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ABSTRACT
This article responds to the growing risk of Investor–State Dispute Settlement (ISDS) claims arising from states' measures to mitigate climate change, such as fossil fuel phase-outs. It proposes a carve-out that would cover measures that are adopted in good faith and have a reasonable causal nexus with reducing and stabilizing greenhouse gas emissions (e.g. measures 'related to' this aim). Depending on states' preferences, the carve-out could be designed as a treaty-wide exclusion from international investment agreements (IIAs) or as a carve-out that only removes such measures from ISDS procedures. Importantly, we propose a process to govern the application of the carve-out that prevents this issue being determined by ISDS tribunals. We argue that questions concerning the carve-out's application to specific investor claims should initially be subject to joint determination by the treaty parties' environmental authorities. Where these authorities cannot agree, we propose that this issue should be referred to a State–State tribunal that includes members with climate-related expertise. This article advances the specific debate about a climate carve-out for IIAs and wider debates about strategies for protecting regulatory space under IIAs through its detailed examination of carve-outs, drawing on examples from a range of subject areas.

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

As U.S. coal exports increase and new infrastructure is proposed to improve access to burgeoning markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review. The National Environmental Policy Act of 1969 (NEPA) sets out an assessment process that applies to many Federal agency actions relating to coal export, including the grant of leases for coal mines, approval for new railway construction and the grant of permits for coal export terminals. Under NEPA, an environmental impact statement (EIS) must be prepared for any major Federal action significantly affecting the quality of the human environment. This includes direct, indirect and cumulative effects. The question of which indirect consequences of an action should be considered, and how far the review extends into upstream or downstream effects, is essentially a question of causation. Where a downstream event, such as the export and end-use of coal, is a reasonably foreseeable consequence of an action or there is a reasonably close causal relationship, then those downstream effects are within the scope of NEPA review. The greatest challenge in evaluating greenhouse gas (GHG) emissions under NEPA is determining when they are likely to have a "significant" impact on the environment. Climate change is a highly complex problem, and the GHGs emitted by any single project are unlikely to have a substantial impact on global atmospheric concentrations of carbon dioxide. Thus, agencies need to consider the cumulative impacts of these projects -- as required by NEPA -- and their relative contribution to climate change.

Four behavioural risk factors for noncommunicable diseases (NCDs) are tobacco use, physical inactivity, harmful use of alcohol, and unhealthy diet. In general, the liberalisation of trade increases the availability and lowers the cost of goods, which may create concerns with respect to harmful products such as tobacco and alcohol. Governments can address NCD risk factors through a range of regulatory responses, but as these regulations may lower or restrict trade in the relevant goods, they must be designed in accordance with international trade agreements. In this article, we argue that although poorly-designed regulatory responses to NCD risk factors may be inconsistent with international trade agreements, they include sufficient flexibility to accommodate evidence-backed measures that are well-adapted to their public health purposes. Specifically, in shaping regulatory responses to NCD risk factors, governments should bear in mind international trade rules, which include obligations not to discriminate against imported like products, and not to restrict trade, intellectual property rights or foreign investment more than necessary for public health purposes.