonableness of the proposed use. Water users can propose restoration as a way of making their water use more compatible with the policy goals in efffect. Finally, the compact indicates that the common decision-making standard is only a minimum standard. States may impose more restrictive standards for water withdrawals under their authority. Some jurisdictions already have permitting standards in place, and this ensures that the compact in no way requires a weakening of state regulatory programs. The common standards are incorporated into two separate approaches to managing new or increased water withdrawals in the Great Lakes Basin, based on whether the water is used inside or outside of the Great Lakes Basin surface sub-watershed boundary. Water used inside of the Great Lakes Basin is managed solely by each state individually, with limited advisory input from other states for very large consumptive uses. Water used outside of the basin (a diversion) is subject to collective rules and approval processes, including a general prohibition on most diversions. The compact requires the states to “create a program for the management and regulation of New or Increased Withdrawals [for use within the basin]

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. . . by adopting and implementing Measures consistent with the Decision-Making Standard” within fijive years (Great Lakes Compact 2008, § 4.10). The states must report to the Compact Council, which is comprised of the governor or delegated representative of each state, regarding their implementation. The Compact Council must review the state programs and make fijindings regarding their adequacy and compliance with the compact. The states must further develop and promote water-conservation programs and a water-resources inventory including both available water resources and water withdrawals within the state. Diversions of water outside the Great Lakes Basin are generally prohibited subject to exceptions for intrabasin diversions (lake-to-lake transfers within the entire Great Lakes Basin) and diversions to communities that straddle the basin divide (Great Lakes Compact 2008, § 4.9). Even if a diversion qualifijies under one of the exceptions, it is usually subject to the unanimous approval of the eight Great Lakes governors voting as the Compact Council. The Compact Council has numerous other powers and duties. It can promulgate and enforce rules to implement its duties under the Great Lakes Compact; plan, conduct research, prepare reports on water use; and forecast water levels. Perhaps most importantly, it can conduct special investigations and institute court actions, including enforcement. Citizens can also bring legal actions in the relevant state court against any water user that has failed to obtain a required permit or is violating the prohibition on diversions. The broad enforcement provisions are complemented by similarly progressive public-participation provisions. The compact provides minimum procedural public process requirements for the party states and Compact Council, including public notifijication of applications with a reasonable time for comments, public accessibility to all documents (including comments), standards for determining whether to hold a public meeting or hearing on an application, and allowing open public inspection of all relevant records. The Great Lakes Compact also requires formal consultation with federally recognized tribes in the relevant state. Such consultation is handled primarily through either the Compact Council or Regional Body.

Conclusion Cooperation is a constant in Great Lakes water management, even as specifijic disputes and difffering interests challenge the culture. The geography, magnitude,

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and importance of the Great Lakes not only warrant cooperation but also foster it. In the end, both countries, and the many subnational governments in the Great Lakes region, recognize the need to put cooperation above the individual interests of the day. Fences may make for happy neighbors, but you cannot put a fence through the Great Lakes. The water, and harms from its use, flows both ways. Cooperation is necessary; the alternative is unacceptable. Fortunately, leaders from both countries have recognized this reality for over a century, and the Boundary Waters Treaty has made cooperation the legal norm. That said, we need to be careful about the right kinds of cooperation. Up until the 1960s, the ijc was prone to advocating ecologically detrimental water-control megaprojects such as the Seaway (Clamen and Macfarlane 2015). It was not until the second half of the twentieth century that the ijc evolved into the progressive environmental governance body that is often lauded today, though this was also the era where increasing issue complexity resulted in the proliferation of new institutions and a decrease in the ijc’s relevance. At the same time, there is an ironic twist concerning these megaprojects: the lack of cooperation over the fijirst half of the twentieth century (i.e., the failed 1932 and 1941 bilateral Canada-US agreements) actually served as inadvertent environmental protection since the construction of these hydroelectric plants, dams, and remedial works was forestalled by several decades (Macfarlane 2016). Thus, a moral to be taken from our story is that cooperation just for its own sake is not necessarily benefijicial unless it is aimed at proper ends. More recently, the culture of cooperation has evolved from working together to alter the Lakes, to working together to protect them. The Great Lakes Compact and Agreement use cooperation as the foundation for sustainable water use and protection, providing a model for transboundary water management. But this cooperation is not without caveats either. The cooperation between states and provinces to enact and implement the Great Lakes Agreement and Compact essentially cuts out the two federal governments. More critically, the regional cooperation has a protectionist and exclusionary backdrop, as the citizens and governments in the Great Lakes region want to protect the resource for themselves. The lessons of cooperative success in transboundary Great Lakes water management, therefore, should be viewed in the full context of values, goals, participants, and outcomes. Cooperation is not perfect. But it beats the alternative. New disputes and tensions will come and go, but the importance of the relationship and resource itself are constants. The Great Lakes face tremendous challenges and pressures as

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freshwater worldwide becomes more scarce and valued. Fortunately, the culture of cooperation and resulting legal regime in the Great Lakes provides hope for a sustainable future on both sides of the border.

REFERENCES Benidickson, Jamie. 2016. “From Boundary Waters to Watersheds: Legal Change and the Geography of the Great Lakes–St. Lawrence System.” Canadian Geographer 60(4): 435–55. Clamen, Murray, and Daniel Macfarlane. 2015. “The International Joint Commission, Water Levels, and Transboundary Governance in the Great Lakes.” Journal of Policy Research 32(1): 40–59. Creighton, Donald. 1956. The Empire of the St. Lawrence. Toronto: Macmillan of Canada. Dagenais, Michele, and Ken Cruikshank. 2016. “Gateways, Inland Seas, or Boundary Waters? Historical Conceptions of the Great Lakes and the St. Lawrence River since the 19th Century.” Canadian Geographer 60(4): 413–24. Great Lakes Commission. 2003. Implementing Good Governance: Toward a Water Resources Management Decision Support System for the Great Lakes–St. Lawrence River Basin. Ann Arbor, MI: Great Lakes Commission. http://www.greatlakeslaw.org/fijiles/Great_Lakes_ Commission_2003_Report.pdf. Hall, Noah D. 2006. “Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region.” Colorado Law Review 77:405–56. —. 2007. “Transboundary Pollution: Harmonizing International and Domestic Law.” University of Michigan Journal of Law Reform 40:681–746. Heasley, Lynne, and Daniel Macfarlane. 2016. Border Flows: A Century of the CanadianAmerican Water Relationship. Calgary: University of Calgary Press, 2016. International Joint Commission. 1985. Interim Report on 1985–86 High Water Levels in the Great Lakes–St. Lawrence River Basin. Washington, DC, and Ottawa: International Joint Commission. Macfarlane, Daniel. 2013. “‘A Completely Man-Made and Artifijicial Cataract’: The Transnational Manipulation of Niagara Falls.” Environmental History 18(4): 759–84. —. 2014. Negotiating a River: Canada, the US, and the Creation of the St. Lawrence Seaway. Vancouver: University of British Columbia Press. —. 2015. “Watershed Decisions: The St. Lawrence Seaway and Sub-national Water Diplomacy.” Canadian Foreign Policy Journal 21(3): 212–23. —. 2016. “Dam the Consequences: Hydropolitics, Nationalism, and the Niagara–St.

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Lawrence Projects.” In Border Flows: A Century of the Canadian-American Water Relationship, edited by Lynne Heasley and Daniel Macfarlane, 123–50. Calgary: University of Calgary Press. Woodward, Jennifer. 1988. “International Pollution Control: The United States and Canada— the International Joint Commission.” New York Law School Journal of International and Comparative Law 9(2–3): 325–44.

Multi-jurisdictional Governance of the Shared Great Lakes Fishery Can a Nonbinding Agreement Work?

Marc Gaden and Charles C. Krueger

I

n 1925, long before “ecosystem management” came of age, future Supreme Court justice Felix Frankfurter and his colleague James Landis observed that natural resources create their own boundaries, independent of political borders. “Regions, like the Southwest clustering about the Colorado River, or the States dependent upon the Delaware for water, are less than the nation and are greater than any one State” (Frankfurter and Landis 1925, 707). States, they said, would have to come up with creative ways to share and protect such multi-jurisdictional natural resources. This reality creates governance challenges because political jurisdictions rarely are congruent with ecosystems and natural resources they govern. Management of Great Lakes fijisheries is a case in point. Despite an international border that bisects four of the fijive Great Lakes, the basin’s eight states, the Province of Ontario, and several US tribes—and not the two federal governments or an overarching institution—manage the Lakes’ fijisheries. The evolution of law since the days of European settlement has left these nonfederal governments (province, states, tribes) with primary authority over their fijisheries (Dochoda and Jones 2002; Gaden et al. 2013). Because the Great Lakes fijishery is a large, shared resource, the individual nonfederal jurisdictions also realize that some degree of cooperation is not only inevitable but also desirable. As such, governance of

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Great Lakes fijisheries occurs on two levels: individually, through the natural-resources departments of the nonfederal governments, and collectively through a multilateral nonbinding agreement called A Joint Strategic Plan for Management of Great Lakes Fisheries. Here, we investigate how twelve independent, nonfederal provincial, state, and tribal agencies who manage Great Lakes fijisheries work together efffectively, and why they prefer a nonbinding agreement over a binding one. We ask whether serious cross-border engagement is possible through a nonbinding agreement and conclude the answer is “yes,” both because a formal agreement exists to frame cross-border cooperation and because an enduring community of professionals has emerged over the course of fijifty years that contributes to a “culture of cooperation” similar to that described by Macfarlane and Hall in this volume (Brooks and Olive 2018). The relationship we discuss here is not the typical federal-government to federal-government relationship found in an international resource, but rather we discuss how the nonfederal entities work together voluntarily and cooperatively, and in a sense, often behave like sovereign nations. Understanding the Great Lakes fijishery-management regime requires determining the sentiments of the participants themselves, as they cooperate voluntarily to achieve shared goals. To gain insight into this aspect of governance, we drew from the results of sixty-two semistructured interviews conducted by coauthor Gaden with current and former Great Lakes fijishery managers; quotations provided reflect these managers’ sentiments. We also relied upon meeting minutes from within the Great Lakes Fishery Commission archives dating back to the 1960s, and on more than twenty years of direct observation by the coauthors of the fijishery-management process at work. Data were organized using Nvivo, software designed to aid in qualitative analysis. As described by Gaden (2007), this research is qualitative, inductive, and based on the tenets of grounded theory; interviews, documents, and observational data were systematically coded and analyzed with the help of Nvivo, which allowed for the emergence of the conceptual framework we present here. This chapter provides a brief discussion about binding and nonbinding agreements, includes a short history of Great Lakes fijishery management from a cross-border perspective, offfers a discussion about why cross-border cooperation is necessary, and explores why a nonbinding approach to cooperative fijishery management in the Great Lakes is not only desirable but also efffective.

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Cross-Border Cooperation and Why It Occurs When natural resources transcend political boundaries, the people who share the resources must cooperate if proper management is to occur. Governance is how sovereign entities (defijined loosely as any entity with the ability to do its will) exercise their authority. Cross-border governance, thus, is how independent sovereigns share a resource and exercise their authority in a cooperative way. Certainly, the mechanisms and processes established to achieve efffective governance is critical. Olive and Brooks begin this volume by noting considerable shifts over the past few years in the political dynamics of Canada and the United States. That political leadership will change is a given. Successful governance arrangements, if they are to endure, must be set up in a way that weathers political change, especially change of the magnitude seen of late. To be sure, a solid process can rely on ironclad provisions of a binding agreement, but it also can rely on nonbinding approaches and softer measures, like a culture of cooperation, robust relationships, and a desire to identify and pursue shared opportunities (Brooks and Olive 2018). Shared resources, sometimes known as “common-pool resources,” are often in jeopardy because of nonexistent or weak checks against unsustainable exploitation (Dietz et al. 2002). Cooperation suggests synergy and reciprocity—synergy in the sense that people work together to gain more than if they worked alone, and reciprocity because all participants expect benefijits from cooperation or fear retaliation should the benefijits not be shared. For cooperation to work, members of a group should know and respect each other’s interests, should recognize shared objectives, and should be willing to coordinate activities to reach common goals (Sebenius 1992; Yafffee 1998). Because common-pool resources are resources that provide relatively open access, conflict is all but inevitable. The important issue is whether conflict leads to competition or cooperation (Kohn 1992). The literature is clear that conflict itself does not preclude cooperative behavior (e.g., Axelrod 2006; Hardin 1968; Kohn 1992; Olson 1965; Ostrom 1990). While actors might behave selfijishly, cooperation can occur if they have mutual goals, communicate regularly, behave predictably, care about future interactions, and maintain ongoing relationships (Axelrod 2006). Other explanations for cooperation are rooted in the idea that being a member of a select community—known as an “epistemic community”— motivates collective action because members either feel obligated to play their role (coerced into participating through peer pressure) or are rewarded for doing so, or both (Cross

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2013; Haas 1992; Haas 2010; Montpetit 2003; Olson 1965). Members of an epistemic community have a shared sense of identity, shared goals, and shared vision. An epistemic community, thus, is a “network of professionals with recognized expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area” (Haas 1992, 3). Importantly, these community members share an understanding of an issue or how to achieve policy outcomes (Coleman and Perl 1999) and tend to focus on the ecosystem’s needs as opposed to parochial, jurisdictional desires (Haas 2016). This common understanding is shaped less by the individual’s afffijiliation with a particular agency or institution and more by his understanding of the issue. Epistemic communities, by producing a credible base of knowledge, reduce uncertainty, help make decisions clearer, and help make nonbinding agreements successful because membership in the community is often the tie that binds (Haas 1992; Montpetit 2003). The mechanism for cross-border cooperation typically comes in the form of a multilateral agreement among sovereign jurisdictions, often bolstered by a multi-jurisdictional institution (e.g., a commission) that facilitates or compels cooperation. Agreements come in many forms, each designed to suit the parties’ particular needs. Some agreements are more formal and binding than others, and comparing the level by which an agreement binds is similar to the issues surrounding “hard” and “soft” law (Shafffer and Pollack 2010; Weiss 1999). Binding and nonbinding agreements each have inherent advantages, disadvantages, and compliance issues, and their character depends on the unique circumstances on hand and what participants hope to accomplish. At one level, binding agreements have a higher stature than nonbinding agreements, and could reduce transaction costs because ongoing bargaining is often unnecessary once parties reach an agreement (Abbott and Snidal 2000). Compliance is often high in hard agreements, as participants only sign binding agreements when they know compliance will be feasible (Birnie and Boyle 2002; Shafffer and Pollack 2010; Victor 1998). Parties are less likely to sign the agreement if they may not be able to comply with it, as they would not want their sovereignty limited against their will. Binding agreements can be enforced, though enforcement depends on the difffijicult task of asking the parties to punish offfenders (Chayes and Handler-Chayes 1995). As a consequence, binding agreements tend to focus on the “lowest common denominator,” the least ambitious requirements that will attract the maximum number of participants (Axelrod and Vig 1999; Crossen 2004; Soroos 1999).

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Binding agreements rely on parties to relinquish some of their sovereignty, something independent entities are loath to do. Brooks, in this volume, for instance, illustrates just how uneasy governments can be when it comes to relinquishing sovereignty (Brooks and Olive 2018). He notes how the Boundary Waters Treaty, while granting authority to the International Joint Commission to govern water quantity and to act without instruction from Canada or the United States, nevertheless kept the commission on a short leash by restricting its ability to take action without explicit direction from the parties. Nonbinding, soft agreements, on the other hand, are often more flexible in dealing with compliance, generally rely on consensus, and are more ambitious because the signatories are likely to push the envelope if they know they will not be held legally to the agreement (Victor 1997). Compliance is heightened when all participants think the process is fair (Franck 1995; Ostrom 1990), when a party’s reputation is at stake (Guzman 2002), when external pressures become too great, or when the agreement serves the domestic interests (Faure and Lefevere 1999). Informal agreements can be more flexible and dialogue-focused than formal agreements because informal agreements can prompt members to go beyond what is on paper, can lead to more enlightened discussions, and can be flexible enough to adapt to changing needs or participants (Donahue 1987; Victor 1997). Nonbinding agreements are at times desirable precisely because they do not require the parties to give up their sovereignty. Sovereignty is jealously guarded, and nonbinding arrangements honor such sentiments by focusing on collective opportunities rather than on constraining sovereign activities. As Johns describes in this volume, the Great Lakes Water Quality Agreement of 1972 (and its three successors) represents a nonbinding approach to addressing some of the region’s toughest pollution issues (Brooks and Olive 2018). Most fijind the agreement to be ambitious, perhaps because it is nonbinding and thus does not hold the signatories accountable in a legal way. The nonbinding nature does allow the two nations the leeway to pursue ambitious approaches, though each nation must still take steps domestically to ensure the agreement is fulfijilled. Johns describes how slow progress can be under such a nonbinding agreement. All types of agreement, whether binding or otherwise, require the parties to comply with, and implement, what they agree to. If compliance were not expected, an agreement would not be necessary. Thus, agreements are usually designed to compel behavior and ensure that participants implement them. Moreover, as Brooks and Johns note in this volume, formal arrangements to help implement an

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agreement are essential (the Boundary Waters Treaty through the International Joint Commission, and the Great Lakes Water Quality Agreement through the Great Lakes Executive Committee, respectively) (Brooks and Olive 2018). In the Great Lakes region, the nonfederal governments exercise sovereign control over their fijisheries, including migratory fijishes. Because the state and provincial boundaries extend to the international border, and because tribal fijishing areas are defijined by treaties, jurisdictional authorities are usually clear and absent of federal dominance. Each jurisdiction formulates and executes its own policies in its own waters, pursuant to its own legal obligations or desires (Gaden et al. 2013). Given their sovereignty over fijisheries, how free are the provinces, states, and US tribes to work with each other and with foreign governments? At fijirst glance, strong federal powers to enter into treaties or to manage interstate/interprovincial matters would appear to preclude nonfederal involvement in foreign or cross-border activities. However, foreign and interstate/interprovincial matters are not necessarily exclusive to the federal governments. For instance, while the British North America Act (bna Act, Canada’s Constitution) suggests that federal government, by virtue of its treaty power, takes the lead in foreign afffairs, the bna Act does not expressly prohibit provincial involvement in foreign matters. The provinces are often called upon to implement treaties to which the federal government agrees (Kennett 1997; Rutan 1971). In the United States, while the Constitution says states need congressional approval to enter into agreements with each other or with foreign nations, state governments, in practice, are involved routinely in interstate and foreign issues. The absence of congressional consent, a treaty, or a domestic statute does not prevent states from entering into agreements with each other or with foreign entities so long as the agreement relates to a state matter and does not encroach upon the federal government’s rights and responsibilities (Goldsmith 1997; Zimmermann and Wendell 1976; Zimmerman 2002).

Chaos and Political Fragmentation: A Short History of Great Lakes Fishery Governance Great Lakes fijish are mobile, transboundary resources. Fishery management requires cooperation among several sovereign entities: Canada and the United States, the eight Great Lakes states, the Province of Ontario, and several US tribes. Since the time of European settlement of the region, and particularly as the fijishery

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experienced considerable stress starting in the late 1800s, management interactions among the entities ranged from hostility toward each other to attempts at binding agreements that would force cooperation. Why the need to manage the fijishery? Because fijish are enticing, lucrative, shared, and vulnerable to the “tragedy of the commons.” Unfortunately for the fijish and people of the basin, the management agencies did little to embrace cross-border collaboration until the mid-twentieth century, and the fijishery sufffered for it. The lure of the fijishery goes back to the earliest days of human inhabitation of the Great Lakes region, as the bounty of fijish sustained aboriginal populations and greatly impressed the fijirst European missionaries and settlers (Webster 1982). One advertisement in a Toronto newspaper, dating to 1798, for instance, extolled the virtues of property bordering Lake Ontario because “it afffords an excellent salmon fijishery, large enough to support a number of families, which must be conceived a great advantage in this infant country” (quoted in Scadding 1878, 454). The Great Lakes fijishery continues to be an economic powerhouse; today, the resource is worth more than $7.2 billion annually to the people of Canada and the United States (ASA 2013; OCFA 2015; Fisheries and Oceans Canada 2012). As a result of boundary disputes, decisions, and treaties during the late 1700s and early 1800s, two nations, eight states, the province of Ontario, and several tribes border the Lakes. Through enumerated powers, ownership rights, court cases, precedent, and legislation, each of the nonfederal jurisdictions attained and retained the authority to manage its section of the resource, consistent with limited federal involvement (Gaden et al. 2013; Gaden et al. 2008). These authorities are generally understood and accepted, though they are not always exclusive. The nonfederal authority includes establishing harvest regulations, issuing fijishing licenses, stocking fijish, enforcing the law, and conducting fijishery assessment. The nonfederal jurisdictions operate through their own agencies (e.g., departments of natural resources) to carry out fijishery management. Fishery assessments starting in the late 1800s and continuing into the 1940s documented the collapse of some of the Lakes’ most important species, such as lake whitefijish, lake trout, lake sturgeon, and Atlantic salmon (Baldwin et al. 1979; Bogue 2000; Gallagher et al. 1943; Koelz 1926). Overfijishing and invasive non-native species led to this decline, and keen observers connected that decline to poor management and fragmented governance. Walter Koelz (1926), a preeminent scientist of the early twentieth century, commented, “The preservation of the fijisheries has been discussed often during the past 50 years, and more excellent suggestions have been

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made than have been followed. In the meantime the fijish supply has continued to decrease” (609). An international board of enquiry, established by Canada and the United States in the early 1940s to investigate the decline, reenforced Koelz’s observation, blaming poor governance: “Uniformity of regulations and enforcement are impossible to achieve under the present system of divided State control of the fijisheries” (Gallagher et al. 1943, 106). Indeed, the board noted that between the 1880s and the 1940s, the nonfederal governments rejected or ignored no fewer than twenty-fijive proposals to create formal, overarching agreements or mechanisms to manage the fijishery at the regional level, because such proposals infringed on state and provincial rights. Seemingly, before the mid-twentieth century, nonfederal governments were more interested in protecting their sovereignty over the fijishery than protecting the fijishery itself. This untenable fijishery-governance regime began to change around the 1940s when a crisis of epic proportion, the invasion of sea lamprey from the Atlantic Ocean, jolted the jurisdictions out of parochialism. Sea lampreys entered the upper Great Lakes from the Atlantic Ocean through shipping canals starting in 1921 and laid waste to the binational fijishery through predation on native fijishes such as lake trout and lake whitefijish. Fishers watched in horror as sea lampreys destroyed their livelihood; governments were helpless given a lack of management techniques for sea lamprey and an inability to cooperate efffectively across boundaries. This crisis prompted Canada and the United States to establish the Great Lakes Fishery Commission by treaty—the 1954 Convention on Great Lakes Fisheries—to combat the sea-lamprey problem; to coordinate, conduct, and communicate research; and to promote management for sustainable fijisheries. Although the nonfederal jurisdictions guarded their authority over fijisheries, the formation of the commission was acceptable because, explicitly, it did not intrude on subnational management authority (Fetterolf 1980). The commission, urged by its enabling treaty to break the history of parochialism and establish working relationships among the jurisdictions, formed “lake committees” in 1964 as a place for state, provincial, and federal agencies to discuss management issues and share information.1 These committees were the fijirst permanent multi-jurisdictional arrangements for cooperation in Great Lakes fijishery management (GLFC 1964). By 1981, noting the need to be more strategic in policy and more defensive in fending offf federal jurisdictional intrusion, agencies, with the help of the Great Lakes Fishery Commission, wrote and signed a nonbinding, regional arrangement called A Joint Strategic Plan for Management of Great Lakes Fisheries.

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The plan was designed to help the management agencies identify and work toward their shared fijishery objectives (Gaden et al. 2013; GLFC 1981; GLFC 1997). Recalling its role in forming the lake committees in the 1960s, the plan specifijied that the Great Lakes Fishery Commission would serve as the neutral force to help develop and implement the Joint Strategic Plan. The commission helped provide legitimacy to the process and helped the agencies progress toward their shared goals. The Joint Strategic Plan is largely by and for the nonfederal jurisdictions, and is specifijically designed to facilitate their intergovernmental relations. The plan is nonbinding and, as such, does not impinge upon, reduce, or abrogate the authority of the individual jurisdictions; consistent with a “soft,” nonbinding agreement, it is only as efffective as the signatories wish it to be. Nevertheless, all participants expect the other participants to adhere to the decisions made through the plan. The plan is “strategic,” meaning it establishes processes and approaches for intergovernmental relations but does not outline specifijic fijishery-management actions. For example, agencies might agree to develop fijishery objectives through the plan, but the plan itself does not specify those objectives or the actions required to achieve them. The process is based on consensus, and all members must accept (or at least be able to live with) a decision before the decision can move forward. The geographic size of a jurisdiction does not necessarily mean some members will dominate or be dominated by others. While simple reality means some jurisdictions have more resources or larger stakes in a policy than others, consensus nonetheless serves as a leveler of the playing fijield, allowing minority opinions the chance to be vetted, and requiring those opinions to be addressed. The lake committees are the action organizations used to implement the plan on a lake-specifijic basis.2 High-ranking offfijicials from the nonfederal agencies (provincial, state, tribal) on each lake meet as a group to coordinate their management responsibilities. For example, managers from Lake Huron jurisdictions—which include Ontario, Michigan, and the Chippewa-Ottawa Resource Authority—meet as the Lake Huron Committee. To facilitate the generation of science and integrate the work of the fijield biologists into management, each lake committee has technical or scientifijic committees or workgroups to provide advice. Basin-wide governance is a part of the Joint Strategic Plan. Above the lake committees exists a Council of Lake Committees—comprising all members of the lake committees—which reviews and discusses Great Lakes fijishery issues from a basin-wide perspective. Above the Council of Lake Committees exists a Council of Great Lakes Fishery Agencies, comprising division-level offfijicials from provincial,

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state, tribal, and federal agencies. This group considers process matters and highlevel strategic matters. Overall, this structure is intended to promote the translation of science to management, to develop common interjurisdictional management policies, and to address basin-wide issues. Figure 1 illustrates the lake-committee structure through the Joint Strategic Plan. This protracted experience at establishing mechanisms for fijishery cooperation in the Great Lakes stands in contrast to the scenario Macfarlane and Hall describe in this volume, whereby a lack of pressure on water resources preempted the need for cross-border cooperation over water quantity until the early twentieth century (Brooks and Olive 2018). With the Boundary Waters Treaty of 1909, the governments appeared to be proactive in easing conflict, presaging (and perhaps better preparing the governments for) the major challenges that would arise later in the century over such issues as the St. Lawrence Seaway and water diversion.

Why Great Lakes Fishery Governance Is Nonbinding Offfijicials in both Canada and the United States, as noted above, had a full menu of governance options to bring order to the fijishery-management chaos. Those options ranged from “hard,” binding agreements to “soft,” nonbinding approaches. In the end, they opted for A Joint Strategic Plan for Management of Great Lakes Fisheries, which clearly is a “soft law” approach, as participants are not bound in any legal sense to what they agree to. In Great Lakes fijisheries, a soft-law approach was selected because participants historically jealously guarded their sovereignty and independence; because flexibility was recognized to be important, to help managers focus on issues that would go beyond the lowest common policy to which members could agree; and because mechanisms were in place that could heighten compliance with a nonbinding agreement. Sovereignty and Independence Are Important Sovereignty has two basic elements: the government’s ability to control its own domestic activities and its ability to interact with other sovereigns on an equally autonomous footing (Haas and Sundgren 1990). More simply, sovereignty allows governments to pursue their own interests (Weiss 1999). Many natural resources extend beyond borders, and because one jurisdiction’s actions could afffect another’s,

FIGURE 1. Committee structure under A Joint Strategic Plan for Management of Great Lakes Fisheries. The Great Lakes Fishery Commission facilitates this process. SOURCE: DIAGRAM BY MARC GADEN.

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managing common-pool resources requires cooperation among independent entities. Provinces, states, and US tribes are relatively free to establish the type of fijishery agreement that best suits their needs. A nonbinding agreement like the Joint Strategic Plan is particularly appropriate when the participants want to preserve their independence. The plan is not a specifijic management plan containing, say, binding regulations of the fijisheries; rather the plan is an agreement to a process for interaction and cooperation. Signatories never intended the plan to be a substitute for, or an abdication of, individual state or provincial management authorities. Jurisdictional independence is indeed a reality in Great Lakes fijishery management; such independence accounts for the nature of the Joint Strategic Plan. Based on survey responses, plan participants appeared to respect and understand the reasons why the Joint Strategic Plan has been nonbinding (Gaden 2007). The interview participants, when asked about binding and nonbinding agreements, dismissed a binding agreement as simply unfeasible given the basin’s history and that agencies would never agree to something that would usurp their sovereignty. A state manager captured this common sentiment: “There is no overarching authority here that has a legal framework to trump the individual authorities of the agencies.” Observed a manager from Ontario, “Management authority . . . is currently vested in various agencies,” and a colleague from a large state added concisely, “What, really, can another jurisdiction say to you about what you can and cannot do?” The Joint Strategic Plan members viewed themselves as independent and noted that the plan’s success depended on provincial, state, and tribal willingness to adhere to the agreement. Their responses showed that members understood each jurisdiction’s independent ability to manage its own afffairs. Not a single participant supported the idea of a binding agreement, citing that such an agreement, as one put it, “would never happen.” The history of more than twenty-fijive failed attempts to bind the jurisdictions between the 1880s and the 1940s (Gallagher et al. 1943) supports this statement. Great Lakes Fishery Management Needs the Flexibility of a “So” Agreement Nonbinding agreements are more desirable than binding agreements when participants seek to be flexible rather than be committed to a specifijic course of action. Great Lakes fijishery management requires flexibility because fijishery policies must evolve as fijish populations ebb and flow, as political pressures come and go, and as natural conditions change. Regulations react to the needs of the fijishery, changing

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cultural values, changes in the forage base, and internal politics. Fishery-management practices, in other words, adapt and alter course as knowledge becomes available and as managers respond to ecosystem and political changes. The Joint Strategic Plan was an attempt to overcome the stubborn unwillingness to change that characterizes so many plans. Early drafts of the Joint Strategic Plan were more operational and somewhat specifijic to fijisheries than what ultimately emerged and was agreed upon. Indeed, in the late 1970s, when the plan was conceived, some wanted a plan that would establish specifijic fijishery objectives, outline operational plans to reach those objectives, and even declare fijishery regulations for the states and provinces (Gaden et al. 2013). However, such an approach was rejected, largely because agencies were quite skeptical of any structure that would be prescriptive; such a structure would have been unnecessarily constraining, nonadaptive to ecosystem and political changes, and less reflective of the protean nature of fijisheries. The goal was to avoid a point-in-time plan and instead create a process that would facilitate management deliberation and be capable of changing over time with the needs of the fijishery (GLFC 1978; Gaden 2007). While such a strategic plan did not in itself preclude calcifijication or rejection of change, it did establish a flexible regime capable of addressing new, emergent issues should the members wish to address them. A binding operational plan would not. Fishery managers who were interviewed acknowledged the importance of a flexible plan and connected that flexibility with the nonbinding nature of the Joint Strategic Plan. Several interview participants expressed their belief that a nonbinding fijisheries agreement was superior for the Great Lakes because it allowed the members to address any issue they would fijind important. Because the plan did not attempt to lock jurisdictions into a specifijic course of action, lake-committee and technical-committee members said they were able to use their best judgment and to be innovative in their approaches to shared policies. An Ontario manager responded, “Once [a fijirm, binding agreement] is signed, sealed, and delivered, there is no wiggle room. . . . Battles [would] be even more intense than they are now.” A nonbinding agreement like the plan allowed the members to be flexible, raising the comfort level of those who might otherwise eschew binding innovation without wiggle room. A few participants noted that a binding agreement would be simply unnecessary for what they were using the lake-committee process to achieve. The agencies did not need to be bound in a legal sense to what they developed through the lake-committee process because the issues themselves were not wholly conducive

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to a binding agreement. For example, with the important exception of the Lake Erie Committee,3 the lake-committee members do not use the process to establish common harvest quotas. They might use the process to come to a shared understanding of the lake’s biology and the management practices needed to sustain the resource, but they do not use the process to determine a quota to which adherence is mandatory. Instead, the lake committees were set up to help members develop rehabilitation plans, to keep members informed about jurisdictional activities, to articulate shared goals, and to balance interests. Success depends on integration of scientifijic understanding, proactive planning, creative thinking, flexibility, and a constant application of new information to changing conditions, rather than on having an enforcement mechanism to ensure that members adhere to the agreement. In other words, the plan was designed to focus more on shared needs and goals and less on how to hold the jurisdictions to specifijic, delineated provisions. Finally, several participants pointed out that a binding agreement would be undesirable for Great Lakes fijishery management because such an agreement would be weak and probably based on the lowest common denominator to which the agencies could agree. A senior state manager who was intimately involved in other multi-jurisdictional agreements stated that binding agreements “can force people to comply [with] the minimum standards, whereas they might voluntarily choose to do something better than that. [With a binding agreement,] they know that they can’t be forced to do something better and they can always explain doing the minimum to their constituents.” A Canadian participant, reflecting on other binding agreements, noted that such agreements are “wishy-washy.” An academician who was also versed in agreements noted that “as soon as binding elements get set, they are either too general or they are too rigid . . . [and thus are] less workable.” As one Ontario manager noted simply, “Sometimes, the more teeth you give something, the less efffective it becomes.” Compliance Is Enforced by an Epistemic Community and Overseen by a Neutral Third Party As a nonbinding agreement, the Joint Strategic Plan is only as efffective as the agencies’ willingness to implement it; nothing in the agreement compels agencies in a legal way to adhere to the plan. Most participants stressed explicitly that each jurisdiction has its own unique mix of politics and regulations that make each jurisdiction’s fijishery management diffferent. “We always tried to make sure that our

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colleagues understood that if we had to go back and change the regulations that there was this [internal] process that we had to go through. [The state] process had a life of its own,” said a state manager, an observation several participants echoed. “You can’t get around it,” added another. In other words, participants emphasized that no matter what the Joint Strategic Plan says, or no matter what they came up with through the process, agencies would not be bound in any legal sense. Because of this reality, lake-committee members knew that they must work together to develop shared policies, and they must promote those policies internally when they return to their home jurisdiction. Said a member of the Lake Superior Committee, “I think anything that a state management agency wants to do, they can do in spite of the Joint Strategic Plan. . . . It ultimately comes down to what our political masters are going to dictate.” These sentiments about implementation internally, within a jurisdiction, are important for two reasons. First, they indicate that the participants recognized and appreciated their jurisdiction’s sovereignty. Second, successful policies depend on the home jurisdiction’s will and capacity to implement the policies. Thus, compliance with, and efffectiveness of, the agreement is a function of how willing the jurisdictions are to implement decisions generated through the agreement. Despite implementation challenges, participants believed that the nonbinding Joint Strategic Plan could address compliance. Although interview participants acknowledged that the plan cannot make someone take action against his or her will (as could a “hard,” binding agreement), they felt the plan’s basic premise of ongoing interactions heightened the chances that compliance would occur. When asked about the degree to which the plan changes behavior, specifijic notions of “behavioral change” varied, but participants still shared a common worldview that the plan has compelled them to do things that they might not otherwise have done. When asked for examples where the plan had changed behavior, participants were often unable to identify specifijic cases. They stated instead that they simply knew the Joint Strategic Plan process afffected their thinking beyond the perspective of their own agency, stating that the plan process helped develop diffferent broadened viewpoints and generated a motivation to fijind common ground with other agencies. Given ongoing interactions among the managers, exposure to diffferent viewpoints was not only an understandable outcome, it was also what the plan intended. Indeed, the exposure to diffferent viewpoints occurred because an otherwise parochial-leaning fijishery manager (fijishery managers are technically only accountable to their own jurisdiction) had the chance to network with a much

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broader peer group, which injects new perspectives into the discussion. Seen that way, the plan has used tenets of a “soft” approach to encourage changes in mindset and behavior. For example, members noted that the plan prompted them to “take other jurisdictions into account before they took actions that could afffect the whole system,” “forced a lot of people to rethink what they were doing,” and prompted members “to think about things and to make some changes.” For lake-committee activities to be successful, members must stay committed to what they develop jointly. A major element of the plan that members identifijied is a sense of ownership in decisions that emerge through the plan’s process. A personal commitment to the process served as a substitute for a binding, “hard” agreement. A retired senior state manager, for instance, expressed a common sentiment when he said, “[Because decisions] originate from the parties, they are not imposed.” In other words, compliance occurs because the participants are deeply engaged in developing products and policies, and to ignore what they come up with would be to ignore themselves. The sense of ownership is deeply related to this nonbinding agreement’s most fundamental strategy: decision by consensus. Consensus occurs after members express all viewpoints and when no participant objects to the opinion (GLFC 1997). Consensus is more than a defijinition of a decision-making process; it is a mindset that develops over time as members become more involved and experienced in the process. Consensus is a way of doing business that emerged out of the jurisdictions’ history of information sharing, coming together as equals, participating voluntarily, and preserving jurisdictional autonomy. Joint Strategic Plan members were aware of why consensus was important and how consensus related to the plan’s implementation. Members emphasized many elements of consensus that made them feel somewhat bound to decisions that arose from the consensus process. For instance, they felt professionally accountable to their peers (to the strong epistemic community) and believed that breaking consensus (or being too obstructionist if the group was near consensus) was unprofessional. Members believed consensus reflected the members’ work and sentiments, and because they felt they owned the plan, members generally had a lessened incentive to break consensus willingly, as they would be contravening their own opinions and flouting the epistemic community’s conventions. Another reason participants believed the plan heightened the chances for compliance was that they believed the Great Lakes Fishery Commission served as an alternative—albeit a soft, neutral substitute—for an overarching authority

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with responsibility to bind the entities. The commission, they stressed, was neutral enough to facilitate the process and gently pressure the agencies into implementing their agreements. Participants noted that the commission could nudge them toward consensus, but that if the commission became too aggressive, they would likely feel forced and cooperation would sufffer. The commission sets the tone and creates the conditions for individuals to work together in a cooperative, professional setting, while compelling, in soft ways, adherence to the plan. In practice, as noted by a senior state offfijicial, the commission provided “the appropriate level of support where it’s easier for [the lake-committee members] to do the right thing than it is the wrong thing.” In doing so, the commission ensured that meetings take place, facilitated scientifijic inquiry, prepared the decision record to which participants were held accountable, facilitated disputes (major and minor) when asked, and tried to stay as neutral as possible. Said one lake-committee member, the commission’s job was to “provide the prodding to the followup; [to] gently nudge people along.” The dilemma that the commission faces is trying to be involved enough in the process to encourage the development and implementation of proactive, shared policies, yet detached enough so that the commission itself is not the only entity compelling the participants to rethink their policies. The commission is not a member of the lake committees or the Council of Lake Committees, but does participate actively in the technical committee process. The fact that the commission is the only basin-wide fijishery entity on the Lakes makes it naturally prone to overstepping its bounds or, conversely, having the jurisdictions expect too much from the commission if their home authorities are reluctant to act. Over the long term, if the commission is perceived as continually overstepping its role as facilitator, the lake-committee process would likely break down. Members would grow reluctant to participate in commission-facilitated meetings and, instead, would either not work cooperatively or would establish processes to cooperate outside of the Joint Strategic Plan.

Conclusion Natural resources routinely transcend political boundaries, and the tools available to facilitate collective action—through both “soft” and “hard” agreements—are numerous. Each type of agreement has its own benefijits, drawbacks, and abilities to bind the participants. Members decide on the type of agreement and its binding

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nature based on their circumstances and needs. Nonbinding agreements can be more flexible and ambitious than binding agreements, but compliance and implementation will often be a struggle. Participants who desire to protect their independence and sovereignty will turn toward a nonbinding agreement more readily than a binding agreement. In the Great Lakes region, a nonbinding agreement is suitable because fijishery management requires flexibility, because participants desire a strategic and progressive approach that identifijies shared goals, and because institutions and norms exist to nurture compliance without a heavy-handed entity or agreement to bind their activities. Participants recognized that jurisdictional independence essentially precluded a binding approach. The Great Lakes are unique in that the nonfederal governments, together, manage an international resource. Paraphrasing Frankfurter and Landis (1925), the jurisdictions have recognized that they are smaller than a nation and greater than any one jurisdiction and, in response, have established a formal process—tailored to suit their needs—to together manage fijisheries. While these nonfederal entities guard their own independence and sovereignty jealously, they are also quite aware that independence and sovereignty means that one jurisdiction’s actions afffect everybody. They chose a consensus-based, nonbinding agreement because they felt it would maximize cooperation while still respecting jurisdictional sovereignty. The managers who currently participate in the process have not deviated from those sentiments. As a governance institution, a structure like the Joint Strategic Plan is most applicable to situations where jurisdictions wish to preserve their autonomy, where they do not need to overcome competitiveness, and where they fijind it more important to have ambitious, flexible policies than to bind each other to less-ambitious management actions. Such a plan is also particularly applicable and more likely to be successful when the federal governments are not able to exert preemptive authority, and when a neutral institution like the Great Lakes Fishery Commission exists and is willing to facilitate a process without forcing action. Contingent on the success of a Joint Strategic Plan-like agreement is the participants’ desire to build and maintain relationships. Relationship building takes time. The Joint Strategic Plan benefijited from the fact that lake committees existed for fijifteen years before the plan was produced. This preexistence of a solid, respected, science-based epistemic community helped the plan from the start, as the community members themselves developed the plan. Its members did not have to fijirst establish the relationships needed for them to work together

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efffectively. Although the relationships were less formal before the plan, participants nevertheless for many years had a place to meet, to get to know one another, and to get used to interacting. Thus, the existence of an epistemic community could be a major variable if successful replication of the Joint Strategic Plan were to occur in other areas of multi-jurisdictional governance. The Joint Strategic Plan likely would be difffijicult to implement in situations where participants interact on an unequal footing, such as in systems dominated by federal governments. In such cases, elements like synergy, trust, relationships, and consensus become skewed. The terms of such a relationship are quite diffferent than the terms outlined in the Joint Strategic Plan. If the goal is to build a cooperative regime among unequals, the terms must be drafted in a way that either clearly delineates the roles of each of the participants or that empowers weaker partners and provides bounds for stronger partners. The Joint Strategic Plan lacks enforcement authority that other writers (e.g., Ostrom 1990) have said are critical to common-pool resource management. Instead, the foundation of consensus, science, plans and objectives, and relationships through an epistemic community are enough to help the participants work together in good faith and assure them that what they agree to in principle will be implemented. The fact that politicians and others in the home agency generally do not interfere with the work of the plan’s committees also helps the process, as the members are motivated by the fact that their decisions will be honored—that an external force likely will not supersede their decisions. The Joint Strategic Plan is capable of facilitating cooperation over the allocation of fijisheries, as it does in Lake Erie, but because the plan is somewhat limited in that regard, it is difffijicult to speculate the extent to which a nonbinding process like the Joint Strategic Plan would be replicable in situations where harvest allocation (e.g., establishing harvest quotas) is particularly tense, especially if the community of participants lack a history of coexistence and cooperation. Whether the Joint Strategic Plan leads to clear accomplishments and stable fijisheries should be the subject of further analysis with clear and appropriate measures. Indeed, it is outside the scope of this chapter to determine, in any normative fashion, whether fijisheries are healthy because of the plan. That said, some prima facie evidence suggests that the Joint Strategic Plan’s governance process produces good outcomes for the Great Lakes. First, the Joint Strategic Plan process has forced the disparate jurisdictions to share information, collaborate, and establish shared fijishery objectives. History has demonstrated that the absence of those activities

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led to fijishery collapse and economic loss—a point that Gallagher et al. (1943) made abundantly clear. Second, the process has led to tangible outputs such as well-articulated fijish community objectives, clear fijishery-management plans, total allowable catch quotas in Lake Erie, and solid commitments to action. Poor fijishery management, as was the case until the 1960s, lacks such outputs. Third, the fijishery itself now is worth billions of dollars annually, which certainly suggests it is being managed at least somewhat properly. What does the future hold for cooperative fijishery governance through the Joint Strategic Plan? The culture of cooperation that has developed over the past half-century, plus a strong respect among the fijishery-management community for science, certainly suggests the continuance of a robust collaborative process that benefijits the fijishery. However, the political changes that Olive and Brooks observe in the introduction to this volume—political changes that occur from time to time at all orders of government—every so often tempt more top-down approaches from executive offfijices, which tend to limit the ability of fijishery managers to think cooperatively rather than parochially (Brooks and Olive 2018). Moreover, with the exception of the establishment of joint harvest recommendations for walleye and yellow perch in Lake Erie, the Joint Strategic Plan signatories do not use the lake-committee process to set quotas. As fijishery allocation issues are likely to become more intense, and as stocking decisions become more political in the coming years, it is unclear whether the plan is capable of serving as a bulwark against strong political tides. That said, the interviews demonstrated that, on the one hand, Joint Strategic Plan members believed they must work together to develop and achieve their shared goals, while on the other hand, they were aware that much of the success of their deliberations depends on the individual will of their home jurisdiction to implement their decisions. In the Joint Strategic Plan’s case, members dismissed outright the idea that the plan binds their jurisdiction, but participants did point to the fact that it changed behavior and contained elements that heightened the chances that members will take the nonbinding agreement seriously. These elements included the ongoing consensus-based process itself and a sense of ownership in the plan that motivated the members to adhere to the plan, lessening the need for a binding agreement. A neutral third party, the Great Lakes Fishery Commission, helps keep the process moving and instills confijidence that some entity is keeping the process fair and the members true to their word. In essence, the members, through the Joint Strategic Plan, have acknowledged that some

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entity needs to be present to coordinate the process, and that a soft force is all that is needed to make it work.

NOTES We are grateful to Barry Rabe, Elizabeth Brabec, Ann Chih Lin, Denise Scheberle, and Michael Kraft for their comments on early versions of this manuscript. 1. U.S. tribes, acting through three intertribal organizations (the Chippewa-Ottawa Resource Authority, the Great Lakes Indian Fish and Wildlife Commission, and the 1854 Treaty Authority) would become involved directly starting in the late 1980s after court cases afffijirmed their management rights. Aboriginal fijisheries in Canada are managed on behalf of the First Nations by the province of Ontario and the federal government. First Nations, thus, are not formal members of the lake-committee process. 2. The lake committees under the plan are the same lake committees that were established by the Great Lakes Fishery Commission in 1965. The plan essentially changed the committees from entities designed to serve the commission to committees designed to facilitate the Joint Strategic Plan, though the committees remained “commission committees.” 3. Unlike the other lake committees, the Lake Erie Committee uses the Joint Strategic Plan process to establish an annual total allowable catch (TAC) for walleye and yellow perch, two of the lake’s top commercial and sport species. Other lake committees do not use the process directly to address allocation issues, as shared allocation is less an issue in those lakes than it is on Lake Erie. While the plan is used mostly to help the jurisdictions throughout the basin identify and work toward their shared objectives, the application of the Joint Strategic Plan to the TAC process on Lake Erie does suggest that the plan’s processes could be applied successfully to allocation-type decisions.

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Transboundary Environmental Governance and Water Pollution in the Great Lakes Region Recent Progress and Future Challenges

Carolyn Johns

T

he Great Lakes–St. Lawrence is the largest freshwater basin on earth. The massive scale of this freshwater basin is clearly impressive in images from space. The Great Lakes Basin covers a total area of 244,000 km2 (94,000 square miles), a 1,200 kilometer (745 mile) border, and 16,000 kilometers (10,000 miles) of shoreline (US EPA 2014; World Atlas 2016). This ecological system contains approximately 20 percent or one-fijifth of the world’s freshwater. Collectively, the fijive lakes and their draining river systems span two countries, two provinces, eight US states, thousands of municipalities, and hundreds of Indigenous communities. The basin supports the well-being and livelihood of millions of people and a diverse range of economic activity. Some of the world’s largest concentrations of industrial activity are located in the Great Lakes region, totaling some $4 trillion in Gross Domestic Product annually, providing 47 million jobs—if the region were a country it would rank as the third largest economy in the world (Austin et al. 2010; Kavcic 2015). In addition to signifijicant economic and agricultural uses, the basin provides water for numerous human uses such as drinking water, waste disposal, and a variety of domestic, recreational, and spiritual uses. Over the past 150 years, the number and variety of water uses has increased and changed dramatically, fundamentally altering ecology in the region (Riley

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2013). Population growth, industrialization, urbanization, and globalization have all resulted in a range of uses that cumulatively have had negative impacts on surface water, wetlands, groundwater, and all the species that rely on the lands and waters for life. Despite their large size, the Great Lakes are sensitive to the efffects of all human uses and the numerous sources of human pollution in both countries. To manage the numerous human uses in this complex ecosystem, a transboundary environmental governance regime consisting of agreements, laws, policies, programs, and implementation effforts has evolved over the past forty years. In this massive basin shared by Canada and the United States, complex governance arrangements involving numerous governments and a variety of users and stakeholders have evolved to collectively manage water quantity and quality. There have clearly been some important environmental success stories related to acid rain, toxic substances, and return of species on the brink of extinction. However, despite the existence of long-standing institutions and agreements between Canada and the United States, and some important progress in the past few years, evidence of progress in achieving policy goals of fijishable, swimmable, drinkable waters remains elusive in many communities, and signifijicant governance and implementation challenges remain. Pollution and degradation remain signifijicant environmental problems in the basin. Both enduring and new environmental challenges face the region. Harmful algal blooms that were once thought to have been addressed by policy regimes have reappeared, particularly in Lake Erie (Johns and Sproule-Jones 2015); drinking-water crises continue to plague communities; and the Lakes continue to receive human waste and toxic substances. New challenges such as floods and water-level concerns related to climate change; new energy developments related to nuclear waste, shale gas fracking, and offfshore wind; and new concerns about aquatic invasive species such as Asian carp that have found their way into Lake Ontario are all signifijicant problems that challenge the Great Lakes environmental policy and governance regime. While there have been some important accomplishments and achievements under the transboundary environmental and water governance regimes in the Great Lakes region, particularly in the past few years, both scientifijic and policy research to date indicate that the existing governance regime, designed more than forty years ago, is achieving only limited success in improving environmental outcomes. New knowledge is required to understand the complexity, capacity, and limitations of the existing transboundary regime, and new approaches are required to adapt and

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redesign policies and governance arrangements if this regional and global ecological system is going to be sustainable in the future. In this chapter, I focus on water quality and effforts to address water and environmental pollution. While recognizing that water-quantity and water-quality issues are interrelated, that somewhat distinct policy regimes have evolved over time (Boyd 2003; Johns and Thorn 2015), and that more integrated water-quality-and-quantity governance approaches are required in the future, I focus here on water-quality effforts that have been the foundation of a wide range of environmental policy effforts in the region. I assess the efffectiveness of existing governance arrangements and examine the adequacy of current approaches, using some examples to illustrate progress and enduring challenges. I also outline how new approaches are needed that embrace the complexity and adaptiveness of human and natural systems. I will highlight some of these new approaches that offfer signifijicant potential to advance both knowledge and practice relating to enduring transboundary environmental governance challenges in the region.

Great Lakes Transboundary Environmental Governance: A Brief Policy History Water policy in the Great Lakes region has a very long history, with foundations that predate both Canada and the United States as countries. Indigenous peoples across several diffferent tribes in the Great Lakes region have had governance principles based on a fundamental and spiritual respect for water for thousands of years (McGregor 2012; Norman 2015). With immigration and colonization, property and water rights became embodied in constitutional and statutory law related to both water quantity and quality (Brooks 2003). In both Canada and the United States, laws and policies related to water rights, use, and quantity preceded laws and policies for water quality, resulting in the evolution of two overlapping, yet distinct, water-policy regimes (Boyd 2003). Since the 1800s, numerous laws and court decisions in Canada and the United States have shaped the evolution of a multiple use, multilevel law and policy regime. The constitutional division of powers and asymmetrical responsibility for water as a natural resource resulted in the development of water policies related to the Great Lakes at all levels of government in both Canada and the United States—federal, state/provincial, and municipal. In addition, a regime of international soft law developed at the transboundary level.

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Waters and natural ecosystems in the Great Lakes region do not align with political boundaries and jurisdiction. However, water-use issues and conflicts resulted in the transboundary governance and management of the vast watersheds shared by Canada and the United States, which were formalized over one hundred years ago with the signing of the 1909 Boundary Waters Treaty. The treaty established the International Joint Commission (ijc) as a unique transboundary institution for the resolution of binational water disputes and cooperation to resolve issues. The ijc is headed by six commissioners (three appointed by the US president and three appointed by the Canadian prime minister). It acts on references by both governments to cooperatively address disputes over the use of water resources. Initially, the emphasis was placed on water-quantity impacts of industrial uses, hydro uses, and shipping and diversions in the Great Lakes–St. Lawrence Seaway (Heinmiller 2007; MacFarlane 2015). Much of the early transboundary water governance was based on similar interests in developing major hydro, diversion, and shipping projects and a wide range of multiple economic uses in the region. Over time, this “culture of cooperation” gradually underpinned the development of a transboundary environmental governance regime to address environmental degradation in the region (Johns and Thorn 2015). The history of pollution in the Great Lakes and the policy responses by governments in Canada and the United States are both well documented (Sproule-Jones 2002; Botts and Muldoon 2005; Johns 2009; Krantzberg and Manno 2010; Johns and Sproule-Jones 2015; Johns 2017). As early as 1912, water-pollution issues were referred to the ijc for study. While some studies in the 1940s and 1950s indicated concern about pollution impacts such as algae mats and declining fijish species (Johns and Sproule-Jones 2015), it was not until the 1970s that scientifijic research and public awareness culminated in a policy push for basin-wide effforts focused on point-source controls in the form of efffluent limits for industries and municipal sewage-treatment systems. In the early 1970s, much of the ijc’s focus was on joint fact-fijinding, building environmental scientifijic capacity in the region, and building diplomatic and bureaucratic capacity to address some very serious environmental and human health crises such as the Cuyahoga River fijire in Ohio and the Love Canal contamination in the Niagara Falls, New York, area. Combined with fijish kills, severe pollution in Lake Erie, and the loss of numerous native species, the public and political leadership mobilized for political action, both within Canada and the United States and in binational, transboundary effforts in the region. The federal governments in both

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countries worked hard within their borders to improve scientifijic knowledge and address a wide range of pollution problems. In 1971 Canada and Ontario signed the fijirst intergovernmental agreement to address environmental pollution in the Great Lakes region. A year later, in 1972, the federal governments in Canada and the United States signed the fijirst Great Lakes Water Quality Agreement (glwqa). The 1972 glwqa committed governments in Canada and the United States to take action to clean up the Lakes. It was a nonbinding, good-faith agreement between the two federal governments with some limited input from US states and the Canadian provinces of Ontario and Quebec. As science and evidence mounted about pollution and its efffects on natural and human ecosystems, the agreement was updated in 1978 to incorporate an ecosystem-based approach and more comprehensive action on toxic chemicals. In the ten years that followed, governments on both sides focused on developing domestic policies, programs, and their bureaucratic capacity to implement the agreement. However, it was clear by the late 1980s how serious the problems were. An estimated 57 million tons of liquid waste were being poured into the Great Lakes annually by its inhabitants, their industries, and their municipalities (Colborn et al. 1990), and the degraded state of ecosystems was well documented by scientists working at institutions like the National Water Resources Institute (nwri) and Canada Centre for Inland Waters (cciw). Evidence mounted that there were many watersheds sufffering from numerous sources of pollution, and that many communities required serious attention after decades of pollution. In 1987 the two national governments renewed the glwqa, with a concerted focus on the most polluted watersheds in the region. Studies by the ijc identifijied forty-three Areas of Concern (aocs) that were particularly problematic watersheds with serious pollution and governance challenges. In addition, the ijc called for a more focused approach on the state of each lake and Lakewide Management Plans (lamps). Under the 1987 glwqa, aocs were prioritized for cleanup and action due to various types of water pollution—heavy metals, pathogens, contaminated sediments, and toxic chemicals. These sites were identifijied as having numerous ecosystem and human health problems called “benefijicial use impairments.” Of the forty-three Areas of Concern, twenty-six were located entirely within the United States, twelve located entirely within Canada, and fijive shared by both countries. In each aoc, multilevel and multi-stakeholder governance institutions were established to develop and implement Remedial Action Plans (raps) through a two-stage process: stage 1 to identify the pollution problems and impaired benefijicial uses, and stage 2 to clean up and improve the human and ecological uses in these watersheds.

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Although the formal signatories to the glwqa were the federal governments in Canada and the United States, the eight US states and the Canadian provinces of Ontario and Quebec played important roles in preparing and implementing raps, complemented by input and expertise from other federal agencies as well as local governments, industries, environmental groups, and individual citizens. The ijc played a critical role in the decade leading up to the 1987 Agreement, and the new agreement reinforced the ijc’s investigative role with specifijic reporting responsibilities related to the glwqa. In efffect, the ijc was given a “standing reference” and “permanent watchdog role” in the Great Lakes (Schwartz 2005). By the 1990s, the aoc approach gradually resulted in a shift in focus from ijc-level effforts to a more decentralized approach related to raps. Although lamps were included in the glwqa, the focus on aocs and watersheds became the natural boundaries around which networks of state and societal stakeholders came together to address environmental problems in the forty-three aocs. The engagement of stakeholders from all levels of government, key government agencies, and a wide range of nongovernmental organizations and actors—including industrial and agricultural users, local environmental groups, water-system professionals, scientists, and local citizens—is well documented as a governance approach that initially mobilized considerable action (Sproule-Jones 2002; Botts and Muldoon 2005; Johns 2009; Krantzberg and Manno 2010; Greitens et al. 2012). Designers of the 1987 glwqa and aoc approach hoped the rap process would also increase engagement of some of the critical industrial and agricultural water users and polluters who had not become engaged after the 1972 Agreement. Some have even characterized this period by a “lack of industry attention reflecting the sector’s limited participation in the Great Lakes community in the fijirst two decades of the agreement’s history” (Botts and Muldoon 2005, 101). Although the early 1990s saw the engagement of some industry associations such as the Council of Great Lakes Industries Association and other industry-specifijic groups related to shipping and fijishing, and there was some increased activity by industry associations, particularly related to the toxic chemicals and the debate about “virtual elimination,” the involvement of industry and agriculture was a governance challenge. In many aocs, industries were not active participants (Sproule-Jones 2002; Greitens et al. 2012). Even more problematic was that by the late 1990s, the general sense of community between scientists, policy implementers, and stakeholder groups in the Great Lakes began to decline (Botts and Muldoon 2005), and government attention shifted to economic recession, debts, and defijicits.

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At the same time, by the 1990s there were clearly some success stories, such as reductions in acid rain, declines in release of several toxic chemicals, sea lamprey control, and the return of species on the brink of extinction. The presence of some of the most toxic chemicals, including PCBs and dioxins, dropped because of point-source controls (Botts and Muldoon 2005), and some habitat restoration and protection effforts improved the nearshore and water quality. By this time, the US Environmental Protection Agency (epa) and state governments began to scientifijically document that non-point sources constituted the major causes of water pollution in many watersheds (US EPA 1995), and a shift away from pointsource regulatory instruments to voluntary, market-based instruments became evident, both to try to address non-point sources more efffectively and as a result of an ideological shift in all political jurisdictions in the region (Johns 2000). Despite policy goals of “virtual elimination” and new agreements like the 1997 Great Lakes Binational Toxics Strategy being signed in this period, implementation and policy effforts waned. By the end of the 1990s the Great Lakes fell offf the agenda of governments in Canada and the United States, and a period of public indiffference was evident (Botts and Muldoon 2005). Even signifijicant water-pollution events—such as those in Milwaukee, Wisconsin, in 1993, and Walkerton, Ontario, in 2000, where people died and became seriously ill from drinking contaminated water—did not generate a public or policy response in connection with broader water-quality issues in the Great Lakes (Johns 2009). Environmental groups in the region noted that hundreds of thousands of tons of chemicals continued to be released, and serious concerns remained about contaminants, beach closings, new invasive species, and fijish contamination. Although the ijc continued to identify issues that were becoming more pressing, such as water infrastructure, chemical use, habitat and wetland loss, invasive species, and uncertainty relating to the impacts of climate change, action and effforts slowed as the focus shifted to the more difffijicult stage 2 implementation in the forty-three aocs, and governments became focused on budget and defijicit reductions. This was particularly the case in Canada, despite the relatively higher status the ijc holds in the Canadian policy community, compared to the US policy community. The ijc’s status began to decline in the broader context of waning domestic and transboundary effforts and the growth of other institutions and processes for management of cross-border environmental issues. The lack of transboundary policy efffort, and the impact and concern surrounding domestic-policy efffort were particularly evident in the slow progress cleaning

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up the most polluted sites on the Great Lakes (Sproule-Jones 2002). Some twenty years later only three aocs had been delisted (two in Canada and one in the United States); over two-thirds of the basin’s original wetlands had been lost, and miles of rivers and shoreline remained degraded (GLU 2007). The progress in the remaining aocs and many other watersheds in the Great Lakes region remained slow and pollution continued. Several State of the Great Lakes (solec) reports released every two years between 1994 and 2008 indicated that the increasing number and imbalance of water uses continued to have negative impacts on water quality, and many of the indicators of ecological health were mixed, uncertain, or deteriorating. In the early 2000s, several new and reemerging issues have surfaced in the Great Lakes, including new evidence of pharmaceutical chemicals; the enduring problem of the importation of invasive species, the plateaued progress in addressing the “dead zone” in Lake Erie; and increasing concern about climate change and water levels. Although US legislation required reporting and it continued, the Canadian Senate and the commissioner of the Environment and Sustainable Development were becoming vocal that effforts and reporting had declined and undermined the ijc’s role in holding “the Parties” (the Canadian and US federal governments led by the US epa and Environment Canada) accountable for implementation of the agreement (Canada 2001). Although capacity and effforts remained comparatively higher in the United States than in Canada, most Great Lakes watersheds in the United States were still not meeting water-quality objectives. Some forty years after the fijirst glwqa and the implementation of various policy initiatives in the United States and Canada, basic water-quality objectives of swimmable, drinkable, fijishable waters had not been met, and forty of the aocs remained the most polluted sites in the region (SOLEC 2008). It wasn’t until the middle of the decade (2000–2010) that the Great Lakes were placed back on the policy agenda in the United States. The US federal government passed the Great Lakes Legacy Act in 2002, and appropriations were authorized from 2004 to 2008 to focus on cleanup and contaminated sediments. Based on partnerships with other levels of government and the private sector, this statute targeted sites for cleanup and sustained effforts in the United States when there were no similar investments and effforts on the Canadian side. For almost a decade the Canadian and Ontario governments were not focused on the Great Lakes, and the Canada-Ontario agreements either lapsed or were not funded during this period. Around the same time, new issues related to climate change were being documented by the ijc, and the fragility of the nearshore was highlighted as a key issue in a

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2006 report by more than 250 Great Lakes scientists (Michigan Sea Grant 2006). Although the ijc’s capacity and role had diminished in the previous decade, the ijc did initiate a public consultation on the glwqa and submitted a report to the federal governments in Canada and the United States expressing concerns about the lack of progress, reporting, accountability, and its own ability to fulfijill its role: Over the years, however, the Commission’s ability to carry out its mandate has been limited because, among other things, the governments have not followed many of the reporting requirements set out in the Agreement and have not provided all the information the Commission and the public require to evaluate progress. Shortcomings in monitoring and reporting need to be addressed in order for the Commission to be able to carry out its responsibilities more efffectively. (IJC 2006, 6)

The ijc was calling for a new “action-oriented” agreement with “clear accountability provisions,” a binational steering committee, more public involvement, and “requisite resources” (IJC 2006). It also asked for “a reference in the new Agreement, pursuant to Article IX of the Boundary Waters Treaty, that gives a more clear and meaningful role to the Commission in implementing the Agreement by: evaluating progress through Commission assessments, reports and public consultations; identifying emerging issues and suggesting solutions; and facilitating collaboration among all Great Lakes basin interests” (IJC 2006, 2). There seemed to be tension emerging between the ijc and the parties, and a desire for role clarifijication in the new agreement. By 2007–2008 there was clear momentum for a new agreement. Soon after the election of President Obama, a major Great Lakes environment and economy efffort was announced. The Great Lakes Restoration Initiative (glri) invested $500 million (2010–2014) and created a well-funded program for state and societal actors to reengage in Great Lakes effforts. Amidst the severe economic recession in 2008–2009, glri was announced as good economic and environmental policy in one of the most important economic regions in North America. Combined with calls from environmental groups and activists, a series of reviews and reports leading up to the ijc’s 100th anniversary, and the fact that the agreement had not been updated in twenty years, there was growing momentum to update the 1987 agreement. In 2009 it was also announced by US Secretary of State Hillary Clinton and Canadian Minister of Foreign Afffairs Lawrence Cannon that the United States and Canada would renegotiate the Great Lakes Water Quality Agreement, last signed in 1987,

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with considerable input from the US epa and Environment Canada. Reports on the State of the Great Lakes and the glwqa during this time reinforced the need for action (SOLEC 2011; IJC 2011). After three years of renegotiation, the new glwqa was signed in 2012, renewing interest in policy goals and implementation effforts.

The 2012 Great Lakes Water Quality Agreement: New Approaches and Tools? Although not a high-profijile political event when fijinally announced, the newly amended 2012 glwqa was the outcome of a signifijicant amount of work and negotiation by “the Parties” led by the US epa and Environment Canada. It also involved signifijicantly more consultation with the states and provinces than previous agreements (Johns and Thorn 2015). However, the federal governments remained the central actors in determining the scope and approach in the new agreement with the ijc’s capacity and role confijined to science and public reporting. There was a consensus among policymakers that the existing agreement and approach was still sound, that new issues such as climate change and groundwater that were not part of the 1987 glwqa needed to be added, and a partnership approach needed to be more central in implementation to address the “implementation defijicit” that existed despite numerous laws and institutions with policy mandates in the Great Lakes (McLaughlin and Krantzberg 2011). There was some recognition that federal and subnational governments could not achieve the objectives in the agreement alone. Despite this, there were criticisms from environmental and other groups that they were not consulted or engaged in the renegotiation process, and that their input into the ijc’s review was only partially reflected in the fijinal agreement that the parties negotiated and signed in 2012. The new agreement reflected a binational consensus that existing policies and institutions are sufffijicient and that the focus needs to be on improving the performance of existing transboundary, national, subnational, and watershed-based policies and institutions to improve outcomes. No new legislation was required on either side of the basin. Similar to the previous glwqa, the document itself is organized as a series of articles and annexes. The articles describe the general and specifijic objectives of the agreement, defijine principles and approaches, and lay out the structure and process for implementation (Binational.net 2015). The most action-oriented text is outlined in the ten issue-focused annexes. New annexes were

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added for climate change and groundwater, and an annex on science was added to ensure the sustained focus on science and ecosystem monitoring. As stated by the parties: The 2012 Agreement updates approaches to science and management and reafffijirms existing commitments to: restore degraded Areas of Concern; address the threats posed by excess nutrients, chemicals of mutual concern, and discharges from vessels; and undertake vital scientifijic coordination and research. In addition, the new Agreement includes new commitments to address other signifijicant challenges to Great Lakes water quality, including threats from aquatic invasive species and climate change, as well as the loss of habitat and species. (Progress Report of the Parties 2016)

At the transboundary scale, the ijc plays a key oversight and progress-reporting role, and the federal governments in both countries are responsible for leadership and implementation. No new binational institutions were established, but the Great Lakes Binational Executive Committee was replaced with the Great Lakes Executive Committee (glec), which was redesigned to lead and coordinate policy-implementation effforts across all levels of government, Indigenous and private-sector organizations, ngos, and other key actors. The binational glec focused on engaging transboundary and domestic agencies and actors in implementing programs and measures related to the glwqa and its annexes. In the United States, the US epa’s Great Lakes National Program Offfijice is the lead agency, and the glri has been the main program to achieve glwqa objectives through intergovernmental and partnership effforts. In Canada, Environment Canada and its Great Lakes Program Offfijice, in collaboration with several other federal departments, provides the framework for working on Canada’s commitments in the glwqa. The Canada-Ontario Agreement is also a cornerstone of Great Lakes water-policy work and was renegotiated and signed in December 2014 for a fijive-year period. Implementation of the new agreement began in 2013, and the fijirst three years since the new agreement was signed indicate that some signifijicant progress has been made. The establishment of the action-oriented glec is perhaps the most notable accomplishment. The glec meets twice per year (alternating meetings in Canada and the United States) and has organized transboundary implementation and engagement effforts for each of the ten annexes. It provides the leadership and regular progress tracking required to mobilize multilevel and transboundary effforts.

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Led by the US epa and Environment Canada and Climate Change, it has been an important institution with both formal and informal dimensions that are critical for coordinating and moving actions forward on the glwqa. The glec structures implementation around the general and specifijic objectives in the agreement and its ten annexes. Implementers meet every six months, which allows for coordinated effforts and regular reporting. Using this approach, the achievements of the glec and related committees since the start of implementation in 2013 are signifijicant. Signs of Progress Progress on implementation of the glwqa has been an ongoing concern in the context of shifting political, economic, social, and environmental priorities. One of the most cited indicators of a lack of progress related to the glwqa has been the very slow progress in cleaning up and delisting aocs. By 2006 only three had been delisted, and prior to the implementation of the new agreement in 2013 only four had been delisted (three in Canada and one in the United States). In addition, Canada had also designated two as “Areas in Recovery” prior to 2013 to signify that all remedial actions had been completed, and monitoring of natural recovery was in progress (this designation has not been used since the new agreement was signed). Concerted effforts on the US side under the glri have resulted in three more aocs being delisted, and fijive more have completed necessary remedial actions and are being monitored to be delisted (US EPA, ECCC 2016). It is clear that signifijicant and targeted investments through the glri have resulted in signifijicant progress. On the Canadian side, all required actions have been completed in one more aoc, and major effforts are underway to remediate contaminated sediment in the Hamilton Harbour aoc. None of the binational aocs have been delisted and they continue to face signifijicant governance challenges (Sproule-Jones 2002). In addition to this progress, Canada aims to complete remedial actions in four additional aocs by 2019, and the United States expects to complete actions necessary for delisting of an additional nine aocs by 2019 (US EPA, ECCC 2016). The other front where there was very minimal progress between 1987 and the 2012 agreement was Lakewide Management Plans (lamps). Since 2013 there has been a new efffort to make progress on lamps, starting with the publication of annual reports to document the challenges and accomplishments in each of the lakes. In 2014 a schedule for developing detailed management plans was confijirmed, and both

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Lake Ecosystem Objectives (leos) and the State of the Great Lakes Indicators were developed for each lake. Signifijicant progress has been made on the Lake Superior lamp with the help of more than thirty science-based government agencies and involvement from over fijifty organizations, representing thousands of people and many diverse interests. The Lake Superior lamp was approved in June 2016, making it the fijirst lamp to be completed under the 2012 glwqa. Binational effforts have also focused on Lake Erie given the major nutrient-management and non-point-source pollution governance and policy problems in that Lake (Johns and Sproule-Jones 2015). In response to the largest algae bloom in history in 2011, the ijc engaged leading scientists and issued a special report making recommendations to address pollution in Lake Erie (IJC 2014). A major drinking-water pollution event linked to algae in Toledo, Ohio, in 2014 put more pressure on the governments to act. The parties worked hard to develop and set binational phosphorus-load-reduction targets for the western and central parts of the lake, which were adopted in 2016 and have “begun to develop Domestic Action Plans to achieve the 40% reduction” (US EPA, ECCC 2016). Current action plans are under review in the United States and Canada with implementation expected in 2018. A binational team has also been formed to develop a draft suite of leos for Lake Erie and prioritize a lamp for this lake in the next cycle. leos and lamps for the other lakes will also be developed during the next reporting cycle (2017 to 2019). In addition to these lake-specifijic effforts, the parties oversaw the development and implementation of lakewide habitat and species protection-and-restoration conservation strategies for all fijive of the Great Lakes, and have made signifijicant progress in developing a “Nearshore Framework,” which provides the foundation for systematic and integrated data collection to assess nearshore health, cumulative impacts, and stresses. The framework relates to lamps and aocs, but places a particular focus on nearshore waters and land uses. The Nearshore Framework was approved in 2016, and the parties will begin pilot-testing implementation of the framework in Lake Erie in 2017 (US EPA, ECCC 2016). In addition to these important initiatives, the parties also made some progress related to the new annexes on groundwater and climate change by funding two important science reports: Groundwater Science Relevant to the Great Lakes Water Quality Agreement: A Status Report (2015), which summarizes the relevant and available Great Lakes groundwater science and advances understanding of the efffects of groundwater on Great Lakes water quality, and The State of Climate Change Science in the Great Lakes Basin: A Focus on Climatological, Hydrologic and

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Ecological Efffects (2016), which synthesizes the state of climate-change impacts in the Great Lakes Basin and identifijies key knowledge gaps. Given the important emphasis placed on stakeholder engagement in the new agreement, there has also been a concerted efffort to engage all levels of government, Indigenous peoples and communities, and key stakeholders. Public engagement continues to be a high priority for the ijc, and this has been an explicit part of the glec committees, annex subcommittees, task teams, and working groups. Engaging Indigenous peoples and communities has been a particular priority in the region, as these important peoples have been marginalized from Great Lakes governance in the past (Norman 2015; Norman and Bakker 2016). In Ontario alone, there are one hundred First Nations communities in the basin, many in close proximity to the nearshore. Text has been added to the Canada-Ontario Agreement making this a specifijic priority for the federal and provincial governments to work together to engage Indigenous peoples and communities and better integrate Indigenous traditional ecological knowledge. There has also been a specifijic focus on integration and capacity building related to the annexes. For example, the frontline and rapid response systems that have been developed with regard to invasive species have tried to engage Indigenous peoples given their ecological knowledge and expertise. Finally, there has been signifijicant progress made in monitoring progress and reporting. In the decade prior to the signing of the new glwqa, binational progress and reporting had virtually stopped. The last binational State of the Lakes Ecosystem Conference (solec) report in 2011 outlined that progress had plateaued and declined on several indicators. An ijc report focusing on a twenty-fijive-year assessment of scientifijic and ecosystem indicators highlights some successes, but also many outstanding challenges (IJC 2011). The new agreement includes a commitment for Canada and the United States to report on progress every three years to document domestic and binational actions. As described in Article 7, the ijc is tasked with reviewing progress, producing a triennial report, and seeking public input on progress. Accountability and progress reporting have become much more central to implementation—both in terms of public forums and progress reports. In terms of public forums, the ijc has held regular forums, including a large public forum in 2013, and webinars and social media have also supplemented traditional conferences, events, and meetings. Given the sheer number of organizations and existing forums in the Great Lakes region, there was also a commitment in the glwqa to convening “summits” between the parties and other Great Lakes–related

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commissions, including the ijc, the Great Lakes Commission, and the Great Lakes Fishery Commission. In addition, the ngo community has established Great Lakes Week and the Great Lakes Restoration Conference, which also have a progress-reporting focus. The glec biannual meetings, alternating between Canada and the United States, have also become important public forums for representatives from governments at all levels, other Great Lakes commissions and organizations such as the Great Lakes–St. Lawrence Cities Initiative, and numerous stakeholders with “observer” status. The most recent of these events featuring progress reporting was the Great Lakes Public Forum, a three-day event in October 2016. In addition to biannual glec meetings and public forums every three years, there are now three important progress reports: the Progress Report of the Parties, which covers binational and domestic actions related to the implementation of the agreement; the ijc’s Triennial Report, and the State of the Lakes Report, which was presented at the Great Lakes Forum in October 2016 and was released in 2017. Both the ijc and the parties have spent considerable time and efffort developing key indicators for reporting purposes. The ijc started with some work on performance measures in its 2011 report (IJC 2011) by including performance measures for aocs and beaches, commissioning a report in 2013 exploring the idea of gleem—Great Lakes Environmental Efffectiveness Metrics (Hill and Engle 2013), organizing an indicators workshop in 2014 where experts and stakeholders were brought together to discuss the existing ecosystem health, human health, response, and program efffectiveness indicators. In 2015 the ijc tested the gleem approach and method related to two general objectives in the glwqa (beaches and invasive species) using surveys of experts and stakeholders in the region to assess indicators’ progress and achievements (Johns et al. 2015). At the same time, the parties also worked on updating and revising the suite of ecosystem indicators previously used in solec reports to better align indicators with the nine general objectives of the 2012 glwqa, using nine key indicators as the basis of collecting and aggregating relevant scientifijic information. Content from the new State of the Great Lakes Report was presented at the Great Lakes Public Forum in October 2016, and it will be an impressive document when released in 2017. The report focuses on nine indicators and subindicators to assess progress over time and “how the lakes are responding to management actions,” including baseline data basin-wide and lake level data to report on current status (good, fair, poor, undetermined) and trends over time (improving, unchanging, deteriorating, undetermined).

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TABLE 1. State of the Great Lakes 2017 INDICATOR

STATUS

TREND

Climate Change and Watersheds Habitat and Species Invasive Species Nutrients and Algae Groundwater Toxic Chemicals Fish Consumption Drinking Water Beaches

Fair Fair Poor Fair Fair Fair Fair Good Fair-Good

Unchanging Unchanging Deteriorating Unchanging-Deteriorating Undetermined Unchanging-Improving Unchanging-Improving Unchanging Unchanging

Source: Environment and Climate Change Canada and US Environmental Protection Agency 2017b.

The overall results in table 1 were characterized as “fair and unchanging” based on the aggregation of best available science for each of the nine indicators and subindicators. However, the amount of scientifijic data underpinning each indicator varies signifijicantly. For example, habitat and species has sixteen subindicators, and groundwater just one subindicator. Nonetheless, the report aggregates an impressive amount of scientifijic evidence, and results were reported for each lake, where data was available. It was clear that across the nine indicators, Lake Erie and Lake Ontario—with the most population density, urban development, agricultural development, and transportation density—were the lakes with the most signifijicant environmental challenges. However, there was no indication if this overall assessment is satisfactory, how this information and policy tool is used in terms of policymaking or setting priorities, and what this report says about the state of scientifijic capacity in the region. What the presentation does indicate is that there is signifijicant room for improvement, there is value in using indicators as part of public reporting, and the total investment in the science behind this efffort is both necessary and impressive. In summary, the 2012 glwqa reflects a binational consensus that existing laws, policies, and institutions are sufffijicient, and that the focus needs to be on improving the performance of both transboundary and domestic implementation to improve outcomes and achieve better results than those achieved in the last forty years. As outlined in the section above, the governance regime and policies related to pollution and environmental problems in the region have evolved quite signifijicantly

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over the past forty years and some progress has been made, most notably since the new agreement was signed in 2012. The new agreement itself incorporates new policy priorities and annexes, a commitment to engagement, and a commitment to progress reporting. There is also a new emphasis on accountability, improving governance capacity, and increasing collaboration with other levels of government, key stakeholders, and the public as policymakers realize that governments alone cannot collectively manage this complex system. However, there are some important policy issues and governance shortcomings that need to be considered to ensure that the signifijicant progress that has been made in the past three years continues and the policy goals and objectives in the glwqa are achieved. Findings from three decades of policy research offfer some important insights related to governance challenges and evaluating transboundary progress in the basin.

Insights from Governance and Policy Research to Date Given the signifijicance of the Great Lakes region in Canada and the United States, it is not surprising that the region has sustained the attention of social-science and policy scholars for some time. Scholars from a number of fijields, including history, law, and public policy, have focused on socioeconomic dimensions, policies, political institutions, and governance challenges in the region. In this section, I review some of the insights from policy research in the region to highlight some of the enduring governance challenges that need to be more fully understood if the environmental policy regime is to adapt and produce better transboundary environmental outcomes in the future. First, it is very clear that transboundary institutions such as the ijc, and formal binational agreements like the glwqa have underpinned the signifijicant development of the environmental governance regime in the region. Indeed, this governance infrastructure is held out as a model for other complex transboundary environment and water governance systems around the world (Linton and Hall 2013). It is also clear that transboundary and domestic policy regimes are part of a broader context and have been influenced by important social and economic forces in the region, such as North American integration, economic cycles, and the political mandates of diffferent governments over time (Clarkson 2008). In terms of assessing progress on transboundary environmental governance, much of the policy scholarship over the past few decades has focused on evaluating

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the central role of institutions, international “soft” law, legislation in both jurisdictions, federalism, policy-implementation arrangements, and policy capacity in both countries as key factors in explaining transboundary outcomes and environmental performance in the region (Hartig and Zarrell 1992; Rabe 1996; Sproule-Jones 2002; Botts and Muldoon 2005; Johns 2002; Johns 2009; Johns 2010). There are also distinct, yet interrelated institutions focused on water quantity (Heinmiller 2007; Johns and Thorn 2015). Research also provides evidence that by focusing on “transboundary governance capacity” across scales and a number of diffferent environmental policy areas in the region, there is clear evidence that institutions have signifijicant implications related to transboundary interactions, collaboration, pooling resources, compliance, and outcomes (VanNijnatten et al. 2016). Policy research has also clearly indicated that despite the fact that the Great Lakes constitute a shared basin with transboundary governance institutions, two distinct domestic-policy regimes have evolved to address water pollution, and one cannot fully assess the policy response at the transboundary level without also understanding the policy regimes at the national and subnational levels in Canada and the United States (Johns 2009; Johns 2010). Comparative policy research indicates that the two distinct approaches and diffferent “policy styles” have evolved when it comes to environmental policy more broadly (Hoberg 1992; Howlett 1994), and that comparatively, environmental and water policy in the US federal system has been more centralized and concerted (Hoberg 1992 Johns 2000; Johns 2009; Johns 2010). There is also some evidence that policy effforts and capacity in the United States in terms of legislation and programs related to Great Lakes effforts has been comparatively high. The US epa and subnational governments and agencies have developed substantial capacity in the areas of regional environmental science, intergovernmental effforts, and reporting on water quality (Johns 2000). Some attribute this capacity to more adversarial policymaking focused on best-available technologies and reporting, and a demand for scientifijic information by nongovernmental actors (Bocking 2006). It is also clear from developments in the past few years that federal programs under the Great Lakes Legacy Act and glri have had signifijicant impact on policy effforts and implementation in the Great Lakes region. In Canada, the federal government, while offfijicially adopting similar goals for the Great Lakes as signatories on the glwqa, does not have any “hard law” or federal statutes devoted to articulating goals and designating resources related to transboundary effforts or national water policy. Federal involvement and investment in Great Lakes effforts was by comparison very low in the two decades leading up to

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the new glwqa (Johns 2009; Johns 2010). In the past, science was central to Environment Canada’s role in the Great Lakes through the nwri, cciw, and university partnerships, but the policy and technical capacity of Canada’s lead department is more limited than the US epa’s. The federal government’s capacity to report on the state of waters in Canada has declined, and there is less intergovernmental collaboration on environmental science. There are some indications that some of this capacity has been built outside government agencies through signifijicant reinvestments in university-based environmental and water-science research related to Great Lakes issues. There is also some evidence that the Canada-Ontario Agreement (2014–2019) has resulted in reinvestments and collaborative approaches related to Lake Erie, groundwater, climate-change science, and other issues. Nonetheless, comparative policy capacity and scientifijic capacity at the federal level in Canada are important dimensions that need to be considered when assessing progress on transboundary environment and water governance in the region. In addition to policy and scientifijic capacity at the federal level, policy research indicates that political and bureaucratic leadership, policy capacity, and resource allocations at the subnational level also partially explain the plateauing and declining levels of progress in water policy and Great Lakes progress in the two decades before the 2012 Agreement was signed (Rabe 1996; Botts and Muldoon 2005; Johns 2009; Johns 2010). There is clear evidence that subnational actors are increasingly engaged in transboundary environmental-policy networks and cross-border regional activities (Rabe and Brooks 2010; VanNijnatten 2006; Friedman and Foster 2011; Johns and Thorn 2015), and the fijive US states and the Canadian provinces of Ontario and Quebec are key jurisdictions with numerous cross-border linkages and initiatives through the Great Lakes Commission, the Great Lakes Fisheries Commission (Gaden 2016), and a wide range of issue networks. However, engagement of states and provinces seems to ebb and flow. For example, the province of Ontario, despite being inwardly focused for almost a decade after the Walkerton tragedy (Johns 2008), has had an aggressive Great Lakes policy agenda in the past few years and recently passed the Great Lakes Protection Act in 2015. The signing of a new fijive-year Canada-Ontario Agreement has also been signifijicant in focusing on implementation, and engagement of important partners in implementation effforts. Policy research to date also indicates that engagement of all levels of government and other key stakeholders has been a critical part of engagement in aocs (Sproule-Jones 2002; Greitens et al. 2012) and an important part of addressing the “implementation defijicit” (McLaughlin and Krantzberg 2011). Although there

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has not been any recent research on the capacity and signifijicance of the ngo community in the region, there are numerous environmental and citizens’ groups with Great Lakes mandates and agendas, and previous research indicates that the sustained engagement and capacity of ngos is critical. Previous research also indicates that engagement of Canadian environmental groups in Great Lakes effforts has been comparatively low, making it difffijicult for environmental organizations to form efffective cross-border alliances (Botts and Muldoon 2005). The United States continues to have several influential and well-resourced ngos active in the region, such as the Great Lakes Protection Fund and the Alliance for the Great Lakes. US ngos have very active agendas focused on Great Lakes issues, but there are no Canadian equivalents. Although ngos like Lake Ontario Waterkeepers do have US afffijiliates, concerns exist about engagement of Canadian and fully binational ngos in the region. Shortly after the 2012 Agreement was signed, Great Lakes United, the only binational citizen-focused advocacy group, founded in 1982, was disbanded. In addition to engagement of ngos, there are also some important insights from policy research about the engagement of other groups such as industry and agriculture. One line of research-related engagement and policy actors in the region focuses on “vested interests” and management of the Great Lakes as a common-pool resource. This line of inquiry focuses on historical users with embedded rights in law and policy that make altering the rules of the game a fundamental problem. Various “rules” have evolved over time related to evolving uses in the basin. Diffferent patterns of rules exist for commercial fijishing, shipping, and hydroelectric generation with “nests of rules for diffferent resource uses” (Sproule-Jones et al. 2008). Despite multi-stakeholder governance arrangements, there is little incentive for various users to take cumulative impacts into account, and little incentive to take other uses and users into account, particularly those outside their perceived borders. Explicit effforts to induce collaborations of diverse interests through the aoc and rap process have had very limited success (Sproule-Jones 2002; Sproule-Jones et al. 2008). This research indicates that governance regimes need to be reformed to engage these critical water users in order to fundamentally rebalance water uses in the basin and focus on more signifijicant behavioral change of key water users and citizens. Extending this line of policy research are those who focus on the lack of engagement of diverse nongovernmental organizations, industry, Indigenous peoples, and the general public, and “engaging the full regional citizenry” (Krantzberg et al. 2015). In the past few decades there have been growing opportunities for public

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engagement in the implementation of environmental policies at the international, national, and local levels—particularly related to increasing accountability of the two federal governments in the Great Lakes (Hall 2007). In theory this has helped create a more informed and engaged citizenry and an increased role for public engagement on both sides of the border, but empirical research indicates there are serious engagement challenges. Research on aocs and raps indicates that local governments and citizens were engaged in effforts to develop raps, but far less in implementation, monitoring, and accountability effforts (Hartig and Zarrell 1992; Sproule-Jones 2002). Research shows there has also been a greater percentage of subnational, local government, and stakeholder participation in aocs that became delisted, and engagement varies by country, with 78.5 percent of stakeholders in Canadian aocs being government actors compared to only 49 percent in US aocs (Greitens et al. 2012). Although there is evidence that the ijc’s review of the glwqa reengaged both state and societal stakeholders in the middle of the fijirst decade of the century (Botts and Muldoon 2005), the three-year renegotiation of the agreement has been criticized for the lack of authentic engagement of stakeholders (McLaughlin and Krantzberg 2011). Recent engagement through the glec and annex committees has clearly made some strides in terms of engaging experts and key stakeholders, but has been criticized for engaging the “usual suspects.” Two groups that research indicates have not been engaged are Indigenous peoples and citizens in the region. The new glwqa clearly states that engaging Indigenous peoples and communities is a priority. The Canada-Ontario Agreement also articulates this priority. There have been small indications that some progress has been made in terms of Indigenous participation in the glec and related structures, and there is some tacit recognition in the Great Lakes practitioner discourse that a broader range of knowledge, values, and ethics, such as those embodied in traditional ecological knowledge, can help governance systems become more adaptive (McGregor 2012). However, there are long-standing issues related to engagement of diverse Indigenous peoples in the region that can only be overcome with signifijicant changes in values and Indigenous-led, postcolonial governance approaches (Norman 2015; Norman and Bakker 2016) that have to be part of broader shifts in values, a new water ethic, and changes in citizen awareness and engagement in the region. Recent research on citizen awareness and engagement indicates that the vast majority of citizens use and value the Great Lakes but do not connect the abstract value of this vast ecological resource to behavioral change. A 2013 basin-wide

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public-opinion survey administered shortly after implementation of the new agreement indicated that only 39 percent believe that the Lakes are in better health today than they were twenty years ago, with 61 percent indicating that they feel the Lakes are in worse shape or “don’t know.” A majority of residents (73 percent) rank pollution and water quality as one of their top three concerns in the region. There is near-unanimous agreement among Canadian and US residents that responsibility for protecting the Great Lakes should be widely shared by all levels of government, business and industry, and individual citizens, with 70 percent expressing that “a great deal of responsibility” lies with governments at all levels, and the private sector and a smaller majority (56 percent) saying that individual citizens have “a great deal of responsibility,” with some 60 percent of residents surveyed feeling their personal actions impact the Lakes’ health (Maack et al. 2014). Public-opinion research commissioned by the ijc in 2015 found similar results, yet indicated that there is some uncertainty as to whether the environmental health of the Great Lakes is getting better (18 percent), worse (26 percent) or staying the same (30 percent). A strong majority (74 percent) indicated it is important that Canada and the United States cooperate on Great Lakes water issues, and 78 percent feel individuals play an important role in protecting the Lakes. However, when asked specifijically what they could do to protect the Lakes, 30 percent were unsure (IJC 2016). While surveys of Great Lakes residents indicate that they value the Lakes and have concerns about environmental issues in the region, in the context of broader economic and social issues, public-opinion research clearly indicates that water is not at the top of either citizen or political agendas (RBC 2016). Citizen awareness, values, and behaviors related to the Great Lakes need to be placed in this broader context. In summary, policy research to date clearly highlights some of the strengths of the transboundary environmental governance regime in the Great Lakes region, but also the shortcomings and challenges associated with existing governance arrangements and engagement. At the recent Great Lakes Public Forum in Toronto in October 2016, the keynote speaker, Lieutenant Governor of Ontario Elizabeth Dowdeswell, spoke about Indigenous perspectives on water, what the Lakes have provided and enabled, and the region as a living laboratory for environmental stewardship. She praised the long-standing and efffective collaboration in the region, but called for constant attention to governance, fresh perspectives, genuine citizen engagement, and the need to build capacity for foresight in order to reform institutions that are facing “a midlife crisis.”

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Need for New Approaches and Tools? Policy research to date has revealed some of the shortcomings of existing governance arrangements and the need for existing institutions to adapt in order to improve transboundary environmental governance outcomes. Although signifijicant progress has been made, particularly in the past three years, the overall prognosis of “fair and unchanging” indicates current policy, and governance regimes face signifijicant implementation and adaptation challenges. While institutional and scientifijic capacity are generally high, and considerable investments have been made by governments at all levels, new approaches and new tools are required to better understand and improve environmental governance in the region. For some time it has been recognized that the Great Lakes region is a complex system. In the past, the policy and organizational complexity of the structure and functioning of Great Lakes governance made it difffijicult to fully comprehend (Francis 1987; Caldwell 1994); however, new research approaches, tools, and technologies related to transboundary water governance, adaptive governance, environmental regime efffectiveness, indicators, and network analysis offfer signifijicant potential for both advancing our knowledge of this complex transboundary governance system and improving outcomes in the future. Environmental and water governance research around the world has recognized for some time that multilevel, multi-actor, and network approaches are required to conceptualize and address transboundary water resource issues (Bressers et al. 1995; Blatter and Ingram 2001; Young 2002). These multilevel approaches have been used to understand and assess transboundary environmental governance in the Great Lakes region (Sproule-Jones 2002; Johns 2009; Rabe and Brooks 2010). In addition to these policy and institutional-focused approaches, a large and growing body of interdisciplinary scholarly and practitioner literature flowing from resilience theory (Holling 1978), socio-ecological systems (ses), integrated water-resource management (iwrm), and adaptive management (am) that embraces both scale and complexity has also developed (Cash et al. 2006; Plummer and Armitage 2007; Armitage 2008; Huitema et al. 2009; Engle 2011; Plummer et al. 2013) but has only been applied in the abstract in the Great Lakes region (Regier 1988). Bringing these two approaches together, along with the substantial literatures on environmental-regime efffectiveness and water governance, offfers signifijicant potential for advancing both scholarship and practice in the Great Lakes region. Although “adaptive management” and “adaptive governance” have been part

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of the discourse in the region for several years, these concepts are only starting to become part of governance and policy approaches. The glwqa itself includes language related to priorities that are more anticipatory and embrace adaptation: “The 2012 glwqa includes measures to prevent environmental threats before they cause ecological harm, while continuing to support work on existing threats” (Binational.net 2016). There is some recognition that adaptation approaches are required, and indeed there is some transboundary work related to adaptation underway, primarily by those involved with the annex on climate change. However, addressing adaptation challenges in concrete ways requires a policy regime that is dynamic and future-oriented, and the existing policy and governance regime has been predominantly focused on cleaning up pollution from the past and existing threats. Adapting existing policies and institutions requires some capacity for anticipating and responding to future environmental challenges. This requires a new approach. Adaptive governance “is an evolving research framework for analyzing the social, institutional, economical and ecological foundations of multilevel governance modes that are successful in building resilience for the vast challenges posed by global change and complex socio-ecological systems” (Stockholm Resilience Centre 2013) and part of broader effforts to measure governance (Fukuyama 2013; Chafffijin et al. 2014). “Adaptive capacity” is a concept used to assess “the ability of a governance system to fijirst alter processes and, if required, transform structural elements in order to better cope with changes in society or the natural environment” (Pahl-Wostl 2010, 572), be creative and flexible (Engle 2011), improve governance across scales (Hill and Engle 2013), function better in cross-sector collaborations based on reciprocal trust and mutual accountability and improve practice and outcomes (Betinni et al. 2015; de Boer et al. 2016). Although some scholars question the practical translation of such theory into real-world implementation (Medema et al. 2008), the Great Lakes region is an excellent laboratory to examine adaptive governance in an applied context, particularly when an emphasis is placed on building on existing scholarship grounded in governance theory, institutional theory, and multiscale analysis (Ostrom 2009). There is a large and growing literature on transboundary water governance that focuses on new approaches through “boundary spanning” strategies (Cash et al. 2006; Bressers and Lulof 2010), “connective capacity” (Edelenbos 2013), and the water governance community and networks at various scales (Jägerskog and Zeitoun 2009; Earle et al. 2010; Ingold et al. 2016), and some of this work has

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focused on the Great Lakes region (de Boer and Krantzberg 2013; Norman and Bakker 2013; Johns 2015; VanNijnatten et al. 2016). There is also a relevant literature on environmental-regime efffectiveness (Young 2002, 2011, 2013; Johns et al. 2015). Combined with research on environmental and water governance indicators, there is signifijicant promise for advancing both knowledge and practice. In the past decade, calls related to the “need to develop more robust indicators of transboundary cooperation” (Ojendal et al. 2010, 247) and move towards more “process-focused” research on transboundary governance (Ostrom 2009; Ostrom and Cox 2010; Pahl-Wostl 2009) have resulted in the development and use of environmental and water governance indicators as tools that link policies, governance regimes, performance assessment, and outcomes in Asia and other regions (Araral and Yu 2009; Suhardiman and Giordano 2012; Araral and Wang 2013). There is growing scholarly research on water governance indicators that has been applied within jurisdictions, across regions (Araral and Yu 2009), and in studies of complex transboundary river systems (Pahl-Wostl et al. 2012; Milman et al. 2013; Knieper and Pahl-Wostl 2016). The Great Lakes offfers an important laboratory for these new approaches and water governance indicators as these tools have not been used in this region to date. The need for new approaches is also reflected in the practitioner literature and publications by international organizations. The Organization for Economic Cooperation and Development (oecd) calls for a more “systemic” approach to water policy to overcome critical multilevel governance challenges and states that “a multilevel approach integrating international, national and local actors can help diagnose inherent governance challenges” and that “further research should study “micro-governance” to identify good local practices for managing commons” (OECD 2011, 18, 28). To address this complexity, the OECD developed a framework that focuses on analyzing seven key implementation gaps (OECD 2011), recently adopted twelve Water Governance Principles (OECD 2015), and is currently working on a set of Water Governance Indicators that will be applied at various scales within oecd member countries. There is a clear opportunity to apply the oecd’s Water Governance Indicators in complex transboundary systems such as the Great Lakes. In addition to research using environmental and water governance indicators, there is also a need for more comparative policy research. The Great Lakes has been touted as a model of transboundary environmental governance (Linton and Hall 2013) and there is clearly some evidence that it is a model. However, there is a need for more comparative research with other complex transboundary systems.

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Recent studies that focus on both within-case and across-case analysis offfer a lot of potential for advancing knowledge of transboundary environmental governance in this region (VanNijnatten et al. 2016). Studies on transboundary river systems also clearly indicate the value of both in-depth, context-specifijic comparative case studies and larger data sets using water governance indicators to examine adaptive governance capacity across several basins (Milman et al. 2013; Knieper and PahlWostl 2016) and at multiple scales (Ingold et al. 2016). Policy research to date and implementation in practice also indicate that network research and social-network analysis hold much potential for furthering our understanding of which government, nongovernment, and “key stakeholders” are engaged in glwqa implementation and other important policy fronts at the subnational and policy-issue levels, and which users and key stakeholders need to be more fully engaged in policy networks and implementation effforts (Johns 2015; Ingold et al. 2016). This research frontier has the potential to offfer signifijicant insights on the structure and capacity of implementation networks; highlight the capacity associated with engagement; and identify important engagement opportunities for Indigenous peoples, nearshore landowners, key water users from industry and agriculture, and others who have not been engaged at various scales. Finally, although research has advanced related to citizen engagement and awareness with two basin-wide public opinion surveys in the past few years, there is a need to better understand demographic changes and citizen values, awareness, engagement, and behavior that is abstract yet connected to environmental outcomes. The investment in science related to understanding the ecological state of the Great Lakes is impressive and needs to be sustained; however, investment in social-science research on the Great Lakes is also critical. Policy and governance research to date clearly indicates the value of institutional analysis and the challenges of adapting institutions and deeply rooted economic and political regimes, but new approaches and tools offfer opportunities to not only identify challenges, but improve transboundary environmental governance and water-quality outcomes in the future.

Conclusions Transboundary environmental governance in the Great Lakes region has resulted in some progress over the past forty years, but improving environmental outcomes

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has been slow, and new issues and challenges are emerging. Although progress has been signifijicant in the few years since the Canadian and US federal governments amended the glwqa in 2012, the overall progress of “fair and unchanging” related to meeting the general objectives of the agreement is troubling. Progress on existing policy goals is being challenged by enduring problems, but also by several new environmental and human-use challenges in the region. Well-developed transboundary and domestic institutions with comparatively high levels of scientifijic capacity continue to face serious implementation and adaptation challenges. This chapter has outlined that policy and governance research over the past few decades clearly highlights the challenges related to meeting the long-standing objectives of the glwqa and other environmental policies in the region. The policy goals are clear, and there is a consensus that there are enough laws, policies, institutions, organizations, and actors involved. Yet, implementation of government-led effforts, engagement, and adaptation to enduring and new challenges remain serious issues. Scholarship clearly outlines that this transboundary environmental system is multilevel, multiscaled, multi-sector and multi-actor. It is a complex ecological and human system facing complex challenges that both scholars and practitioners are grappling with. The proliferation of a dense and complex network of subnational relationships around transboundary water management and other environmental issues has raised questions about the relevance and role of the ijc, and at the same time demonstrated the potential contributions of subnational and multi-actor network approaches. Although the ijc has been foundational in terms of creating a “regime and culture of cooperation and environmental protection” based on over one hundred years of transboundary governance and binational goals under the glwqa, progress has ebbed and flowed, enduring challenges remain, and the current and future role of the ijc in terms of leadership on transboundary environmental governance faces serious challenges and remains unclear. Consistent, strategic actions by subnational, local governments and Indigenous communities are important parts of the environmental governance system that cannot be overlooked. The ability and capacity of these networks of collaborative actors, and their alignment with the policy goals in the glwqa are critical to improving outcomes and proactively addressing future environmental challenges in the region. There are several frontiers of research and practice that offfer signifijicant potential for addressing some of the governance and engagement challenges in the region. Approaches that integrate a more dynamic and long-term focus, embrace

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complexity in understanding and practice (Morcol 2012), focus on adaptation, and apply water governance indicators allow for analysis within the region at multiple scales and for comparative analysis with other transboundary environmental governance systems around the world that are facing similar challenges. Social-science research that focuses on the critical role of implementation networks, of actors and their relationships at various scales using tools such as social-network analysis, offfers potential to improve knowledge and engagement. They also offfer potential to improve the integration of water quantity and quality regimes and understanding of the complex relationships between diffferent environmental policy issues. Social-science research on citizen values, awareness, engagement, and human behavior also offfers the potential to improve our understanding and actions. Overall, the Great Lakes is a complex transboundary environmental governance system that requires complex understanding and approaches. The efffectiveness of the existing transboundary environmental governance regime is clearly evident as some progress in improving environmental outcomes has been achieved. The pace of progress has been particularly impressive in the past few years with renewed commitments and effforts under the glwqa and the US glri. However, enduring and emerging challenges, and considerations about the sustainability of recent effforts in the future remain open questions. Only with consistent transboundary attention, cooperation, efffort, engagement, and new tools and approaches will progress be made in governing this valuable environmental region along the world’s longest shared water border.

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United States. Washington, DC: International Joint Commission. http://www.bvsde.paho. org/bvsacd/cd57/advice/conten.pdf. —. 2011. Assessment of Progress Made towards Restoring and Maintaining Great Lakes Water Quality since 1987. Washington, DC: International Joint Commission. —. 2013. Sixteenth Biennial Report on the Great Lakes Water Quality Agreement. Washington, DC: International Joint Commission. —. 2014. A Balanced Diet for Lake Erie: Reducing Phosphorus Loadings and Harmful Algal Blooms. A Report of the Lake Erie Ecosystem Priority. Washington, DC: International Joint Commission. http://www.ijc.org/fijiles/publications/2014%20IJC%20LEEP%20 REPORT.pdf. —. 2016. An Assessment of the Communicability of the International Joint Commission Ecosystem Indicators and Metrics. Great Lakes Science Advisory Board, Communication Indicator Workgroup. Washington, DC: International Joint Commission. Jägerskog, Anders, and Mark Zeitoun. 2009. Getting Transboundary Water Right: Theory and Practice for Efffective Cooperation. Report No. 25. Stockholm: Stiftelsen Stockholm International Water Institute. Johns, Carolyn. 2000. Non-point Source Water Pollution Management in Canada and the US: A Comparative Analysis of Institutional Arrangements and Policy Instruments. Ph.D. dissertation, McMaster University, Hamilton, Ontario. —. 2002. Policy Instruments to Manage Non-point Source Water Pollution: Comparing the United States and Ontario. Paper Commissioned for the Walkerton Inquiry. Toronto: Ontario Ministry of the Attorney General. —. 2009. “Water Pollution in the Great Lakes Basin: The Global-Local Dynamic.” In Environmental Challenges and Opportunities: Local-Global Perspectives on Canadian Issues, edited by Christopher Gore and Peter Stoett, 95–129. Toronto: Emond Montgomery. —. 2010. “Transboundary Water Pollution Effforts in the Great Lakes: The Signifijicance of National and Sub-national Policy Capacity.” In Environmental Governance on the 49th Parallel: New Century, New Approaches, edited by Barry Rabe and Stephen Brooks, 63–82. Washington, DC: Woodrow Wilson International Center for Scholars, Canada Institute. —. 2015. “Opportunities and Challenges of Using Social Network Analysis in Public Policy Research: Analyzing Governance and Policy Implementation Challenges in the Great Lakes Region.” Paper presented at International Conference on Public Policy, Milan, Italy, July 2. —. 2017. “The Great Lakes, Water Quality and Water Policy in Canada.” In Water Policy and Governance in Canada, edited by Steven Renzetti and Diane Dupont, 159–78. Cham:

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Springer International Publishing, Switzerland. Johns, Carolyn, and Mark Sproule-Jones. 2015. “Water Policy in Canada and the Great Lakes Case.” In Environmental Policy in Canada, 4th ed., edited by Debora VanNijnatten, 252–77. Toronto: Oxford University Press. Johns, Carolyn, and Adam Thorn. 2015. “Subnational Diplomacy in the Great Lakes Region: Toward Explaining Variation between Water Quantity and Quality Regimes.” Canadian Foreign Policy Journal 21(3): 195–211. Johns, Carolyn, Debora VanNijnatten, and Adam Thorn. 2015. Testing a Framework for the Efffectiveness of Programs and other Measures Related to the Implementation of the Great Lakes Water Quality Agreement. Washington, DC: International Joint Commission. Kavcic, R. 2015. North America’s Economic Engine. Montreal: Bank of Montreal Special Report. Knieper, Chris, and Claudia Pahl-Wostl. 2016. “A Comparative Analysis of Water Governance, Water Management, and Environmental Performance.” Water Resources Management 30(7): 2161–77. Krantzberg, Gail, Irena F. Creed, Kathryn B. Friedman, Katrina L. Laurent, John A. Jackson, Joel Brammeier, and Donald Scavia. 2015. “Community Engagement Is Critical to Achieve a ‘Thriving and Prosperous’ Future for the Great Lakes–St. Lawrence River Basin.” Journal of Great Lakes Research 41(1): 188–91. Krantzberg, Gail, and Jack Manno. 2010. “Renovation and Innovation: It’s Time for the Great Lakes Regime to Respond.” Water Resources Management 24(15): 4273–85. Linton, Jamie, and Noah Hall. 2013. “The Great Lakes: A Model of Transboundary Cooperation.” In Water without Borders? Canada, the United States and Shared Waters, edited by Emma Norman, Alice Cohen, and Karen Bakker, 221–46. Toronto: University of Toronto Press. Lovecraft, Amy. 2007. “Transnational Environmental Management: US-Canadian Institutions at the Interlocal Scale.” American Review of Canadian Studies 37(2): 218–45. Maack, E., S. Mill, C. Borick, C. Gore, and B. Rabe. 2014. Environmental Policy in the Great Lakes Region: Current Issues and Public Opinion. Ann Arbor: Center for Local, State, and Urban Policy. http://closup.umich.edu/issues-in-energy-and-environmental-policy/10/ environmental-policy-in-the-great-lakes-region-current-issues-and-public-opinion. MacFarlane, D. 2015. “Watershed Decisions: The St. Lawrence Seaway and Sub-national Water Diplomacy.” Canadian Foreign Policy Journal 21(3): 212–23. McGregor, Deb. 2012. “Traditional Knowledge: Considerations for Protecting Water in Ontario.” International Indigenous Policy Journal 3(3): 1–21. McLaughlin, Chris, and Gail Krantzberg. 2011. “An Appraisal of Policy Implementation Defijicits in the Great Lakes.” Journal of Great Lakes Research 37(2): 390–96.

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Medema, Wietske, Brian S. McIntosh, and Paul J. Jefffrey. 2008. “From Premise to Practice: A Critical Assessment of Integrated Water Resources Management and Adaptive Management Approaches in the Water Sector.” Ecology and Society 13(2): 29. Michigan Sea Grant. 2006. Prescription for Great Lakes Ecosystem Protection and Restoration: Avoiding the Tipping Point of Irreversible Changes. Ann Arbor: Michigan Sea Grant. http://www.miseagrant.umich.edu/downloads/habitat/Prescription-for-the-GreatLakes-08–2006.pdf. Milman, Anita, Lisa Bunclark, Declan Conway, and William Adger. 2013. “Assessment of Institutional Capacity to Adapt to Climate Change in Transboundary River Basins.” Climate Change 121(4): 775–70. Morcol, Goktug, 2012. A Complexity Theory for Public Policy. New York: Routledge. Norman, Emma S. 2015. Governing Transboundary Waters: Canada, the United States and Indigenous Communities. New York: Routledge. Norman, Emma S., and Karen Bakker. 2016. “Transcending Borders through Postcolonial Water Governance? Indigenous Water Governance across the Canada-US Border.” In Water Policy and Governance in Canada, edited by Steven Renzetti and Diane P. Dupont, 139–57. New York: Springer. Norman, Emma, Alice Cohen, and Karen Bakker, eds. 2013. Water without Borders? The Future of Canada-US Transboundary Water Governance. Toronto: University of Toronto Press. Ojendal, Joakim, Anton Earle, and Anders Jagerskog. 2010. “Towards a Conceptual Framework for Transboundary Water Management.” In Transboundary Water Management: Principles and Practice, edited by Anton Earle, Anders Jagerskog, and Joakim Ojendal, 1–13. New York: Earthscan. Organization for Economic Cooperation and Development (OECD). 2011. Multilevel Governance of Water. Paris: OECD Publications. —. 2015. OECD Principles on Water Governance. Paris: OECD Publications. Ostrom, Elinor. 2007. “The Governance Challenge: Matching Institutions to the Structure of Social Ecological Systems.” In The Princeton Guide to Ecology, edited by Simon Levin, 748–53. Princeton, NJ: Princeton University Press. —. 2009. “A General Framework for Analyzing the Sustainability of Social-Ecological Systems.” Science 325(5939): 419–22. Ostrom, Elinor, and Michael Cox. 2010. “Moving beyond Panaceas: A Multi-tiered Diagnostic Approach for Socio-ecological Analysis.” Environmental Conservation 37(4): 451–63. Pahl-Wostl, Claudia. 2009. “A Conceptual Framework for Analyzing Adaptive Capacity and Multi-level Learning Processes in Resource Governance Regimes.” Global Environmental Change 19(3): 354–65.

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Pahl-Wostl, Claudia, Georg Holtz, Britta Kastens, and Christopher Knieper. 2010. “Analyzing Complex Water Governance Regimes: The Management and Transition Framework.” Environmental Science and Policy 13(7): 571–81. Pahl-Wostl, Claudia, and Christian Knieper. 2014. “The Capacity of Water Governance to Deal with the Climate Change Adaptation Challenge: Using Fuzzy Set Qualitative Comparative Analysis to Distinguish between Polycentric, Fragmented and Centralized Regimes.” Global Environmental Change 29:139–54. Pahl-Wostl, Claudia, Louis Lebel, Christian Knieper, and Elena Nikitina. 2012. “From Applying Panaceas to Mastering Complexity: Toward Adaptive Water Governance in River Basins.” Environmental Science and Policy 23:24–34. Plummer, Ryan, and Derek Armitage. 2007. “A Resilience-Based Framework for Evaluating Adaptive Co-management: Linking Ecology, Economics and Society in a Complex World.” Ecological Economics 61(1): 62–74. Plummer, Ryan, Derek Armitage, and Rob de Loë. 2013. “Adaptive Co‐management and Its Relationship to Environmental Governance.” Ecology and Society 18(1): 21. Rabe, Barry G. 1996. “An Empirical Examination of Innovations in Integrated Environmental Management: The Case of the Great Lakes Basin.” Public Administration Review 56(4): 372–81. Rabe, Barry G., and Stephen Brooks, eds. 2010. Transboundary Environmental Governance in Canada and the United States. Washington, DC: Woodrow Wilson Center for International Scholars. Rabe, Barry G., and Janet B. Zimmerman. 1995. “Beyond Environmental Regulatory Fragmentation: Signs of Integration in the Case of the Great Lakes Basin.” Governance 8(1): 58–77. Regier, Henry. 1988. “Remediation and Rehabilitation of the Great Lakes.” In Perspectives on Ecosystem Management for the Great Lakes: A Reader, edited by Lynton Caldwell, 169–91. Bufffalo, NY: SUNY Press. Riley, John L. 2013. The Once and Future Great Lakes Country: An Ecological History. Montreal: McGill-Queen’s University Press. Royal Bank of Canada (RBC). 2016. 2016 RBC Canadian Water Attitudes Study. Montreal: RBC Blue Water Project. http://www.rbc.com/community-sustainability/environment/rbcblue-water/water-attitude-study.html. Schwartz, Alan M. 2005. “The Canada-US Environmental Relationship: Calm Waters but Slow Sailing.” International Journal 60(2): 437–48. Sproule-Jones, Mark. 2002. Restoration of the Great Lakes: Promises, Practices, Performance. Vancouver: University of British Columbia Press.

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Sproule-Jones, Mark, Carolyn M. Johns, and B. Timothy Heinmiller, eds. 2008. Water Politics in Canada: Conflicts and Institutions. Montreal: McGill-Queen’s University Press. Stockholm Resilience Centre. 2013. “Adaptive Governance.” http://www.stockholmresilience. org. US Environmental Protection Agency (US EPA). 1995. EPA Progress Report. Washington, DC: Environmental Protection Agency. —. 2007. National Water Quality Report to Congress, Washington, DC. —. 2014. “Great Lakes Factsheet.” http://www.epa.gov/greatlakes/factsheet.html. US Environmental Protection Agency and Environment Canada and Climate Change (US EPA, ECCC). 2016. Progress Report of the Parties. Washington, DC: US Environmental Protection Agency; Ottawa: Environment Canada and Climate Change. Valiante, Marcia. 2008. “Management of the North American Great Lakes.” In Management of Transboundary Rivers and Lakes, edited by Olli Varis, Cecilia Tortajada, and Asit K. Biswas, 245–67. London: Springer. VanNijnatten, Debora L. 2003. “Analyzing the Canada-US Environmental Relationship: A Multifaceted Approach.” American Review of Canadian Studies 33(1): 93–120. —. 2006. “Towards Cross-Border Environmental Policy Spaces in North America: Province-State Linkages on the Canada-U.S. Border.” AmeriQuests: The Journal of the Center for the Americas 3(1): 93–120. VanNijnatten, Debora, Carolyn Johns, Kathryn B. Friedman, and Gail Krantzberg. 2016. “Assessing Transboundary Governance Capacity in the Great Lakes Basin: The Role of Institutions and Networks.” International Journal of Water Governance 16(1): 7–32. Young, Oran. 2002. The Institutional Dimensions of Environmental Change: Fit, Interplay, and Scale. Cambridge, MA: MIT Press. —. 2011. “Efffectiveness of International Environmental Regimes: Existing Knowledge, Cutting-Edge Themes and Research Strategies.” Proceedings of the National Academy of Sciences of the United States of America 108(50): 19853–60. —. 2013. “Sugaring Offf: Enduring Insights from Long-Term Research on Environmental Governance.” International Environmental Agreements 13(1): 87–105.

Transboundary Water Governance in the Prairie Region Development Institutions in a Conservation Age

B. Timothy Heinmiller

T

he Canada-US boundary stretches the entire width of North America, passing through a variety of distinctive ecoregions. In the middle of the continent, the boundary passes through the Prairie ecoregion, an arid to semiarid region in which water supplies are scarce and highly variable, and in which water plays a profoundly important role in the regional economy. Historical conflicts over transboundary waters in this region were one of the motivating factors in the negotiation of the Boundary Waters Treaty (bwt) and the formation of the International Joint Commission (ijc) in 1909. Since then, the bwt and the ijc have helped to contain and manage international water conflicts in the Prairie region, providing a stable transboundary institutional regime for governments on both sides of the border, allowing them to develop the region’s rivers for agricultural, power generation, and urban-industrial purposes. In the last two decades, the development orientation of these transboundary institutions has come into question as rivers in the Prairie region have become fully allocated, riverine environments have gone into decline, environmentalists and First Nations have emerged as political forces, and climate change has threatened key aspects of the region’s long-term water supply. In response, the ijc has attempted to reorient transboundary river governance regimes in the Prairies (and elsewhere)

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toward conservation and sustainability goals, but the development orientation of the long-standing regimes is so fijirmly entrenched that this has proven quite difffijicult. Thus, the transboundary Prairie rivers are governed by development institutions in a conservation age, and much work remains to be done in order to steer them toward attaining conservation and sustainability goals.

The Transboundary Rivers of the Prairie Region Unlike the other ecoregions along the Canada-US border, the Prairie region is characterized by natural water supplies that are scarce and highly variable. Despite its reputation as one of the world’s agricultural breadbaskets, average annual precipitation in the Prairies is only between 250 and 500 mm, and less in some places (Environment Canada 2008). This makes the region a somewhat marginal area for dryland agriculture, notwithstanding its vast stretches of fertile land. Prairie residents must also cope with the high (sometimes wild) variability of river flows. Annually, river flows are usually highest in the spring during the freshet and lowest in the late summer and fall, but periodic spikes in river flow due to extreme weather events are common and can result in severe flood damage to riparian properties. In short, Prairie residents often wryly describe their rivers as being “either mud or flood,” reflecting a situation of general scarcity punctuated with occasional flooding events. Across the Prairie region there are three major rivers that cross the international boundary and are managed by the ijc on an ongoing basis: the St. Mary River, the Milk River, and the Souris River.1 The westernmost river is the St. Mary River,2 which originates in the Rocky Mountains of Glacier National Park in Montana and flows northward into Alberta, where it joins the Oldman River. The St. Mary is, by far, the largest of the transboundary Prairie rivers and has the least variable flow. This is largely because part of its source comes from Rocky Mountain glacial melt, which provides a more dependable and stable river flow compared to other Prairie rivers, such as the Milk, that depend entirely on surface runofff as their source. The Milk River originates as runofff in the Montana foothills and has a much lower average annual flow and much higher flow variability than the St. Mary (Halliday and Faveri 2007, 77). The Milk is also unique because it starts in Montana and flows into southern Alberta for about 200 km before arching southward to return to Montana. At various points, the St. Mary and the Milk are in close proximity to

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each other, and over the fijirst two decades of the twentieth century, the US Bureau of Reclamation constructed a canal to connect the St. Mary to the Milk, allowing St. Mary water to be diverted to the Milk in support of irrigation in northeastern Montana. International controversy over this project was one of the precipitating factors in the negotiation of the bwt, and the canal has subsequently linked the two rivers both hydrologically and institutionally in an ijc water-management regime. The Milk also has a number of “eastern tributaries” that rise in Canada and cross into the United States before joining the main stem of the Milk, and the ijc has administered apportionments on some of these smaller rivers since as early as 1937 (IJC 2016c). Although the Souris River is in the same drainage basin as the St. Mary River— both are part of the Saskatchewan-Nelson basin that eventually drains into Hudson’s Bay—the two rivers are geographically separated.3 The Souris has its source in southern Saskatchewan and is fed almost entirely from surface runofff. From its source, the Souris runs southward into North Dakota and through the city of Minot before arching northward and reentering Canada in southern Manitoba and merging with the Assiniboine River. Due to the inconstancy of its source, the Souris is characterized by flows that are relatively low and highly variable; in fact, the Souris is so erratic that at various times its flow can be reduced to barely a trickle, or so swelling that it is bursting its banks (Environment Canada 2017). Governments on both sides of the border have gone to considerable efffort and expense to try to bring the basin’s flows under some control, and an ijc river governance regime has been a key element of this. Overall, the character of the transboundary rivers in the Prairie region has provided plenty of international governance challenges, but also plenty of incentives for productive international cooperation. Neither the United States nor Canada is exclusively an upstream or downstream jurisdiction on these rivers, given how they meander back and forth across the international border. For instance, Canada is a downstream jurisdiction on the St. Mary River, but is an upstream jurisdiction on the middle section of the Milk River and the upper section of the Souris River. These somewhat unusual and offfsetting upstream-downstream relationships have created something of a geographic balance of power between the two countries: each country knows that if it exploits its upstream advantage to the detriment of the other on one river, it could be subject to similar retaliation on another river (or a diffferent reach of the same river). This has created a much diffferent political dynamic than exists, for example, between British Columbia and Alaska,

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as described by Alper in this volume, in which BC is the upstream jurisdiction and Alaska is the downstream jurisdiction, putting Alaska at a distinct disadvantage (Brooks and Olive 2018).

Transboundary Governance and Water Development Given the aridity of the Prairies, utilizing the available surface waters has been central to the region’s economic development and growth in the period since European settlement. Initially, this development focused predominantly on agriculture, with water being used for both crop irrigation and stock-watering, the former using far more water and having a much bigger environmental impact than the latter. Cities and industries in the region tended to develop along its relatively few major rivers, and as the cities expanded, they increasingly sought protection from the severe damage and dislocation caused by periodic river flooding. In the early twentieth century, the rivers also came to be seen as a valuable source of hydroelectricity in the region, benefijiting farmers and city dwellers alike. Altogether, the settlers on the Prairies quickly found a common interest in gaining control of the Prairie rivers through damming and water storage: cities wanted dams to prevent flooding during high flows, farmers wanted dams to store and deliver water during low flows, and both wanted dams to generate hydroelectricity. Acceptance of the need to dam, develop, and control the Prairie rivers and put the water toward various types of “benefijicial use”4 was universal among the Prairie settlers, if not among the region’s First Nations, whose views were not solicited. Most often, when water controversies arose, they were not about whether the Prairie rivers should be developed, but about how the costs and benefijits arising from development would be distributed among the relevant parties (Worster 1985; Reisner 1993). This was the case with the transboundary Prairie rivers, which were some of the most important rivers in the region, but were complicated by the presence of the international border that divided water users on national grounds, creating political rivalries that threatened to swamp their mutual water-development goals. Local water-development issues on the transboundary rivers escalated into international conflicts, becoming highly politicized and dominated by the two federal governments. The earliest example of this was the St. Mary’s Canal controversy in the early 1900s. At the behest of agricultural interests along the Milk River, the US Bureau of Reclamation investigated in 1902 and received approval

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from the US Congress in 1905 for the construction of a canal to divert water from the St. Mary River to the Milk. However, the Canadian government protested the canal’s construction and, after having its protests ignored, threatened retaliation by approving its own diversion project that would have diverted water from the Milk River back to the St. Mary within Canadian territory (Simonds 1998). In all of this, the mutual water-development interests of water users on both sides of the border were swamped by international rivalry, and the progress of water development was stalled. To overcome the international complications of transboundary river development, all parties gradually came to realize that some sort of international management and dispute-resolution institution was required. The St. Mary’s Canal controversy itself was one of a number of transboundary water disputes that brought the US and Canadian (and British5) governments to the negotiating table, eventually resulting in the bwt of 1909 (Dreisziger 1981). The treaty specifijically addressed the management of the St. Mary and Milk Rivers in Article VI, creating the fijirst transboundary river governance regime in the Prairie region. However, even more important was the creation of an international forum—the ijc—where transboundary river governance issues could be investigated, disputes could be settled, and, ultimately, new river governance rules could be negotiated (US Government 1909). For Prairie water development, the introduction of the bwt was crucial because it created an institution for managing international water rivalries, removing these as an obstacle to the damming and development of the Prairie transboundary rivers. This is not to suggest that Canada-US relations with respect to Prairie waters have been entirely harmonious since 1909—far from it—but, under the auspices of the bwt and with the considerable assistance of the ijc, transboundary river governance regimes have been developed for the region’s major rivers that have been foundational to their development. Generally, these institutional regimes have had three key elements, each of which is explored in more detail below: 1.

2.

Interjurisdictional water apportionments that have allowed governments to plan their water development and grant private entitlements to agricultural and riparian water users. Drought and flood provisions that modify the apportionments to ensure that agricultural and riparian water users will be able to cope with extreme water events.

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Intergovernmental river governance boards that administer the apportionments and head offf disputes.

Interjurisdictional Water Apportionments The St. Mary’s Canal controversy in the early 1900s created a substantial degree of water-supply uncertainty for irrigators and governments in the St. Mary and Milk basins. This uncertainty was a major barrier to irrigation development because few people wanted to invest in the construction of irrigation systems without assured water supplies. To help remedy this, one of the main features of Article VI of the bwt was an apportionment of the waters in question: The St. Mary and Milk Rivers and their tributaries . . . are to be treated as one stream for the purposes of irrigation and power, and the waters thereof shall be apportioned equally between the two countries, but in making such equal apportionment more than half may be taken from one river and less than half from the other by either country so as to affford a more benefijicial use to each (US Government 1909).

Article VI also established that the United States had a prior appropriation of 500 cubic feet per second (or three-quarters of the natural flow) from the Milk River, and that Canada had a prior appropriation of 500 cubic feet per second (or three-quarters of the natural flow) from the St. Mary River, reflecting the areas in each country where large-scale irrigation was planned or already underway (US Government 1909). In efffect, the two countries agreed to share the St. Mary and Milk Rivers equitably in aggregate, but provided Alberta with a larger, prioritized share of the St. Mary, and Montana with a larger, prioritized share of the Milk. This tradeofff would allow both jurisdictions to accelerate their irrigation development. While the apportionment in Article VI created enough water-supply certainty to facilitate substantial irrigation expansion, disagreements over the interpretation of the apportionment forced the ijc to clarify it shortly after its introduction. The diffferences in interpretation centered primarily on the locations at which the apportionments should be measured, and the protocol for determining how the river would be equally apportioned after each country’s prior appropriation had been met.6 Starting in 1915, the ijc held a series of hearings on the matter and, in the irrigation seasons of 1918 to 1921, issued provisional orders specifying the water entitlements of each country (Halliday and Faveri 2007, 81). The disagreement on

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Article VI’s interpretation was a critical early test of the legitimacy of the ijc, and for a time, the US government threatened to ignore any settlement of the issue that the ijc might try to impose. However, the commissioners persevered and engaged local irrigators to determine what apportionment arrangements would suit their needs (Willoughby 1981, 28). In October 1921, the commission issued an order that crafted a judicious apportionment compromise by efffectively accepting the American position on the location of apportionment measurement and the Canadian position on the protocol for equal apportionment (IJC 1921). Despite some continued protests from the Montana government, which brought the issue before the ijc again in 1928, 1930, 1931, and 1932, these are the apportionment rules that have persisted ever since, providing a framework within which the governments of Alberta and Montana could allocate their respective waters to individual water users (Willoughby 1981, 29). In the Souris basin, the issue of water apportionment did not arise until the late 1930s, and apportionment rules were largely introduced at the behest of agricultural and riparian water interests. By the late 1930s, North Dakota had undertaken dam construction and irrigation in its portion of the Souris, but Saskatchewan was only beginning its development (North Dakota Water 1942). In 1940, the ijc was asked to recommend an international apportionment for the basin, but, citing inadequate river flow data, the commission recommended only an interim apportionment that approximated levels of existing water use (Hood 1994, 14–19). Saskatchewan saw this apportionment as detrimental to its interests, because it efffectively froze water development at current levels, to the advantage of North Dakota. Consequently, the Saskatchewan government lobbied for, and attained, a new interim apportionment in 1959 that allowed Saskatchewan and North Dakota to each use 50 percent of the natural flow originating within their respective borders while allowing the other 50 percent to pass to their downstream neighbors (Hood 1994, 16–19; IJC 1958). Amendments in 1992 and 2000 have placed a number of conditions on these apportionments (discussed further below), but this basic 50/50 split remains the defijining feature of interjurisdictional apportionment on the Souris. Throughout the Prairie region, interjurisdictional river apportionments have been important to water development by providing each jurisdiction with enough security of water supply to facilitate the widespread distribution of private water entitlements. Furthermore, in all fijive Prairie jurisdictions, benefijicial use has been the defijining principle of water-entitlement distribution, despite substantial interjurisdictional diffferences in water-entitlement systems. In Montana and North

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Dakota, water entitlements were distributed primarily through prior appropriation, utilizing the “fijirst in time, fijirst in right” principle. Under the prior appropriation system, anyone who could put a volume of water to benefijicial use could claim a right to it, but had to maintain this benefijicial use or risk losing this right to a new claimant (Worster 1985, 108; Tarlock 2001). The “fijirst in time, fijirst in right” and benefijicial-use principles were also adopted in the Canadian Prairies, though ownership of all water in the region was vested in the Crown by the Northwest Irrigation Act of 1894. As a result, Canadian water-entitlement claimants had to seek government licenses in order to formalize their claims, in addition to proving benefijicial use (Percy 2005). Although all of the Prairie jurisdictions have modifijied and added to their initial prior appropriation and prior allocation systems—Saskatchewan and Manitoba making the most radical reforms—the principle of benefijicial use has been largely preserved throughout the region. Drought and Flood Provisions An important supplement to the apportionment rules in the St. Mary–Milk and Souris basins have been drought and flood provisions that help to protect riparian and agricultural water users during extreme water events. Apportionment rules contribute greatly to water-supply security, but they inherently assume a “normal” level of water flow that can be divided among water users. Yet, because water flows in the Prairie region are highly variable, there are many years in which the “normal” level of supply is not available and water users are subjected to either drought or flooding. Although these extreme water events are periodic, they are threatening to the riparian and agricultural water users of the Prairies because it only takes one drought or one flood to put their livelihoods or property in jeopardy. Consequently, the international apportionment rules in the Prairie region have been supplemented with drought and flood provisions that modify the apportionments in extreme conditions and are designed to allow agricultural and riparian interests to cope with these conditions until “normal” flows resume. From the perspective of water development, these drought and flood provisions are additionally important because they have reduced the level of risk involved in more marginal agricultural and riparian water uses, encouraging their development and facilitating the pursuit of benefijicial use of the water resources in the region. In the St. Mary–Milk, irrigation is the dominant water use, and the primary concern of irrigators has been drought protection. In the negotiation of Article

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VI of the bwt, it was accepted that the “normal” natural flow of both rivers was around 666 cubic feet per second during the irrigation season. Canada was given a prior appropriation of 500 cubic feet per second on the St. Mary (three-quarters of its presumed natural flow), and the United States was given a prior appropriation of 500 cubic feet per second on the Milk (three-quarters of its presumed natural flow) (IJC 1921). In low-flow periods—when flows are less than 666 cubic feet per second—this apportionment created a danger that American interests on the St. Mary, and Canadian interests on the Milk could be partly or entirely deprived of water as the two countries exercised their prior appropriations. Although the prior appropriations were designed to protect each country’s main irrigation areas in the region, the few who were left at risk by this arrangement quickly voiced their concerns. The result was the inclusion of provisions in the 1921 ijc Order that have brought some drought protection. When flows in either the St. Mary or the Milk drop below the “normal” level of 666 cubic feet per second, the prior appropriations are transformed from three-quarters of natural flow (500 cubic feet per second) to three-quarters of actual flow (which varies depending on the severity of the drought) (Halliday and Faveri 2007, 81). This means that at least one-quarter of actual river flows always goes to the non-prioritized jurisdiction on each river, helping irrigators in these jurisdictions survive drought periods until “normal” flows resume. On the Souris River, flooding is at least as great a concern as drought, and the international apportionment rules have been modifijied to protect riparian and agricultural interests from both extremes. In terms of flood protection, the most signifijicant development has been the construction of the Raffferty and Alameda Dams in southern Saskatchewan during the 1980s and early 1990s. Situated in the upper part of the basin, these dams offfer flood protection to parts of southern Saskatchewan and northern North Dakota, and they changed the hydrological context of the existing 50/50 apportionment. Saskatchewan could now lose a signifijicant part of its apportionment through evaporation from the Raffferty and Alameda reservoirs, while doing so for the protection of North Dakota riparians.7 Accordingly, in 1992, the apportionment rules were modifijied so that Under certain conditions, a portion of the North Dakota share will be in the form of evaporations from Raffferty and Alameda Reservoirs. During years when these conditions occur, the minimum amount of flow actually passed to North Dakota will be forty percent of the natural flow at the Sherwood Crossing. (IJC 1992)

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This new 60/40 apportionment is limited to relatively wet years in which there is an adequate natural flow at the international border (the Sherwood Crossing) and the level of Lake Darling in North Dakota is at a minimum specifijied level (IJC 1992). In sum, the new flood and drought provisions ensure that (1) Saskatchewan and North Dakota riparians enjoy the flood protection of the Raffferty and Alameda Dams; (2) Saskatchewan has the opportunity to build up its water storages in relatively wet years when the 60/40 apportionment comes into efffect; and (3) North Dakota irrigators are assured of their traditional 50 percent share of the Souris during relatively dry years, when they need it most. A more intricate set of compromises among the governments and users of the Souris is difffijicult to imagine. Intergovernmental River Governance Boards While the international apportionments and flood and drought provisions have been fundamental to water development in the Prairie border region, intergovernmental river governance boards, in turn, have been crucial to the preservation of these transboundary regimes. In shared resources like the Prairie transboundary rivers, the governance rules themselves constitute a public good that, although highly valued by many, is inherently vulnerable to the free-riding and defection challenges that characterize all public goods (Ostrom 1990, 38–49). These challenges can be particularly acute in an international context where there is no sovereign fijigure to compel public-good contributions and to enforce rule compliance (Heinmiller 2007). The ijc’s solution to this pubic-good problem has been the creation of intergovernmental river governance boards with a mandate to administer established river governance rules, monitor rule compliance, and resolve minor disputes. These boards are binational in membership and often involve representatives from relevant state and provincial governments, building informal interjurisdictional networks and trust ties that further circumvent the public-good problem. As these boards have taken on many of the day-to-day apportionment implementation tasks, they have become the face of transboundary river governance in the Prairie region. The St. Mary–Milk was one of the fijirst shared basins to have an ijc-created river governance body, but its organizational design is somewhat atypical of the many river boards that followed it. Its origins can be traced to Article VI of the bwt, which allowed the ijc to direct a designated reclamation offfijicer from the United States and a designated irrigation offfijicer from Canada to work cooperatively in the

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measurement and apportionment of the St. Mary–Milk waters (US Government 1909). The responsibilities of these offfijicers were further expanded and elaborated in the 1921 ijc Order, though a formal ijc board was not created (IJC 1921). To this day, the organization remains known as the “Accredited Offfijicers,” though functionally its role in rule administration and dispute resolution is at least as important as the more formalized ijc boards in other transboundary basins. In their administrative activities, the Accredited Offfijicers are guided by the “Administrative Measures” that “form the basis for calculating the natural flow and determining each jurisdiction’s performance in meeting the specifijications of the Order” (Halliday and Faveri 2007, 85). While the Administrative Measures provide a common protocol for apportionment implementation, they also allow the Accredited Offfijicers some latitude to resolve minor issues before they can become major ones. For instance, apportionment defijicits in one balancing period8 are usually made up in the next balancing period, though “this practice has been varied to enhance benefijicial use of water in both countries” (Halliday and Faveri 2007, 87). In this manner, the Accredited Offfijicers have been successful in implementing the apportionment rules in sometimes difffijicult circumstances while maintaining the fundamental integrity of the rules themselves. In the Souris basin, ijc river governance boards have played an equally important role. The fijirst such board was created in 1948 and was known as the International Souris–Red Rivers Engineering Board. This board was mandated “to report on the use and apportionment of the waters within the Souris, Red, Poplar and Big Muddy river basins and to develop plans of mutual advantage for these waters” (IJC 2007). However, once an accepted apportionment of the Souris was reached in 1958, the activities of this board were somewhat eclipsed by the new International Souris River Board of Control, which had responsibility for monitoring the apportionment’s implementation. The two boards coexisted for a number of decades until 2002, when all transboundary administrative responsibilities for the Souris were consolidated in the new International Souris River Board (IJC 2016a). In their various manifestations, these boards have played a key role in allowing the governments and users of the Souris to put the scarce and highly variable Souris waters to benefijicial use. The Souris’s interim apportionment rules, for example, establish that flow releases from Canadian dams should be scheduled to approximate natural flow patterns and to allow for “benefijicial use” in North Dakota. The Souris River Board is then tasked with the application of these general principles and the reconciliation of any contradictions between them (IJC 1992). Thus far, it

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has proven quite adept at this task, and the fundamental integrity of the Souris apportionment has been maintained. Overall, through a combination of international water apportionments, provisions to cope with extreme water events, and international river governance boards, the bwt and the ijc provided stable, development-oriented international governance regimes for the Prairie transboundary rivers. International rivalries remained and cross-border water conflicts persisted in the region, as documented in Heinmiller (2008), but these conflicts were contained and managed so that development of the Prairie rivers could proceed without bogging down in international gridlock. Indeed, the rapid and extensive development of the Prairie rivers throughout most of the twentieth century is a testament to how well the international governance regimes worked in supporting water users’ development aspirations. Nevertheless, by the last two decades of the century, cracks in these regimes began to form, and the underlying social consensus supporting full development and benefijicial use of the Prairie rivers began to erode, creating new transboundary challenges for both the ijc and its partner governments.

From Development to Conservation In some respects, the transboundary governance regimes for the St. Mary–Milk and Souris basins have been victims of their own success. Starting in the 1970s, rivers in the St. Mary–Milk, and later the Souris, reached points of full allocation—due, in part, to the international stability affforded by the transboundary governance regimes. Full allocation meant that heavy water-use demands were placed on riverine environments, causing environmental conditions on many Prairie rivers to deteriorate markedly. At around the same time, the environmentalist movement emerged, and First Nations began to assert a political voice in the region, drawing public and governmental attention to the emerging environmental problems. In addition, climate change emerged to threaten the various sources of the Prairie rivers, challenging long-held assumptions of river governance and threatening to make environmental problems even worse. All of these challenges combined to undermine the development orientation of the transboundary governance regimes, demanding much greater emphasis on conservation and sustainability in transboundary water governance.9 The culmination of decades of water governance oriented toward development

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and benefijicial use has been the full allocation of many Prairie rivers. Full allocation means that, in the opinion of government regulators, a river can support no additional consumptive uses and, in some cases, the issuance of new water entitlements is frozen in an efffort to keep water use from growing any further. Among the Prairie transboundary rivers, full allocation was reached in the Alberta portions of the Belly, Waterton, and St. Mary Rivers as early as the late 1970s, when government regulators stopped accepting applications for new water licenses on these rivers. In 2005, the Alberta government went even further, issuing moratoria on water licenses throughout the Bow, Oldman, and South Saskatchewan sub-basins, a vast area across southern Alberta that includes a number of transboundary waters (Heinmiller 2016, 14, 190–97). A similar situation exists on the Milk River and its eastern tributaries, much of which the Montana government considers closed to further development (Simonds 1998). While full allocation was the long-term water governance goal of many irrigators and water-development advocates in the Prairies, a state of full allocation has proven somewhat precarious for both water users and governments. One problem with full allocation has been the creation of institutionalized periods of water shortage. When full allocation is reached on rivers with variable water flows, as is the case in the Prairies, the inevitable result is shortages during low-flow periods. For instance, the Alberta government reports that water shortages are evident on the St. Mary River an average of one in ten years, and the Montana government reports that shortages are evident on the Milk River an average of six in ten years (Halliday and Faveri 2007, 84). These persistent and recurring periods of shortage are problematic because they disproportionately impact low-priority water users, creating systemically disadvantaged groups. This is true both domestically and internationally, as Montana has expressed substantial discontent with the ijc governance regime for the St. Mary–Milk, largely because it feels shortchanged with respect to the apportionment of the St. Mary River, where it is the lower-priority jurisdiction. In 2004, the governor of Montana successfully lobbied to have the ijc create an Administrative Measures Task Force to review the administration of the 1921 Order that is the cornerstone of the St. Mary–Milk regime. The task force recommended a number of changes to the way the St. Mary–Milk apportionment is administered, without changing the order itself, and it encouraged the governments of Alberta and Montana to work more closely on St. Mary–Milk governance issues. Alberta and Montana followed up by launching the joint Water Management Initiative in early 2009, and since then, Alberta and Montana offfijicials have met over a dozen times to discuss St. Mary–Milk issues (Bankes and Bourget 2013, 170–73).

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A problem directly related to full allocation is environmental degradation. Recurring water shortages are a fact of life under full allocation, and these shortages not only impact low-priority water users, they also negatively impact the environment, which very often is the lowest-priority water use of all. Prolonged water shortages can signifijicantly damage riverine environments, destroying fijish, fowl, and other wildlife habitat, as well as increasing the concentration of water pollutants. Dam storages and releases can be used to mitigate low-flow periods, but most dams are operated to meet the demands of irrigators, riparians, and hydroelectricity consumers, creating water-flow patterns that are much diffferent than would exist in a natural state. Furthermore, the interruption and manipulation of natural flows creates its own set of environmental problems, including river channelization, interrupted fijish spawning, and loss of native flora and fauna, so even effforts to mitigate recurring water shortages come at a substantial environmental cost. The environmental damage wrought by full allocation in the Prairie transboundary rivers is illustrated in recent water-quality assessments by the US Environmental Protection Agency (EPA), summarized in table 1. A very high number of the river branches in the St. Mary–Milk basin were judged to be impaired, meaning that water-quality conditions were so poor that one or more water uses could not be supported by them (US EPA 2012a). The Souris basin fared better, with only two impaired river branches, but it still had a signifijicant number of threatened branches where water quality is in decline but still supports all existing water uses (US EPA 2012b). Given the higher level of irrigation development and the state of full allocation that exists throughout much of the St. Mary–Milk, it is not surprising that it is in worse environmental shape than the Souris. The St. Mary, Milk, and Souris basins have not only experienced environmental change, but social and political change as well. In the early days of Prairie water governance, there was a virtual consensus on the need to dam and develop Prairie rivers for benefijicial use. However, in the last few decades, this social consensus has crumbled, and the benefijits of unbridled water development are no longer taken for granted. Initially, most dissenters were recreational fijishers, anglers, and boaters who expressed concerns about the decline of Prairie rivers. These concerns were then amplifijied by the emergence of the environmentalist movement, which has drawn wide attention to the declining state of Prairie riverine environments and, more fundamentally, challenged the long-standing development ethos of water governance. Also very important has been the growing assertiveness of First Nations in claiming and defending their treaty rights, both in the legislative arena and through

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TABLE 1. EPA Assessments of Environmental Health for Major Prairie

Transboundary Rivers (2012)* RIVER

St. Mary River Upper Milk Lower Milk Upper Souris Lower Souris

NUMBER OF RIVER BRANCHES

GOOD BRANCHES

THREATENED BRANCHES

IMPAIRED BRANCHES

BRANCHES NOT ASSESSED

1 3 9 26 17

0 1 1 21 13

0 0 0 4 3

1 2 7 1 1

0 0 1 0 0

*In the EPA assessments, “impaired” river branches have water-quality conditions that do not support one (or more) water uses, “threatened” river branches have water quality that supports all existing water uses but is in decline, and “good” river branches fully support all existing water uses. The EPA assessments are based on data provided by the state governments.

the courts. Traditionally, First Nations have a close connection with the lands and waters they have inhabited, and a strong desire to preserve these connections, often putting them at odds with development advocates (Heinmiller 2016). Altogether, these social and political changes have resulted in new actors with new values and beliefs claiming a stake in Prairie water governance. Most of these new actors value Prairie rivers in their natural state and substantially reject that development, control, and benefijicial use should be the primary governance objectives. Since the late 1960s, this group of interests has steadily gained in size, organization, public support, and political influence, staunchly resisting new dam-construction projects and pushing for conservation and sustainability-oriented water policy reforms at the subnational, national, and international levels. The substantial and protracted resistance to the construction of the Garrison Diversion in North Dakota (Reisner 1993), the Oldman Dam in Alberta (Glenn 1999), and the Raffferty and Alameda Dams in Saskatchewan (Hood 1994) are vivid illustrations of this. The onset of global climate change is the most recent—and perhaps most daunting—challenge to the St. Mary–Milk and Souris governance regimes to emerge in the last few decades. Climate change has created a wide range of challenges for Canada-US relations, as described by VanNijnatten and López-Vallejo Olvera in this volume, but the challenges are particularly acute in the Prairies (Brooks and Olive 2018). Most climate-change models predict that the Prairie region will become warmer and its precipitation patterns more erratic as climate change accelerates, with important implications for the region’s rivers and how they are governed.

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Higher winter temperatures are predicted to cause more winter precipitation to fall as rain rather than snow, which is highly problematic for farmers because much of the water will run offf during the winter months when it cannot be used for irrigation, rather than staying around as snowpack and feeding the Prairie rivers during the spring melt (Byrne, Kienzle, and Sauchyn 2010). There is also evidence that Prairie rivers with part of their source in the Rocky Mountains, such as the St. Mary, will experience a long-term decline in river flows due to melting glaciers and reduced winter snows. Furthermore, higher summer temperatures, while increasing the potential growing season, will also increase evaporation rates, creating more demand for water just at the time when available water supplies are likely to be in decline (Barnett, Adam, and Lettenmair 2005). In short, the median water supply on the Prairies is expected to decline as a result of climate change, and the current state of full allocation may become a future state of severe overallocation, even with no further growth in water use. Climate change is also likely to produce more extreme weather events such as prolonged droughts and intense floods, creating considerable challenges to established water governance institutions. A possible glimpse into the future occurred in the summer of 2011 when unusually intense precipitation in the upper Souris resulted in extensive flooding in the North Dakota city of Minot, forcing around ten thousand people from their homes. After the flood, many North Dakotans protested angrily that Saskatchewan offfijicials had not held back enough runofff in the Raffferty and Alameda Dams, allowing Minot to flood.10 Saskatchewan retorted that it was unable to hold back more water because its dams were already near capacity from a wet spring (Chabun 2015). In early 2012, the International Souris River Board stepped in and appointed a task force to investigate the flood, which, in 2013, reported on a number of recommendations for adjusting dam operations in an efffort to avoid future floods (IJC 2013). Altogether, the attainment of full allocation, the emergence of environmental problems, the ascendance of environmentalists and First Nations, and the onset of climate change have combined to force government regulators at all levels to give much greater heed to conservation and sustainability concerns than they have in the past. However, as described in the previous section, the transboundary governance regimes for the Prairie rivers were designed primarily to achieve development objectives. So, as the world has changed around them, they have become development institutions in a conservation age, and there is a pressing need to adapt them to more efffectively address conservation issues. This need has

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not been lost on the ijc, whose International Watersheds Initiative (iwi) has tried to do just that.

The IJC’s International Watersheds Initiative In 1997, the ijc released a report entitled The IJC and the 21st Century in which it fijirst floated the concept of international watershed boards. The report itself was a stocktaking exercise, requested by the US and Canadian governments, in which the ijc laid out a vision for its role in governing twenty-fijirst-century environmental problems, the implicit assumption being that the ijc could lose its relevance if it did not adapt with the times. The report recommended that the ijc move from its existing international control boards to broader-based international watershed boards. The existing control boards, such as the St. Mary–Milk Accredited Offfijicers, were primarily designed to administer water apportionments, coordinate infrastructure operations, and manage cross-border disputes within the relatively narrow confijines of the Canada-US boundary waters. The watershed boards, in contrast, would be ecosystem-based, would include the entire watersheds connected with boundary waters, and would include a much broader array of local actors in decision-making processes (IJC 1997; Clamen 2013, 72–73; Norman 2015). The international watershed boards were a bold vision for a renewed ijc presence in transboundary water governance, one that was more closely aligned with the conservation age in which the commission now operated. Initially, the US and Canadian governments expressed support in principle for the establishment of international watershed boards, but the reform soon hit a wall of political resistance. During 1998–99, the ijc identifijied three basins—the Rainy, Red, and St. Croix—as potential locations for the fijirst international watershed board and conducted extensive consultations with regulators at all levels of government, on both sides of the border. The feedback from these consultations was overwhelmingly negative, with many regulators fearing that the international-watershed-board initiative was a disguised power grab by the ijc, which sought to encroach on or usurp their regulatory powers. Facing this rejection of their bold reform plans, the ijc regrouped and rebranded the initiative as an incremental, less ambitious plan called the International Watersheds Initiative (iwi) (Clamen 2013, 75–77). Under the iwi, the ijc has taken the fijirst steps in implementing the watershed-board concept in some Canada-US transboundary waters. The iwi is most

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advanced in the St. Croix and Rainy River–Lake of the Woods basins, where the fijirst two offfijicial international watershed boards were created in 2007 and 2013, respectively (IJC 2016b). On the Prairies, the iwi has also made some progress, more so in the Souris than in the St. Mary–Milk. In 2000, the ijc consolidated the Souris-related responsibilities of the International Souris–Red River Engineering Board and the International Souris River Board of Control, creating the current International Souris River Board. In 2007, the new board was named a pilot international watershed board and was assigned water-quality and ecosystem-health reporting responsibilities, in addition to its preexisting apportionment and flood-management mandate. More emphasis was also placed on incorporating local stakeholders in board decision-making, in accordance with the international-watershed-board model (IJC 2007). The ijc has also created a program under the iwi that allows any of its boards to obtain (limited) funding for discrete projects that will pull them closer to the international-watershed-board model. Many of the projects thus far have focused on watershed-level data collection and harmonization, and signifijicant projects of this sort have been funded in both the St. Mary–Milk and Souris basins (IJC 2016b). It is hoped that developing a common, transboundary knowledge base will help to facilitate the transition to international watershed boards. The iwi experience is revealing because it suggests that reorienting the St. Mary–Milk and Souris governance regimes from development to conservation is a slow and incremental process rather than a fast and transformative one. The ijc tried the fast and transformative route in 1998–99 but had to beat a hasty retreat when their bold reform proposals were rejected by entrenched interests on both sides of the border. Since then, the ijc has taken a slower, incremental approach, preserving the long-standing development-oriented functions of its transboundary regimes while adding new conservation-oriented features to them. This is reminiscent of a type of institution reform labeled by Streeck and Thelen (2005) as “institutional layering.” This is a process in which entrenched institutional rules are preserved, while new rules are added to them in a sedimentary process that, over time, can signifijicantly change an institution’s form and function. Institutional layering is a slow, messy, and sometimes frustrating process for those seeking major institutional reforms, but in complex institutions with many vested interests, it may also be the only means of institutional reform available.

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Conclusion More than a century after the negotiation of the bwt, the ijc and its international river governance regimes in the Prairie region are in a period of challenge and uncertainty. As shown in this chapter, the St. Mary–Milk and Souris governance regimes were designed as institutions to facilitate the development of these rivers, and over the course of the twentieth century, these institutions largely succeeded in this purpose. Furthermore, the river regimes remain development-oriented institutions even today, though we have entered an age where conservation and sustainability concerns are the most pressing transboundary water governance challenges. Through the ijc’s iwi, concerted effforts have been made to reorient the river governance regimes toward conservation concerns, but progress has been slow and uneven. While the Souris regime has been incrementally moving toward the international-watershed-board model, little such progress has been made in the St. Mary–Milk regime. Experience in the Souris suggests that long-term processes of institutional layering are likely the best hope for—eventually—reorienting these transboundary river regimes toward conservation, but until that point is reached, they remain development institutions in a conservation age.

NOTES 1. Some would argue that the Red River should be included in this list. Indeed, the Red River flows through some Prairie lands and has perennial flooding problems, but this area is also more water-abundant and has little irrigated agriculture compared to its western Prairie counterparts. Consequently, the Red’s management challenges have been substantially diffferent from those on the St. Mary, Milk, and Souris Rivers, and it is not included in this study of Prairie rivers. 2. The St. Mary River in the Prairies should not be confused with the St. Mary’s River connecting Lake Superior and Lake Huron. Not only are these rivers closely named, they are also both Canada-US boundary waters, which adds to the confusion. 3. Interestingly, the Milk River is actually part of the Missouri River system that eventually drains through the Mississippi River into the Gulf of Mexico. 4. “Benefijicial use” is a legal term that holds that individuals with rights or entitlements to water must use that water for a benefijicial economic use—such as irrigation, stockwatering, mining, or manufacturing—or else surrender their entitled water so that others can put it to benefijicial use.

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5. The British government was involved in the bwt negotiations because, at this time, Canada did not have full jurisdiction over its own foreign policy, and the British government signed international treaties on Canada’s behalf. 6. More specifijically, the United States argued that the apportionment should be measured at the border, while Canada argued that it should be measured upstream, near the rivers’ sources. This was relevant because an upstream apportionment would have provided Canada with a larger share of waters originating in the United States, particularly on the Milk. On the other issue, there was agreement that Canada had a prior appropriation of 500 cubic feet per second on the St. Mary, and the US had a prior appropriation of 500 cubic feet per second on the Milk, but there was disagreement on how to operationalize the “equal apportionment” of the waters in excess of these prior appropriations. While Canada felt that all waters in excess of the prior appropriations should be divided equally between the two countries, the US felt that the non-prioritized country should get the next 500 cubic feet per second, then the remaining waters should be divided equally. Native water entitlements in Montana were also a concern in relation to Article VI, but were not a major issue in the ijc proceedings (see Halliday and Faveri 2007, 80). 7. One of the main benefijiciaries of the Raffferty and Alameda Dams was the city of Minot, North Dakota, which had experienced severe flooding throughout its history, including a catastrophic flood in 1969 that bisected the city. North Dakota benefijited so much from these dams that the US government contributed over $40 million to their construction (see Hood 1994, chapter 6). 8. “Balancing period” refers to the duration of time over which water diversions are measured and accounted to ensure they are in compliance with the apportionment rules. In the St. Mary–Milk, the standard balancing period is 15 or 16 days (see Halliday and Faveri 2007, 85–87). 9. The increased emphasis on conservation and sustainability is not meant to suggest that development should be entirely undone and that Prairie rivers should be returned to their natural state. Instead, it is meant to suggest that there is increasing emphasis on the need to balance development with environmental protection. This is implicit in the terms “conservation” and “sustainability.” 10. One unknown North Dakotan even rented a billboard in Minot which read: “Canada . . . next time keep your dam water.”

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REFERENCES Bankes, Nigel, and Elizabeth Bourget. 2013. “Apportionment of the St. Mary and Milk Rivers.” In Water without Borders? Canada, the United States, and Shared Waters, edited by Emma S. Norman, Alice Cohen, and Karen Bakker, 159–78. Toronto: University of Toronto Press. Barnett, J. P., J. C. Adam, and D. P. Lettenmair. 2005. “Potential Impacts of a Warming Climate on Water Availability in Snow-Dominated Regions.” Nature 438 (November): 303–9. Brooks, Stephen, and Andrea Olive, eds. 2018. Transboundary Environmental Governance across the World’s Longest Border. East Lansing: Michigan State University Press. Byrne, James, Stefan Kienzle, and David Sauchyn. 2010. “Prairie Water and Climate Change.” In The New Normal: The Canadian Prairies in a Changing Climate, edited by David Sauchyn, Harry Diaz, and Suren Kulshreshtha, 61–79. Regina, SK: Canadian Plains Research Centre. Chabun, Will. 2015. “Pay Attention to Souris Basin, International Agency Tells Saskatchewan.” Regina Leader-Post, December 11. Clamen, Murray. 2013. “The IJC and Transboundary Water Disputes: Past, Present, and Future.” In Water without Borders? Canada, the United States, and Shared Waters, edited by Emma S. Norman, Alice Cohen, and Karen Bakker, 70–87. Toronto: University of Toronto Press. Dreisziger, Nandor F. 1981. “Dreams and Disappointments.” In The International Joint Commission Seventy Years On, edited by Robert Spencer, John Kirton, and Kim Richard Nossal, 8–23. Toronto: Centre for International Studies. Environment Canada. 2008. “Section 2: Annual Statistics: Canada’s Physical Environment.” Human Activity and the Environment: Annual Statistics 2007 and 2008. April. http://www. statcan.gc.ca. Glenn, Jack. 1999. Once Upon an Oldman: Special Interest Politics and the Oldman River Dam. Vancouver: UBC Press. Halliday, R., and G. Faveri. 2007. “The St. Mary and Milk Rivers: The 1921 Order Revisited.” Canadian Water Resources Journal 32(1): 75–92. Heinmiller, B. Timothy. 2007. “Do Intergovernmental Institutions Matter? The Case of Water Diversion Regulation in the Great Lakes Basin.” Governance 20(4): 655–74. —. 2008. “The Boundary Waters Treaty and Canada-US Relations in Abundance and Scarcity.” Wayne Law Review 54(4): 1499–524. —. 2016. The Politics of Water Policy Reform in Southern Alberta: An Advocacy Coalition Approach. Toronto: University of Toronto Press. Hood, George N. 1994. Against the Flow: Raffferty-Alameda and the Politics of the Environment. Saskatoon, SK: Fifth House Publishers. International Joint Commission. 1921. “In the Matter of the Measurement and Apportionment of the Waters of the St. Mary and Milk Rivers and their Tributaries in the United States

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and Canada.” Accredited Offfijicers for the St. Mary–Milk Rivers—Mandate. http://ijc.org/ en_/aosmmr/Mandate. —. 1958. “1959 Interim Measures.” International Souris River Board—Mandate. March 19. http://ijc.org/en_/isrb/Mandate#In1959. —. 1992. “Interim Measures as Modifijied in 1992.” International Souris River Board— Mandate. http://ijc.org/en_/isrb/Mandate#IntMod. —. 1997. “The IJC and the 21st Century.” http://www.ijc.org/php/publications/html/21ste. htm. —. 2007. “Directive to the International Souris River Board.” http://ijc.org/en_/isrb/ Mandate#Direct. —. 2013. “Plan of Study.” International Souris River Board. http://ijc.org/en_/isrb/ Plan_of_Study. —. 2016a. “International Souris River Board.” http://ijc.org/en_/isrb/home. —. 2016b. “History.” International Watersheds Initiative. http://ijc.org/en_/IWI/History. —. 2016c. “Mandate.” The Accredited Offfijicers for the St. Mary–Milk Rivers. http://ijc.org/ en_/aosmmr/mandate. Matthews, Geofffrey J., and Robert Morrow Jr. 1985. Canada and the World: An Atlas Resource. Scarborough, ON: Prentice-Hall. Norman, Emma S. 2015. Governing Transboundary Waters: Canada, the United States, and Indigenous Communities. New York: Routledge. North Dakota Water Conservation Commission and State Engineer of North Dakota. 1942. Third Biennial Report of the State Water Conservation Commission and the Twentieth Biennial Report of the State Engineer of North Dakota. Bismarck: North Dakota Water Conservation Commission and State Engineer of North Dakota. Ostrom, Elinor. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press. Percy, David R. 2005. “Responding to Water Scarcity in Western Canada.” Texas Law Review 83(7): 2091–107. Reisner, Marc. 1993. Cadillac Desert: The American West and Its Disappearing Water. New York: Penguin. Simonds, William J. 1998. “The Milk River Project, Bureau of Reclamation History Program.” http://www.usbr.gov. Streeck, Wolfgang, and Kathleen Ann Thelen. 2005. “Introduction: Institutional Change in Advanced Political Economies.” In Beyond Continuity: Institutional Change in Advanced Political Economies, edited by Wolfgang Streeck and Kathleen Ann Thelen, 1–39. Oxford: Oxford University Press.

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Tarlock, A. Dan. 2001.“The Future of Prior Appropriation in the New West.” Natural Resources Journal 41(4): 769–93. US Environmental Protection Agency (US EPA). 2012a. Montana Water Quality Assessment Report. Washington, DC: United States Environmental Protection Agency. https:// ofmpub.epa.gov/waters10/attains_state.control?p_state=MT&p_cycle=2012. —. 2012b. North Dakota Water Quality Assessment Report. Washington, DC: United States Environmental Protection Agency. https://ofmpub.epa.gov/waters10/attains_state. control?p_state=ND. US Geological Service. 2017. Daily Discharge Graph for Souris River Near Sherwood. https:// waterdata.usgs.gov/nwis/uv?05114000. US Government. “Boundary Waters Treaty.” 1909. International Joint Commission. http://ijc.org/ fijiles/tinymce/uploaded/Boundary%20Waters%20Treaty%20of%201909_3.pdf. Willoughby, William R. 1981. “Expectations and Experiences.” In The International Joint Commission Seventy Years On, edited by Robert Spencer, John Kirton, and Kim Richard Nossal, 24–42. Toronto: Centre for International Studies. Worster, Donald. 1985. Rivers of Empire: Water, Aridity and the Growth of the American West. New York: Oxford University Press.

Transboundary Environmental Governance in the Pacific West Donald K. Alper

W

ithin the Canada-US Pacifijic West borderlands of North America, transboundary environmental politics are shaped by geography and economic interdependencies. British Columbia (BC), the Yukon, and adjacent US states share marine and freshwater basins and streams, forests, and airsheds. The sheer richness of the region’s natural bounty has made for a continual and at times contentious struggle over resource allocation and use. Disputes over salmon have led to binational allocation agreements and creation of management institutions. Issues such as the discharge of industrial wastes into transboundary rivers have involved complex diplomatic and legal effforts with varying degrees of success. The bisection of terrestrial wildlife habitats by the border has prompted joint action, including the creation of parks and protected areas. In addressing such problems, the role of national governments has lessened as tribes/ First Nations, sub-federal political entities, and nongovernmental organizations have mobilized, innovated, and led effforts to fijind solutions across state and provincial borders. As well, these issues involve new forms of border geographies, unconventional political actors, and cultural communities that complicate traditional “state-centric” diplomacy, but also offfer possibilities for innovation and new ways forward in cross-border cooperation.

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In this chapter, I fijirst briefly discuss the bordered/geographical and historical contexts of regional transboundary environmental politics in the Pacifijic West. Next, I highlight several current transboundary challenges, including the conflicts over mining in sensitive transboundary ecosystems straddling northern British Columbia and Alaska, the problems inherent in renegotiating the Columbia River Treaty, and effforts to manage the restoration and protection of the Salish Sea ecosystem as it experiences increased industrial development and population growth. All of these issues present important governance challenges, and there are useful lessons in how they are being handled or mishandled.

Bordered Environments Borders interact with the environment in complex ways. As dividers of political jurisdictions, borders can frustrate effforts to mitigate ecosystem damage where the activity causing damage falls on one side of the border and the environmental costs fall on the other. This asymmetric distribution of benefijits and burdens is typical of many transboundary environmental controversies and explains why so many are intractable (Caldwell 1985). Even in cases where there is desire to work cooperatively across political jurisdictions to resolve environmental problems, borders can make cooperation difffijicult because of diffferent legal and regulatory systems and political cultures. The divisive efffect of borders can sometimes be mitigated by cross-border spatial conceptualizations that create new forms of environmental policy space, opening possibilities for political action. For example, watershed approaches to transboundary environmental governance can be traced at least in part to frustration about the mismatch of political boundaries and natural landscapes. Some of the most ingenious outcomes from transboundary environmental problems have been motivated by the need to overcome nation-centric thinking and interest politics incentivized by political borders. Spatial formations corresponding to biophysical processes such as bioregions, airsheds, and wilderness areas represent a form of environmental bordering that can be used to mobilize resources and people for specifijic purposes. Borders also can present opportunities for cooperation over shared resources. As demonstrated by VanNijnatten and López-Vallejo Olvera in this volume, cooperative linkages among states and provinces focused on reduction of carbon reveal

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how borders can be leveraged to strengthen regional climate effforts and inspire action nationally and globally (Brooks and Olive 2018). The complex interaction between borders and the environment challenges traditional territorial-based governance.

Historical Context of Transboundary Environmental Governance Like elsewhere on the continent, the early history of bilateral environmental relations in the Pacifijic West generally was played out on the national political stage with the two federal governments defending their interests over fijish allocations, water rights, and industrial practices. In this regard, federally created binational institutions and processes form the backdrop of environmental politics. The cornerstone of Canada-US environmental binationalism is the International Joint Commission (ijc), created by the Boundary Waters Treaty of 1909. As discussed elsewhere in this volume, the ijc’s main focus has been on water-quality issues in the Great Lakes, although it has played key roles in many transboundary issues in the West (Brooks and Olive 2018). In particular, the ijc was instrumental in the Trail Smelter arbitration (Murray 1972), which dealt with a conflict over emissions from a Canadian smelter that polluted a downwind valley in Washington State; the Columbia River Treaty, which concerned flood control and power development in the binational Columbia basin (Swainson 1979); and settlement of the Skagit/Ross Dam controversy over the proposed raising of the Ross Dam on the US side of the transboundary Skagit River, and the resulting flooding of a valley in BC (Alper and Monahan 1986). More recently, ijc involvement has been requested on and offf by coalitions of ngos and aboriginal groups and Alaskan politicians to investigate pollution impacts resulting from BC mining projects in the Alaska-BC transboundary watersheds. Yet, neither Canada nor the United States has committed to ijc oversight, preferring to let subnational diplomacy run its course (Brehmer 2016). In the past decade, the ijc has taken more of a back-seat stance on transboundary watersheds issues in the far west, while local, provincial, and state actors have moved to the forefront. In general, sub-federal offfijicials have developed the attitude that province-state arrangements are sufffijicient to manage most transboundary water issues (IJC 2000; Springer 2007; Norman 2015). Yet, despite this “go it alone” attitude, and the growth in regional environmental policy innovation, federal-level

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agreements, relationships, and resources remain a vital part of the cross-border environmental governance equation. Fishery matters, the most contentious issues in the region, have been governed primarily by bilateral agreements at the federal level. The most important is the Pacifijic Salmon Treaty of 1985, renegotiated in 1999. The treaty established a management framework designed to prevent overfijishing and unfair allocation of the resource between the two nations. The treaty also incorporated signifijicant aboriginal representation on the commission that implements the treaty (Paisley et al. 2015). The Columbia River Treaty, negotiated in the early 1960s, was designed to accommodate growing power needs on both sides of the border and deal with flooding issues in the United States. Current effforts to modernize the treaty are led by the respective federal governments, although subnational jurisdictions, Indigenous organizations, and ngos are playing key roles (Norman 2015). The Canada-US Air Quality Agreement has provided a framework for cooperation to reduce industrial pollutants and the flow of ground-level ozone across the Canada-US border. Implementation of the agreement at the BC-Washington regional level has produced interagency airshed-quality accords aimed at aligning and coordinating policies. Since the 1970s, Salish Sea marine-water quality has been a major bilateral environmental issue. The threat of oil spills from tanker trafffijic has been a continuing concern, all the more so recently as the coast has become a potential energy hub for the export of oil, gas, and coal to Pacifijic Rim nations (dePlace and Gruen 2015). Actual and potential harms to the ecosystem resulting from urban and industrial growth around the Salish Sea have galvanized cooperative transboundary effforts at both the federal and sub-federal levels. Environmental governance in the Pacifijic West is characterized by a mix of federal, Indigenous, and sub-federal institutions, processes, and networks. The role of national governments, once the key players in transboundary environmental governance, has lessened as state-provincial collaborative arrangements, Indigenous organizations, and ngos have become key sources of mobilization, innovation, and leadership.

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Mining Policy and Transboundary Watersheds in the BC-Alaska Cross-Border Region Disputes over mining developments in the transboundary watersheds in the British Columbia/Yukon/Alaska region have been persistent for several decades. Many mining developments are located in the northwest corner of the province in a vast area encompassing the Alsek-Tatshenshini, Chilkat, Taku, Whiting, Stikine, Unuk, and Nass watersheds, which span territory that extends from high-mountain glacial headwaters to coastal rainforests. The region covers about 130,000 square kilometers and supports habitat for all fijive species of Pacifijic salmon as well as perhaps the most diverse species of wildlife found in North America. The sparsely populated area is home to several First Nations, including the Tlingit, Tahltan, Haida, Champagne-Aishihik, and Carcross-Tagish. Most of the controversial mining developments are located in watersheds of major salmon rivers that originate in BC and flow southwest across the border into southeast Alaska. The southern group of transboundary rivers—the Taku, Stikine, and Unuk rivers, each with headwaters located in close proximity to the Alaska border—face the most imminent threats from mining developments (Rivers Without Borders 2016). In 2016 more than twenty BC mining projects in various stages of development potentially impacted these watersheds. The mines contain many ores, with gold and copper being the most prominent. Ore extraction generates signifijicant long-term toxic wastes that are harmful to fijish and wildlife when released into the environment. To store the waste, mining companies have constructed large storage facilities known as tailings ponds. These earthen embankments, built much like typical water-retention dams, hold back reservoirs of toxic rock and water—the residue left from the milling practice that separates the metals from the ore. Regulatory oversight of tailings ponds varies around the world. Signifijicantly, the failure rate for tailings dams exceeds that of water-retention dams by approximately ten times (Kiernan 2016). The potential devastation to fijish and wildlife and local communities that occurs with a dam rupture, or even long-term leakage, has prompted increased criticism of the BC mining industry, and particularly the practice of building wet tailings dams. The 2014 failure of the Imperial Metals Corporation’s Mount Polley Dam in BC, which resulted in millions of cubic meters of gold-and-copper byproduct discharge into glacial lakes and salmon streams, spotlighted the high vulnerability of sensitive ecosystems to dam projects. Although highly reputable mining engineers insist

MAP 1.

Map of Alaska–British Columbia transboundary watersheds. MAP BY THOMAS CHRISTIAN, WESTERN WASHINGTON UNIVERSITY. SOURCES: ESRI 2004 AND 2014; MCINTIRE; NATURAL RESOURCES

CANADA 2003.

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that safe storage facilities can be, and have been, built, mining companies, faced with intense global competition, balk at the higher costs. In addition to threats from dams, the infrastructure needed to access mining projects is also a point of contention. Roads and hydro-transmission lines fragment and harm habitat and are viewed as a threat to sacred Indigenous territories as well as pristine wilderness. Large mining projects in BC have become particularly controversial in Alaska because of the potential contamination of watershed streams that feed the rich Southeast Alaska salmon fijishery and help support the state’s economically vital tourism industry. As well, many local Indigenous groups in both Alaska and BC oppose the mining developments because of the cultural importance of the rivers and land to their way of life. Environmental transboundary ngos, often allied with Alaska fijishing groups, tribal and First Nations communities, tourism associations, and political leaders, have pressed for tighter review processes and stricter standards to ensure the safety of the afffected ecosystems. Some mining critics have demanded a halt to permitting of wet tailings facilities altogether in new mine projects. Still others have called for banning new mining projects outright. The issues, once strictly local and regional, have taken on an international profijile. NGOs operating in the region have formed well-funded networks to mobilize action against the mines, and tribes and First Nations have appealed to the United Nations and other international bodies to protect land and water rights. Structure of Mining Conflicts There are several structural features of mining conflicts in BC-Alaska transboundary watersheds that hamper problem-solving effforts. First, the geography of the transboundary region creates a classic upstream-downstream dynamic. The controversial mining activity is located upstream in BC, and contaminants flow downstream across the international boundary into Alaskan waters. The division of benefijits and costs aligns with the division of territory, because Alaska receives almost none of the benefijits accruing from upstream mining in BC and bears most of the costs. Yet, it is important to note that ecosystem damage caused by mining is not fully unidirectional. The mines also are a threat to local ecosystems and cultures as well as downstream rivers and tributaries. Nonetheless, the principal benefijits and harms belong to diffferent territorial jurisdictions. Researchers have shown that asymmetric upstream-downstream externality problems are more difffijicult to solve

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than common-pool resources problems that afffect all parties similarly, such as air pollution (Ostrom 1990; Bernauer 2002; Dombrowsky 2007). Second, like most resource conflicts, controversy over mining in watersheds is played out at diffferent scales. Local communities most afffected by the mining activities are weakly connected to urban centers, political capitals, or corporate boardrooms. The region’s sparse population and isolation have made collective action and institution building difffijicult. Subnational governments, with allies in resource industries, have permitting authority and regulatory oversight over mines, and thus exercise preponderant influence over political decisions afffecting the region. At the international level, mining executives engage in competition across national territories and respond to global economic imperatives. First Nations and tribes are globally networked and appeal to international bodies to protect Indigenous rights. The politics of mining in the region encompasses multiple actors with complex agendas operating at multiple scales. Third, the mining industry is a vital sector in the political economies of western provinces and states. The economic importance of the mining sector in BC has reinforced alignment of state interests with mining interests. As a result, resource disputes display signifijicant power imbalances, all the more magnifijied in small, remote communities that often are dependent on mining corporations, lack political resources, and are not on the radar of distant provincial and federal capitals. The Tatshenshini International Campaign In the 1980s, the Canadian mining company Geddes Resources Ltd. proposed to build an open-pit mine at Windy Craggy Mountain in the northwest corner of British Columbia. The development was sited in a wilderness area surrounded by US and Canadian parks—the Kluane National Park, Wrangell–St. Elias and Glacier Bay National Park and Preserve, and the Tongass National Forest in Alaska. The mine would be located in a vulnerable watershed on Tats Creek, about twenty-fijive miles upriver from the Tatshenshini River, which joins with the Alsek River before flowing west through Alaska to the Pacifijic. The Tatshenshini ecosystem supports countless populations of wildlife and is one of the continent’s most productive salmon rivers. The region is home to Indigenous people, including the Yakutat and the Champagne-Aishihik First Nations. In 1991 Tatshenshini Wild, a coalition of more than fijifty environmental ngos and Indigenous groups in Canada and the United States, was formed to fijight the mine

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development. The coalition’s goal was to make the Tatshenshini wilderness area, where the mine is located, a wilderness preserve. The Tatshenshini mobilization involved an extensive international information campaign aimed at governments and public opinion across Canada and the United States, as well as globally, to focus attention on possible destructive impacts of the mine on the wilderness (Hume 1992). In the end, the mine development was halted and the area was protected. Several factors were important in the killing of the Windy Craggy mine. Most important, the goals of Tatshenshini Wild converged with policy decisions made by the New Democratic Party, elected in BC in 1991. The new government denied permits for the mine, pending future consideration of broader land use and budget impacts. The government decided that mining and preserving wilderness in the Tatshenshini were incompatible, and that the public benefijits (including monetary) outweighed benefijits expected from the mine (McDaniels 1999; Harrison 1996). It is also likely that international politicization of the issue by Tatshenshini Wild and its partner US group American Rivers, as well as pressure from American offfijicials, helped motivate the government’s decision to protect the wilderness area. In particular, US senator and later vice president Al Gore mobilized congressional support to press the US State Department to enter into agreements with Canada to protect the ecosystem. The direct involvement of Gore, who simultaneously pushed for world-heritage-site status for adjacent Glacier Bay National Park in the United States, was important in bringing international conservationist pressure to bear on the issue (Maserati 1993). The World Conservation Union and the United Nations Education, Scientifijic and Cultural Organization (unesco) urged BC and Canada to apply for world-heritage status for the wilderness. Importantly, First Nations supported the designation after receiving assurances that separate land claims would be respected. In 1993 the BC government moved to preserve the entire Tatshenshini-Alsek area as a protected park. World-heritage-site status was achieved in 1994, resulting in this triangular area of British Columbia, the Yukon, and southeast Alaska becoming the largest world-heritage site on earth. As with most resource issues, the Tatshenshini case pitted mining interests against the environmental community and Indigenous people. What made the outcome diffferent was the BC provincial government’s acceptance of an alternative parkland designation for the wilderness area, a critical shift from provincial governments’ traditional partiality to mining interests.1 The result was a unique outcome and a possible model of international cooperation for other transboundary wilderness areas in the north.

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Absence of Governance: The Tulsequah Chief Mine Controversy The Tulsequah Chief Mine is located on a tributary of the Taku River, located about fijifty miles upstream from Juneau, Alaska. The Taku is reputed to be one of the most productive salmon rivers in Southeast Alaska. The mine, owned by Chieftain Metals Corporation, was closed in 1957, yet toxics have leaked into the Taku river system ever since. Chieftain Metals purchased the mine in 2010 with the hope of restarting operations. Financial problems and the global commodities downturn made reopening unfeasible. With the mine closed, Chieftain claimed it could not affford to invest in improved water treatment. The BC government, which has primary regulatory authority over mining, was reluctant to step in and address the issue itself. Similarly, the Canadian federal government, despite ongoing studies showing highly toxic contamination draining from the Tulsequah site, has not enforced its own cleanup orders at the mine. In 2016, the auditor general of British Columbia formally acknowledged that the government’s compliance procedures were inadequate in addressing the contamination problems resulting from the Tulsequah Chief and other mines in the province (Phu 2016). As of this writing, the dormant mine continues to leak toxic substances into the transboundary river system. BC has promised to make the necessary fijixes, but any such action is contingent on new studies and possibly a new owner for the mine (Gullufsen 2017). Although there is little coordinated action between BC and Alaska, the state’s Large Mine Permitting Team (LMPT) does review Canadian mining projects with potential downstream impacts on Alaska fijish resources, like the Tulsequah project. The LMPT reviews are focused on aspects of projects that could adversely afffect quality of transboundary waters—water treatment facilities, construction of tailings ponds, transportation systems on the rivers (i.e., barges), and nearby access roads. These reviews, however, carry little or no weight in the ultimate permitting process that falls under BC authority. There are no institutions that would force a broader binational assessment of projects based on potential impacts on watersheds, including liability for downstream damage and losses. 2 Rather, decisions about mining are typically made in accordance with corporate interests aligned closely with the priorities of enabling provincial and federal governments. For years, ngos, Indigenous groups, and frustrated Alaskan politicians have tried to get BC to prepare an action plan spelling out specifijic steps to clean up the Tulsequah Chief mine, but little has been done. Southeastern Alaska commercial groups and political leaders, along with Indigenous communities and ngo coalitions have

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repeatedly called for both federal governments to refer the issue to the International Joint Commission (ijc). British Columbia has opposed ijc involvement, fearing harm to commercial interests. More recently, members of Alaska’s congressional delegation and Washington state senators Patty Murray and Maria Cantwell urged the US State Department and ijc to become directly involved (Salmon Beyond Borders 2016). Despite political pressure, the State Department has not intervened, maintaining that the issue is primarily local in nature and should be handled by the principal subnational entities—Alaska and British Columbia. BC has taken the same position, claiming that what is needed is a strong state-provincial mechanism for cooperation.

Evolving Governance? The Alaska-BC Transboundary MOU The impasse over the Tulsequah dispute, coupled with an upsurge in new mine proposals moved politicians on both sides of the border to urge stronger effforts by the state and province to cooperate on transboundary waters (Purdy 2015). In 2015, the governor of Alaska and premier of British Columbia agreed to draft a Memorandum of Understanding (mou), although promised input from stakeholders on a “statement of cooperation” had not yet been considered. The mou, formally signed in October 2016, called for a Bilateral Working Group on the Protection of Transboundary Waters, consisting of state and provincial offfijicials and overseen by the Alaskan lieutenant governor and the BCinister of Energy, Mines and Petroleum Resources. The working group would establish a cross-border water-quality monitoring program for afffected watersheds; institute a mechanism for government offfijicials and scientists on both sides of the border to participate in environmental assessments; ensure easier access for tribes/First Nations and stakeholders to gain access to information about mining projects; exchange best practices; and seek private and public funding to supplement existing operating budgets (Walker and Clark 2015). The mou appeared to represent a step forward. However, stakeholders were angry about being shut out of the process leading up to the mou, and roundly criticized the accord as a mere “feel-good” document lacking binding legal authority. Critics maintained that Alaska and BC offfijicials were reluctant to confront mining interests, and that federal intervention was required to provide the necessary clout to hold mining companies accountable (Jensen 2015; Gullufsen 2016).

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Whether the mou can provide a framework for efffective cross-border governance to address mining issues remains to be seen. In an ideal world, mining conflicts would be governed by a legally enforceable agreement derived from, and agreed upon by, the afffected parties and stakeholders. However, it seems unlikely such an agreement could be struck given the hesitancy of the upstream parties to be willing to subject key economic interests to an outside party. Moreover, downstream Alaskans want guarantees of liability, either from mining companies or the BC government. Even in the best of circumstances, such guarantees are difffijicult to negotiate because of disagreements among parties about the source of the harm and magnitude of the damages (Merrill 1997; Maida 1995). The mou, although essentially a nonbinding statement of intent, offfers a possible way forward, assuming willingness exists by state and provincial leaders to fijind common ground. Consideration of this issue has been at a stalemate; a political breakthrough is needed to open doors and create new opportunities. In 2010, BC and Montana signed an mou regarding resource development afffecting the North Fork of the Flathead River, which, while also nonbinding, helped create a political climate that led to legislation banning coal, oil, and gas development in the area (Locke and McKinney 2013; Tuholske and Foster 2014). The governor and premier looked beyond the single issue of a controversial mining project to the many other potential resource threats on both sides of the border (Tuholske and Foster 2014). The commitments made, and resultant action taken to implement the Montana-BC mou have had broad implications for land use and water management throughout the whole Flathead Valley ecosystem. One lesson from the Montana-BC mou is that strong leadership at multiple scales of government, and cooperation with ngos, tribes, and First Nations, is necessary to create the political will and mechanisms for implementation. In Montana, support from the federal government was particularly important to facilitate action on National Forest land where the state had no authority. Tuholske and Foster (2014) observed that the leadership of ngos was crucial in the successful implementation of the mou as the Nature Conservancy in Canada and the Nature Conservancy in the United States supplied funds for cost sharing and compensation for the expiring mineral leases. NGOs also supported the creation of the Flathead Working Group, which has developed a transboundary management plan and a platform for data sharing and cooperative fijish and wildlife management. This working group and the fijive-year transboundary Flathead Work Plan could provide a helpful model for the implementation of the BC-Alaska mou and the development

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of a bilateral working group focused on the protection of watersheds in the region. Similar soft-law frameworks for collaboration in fijisheries management in the Great Lakes, discussed by Gaden and Krueger in this volume, are shown to be efffective (Brooks and Olive 2018).

The Columbia River Treaty: A Crossroad for Environmental Governance The Columbia River Treaty, signed in 1964, manages the largest transboundary hydropower system in North America, involving waters flowing from British Columbia across the border through a vast basin encompassing portions of seven states and fijifteen tribes. The Canadian portion, covering about 15 percent of the entire basin, encompasses a large portion of British Columbia and fijifteen First Nations. The treaty was initiated by the United States for the purpose of supplying needed hydropower for rapidly growing cities in the Pacifijic Northwest and to improve flood control. The treaty called for construction of three dams in British Columbia (which the US helped pay for) and one in the United States to increase hydropower capacity and control flooding on the US side. In return, Canada would receive a one-time cash payment to offfset the cost of the dams, and a share of the benefijits of power and flood control realized downstream in the US part of the Columbia basin. The benefijits would be referred to as the Entitlement. The treaty has no specifijic end date. Instead, it includes a provision that after fijifty years (2014), either government may terminate the treaty with ten years notice. If neither nation takes action, the treaty will continue indefijinitely, although certain provisions will expire in 2024. As the ten-year notice date (2014) approached, both governments had signaled strong interest in making changes to the treaty to make it better fijit the changing circumstances and needs of the river and the communities and industries that rely on it. Both Canada—particularly BC, which is the prime implementer on the Canadian side—and the United States have established position documents, although as of October 2017 no formal negotiations have commenced. The treaty is implemented by United States’ and Canadian entities. In Canada, the province of British Columbia was designated by the federal government to implement the treaty. The main agency in charge is BC Hydro, the province’s power-marketing corporation. For the United States, the Bonneville Power Administration and the US Army Corps of Engineers constitute the U.S. Entity.

Map of Columbia River Basin.

MAP 2. MAP BY THOMAS CHRISTIAN, WESTERN WASHINGTON UNIVERSITY. SOURCES: BARRETT 2001; ESRI 2004 AND 2014; JARVIS ET AL. 2008; KIILSGAARD AND BARRETT 2002; WADOE 2001.

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The treaty is often touted as a model international water-management agreement. As a binational framework for managing flood control, generating hydropower, and sharing the benefijits from the dams on a massive international river, the treaty has been successful. Yet, the treaty was, and remains, controversial. Many Canadians believe the entitlement was too small. Tribes and First Nations blame the treaty for the basin’s decline of steelhead and salmon runs on which their physical and cultural lives depend. Environmentalists denounce the treaty for its absence of needed ecological provisions. US utility managers and their ratepayers complain about increasing costs of altering dam operations to mitigate fijish loss as well as the Canadian entitlement, thought to be too large. On the Canadian side, a coalition of First Nations and community groups has demanded compensation for communities displaced by dam-induced flooding caused by the treaty. These points of controversy pose a signifijicant challenge to negotiators because they involve not only difffijicult fijinancial issues but also complex issues of environmental identities and cultural values. Modernizing the Treaty Two keen observers of the Columbia River Treaty believe that the treaty has become an anachronism (Shurts and Paisley 2013). In their view, what is wanted and needed for a modern treaty suitable for the twenty-fijirst century is vastly diffferent and more complex than was the case decades ago. As is the case with other cross-border rivers that traverse the Canada-US border, governance arrangements devised generations ago paid almost no thought to environmental considerations or Indigenous concerns. Surface waters were viewed as central to the regions’ economic development and growth. In this volume, Heinmiller makes the point clearly with regard to Prairie rivers. As he aptly puts it, “The question was not about whether the Prairie rivers should be developed, but about how the costs and benefijits should be distributed among the relevant parties” (Brooks and Olive 2018). Similarly, the idea of widespread public participation in making critical decisions about the Columbia and other rivers was all but unheard of (Shurts and Paisley 2013). Today, unlike in the past, it is a given that tribes and First Nations must be incorporated in all facets of Columbia River water management. As a “third sovereign” (Norman 2015), Indigenous governments expect to take their place at the table to ensure that the overall health of the basin’s ecosystem is given as much priority as flood control and power generation.

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Both Canada and the United States have established initial recommendations for making changes to the treaty. In 2013 the U.S. Entity, following a multiyear process incorporating the interests of regional stakeholders and tribal sovereigns, released its set of recommendations for modernizing the treaty (Columbia River Treaty 2013). The following year, 2014, BC issued its draft recommendations (Columbia River Treaty 2014). A key aspect of both recommendations was the inclusion of ecosystem functions as an essential component of a new treaty framework to provide balance to the core flood-control and hydropower functions. Although ecosystem functions have been incorporated into the operations of dams and storage reservoirs over the years, both recommendations call for elevating them to core principles. The two treaty parties are divided on several issues. Both the US and Canadian recommendations call for revision of the entitlement formula on which US payments to Canada are based. The treaty formula for calculating benefijits is considered outdated because it is tied to the amount of anticipated power to be generated over a multiyear period. Because of changing circumstances in power markets, the United States believes the entitlement owed to Canada should be reduced. The Canadian position contends that the compensation question is unsettled because the existing formula does not take into account the numerous benefijits accrued in the United States resulting from coordinated operation of the river (such as navigation, recreation, fijish protection, and the mitigation of risk of flooding) (Davidson and McClain 2014). British Columbia wants all downstream benefijits to be part of the equation when calculating the value of the Canadian entitlement (Columbia River Treaty 2014). There are also signifijicant diffferences between the two countries’ positions on guaranteed flood control. The United States has benefijited from the “assured use” of water storage behind treaty dams in Canada. Interestingly, “assured use” is the one provision that will expire in 2024. It will be replaced by what is known as “called-upon” flood control, meaning the United States can call on Canada to use its storage dams to provide flood control, but this would occur in an ad hoc way, in accordance with certain conditions and costs that would have to be worked out. Achieving the same level of flood protection currently assured by the treaty would require the United States to rely more on its own storage dams to regulate water conditions. Shurts and Paisley (2013) view this as problematic because manipulation of water levels would cause harm to fijish in the reservoirs and downstream of the dams. Further, the amount of US compensation for “called-upon” flood control would need to be calculated to allow for economic losses and operating costs in BC, certainly another point of potential contention.

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Perhaps the most difffijicult aspect of negotiating new treaty terms is dealing with the impact of climate change. Changing weather patterns are already causing some of the highest water flows seen in decades (Smith 2013). Such conditions will require new operating protocols for reservoirs and the dams that regulate them. Canadian and US positions are similar in recognizing the need for adaptive mechanisms to respond to climate-change impacts, as well as full consultation with tribes and First Nations. One important diffference is that while the Canadian recommendation supports continuing cooperation on ecosystem improvements related to climate change, it acknowledges that changes can be made without amending or changing the treaty (Columbia River Treaty 2014). The US recommendation states that a “modernized treaty should gain long-term assurance of ecosystem-based functions rather than negotiating for these functions on an annual basis” (Columbia River Treaty 2013). Cosens (2016) notes that engagement of citizen groups has produced, and will continue to shape, changes with or without treaty negotiations. For example, tribes working with First Nations, dam operators, and US and Canadian fijish managers have created a unique cross-border collaboration to reestablish the sockeye fijishery once on the brink of extinction. NGOs throughout the basin, many with support from government agencies, have for years employed grassroots strategies to improve instream flows in Columbia basin streams and rivers. The Columbia River management system has evolved as a mix of treaty provisions, auxiliary agreements, and public participation. A fundamental component of treaty modernization is the quest by citizens’ groups and religious and Indigenous leaders to build a social-justice foundation into the treaty. In 2014 an assemblage of religious and Indigenous leaders issued an open letter to the US president and Canadian prime minister to establish an ethical set of principles for modernizing the treaty. The letter, representing nearly all tribes and First Nations in the Columbia Basin, outlined a “Declaration on Ethics and Modernizing the Columbia River Treaty” as a foundation for international negotiations (ICMN 2014). The Declaration was a pronouncement of the importance of incorporating ethical norms into a negotiating process traditionally dominated by political and economic interests: “The basin constitutes a shared international habitat that is an inclusive and integrated human-ecological system, in which our stewardship responsibilities and our moral and legal obligations to native people are actively upheld.” The 2015 report, A Sacred Responsibility: Governing the Use of Water and Related Resources in the International Columbia Basin through the Prism of Tribes and First

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Nations, contended that future governance of the basin must incorporate tribes and First Nations as formal partners in shared governance. The report, authored by the Universities Consortium on Columbia River Governance, discussed several options to improve holistic governance of the basin, one of which is to create an exclusive transboundary forum led by and for tribes and First Nations (Paisley et al. 2015). The report further notes that new models of governance would not necessarily replace the treaty or supersede other existing arrangements. Rather, “they could be pursued simultaneously and/or sequentially. From a practical perspective, it may also make sense to think of these alternative institutional arrangements as evolutionary, adaptive, and supplemental to existing governance arrangements” (65). Governance for the Future Governance of the Columbia River has become increasingly multilayered. The treaty set the terms for coordinated hydropower and flood-control operations. However, within the treaty framework, numerous agreements and operating protocols have been worked out to deal with changing conditions. For example, the operations of US storage projects have been changed over the years to improve water quality and mitigate harm to fijish and wildlife (Shurts and Paisley 2013). Agreements between the treaty entities have provided for various benefijits not prescribed in the treaty, including enhancement of fijisheries and environmental improvements to reservoirs. BC Indigenous groups and ngos, as noted above, have formed an important part of river governance by working to improve environmental, cultural, and recreational well-being of the basin. And, a series of court decisions have required actions to protect fijish. Both countries have signaled that they believe the treaty has provided signifijicant benefijits that could be lost should the treaty be terminated. A review of both countries’ treaty review processes reveals that there is little sentiment to terminate the treaty and go it alone. Assuming termination of the treaty is unlikely, and probably unwise, what is the path forward? It is clear that both countries will need to collaborate to respond to the array of new demands ranging from water quality, cultural well-being, and climate-change impacts, as well as changing hydropower demands. The nature of collaborative effforts to modernize the treaty remains to be worked out. What is known is that the status quo is unacceptable. Formal changes to the treaty language would require approval of the US Senate and the Canadian Parliament, as well as concurrence by

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BC and the afffected northwest states. The danger of opening up the treaty to highly partisan and special-interest-laden national legislatures raises serious problems of gridlock and even failure. However the process plays out, negotiations will have to include an active role by Indigenous sovereigns and organizations that speak on behalf of social and environmental values. Simply put, the process of shaping a new governance regime for the Columbia River will have to be democratized and conform to social-justice views. An international water law principle that has guided the evolution of the Columbia River Treaty is the doctrine of “equitable utilization and shared benefijits” (see Paisley 2002; Vogel 2007; Tarlock and Wouters 2007). The principle holds that riparian states sharing a waterway are entitled to equity in use and benefijits derived from the waterway’s use and resources. Although the concept of equitable utilization originally pertained to apportionment and utilization of water between states, the concept was broadened by the UN Watercourses Convention of 1997 to include environmental protection. For example, Article 27 of the Convention obligates states sharing a waterway to jointly take measures to prevent or mitigate harmful conditions that may be a result of both natural causes, such as floods and droughts, or human conduct (United Nations 1997). Tarlock and Wouters (2007) explain that this and other changes in international water law obligate states to promote social-equity and environmental-protection objectives, as well as development, in the management of water basins. This more modern interpretation of equitable utilization can be read into the U.S. Entity’s recommendation that the health of the Columbia River ecosystem should be shared benefijit and cost (Columbia River Treaty 2013). The opportunity exists to build on the strong collaborative history of the treaty, associated agreements, and evolving international law to take Columbia River governance to a higher plane in which the health of the basin is viewed as paramount. Modernization of the treaty should be based on the doctrine of equitable benefijits. As Mackenzie (2013) points out, the logic of the treaty, as it has evolved over time, is to reconnect what has been divided by boundaries. A next logical step in this progression would be to set out, if not formal treaty amendments, parallel agreements that stipulate basin-wide objectives—and the means to obtain them—that promote shared benefijits for the basin and the people who inhabit it. This would not necessarily mean replacing the treaty essentials; instead it would mean negotiating agreements that would set overall standards and operating

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protocols for the entire basin, based on the equitable-benefijits standard. Federal and/or subnational legislation would be necessary to implement such agreements. In efffect, the treaty’s meaning and application should be expanded to fijit modern ecology and the inherent rights of Indigenous people. As with many institutions discussed in this book—particularly the ijc and Great Lakes Water Quality Agreement—a gap has arisen between the Columbia River Treaty as a formal institution and its evolving responsibilities. This gap accounts for the rise of democratization pressures to meet challenges arising from ecological pressures, clean energy demands, and cultural restitution. In this regard, extraordinary imagination and full participation is required from the government partners and associated stakeholders.

The Salish Sea: The Challenge of Transboundary Policy Coordination The Salish Sea is a binational ecosystem that encompasses the Puget Sound and San Juan Islands in Washington State, the transboundary Strait of Juan de Fuca, and the Strait of Georgia and Gulf Islands in British Columbia. The name, offfijicially recognized by Canada and the United States in 2010, pays tribute to the Coast Salish people who were the fijirst inhabitants of the region. The Salish Sea spans the Canada-US border and its boundaries as represented in conventional maps and by political and media imaginaries that follow the surrounding watersheds that drain into the Pacifijic Ocean. Unlike, for example, the transboundary rivers in the BC-Alaska Northwest, degradation of this ecosystem cannot be pinpointed to any particular industrial projects, nor is there a clear upstream-downstream transboundary dynamic. The marine and fresh waters of the Salish Sea basin, situated within the most densely populated metro areas in Washington State and British Columbia (expected to reach a population of 9 million by 2025), have been degraded by industrial, transportation, and agricultural pollutants. The known causes are storm-water runofff, sewage and septic discharges, and agricultural practices—all worsened by increased industrial activity and rapid urban growth. Water-quality tests routinely fijind heavy metals and chlorinated pesticides throughout the marine waters (Donatuto 2008). MAP 3 opposite).

Map of Salish Sea Basin

MAP BY THOMAS CHRISTIAN, WESTERN WASHINGTON UNIVERSITY. SOURCES: DRAKE 2010; ESRI 2004, 2005, AND 2014; FREELAN 2009; JARVIS ET AL. 2008.

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Scientists point to added stress from climate change, expected to only get worse. The degraded marine environment disproportionately afffects Coast Salish Indigenous communities because of their ancestral rights and interdependence on the Salish Sea and the connectedness of the Coast Salish people. Early Transboundary Governance Efforts around the Salish Sea At least since the 1970s, observers of the Salish Sea marine environment have referred to it as a transboundary ecosystem (Fraser 2008). The ecological interdependence of the inland sea—stretching from Olympia, Washington, in the southern Puget Sound to the upward reaches of the Strait of Georgia in BC—inspired new regional imaginaries termed the “Georgia Basin–Puget Sound Bioregion” and “Cascadia.” By the 1980s, marine-waters management initiatives on both sides of the border were reflecting more integrated ecosystem approaches, but both nations developed their management institutions in isolation, with little attention given to binational governance (Day and Calbick 2008). Gradually, institutions for international cooperation were introduced, largely spurred by the epa’s implementation of a basin-wide approach to Puget Sound water-quality issues, as well as improved effforts in Canada to integrate federal and provincial planning in the lower Georgia Basin. In the late 1980s, a major oil spill offf the Washington State coast that polluted beaches in both Washington and BC galvanized attention to the need for more efffective cross-border collaboration on Salish Sea marine environmental issues. Several bilateral agreements related to oil-spill prevention and cleanup soon followed. In 1992, Washington State and BC signed the Environmental Cooperation Agreement pledging both governments to cooperate to preserve and restore the shared environment and create a formal institutional mechanism to deal with cross-border environmental issues. In 1993, the BC-Washington Environmental Cooperation Council (ecc) was created by state and provincial offfijicials, with tacit support from federal offfijicials (Alley 1998). The ecc’s purpose was to improve the two jurisdictions’ ability to share information, foster communication, and develop strategic planning and coordinated action in several issue domains. To carry out its mandate, the ecc created task forces to coordinate cross-border effforts in fijive priority areas: air quality, aquifer contamination, river flooding that spills over the border, contamination of the Columbia River, and protection and restoration of the Georgia Basin/Puget Sound

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(Salish Sea). While primarily a state-provincial body, the regional directors of Environment Canada and the epa were given seats on the council as observers. The ecc provided the fijirst binational institutional framework for joint action on environmental issues. As Day and Calbick note (2008, 162), its power was to enable, rather than regulate. Early on, it commissioned a major binational scientifijic study of water quality in the shared marine waters that provided baseline data on water-quality trends to guide future planning. Following, several specifijic agreements and mous were signed covering air-quality issues, marine spill prevention, Columbia River pollution, and aquifer contamination. The ecc also commissioned the fijirst binational joint monitoring project to assess fijish contamination in the Salish Sea. As a model of sub-federal environmental cooperation, the ecc spawned similar agreements between BC and Montana and BC and Idaho (but not BC and Alaska). Despite this, by 2005 the ecc was greatly reduced in capacity and action. Lack of provincial and state leadership, funding cutbacks, and the new emphasis on border security after 9/11 all but depleted the ecc. Although the ecc continues to exist, its task forces work only intermittently, if at all. The Coast Salish Gathering The Coast Salish Gathering has emerged as a highly important Indigenous-led governing body that meets annually throughout the Salish Sea region. The Gathering, begun in 2005, brings together tribal chairs, First Nation chiefs, and other Coast Salish leaders from around the Salish Sea. Its mission statement reads: We, the indigenous peoples of the Salish Sea our autonomous status as sovereign Tribes and First Nations and our inherent responsibility as protectors of our Mother Earth, will continue to speak with One Voice for the preservation, restoration, and protection of the Salish Sea Eco Region for the sustainability of our sacred inherent family rights and values that have been passed on to us by our ancestors. (Coast Salish Gathering 2015)

The Gathering represents more than seventy tribes and bands that have inhabited the Coast Salish region for millennia. From a governance perspective, Norman (2015) explains that the Gathering represents a reframing of transboundary governance to a scale that “makes sense ecologically and culturally” for Native people (116). Inherent in this form of governance is rejection of colonial bordered space based

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on territorial states and nineteenth-century reservations and reserves, all of which fragmented the Coast Salish people. An important goal of the Gathering is to “adopt a scale of governance commensurate with traditional Coast Salish territory” in which the meaning of borders is bound up with traditional rights of access to marine resources, connectedness of people across a vast geographical space, and economic and social structures that support and nourish self-governance and self-determination (120). Norman states that the creation of the Coast Salish Gathering did not replace participation in other environmental forums; “rather, it provides an organization designed for and by the Salish people that places the Coast Salish belief system at the forefront of the governance structure” (116). As an Indigenous-led transboundary governance instrument, the Coast Salish Gathering, like the Yukon River Intertribal Council and the Great Lakes Indian Fisheries Commission, is intended to protect Indigenous rights and ensure that Indigenous worldviews fully inform priorities and management practices for the Salish Sea ecosystem. Where non-Indigenous governance systems are constrained by state boundaries and focus incrementally on specifijic issues, the Coast Salish Gathering has sought to mobilize a unifijied transnational view of what is needed to fijind solutions to pressing natural-resource challenges to the Salish Sea ecosystem, and to demonstrate how twenty-fijirst-century Coast Salish land, water, and resource management can lead the way forward (Coast Salish Gathering 2015). Culturally empowering strategies for protection of treaty rights and recovery of salmon predominate in the activities of the Gathering. At the same time, Salish people have undertaken sophisticated strategies aimed at influencing federal courts, the executive branch of government, and other regional and federal centers of power. Federal Efforts: The Joint Statement of Cooperation National-level agreements between the Canadian and US governments address issues such as fijish allocations, air quality, migratory birds, and transportation of hazardous waste. However, focused effforts to design and manage the Salish Sea as one ecosystem are relatively recent. In 2000, the epa and Environment Canada signed a Joint Statement of Cooperation (jsoc) to achieve sustainability goals in what was then known as the Georgia Basin–Puget Sound ecosystem. The accord created a working group composed of federal, subnational, and tribal/First Nations leaders, and committed the two agencies to develop and periodically update action

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plans to achieve the stated goals. Although the action plans have evolved to address new issues (e.g., climate change), they have retained a core focus on fostering and coordinating information exchange; developing data systems (e.g., ecosystem indicators) for assessing the state of the Salish Sea and prioritizing threats; and promoting transboundary demonstration projects. As a process of governance, the jsoc has activated a network of scientists, citizen groups, agency offfijicials, and business in an efffort to assess water quality, monitor trends, and attempt to efffect change in human and industry behavior. Without question, the effforts under the jsoc have raised public awareness of the need to improve the health of the ecosystem on which humans, salmon, and other wildlife depend. The jsoc also has produced an excellent transboundary-ecosystem indicators report with regular updates. However, despite these effforts, water-quality conditions have deteriorated with warmer water temperatures, increasing acidity, more harmful algae, and the loss of forage fijish (Salish Sea Marine Survival Project 2016; Wong and Rylko 2014). These conditions have taken a toll on Salish Sea salmon and orca whale populations. Chinook salmon and steelhead are far less plentiful than they were just a few decades ago (Troutt 2016). The poor survival rate of salmon is considered to be a key indicator of the overall health of the shared ecosystem (Balcomb et al. 2015; SeaDoc 2014). The Salish Sea as a North American Energy Hub? During the last decade, British Columbia, Oregon, and Washington have seen numerous proposals for new coal terminals, additional oil and natural-gas pipelines, and plans for several liquid natural gas (lng) terminals and oil-by-rail facilities. This uptake in energy projects motivated by the growing Asian market has been spurred by the availability of huge oil supplies from the Alberta oil sands and the surge of coal and oil sourced from the northern interior of the United States. Projects on both sides of the border impact the Salish Sea because tankers and other ships ply transboundary inland waters between BC and Washington State; trains move Montana- and Wyoming-sourced coal through Washington State across the border to Port Metro Vancouver, BC; and Alberta and BC oil and gas move west to coastal ports on the Salish Sea. In BC, the energy infrastructure giant Kinder Morgan has proposed a second pipeline to transport bitumen from the Alberta oil sands to Burrard Inlet near Vancouver. The pipeline expansion, which was approved by Canada’s federal

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regulatory body in 2016, would likely increase tanker trafffijic on the inland waters of the Salish Sea nearly sevenfold (Associated Press 2016). Enbridge Inc.’s proposed Northern Gateway pipeline, to run from Edmonton, Alberta, to Kitimat, BC, on the northern coast, would also substantially increase the number of tankers plying the coastal waters. The Fraser Surrey Docks south of Vancouver plans to boost coal exports moving through its facility to a potential 8 million metric tons a year. The coal would transit the Salish Sea utilizing an estimated eighty Panamax-size ships each year (Nagel 2015). On the US side of the Salish Sea, there are fijive major petroleum refijineries in Washington State that process approximately 560,000 barrels of crude oil a day. Approximately six hundred oil tankers and three thousand oil barges travel through Puget Sound annually (Moore 2013). Ships traversing the Salish Sea must maneuver around pristine islands and through narrow inland straits to reach the open ocean. Increased shipping activity poses serious threats of oil spills, increased air pollution, and disruption of marine habitat. British Columbia and Washington State have cooperated on oil-spill contingency planning, but critics claim that much more needs to be done. US Senator Maria Cantwell (D-Washington) has been outspoken about the need for better risk assessment, especially regarding Alberta bitumen, which with heavier properties can be harder to clean up. She has overseen passage of legislation for upgrading oilspill response technology and other measures to improve tanker safety. Cantwell’s effforts, however, do not extend to the Canadian side of the Salish Sea. The dramatic increase in shipping trafffijic poses risks, compounded by a binational regulatory environment in which oil-tanker standards and environmental-impact assessments difffer across the border. Assessing Salish Sea Governance The health of the Salish Sea is under serious threat from stressors within the marine environment and the adjacent urban setting. As noted, there are active effforts on both sides of the border to mitigate these stressors and preserve and restore the Salish Sea. Transboundary networks have become more extensive. Clearly, the range of actors and the work being done is impressive, yet the Salish Sea environment continues to decline. Much of the policy work on restoring the Salish Sea continues to be nation-centered, meaning that it is undertaken by US and Canadian federal and subnational governments separately, in accordance with

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national, state/provincial, and local laws. The exception is the work conducted by the tribes and First Nations, much of which happens under the auspices of the Coast Salish Gathering. In their persuasive report Ten Top Principles for Designing Healthy Coastal Ecosystems Like the Salish Sea, Joseph Gaydos and his colleagues (2008) argue that the Salish Sea is a unifijied ecosystem, like many inland seas around the world, and restoration effforts are probably doomed if they do not incorporate and integrate similar effforts on both sides of the border. However, the degree of integration is minimal, and despite calls for more unifijied approaches to governance of the Salish Sea, there is no overarching framework for environmental management of the ecosystem encompassing Native and non-Native people.3 The ijc is not active on the Salish Sea. The Canada-US Pacifijic Salmon Treaty manages catch allowances for Canadian and US fijishers, but has no broader sustainability agenda. Both the BC-Washington Environmental Cooperation Agreement and the Joint Statement of Cooperation between epa and Environment Canada have been, and continue to be, useful instruments to link people, information, and agendas. However, neither of these organizations has a mandate to implement basin-wide rules or processes. Moreover, both are highly vulnerable to priority shifts by their respective governments and lack of sustaining budgets. The next step in Salish Sea governance would seem to be the creation of a basin-wide Salish Sea water-quality agreement, possibly modeled after the 2012 Great Lakes Water Quality Agreement Protocol (glwqa) or the 2007 Baltic Sea Action Plan (Jetoo and Krantzberg 2014; Kern 2011). These agreements articulate commonly agreed-on goals for restoring the ecosystem, as well as language committing the respective governments to enacting these goals in accordance with appropriate subnational and national laws.4 Funding mechanisms could be modeled on the glwqa, which provides for dedicated Canadian and US Great Lakes restoration and sustainability funds. These models and others show the importance of a basin-wide coordinating mechanism, perhaps in the form of a commission or council. To be efffective, such a body would need to have active involvement of state, provincial, federal, and aboriginal governments, ideally to provide ministerial-level coordination of functions across scales and boundaries as well as to signify commitment—and therefore political will—at the highest levels of all the governments with jurisdiction in the basin. The goal would be not to diminish the extensive work conducted by existing national and transboundary networks, but to provide a mechanism to better link people, organizations, and agendas across territories and scales.

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However desirable a basin-wide agreement might be, certain political realities in the region pose signifijicant challenges. British Columbia and Washington State do not view or undertake environmental management of the Salish Sea in the same way. The BC government is fijirmly committed to expanding energy exports to the Pacifijic Rim, and ports on the Salish Sea are viewed as gateways for this development. Indeed, the BC government’s Jobs Plan, initiated in 2011, specifijically focused on expanding trade in the Pacifijic Rim and building more critical infrastructure needed to ship goods offfshore (Canada Starts Here 2012). As part of the Jobs Plan, BC also dedicated itself to building an lng industry, with a timetable for the development of three lng export facilities by 2020 (Ministry of Energy and Mines 2015).5 Diffferences in policy approaches between BC and Washington State also pose challenges. Clauson (2016), in an in-depth comparative study of BC and Washington State environmental-protection strategies in two transboundary watersheds, identifijied divergences in approaches to riparian bufffer widths on streams and rivers, environmental assessment methods, litigation, funding methods, and approaches to coastal planning. Even at the local level, stakeholders on either side of the border do not necessarily approach environmental management the same way. Ryan Anaka (2012) reports on how stakeholders within a relatively small cross-border watershed have diffferent attitudes on how to manage the watershed, and research by Alper and Salazar (2005) reveals low levels of support among Canadian environmental activists for creating new institutions for transboundary environmental governance. Transboundary environmental governance in the Salish Sea ecosystem is underperforming. Much is happening on both sides of the border, but signifijicant transboundary policy integration remains elusive. A tradition of localism, diffferences in Canadian and US political structures, and lack of demand for more formal transboundary governmental institutions present strong challenges for the future.

Conclusion Transboundary environmental governance in the Pacifijic West is characterized by a mix of institutions, processes, and networks aimed at managing and resolving cross-border issues. As the previous case studies show, environmental issues have been framed and managed (or mismanaged) in diffferent ways, reflecting diffferent interests, degrees of institutionalization, and conceptions of natural and social

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systems. The role of national governments, once the key players in transboundary environmental governance, has lessened as sub-federal political entities, Indigenous organizations, and ngos have become key sources of mobilization, innovation, and leadership. Multiple approaches have evolved reflecting the diffferent sociopolitical and hydrological contexts that shape borderland environments. There is no “one size fijits all” approach to environmental governance, nor should there be given the diversity of geography, culture, and political factors in the region. In the BC-Alaska transboundary watershed, isolation and the virtual lack of cross-border institutions has motivated citizen groups and Indigenous organizations to mobilize domestic and global support for action—aimed at both public opinion and the provincial, state, federal, and international policy arenas. Effforts have focused on enlisting the ijc and, more recently, energizing state-provincial diplomacy. Governance of the Columbia River basin is grounded in an international treaty and numerous bilateral agreements and protocols. The governance system that has evolved is closely tied to hydropower and flood-control interests of an earlier era that neglected Indigenous sovereigns and ecosystem functions. The need for modernization of the Columbia River Treaty and supporting arrangements has prompted multiple effforts at all levels, most notably a set of inclusive recommendations from both Canada and the United States to improve the treaty. Governance mechanisms for the Salish Sea are fragmented and generally reliant on information-sharing arrangements, local restoration projects, and educational activities built upon dense—but still nation-centered—networks of ngos and supporting government agencies. The exception is the Coast Salish Gathering, which provides a unifijied perspective on the Salish Sea ecosystem as a whole. Although a unifying, basin-wide water-quality agreement seems long overdue, there is little momentum in this direction. These case studies reveal several lessons that could inform the quest for improved governance outcomes. First, transboundary environmental governance in the Pacifijic West must be fully inclusive of tribes and First Nations. Indigenous sovereignty is inherent to transboundary ecosystems that cross modern borders spanning traditional aboriginal territories. Without full partnerships with aboriginal people, it is impossible to imagine any semblance of workable transboundary environmental governance. Second, governance arrangements must link local and federal scales. Federal governments cannot be bystanders. Borders matter, and federal governments have

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jurisdiction over borders. Further, land ownership and usage implicates federal authority in virtually all environmental issues. And the federal governments are vital sources of funding, political pressure, and necessary partnerships with tribes and First Nations. Third, the importance of leadership, and particularly of individuals who are willing to “champion” the cause of promoting transboundary cooperation, cannot be overstated. Innovation in the Pacifijic West often has been precipitated by the commitment of, and personal relationships between, premiers and governors. In the absence of such champions, transboundary effforts tend to languish due to lack of political and fijinancial incentives for transboundary activity. Fourth, context matters. What works well in one setting may fail somewhere else. As Oran Young warns in his extensive work on international environmental organizations (Young 2011), it is essential to adopt a “diagnostic approach” when attempting to design institutional arrangements to solve certain problems. While it is tempting to look to treaties and other binding institutions to regulate behavior, hard-law arrangements have proven to be not very efffective in gaining compliance and are often inappropriate for management systems that require flexibility and adaptability to respond to changing circumstances. Gaden and Krueger demonstrate in this volume the value of soft-law frameworks for managing Great Lakes fijisheries. What is clear from the case studies above and other chapters in this book is that governance arrangements must have the capacity to evolve as new problems emerge, actors change, and public expectations evolve (Brooks and Olive 2018). As this chapter (and the literature) reveals, governance arrangements for transboundary ecosystems vary widely. This is because environmental issues are rooted in unique geographical, historical, and political contexts, and institutional arrangements evolve to achieve a range of purposes. Each case demonstrates a complex set of political and socioeconomic variables that bear heavily on governance design and outcomes. A challenge for policymakers and interest groups is to understand the political equations embedded in transboundary environmental conflicts, and the challenges and opportunities they present.

NOTES I would like to thank Thomas Christian for his work on the maps and helpful comments on earlier drafts of this paper.

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1. Some analysts claim the ndp government was attempting to recover moral ground and strengthen relations with environmental voting groups dissatisfijied with the government’s pro-logging decisions in the sensitive Clayoquot Sound (see Harrison 1996; Maserati 1993). 2. The Pacifijic Salmon Treaty between Canada and the United States does, through its annexes and attachments, reference the transboundary rivers’ important role in the long-term sustainability of the salmon fijishery. For example, Attachment E to the treaty, “Habitat and Restoration in the 1999 Agreement,” recognizes the crucial importance of water quality and water quantity to protection and restoration of salmon habitat. Attachment E commits the parties to “use their best effforts, consistent with applicable law,” to protect and restore habitat, maintain safe passage of salmon to and from their natal streams, and maintain adequate water quality and quantity. 3. Examples of basin-wide frameworks (referred to as “Demonstration Projects”) have been noted in the 2015–16 Action Plan between the epa and Environment Canada. Most notable are the Northwest Ports Clean Air Strategy, Coast Salish Tribal Canoe Journey Water Quality Project, and joint transboundary projects to protect whales and remove derelict fijishing gear. 4. The 2012 Great Lakes Water Quality Agreement Protocol has been criticized for lack of sufffijicient resources, conflicts of interest among water-quality board members, ambiguous language that impedes goal attainment, and the lack of foundational provisions in the agreement to ensure adequate indigenous engagement (Jetoo and Krantzberg 2014). 5. In 2016, the fijirst large lng project in BC was conditionally approved by the Canadian government.

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December 6. https://www.nwcouncil.org/history/ColumbiaRiverTreaty. Harrison, Kathryn. 1996. “Environmental Protection in British Columbia: Post Material Politics, Organized Interests, and Party Politics.” In Politics, Policy and Government in British Columbia, edited by R. Kenneth Carty, 290–309. Vancouver: University of British Columbia Press. Hume, Mark. 1992. “U.S. Pressure Could Kill Copper Mine.” Vancouver Sun, April 8. Indian Country Media Network (ICMN). “Modernize the Columbia River Treaty, Religious Leaders Urge U.S. and Canada.” 2014. Indian Country Today, October 9. http:// indiancountrytodaymedianetwork.com. International Joint Commission (IJC). 2000. Protection of the Waters of the Great Lakes: Final Report to the Governments of Canada and the United States. Washington, DC: International Joint Commission, February 22. http://www.ijc.org/fijiles/publications/C129. pdf. Jarvis A., H. I. Reuter, A. Nelson, and E. Guevara. 2008. “Hole-Filled Seamless SRTM Data V4.” International Centre for Tropical Agriculture (CIAT). http://srtm.csi.cgiar.org. Jensen, Andrew. 2015. “Alaska, BC Sign Transboundary MOU.” Alaska Journal of Commerce, November 25. http://www.alaskajournal.com. Jetoo, Savitri, and Gail Krantzberg. 2014. “A SWOT Analysis of the Great Lakes Water Quality Agreement Protocol 2012: The Good, the Bad and the Opportunity.” Electronic Green Journal 1(37). http://escholarship.org/uc/item/7h26v4cv. Kern, Kristine. 2011. “Governance for Sustainable Development in the Baltic Sea Region.” Journal of Baltic Studies 42(1): 21–35. doi: 10.1080/01629778.2011.538517. Kiernan, Paul. 2016. “Mining Dams Grow to Colossal Heights, and So Do the Risks.” Wall Street Journal, April 5. Kiilsgaard, Chris, and Charley Barrett. 2002. “Canadian CRB Current Wildlife-Habitat Types.” Northwest Habitat Institute. http://www.nwhi.org/index/gisdata. Locke, Harvey, and Matthew McKinney. 2013. “The Flathead River Basin.” In Water without Borders? Canada, the United States and Shared Waters, edited by Emma S. Norman, Alice Cohen, and Karen Bakker, 193–220. Toronto: University of Toronto Press. Mackenzie, Scott O. 2013. “A River Runs through It: The Future of the Columbia River Treaty, Water Rights, Development and Climate Change.” Georgia State University Law Review 29(4): 922–58. Maida, Peter R. 1995. “Mediating Environmental Disputes: Borrowing Ideas from a Law and Economics Perspective.” In Mediating Environmental Conflicts: Theory and Practice, edited by J. Walton Blackburn and Willa M. Bruce, 37–45. Westport, CT: Greenwood Press. Maserati, Helen. 1993. “Environment: British Columbia Opts for Wilderness over Job-Rich

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Canada/US Transboundary Energy Governance Stephen Bird and Martin D. Heintzelman

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he United States and Canada form the largest integrated energy market in the world, and energy trade in 2011 exceeded $100 billion US dollars (Energy Information Agency 2012). This continental market includes petroleum products, natural gas, electricity (including wind, hydro, nuclear, and fossil generation), and others. The bulk of energy in both dollars and volumes is dominated by Canadian exports, though trade goes both ways. For some energy commodities the reverse is true. It is also true that even where trade is not the issue, domestic energy infrastructure and production in each country have other transboundary efffects, including pollution and the diminution of amenities. Given this extraordinary integrated energy system, one would expect a robust set of national and regional governance institutions to govern energy trade, infrastructure, and other activities in border areas. This is not the case. Transboundary energy governance in the United States and Canada is constrained by a number of factors. It is siloed by energy type so that a broader vision is lacking. It is constrained by lack of harmonization and federalism at state and provincial levels. It is hamstrung by a lack of national policy in both countries and political polarization on energy issues, of which the lack of national policies is, in part, a symptom. It is confijined due to regionalism, due largely to the enormous

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border area that exists between the two countries. Finally, it is hindered by a lack of sufffijicient regulatory processes for energy siting in communities and Indigenous lands and/or banana tendencies in communities (Build Absolutely Nothing Anywhere Near Anything). Governance across borders between Canada and the United States is comparatively stronger and more robust in several other areas. These include oversight of the Great Lakes, cooperation among border agencies, trade agreements such as nafta, pollution governance, and other areas. Others have made a similar argument that functional institutions exist for the governance of climate change, but that these lack comprehensive cross-cutting coherence (VanNijnatten et al. 2013). VanNijnatten et al. argue that a diverse set of institutions and actors provide a degree of cooperation across borders in the case of climate-change mitigation policies, as seen in the California-Quebec cooperation on carbon markets. It is functional, but falls short as a comprehensive governance regime. A similar set of circumstances for cross-border energy governance and trade exists as well, but it may face even higher constraints than environmental action because of inherent problems and contradictions within the energy realm. Further, as Olive and Brooks discuss in the introduction to this volume, the national political realm has been dominated by ironic contrasts in its leadership (Brooks and Olive 2018). First, a relationship between President Obama and Prime Minister Stephen Harper that involved deeply diffferent visions of our energy and climate future. And now, as though the two nations had been moved into an alternate reality, a situation in which the roles are essentially reversed, as Prime Minister Trudeau moves to implement a carbon tax and President Trump works to roll back the Clean Power Program. In this chapter we demonstrate that a set of energy governance mechanisms do exist and sufffijice for the operation of cross-border and boundary activities, but these mechanisms are usually regional in nature or specifijic to a particular sector of the system, rather than an overarching governance system that could efffectively deal with the macro energy system. We argue that signifijicantly more could be done in energy governance for the two nations, and that such governance could be to the benefijit of both nations. Our chapter proceeds as follows. We fijirst discuss the rationale for transboundary governance, particularly as it relates to energy, followed by a discussion of productive models for this governance seen in related arenas. We then explore the challenges facing transboundary governance in practice. Included in this discussion is background on commons issues; models for transboundary governance seen in

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related areas; and general context concerning federalism, cultural issues in both countries, economic matters, and social acceptance of energy that are important to both countries. We then provide an overview of existing mechanisms for energy governance, highlighting areas of efffective oversight and areas that could be improved. Included in this analysis are three mini case studies (the Champlain Hudson Line, Keystone XL, and the Wolfe Island Wind Farm) that we use to illustrate our arguments.

The Need for Transboundary Governance There is a clear need for transboundary governance. Van de Graaf (2013) argues that “since the challenges that energy poses transcend national borders, so must our policy responses” (3). Similarly, Badenoch notes that “Transboundary challenges highlight the need for decision-making processes that go beyond the borders of individual nation-states. They illustrate the necessity of creating administrative structures designed to nurture ecologically sustainable and socially acceptable development that function on many levels” (2002, 1). Certainly, it is obvious that ecosystems ignore borders, so to the extent that energy systems and trade impact environmental commons, there is a need for governance in this area. However, the need for governance goes beyond that. For instance, benefijits and costs (monetary and otherwise) also cross borders, and socially optimal decision-making depends on counting these for all stakeholders. In short, enhanced institutional structures that address multiple interests are required for improved outcomes in the transboundary context. Transboundary governance functions in two conceptual ways. First, institutional mechanisms may address areas of concern in the regional or geographic area of the border or boundary itself, where commons concerns such as environmental impacts, local community integrity and function, or land-use issues are in play. Our analysis of the Wolfe Island Wind Farm in this piece addresses this kind of concern. Second, transboundary governance can apply more broadly to an interlocking system, such as the US and Canadian energy market writ large. We address both aspects in this article. This need for transboundary governance applies universally to situations where systems are linked across borders, but the need in the energy sector is becoming more acute. In 2003 Bradley and Watkins argued as follows:

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For the past decade energy trade has grown signifijicantly and become more market based, stimulated by deregulation and underwritten by the North American Free Trade Agreement. This has generated substantial benefijits for Canada. The growth has taken place with little friction, and energy has not been prominent on the U.S.-Canadian policy agenda. This benign situation is likely to change, with energy issues returning to the headlines. (Bradley and Watkins 2003, 1)

Their commentary was, in many ways, prescient. Since 2003, we have seen an explosion in North American energy production, as well as increased integration of the energy sector. Initial reaction to nafta on energy issues was primarily positive (Carmichael 1988). Response was focused on the possibility of establishing consultation in cases where regulation created inequity, and ensuring that trade restrictions via export or import taxes were limited. In that period, Canada’s role was primarily as an energy importer, and there was no context to the United States and Canada as potential competitors. This dynamic has changed in recent years, with some imports to Canada, a more complex energy-system dynamic, and in occasional circumstances, the understanding of the two nations as occasional energy competitors. Overall, over the last thirty or more years, there has been an increasing dependence of both countries on the other in various ways. These include the transport and refijining of petroleum products, the importation of “green” hydroelectricity from Canada to the United States, and electricity system integration for resilience and reliability in an era of more distributed energy production, in part to meet climate goals. The Commons Inherent in any discussion of transboundary energy and/or environmental issues is the idea of “the commons” and its associated incentive problems. Going back at least as far as Garrett Hardin’s “The Tragedy of the Commons” (Hardin 1968)—and perhaps all the way back to Pigou’s “Wealth and Welfare” (Pigou 1912)—analysts have understood how improperly aligned incentives between multiple users of a resource lead to overexploitation and degradation of that resource. The word “resource” here is to be construed broadly to include energy-system resilience, reliability, and (dis)amenities. At the border, one way that these incentive problems are realized is through the transport of pollutants and the imposition of costs on neighbors, as well as foregone benefijits.

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The idea of a transboundary commons reflects that many resources, natural, social, or otherwise, do not respect international borders and are, instead, shared across those borders. When this is true, one agent’s exploitation of a resource imposes costs on both the exploiting agent and those with whom she shares the resource. As just one example, consider if a polluting power plant is proposed on one side of a border. Its pollution will impact agents on both sides of the border, but will be operated and regulated by agents on only one side. Since the plant and its regulator do not face the full costs of production (some of these are imposed on agents in the other country), the plant will overproduce relative to a welfare-maximizing efffijiciency point, and the regulator will underregulate, allowing an inefffijiciently large amount of pollution. In a sense there is a separation of ownership of the costs from control. This sort of behavior on borders has been found in the context of river water quality and, separately, air pollution across both subnational state borders and international borders (Sigman 2002; Sigman 2005; Cai, Chen, and Gong 2016; Monogan, Konisky, and Woods 2016; Lipscomb and Mobarak 2017). More generally in the energy arena, companies and regulators will have an incentive to locate disamenity-producing facilities closer to borders where the nonmarketed costs of the facilities accrue, in part, to parties outside of the home country who do not have influence on the siting process. Similarly, they have an incentive to underinvest in infrastructure that would provide benefijits on both sides of the border. From a utilitarian economic perspective, the goal of any project should be to maximize surplus, or net benefijits, to society writ large, while ensuring that those who bear burdens are addressed. That is, decision-makers should be considering all benefijits and costs that accrue to all stakeholders. This is in opposition to considering only the benefijits and costs to those within the jurisdiction of control. Limiting cost-benefijit analysis in this way could lead to suboptimal outcomes where surplus improving projects do not get developed and vice versa. It is important to manage these conflicts, as there will often be ways to resolve these conflicts to the benefijit of most or all of the involved parties. However, at a local scale, mechanisms to provide this management often do not exist, perhaps especially when the border in question is international. In an ideal world, larger-scale transboundary institutions can help to overcome some of this conflict.

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Canada-US Relationship Some theorists have described the Canada-US bilateral relationship as a form of “quiet diplomacy” with low-level functional solutions in key policy areas (Brunet-Jailly 2008). Transboundary governance for Canada and the United States can simultaneously be described as multilevel governance. It is characterized by cross-border regions (geographic areas), and extensive, difffering, but also overlapping levels of private and public actors at national and subnational levels engaged in a not always coherent form of international integration. Compared to the EU, there may be harmonization within a silo of policy or among a regional area, but what is lacking is broad harmonization that crosses larger geographic or policy-arena areas of concern. Broadly, recent scholarship has argued that the movement “toward a more deeply integrated region is unravelling” (Ayres and MacDonald 2012, 3). Ayres and Macdonald argue that political polarization broadly, and in both countries, is destabilizing cross-border relationships. Gattinger similarly argues that increasing complexity in energy markets in both countries is occurring. Despite this, there have not been enough concurrent improvements in governance relations over time. She argues that despite benefijits to both nations, the markets continue to be primarily regional in nature, do not address social acceptance issues appropriately, and are often interfered with due to political concerns (Gattinger 2012). Brunet-Jailly has emphasized how the understanding of cross-border regions is critical to understanding Canada-US relations overall (Brunet-Jailly 2008). Originally, a debate existed about the degree to which trade integration leads to political integration. For instance, Nossal argued that trade integration (which would presumably derive from nafta) can lead, dangerously, to losses in sovereignty and threats to political independence (Nossal 1985). The evidence in the policy arena would indicate that this is not a concern. Instead, we contend that the lack of harmonization and understanding is detrimental to the US-Canada relationship, and to the appropriate development of energy markets and infrastructure overall, especially in the era of climate change. Indeed, we are not alone in calling for greater degrees of interdependence and coordination across broader sections of the energy policy arena (Bordofff 2016). The most extensive academic discussions concerning multilevel governance occur in the EU context. These arguments focus on the fact that multilevel governance can impair democratic legitimacy, and that robust mechanisms of conciliation procedures and direct democracy mechanisms can function to mitigate

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these kinds of negative efffects (Hurrelmann and DeBardeleben 2009). This can be particularly relevant for the kinds of cross-jurisdictional problems we see in linear energy projects (transmission lines or pipelines) or infrastructure right on the border (such as the Wolfe Island facility we discuss further on). What is clear is that when these kinds of mechanisms are not formalized (and they are unlikely to be), they have to be encouraged by governments at a variety of levels, and they occur in a variety of diffferent ways (Hooghe and Marks 2003). Models of Successful Transboundary Governance Excellent examples of productive transboundary governance exist, both within the energy domain and beyond it in other areas critical to the US-Canada relationship. For instance, the United States and Canada have a long history of working together on environmental issues. This history provides a number of models that could be adopted to help negotiate contemporary transboundary energy conflicts. These models include traditional treaties between the two countries governing the actions of one or both countries, the establishment of quasi-governmental commissions to govern particular topics at both the federal and province/state levels, and provincial/ state legal arrangements to harmonize regulation. In addition, there is substantial potential for municipal-level partnerships, particularly where the underlying issues are local or regional in nature (such as the building of energy infrastructure). Such collaborations have been viewed as common and relatively successful (Clarke 2001) in some regions of the Canada-US border and much less so in others (Nelles 2011). In these latter regional or local arrangements, however, it is important to be aware of their limitations, and how a lack of larger-level governance can impede their potential. Perhaps the most famous and efffective Canada-US mechanism in this sphere is the International Joint Commission (ijc) established by the Boundary Waters Treaty of 1909 (Saunders and Wenig 2007). The ijc is a binational (federal-federal) commission, consisting of three appointed commissioners from each country, which is empowered to manage water use from shared water bodies and basins, and to recommend solutions. The ijc’s mandate is seemingly narrow, although it has operated in a somewhat broader context (Saunders and Wenig 2007). It has been very involved in the management of the Great Lakes Basin, for instance, as well as recommending the management of flows on the St. Lawrence River, and in similar cross-border water bodies. In its guiding principles, the commission

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makes clear that commissioners, while appointed by their respective governments, represent only the commission and not their governments or other “agencies or organizations.” To this end, the commission strives to “achieve consensus wherever possible” (IJC 2016). The nature of transboundary waters, and the Great Lakes in particular, makes many of these issues symmetrical, where each country has the potential to impact the other. The ijc also includes transboundary air pollution within its mandate, as established in the 1991 Canada–United States Air Quality Agreement. This agreement largely dealt with the major air-pollution issue at the time it was completed—acid rain, although it reads as having a broad mandate to deal with transboundary air pollution (Environment and Climate Change Canada 2005). This problem was largely, although not wholly, asymmetric in nature, as Canada was being more severely impacted by US emissions than vice versa. With this asymmetry in mind, it is also important to recognize that the agreement came on the heels of the 1990 Clean Air Act Amendments, so the United States already had a regulatory regime in place and was committed to signifijicant reductions of these emissions. Prior unilateral action is a major driver of the success of US-Canada bilateral environmental agreements (VanNijnatten 2011), and as both countries lack comprehensive domestic energy policy frameworks, this serves as an impediment to further cross-border energy governance. Another example of efffective overall governance is the oversight of reliability, as governed by the North American Electric Reliability Corporation (nerc, a nonprofijit entity charged with maintaining reliability across North America). Later in this chapter we discuss challenges within nerc concerning exceptions and oddities in a few Canadian provinces. That said, nerc successfully governs reliability standards across all of North America in a remarkably successful governance process on an overall basis. Their standards ensure that electricity is reliable and available, and by almost all accounts, they accomplish their primary task (NERC 2016). While federal-federal agreements and institutions are one model for handling transboundary issues, many smaller or more local issues often get managed at the province-state level, potentially leading to the issues, discussed previously, associated with multilevel governance. Examples of this level of collaboration include the Great Lakes Commission, governing water resources in the Great Lakes, and the Conference of Northeastern Governors/Eastern Canada Premiers (cng/ecp), which has made strides in regional air-quality issues, as well as being active in the

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climate-change arena (VanNijnatten 2011). In 2016, the Great Lakes Commission was tested with an application from Waukesha, Wisconsin, to divert water from the Great Lakes Basin. In this case, the Canadian provinces of Quebec and Ontario played an advisory role in approving the transfer, although fijinal approval was only required from the governors of the eight Great Lakes states (Mehta 2016). Another example of provincial-state cooperation, representing a diffferent model of collaboration, is in the area of climate change. California and Quebec have integrated their carbon cap-and-trade markets, with Ontario (and possibly Manitoba) now also joining the program. The examples of the Great Lakes Commission and cng/ecp involve relatively broad mandates and the creation of executive bodies representing these entities in quasi-governmental structures. By contrast, this cap-and-trade integration is simply a legal arrangement to allow entities in both places to participate fully in cap-and-trade structures set up independently by California and the provinces respectively. In efffect, it is more like a border-opening or free-trade agreement than anything else (CARB 2013). Within the energy realm, there is evidence that the degree of cross-border integration is quite high in some areas. In particular, there are many examples of integration and standardization in efffijiciency standards, vehicle emissions, and electricity outputs (VanNijnatten 2013). For instance, Ian Rowlands (2013) argues that Smart Grid deployment in the United States and Canada has been strongly bilateral in nature, with extensive interaction between utilities, government agencies, and extensive policy learning and implementation on both sides of the border. Similarly, José Etcheverry (2013) describes a variety of collaborative strategies for developing renewable energy that have crossed borders in efffective ways. Similarly to the Smart Grid discussion, Etcheverry shows how a broad network of policymaker interaction, advocacy groups that cross borders, and other key stakeholders and actors have worked to create a robust network of policy implementations that are adopted by difffering jurisdictions as they learn from one another. It is important to note that in these cases, policymakers, private-sector actors, and NGOs are working in promising areas of energy development that do not involve contentious politics across borders, across jurisdictions, or across the national sphere. There have also been broad-based effforts towards North American energy cooperation, as seen in the North American Energy Working Group (naewg), established in 2001 as a trilateral efffort of Canada, the United States, and Mexico, as part of the Security and Prosperity Partnership. This group produced a number of reports on the North American energy “picture” (NAEWG 2006) and on a few

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specifijic topic areas but it isn’t clear that it produced concrete governance or policy initiatives. A similar working group was established in 2015; it focused on climate and energy, and a memorandum of understanding signed in 2016.

Challenges to Transboundary Governance Earlier, we noted several areas where transboundary governance is working, at least to some degree. That said, a variety of scholars have noted areas of concern and challenge. For instance, in the same volume as Rowlands and Etcheverry, Rabe notes a lack of signifijicant efffijicacy and scale in climate governance, and by extension energy governance (Rabe 2013). Andrea Olive noted recently that nafta has fragmented efffects on US-Canada bilateral agreements and should only be considered “integration in progress” (Olive 2015; Stoett and Temby 2015). Further, Olive, Stoett, and Temby describe how a great deal of governance activity occurs below the level of national agenda-making and is dominated by substate actors, without a clear national-level set of governance institutions. These concerns for governance go back well over a decade. Bradley and Watkins (2003) argued that tensions between environmental goals (then under Kyoto) would come into conflict with economic ambitions and concerns for energy security. They contend that “a more assertive U.S. administration will challenge Canadian understanding of the signifijicance of continental energy integration” (2). This assertion came over a decade before Keystone’s demise. However, it is not only the lack of bilateral governance that comes into play here. These kinds of conflict are inherent in the lack of national energy policy that does not address federal goals concerning environmental responses to climate change and the development of shale oil and gas. In Canada, this is most recently reflected in the enormous conflicts over expansion of oil-pipeline infrastructure and the simultaneous adoption of the Paris Agreement. Alternately, in the United States it is reflected in the lawsuits pending in the US Supreme Court over Obama’s Clean Power Program, and the simultaneous adoption of export guidelines for US shale oil and gas. Indeed, within the United States there is enormous polarization concerning energy policy direction reflected in the mantras of “drill baby drill” and “keep it in the ground.” Given the prospects for coherent national policy, it seems quite unlikely that Canada and the United States will soon adopt rational and consistent bilateral governance structures and policies concerning cross-border

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infrastructure development and energy markets at the national level. To the degree that solutions emerge, they will emerge at a regional level. Federalism A critical challenge for both countries in developing a coherent governance approach is federalism. In both countries, the fragmentation of energy systems, markets, siting, and other areas is signifijicantly afffected by the diffferentiation of policies across provinces and states. For instance, electricity markets in Canada are diffferent in each province, with minimal harmonization across provincial borders.1 Hydro-Québec’s system is diffferent than the Ontario Independent Electricity System Operator (ieso), and that story is replicated across most provinces. Similarly in the United States, system operators occur regionally, with the New England iso, New York iso, Midwest iso, and out west the Bonneville Power Authority as well as smaller operators in some states. Harmonization and trade between these systems exist, but with enormous complexity. These circumstances reinforce points made in this volume by VanNijnatten and López-Vallejo Olvera (Brooks and Olive 2018). That is to say that federalism reinforces the bias towards regionalized and siloed approaches to energy governance both domestically and within a bilateral context. Given the structurally limiting context of state and provincial diffferentiation, along with the deep levels of polarization concerning energy generally, there are real limits to what can be done to move towards national visions on energy governance. In the American context, the underlying challenges of federalism have been well established, primarily because of the inherently greater degree of complexity and challenge in creating coherent market systems (Sovacool 2008; Wiseman and Osofsky 2013). In Canada, a similar dynamic exists, though arguably to a lesser degree (Gattinger 2005; Rabe 2013). There is some evidence that federalism can minimize the efffects of corruption in certain circumstances (Fredriksson and Vollebergh 2009), but these benefijits are more than outweighed by the greater costs and convolution that occur in larger-scale systems. National Energy Policy and Polarization The challenges inherent in federalism are exacerbated by signifijicant challenges to national energy policy in both the United States and Canada. The crisis in energy

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policy in both countries is well established and generally accepted (Dachis 2016; Deutch 2011; Gattinger 2012). As noted above, coherent domestic policies are often a necessary precursor to any bilateral or multilateral international agreements. Scholars argue that national-level policies have been unable to coherently address competing needs for the economic availability of energy, addressing environmental efffects and costs most especially from climate change, and the challenge of security concerns on both a domestic and global scale (Deutch 2011; Bordofff 2016). Gattinger (2012) more recently argues that concerns for the social acceptance of energy activity have not been addressed either, hence her acronym “mess,” to describe the four most important components of energy policy: markets, environment, security, and social acceptance. Political polarization and public-opinion incoherence are both drivers of the lack of national policy development. US energy policy is reflected in part by political realities, particularly polarization among the parties and the electorate (Abramowitz and Saunders 2008; Hetherington and Weiler 2009; Foster and Wolfson 2010). This dynamic is particularly problematic in situations where those on the right want greater access to cheap (usually fossil) domestic energy sources, and those on the left want greater environmental protections and action on climate change (Druckman et al. 2013). As a result, neither country has been able to craft a long-term national energy policy that coherently addresses fossil-fuel extraction along with concerns for environmental issues. Canada’s recent 2016 adoption of a national price on carbon, which looks to have carbon-tax revenue pay for a clean-energy transition, may, however, be a fijirst move in this direction (Coulson and Roberton 2016). Nonetheless, Canada is still attempting to build or expand several pipeline systems (TransMountain, Gateway, Energy East) for the development and export of bitumin, which will have thirty- to forty-year lifetimes. Fragmentation across Jurisdictions, Energy Types, and Energy Systems Energy markets in both countries contend with an enormous degree of oversight by difffering jurisdictions within and across diffferent levels of government. This is exemplifijied in electricity markets. These markets are also complicated by diffferent levels of restructuring and deregulation across both the United States and Canada, with fully deregulated models such as Ontario, California, or New York; hybrid models like the Midwest iso or Ontario; and traditionally regulated models such as those in Quebec or the Bonneville system in the US Northwest. There is trade

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across these markets both within each country and across the borders, but the diffferentiation among these models makes the expectation for coherent governance arrangements very difffijicult (Andrews 2000; Bushnell and Wolfram 2005; Grifffijin and Puller 2005). Reliability, as governed by the North American Electric Reliability Corporation (nerc), is one of the areas with the greatest degree of governance across the entire electricity sector. This set of standards ensures that the lights stay on in a wide variety of contexts. All of the United States and eight out of ten provinces are governed by these standards. However, even in one of the best examples of transboundary governance we have in energy, there are small exceptions and idiosyncrasies in the Canadian provinces (NERC 2016). Further, nerc has an enormously complex job ensuring that the standards are met in a wild thicket of difffering electricity systems and market contexts across both countries. That said, the nerc governance regime remains the exception, not the rule, in bilateral energy governance. Social Acceptance of Energy Another challenge that is manifested within the domestic national context of both countries is the increasing crisis in social or community acceptance of energy. In some ways this is simply an extension of the national energy-policy dilemma described in previous pages. Some challenges in social acceptance are a direct extension of the paradox of fossil-fuel development versus climate-change mitigation, most notably in opposition to oil and gas pipelines. Further, the siting of energy infrastructure will become increasingly critical in the mitigation of climate change as the use of renewable energy will require additional transmission capacity to maintain system reliability. However, there is extensive evidence that opposition to energy development occurs in communities across the full spectrum of energy infrastructure, including hydro, transmission, pipelines, wind, solar, nuclear, and generation plants of all types (Nourallah 2016; Cleland et al. 2016). Further, the problems inherent in siting energy infrastructure derive from a variety of regulatory challenges that exist in both countries. These include poorly designed and implemented regulatory processes, political interference, a lack of true engagement with communities, distrust in government, and a lack of tools, will, or resources to ensure that communities see some benefijits for the impacts they shoulder (Gattinger 2012). Again, similar to the concerns for national energy policy in each nation, until improvements

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in regulatory processes for siting energy infrastructure within each nation are resolved or implemented, they will continue to be a signifijicant constraint on the implementation of wide-ranging bilateral energy governance.

Case Studies In this next section we introduce three mini case studies to illustrate some of the difffijicult challenges facing cross-border governance. The Wolfe Island Wind Facility In 2009, construction was completed on the Wolfe Island Wind Facility on a Canadian island in the St. Lawrence River at the neck of Lake Ontario. This facility consists of eighty-six wind turbines with a nameplate capacity of nearly 200 megawatts. Turbines are visible from properties on the island itself, from the Canadian mainland, and from the US side. Being directly on the border, this facility is a great example of a situation where the direct benefijits of a facility accrue to agents on one side of the border, while the costs are split over both sides. In this case, residents of Wolfe Island sufffer the disamenity of having the turbines in close proximity, but also receive benefijits including payments to landowners who have leased land to the facility, and to the Township of Frontenac Islands, which receives $C300,000 per year (Fast et al. 2015). On the other hand, residents of the town of Cape Vincent, whose homes overlook the island from the far shore of the St. Lawrence River, sufffer disamenity costs without receiving any compensation. This disparity reveals itself in an analysis of property values, where Heintzelman, Vyn, and Guth (2017) fijind negative property-value impacts on the US side with no signifijicant impacts in Canada. In addition to the disparity noted above, these impacts may be exacerbated by the fact that vacation homeowners on the US side will almost all be overlooking the turbines, while homeowners on Wolfe Island are more likely to be full-time residents, and vacation homes will largely be looking away from the center of the island and the turbines. Vacation homeowners will have a higher elasticity of demand with respect to changes in amenities (they may be less closely tied to a particular location for their vacation home than full-time homeowners would be), leading to larger price impacts. A further cost on the US side has been increased

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resistance to further wind-power development in nearby US communities (including Cape Vincent itself and nearby communities of Hounsfijield, Henderson, and others). With all of this said, it may very well be that the social net benefijits of the project (considering costs and benefijits on both sides of the border) are positive; but in the present arrangement, it seems likely that some US households are losing out from the development. As one would expect, there is little evidence of formal consultation with US communities in the planning process for the Wolfe Island facility, as indeed the US communities have no standing in the development in Canada. However, given the costs on the US side, transboundary governance institutions that allowed for the consideration of all costs and benefijits might have allowed for a diffferent outcome. In particular, to facilitate construction of energy infrastructure, it is increasingly necessary for developers to compensate not only those with standing to obstruct development, but also to build good will with others in the community through “neighbor” payments (Jameson 2009) or other mechanisms of community payment. This logic carries over to the Canada-US border, where opposition to projects often extends across the border, while governance structures to fully consider benefijits and costs to all players do not. Wolfe Island is not the only area where wind turbines near the border have created controversy.2 It’s important to remain realistic about the degree to which transboundary institutions can solve problems. Adding more parties to the discussion might also increase rancor and the number of oppositional voices. This is where it becomes important not only for institutions to exist, but for them to have both authority and legitimacy. In this way the International Joint Commission is a very good model, as described previously. Keystone XL (KXL) Pipeline In 2010 this pipeline system was commissioned by the TransCanada Corporation primarily to distribute Canadian shale oil to Nebraska, Oklahoma, Illinois, and Texas. Political opposition to the line was primarily focused on the fourth phase, which would have signifijicantly increased capacity between Alberta and Nebraska and added varying types of oil products, including some US production. Keystone faced two central pillars of opposition. The fijirst involved local communities and stakeholders such as ranchers, towns, Indigenous communities, and others. These concerns focused on potential local impacts such as water quality,

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oil spills, safety, and community aesthetics. Siting processes involved state-level reviews in addition to federal reviews (including the State Department because it was an international pipeline). Second, it also faced national-level opposition from climate-change groups such as 350.org, which argues that any increase in infrastructure for fossil fuels should be opposed, and that large-scale infrastructure functions as a long-term “lock-in” for fossil-fuel dependence. Importantly, the environmental movement was efffective in framing the debate over KXL as a referendum on our resolve to address climate change. Fluctuating oil prices have also contributed to uncertain market contexts for pipelines, especially in the context of shale oil. In November 2015, President Obama announced the rejection of Phase 4 through the State Department review. This was because the economic benefijits of the pipeline were not sufffijiciently demonstrated to outweigh its risks. These included signifijicant increases in greenhouse gases that would have occurred due to the cheap transportation enabled by the pipeline (Davenport 2015; Austen 2016). In March 2017, President Trump overturned the previous decision and approved a new application from TransCanada. A multitude of sources exist that assess the pipeline in detail. For our purposes, Keystone demonstrates several critical aspects of our argument. First, Keystone demonstrates the inherent challenges of localized siting processes for broader benefijits. Both the United States and Canada face increasing and more challenging contention over the development of energy infrastructure generally, and particularly so for linear (pipeline or transmission line) and/or fossil-based infrastructure. These challenges are complicated to a greater degree by the consideration of benefijits across the border. So, given that these processes are already extraordinarily difffijicult in the domestic context, we have no mechanisms for improving them. Second, linear projects in particular demonstrate the challenges of multiple and fragmented jurisdictions, particularly exacerbated by federalism. Phase 4 (just Keystone XL) was reviewed by the Province of Alberta; the Canadian National Energy Board; the States of Montana, South Dakota, and Nebraska; the Environmental Protection Agency; and the US State Department. Each of these processes provides opportunities to delay or veto a project, and complicates the planning and development of energy infrastructure. Most importantly, Keystone is representative of the lack of a coherent approach to fossil-fuel development and climate change in both countries. In 2016 President Obama signed legislation lifting the forty-year ban on crude-oil exports from the

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United States while simultaneously continuing to pursue the Clean Power Plan, his signature legislation to address climate change (Cook and Harder 2015).3 One could argue that the two actions are not necessarily in conflict, but at a minimum they represent the inherent challenge that both the Obama and Trudeau administrations have faced: they both hoped to reconcile signifijicant commitments to reduce global warming with, at the same time, addressing the economic impacts of a wealth of oil and gas resources. To complicate issues further, each country’s national oil and gas sectors essentially compete against each other (Cattaneo 2016). These issues are reflected in a deeply divided public in each nation, and generally represent an arena of some of the worst political polarization in each country. Thus Keystone demonstrates the need and the potential for serious energy governance, but also shows that the two countries will not move forward in terms of comprehensive bilateral agreements until they are able to resolve these issues domestically. Champlain Hudson Power Express (CHPE) In 2010, TransEnergie, the transmission arm of Hydro Québec, announced plans for a 1,000 mw dc transmission line to bring hydroelectricity (and some wind) from Quebec and Labrador to the New York City region. New York’s electricity needs are enormously congested and remain vulnerable to a variety of threats and limitations. Of particular interest is that the developers pursued a unique approach to the infrastructure by offfering to implement the cable underwater, through Lake Champlain, and then along the base of the Hudson River. The increased costs and higher levels of environmental scrutiny were apparently a worthwhile sacrifijice so that developers would not have to undergo the process of pursuing community acceptance through the more than 350 miles of siting that the linear project would have required. Despite this, the project has still been characterized by opposition because of a variety of concerns. These include the use of eminent domain, areas where the project would infringe on a bird sanctuary and state park, concerns that most jobs associated with the project would go to hq employees while eliminating some jobs at New York fossil-energy plants, and fijinally a concern that the project would not enable or allow congested green energy from northern New York to be transported to the City (Eadie 2015). The developers have since agreed to conduct additional studies to determine the feasibility of adding an upstate New York converter station to allow imports to the City from northern New York.

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The Champlain Hudson Line demonstrates several aspects of our underlying argument. First, it demonstrates the enormous challenges that developers face in attempting to gain community social acceptance for just about any new project, particularly linear projects. The ability to submerge a dc power line along a lake and river bed is an option that most projects do not have, but it reinforces the signifijicant challenges that all energy developers and communities face. In general, both countries face a domestic crisis in addressing social acceptance for new energy infrastructure that transboundary governance cannot speak to. Second, the opposition to chpe because it will exclusively import Quebec energy (instead of connecting also to domestic sources) is a superb example of some of the underlying challenges that the lack of cross-border governance creates. In short, the concerns for the importation of only Québécois electricity might have been successfully addressed under the context of an appropriate cross-border governance regime. Obviously this is a counterfactual example, but it is precisely this sort of challenge that transborder governance arrangements can productively address.

Conclusion In 2010 Roger Goodman argued for the creation of a Canada-US Energy Trade Council that would incorporate “a formal mechanism to discuss North American energy trade” in which the focus would “be on energy security, foreign policy, and expanded energy trade, including all forms of energy” (2010, 4). The underlying logic of this argument is accurate, but unfortunately we are unlikely to see the emergence of a strong, comprehensive, sector-wide governance mechanism for cross-border energy trade. This is because the innate challenges of federalism and political polarization prevent the creation of a broad national approach to energy policy in each country. Without a coherent national energy policy, it is simply not possible to implement efffective and comprehensive transboundary regimes for energy policy in Canada and the United States. Similarly, in 2012 VanNijnatten and Craik (2012) argued that energy governance was afffected strongly by the generally superior governance arrangements that address pollution, and emerging governance arrangements for climate change. In this we agree, at least insofar as regional and subnational climate-change approaches are likely to continue to slowly strengthen.

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There are limits to this narrative, however. VanNijnatten and Craik (2012) argue that the environmental and energy governance agendas are strongly interwoven. They further argue that the future of climate-change governance is likely to see at least moderate increases in integration between the two countries. We agree with both these points. The concern is that while climate-change governance is increasing in integration, it is limited still in the degree to which it is linked comprehensively to energy development more broadly. Thus we may expect to see climate governance increase somewhat, but the prospects for energy governance are much more limited. It is also true that, at present, transboundary climate governance is more about market opening than true policy integration. The current extraordinarily contentious approaches to oil and gas pipelines within each country reflect the dynamic that was seen in the Keystone XL case. Controversies have erupted in Canada associated with the Energy East, Northern Gateway, and TransMountain pipelines, while similar controversies in the United States include those over the Dakota Access Pipeline and smaller-scale controversies over gas pipelines in Vermont and Massachusetts and other locations. The Dakota Access Pipeline highlights the importance, not addressed in this chapter, of Indigenous groups in siting and energy acceptance issues. Both countries are currently unable to reconcile a coherent approach to energy development domestically, never mind in a bilateral context. Beyond the fossil-energy sector, moreover, increased integration of our energy systems will be critical in future years to build resilience and reliability, if North America is to be successful in combating climate change. A clean-energy future for North America relies on relatively distributed energy sources from solar, wind, and other renewable sources that often are not proximate to population centers. To access these sources while maintaining a reliable energy system, we will need better storage technologies, more transmission lines, or both. To optimize this system, increased cross-border governance to build out and govern the necessary infrastructure is essential. Further, even aside from the deeply contentious arena of large-scale linear fossil-fuel projects, we continue to see challenges associated with cross-border energy infrastructure. They reflect the inherent challenges of negotiating Indigenous and community acceptance of energy development broadly in both Canada and the United States (Cleland et al. 2016; Nourallah 2016). These concerns are exemplifijied in a cross-border fashion in both the Wolfe Island and Champlain Hudson Express cases. In these we see the inherent challenge associated with the development of

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energy systems, and the tension between local impacts and broader benefijits associated with clean-energy development. Even in the context of non-fossil-fuel energy systems, coherent approaches to the development and social acceptance of energy infrastructure are lacking in both countries. As such, the prospects for improved governance in transboundary energy are unlikely to change until Americans and Canadians have resolved their incoherent approaches to fossil energy, and work to resolve local community impacts of large-scale energy development.

NOTES 1. Notwithstanding a recent agreement between Ontario and Quebec: “Ontario to Buy Hydroelectricity from Quebec in Bid to Cut Emissions” (Morrow and Marotte 2016). 2. In May 2012, a two-turbine project was withdrawn from consideration in Derby Line, VT, after controversy flared, including a threat from the mayor of a neighboring town in Quebec (Stanstead) to cut offf the municipal water supply, which originates in Quebec, to Derby Line (d’Astous 2012). 3. Ironically, limited US oil exports existed under the ban, and in the fijirst three months of 2016, comparative US oil exports actually went down after the ban was lifted, primarily because the market is flooded (Kennedy 2016).

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Canada–United States Relations and a Low-Carbon Economy for North America? Debora L. VanNijnatten and Marcela López-Vallejo Olvera

I

n June of 2016, the political leaders of Canada, the United States, and Mexico met in Ottawa to consider, among other agenda items, how to build a “clean economy” in North America. The summit was widely anticipated, seen as the fijirst meeting in several years where the three leaders were of one mind on several issues—but most signifijicantly on the need to accelerate effforts to pursue a climate mitigation–clean energy agenda. In particular, the summit was seen as yet another step in a renewed Canadian-American environmental relationship, one that has been described as “one of the world’s oldest and most efffective environmental partnerships” (US EPA 2016a). After the Trudeau Liberals catapulted into offfijice in October 2015, the prime minister and President Obama, as well as various agency representatives, met several times to discuss key components in a collaborative low-carbon economy agenda. However, the presidential win by Donald Trump has changed everything; the impact is akin to the new president slamming the brakes on the drive towards a “decarbonization” of North America. The campaign rhetoric of President Trump was directly opposed to the aims of a low-carbon economy (lce), including reviving and protecting the coal industry, pursuing energy independence through increased oil and gas production, approving pipeline developments, threatening to drastically

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reduce the regulatory reach of the US Environmental Protection Agency (epa), ignoring and discrediting climate science, and promising to defect from the Paris Agreement, or at a minimum, not complying with the US Nationally Determined Contribution (ndc). The new administration has shown every intent to follow through on this anti-environmental agenda, given the content of the executive orders issued thus far and the actions taken by Scott Pruitt as epa administrator. In this scenario, where Canadian and American national climate policies are now moving in opposing directions, bilateral cooperation in this area will surely encounter signifijicant obstacles. However, one of the key messages of this chapter is that bilateral cooperation is not the only avenue available for pursuing an lce in North America. We provide an analysis of the transboundary governance architecture that currently exists to facilitate Canada-US cooperation on lce initiatives, reviewing the kinds of instruments and processes that have in the past been key to intense and efffective collaboration at various scales—not only bilateral but also subnational and cross-border/transregional—and then assessing whether these can continue to move the lce agenda forward. Activities in key decarbonization pathways, namely, carbon pricing as well as regulatory interventions aimed at mitigation, are explored to provide initial insights into how the Canada-United States environmental relationship might be sustained through the Trump administration. Certainly, the next four years will test the robustness of this relationship. What we argue is that much will depend on continued activity within transboundary governance architectures designed and operated at the subnational scale, buttressed to some extent by the climate and clean-energy activities of the Trudeau Liberal federal government. The majority of US states and Canadian provinces have climate policies already in place, and, critically, carbon-pricing systems at the subnational level—including the Regional Greenhouse Gas Initiative and the Western Climate Initiative—are becoming more deeply rooted through formal market-linkage mechanisms that tie members together politically and economically. These maturing carbon-pricing systems are also likely to encourage tighter regulatory coordination across jurisdictions in order to enhance complementarity between regulatory frameworks and carbon markets. While our discussion shows that regulatory and policy coordination currently operates through ad hoc and largely informal subnational policy difffusion and learning, often driven by California’s ambitious climate agenda, there are opportunities for national-level support for such coordination. Given the full range of climate and clean-energy

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initiatives being introduced by the Canadian federal offfijicials (including a national carbon-pricing system), and given their interest in innovations undertaken in US states, we may also see the growth of “diagonal” relationships that can serve to encourage provinces to expand their climate-policy reach in ways that enhance cross-border policy cooperation. Overall, close attention will need to be paid to understanding these multiscalar dynamics and fijinding ways to encourage coordination, particularly as the new Republican president turns away from the recent environmental achievements of national governments at the last North American Leaders Summit.

Getting to a Low-Carbon Economy in North America: The Fundamentals While there does not appear to be any offfijicial defijinition of a “low-carbon economy,” or lce, there are several attributes that are generally associated with this aspirational term. First, a low-carbon economy is seen as synonymous with a low greenhouse-gas (ghg) emissions economy (Regions for Sustainable Change 2016). In particular, the July 2009 announcement from the European Union and G8 leaders to reduce ghg emissions by at least 80 percent from 1990 levels by 2050 has emerged as a key benchmark for a low-carbon economy (Wintour and Elliot 2009). In this vein, programs to facilitate the transition toward a low-carbon economy are those that will achieve higher energy efffijiciency, greater use of renewable energy, and increased support for, and application of, green technologies—all of which will reduce ghg emissions. Second, a low-carbon economy is one where these aims are pursued across all sectors—industry, agriculture, transportation, and services—and through all stages of the production-to-consumer-to-waste cycle (Regions for Sustainable Change 2016). Transitioning to a low-carbon economy is thus seen as requiring wholesale, widely variable, yet coevolutionary shifts across the many means of powering our economy and producing goods (Foxon 2010), a gargantuan task that will result in economic winners and losers (IIER 2011). For this reason, there is a lively debate in the low-carbon policy community as regards the likelihood of economic growth during and after transition to an lce. Perhaps the most widely quoted study by Stern (2007) leads us to expect a 1–2 percent reduction in global gdp. Other lce advocates are more optimistic, believing that growth can continue even as deeply rooted

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economic shifts to decarbonized modes and means occur (Global Commission on the Economy and Climate 2014). Third, and relatedly, moving to an lce requires that policymakers utilize the full range of available policy tools for encouraging transformations in economic production and consumption. Strategic discussions about the low-carbon economy often refer to the need to pursue and manage “decarbonization pathways” for decreasing the average carbon intensity of primary energy over time. Green growth is inherent in a transition to lce, either by correcting market failures, using policies of “green Keynesianism” (especially in times of crisis), or deploying technological innovation (Jacobs 2013). There are various pathways that appear as particularly useful in terms of furthering the aims of lce advocates (see, for example, Climate Strategies 2014); this paper focuses on carbon pricing and regulatory/policy interventions aimed at mitigation. With carbon pricing, the primary goal is to capture the “external costs” of emissions from the use of fossil fuels, namely, the costs paid by the public due to the negative impacts of emissions, such as extreme climate events, drought, and health-care costs (World Bank 2016). Putting a price on carbon highlights these negative externalities and shifts the burden to those who are responsible for emissions—that is, polluters must pay. Carbon pricing will send out signals across the economy, encouraging polluters to shift to less-carbon-intensive activities and incentivizing clean-technology innovation. The two main types of carbon pricing are emissions trading systems and carbon taxes. Governments also make use of a wide range of regulatory and other policy interventions in order to change behavior and shift economic activity over to lower carbon, or even decarbonized, options. There are a wide range of regulatory and other measures that incentivize and mandate consumers and industry to produce and purchase higher-efffijiciency products, to include energy costs in their operations, and to shift to greener forms of energy, including emissions and efffijiciency standards as well as renewable-energy mandates (VanNijnatten 2013). Both carbon pricing and regulatory interventions/standard-setting are intended to encourage the uptake and difffusion of sustainable and green technologies. While technological innovation has long been seen as the engine of economic growth, this is critical for the large-scale transition to sustainability that needs to occur as we shift to the low-carbon economy of the future. In particular, there is a need for increased research and development (r & d) and applications in renewable energy at low cost and innovation for clean-energy technologies—but it is widely

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believed that this is unlikely to occur without ambitious emission-reduction targets or greener pricing schemes that alter business strategies. Canada and the United States pose a special challenge in terms of moving into lce pathways, however, as both countries are heavily dependent economically on fossil fuels. In a bidirectional energy market, Canada reported in 2014 that 93 percent of its energy exports—mainly fossil fuels such as crude oil, refijined petroleum products, and natural gas—went to the United States ($136 billion CAD), and it imported $37 billion CAD of its total energy purchases from the United States, buying most of the natural gas the country consumes from south of the border (Natural Resources Canada 2016). For its part, the United States consumed 19.05 million barrels of oil daily in 2014—the world’s highest consumption—and Canada and Mexico were among its top sources (US EIA 2016).

The Shiing Dynamic in Canada: United States Environmental Relations The low-carbon economy is considered to be a “global phenomenon,” building on international trade and supply-chain integration, technology development, and transfer across borders; international ghg mitigation commitments (Global Commission on the Economy and Climate 2014); as well as policy homologation for climate and energy standards. However, it has also been noted that this global phenomenon has more local roots, as the primary driver of innovation in most related areas has been national and subnational jurisdictions. Thus, international cooperation is required to coordinate, expand, and enhance the effforts of individual jurisdictions (Global Commission on Climate and Economy 2014). Yet transboundary cooperation appears to be moving more quickly in some regions, such as Europe or North America, where high levels of economic integration, energy-market linkages, and growing policy similarity make it a likely candidate for achieving deeper cooperation on low-carbon initiatives. In this section of the paper, we provide some context for climate and energy cooperation between Canada and the United States, highlighting the shifting dynamic over recent decades within the multiscalar transboundary architecture that characterizes the Canada-US relationship. To begin, if we look a bit further back, we can see that the foundation of the Canada-US bilateral environmental architecture was put in place over the 1980s and

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into the 1990s; new agreements were signed on water and air quality, and bilateral institutions focusing on national-level engagement proliferated (Munton and Castle 1992). Action on climate change and clean energy, however, was minimal. It was not until the late 1990s that climate cooperation intensifijied across the Canada-US border—but at an entirely diffferent level of government. A sizable literature, based on case-study research conducted during the early 2000s, indicated that US states and Canadian provinces were increasingly reaching out to one another on environmental problems, climate change, and energy integration (Stephens et al. 2015; López-Vallejo 2014; Healy et al. 2014; Rowlands 2013; Chaloux 2012; Betsill and Rabe 2009). While national governments seemed unable to act decisively on the climate-policy front, subnational governments were undertaking a variety of innovations—experimenting with climate modeling and inventories, carbon pricing and sector-specifijic initiatives, as well as various renewable-energy supports. Interestingly, these climate-policy experiments were often led by cross-border “groupings” of states and provinces who had some history of environmental cooperation, such as the New England states/Eastern Canadian provinces, the Western states and provinces, and subnational governments in the Midwest (VanNijnatten 2009). US states were particularly active, driving forward on various fronts. Part of the calculation, as Rabe (2013) explains, was the desire to get out ahead of national legislative and policy approaches, and thereby benefijit from any new regime that might be put in place. By contrast, national governments were decidedly unsuccessful during this period in moving the climate-policy agenda forward, both domestically and bilaterally. In June 2009, four months after President Obama called on Congress to send him legislation setting a market-based cap on ghg emissions, the American Clean Energy and Security Act passed the House of Representatives by a narrow margin. However, a Senate companion version (which difffered in important respects) was never voted on, and the entire project died. North of the border, the Canadian federal government never even attempted to put together comprehensive climate legislation. Instead, Prime Minister Stephen Harper released “Turning the Corner,” a very modest package of policy initiatives that focused on achieving a reduction in the emissions “intensity” of various industry sectors (rather than overall emissions reductions). Bilaterally, the two governments made initial noises about cooperating on a North American cap-and-trade program in late 2008–early 2009, shortly after Obama was elected, but little came of this. The two countries did establish a Clean Energy Dialogue charged with expanding clean-energy research and development,

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developing and deploying clean-energy technology, and building a more efffijicient energy grid based on clean- and renewable-energy sources (VanNijnatten and Craik 2012). A series of working groups were put in place to formulate action plans in these various areas. Given the inability of the United States and Canada to put in place comprehensive national climate legislation and link it with nationwide energy policies, as well as the serious budgetary difffijiculties facing US federal and state governments following the 2008 global recession, climate and clean-energy cooperation fell by the wayside, at all levels of government. While Canada seemed to weather the recession better, governments here also pulled back on environmental initiatives. And throughout this period, deployment of conventional and unconventional fossil fuels was pushed forward through fijiscal and market incentives in both countries. The shale revolution in the United States, increasing exploitation of tar sands in Alberta, the exploration of fossil fuels in the Arctic, and the continued pursuit of binational pipelines, such as the Keystone project, seemed to send a message that difffered in signifijicant ways from climate and clean-energy goals. At a personal level, the Canada-US relationship was also decidedly rocky during 2010–15. Although on diffferent topics Obama and Harper cooperated efffectively (for example, on negotiations with Cuba or Middle East security policies), the diffferences between the two executives in terms of their general political orientations (conservatism vs. progressivism) overshadowed relations. Harper postponed the North American Leaders Summit that was supposed to take place in 2015, annoying American and Mexican offfijicials, and Obama slowed the entrance of Canada into the Transpacifijic Partnership (tpp). There were also commercial disputes resulting from the “Buy American” program, unsettled discussions about the Arctic territory, and tensions over bilateral infrastructure contracts that were not implemented as envisioned under the “Beyond the Border” program (Ibittson 2014; Ek and Fergusson 2014). These policy diffferences reached climate and energy programming as well. As a former Canadian ambassador to the United States, Derek Burney, put it, climate-energy bilateral relations looked like a “frozen winter in Ottawa” (Sevastopulo 2015). In 2015, President Obama vetoed legislation passed by Congress that approved the Keystone XL Pipeline project, capping offf several years of tension between the Harper and Obama administrations on this issue. Beginning in October 2015, however, the newly elected Trudeau Liberals adopted a considerably more ambitious climate/clean-energy agenda, which played well with the Obama administration. Having campaigned on promises to establish

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national ghg-emissions reductions targets with the provinces and territories, as well as “to work in partnership with the United States and Mexico to develop an ambitious North American clean energy and environmental agreement” (Liberal Party of Canada 2015), the new government committed Canada to aggressive action at the United Nations Framework Convention on Climate Change (unfccc) cop 21 meetings in Paris in December 2015. The newly minted prime minister and his US counterpart had their fijirst meeting at the Paris cop talks, but the real launching pad for the renewed environmental bilateral relationship was Trudeau’s highly successful state visit to Washington in early 2016. There, the two governments agreed to reduce emissions of methane and hydrofluorocarbons (hfcs), to continue driving forward on emission standards for vehicles, to adopt a carbon offfset measure for the aviation sector, and—interestingly—to align the ways the two countries assess the impact of greenhouse-gas emissions caused by major projects as well as coordinate measures to reduce those emissions (Prime Minister of Canada 2016b). Then, in its March 2016 budget, the Trudeau Liberal government confijirmed that Canada would “take steps to support the transition to a global low-carbon economy” through investing in and accelerating the development and application of clean technology, supporting clean technology research, and—signifijicantly—putting a price on carbon (Government of Canada 2016a). As a very visible follow-up to the March White House visit by Trudeau, a highlevel meeting between the Canadian minister of Environment and Climate Change, Catherine McKenna, and the US epa administrator, Gina McCarthy, took place in Ottawa in April 2016. The two participated in several substantive discussions with Canadian stakeholders, including energy-sector stakeholders, clean-energy advocates, and government offfijicials. They released a joint statement at the conclusion of their visit, reiterating that they shared “a common vision . . . [o]ne that offfers new jobs and new opportunities stemming from advancements in clean technologies and more sustainable use of our natural resources” (US EPA 2016c). Later in 2016, Trudeau hosted the North American Leaders Summit, where climate and energy policy integration was at the top of the agenda. The policy background for the summit had already been set out in the Memorandum of Understanding on Climate Change and Energy Collaboration, signed in February of that year by the three North American countries. In both the document and the summit, the three leaders made several commitments in terms of transitioning to an lce: (1) a regional goal of 50 percent of clean-energy power generation by 2025; (2) ramping down short-lived climate pollutants such as methane, black carbon,

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and hydrofluorocarbons (a goal that Canada and the United States had advanced in previous meetings); and (3) promoting clean and efffijicient transportation (Prime Minister of Canada 2016a). Yet, the November 2016 US election has completely stalled national-level lce collaboration. The policy predilections of President Trump regarding environmental and climate-policy challenges the very basis of continental environmental relationships, and the much-praised regional climate goals negotiated in 2016 will certainly have to wait longer before they can be transformed into actual programs. Although the president cannot unilaterally dismantle the Paris Agreement, he has defected from it, which greatly complicates international ghg reduction strategies. Moreover, this decision has put Mexico and Canada in a situation where their main commercial partner will not establish national standards, thus preventing regional policy cooperation and putting at risk the competitiveness of the region. This situation is even more difffijicult than when former president George W. Bush and a Republican Congress defected from the Kyoto Protocol in 2001. To make matters worse, both countries are being targeted by the Trump administration for “unfair” trade practices, and Canada and Mexico are focusing all of their political resources on trying to deal with the multipronged threat of deteriorating relations with their biggest trade partner. Federal cooperation on climate change across the Canada-US border has dropped precipitously offf the agenda. A draft proposal sent to the US Congress in April 2017 by Stephen Vaughn, acting United States trade representative, suggested that environmental issues might become part of a new and broader North American trade architecture. However, such discussions were completely eclipsed by acrimonious trade negotiations on a revised North American Free Trade Agreement (nafta) beginning in the summer of 2017. In light of this confusing scenario for environmental bilateral cooperation, subnational and cross-border regional transboundary climate strategies seem to be the best option in the short run for keeping the lines of Canada-US climate communication open. Transboundary cooperation already occurs at multiple scales, and as we illustrate further on, activities dynamized “from below” may serve to push the lce agenda forward. Decarbonization Pathways in North America In assessing the potential and efffectiveness of Canada-US and North American transboundary environmental cooperation vis-à-vis decarbonization pathways,

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we assume, then, that a multiscalar approach is necessary for efffective policy coordination. Coordination on climate policy has thus far primarily operated from the “bottom up,” and there are already a few functioning schemes that can serve as building blocks for regional integration of climate and energy policies. However, it is also clear that subnational effforts tend to hit a “wall” where federal support in terms of national legislative and policy mandates as well as policy infrastructure is needed to push the collaborative agenda forward. Relatedly, there is always the risk that effforts taken across scales will not be aligned and, indeed, may work against each other. Multiscalar integration of efffort and complementarity is thus necessary. This requires the alignment of goals across jurisdictions, and even if diffferent policy instruments are used, linking mechanisms between programs must be present under the above-mentioned multilevel framework. For example, the 2016 U.S.-Canada Joint Statement on Climate, Energy, and Arctic Leadership set a bilateral goal to regulate methane ghg emissions from fossil fuels to achieve a reduction goal of 40–45 percent from 2012 levels to 2025 (Prime Minister of Canada 2016b; Taraska et al. 2016) and would presumably involve the establishment of a linked monitoring and reporting system, as well as collaborative reduction initiatives. Key to this initiative was the federal role in supporting such linkages, and a critical question now is how far subnational activities can push in terms of the climate agenda, as well as whether the Canadian Liberal government might take on this role.

Carbon Pricing and Markets Emissions trading systems (ets) have generally been more widely used than carbon taxes in North America. One of the reasons for this is that trading schemes are more efffijicient when addressing a transnational problem like climate change, whereas carbon taxes are constrained by sovereignty and exchange rates. On the other hand, an ets cannot guarantee that the specifijic goals of international climate governance will be achieved, especially when these tend to change over time (Meckling and Hepburn 2013). By contrast, when a carbon tax is enacted, it provides certainty of implementation through legal enforcement. Surprisingly, it is subnational governments that have led the charge in the creation and linking of carbon markets transregionally, as well as the implementation of other climate fijinancial instruments such as carbon taxes. There are several subnational etss in the United States and Canada that have

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been successful in diffferent ways. There are two regional initiatives: the Western Climate Initiative (wci) and the Regional Greenhouse Gas Initiative (rggi), both cap-and-trade systems. The wci is transregional, given that the California ets has worked together with the Quebec ets since 2014, when they had their fijirst joint auction; Ontario is on track to join this system in 2017. This market covers the six ghgs listed under the Kyoto Protocol and operates across a comprehensive set of sectors. The other ets, rggi, integrates Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont, and focuses on reducing co2 emissions in the power sector. It has been functioning since 2008, when it had its fijirst auction. In addition, several other subnational governments have dabbled in emissions trading. While British Columbia has a carbon tax rather than an ets, it participates on the board of directors of the wci, indicating a serious interest in ensuring that its actions are complementary to those of its neighbors. Alberta, for its part, introduced its Specifijied Gas Emitters Regulations (sger) system as early as 2007; under this program, facilities with emissions equal to or above 100,000 tonnes were required to reduce their emissions intensity (emissions per unit of output) at a declining rate over time, going from 12 percent in 2015 to 2 percent in 2017, depending on the years of operation of the facilities. Emitters were then assigned emission rights equal to the rest of the 100 percent baseline production. A facility with excess emission rights could purchase Alberta-based offfsets, make contributions to a technology fund at an increasing rate ($15 per tonne in 2015, $20 in 2016, and $30 in 2017), or buy emission rights from a facility that had a surplus, i.e., achieved more emissions reductions than required (Leach 2012).1 Several factors have been key to the success of these subnational and transregional etss. First, the price of carbon has been consistent with the very diffferent energy supply-demand contexts and the resulting ghg emissions across regions. For example, according to Canada’s National Greenhouse Gas Inventory (Environment Canada 2015), British Columbia, Quebec, and Ontario—with their energy portfolios favoring clean hydro or nuclear as well as a decreasing reliance on coal—have reduced absolute ghg emissions over the period 2005–14, while Alberta has not; in the latter province, emissions have actually increased by 40 megatons of co2eq over the same period. In terms of intensity and ghg per capita, Quebec, Ontario, and British Columbia also register the lowest intensity levels, being the most efffijicient provinces in terms of energy use. Alberta and Saskatchewan have moved in the opposite direction.

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Secondly, both regional initiatives use a cap-and-trade system, where participant members (state and provincial governments) agree to an initial carbon price set by the market. Through auctions, the market allocates pollution bonds among bidders from society; the assets resulting from the auction usually become projects for energy efffijiciency, clean technology, or sustainability (López-Vallejo 2014). For this system to work, it is expected that the price of carbon increases, the number of allowances decreases (or at least stabilizes), and the decarbonization (ghg reduction) targets rise constantly. However, these subnational etss are vulnerable in many ways—fijirst and foremost in terms of the success of permit auctions and the revenues generated. The robustness and vulnerability of wci and rggi can be assessed by analyzing the carbon prices achieved and their efffects on the participation of bidders. For wci, since the fijirst joint Quebec-California auction in 2014 (there have been eight), prices increased and stabilized (at $12.73USD), until the February 2017 auction when the price increased to $13.57USD. However, it is worth noting that in the May and August 2016 as well as February 2017 auctions, the number of allowances sold fell dramatically (California Air Resources Board 2017). One can see a similar dynamic with rggi. This Northeastern carbon market has had thirty-fijive auctions from 2008 to March 2017, starting at a price of $3.07USD per Mt in 2008 and reaching $4.54USD per Mt in the September 2016 auction. However, rggi sufffered a constant decrease in prices over 2009 to 2013, at one point reaching the lowest price of $1.86USD per Mt. For the four auctions thus far in 2017, the price is also low, at $2.15USD. The number of allowances sold has also decreased. For example, at Auction 13 (2011), there were 42,189,685 allowances offfered, but only 7,487,000 were purchased; this represented the least successful auction for the initiative (RGGI 2017). There are several possible explanations for this twofold uncertainty with regard to both prices and undersold allowances, as Vartarbedian (2016) suggests. The fijirst is that these dynamics are the result of simple market volatility and irrational buyer behavior (in the context of elections); the second is that everyone is doing so well in meeting the ghg targets, companies do not need to compensate for pollution exceedances. An additional concern is the “chill” imposed by litigation; for example, there is a pending lawsuit, initiated in 2012 by the California Chamber of Commerce, that contends the wci ets emission permit fees can be interpreted as a tax that was never authorized by the local legislature. The courts are reopening the case, and uncertainty about the fijinal rule may have caused market bidders to avoid participation (Szabo 2016). Critics also contend that some of the mechanisms

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used by wci and rggi may violate national legislation, including the US Dormant Commerce Clause, which prevents discrimination against out-of-state businesses, or the US Compact Clause, which forbids states from entering into an agreement or compact with other states or with a foreign power without the consent of Congress (Richardson 2012; Aldy and Stavins 2011). Moreover, the operation of “secondary markets,” which are part of the offfset system present in wci and in rggi, complicate the business decisions of bidders and can lead to price instability (López-Vallejo 2014). Perhaps most signifijicantly, as Trexler (2016) notes, carbon prices are “sensitive to assumptions about future policy trends and mandates. They are also sensitive to political decisions about the structure of carbon markets (e.g., the ability to use offfsets and other cost-reducing measures).” Although price volatility was expected due to the Trump Efffect, this has not been evident in rggi or wci, where, although modest, price increases have been registered in 2017. To address this concern, Quebec and Ontario, for example, are trying to diversify and link to other well-established carbon markets abroad (Carbon Pulse 2016). But there has also been continuing uncertainty about how federal policies, such as Trudeau’s national carbon-pricing system (to be implemented across Canada beginning in 2018), could undermine carbon prices under wci, rggi, or other state/provincial markets. The Trudeau government’s plan will cover the same emissions sources in each province. Provinces can choose either a cap-and-trade or a carbon-tax approach, but a minimum federal price floor must be met in carbon tax and cap-and-trade provinces. It is not clear, at this time, how this national plan, with its escalating carbon-price regime over 2018–22, will work for provinces involved in the wci system, which foresees slower carbon-price increases (Snoddon and VanNijnatten 2016). Needless to say, the Canadian federal plans have created great tension between some provinces and disappointment in others. Saskatchewan, Newfoundland, and New Scotia were early opponents of this measure, whereas British Columbia’s price or CO2eq Mt has already reached that proposed by the Canadian government after the fijirst phase-in period (Linnitt 2016). In the United States, the Clean Power Plan required that states adopt trading schemes and participate in trading emissions with other states, not necessarily through wci or rggi (transregional markets with transregional decision-making) (Geiling 2015). However, the Trump administration is now rolling back this Obama-era Plan. In addition, other national rulings may impact the price of carbon. Recently, the US government, under the National Environmental Policy Act, required a cost-benefijit analysis for environmental

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regulatory rulings, climate change included. The Offfijice of Management and Budget, under Executive Order 12866, approved a social cost of carbon of $36/ton for 2015 and $42/ton for 2020—and increasing each year because of ghg accumulative efffects (Trexler 2016; Offfijice of Management and Budget 2016). In some states, such as Minnesota or New York, courts have ruled in favor of including the federal social carbon cost into coal, electricity, or nuclear utility contracts, which would overlap with the already performing carbon-pricing schemes of regional or local initiatives. It is not clear what will happen with this Executive Order under the Trump administration. Both wci and rggi provide considerable flexibility for their members. For example, the wci started with a lot more participants and observers, yet during and after the fijinancial crisis of 2008–9, many states and provinces withdrew from the Initiative. Jurisdictions participate when they are ready to choose a full lce path through ets. For example, Ontario started negotiating for entry into the wci market in 2015, after completing a long process of closing its coal plants. Flexibility is also present when linking to other markets or policy tools. Offfsets are an important instrument for allowing this, and both etss make provision for counting offfsets in other etss, such as the Clean Development Mechanism of the Kyoto Protocol or the European ets. Although offfset arrangements under the Paris Agreement will work diffferently than those under the Kyoto Protocol, emerging etss in the developing world represent an opportunity to link US-Canada initiatives with the rest of the world. For example, the Mexican State of Chiapas signed a Memorandum of Understanding (mou) with the wci to offfset its forests under the redd+ approach (REDD Offfset Working Group 2012). Carbon taxes represent another mechanism for decarbonization by explicitly setting a price on pollution. As Meckling and Hepburn (2013) suggest, these instruments can tackle upstream polluters (in situ where polluting substances are extracted or transformed, such as fossil fuels) or downstream (where the actual emission is generated by consumers). In the case of British Columbia (BC), a carbon tax has been in place since 2008. The general price of this tax is now around $30.00CAD per Mt of ghg for the consumption of gasoline diesel, gas, propane, and coal. However, as all of these fuels emit diffferent types and quantities of greenhouse gases, the carbon tax adjusts yearly for each of them, with the tax on coal being the highest (Government of British Columbia 2015). The BC carbon tax is revenue-neutral, meaning that all of the income collected through this tax is remitted back to taxpayers and businesses or reinvested in the public budget,

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either for ghg management or other environmental or social goals (Government of British Columbia 2015). British Columbia achieved a 3.5 percent ghg emission reduction (2.2 tm) from 2005 to 2014. The carbon tax—covering 70 percent of the province’s ghg emissions—has also sent the right signal to consumers, who decreased their intake of fossil fuels by 15 percent over 2008–11 (CBC News 2013). Further, the tax is complemented by market incentives aimed at consolidating the province’s decarbonization path, including incentives for clean-energy companies and r & d for biomass, wind power, solar power, and even geothermal projects (Pembina Institute 2015). Finally, Alberta unveiled a new climate plan in 2015 featuring a broad-based carbon levy on transportation and heating fuels (diesel, gasoline, and natural gas), an annual cap on oil-sands emissions, and a phase-out of coal-fijired electricity. The carbon tax will cover 78 to 90 percent of emissions under this new plan. In the case of transportation and heating fuels, the carbon tax is paid on all emissions (as is the case with BC’s carbon tax). The rate is based on the amount of carbon pollution released by the fuel when it is combusted, and will be phased in over 2017–18 (Government of Alberta 2017). Large emitters will continue to be covered by the Specifijied Gas Emitters Regulations (sger) system, though the requirements will be tightened considerably as the sger is set to be replaced by a new system, where facilities in trade-exposed sectors (i.e., oil and gas, cement, and petrochemicals) will face sector-specifijic performance benchmarks. Those facilities with emissions in excess of these benchmarks can meet their compliance obligations by paying the carbon levy, buying Alberta-based offfsets, or purchasing emissions performance credits from facilities with surplus credits and emissions below benchmark (Snoddon and VanNijnatten 2016).

Diffusion of Policy and Regulatory Interventions in Fuel Emission and Efficiency Standards Targeting those sources that are major contributors to ghg emissions within the two countries through regulation, and having complementary standards across the North American market, can also bring about signifijicant emission reductions. Although there remains some room for interpretation, both national and subnational governments in Canada and the United States do have constitutional and legal leverage to address ghg emissions, directly and indirectly. Further, policy

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and regulatory interventions aimed at decarbonizing fuel production and use can speed the transition to a low-carbon economy. Given that the lion’s share of total emissions in North America come from the transportation and electricity/heat generation sectors (US EPA 2016b; Environment Canada 2015; IEA 2015), there are a few obvious targets for mandated reductions, including fuel-economy and tailpipe standards, low-carbon fuel standards (lcfs) to reduce the life-cycle emissions of the fuels sold, and emissions performance standards (eps) aimed at reducing co2 emissions from electric power generators by inducing “fuel-switching” (i.e., from coal to natural gas). What we are looking for here are mechanisms for encouraging policy and standards difffusion and alignment across the Canada-US border. What we actually see on the ground is a very light, largely ad hoc imprint of cross-border coordination in this area that may facilitate standards adoption across jurisdictions across Canada and the United States, through emulation and policy learning. However, at the present time, the resulting geographically fragmented approach seems unlikely to achieve any high level of alignment. For example, there has to this point been limited adoption of low-carbon fuel standards (lcfs) at the subnational level: California, British Columbia, Washington State, Oregon, and Ontario. There is, however, some evidence of regional policy emulation, particularly in terms of California’s efffect on the BC regulations (Pacifijic Institute for Climate Solutions 2010; VanNijnatten 2013). Under the umbrella of the Pacifijic Coast Collaborative, also led by California, West Coast jurisdictions have undertaken a range of discussions on measures to support low-carbon and renewable-energy initiatives to achieve an 80 percent reduction in greenhouse gases by 2050 through collaboration in several areas (Pacifijic Coast Collaborative 2016). Most recently, however, the Canadian federal government has moved to put in place a national lcfs under the Pan-Canadian Framework on Clean Growth and Climate Change, released in 2016.2 In following through on its commitment under the Framework to “develop a clean fuel standard to reduce emissions from fuels used in transportation, buildings and industry,” Environment and Climate Change Canada has initiated stakeholder discussions via workshops and meetings in late 2016 and into 2017. Interestingly, the ECCC has reached out to key decision-makers on California’s Air Resources Board (carb) in order to gain information on the California experience, but also with a view to ensuring the interoperability of a proposed Canadian lcfs with the existing California lcfs (Environment and Climate Change Canada 2017a). Indeed, a March 2017 Stakeholders Workshop on the Clean Fuel Standard began with a presentation from the chief of the Transportation

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Fuel Branch at carb (Environment and Climate Change Canada 2017b). In this case, then, policy difffusion and learning may flow up the West Coast and move across Canada, with the Trudeau government doing the heavy lifting. By contrast, the difffusion of Energy Efffijiciency Resource Standards (eers) for power generators shows no regional patterns of uptake, with at least ten states from all areas of the United States having adopted explicit numerical targets for incorporating energy efffijiciency into the power-source mix (VanNijnatten 2013). Uptake in Canada has been minimal, with BC incorporating eers into its overall climate strategy, though it is not clear if offfijicials there were modeling their plans on developments in US states. Measures to reduce emissions from the electricity sector (easily the largest source of ghg in the United States) show the two countries actually moving along separate paths, in no small part due to the adoption of diffferent national policies. The primary method is to adopt a performance-standard approach to reducing co2eq emissions, typically by specifying a maximum allowable rate of emissions per unit of product generated or sold (e.g., pounds of co2 per megawatt hour), with the aim of forcing power plants to employ technology or other measures to control co2. As is the case with so much of the environmental policy infrastructure in North America, California was the fijirst jurisdiction to introduce a co2 performance standard for coal-plant emissions as early as 2007 (VanNijnatten 2013). The target was deep enough that it would essentially require the use of carbon capture-and-storage (ccs) technology. Several other states have followed suit (e.g., Oregon, Washington State, Montana, Illinois, and New Mexico). On the northern side of the border, several provinces have either moved ahead with closing coal-fijired power plants (Ontario and Alberta) or with shifting them over to natural-gas generation (e.g., Nova Scotia, Manitoba) or are planning to do so (Alberta by 2030). Saskatchewan initiated the Boundary Dam Carbon Capture and Storage project in Estevan in 2014 in order to encourage technology adoption to achieve large emissions reduction, but the province did not mandate a specifijic performance target. Thus, in Canada, performance standards have not generally been the preferred approach. At the national scale, the American and Canadian federal governments have taken diffferent approaches to reducing electricity sector emissions over time, and these have not converged. In fact, they are likely to diverge quite markedly over the next few years. In the United States, coal-fijired electricity generation is the single largest source of carbon emissions, representing 31 percent of total ghg emissions in the country (US EPA 2015). In 2015, the Obama administration introduced the Clean

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Power Plan, which sought to reduce these emissions by 32 percent from 2005 levels by 2030. Under the plan, the epa set source-level as well as source-category-wide standards that individual units could meet through a variety of technologies and measures; states could choose their own methods for meeting the standards (US EPA 2015). In Canada, rules brought in under the Canadian Environmental Protection Act (efffective in 2015) require that new coal-fijired power plants be equipped with carbon-capture and storage (ccs) technology in order to bring ghg emissions down to the level of high-efffijiciency gas plants. Companies would also have to close plants built before 1975 by the year 2020, and any plant built after 1975 would have to close by 2030, unless equipped with ccs. The Clean Power Plan will now be dismantled under the Trump administration, though it will likely take some time to unravel the legal and regulatory framework that has painstakingly been built over the course of years. With the promise of bringing back conventional energy sources, the Trump administration is trying to revive the coal industry. The Trudeau administration, by contrast, has doubled down on reducing the number of coal-fijired power plants, through both its new carbon-pricing plan and its emphasis on developing new generation that emits less ghg emissions. This, building on the existing regulatory structure, is changing the incentives in terms of operating existing generating stations and building new ones. The exception to the rather light and ad hoc pattern of policy learning and difffusion has been vehicle fuel-emission standards—perhaps until now. The December 2009 ruling by the US epa that ghgs endanger human health provided the Obama administration with the means to regulate emissions under the 1990 Clean Air Act, even in the face of congressional refusal to act on climate change, and the administration proceeded to regulate mobile sources. At every step of the way, the Harper Conservative government made conscious effforts to follow the American lead on vehicle standards, which is consistent with a longer-term trend whereby Canada adopts California standards that then become national standards in both countries. What this has meant is the explicit harmonization of both fuel economy standards and ghg tailpipe standards. In 2010, at the same time that the US federal government announced its new standards for model years 2011–16, the Canadian government unveiled “harmonized” rules; in fact, in its notice of intent to regulate emissions from new cars and light-duty trucks, the government stated that “these regulatory standards will be equivalent to applicable US fuel economy standards” (Department of the Environment 2009). This pattern was repeated for an additional round of standards tightening for cars and light-duty trucks for model

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years 2017–25, and also for heavy-duty vehicles for model years 2014–18 and 2018 and beyond. It would seem now, however, that the Trump administration may back offf the next stage of emission standards tightening, which may indicate a coming divergence in policy here as well. Observations This discussion of carbon market architecture and the difffusion of climate-policy standards goes to the very core of how we achieve a low-carbon North America. In both the United States and Canada, the difffusion of carbon-pricing policy and programming has generally been dynamized from below, at the subnational level. Subnational governments have designed a local—and in the case of the wci, transregional—carbon market infrastructure with linking capacities to other markets and ghg mechanisms. Governments at this scale have overcome the lack of federal national policies, innovating and expanding climate-energy policy toolkits. In the end, these initiatives have served as building blocks for national effforts, as in the case of Trudeau’s Pan-Canadian Framework on Clean Growth and Climate Change and—prior to Trump—the epa’s regulations under Obama’s Clean Power Plan. The flexibility built into these carbon markets allows them to respond to some challenges, including diffferent or even divergent national policies and politics. However, economic crisis and local politics have also demonstrated the limits of their institutional robustness, and the need for national-level support. And, serious questions remain regarding how easily subnational carbon market systems can coexist with current national climate-policy schemes—or federal obstruction, as is now the case in the United States. Certainly, there are tensions between scales and across borders that will need to be addressed, and greater effforts at coordination are needed. It is not altogether clear to what extent existing mechanisms will be able to encourage higher levels of coordination, given the current context. Most channels for US-Canada climate collaboration and coordination on decarbonization pathways are now blocked; whereas bilateral climate relations did not progress much during the past two decades, nevertheless communication channels and infrastructure did exist to support collaborative projects. The election of Prime Minister Trudeau, paired with Obama’s support for moving further along lce pathways, seemed to indicate that the region would synchronize their climate goals—promoting low-carbon economies through clean-energy deployment, carbon pricing, and a

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harmonization of policies—and build on this nascent infrastructure. The election of Trump in the United States challenges this vision, which had foreseen national governments attaining a higher level of cooperation and harmonization of climate approaches, goals, and standards. While the new US administration attempts to roll back the provisions of the Clean Power Plan, and targets existing climate-related regulations and standards—and faces considerable opposition from states and other environmental-policy stakeholders as it does so—governments south of the border will become enmeshed in climate-policy conflict. At the same time, however, in Canada the Trudeau government is bringing a higher level of consistency to the national climate-policy regime, and continues to work on adding new policies to this regime. While this likely means increased divergence between Canadian and American national policy and regulatory approaches, there appears to be some scope for “diagonal” relationships to bolster cross-border policy cooperation; the lcfs is one example where this is already occurring. The possibility exists, then, of subnational and transregional initiatives to price carbon, deploy clean technology, and harmonize standards—without national leadership in the United States, but rather with leadership by Canada. This represents a marked departure from the North American climate policy story that has unfolded over the past two decades. However, Canada pursues this path at some risk to its bilateral relations and will need to continue to reach out to the Trump administration in those areas where cooperation seems practical. Under George Bush and Stephen Harper in the fijirst decade of the twenty-fijirst century, the two countries directed their effforts towards the development of clean coal and other technologies, as well as enhanced cross-border energy coordination—in a context where neither administration supported overt climate-policy effforts. It may be that the kinds of infrastructure that supported those forms of cooperation—transgovernmentalism via interagency mous and the Clean Energy Dialogue—could be redirected toward, for example, more aggressive energy-efffijiciency initiatives, which tend to be seen in the United States as good business practice and thus relatively uncontroversial. There may also be a bilateral discussion to be had with regard to adaptation, which would serve to raise awareness among those in the US administration. Certainly, governments that wish to continue to pursue an lce in North America will need to be highly strategic in their approaches, as the next four years will certainly prove challenging. Such challenges are not new, however, for subnational administrations who have pursued climate-policy innovations in the face of federal

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inaction or even opposition over the past two decades. As California’s governor Jerry Brown noted in response to the president-elect’s anti-climate views: “Bring it on . . . we’ll have more battles and more victories” (Myers 2016).

NOTES 1. For more detailed information, please see: http://aep.alberta.ca/climatechange/guidelines-legislation/specifijied-gas-emitters-regulation/documents/ ClimateChangeEmissionsFund-MO-13-2015.pdf. 2. For information on the Framework, please see: https://www.canada.ca/en/services/ environment/weather/climatechange/pan-canadian-framework.html.

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Lessons Learned and New Applications Andrea Olive

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his book examined numerous case studies in transboundary environmental governance. The fijirst four chapters focused mainly on the Great Lakes by outlining the history of the International Joint Commission (ijc) and following it through controversial hydropower projects, to fijisheries, to pollution. As new challenges emerge in the Great Lakes regions, policy actors respond by creating new compacts, agreements, and laws. The result is a connected and layered policy framework that includes a multiplicity of actors at diffferent scales. The other four chapters in the book move geographically and by topic, but stick to a critical analysis of transboundary governance. Many of the cases explored in the eight chapters note similar challenges and tensions in bilateral governance. For example, most authors note instances of divergence instead of convergence in policy areas. To a large extent, these authors pay careful attention to how convergence can be achieved through partnerships. We also see federalism arise as challenge (when there is lack of federal authority or leadership) and as opportunity (when subnational jurisdictions work together) through most chapters in the book. What ties the eight chapters together, beyond a focus and critical analysis of transboundary governance of environmental issues in Canada and the United States, is the theme of increasing complexity. This is a two-pronged problem

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because environmental issues have become more complicated (climate change, biodiversity loss, invasive species, and pharmaceutical pollutants, for example), leading to increased institutional attention at multiple layers. Political complexity seems to be the result of environmental complexity. In his chapter, Stephen Brooks came to the conclusion that the ijc is no longer the institution for transboundary governance. He set the tone for the following chapters with the observation that the ijc is less relevant today because of “the proliferation of a dense and complicated network of subnational relationships around transboundary water management and other environmental issues.” The other authors in the book agree, either explicitly through direct argument, or implicitly through case studies that exemplify Brooks’s point. In 2017, there are hundreds of transboundary agreements and institutions that govern Canada-US environmental policymaking and implementation. And some have achieved greater success than others. This fijinal chapter will highlight some common arguments from the eight previous chapters to draw conclusions about how transboundary governance should unfold in the coming years. Specifijically, it will take lessons from transboundary cases presented in the book and apply them to species at risk, invasive species, and Arctic governance as ways to further think about complexity, federalism, and flexibility in Canada-US bilateral relations.

Federalism and the Sovereign States In their chapter on energy policy, Bird and Heintzelman summarized many authors’ observations that “a critical challenge for both countries in developing a coherent governance approach is federalism.” This is mainly because, as other authors pointed out, authority over environmental policy is divided between national and subnational governments in the United States and Canada. Moreover, how that power is divided is diffferent in the United States than in Canada. In the United States, the Constitution grants many powers to the individual states, but, at the same time, gives the federal government the ability to override that power in areas of commerce and trade, and through the Supremacy Clause, which makes federal law the supreme law of the land. If state and federal law conflict, the federal law rules. This makes the federal government powerful and, in part, explains signifijicant regulatory environmental policies like the Clean Water Act, the Endangered Species Act, and the Toxic Substance Control Act.

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In Canada, the Constitution divides power over environmental issues such that provinces are granted jurisdiction over nonrenewable natural resources, provincial crown lands, and private property. The federal government has treaty-making power, and jurisdiction over issues of interprovincial and international concern, oceans and fijisheries (although not all fijish), and federal lands, including aboriginal lands. In many ways, Canadian provinces are more powerful than US states on environmental issues. This in part explains the lack of national environmental policy in some areas. Of course, the national government has made federal law in its relevant jurisdiction, such as the Canadian Environmental Assessment Act, the Arctic Waters Pollution Prevention Act, and the Canadian Environmental Protection Act. That said, many federal initiatives in Canada, such as the Canada Water Act, are nonbinding on the provinces. When it comes to Canada-US transboundary relations, federalism creates imbalance between federal-to-federal institutions as well as state-to-province/ territory institutions. Many cases in the book discussed regulatory mismatch. For example, VanNijnatten and López-Vallejo Olvera stress the importance of subnational climate legislation in both countries and across the border. The Canadian government is in the midst of introducing a national price on carbon, but since that is provincial jurisdiction, there is tension in many parts of the country. In his chapter, Alper discussed the role of states, provinces, and Indigenous governments in the Columbia River Treaty. While only the federal governments can offfijicially sign a treaty, the appropriate subnational governments are trying to work with their own federal governments as well as governments across the border. A transboundary case not discussed in the book, but where regulatory mismatch is apparent, is speciesat-risk policy. It is worth briefly considering the issue here in light of Heinmiller’s discussion of international water boards that work at the local level to overcome some challenges posed by federalism. Endangered species are protected in the United States by the federal Endangered Species Act (esa) of 1973. The Supremacy Clause of the US Constitution makes the esa the supreme law of the land, so even in cases where states have their own species-at-risk legislation, the esa trumps those laws. Of note, the esa applies to all land in the United States—public and private—and protects species terrestrial and aquatic, and species scientifijically classifijied as endangered, threatened, or of special concern (see Olive 2014a). The US Fish and Wildlife Service and the National Ocean and Atmospheric Administration are responsible for implementing the law in all fijifty states. In Canada, the federal Species at Risk Act (sara) of 2002 protects

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only migratory birds and some aquatic species as well as any listed species found on federal lands (which is about 5 percent of land outside the Northern Territories). The federal Department of Environment and Climate Change Canada and the Department of Oceans and Fisheries are responsible for implementing sara (see Olive 2014a). The US federal government is powerful and the Canadian federal government is weak in terms of jurisdiction over species at risk. Thus, when the US Fish and Wildlife Service tries to work with counterparts in Canada, they fijind institutional mismatch. More often than not, the species in question does not fall under the jurisdiction of Environment and Climate Change Canada, but instead under some provincial institution. And moreover, six subnational jurisdictions in Canada have no stand-alone species-at-risk policy (Olive 2014a). Thus, when the Fish and Wildlife Service is looking for a transboundary governance partner, there are only ngos, landowners, and sometimes provincial employees (who are often implementing various discretional programs on provincial crown lands). It is a classic case of regulatory mismatch in transboundary governance. In their chapter on Great Lakes fijisheries, Gaden and Krueger remind us that we “have to come up with creative ways to share and protect such multi-jurisdictional natural resources.” This is particularly true in cases where jurisdictions have difffering regulations and policies. One creative solution may be found in Heinmiller’s chapter on transboundary governance of rivers in the Prairies. Heinmiller discussed the development of international watershed boards in the Prairie region created under the ijc’s International Watersheds Initiative. The boards were developed in a slow and incremental fashion as the transformation from development to conservation took root in the region. It is possible for Canada and the United States to use a similar model and create “international ecosystem boards” (iebs) to govern species at risk and shared ecosystems. iebs could include federal and provincial agencies as well as indigenous governing bodies, landowners, and ngos. Regulatory mismatch would be diminished because each ieb would have equal representation from Canada and the United States. How many ecosystems are shared by the United States and Canada? Ricketts and Imhofff (2003) demonstrate that there are 110 terrestrial ecoregions of the continental United States and Canada where twenty are shared between the two countries. This suggests that twenty iebs could be created to protect the health of the shared ecoregions. While historically Canada and the United States have taken a “species-by-species” approach to protecting and recovering endangered species,

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there has been some shift toward larger ecosystem approaches, or multispecies approaches, in conservation (e.g., Boyd et al. 2014; Clark and Slocombe 2011; Langpap and Kerkvliet 2012). This is especially true in Canada, where numerous multispecies recovery documents have been approved. For example, Environment and Climate Change Canada has released multispecies action plans for a number of national parks in Canada, including Prince Edward Island, Bruce Peninsula, Georgian Bay Islands, and Kochibouguac (see Government of Canada n.d.) More to the point, Manitoba recently passed its Endangered Species and Ecosystems Act (see Government of Manitoba n.d.). Unlike other legislation in Canada and the United States, this law can protect threatened and endangered ecosystems (on provincial crown lands). This is a good starting place for thinking more about how to protect cross-border ecosystems. The Mixed Grass Prairie ecosystem, which is proposed for listing in Manitoba, is shared by numerous states and provinces, and would benefijit from involvement of multiple actors across the ecosystem. Shared marine bioregions should also be included as iebs. In 2010, Canada created a marine protected area in the Beaufort Sea called the Tarium Niryutait Marine Protected Area. While it signifijies a major collaborative efffort among the federal Fisheries and Oceans Canada, the Inuvialuit people, private industry, and the governments of Yukon and Northwest Territories, there are no US partners. The marine park borders Alaska and the US marine boundary. In 2016, Canada created another marine park in the Beaufort Sea. The Anguniaqvia niqiqyuam Marine Protected Area designates 2,361 square kilometers where commercial activities, from fijishing to shipping, are limited (except for the purpose of supplying local communities with goods). The United States is not partnering in these effforts to protect the Arctic marine environment. An ieb should be created so both countries can be working together to protect the shared marine environment of the Beaufort Sea. Biodiversity loss is a problem shared by Canada and the United States. Shared species and ecosystems are under threat from habitat loss and fragmentation, intensive agriculture, industrial activity (like the oil and gas sector), and climate change. As noted, both countries have federal legislation in place, but regulatory mismatch makes cooperation difffijicult in some instances because Canadian subnational jurisdictions have authority over wildlife and land—and some choose not to protect species at risk through legislation. Macfarlane and Hall argued, in their chapter, that binational cooperation must “extend to the many jurisdictions and levels of government with numerous and potentially overlapping legal regimes.”

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The international watershed boards created under the ijc could serve as a model for the creation of iebs, which would bring together local partners (governments, ngos, and Indigenous tribes/bands) living in a shared ecosystem and address biodiversity loss across both countries.

Federalism and Coordination While regulatory mismatch can be a problem in transboundary governance that leads to subnational or regional compacts, there are some issues where coordination at the federal level is both desirable and needed. Alper, in his chapter, reminds us that “governance arrangements must link local and federal scales. Federal governments cannot be bystanders. Borders matter, and federal governments have jurisdiction over borders.” One place where federal leadership and coordination is needed is with terrestrial and aquatic invasive-species management in Canada and the United States. According to the US government, “invasive species represent one of the most signifijicant threats to ecosystems, human and animal health, infrastructure, the economy, and cultural resources” (NISC 2016, iii). Invasive species are often contextually defijined, but are considered species not native to a region whose introduction has adverse efffects on human health, the environment, or the economy (Simberlofff 2013). The origin of non-native species is varied—trade and travel are traditional pathways, but climate change is also encouraging the northward movement of many species in the United States (and Mexico). In the Great Lakes region, there are estimated to be more than 180 aquatic and at least 157 terrestrial non-native species (Muldoon 2012; Knight and Bocking 2016). In her chapter on Great Lakes water quality, Johns notes that invasive species, such as the Asian carp, are an increasing and serious problem. The 2012 Great Lakes Water Quality Agreement did include new commitments to address invasive species, but as her chapter illustrates, in 2016 the status of invasive species is “poor” and the trend is “deteriorating.” In a recent study of invasive species in the Great Lakes system, Knight and Bocking (2016) address the complexity in even determining what is considered “invasive” and who should be responsible for the management of identifijied species. The Great Lakes is the only place where there is even a binational agreement on aquatic invasive species. In the rest of the Canada and the United States, there is no framework for transboundary governance that extends across the border. Yet,

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efffective invasive-species management will require federal coordination within each country and across the border. In 1999 President Clinton issued Executive Order 13112, which established the National Invasive Species Council (nisc), whose members must include the secretary of state, the secretary of the Treasury, the secretary of defense, the secretary of the Interior, the secretary of agriculture, the secretary of commerce, the secretary of transportation, and the administrator of the Environmental Protection Agency. The council is cochaired by the secretary of the Interior, the secretary of agriculture, and the secretary of commerce. The fijirst offfijicial management plan was adopted in 2001 but updated in 2008, and again in 2016 (see NISC 2016). The federal government works with states to coordinate some invasive-species management and does provide certain mechanisms to assist states in preventative and control measures. However, the nisc also notes, “The need remains for a strategic approach to Federal coordination with states (including local authorities and territories), tribes, North American frameworks, and ecosystem-scale initiatives” (NISC 2016, 11). Canada is lagging behind the United States. In 2001 the federal government created An Invasive Alien Species Strategy for Canada, which was approved at a Joint Council meeting of federal, provincial, and territorial ministers in 2004 (see Government of Canada 2004). The strategy has not been updated, but a 2005–10 progress report was conducted and made public. In 2012, the federal government ended funding to the program. While the national strategy remains in place, the federal government is doing little to protect the country against invasive species. And, at the provincial level, only Ontario has legislation for invasive-species management through its 2014 Invasive Species Act, which provides regulations for provincially listed species. There is some recent coordination among the Western provinces, but it is all nonbinding. In June 2016, Alberta, British Columbia, Saskatchewan, Manitoba, and Yukon signed the Inter-Provincial Territorial Agreement for Coordinated Regional Defence against Invasive Species. The goal is better coordination for the prevention, detection, and response to invasive species in Western Canada (see Derworiz 2016). Canada’s approach has led to the criticism that invasive-species management is “fragmented and lacks an overarching vision to coordinate and harmonize initiatives within and across levels of government” (Smith et al. 2014, 1342). What is needed is federal leadership that includes coordinating subjurisdictions and working in a transboundary compact. The federal governments are necessary and crucial actors because invasive-species management involves commerce,

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agriculture, trade, and other international issues like border checks for travel. Moreover, the time is ripe for federal transboundary leadership because provinces and states have not created institutions and processes of their own. There is no existing bilateral subnational (binding) agreement on invasive species. (The Great Lakes Water Quality Agreement does include provisions regarding invasive aquatic species.) It is possible that Michigan and Ontario, or other neighboring states, could soon decide to coordinate their actions. Or the Western provinces in Canada that are coordinating could reach out to Western states. That type of piecemeal bilateralism will result in the same multilayering and overlapping policy patchwork that exists in energy and climate policy—as made evident by Bird and Heintzelman, and VanNijnatten and López-Vallejo Olvera in this volume. If the federal governments act now, they can create an overarching framework for coordination that works from the top down. Invasive species require big-picture coordination because these species can move quickly and indiscriminately—and often involve pathways that fall under federal jurisdiction (such as trade). Johns concluded her chapter with the observation that “only with consistent transboundary attention, cooperation, efffort, engagement, and new tools and approaches will progress be made” in the Great Lakes. This is certainly true of shared invasive-species management. Right now the US federal government is showing leadership but acknowledging its own failure to fully engage and coordinate with other governments at all levels—state, Native American, and Canadian. The Canadian government is not showing any willingness to coordinate provincial policy. With only one province in Canada legislating invasive-species control and management, the issue could easily become a major environmental crisis across Canada. The time to act is now (or perhaps even ten years ago). The time for bilateral federal leadership is also now—before it is too late.

Flexibility and Nonbinding Agreements In their chapter, Gaden and Krueger demonstrated that nonbinding agreements can be benefijicial, and even more advantageous than binding agreements. This is because nonbinding agreements can be flexible and ambitious—although it is noted that they can struggle with compliance and implementation. They found that in the case of Great Lakes fijisheries, a soft-law approach was chosen because “participants historically jealously guarded their sovereignty and independence;

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because flexibility was recognized to be important, to help managers focus on issues that would go beyond the lowest common policy to which members could agree.” Another transboundary issue with similar political circumstances where nonbinding agreements might be the preferred path forward is the Arctic. The United States purchased Alaska from Russia on March 30, 1867. That was the same day that Queen Victoria signed the British North America (bna) Act and created “Canada” out of New Brunswick, Nova Scotia, Ontario, and Quebec. On that day, the North American map changed forever. Three years later, under a provision in the bna Act, Rupert’s Land was transferred from the Hudson’s Bay Company to Canada. And ten years after that, in 1880, Britain transferred the Arctic Islands to Canada, making Canada the second largest country in the world at the stroke of a pen. Today, the North American Arctic is more than just territory. There are valuable natural resources there in the form of oil and natural gas, minerals like nickel and iron, large deposits of diamonds, fijish, freshwater, and unique biodiversity. The region is also a homeland to Inuit, Eskimo, First Nation, Métis, and non-Indigenous peoples. During the years in which Stephen Harper served as prime minister, the federal government prepared a “Northern Strategy.” The main goals were to protect Canadian sovereignty in the North, protect the environment, promote sustainable development, and improve governance through devolution (Government of Canada 2009). Canada and the United States do share in the transboundary governance of their Arctic and sub-Arctic regions. This is primarily achieved through the Arctic Council, which is an intergovernmental forum comprised of the eight states in the Arctic Circle and six Indigenous organizations that represent the communities in the Arctic. Through six working groups, the council focuses on issues of pollution, biodiversity, safety, and sustainable development. The permanent Arctic Council Secretariat is in Norway, and the chairmanship of the council rotates among the eight countries every two years (see Arctic Council 2013). There are two legally binding agreements that have come out of the council: the Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (2011) and the Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (2013). Both agreements were signed and ratifijied by the eight Arctic nations that constitute the Arctic Council. The council does not have the ability or authority to enforce any policy (binding or not), but the states make an agreement binding by ratifying the policy domestically and ensuring

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the law is enforced in their own country. The reminder of the work stemming from the Arctic Council, especially the working groups, has been in the form of data collection and analysis (on biodiversity for example), and nonbinding agreements to protect the Arctic ecosystem. Outside the council, Canada and the United States have a cooperative relationship in the Arctic—one based on historical interconnectedness in the region. And often, when there is conflict or policy divergence, the countries manage it amicably. A telling example would be the 1988 Canada-US Arctic Cooperation Agreement, which is literally a bilateral agreement to “agree to disagree” about the Northwest Passage (see “Canada–United States” 1989). However, there are still disagreements about the comanagement of the region. For example, there is disputed territory in the Beaufort Sea between Canada and the United States. This is important not just from a sovereignty standpoint, but also because there is offfshore drilling potential in the area of dispute. Eventually the issue may be forced by oil companies looking for permits, and Canada and the United States will have to decide who owns the sea. During the Trudeau and Obama year of bilateralism, Canada and the United States issued a joint statement for Arctic leadership with four objectives: (1) science-based decision-making; (2) incorporating Indigenous science and knowledge into decision-making; (3) building a sustainable Northern economy; and (4) supporting Northern communities. This statement was made in March 2016 in Washington, DC (see Prime Minister of Canada 2016). The overall goal is to create joint agreements in each of these four areas. To be clear, these would each be nonbinding agreements. This approach may well be the appropriate one. As Gaden and Kruger argued in their chapter, “a structure like the [nonbinding] Joint Strategic Plan is most applicable to situations where jurisdictions wish to preserve their autonomy, where they do not need to overcome competitiveness, and where they fijind it more important to have ambitious, flexible policies than to bind each other to less-ambitious management actions.” For each of the four objectives, a soft-law approach is desirable because a bilateral treaty (binding) would require ratifijication from legislative bodies that could water down policy or perhaps outright reject policy. Instead, more can be achieved for sustainable development in the North through an ambitious soft-law approach that includes a multiplicity of actors, especially those at the local level.

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Conclusion Transboundary environmental governance is complicated by continually changing political, economic, and environmental conditions. When new problems arise— either economically or environmentally—we need confijidence that our political institutions and leaders can work together cooperatively. Canada and the United States have been comanaging their shared environment for well over a hundred years. As noted by Brooks and reenforced by other authors, the Boundary Waters Treaty of 1909 and the subsequent creation of the International Joint Commission established a framework for how transboundary governance would work. Water quality and quantity remain crucial aspects of transboundary governance, but other issues have arisen on the agenda that have changed Canada-US institutions and relations. These issues include those covered by the authors here: hydropower, fijisheries, watershed conservation, mining, energy production, and climate change. And we can take lessons learned from trying to meet those newer challenges to other issues, such as species at risk, invasive species, and Arctic governance. There are other issues upon the horizon not explored in depth through the past eight chapters. For example, the ability of science to inform bilateral policy is a growing area of study (Klenk et al. 2010; McLaughlin and Krantzberg 2011; Song et al. 2016; Wellstead and Stedman 2007). How knowledge can be “carefully transferred and integrated across a number of geographic, cultural, and institutional boundaries” poses a challenge for both scientists and government (Song et al. 2016, 157). Similarly, social capital in the form of communication and interagency trust is another growing fijield of study in bilateral governance (Berkes 2009; McLaughlin and Krantzberg 2012; Olive and Minichiello 2013; Olive 2014b; Temby et al. 2015). In their study of Pacifijic salmon governance, Temby et al. (2015, 95) found communication channels to be “patchy” and occurring only within “expected jurisdictional and national hierarchies” with low levels of interagency trust. In both cases—science and trust—scholarship is pointing in the direction of what authors found in this volume: complexity that requires flexibility. Indeed, as new problems arise and institutions adapt, we must heed the conclusion Alper came to in his chapter: “There is no ‘one size fijits all’ approach to environmental governance, nor should there be given the diversity of geography, culture, and political factors.” Canada and the United States need transboundary governance to lead to convergence on important policy processes and outcomes. The institutions and actors might not always be the same—within or across the border—but that

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should not prevent cooperation. And where there is insurmountable divergence in either process or outcome, we need institutions that are flexible and accountable. We are going to need to pay greater attention to implementation and compliance, as pointed out by many authors in this book. Now that we have a cooperative framework and existing institutions and processes, the extent to which bilateral actors implement and comply with existing policy is an important area of inquiry. The fact of the matter is, the ijc is no longer the institution for transboundary governance. That is in part because water is no longer the issue in environmental policy. Heinmiller, in his chapter, characterizes this reality by noting that “the emergence of environmental problems, the ascendance of environmentalists and First Nations, and the onset of climate change have combined to force government regulators at all levels to give much greater heed to conservation and sustainability concerns than they have in the past.” Shared management of the environment is now a very complex reality. The political mismatch between Prime Minister Justin Trudeau and President Donald Trump will only exacerbate this complexity in the next fijive to eight years. As I write this, Trump has been in offfijice just over one hundred days and he has already left a coal-stained fijingerprint on the North American environment. So much has happened that it is almost impossible to keep track of it all, but National Geographic has committed to keeping an online list of the Trump administration’s environmental actions and policy changes (see Greshko 2017). And the epa website also maintains a list of news releases that relate to the environment. Donald Trump’s Twitter feed, for better or worse, also provides a timeline of the major environmental actions taken by his offfijice. It is worth reviewing some of the most signifijicant activities undertaken in his fijirst one hundred days. Almost immediately upon taking offfijice, the federal Environmental Protection Agency’s (epa) website had an overhaul where all climate-change content was removed. This appears to have happened during Trump’s inauguration speech in January. And following that came a series of executive orders, including orders to review offfshore oil and gas drilling (including in the Arctic), orders to begin the process of rescinding the Clean Power Plan, and orders to review national monuments that protect public lands. We have also seen the new head of the epa, Scott Pruitt, call on the United States to exit the Paris Protocol, and the epa, under his guidance, announced a “back-to-basics” agenda that includes clearing environmental regulations to promote economic growth. Finally, Trump also approved two controversial pipelines: the Dakota Access Pipeline and the Keystone

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XL Pipeline. The Obama administration had rejected both of these pipelines, but with the stroke of a pen, Trump reversed these decisions and signaled a new era of oil and gas development in the United States. There is no doubt that these actions, and those still to come in the next one hundred days and the hundred after that, will have long-lasting efffects on Canada and the US-Canada bilateral environmental relationship. One action, a proposed defunding of the Great Lakes Restoration Initiative from $300 million to zero, and a rumored closing of the epa offfijice in Chicago, which is the Great Lakes National Programs Offfijice, will have immediate impact if carried out (Learner and Gade 2017). As the authors in this volume have made clear, the Great Lakes have been the heart of bilateral relations between Canada and the United States. The Keystone XL Pipeline will also bring the two countries close together in their apparent commitment to exploiting the oil sands in Alberta. Given Canada’s new policies on climate change, it is unclear to what extent the two countries will continue to work together on oil and gas projects. It is also uncertain how the shared environment will be impacted by a national price on carbon in Canada and a complete rollback on regulation in the United States. As of May 2017, the epa’s website still includes a page entitled “EPA Collaboration with Canada” that states, “The United States and Canada have one of the world’s oldest and most efffective environmental partnerships” (EPA 2017). The page goes on to list all the bilateral agreements and highlights a number of specifijic agreements, including many in the Great Lakes. This page also discusses climate change and the “new U.S.-Canada relationship on advancing the climate change agenda in North America and internationally” (EPA 2017). It is unclear if the epa website overhaul missed this page, or if the Trump administration is committed to its collaboration with Canada. Either way, the coming years will serve as a test of efffective transboundary environmental governance across the world’s longest border.

REFERENCES Arctic Council. 2013. “The Arctic Council: A Backgrounder.” http://www.arctic-council.org. Berkes, Fikret. 2009. “Evolution of Co-management: Role of Knowledge Generation, Bridging Organizations and Social Learning. Journal of Environmental Management 90(5): 1692–702. Boyd, Chad S., Dustin D. Johnson, Jay D. Kerby, Tony J. Svejcar, and Kirk W. Davies. 2014. “Of Grouse and Golden Eggs: Can Ecosystems Be Managed within a Species-Based Regulatory

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Framework?” Rangeland Ecology and Management 64(4): 358–68. “Canada–United States: Agreement on Arctic Cooperation and Exchange of Notes Concerning Transit of Northwest Passage.” 1989. International Legal Materials 28(1): 141–45. Clark, Douglas, and D. Slocombe. 2011. “Grizzly Bear Conservation in the Foothills Model Forest: Appraisal of a Collaborative Ecosystem Management Efffort.” Policy Science 44(1): 1–11. Derworiz, Colette. 2016. “Western Provinces, Territories Band Together to Fight Zebra Mussels.” Calgary Sun, June 6. http://www.calgarysun.com/2016/06/06/western-provincesterritories-band-together-to-fijight-zebra-mussels. Environmental Protection Agency (EPA). 2017. “EPA Collaboration with Canada.” https://www. epa.gov/international-cooperation/epa-collaboration-canada. Government of Canada. 2004. An Invasive Alien Species Strategy for Canada. Ottawa: Government of Canada. http://publications.gc.ca/collections/collection_2014/ec/ CW66–394–2004-eng.pdf. —. 2009. Canada’s Northern Strategy: Our North, Our Heritage, Our Future. Ottawa: Minister of Indian Afffairs and Northern Development and Federal Interlocutor for Métis and Non-Status Indians. http://www.northernstrategy.gc.ca/cns/cns.pdf. Government of Manitoba. N.d. “Manitoba’s Endangered Species and Ecosystems.” http://www. gov.mb.ca/sd/wildlife/sar/pdf/endangered_species_and_ecosystems.pdf. Grant, Shelagh. 2010. Polar Imperative: A History of Arctic Sovereignty in North America. Vancouver, BC: Douglas & McIntyre. Greshko, Michael. 2017. “A Running List of How Trump Is Changing the Environment.” National Geographic, August 23. http://news.nationalgeographic.com/2017/03/howtrump-is-changing-science-environment. Klenk, Nicole, Gordon M. Hickey, and James I. MacLellan. 2010. “Evaluating the Social Capital Accrued in Large Research Networks: The Case of the Sustainable Forest Management Network (1995–2009).” Social Studies of Science 40(6): 931–60. Knight, William, and Stephen Bocking. 2016. “Fisheries, Invasive Species, and the Formation and Fracturing of the Great Lakes System.” Canadian Geographer 60(4): 446–57. Langpap, Christian, and Joe Kerkvliet. 2012. “Endangered Species Conservation on Private Land: Assessing the Efffectiveness of Habitat Conservation Plans.” Journal of Environmental Economics and Management 64(1): 1–15. Learner, Howard, and Mary Gade. 2017. “President Trump, End Your Shortsighted Attack on the Great Lakes.” Cleveland.com, May 7. http://www.cleveland.com/opinion/index. ssf/2017/05/president_trump_call_offf_your.html. McLaughlin, Chris, and Gail Krantzberg. 2011. “An Appraisal of Policy Implementation Defijicits

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in the Great Lakes.” Journal of Great Lakes Resources 37(2): 390–96. —. 2012. “An Appraisal of Management Pathologies in the Great Lakes.” Science of the Total Environment 416:40–47. Muldoon, P. 2012. “Governance in the Great Lakes, a Regime in Transition.” In Great Lakes: Lessons in Participatory Governance, edited by V. I. Grover and G. Krantzberg, 44–66. Boca Raton, FL: CRC Press. National Invasive Species Council (NISC). 2016. Management Plan: 2016–2018. Washington, DC: National Invasive Species Council. https://www.doi.gov/invasivespecies/ management-plan. Olive, Andrea. 2014a. Land, Stewardship, and Legitimacy: Endangered Species Policy in Canada and the United States. Toronto: University of Toronto Press. —. 2014b. “The Road to Recovery: Comparing Canada and US Recovery Strategies for Shared Endangered Species.” Canadian Geographer 58(3): 263–75. Olive, Andrea, and Alexa Minichiello. 2013. “Wild Things in Urban Places: America’s Largest Cities and Multi-Scales of Governance for Endangered Species Conservation.” Applied Geography 43:56–66. Prime Minister of Canada. 2016. “U.S.-Canada Joint Statement on Climate, Energy, and Arctic Leadership.” March 10. http://pm.gc.ca/eng/news/2016/03/10/us-canada-joint-statementclimate-energy-and-arctic-leadership. Ricketts, T., and M. Imhofff. 2003. “Biodiversity, Urban Areas, and Agriculture: Locating Priority Ecoregions for Conservation.” Conservation Ecology 8(2): 1. Simberlofff, Daniel. 2013. Invasive Species: What Everyone Needs to Know. New York: Oxford University Press. Smith, Andrea L., Dawn R. Bazely, and Norman Yan. 2014. “Are Legislative Frameworks in Canada and Ontario up to the Task of Addressing Invasive Alien Species?” Biological Invasions 16:1325–44. Song, Andrew M., Gordon M. Hickey, Owen Temby, and Gail Krantzberg. 2016. “Assessing Transboundary Scientifijic Collaboration in the Great Lakes of North America.” Journal of Great Lakes Research 42:156–51. Temby, Owen, Archi Rastogi, Jean Sandall, Ray Cooksey, and Gordon M. Hickey. 2015. “Interagency Trust and Communication in the Transboundary Governance of Pacifijic Salmon Fisheries.” Review of Policy Research 32(1): 79–99. Wellstead, Adam M., and Richard C. Stedman. 2007. “Coordinating Future Adaptation Policies across Canadian Natural Resources.” Climate Policy 7(1): 29–45.

Contributors

Donald K. Alper is emeritus professor of political science and research fellow at the Border Policy Research Institute at Western Washington University. He is the former director of the Center for Canadian-American Studies (1993–2015) and founder and director of the Border Policy Research Institute (2005–15). He holds a Ph.D. in political science from the University of British Columbia. His research interests focus on Canadian politics and British Columbia-U.S. transboundary issues. He has coedited two books focused on bilateral and trilateral resource and environmental issues, and his other published research has appeared in Canadian Journal of Political Science, Canadian Public Policy-Analyse de Politiques, Journal of Borderlands Studies, The American Review of Canadian Studies, Social Science Journal, B.C. Studies, and other journals and edited books. He served as counselor for the Association for Canadian Studies in the United States (acsus), and in 1999 he was elected president of acsus for the 1999–2001 term. For his scholarship and other contributions to Canada-US studies he has received numerous honors and awards including the prestigious Donner Medal from the Association of Canadian Studies in 2007 and a Certifijicate of Merit by the International Council of Canadian Studies, also in 2007. For his “outstanding service in building bridges between the

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US and Canada” Alper received the Hot Potato Award from the Pacifijic Northwest Economic Region (pnwer) in 2011. Stephen Bird is associate professor of political science at Clarkson University with

a primary focus on energy and environmental policy. His current work includes research on split incentives, energy conflict and social acceptance, Smart Housing and resource consumption, micro-grid governance, fracking, green data centers, activism and social movements, social influence, and policy learning. He completed his Ph.D. on energy policy, social networks, and interest groups at Boston University in 2009. He received his master’s from Harvard University (extension) in 2003, was a Kennedy Rappaport Fellow in 2004, and worked for Harvard’s Electricity Policy Group from 2001–10. He is Research Faculty Afffijiliate at the Positive Energy Project, and a Fall 2016 Fulbright Research Fellow at the Centre on Governance at the University of Ottawa. Currently he is PI or co-PI on a variety of research projects for New York State and the National Science Foundation with research partners that include IBM, AMD, and National Grid. Consulting engagements include the U.S. State Department, the European Commission, and Massachusetts’ Environmental Afffairs. He is a founding partner with the Clarkson Nanos Energy Partnership and was the president of the board of directors at Mass Energy (a consumer’s energy non-profijit) from 2004–9. Stephen Brooks is professor of political science at the University of Windsor and

an occasional lecturer at Sciences Po Lille. He assisted the late Paul Cellucci in researching and writing Quiet Diplomacy (2005), the memoir of Cellucci’s four years as U.S. ambassador to Canada. Brooks graduated with a Ph.D. in political science from Carleton University in 1985. Marc Gaden is an adjunct assistant professor at the School of Natural Resources

and Environment, University of Michigan, and an adjunct associate professor at the Department of Fisheries and Wildlife, Michigan State University. He teaches courses in environmental and water policy and has written about environmental governance, Great Lakes policy, and cooperative fijishery management. Dr. Gaden also is the communications director and legislative liaison for the Great Lakes Fishery Commission, a Canada-U.S. agency established by treaty to improve and perpetuate the Great Lakes fijishery. He works on issues involving regional coordination of fijisheries policies, invasive species, and ecosystem restoration.

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Prior to joining the commission secretariat, Dr. Gaden worked for the U.S. House of Representatives. He earned a Ph.D. in environmental policy from the University of Michigan, a master of arts in foreign policy from the American University, and a bachelor of arts in history and political science from the University of Michigan. Noah D. Hall is professor of law at Wayne State University Law School in Detroit,

Michigan, specializing in environmental and water law. He has co-authored two of the leading casebooks in these fijields, Environmental Law and Policy: Nature, Law, and Society and Modern Water Law: Private Property, Public Rights, and Environmental Protection. His recent articles include “Protecting Freshwater Resources in the Era of Global Water Markets: Lessons Learned from Bottled Water” (Water Law Review) and “Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region” (Colorado Law Review). Professor Hall graduated from the University of Michigan Law School and the University of Michigan School of Natural Resources and Environment, concentrating in environmental policy. He previously served as the founding Executive Director of the Great Lakes Environmental Law Center and has extensive litigation experience and numerous published decisions in state and federal courts. Most recently, he was appointed Special Assistant Attorney General for the State of Michigan for the Flint water crisis. B. Timothy Heinmiller is an associate professor in the Department of Political

Science at Brock University. He researches and teaches in the areas of comparative public policy, public policy theory, environmental politics, and research methods. His research has been published in such journals as Politics and Policy, Canadian Journal of Political Science, Natural Resources Journal, Review of Policy Research, and Governance. He was a co-editor (along with Mark Sproule-Jones and Carolyn Johns) of Canadian Water Politics: Conflicts and Institutions and has been a contributor to numerous edited books on water policy and environmental politics. His books include Water Policy Reform in Southern Alberta: An Advocacy Coalition Approach. Martin D. Heintzelman is associate professor and Fredric C. Menz Scholar of

Environmental Economics at Clarkson University, as well as director of the Clarkson University Center for Canadian Studies. At Clarkson, he is jointly appointed in the School of Business and the Institute for a Sustainable Environment. Dr. Heintzelman has an M.A. and a Ph.D. in economics and an M.S. in Natural Resource Policy and

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Behavior from the University of Michigan, as well as a B.S. in economics from Duke University. Dr. Heintzelman’s research focuses on the valuation of environmental amenities and disamenities, primarily using revealed preference methods. Topically, his work focuses on the property value impacts of water quality and ecosystem health, as well as on the impacts of wind turbines and other forms of energy infrastructure. He also studies land use and other local environmental policies, seeking to explain both their implementation and impacts. Carolyn Johns is an associate professor in the Department of Politics and Public

Administration at Ryerson University. Her research interests include public policy, public administration, environmental policy, and water policy in Canada and the United States. She is past director of the Great Lakes Policy Research Network, a transboundary network of Canadian and U.S. social science and policy researchers, established by a Social Sciences and Humanities Research Council of Canada (SSHRC) Partnership Development Grant. Johns is working on research related to water governance indicators, policy implementation networks, and environmental policy capacity in the Great Lakes region, as well as a new SSHRC project applying OCED water governance indicators in the Great Lakes and Rio Grande regions in North America. In addition to these research projects she supervises several graduate students, is director of the Bruce Fellowship program in Canadian Freshwater Policy, a member of the executive of Ryerson Urban Water, and currently serves as an associate editor for Canadian Water Resources Journal. Charles C. Krueger is professor in the Department of Fisheries and Wildlife at Michigan State University and director of the Great Lakes Acoustic Telemetry Observation System. He has published extensively on the ecology and management of aquatic species in the Great Lakes and elsewhere. Krueger received his Ph.D. in Fishery Science from the University of Minnesota in 1979, his M.S. in Fisheries Biology from Iowa State University in 1976, and his B.S. in Fishery Science, with Distinction, from the University of Minnesota in 1974. Marcela López-Vallejo Olvera is a researcher and professor in the Division of

International Studies at the Centro de Investigación y Docencia Económicas (CIDE) in México. She received her Ph.D. in International Relations from the Universidad de las Américas-Puebla and has been an International Relations professor for fijifteen

Contributors

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247

years. López-Vallejo Olvera has professional experience working for the federal government in Mexico at the Ministry of Foreign Afffairs and at the Ministry of Public Education, and she has also worked for the lobby fijirm Burson-Marsteller. She belongs to the Mexican National Research System (Level 1) and is a member of the editorial council of Latin American Policy. López-Vallejo Olvera has held several fellowships at various international institutions, including the Oxford Institute for Energy Studies. She has several publications on environment, climate and energy policy, local diplomacy, and International Relations theory. Her two latest books were published in 2014, both addressing trans-regional carbon markets and environmental policy in North America. Daniel Macfarlane is an assistant professor in the Institute of the Environment and

Sustainability at Western Michigan University. He has previously held Fulbright, Banting, and SSHRC fellowships. Dr. Macfarlane’s research and teaching focus on the historical and policy dimensions of Canadian-American borders waters and environmental relations, particularly in the Great Lakes‒St. Lawrence basin. He is the author of Negotiating a River: Canada, the US, and the Creation of the St. Lawrence Seaway, co-editor of Border Flows: A Century of the Canadian-American Water Relationship, and is currently working on projects exploring the twentieth-century manipulation of Niagara Falls for beauty and power as well as the history of the International Joint Commission. Andrea Olive is an associate professor of political science and geography at the

University of Toronto Mississauga. She has a Ph.D. in political science from Purdue University. Her research examines Canada-US environmental policy, especially around the conservation of endangered species and urban biodiversity. Her prior books include Land, Stewardship, and Legitimacy: Endangered Species Policy in Canada and the United States and The Canadian Environment in Political Context. Debora L. VanNijnatten is professor of political science and North American

studies at Wilfrid Laurier University and the Balsillie School of International Afffairs, and research partner with the Great Lakes Policy Research Network. Her research and publications have focused on transboundary environmental governance in North America at the cross-border regional (states and provinces), bilateral (Canada–United States and United States–Mexico), and continental levels. She

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is the author or editor of fijive books, including successive editions of Canadian Environmental Politics and Policy (2002, 2009, and 2016), Environmental Policy in North America: Approaches, Capacity and the Management of Transboundary Issues (2013), and Climate Change Policy in North America: Designing Integration in a Regional System (2014).

Index

A Accredited Offfijicers, 123 adaptive management (AM), 99–100

American Falls, 38 Anguniaqvia niqiqyuam Marine Protected Area, 231

Administrative Measures Task Force, 125

Arctic Council Secretariat, 235, 236

Agreement on Cooperation on Aeronautical

“Areas in Recovery,” 88

and Maritime Search and Rescue in the Arctic, 235 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, 235

Areas of Concern (AOCS), 81–84, 88, 89, 91, 95, 97 Army Corps of Engineers, 20 Article 27 (UN Watercourses Convention), 155

Air Quality Advisory Board (IAQAB), 9

Article II (BWT), 4

Alameda Reservoir, 121, 127, 128

Article III (BWT), 4, 6

Alaskan Boundary Commission, 5

Article IV (BWT), 6

all-Canadian seaway, 41

Article IX (BWT), 5, 9, 85

Alsek-Tatshenshini, 144–45

Article IX (Canada-United States Air Quality

American Burton Act, 38 American Clean Energy and Security Act, 206

Agreement), 9 Article V (BWT), 4 Article VI (BWT), 117, 118, 119, 121, 122

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249

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250

Index

Article VIII (BWT), 4, 5

Canada-Ontario Agreement, 84, 87, 90, 95, 97

Article X (BWT), 6

Canada’s National Greenhouse Gas Inventory,

Article XII (BWT), 5

211

Article XLV (Hague Convention), 5

Canada-US Air Quality Agreement, 140, 182

Asian carp, 78

Canada-US Arctic Cooperation Agreement,

Assiniboine River, 115

236 Canada-US Energy Trade Council, 192

B

Canada-US Pacifijic Salmon Treaty, 163

Baltic Sea Action Plan, 163

Canadian Environmental Protection Act, 218

Bay, James, 39

Cannon, Lawrence, 85

BC Minister of Energy, Mines and Petroleum,

Cantwell, Maria, 147, 162

147 BC-Washington Environmental Cooperation Council (ECC), 158, 159

Cape Vincent, 188, 189 carbon-capture and storage (CCS), 218 Carter, Thomas, 15

Beaufort Sea, 231, 236

Champlain Hudson Line, 177, 191, 192, 193

Beauharnois Canal, 37

Chieftain Metals Corporation, 146

Béland, Pierre, 17

Chippewa-Ottawa Resource Authority, 59

Beyond the Border, 207

Clark, Clarence, 15

Bilateral Working Group on the Protection of

Clean Air Act, 17, 182, 218

Transboundary Waters, 147

Clean Development Mechanism, 214

Bonneville Power Administration, 149, 185

Clean Energy Dialogue, 206, 220

Bothwell, Robert, 7

Clean Power Plan, 213, 217, 218, 219, 220, 238

Boundary Dam Carbon Capture and Storage

Clean Power Program, 176, 184, 190

project, 217 Boundary Waters Treaty (BWT), 1–5, 9–10, 31–33, 44–46, 55, 85 British North American Act (BNA), 56, 235 Burney, Derek, 207 Bush, George W., 209, 220

Clean Water Act, 228 Clinton, Hillary, 85 Clinton, William, 233 Coast Salish Indigenous Communities, 158–60, 163, 165 Cohen, Maxwell, 15 Colorado River, 51

C California Air Resources Board (CARB), 215, 216

Columbia River Treaty (1961), 7, 11, 138–40, 149, 151–56, 158, 159, 165, 229 Compact Council, 44, 47

California Chamber of Commerce, 212

Compensating Works, 35

Canada Centre for Inland Waters (CCIW),

Conference of Great Lakes, 27

81, 95

Conference of Northeastern Governors/

Index

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251

Eastern Canada Premiers (CNG/ECP),

Environmental Cooperation Agreement, 158

182, 183

environmental policy, 78, 79, 85, 93, 94, 104

Constitution (Canada), 56 Constitution (United States), 56, 228 Convention on Great Lakes Fisheries, 58

Environmental Protection Agency, 20, 83, 94, 95, 126, 159, 163, 202, 208, 218, 219, 233, 238

Council of Great Lakes Fishery Agencies, 59

epistemic, 53, 54, 66, 68, 69

Council of Lake Committees, 59, 67

Eskimo, 235

Creighton, Donald, 41

Etcheverry, José, 183 European Union (EU), 180, 203

D Dakota Access Pipeline, 193, 238

Executive Order 13112, 233 Executive Order 12866, 214

decarbonization pathways, 204 decision-making standard, 45–46 Declaration on Ethics and Modernizing the Columbia River Treaty, 153 Department of Environment and Climate Change Canada, 230, 231

F First Nations, 32, 90, 113, 124, 126, 127, 128, 137, 141, 143–45, 147–49, 151, 153, 154, 159, 160, 163, 165, 166, 235 Fisheries and Oceans Canada, 231

Department of Oceans and Fisheries, 230

Flathead Work Plan, 148

Devils Lake, 9, 10

Flathead Working Group, 148

Dobell, Peter, 8

Frankfurter, Felix, 51, 68

Domestic Action Plans, 89

Fraser Surrey Docks, 162

Dowdeswell, Elizabeth, 98

Fulton, Davey, 15

Durnil, Gordon, 12, 17, 19, 22, 23

G E

G8, 203

emissions trading systems (ETS), 210–12, 214

Garrison Diversion, 127

Endangered Species Act, 228, 229

Geddes Resourced Ltd, 144

Endangered Species and Ecosystems Act

General Accounting Offfijice (GAO), 20

(Manitoba), 231

Georgia Basin-Puget Sound Bioregion, 158, 160

Enbridge Inc., 162

Glacier Bay National Park and Preserve, 144

Energy East, 193

Glacier National Park, 114

Energy Efffijiciency Resource Standards

Gore, Al, 145

(EERS), 217 Environment and Climate Change Canada, 216 Environment Canada, 86, 87, 88, 95, 163

Gray, Herb, 15 Great Lakes Agreement “Regional Body,” 44 Great Lakes basin, 25, 35–36, 39, 43, 45–47, 181, 182

252

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Index

Great Lakes Binational Executive Committee, 87 Great Lakes Binational Toxics Strategy, 83

green Keynesianism, 204 greenhouse-gas (GHG), 203, 204–6, 208–12, 214, 215, 217–19

Great Lakes Commission, 91, 95, 182, 183

Greenpeace, 19

Great Lakes Environmental Efffectiveness

Groundwater Science Relevant to the Great

Metrics (GLEEM), 91 Great Lakes Executive Committee (GLEC),

Lakes Water Quality Agreement, 89 Gulf of St. Lawrence, 35

87, 88, 90, 91, 97 Great Lakes Fisheries, 51, 52, 58, 59, 60, 62, 64, 230 Great Lakes Fisheries Commission, 20, 52, 58, 59, 66, 68, 70, 91, 95

H Hagen, John, 16, 25 Hardin, Garrett, 178 Harper, Stephen, 16, 176, 206, 207, 218, 220

Great Lakes Indian Fisheries Commission, 160

Hepburn, Mitch, 39

Great Lakes Legacy Act, 84, 94

Horseshoe (Niagara Falls), 38, 40

Great Lakes National Program Offfijice (United

Hudson River, 191

States), 87, 239

Hudson’s Bay, 115

Great Lakes Program Offfijice (Canada), 87

Hudson’s Bay Company, 235

Great Lakes Protection Act, 95

Hurley, Adele, 9, 17, 18

Great Lakes Protection Fund, 96

hydrofluorocarbons (HFCs), 207, 209

Great Lakes Public Forum, 91

Hydro-Quebec, 185, 191

Great Lakes Public Forum (Toronto), 98 Great Lakes Restoration Conference, 91 Great Lakes Restoration Initiative (GLRI), 85, 87, 88, 94, 104, 239 Great Lakes Water Quality Agreement (GLWQA), 55, 81, 82, 84–95, 97, 100, 102–4, 156, 163, 232, 234 Great Lakes Waterways Treaty, 36, 37, 39 Great Lakes-St. Lawrence Basin, 33, 36, 41, 43 Great Lakes-St. Lawrence Cities Initiative, 91 Great Lakes-St. Lawrence River Basin Water Resources Compact, 4, 43, 44, 45, 46, 47, 48 Great Lakes-St. Lawrence River Basin Water Resources Agreement, 37, 43, 44, 45, 48 Great Lakes-St. Lawrence Seaway, 32, 80

I IJC and the 21st Century, The, 129 IJC’s Triennial Report, 91 Imperial Metals Corporation’s Mount Polley Dam, 141 Indigenous organizations and people, 98, 140, 145 integrated water-resource management (IWRM), 99 international ecosystem boards (IEBS), 230, 231, 232 International Joint Commission (IJC), 1–12, 14–27, 31, 32, 34–43, 48, 55, 56, 80–87, 89–91, 93, 97, 98, 103, 113–15, 117–19, 121–25, 129–31, 139, 147, 156, 163, 165, 181,

Index

182, 227, 228, 230, 232, 238

Lake Champlain, 21, 191

International Niagara Falls Engineering

Lake Darling, 122

International Rapids, 36 International Souris River Board, 123, 128, 130 International Souris River Board of Control, 123, 130 International Watersheds Initiative (IWI), 129, 130, 131, 230

253

L

International Niagara Board of Control, 38 Board, 40

|

Lake Ecosystem Objectives (LEOS), 89 Lake Erie, 32, 39, 43, 69, 70, 78, 80, 84, 89, 92, 95 Lake Erie Committee, 64 Lake Huron, 32, 59 Lake Huron Committee, 59 Lake Michigan, 32, 34

International Waterways Commission, 2

Lake Ontario, 32, 39, 42, 43, 57, 78, 92, 188

Inter-Provincial Territorial Agreement for

Lake Ontario Waterkeepers, 96

Coordinated Regional Defence against

Lake Superior, 8, 32, 35, 37, 39, 89

Invasive Species, 233

Lake Superior Board of Control, 35

Inuit, 235

Lake Superior Committee, 65

Inuvialuit, 231

Lakewide Management Plans (LAMPS), 81,

Invasive Alien Species Strategy for Canada, 233 Invasive Species Act, 233

82, 88, 89 Landis, James, 51, 68 Lanthier, Claude, 16 Large Mine Permitting Team (LMPT), 146

J

Laurentian thesis, 41

Jobs Plan (British Columbia), 164

League of Nations, 10

Joint Statement of Cooperation (JSOC), 160,

liquid natural gas (LNG), 161, 164

161 Joint Strategic Plan for Management of Great Lakes Fisheries, A, 52, 58, 59, 60, 62–70 Juneau, AK, 146

Long Lac–Ogoki diversion, 36, 39, 40 Louis St. Laurent, 41 low-carbon economy (LCE), 201–5, 208, 209, 214, 219, 220 low carbon fuel standards (LCFS), 216

K Kenogami River, 39 Keystone XL, 177, 189, 190, 191, 193, 238, 239 Kinder Morgan, 161

M Making of a Conservative Environmentalist, The, 12, 19, 22

King, Mackenzie, 10, 36

McCarthy, Gina, 208

Kluane National Park, 144

McKenna, Catherine, 208

Koelz, Walter, 57, 58

McNaughton, A.G.L., 7, 15

Kyoto Protocol, 209, 211, 214

McWhorter, Roger, 16

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Index

Memorandum of Understanding (MOU), 147, 214 Memorandum of Understanding on Climate Change and Energy Collaboration, 208 Michigan Lake Superior Power Company, 35 Milk River, 114–18, 120–27, 129–31 Mixed Grass Prairie ecosystem, 231 Moses-Saunders powerhouse, 42 Murray, Patty, 147

N

O Obama, Barack, 16, 17, 85, 176, 184, 191, 201, 206, 207, 213, 217–19, 236, 238 Offfijice of Management and Budget, 214 Ontario Independent Electricity System Operator (IESO), 185 Organization for Economic Cooperation and Development (OECD), 101 Ottawa offfijice (IJC), 24

P

National Environmental Policy Act, 213

Pacifijic Salmon Treaty, 140

National Invasive Species Council (NISC),

Pan-Canadian Framework on Clean Growth

233 National Water Resources Institute (NWRI), 81, 95

and Climate Change, 216, 219 Paris Agreement, 184, 202, 209, 214 Paris Protocol, 238

Nature Conservancy (Canada), 148

Parrish, Austen, 25

Nature Conservancy (United States), 148

Point Roberts, 9

Nearshore Framework, 89

Pollack, Lana, 16, 17

New Democratic Party (NDP), 145

Prairie, 113–17, 119, 120, 122, 124–28, 130, 131,

Niagara Convention and Protocol, 38

230

Niagara Diversion Treaty, 40

Progress Report of the Parties, 91

Niagara River, 4, 38, 39

Pruitt, Scott, 202, 238

Nixon, Richard, 8 nongovernmental organization (NGO), 82,

R

87, 91, 94, 96, 102, 137, 139, 140, 143, 144,

Raffferty Reservoir, 121, 127, 128

146, 148, 153, 154, 165, 183, 230, 232

Rainy River, 129, 130

North American Electric Reliability Corporation (NERC), 182, 187

Regional Greenhouse Gas Initiative (RGGI), 202, 211–14

North American Energy Working Group, 183

Regional Review process, 44

North American Fair Trade Agreement

Remedial Action Plans (RAPS), 81, 82, 97

(NAFTA), 176, 177, 180, 184, 209 North American Leaders Summit, 207, 208

Roosevelt, Franklin D., 39 Root, Elihu, 7, 24 Ross Dam, 8

Northern Gateway, 193

Rowlands, Ian, 183

Northwest Irrigation Act, 120

Rupert’s Land, 235

Index

S Sacred Responsibility, A, 153

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255

State of the Lakes Report, 91 Subcommittee on Inter-American Afffairs of

Salish Sea, 138, 140, 156, 158–65

the House Committee on Foreign Afffairs,

Saskatchewan-Nelson basin, 115

8

Schornack, Dennis, 21

Supremacy Clause (US Constitution), 228, 229

sea lamprey, 58 Security Prosperity Partnership, 183

T

Sherwood Crossing, 121, 122

Taku, 146

Skagit/Ross Dam controversy, 139

Tarium Niryutait Marine Protected Area, 231

Smart Grid, 183

Tawney, James, 15

socio-ecological systems (SES), 99

Ten Top Principles for Designing Healthy

Soo, 35

Coastal Ecosystems Like the Salish Sea, 163

Souris-Red Rivers Engineering Board, 123, 130

Tlingit, 141

Souris River, 114, 115, 119–24, 126–28, 130, 131

Toledo, OH, algae in, 89

Souris River Board Control, 123

Township of Frontenac Islands, 188

Special International Niagara Board, 38

Toxic Substance Control Act, 228

Species at Risk Act (SARA), 229

Trail Smelter, 139

Specifijied Gas Emitters Regulations (SGER),

Trail, BC, 7

211, 215 State of Climate Change Science in the Great Lakes Basin, The, 89–90

transboundary governance capacity, 94 TransCanada Corporation, 190 TransEnergie, 191

St. Croix, 129, 130

Transpacifijic Partnership (TPP), 207

St. Lawrence River, 181, 188

Trudeau, Justin, 191, 201, 202, 207, 208, 213,

St. Lawrence River Board of Control, 43 St. Lawrence River Joint Board of Engineers, 43 St. Lawrence Seaway, 60 St. Lawrence Seaway and Power Project, 40, 42

217–20, 236, 238 Truman, Harry, 41 Trump, Donald, 176, 190, 201, 202, 209, 213, 214, 218–20, 238 Tulsequah Chief Mine, 146–47 “Turning the Corner” policy, 206

St. Mary River, 114–18, 120–31 St. Mary River watershed, 4, 35 Stakeholders Workshop on the Clean Fuel Standard, 216 State of the Great Lakes (SOLEC), 84, 90 State of the Lakes Ecosystem Conference (SOLEC), 90

U UN Watercourses Convention, 155 United Nations Education, Scientifijic and Cultural Organization (UNESCO), 145 United Nations Framework Convention on Climate Change (UNFCCC), 207

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256

Index

US Bureau of Reclamation, 115, 116 U.S.-Canada Joint Statement on Climate, Energy, and Arctic Leadership, 210

211–14, 219 Wilson, Woodrow, 16 Windsor offfijice (IJC), 18

US Dormant Commerce Clause, 213

Windy Craggy Mine, 145

US Fish and Wildlife Service, 229, 230

Windy Craggy Mountain, 144 Wolfe Island Wind Farm, 177, 181, 188, 189, 193

V Vaughn, Stephen, 209

Wooten-Bowden Report, 36 World Conservation Union, 145 World War I, 10, 36

W

World War II, 37, 39

Water Governance Indicators, 101 Welland Canal, 36, 37 Western Climate Initiative (WCI), 202,

Y Young, Oran, 166