The legislative instability of the 113th U.S. Congress and its potential impacts to Korean environmental laws and the Korus FTA

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This article endeavors to provide an accounting to South Korean policy makers and legislators of the recent political events in the United States and of their potential impacts on the environmental laws of the United States. Furthermore, this article endeavors to raise awareness on potential impacts to Korean environmental laws and policies.

A theoretical framework is suggested in this article. The United States does not have a public consensus on the future direction of environmental law and it especially lacks consensus on issues regarding anthropogenic climate change. Indeed, one major party essentially refutes the notion. Environmental laws in America could roll backwards, but much evidence supports legislative inertia could prevent all change, preserving the current level of environmental protections until the following Congress in 2014.

The lack of a national consensus prevents democratic processes from supporting what would appear to be modern global norms of environmental legislation, such as legislation in support of the United Nation's Framework Convention on Climate Change. Additionally, the U.S. is distracted with economic and fiscal concerns that prevent legislators and political processes from developing that consensus necessary for the promotion of environmental legislation.

A lack of legislation to bring the U.S. in alignment with other developed economies, such as within the E.U. or South Korea, will ultimately lead to risks of trade friction where free trade agreements lack strong protections for international norms of environmental laws.

The United States federal government has not enacted what most American environmental law professors would describe as major legislation in many years. The problem extends to fiscal support of enacted laws. The pro-environment Obama Administration has been forced by economic necessities to cut the EPA's budget by 4.7% for 2013, prior to any additional cuts related to the ongoing 'Fiscal Cliff' negotiations. Ongoing environmental legislative frustration bodes to continue into the near future, potentially frustrating trade partners with higher standards of environmental legislation.

The recent national elections of November 2012 have split the Congress and left the President without budgetary support in the House of Representatives. The Republican Party Platform seeks to roll back environmental legislation. Its agenda seeks to strip the federal government of environmental legislation, leaving such powers to state and local governments. Such a move is rooted in Constitutional arguments on the 10th Amendment but could gut the power and budget support of environmental legislation in the United States.

It is forecast in this article that the logjam in Congress will ultimately serve to protect the existing environmental legislation and support the environmental law requirements under the KORUS FTA. However, the political interest of both parties is to make much of environmental issues to highlight differences between the parties prior to the 2014 elections. For close partners in trade, such as South Korea, it could be an awkward period of waiting and watching. Soft engagement on the issues is recommended for both the Korean government and Korean investors to remind friends within both the Democratic and Republican Parties of the need for stable environmental law frameworks. Such stability will be an asset to the new future of the KORUS FTA, which in turn will aid both countries to grow out of the current economic malaise. Perhaps working together, economic growth can move ahead side-by-side with environmental legislation.
Original languageEnglish
Pages (from-to)299-337
Number of pages38
JournalChonnam Law Review
Issue number3
Publication statusPublished - Dec 2012


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