The executive trade promotion authority and international environmental review in the twenty-first century.

• Author: Carr, Terese

1. INTRODUCTION 142 II. FAST TRACK AND TRADE PROMOTION AUTHORITY 144 A. The History and Current Status of Fast Track 144 B. Fast Track in Past Trade Agreements 148 1. Effectiveness Generally 148 2. Specific Trade Agreements: NAFTA 151 3. Arguments for Trade Promotion Authority Today 155 III. THE NATIONAL ENVIRONMENTAL POLICY ACT AND INTERNATIONAL ENVIRONMENTAL REVIEW REQUIREMENTS 161 A. Environmental Review Requirements in the United States 161 B. The Application of Environmental Review Law Abroad 163 IV. THE ADVANTAGES OF ENVIRONMENTAL REVIEW PROCEDURES IN TRADE PROMOTION AUTHORITY LEGISLATION 169 A. Environmental Benefit of Environmental Review Provisions in Trade Promotion Authority Legislation 170 1. Transparency and Public Participation as a Basis for Opposing Trade Promotion Authority 170 2. The Potential of National Environmental Policy Act Principles to Address Transparency and Public Participation in Trade Promotion Authority 174 3. Some Lessons Learned from NAFTA's Approach 180 B. Economic Benefit of Environmental Review Procedures in Trade Promotion Authority Legislation 183 1. Environmental Obstacles to Trade Promotion Authority Renewal 184 2. Environmental Opposition to Trade Measures Under Trade Promotion Authority 188 V. CONCLUSION 193 I. INTRODUCTION

   The continuing proliferation of international trade agreements is arguably both inevitable and beneficial to the U.S. and global economies. (1) There is even some evidence to suggest that increased global trade can lead to positive environmental changes. (2) Trade promotion authority, sometimes referred to as "fast track," is one way to facilitate the U.S. role in the global trade process and has been strongly supported by many politicians and economists. (3) After a protracted political battle, President Bush (4) finally received congressional approval for the latest trade promotion authority bill, which he signed into law on August 6, 2002. (5) It is far from clear, however, whether the President will receive the bipartisan support he needs to use the trade promotion authority effectively. (6) The passage of the bill was narrow and was clearly divided along party lines. (7) The primary obstacles to trade promotion authority were environmental and labor concerns, which many consider to be necessary components of responsible globalization. (8) Environmental lobbyists posed a significant threat to the reauthorization of trade promotion authority. (9) Although the new law incorporates significant political compromises, including certain environmental measures, many critics argue that these are insufficient to unify Congress behind the President in the exercise of his new trading authority. (10)

   This Comment argues that the incorporation of environmental review provisions based on principles of the National Environmental Policy Act (NEPA) (11) into the trade promotion authority law would, by addressing environmental concerns, have strengthened the law's success in achieving future international trade agreements. Part II of this Comment discusses the history and current status of the trade promotion authority, including the past effectiveness of fast track and the environmentalist reactions to fast track and to the North American Free Trade Agreement (NAFTA), (12) one of the largest trade agreements negotiated under fast track authority. Part III describes environmental review procedures in an international context, including the extension of National Environmental Policy Act requirements outside the United States. Part IV attempts to show that environmental requirements, partially modeled after NEPA, could be appropriately included in the trade promotion authority legislation. Part IV also argues that such a solution would result in a positive environmentalist response, enhancing the United States' ability to achieve effective international trade agreements under the trade promotion authority.

2. FAST TRACK AND TRADE PROMOTION AUTHORITY

   1. The History and Current Status of Fast Track

      Congress first passed trade promotion authority legislation, originally known as "fast track" authority, in 1974. (13) That authority essentially allowed the President to negotiate international trade agreements that were subject to rejection or approval, but not amendment, by Congress. (14) Fast track legislation was enacted in response to conflicts between the President and Congress. (15) These conflicts stemmed from the presidential exercise of the executive trade agreement authority and from ordinary congressional approval procedures, which resulted in ongoing amendments and a slower, less reliable trade negotiation process. (16) Fast track procedures were implemented as a "consultative" solution to foreign trade disputes between Congress and the President. (17) The fast track procedure was designed to benefit both branches of government by allowing congressional input into trade agreement negotiations while enabling "the President to guarantee to international trading partners that Congress will decide on the final agreement promptly." (18)

      Under the fast track approach, Congress first set forth negotiating objectives for the Executive and then maintained a monitoring and advising role in the negotiation stage of an agreement. (19) In return, the President was able to assure foreign negotiating partners that congressional review of proposed agreements was subject to strict time limits. (20) Additionally, congressional approval or rejection of a trade agreement implementation bill under fast track did not allow for amendments to that agreement. (21) Fast track procedures were further refined by the Omnibus Trade and Competitiveness Act of 1988, (22) and the presidential functions regarding the negotiation of trade agreements were effectively delegated to the U.S. Trade Representative. (23)

      Fast track legislation was renewed approximately once every five years after its inception until it lapsed in 1004. (24) Under 19 U.S.C. [section] 2003(b), fast track procedures could be reinstituted only by presidential request and if neither the House nor the Senate adopted an extension disapproval resolution. (25) "President Clinton attempted to renew fast track negotiating authority in 1995, 1997, and 1998, but was defeated by disagreement in Congress." (26) Due to concerns that environmental and labor protections were undermined by presidential fast track negotiating power, the legislation was consistently defeated for eight years after its expiration in 1994. (27)

      Soon after his inauguration, President Bush made a request to renew the authority, now called the trade promotion authority (TPA). (28) Despite President Bush's efforts, little progress was made in the year 2001. Although House Bill 3005 passed the House on December 6, 2001 by the narrowest possible victory--215 to 214 votes--the Senate never approved it. (29) The legislative vehicle that finally carried TPA to success was House Bill 3009, a package of various measures that was passed by the Senate on May 23, 2002. (30) Although reconciliation of the differences between House Bill 3005 and House Bill 3009 was anticipated to be contentious, (31) the House passed the revised House Bill 3009 on July 27 by a vote of 215 to 212. (32) Senate approval quickly followed on August 1, by a vote of 64-34. (33) On August 6, President Bush signed the bill, (34) known as the Trade Act of 2002 and hailed as one of the biggest legislative accomplishments of his presidency. (35)

      Division B of the Trade Act, entitled The Bipartisan Trade Promotion Authority Act of 2002, (36) renews the president's authority to conduct trade negotiations that are subject to congressional veto or approval, but are immune to congressional amendment. (37) It provides that the negotiation process will include close consultation with a Congressional Oversight Group and all committees of the House and Senate that have jurisdiction over laws affected by a trade agreement resulting from the negotiations. (38) The trade negotiating process authorized by the Act may be defeated in June, 2005 if either the House or Senate adopts an extension disapproval resolution; otherwise, it is set to expire in 2007. (39)

   2. Fast Track in Past Trade Agreements

      1. Effectiveness Generally

         Fast track trade agreement authority was subject to both praise and criticism during its first twenty years of existence. (40) Among the positive attributes of the authority is the more efficient and expeditious passage of fast track trade measures. It "gives the executive greater credibility in negotiating agreements in the international arena," (41) as compared to traditional treaty approval under Article II, clause 2 of the U.S. Constitution. (42) Evidence of successful experience with several major trade agreements, including NAFTA, the Uruguay Round agreements of the General Agreement on Tariffs and Trade (GATT), the United States-Canada Free Trade Agreement, the United States-Israel Free Trade Agreement, and the Tokyo Round agreements of GATT, has also been presented as a favorable argument for legislation to extend fast track. (43) That fast track was instrumental in effecting these agreements is supported by the fact that, after the expiration of fast track in 1994, attempts to admit Chile to NAFTA stalled. (44) Immediately after the renewal of the authority in August 2002, however, the Chilean government expressed optimism regarding the progress of a new trade relationship with the United States. (45) In fact, all of the current U.S. international trade agreements, with one exception, were negotiated and passed under fast track authority. (46) Congress is even said to have re-authorized fast track in 1991 for the express purpose of enabling NAFTA negotiations. (47) Without fast track negotiating authority, the President is relatively powerless to participate in meaningful, large-scale trade negotiations with foreign leaders who are authorized to resolve issues as they...