Environmental NGOs submit letter to Congressional Oversight Group on Trade Policy

A coalition of environmental NGOs warns the Congressional Oversight Group on Trade Policy that USTR's investment proposals could grant foreign investors excessive rights, potentially exposing the U.S. to financial liability for regulatory actions. The authors argue the proposals misrepresent U.S. Supreme Court precedents on expropriation and introduce subjective standards like "fair and equitable treatment" that do not exist in U.S. law.

• The NGOs argue that USTR's proposals violate the congressional mandate to ensure foreign investors do not receive greater substantive rights than U.S. investors, particularly because claims would be decided by ad hoc panels not bound by U.S. Supreme Court precedent and not subject to U.S. court review.
• The authors claim the USTR's standard for expropriation is imbalanced and omits critical U.S. legal principles, such as the requirement that government action must permanently interfere with a property in its entirety to be considered a taking, as established in Penn Central Transportation Co. v. New York City.
• The NGOs express concern that the USTR's use of the "character of government action" as a factor is too ambiguous and could be misinterpreted by tribunals to grant foreign investors rights beyond those provided by the U.S. Constitution, failing to distinguish between physical invasions and normal regulatory actions.
• The document asserts that USTR's proposals fail to reflect U.S. jurisprudence regarding investor expectations and property rights, specifically omitting that expectations must be evaluated at the time of investment and that health, safety, and environmental regulations are subject to change.
• The authors emphasize that under U.S. law, a mere diminution in property value, even if serious (citing cases with 75% and 92.5% losses), does not automatically constitute an expropriation, a standard they believe must be explicitly included in the trade language.
• The inclusion of "fair and equitable treatment" as a standard is criticized as dangerous because no such right exists under U.S. law; the authors argue it is subjective and could allow tribunals to second-guess democratic governmental actions.
• The NGOs argue that granting foreign investors monetary damages for violations of the Administrative Procedure Act (APA) would violate the "no greater substantive rights" mandate, as U.S. investors are generally limited to injunctive relief under the APA.

APA

Porter, S., Prolman, S., Wagner, M., Waskow, D., & Seligman, D. (2002). Environmental NGOs submit letter to Congressional Oversight Group on Trade Policy. Center for International Environmental Law. https://www.ciel.org/news/environmental-ngos-submit-letter-to-congressional-oversight-group-on-trade-policy/

Chicago

Porter, Stephen, Susan Prolman, Martin Wagner, David Waskow, and Dan Seligman. Environmental NGOs submit letter to Congressional Oversight Group on Trade Policy. Center for International Environmental Law, 2002. https://www.ciel.org/news/environmental-ngos-submit-letter-to-congressional-oversight-group-on-trade-policy/.

Wikipedia

{{cite press release |last1=Porter |first1=Stephen |last2=Prolman |first2=Susan |last3=Wagner |first3=Martin |last4=Waskow |first4=David |last5=Seligman |first5=Dan |title=Environmental NGOs submit letter to Congressional Oversight Group on Trade Policy |publisher=Center for International Environmental Law |date=1 October 2002 |url=https://www.ciel.org/news/environmental-ngos-submit-letter-to-congressional-oversight-group-on-trade-policy/ |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@misc{porter2002environmental, author = {Porter, Stephen and Prolman, Susan and Wagner, Martin and Waskow, David and Seligman, Dan}, title = {{Environmental NGOs submit letter to Congressional Oversight Group on Trade Policy}}, publisher = {Center for International Environmental Law}, year = {2002}, month = oct, url = {https://www.ciel.org/news/environmental-ngos-submit-letter-to-congressional-oversight-group-on-trade-policy/}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }