NAFTA's Investment Protections and the Division of Authority for Land Use and Environmental Controls

This paper discusses the way investor protections in international trade agreements may affect the division of power over environmental and land use regulation among federal, state, and local governments in the United States. It explores how national governments could pass the costs of takings compensation required by such investor protections on to the local and state governments, and analyzes other responses a national government might have to compensation awards. Professor Been predicts that domestic property owners will use investor protections in international trade agreements to argue for more expansive takings protections under the Fifth Amendment. Professor Been concludes with a call for policy-makers to consider more carefully the effects investor protections in free trade agreements may have on the division of responsibility for environmental and land use regulation among federal, state, and local governments.