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

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Publication Date: December 2001

Publisher(s): Furman Center for Real Estate

Author(s): Vicki Been

Special Collection: John D. and Catherine T. MacArthur Foundation

Topic: Law and ethics (Real estate and property law)

Keywords: land use; Community and Economic Development

Type: Article


My claim in this Article is a narrow one. I take no stand here on whether the “takings” provisions in NAFTA and other investor protection or free trade agreements are, on balance, wealth-maximizing, or desirable from some other normative perspective. Nor do I take a position on whether the existing allocation of authority for land use and environmental regulation among federal, state, and local governments is optimal. Instead, my goal is to highlight the consequences [32 ELR 11002] investor protection provisions could have for that allocation, and thereby seek to ensure that those consequences are taken into account in discussions about the wisdom of including such protections in bilateral and multilateral free trade or investment agreements.