Article 20 Obligations Under the KORUS FTA: The Deteriorating Environment for Climate Change Legislation in the U.S.

This article explores the nexus of American and Korean environmental laws. It focuses on the contrasting policies of the Democrat and Republican Parties in the United States (U.S.) and the legislative stalemate expected for the 113th Congress. The article examines a two to four year near term window of legislative actions on environmental laws and regulations. The article closes with a review of implications for Korean environmental laws with a special regard for the Korea‐U.S. Free Trade Agreement (KORUS FTA).

The Supreme Court of the U.S. has set strong barriers to prevent the litigation of climate change in the federal judiciary. Foremost among the jurisprudential concerns is the political question doctrine which makes it unconstitutional to try political questions in Article III courts. Instead, those matters should be brought directly and exclusively to the political branches of the federal government; the doctrine is closely related to the theory of the separation of powers central to the design of the Constitution. The Supreme Court has provided other barriers to climate change litigation beyond the political question doctrine. The courts have instructed everyone to look to Congress and the Executive Branch for guidance on global climate change.

The U.S. Congress is currently controlled in a divided manner; the Democrats control the upper house and the Republicans control the lower house. The Republicans have argued that fundamental environmental laws such as the National Environmental Policy Act (NEPA) or the Clean Air Act (CAA) should be repealed or at least limited in their reach; they have likewise argued for the elimination of the Environmental Protection Agency (EPA), the de facto Ministry of the Environment for the U.S. Congress and the White House have made extensive budgetary and fiscal cuts to environmental programs, especially programs addressing climate change. The EPA has failed to deliver effective regulations addressing climate change. Should the U.S. lower the standards of its environmental laws, then the KORUS FTA could be at risk of breach.

The article provides a review of Congress's historical perspectives on environmental laws and their interface with the KORUS FTA. The article provides discussion on the potential impacts for Korean policy makers, legislators, and investors in the foreseeable future.