Environmental NGOs submit letter to Congressional Oversight Group on Trade Policy - Center for International Environmental Law

A letter dated October 17, 2002, submitted by several environmental NGOs to the Congressional Oversight Group (COG) on trade policy, argues that the Office of the U.S. Trade Representative's (USTR) proposals for investment provisions in trade agreements fail to meet the congressional mandate that foreign investors receive no greater substantive rights than U.S. investors under U.S. law.

• The NGOs argue that the USTR's proposals violate the congressional mandate to ensure foreign investors are not granted 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 USTR proposals regarding expropriation are criticized for omitting the Supreme Court principle that a government action must permanently interfere with a property in its entirety to be a taking, ignoring the 'parcel as a whole' standard from Penn Central Transportation Co. v. New York City.
• The NGOs claim the USTR's use of the 'character of government action' as a factor in expropriation analysis is too ambiguous and fails to distinguish between permanent physical invasions and normal regulatory actions intended to promote the public good.
• The proposals are criticized for failing to incorporate U.S. jurisprudence stating that a serious diminution in property value does not, by itself, constitute an expropriation.
• The NGOs argue that the USTR's proposed language on investor expectations is too vague and fails to acknowledge that investors should expect health, safety, and environmental regulations to become more strict over time.
• The inclusion of 'fair and equitable treatment' as a standard for minimum treatment is viewed as dangerous because no such right exists under U.S. law, and it could allow tribunals to apply subjective interpretations that undermine democracy and good governance.
• The NGOs contrast 'fair and equitable treatment' with the Administrative Procedure Act (APA), noting that while the APA allows review for 'arbitrary or capricious' actions, it does not apply to all government actions and does not provide for the monetary damages that investment agreements would allow.

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. 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. 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 - Center for International Environmental Law |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 - Center for International Environmental Law}}, 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} }