3 Why Link Trade and Environmental Politics?

The Politics of Institutional Linkages

The incorporation of environmental provisions into trade agreements is a classic example of linkage politics. At its core, the politics of institution linkages seeks to understand how, why, and with what implications different areas of international law and politics intersect and interact with one another. Linkage politics explores such questions as: under what conditions does cooperation among biodiversity treaties on species of common concern yield better conservation outcomes? How do the chemicals treaties streamline their workflow to more efficiently manage resources? How are human rights norms folded into climate change law? Who defines these linkages, and with what implications? How transferable are these lessons between regimes and across policy areas? This book is centrally concerned with how, why, and with what implications states link trade and environmental politics by incorporating environmental provisions into preferential trade agreements (PTAs).

Studying the politics of institutional linkages can help us to better understand myriad dynamics in global governance. This includes how connections between international institutions can enhance regime effectiveness, divert funding in new directions, transfer authority from one site to another, and impact issues of equity and accountability in global politics. There are many examples of this in the literature. In our own previous work, for example, we have argued that despite a plethora of institutional linkages, trade agreements fall short of making any meaningful contribution to climate politics, largely because climate provisions in trade agreements are weakly legalized (Morin and Jinnah 2018). Jinnah has also argued that linkage politics between trade and environmental issues at the WTO have, in some instances, entrenched existing power dynamics in ways that disadvantage developing-country interests (Jinnah 2014). Morin has shown that developing countries have strategically linked environmental issues to intellectual property in order to create broader coalitions at the World Intellectual Property Organization (Morin 2008, 2014).

Many others have navigated the politics of institutional linkages as well. Tana Johnson (2015), for example, has explored how specific types of trade-environment linkages at the WTO emerged in the first place, arguing that some can be traced back to political pressures faced by governments in the late 1980s and early 1990s. Kati Kulovesi (2011) has explored how environmental issues have challenged the legitimacy of the WTO’s dispute-settlement process, and Dan Esty (2002) has proposed solutions to the WTO’s “legitimacy crisis” through more links with broader publics and more sensitivity to environmental issues.

Scholars of international law have made many other important contributions to our understanding of linkage politics within the trade-environment realm. Riccardo Pavoni (2010), for example, has demonstrated how the international legal principle of “mutual supportiveness” has been used to address tensions between the WTO and many other linked issues, including health, cultural diversity, and environment. Mark Axelrod (2011a) has made similar arguments related to the use of “savings clauses” in international law, and Steve Charnovitz (2002b) has outlined an analytical framework for considering which issues should be linked to the WTO at all.

Linkage politics is by no means limited to the trade-environment realm, however. Environmental politics is rich with examples of states creating mechanisms to link different treaty regimes in order to pursue specific objectives. Henrik Selin (2010), for example, has illuminated how linkages between multilateral chemicals treaties have created opportunities to diffuse policies and build coalitions across treaty regimes. Michele Betsill and colleagues (2015) have argued for developing more productive linkages across the global climate regime in order to enhance outcomes, such as increased emissions reductions and finance. Mark Axelrod (2011b) has demonstrated how regional fisheries management organizations use linkages to climate change to distract from other regime priorities. Similarly, in previous work, Jinnah (2014) has analyzed how secretariats of international biodiversity treaties have created institutional linkages to climate change in order to open up additional funding streams for biodiversity governance. There are countless more examples. The field is rich.

Linkage politics also extends beyond the environmental arena. Vinod Aggarwal and Kristi Govella (2013), for example, have showcased the politics of linkages between the various trade and security regimes. Unni Gopinathan and colleagues (2018) have uncovered contrasting rationales for why multilateral development and trade organizations choose to link their agendas to global health. Christina Davis (2004) has shown that institutional linkages between trade and agriculture have counteracted domestic obstacles to policy reforms, while Morin (2008; 2014) has argued that similar linkages between patent law and public health have created new obstacles for domestic reforms.

Linkage politics, therefore, provides a rich theoretical backdrop to help us better understand this book’s empirical analyses of trade-environment linkages in US trade agreements. Centrally, this theoretical literature can help to illuminate not only how, but, importantly, why states might choose to link environmental and trade issues in the first place. This question of why states would do this is of central interest to this book. We therefore spend some time here exploring how the literature answers the question: why link trade and environmental issues? We then evaluate these rationales alongside our own new empirical interview data, wherein we asked key informants in the design of US trade policy why they chose the specific environmental linkages that we currently see in US trade agreements, how those decisions were made and by whom, and with what lessons going forward.

The remainder of the chapter is organized as follows. The next section surveys the literature on linkage politics. We briefly outline high-level typologies that have built a foundation for subsequent analyses of linkage politics before detailing some key contributions from the more specific literature on “why link?” in the first place. The second half of the chapter turns to the empirical question of how and why the US government selected certain issues for inclusion in its PTA. We conclude with an assessment of how the “why link?” literature comports with and diverges from our own empirical data on the topic in the US case.

Typologies of Linkage in Environmental Politics

Scholars use the terms “linkage,” “overlap,” “interplay,” and “interaction” in slightly different ways to analyze and explain how different areas of international law and politics intersect and interact with one another. In differentiating between overlap and linkage, Oran Young defines linkage as resulting from “self-conscious” decision making, whereas overlap results from “unreflective” decisions (2002). He underscores, however, that even if overlap between regimes is incidental, it can also lead to interaction, or interplay, between them. He adds that “conscious efforts to make use of interplay to promote both cooperative and competitive ends constitute a domain of activities that can be thought of as the ‘politics of institutional linkages’” (Young, 2002). Kristin Rosendal offers a complementary explanation, which inserts linkage as a necessary step between overlap and interplay (2001b). This book is interested in how and why the US government consciously creates such linkages between trade and environmental policies in order to promote particular environmental outcomes.

In his classic intervention, which catalyzed discussion of this topic, Ernst Haas (1980) outlines three rationales for linking issues in international regimes. He identifies tactical linkages, which are used to obtain bargaining leverage; linkages that are developed to maintain the cohesion of coalitions; and substantive linkages, which are based on consensual knowledge linked to an agreed social goal. Importantly, Haas stresses that power relations underlie all decisions to link issues within regimes.

The early 2000s saw an explosion of literature that typologizes institutional linkages, overlap, and interplay, with no fewer than 16 separate categories identified by core contributors to this discussion (e.g., Young 1996, 2002; Stokke 2000, 2001; Rosendal 2001a, 2001b; Selin and VanDeveer 2003). The typological landscape is dense and not worth navigating in detail here. Rather, this section briefly reviews those categories of “self-conscious” linkages, which characterize the majority of trade-environment linkages we explore in this book.

Young defines two forms of temporal linkages: formative and operational (2002). Formative links are those that occur during the formation, or reformation, of a regime. Operational links are involved in the day-to-day operation of a regime (Young 2002). Both are at play in this book. For example, provisions built directly into PTAs are formative, whereas environmental cooperation activities developed on the basis of PTAs’ environmental cooperation agreements are operational in nature.

Olav Stokke’s (2001) differentiation between utilitarian and ideational linkages is also relevant here. Whereas the former are largely aimed at cost reductions, the latter aim to draw political attention to the problems addressed in another regime. Ideational links are most visible in US PTAs within the Forest Annex to the US-Peru PTA, which draws significant attention to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Stokke’s category of normative interplay refers to the “extent to which the legality or legitimacy of rules and institutions is confirmed or lessened by their level of coherence with other rules” (2000, 227). We see this in, for example, NAFTA’s list of “covered [environmental] agreements,” which are protected from challenge in the event of legal conflict with the trade agreement. Finally, Stokke’s categories of diffusion and political spillover linkages are central to the various processes we discuss in chapters 4–6. Diffusion linkages occur when a regime emulates the substantive or operational solutions and principles contained in other regimes. We see these most prominently in the discussions in chapters 4 and 6 about how US environmental provisions diffuse into trading-partner domestic law and third-party PTAs, respectively. Political spillover linkages, wherein “actor interests and capabilities associated with one regime significantly shape the operation or impacts of another” (Stokke 2000, 226), are most visible in chapter 4’s analysis of how the CITES provisions were deeply entrenched within the US-Peru PTA.

Henrik Selin and Stacy VanDeveer (2003) offer some additional analytical leverage in their designation of functional linkages (following Young and others) as well as political ones, wherein “content and design of one regime . . . affect the formation of or operation of another” (19). Again, we see these political linkages most clearly in the CITES linkages in the US-Peru PTA, which build CITES implementation directly into the agreement. Importantly, Selin and VanDeveer (2003) argue that actor linkages—those that are agent-based—can play a critical role in driving the outcomes of political linkages. In other words, who is doing the linking matters to what the linkages look like. We illuminate this in the second half of this chapter, wherein we discuss how nongovernmental organizations (NGOs) and US interests in multilateral environmental agreements (MEAs) shaped the development of critical environmental linkages in US trade policy.

Another important contribution from Oberthür and Ghering (2006) outlines an analytical framework for analyzing interactions between regimes. They identify several causal mechanisms that allow us to better assess the cause-and-effect relationships between “source” and “target” regimes. Specifically, they argue that all cases of institutional interaction can be understood as either influencing the decision-making process of a target regime (via cognitive or commitment interaction), or by affecting the target’s implementation and effectiveness (via behavioral/outcome interaction and impact-level interaction).

Finally, much more recently, Betsill and colleagues (2015) outlined a very useful typology of motivations for creating institutional linkages. They propose two basic rationales: those related to division of labor, and those related to catalyzing action. These overlay well onto Young’s prior, more static formative and operational linkages, but go further in assigning agency to understand motivations for creating these connections in the first place. Division of labor linkages, which have been the primary focus of the institutional interplay/interaction literature, are largely related to questions of efficiency or competition avoidance. These linkages are akin to Stokke’s (2001) utilitarian linkages described above. Such linkages that aim to divide labor more efficiently might, for example, assign specific functions to specific institutions so as to avoid duplication of effort on overlapping areas of interest, or to decrease incentives for forum shopping. This might be the case when PTAs give preference to MEAs in the case of legal conflict. Such linkages are uncommon among environmental provisions in US PTAs. Similar to the division of labor argument, some scholars argue that trade-environment linkages are meant to “harmonize” issue areas by eliminating competing policies (Arda 2000).

Betsill and colleagues’ (2015) second rationale is to catalyze action. These linkages aim to enable specific actions to achieve specific regime goals. For Betsill and colleagues (2015), these are things like coordination between carbon markets and private actors to enhance greenhouse gas reductions. In US trade agreements, environmental linkages that seek to catalyze action in trading-partner nations are prolific. These aim to enforce domestic environmental laws, implement MEAs, create mechanisms for public participation in environmental decision making, and more.

Table 3.1

Types of Trade-Environment Linkages in US Preferential Trade Agreements

Linkage Type	Explanation	Examples from US trade agreements
Formative	Occurs in the formation or reformation of a regime.	Decision to complement NAFTA with a side agreement on the environment
Operational	Related to the day-to-day operations of a regime.	Citizen submissions process under NAFTA
Utilitarian/Division of Labor	Reduces costs	Selected MEAs should prevail over the PTA in case of legal incompatibility
Ideational	Draws political attention to problems addressed in another regime	Reference to the moratorium on whaling
Diffusion	Occurs when a regime emulates solutions or principles from another regime	Third-party nations incorporating US PTA environmental provisions
Political Spillover	Occurs when activities in one regime affect those of another	Specific measures related to CITES implementation in US-Peru PTA
Normative	Addresses coherency with other regimes to affect legitimacy	Requirement to implement a list of MEAs
Actor	Agent-based linkages across institutions	CITES secretariat participation in implementation of Peru FTA and CITES
Catalytic	Enables actions to achieve regime goals	Requirements to enforce domestic environmental laws under several US PTAs

Why Link Trade and Environmental Issues?

Several authors have explored the question of why governments choose to link environmental issues to trade agreements. As Morin, Dür, and Lechner (2018) have previously distilled, three explanations are particularly prolific in the literature: domestic pressure from environmental groups, protectionist interests, and low compliance costs for environmental provisions.

On the former, domestic pressures from environmental groups are thought to be important because, in most countries—developed and developing—a large proportion of citizens consider the benefits of environmental protection to be well worth the costs (Bättig and Bernauer 2009; Bernauer and Nguyen 2015). Several scholars have highlighted the role played by NGOs, trade unions, and businesses in lobbying governments for particular types of linkages and for shifts from past practice in such linkages (e.g., Johnson 2015; Lechner 2016). This role is well established empirically in the case of NAFTA, wherein the National Wildlife Federation, the Natural Resources Defense Council, and the World Wildlife Fund were instrumental in shaping NAFTA’s environmental side agreement (Gallagher 2004; Strange 2015).

Figure 3.1 makes this point clear. Each point represents a different country. The countries are distributed on the x-axis based on their level of democracy according to the Polity IV database of 2016. They range from the most autocratic on the left-hand side to the more democratic on the right-hand side. Countries are also distributed on the y-axis based on the average number of environmental provisions in the PTAs concluded since 2000, as documented by the TREND database. The correlation between these two variables is 0.435. The United States, represented as a triangle, appears as one of the most democratic countries, and one with the highest average number of environmental provisions per PTA.

Protectionist interests or, put more generously, a desire to level the playing field, are also commonly lodged as an explanation for the inclusion of environmental provisions in trade agreements (Bhagwati 1995b; Subramanian 1992; Lechner 2016). The basic argument is that firms based in countries with higher levels of environmental protection bear higher costs of production than do firms based in countries with lower levels of environmental protection. In requiring trading partners to raise their levels of environmental protection, costs associated with this disparity are reduced. This disparity, and thus the desire to ameliorate it, is higher between developed and developing countries where trade has more significant distributional effects between trading partners. For example, in an analysis of WTO, NAFTA, and EU environmental negotiations, Steinberg (1997) argues that rich “green” states drive trade-environment linkages in order to force developing countries to accept higher environmental standards and greener rules. The premise of the latter has been challenged recently by scholars who highlight that developing countries also have strong interests in incorporating environmental provisions into trade agreements, though their priorities may be quite different (Bernauer and Nguyen 2015).

Compliance costs are an important theme in the literature for explaining why states incorporate environmental provisions into trade agreements. For example, pre-existing environmental provisions in trade agreements can greatly decrease the cost of incorporating such linkages in future agreements (Milewicz et al. 2016). Unsurprisingly, perhaps, once a country has implemented an environmental provision, the cost of replicating that provision in future agreements is low. Similarly, it is less costly for countries with stringent domestic environmental laws to incorporate such provisions in their trade agreements, perhaps in part with the intention of diffusing such environmental commitments to other countries (Jinnah and Lindsay 2016). This latter motivation may overlap with protectionist explanations as well, depending on the nature of the environmental provision being included. Several scholars have also highlighted the reputational, or “audience costs,” of diverging from environmental provisions in trade agreements once a country has included such provisions in previous agreements (Lechner 2016; Milewicz et al. 2016). Pulling these three core explanations together, Morin, Dür, and Lechner (2018) have demonstrated, using the TREND database, that democracies, countries that face import competition, and those that care most about the environment have been more likely to incorporate environmental provisions into their trade agreements. Complementing these central explanatory threads in the trade-environment literature are several important case studies that also offer instructive explanations for why states link policies across institutions. Jinnah’s (2011) prior analysis of the US-Peru PTA has argued that states may choose to link institutions as a way to transfer regulatory authority from an agreement with weaker enforcement mechanisms (environmental) to one with stronger enforcement mechanisms (trade). Furthermore, Poletti and Sicurelli’s (2015) analysis of the inclusion of provisions relating to biofuels in the EU-Malaysia PTA argues that states may choose to export environmental standards as a means to achieve immunity from legal challenges.

The broader literature on environmental linkages offers several additional insights that might be relevant to trade-environment linkages specifically. Axelrod’s (2011b) examination of regional fisheries management organizations, for example, argues that countries create linkages to high-profile issues, such as climate change, as a way to divert attention from more contentious regime priorities. In their assessment of why states choose to integrate policy areas, Johnson and Urpelainen (2012) provide a somewhat different perspective. Looking across policy fields within environmental governance (e.g., ozone-climate, forest-climate), they theorize that linkages that enhance positive spillovers are less likely to be pursued than those that mitigate negative ones. In other words, they argue that states are more likely to link policy areas, such as trade and environment, not to capitalize on synergies, but rather when cooperation in one area undermines cooperation in another area.

Finally, although these contributions are far more scarce, there are also some important insights into how states choose to link one type of environmental policy over another within trade agreements. Morin and Rochette (2017) have demonstrated, for example, how countries’ policy linkages converge over time as they learn from one another. Lechner (2016) has shown how particular domestic characteristics can trigger lobbying for specific environmental provisions, and Blümer and colleagues (n.d.) argue that states choose provisions that preserve regulatory sovereignty and, to a lesser extent, to level the playing field to pursue other interests. There is far more theoretical work to be done in this area. The next section begins to unpack some possible hypotheses on this question by looking empirically at why the United States chose certain environmental issues to link to its own trade agreements.

How and Why Does the United States Link Trade and Environmental Issues?

Many environmental provisions contained in US PTAs are defined by existing law and policy. For example, the 2002 Trade Act required the United States to include specific environmental policies in its PTAs (e.g., as related to effective enforcement). However, there are also many provisions that go beyond what is mandated through law, and domestic law only provides a general framework for provisions that are framed and fleshed out in far more detail in US PTAs. In order to better understand the processes that shape how the United States selects and frames particular environmental policies in its trade agreements, we conducted 14 interviews with key informants who have been active in the design, negotiation, and/or implementation of the environmental provisions in US trade agreements. Depending on where interviewees were based, interviews were either conducted over the phone or in person in Washington, DC, between October 2017 and June 2018. All interviews were conducted on the condition of anonymity, with various members of the US government, representatives from environmental NGOs, and government representatives from trading-partner nations. Centrally, interviewees were asked to explain the process by which specific environmental provisions were selected for inclusion in US trade agreements.

Importantly, all of the US government officials we interviewed highlighted the interagency process through which environmental provisions are internally identified and developed in US trade agreements. Specifically, the US Trade Representative (USTR) facilitates two interagency processes, the Trade Policy Review Group and the Trade Policy Staff Committee, both of which were established under the 1962 Trade Expansion Act. Through these two groups, 20 US government agencies must consult and agree on all policy papers and negotiating documents related to US trade agreements, including those related to environmental provisions. A recent example of a policy document that was agreed by this group is the official negotiating objectives for the United States, Mexico, and Canada Trade Agreement (USMCA), including its environmental provisions (USTR 2017a). Given the inclusion of environmental issues in these documents, the Trade Policy Review Group and Staff Committee include several executive agencies that work actively on environmental issues, including the Council on Environmental Quality, the State Department, the Department of the Interior, the Department of Energy, and the EPA.

Several interviewees highlighted that, although USTR leads the process and typically plays a more central role identifying specific issues for inclusion, interviewees generally felt well consulted on environmental issues that were of relevance to their respective agencies. One interviewee noted that the interagency process works on the basis of “effective consensus,” with economic departments driving the conversation and big decisions, but with input from specialized agencies on environmental issues. Another said that the interagency process is “both formal and informal. The informal process queues up the issues before taking it into the formal process” in order to make consensus more likely. In describing the consultative role, one interviewee highlighted concerns in his/her agency about including CITES in US trade agreements, fearing that USTR was not the right agency to play such a central role in CITES implementation. Although these concerns were not heeded—CITES features prominently in several US trade agreements—this interviewee did report that USTR has taken its implementation role quite seriously and has consulted heavily with those agencies that are better positioned to guide CITES implementation.

Figure 3.2 shows that countries link trade negotiations to different environmental issues. Based on the TREND database, this radar chart indicates the percentage of PTAs signed since 1990 that included provisions on nine different environmental issues. All US trade agreements address endangered species and other biodiversity issues, in contrast to less than 50 percent for US partners and less than 25 percent for other countries. However, US agreements rarely address climate change, the ozone layer, and desertification. As detailed below, this is due to a range of factors, including pressure from domestic interest groups; which MEAs the United States has long been party to; the structure of domestic environmental legislation; and the constraints of domestic trade policy, especially trade promotion authority, which has explicitly prohibited the United States from addressing greenhouse gas emissions in trade agreements since 2015.

Complementing this interagency process is a patchwork of ad hoc and more formalized mechanisms for consultation with NGOs and other non-state actors. These consultations reflect what Morin, Dür, and Lechner (2018) identify in the literature as domestic pressures on linkage politics. Central to the formalized NGO process is the Trade and Environment Policy Advisory Committee (TEPAC). TEPAC is an advisory body to USTR on environmental issues. It consists of no more than 35 members (currently only 13) from environmental interest groups, industry, agriculture, academia, NGOs, and others with expertise in trade and environment matters. The current 13 TEPAC members hail primarily from environmental groups: the Environmental Investigation Agency; Humane Society International; University of California Santa Barbara; the Nature Conservancy; the Peterson Institute for International Economics; the National Foreign Trade Council; the Environmental Defense Fund; Conservation International; the International Fund for Animal Welfare; Venable, Baetjer, Howard, and Civiletti (a law firm); World Animal Protection; Oceana; and the International Woods Products Association.

In describing how TEPAC is consulted, one US government representative highlighted TEPAC’s role in providing feedback on draft agendas for Environmental Affairs Council meetings under various PTAs, as well as on a timber-shipment verification mission to Peru. While many interviewees stressed the critical role of TEPAC in incorporating diverse stakeholders into, for example, agenda formation, one NGO representative stressed that the constitution of TEPAC needs to be rethought to ensure the right constellation of voices with the most relevant expertise are included.

NGO involvement is also informal and ad hoc. Interviewees highlighted that key NGOs with known expertise in specific environmental issues are consulted in a similar way to TEPAC, but more informally. Perhaps most importantly, several interviewees noted that some NGOs, such as the Natural Resources Defense Council (NRDC), the Sierra Club, Friends of the Earth, and the Environmental Investigation Agency (EIA) have “had the ear” of key staffers on the US Congress House Ways and Means Committee at important points in time, which has been instrumental in driving forward some specific environmental provisions. For example, several US government representatives highlighted the key role of the EIA in drafting the Forest Annex of the US-Peru PTA, which remains the most far-reaching environmental provision in any trade agreement globally.1

Similarly, one NGO representative reported that in the process of consulting NGOs on the Forest Annex, Hill staffers asked NRDC what they should do to make the PTA more “environmentally friendly.” According to this interviewee, NRDC had an established program working on forest issues, and it was NRDC that secured the central place at the table for these issues, including as related to the Forest Annex’s CITES provisions. As one NGO interviewee put it, “NGOs are consulted, but ultimately who and how was all about contacts.”

In addition to these types of domestic pressures, compliance costs also appear to be a key driver in determining which environmental issues appear in US trade agreements. In other words, when the United States is already implementing and complying with specific environmental policies, it is more likely to include those policies in its trade agreements because the cost of doing so is low. This is unsurprising and essentially supports DeSombre’s (2000) theory of “internationalization,” which asserts that the US government is more likely to include existing domestic laws and policies in their international environmental agreements.

For example, as we argue in chapter 5, several environmental norms and policies (e.g., public participation and effective enforcement) that we find in US trade agreements are drawn directly from US domestic environmental law. Several interviewees further confirmed that the list of seven MEAs whose implementation is required in all post-2007 US PTAs were agreed upon because they were both trade-related, and because the United States was already party to all of those agreements. Interview data also confirm our assertion in chapter 6 that such replication is also common among US trading partners. That is, once US PTAs have been implemented in trading-partner nations, they often replicate those provisions in their future PTAs with third-party nations. Interviews pointed to public participation provisions in several Latin American country PTAs as evidence of this. The TREND database supports this finding as well.

Existing institutions are also critical (albeit unsurprisingly) to ensuring low compliance costs. Such institutions can ensure predictable replication of environmental provisions in future trade agreements. Central in the US trade-environment case are the “May 10 agreement” and US Trade Promotion Authority (TPA), also called “fast-track authority.” Both are explained in more detail in chapter 2. In brief, however, these two legal instruments delineate a baseline for environmental (and many other) provisions in US trade agreements. As explained in chapter 2, through TPA, Congress grants the US president broad authority to negotiate trade agreements and subject them to an up-or-down congressional vote (no amendments or filibuster) on the condition that specific provisions are included in those PTAs. This includes environmental provisions that US trading partners must accept if they want to enter into a PTA with the United States. TPA authority has been renewed by Congress five times since it was first enacted in 1974, with the most recent renewal on July 1, 2018, extending authority to June 30, 2021 (Nascimento 2018).

The 2007 Bipartisan Trade Deal, commonly known as the “May 10 agreement,” serves a similar role. It was agreed by Congress after the Democrats took control with four PTAs (Peru, Panama, Columbia, South Korea), negotiated by Republican President George W. Bush, still awaiting Congressional approval. The Democrats refused to approve the PTAs unless they were amended to include several provisions, including environmental ones. The May 10 agreement is, for example, the origin of the MEA list noted above, as well as of the requirement that environmental provisions be subject to full dispute-settlement procedures, as we detail in chapter 4. Although the May 10 agreement only applied to the four PTAs on the table in 2007, its provisions were subsequently adopted in the Trade Act of 2015, which renewed TPA and established these requirements for all US PTAs negotiated under TPA going forward.

Protectionist interests may also play a role in explaining why the United States links trade and environmental policies, along with which environmental policies get pursued and which ones do not. Although interviewees were understandably hesitant to attribute specific environmental policies to protectionist interests per se, some did note that “leveling the playing field” for domestic industry is an important consideration for many involved in constructing US trade policy. At least one interviewee said that s/he talks about “leveling the playing field” in some groups and “environmental protection” in others; the framing depends on who s/he is trying to sell the issue to. Further, one NGO representative said that although it was not the only rationale, one reason domestic interest groups were able to get the US-Peru Forest Annex was because of protectionist motivations to protect domestic industry. S/he underscored that this was “at least a part of the picture, but it is difficult to say how large a part.”

The exclusion of climate change from US PTAs is another important example of protectionist interests driving environment-trade linkages. Core to the US argument for never joining the United Nations Framework Convention on Climate Change (UNFCCC) are competitiveness concerns; the cost of reducing greenhouse gases is high, and the United States does not want to disadvantage itself in relation to other countries, especially emerging economies (Jinnah 2017). TPA requires that the United States be a full party to any listed MEAs in its PTAs, and the 2015 amendment to TPA explicitly prohibits the United States from taking on any greenhouse gas reduction commitments through its PTAs. The implication of this is that the UNFCCC will not be substantively linked to any US PTA in the foreseeable future.

Additional US motivations for linking trade and environmental issues that came up in interviews, but are less well addressed in the literature, include trading-partner interests and situational characteristics. As Morin and Gauquelin (2016) have highlighted elsewhere, Latin American countries have been successful in including biodiversity provisions in their PTAs with the United States. The US-Peru PTA, for example, includes a biodiversity article that—without explicitly referencing the Convention on Biological Diversity, to which the United States is not a party—essentially mirrors its objectives. Interview data suggest that they were able to do this because the United States generally supports biodiversity conservation, but was unable to ratify the Convention on Biological Diversity due to concerns about intellectual property issues. As one Peruvian government official noted in underscoring the importance of the biodiversity article in that PTA, “the annex was the bargain. The broader environmental chapter took up our interests.” As such, it is likely that the biodiversity article was a small concession the United States made for Peru’s acceptance of the Forest Annex, which one US government official noted was “shoved down their throat.”2

Finally, some interviewees also stressed the importance of situational factors in determining which environmental issues get included in PTAs and which do not. Centrally, there is broad agreement that environmental issues should be as trade-related as possible. For example, all TPA-listed MEAs have clear trade relevance. The Montreal Protocol, for example, controls trade in ozone-depleting chemicals. Others stressed more temporal elements of this relationship, such as: for which issues do we have data to support trade relevance; what is politically important now; and which issues might gain support from the president? Illegal timber trade from Peru was well documented in the late 2000s, making it ripe, according to one interviewee, for inclusion in the Peru PTA. As one interviewee noted, referring to the Forest Annex:

It was the product of contingent circumstance, for sure. It was directly related to the fact that the issue was a high-profile trade issue at the time and that data existed to demonstrate that it was a problem. I recall conversations that probably the same thing was happening in Colombia and Panama, but we didn’t have the data [to support inclusion in those PTAs]. If you were to negotiate this agreement now, it would come out very differently.

Other interviewees stressed the Trump administration’s continued support for cracking down on transnational crime, including wildlife trafficking. This is evidenced, for example, in President Trump’s 2017 Executive Order 13773 on “Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking,” which explicitly includes wildlife-related crime (para. 2(a)(1)). “We were all surprised by that,” s/he noted.

Conclusions

The literature and our interview data with key informants support a host of political factors and processes that shape how the United States frames and extends trade and environmental linkages in its trade agreements, which move beyond the minimum requirements as laid out in domestic trade law. Domestic pressures from NGOs and other interest groups have helped shape key environmental features of some US PTAs. Compliance costs, especially in the form of existing institutions, laws that ensure predictability, and low (if any) implementation hurdles are also important. Protectionist interests are also likely at play, especially when it comes to excluding issues, notably climate change, from all US PTAs. Trading-partner interests, especially biodiversity interests from Latin American trading partners, also help explain why the United States chooses specific environmental issues to link to its trade agreements. Finally, situational or contextual variables are also important. Things like having data to support the need for environmental action and having political support from the administration are also key in shaping US trade-environment linkages.

It should also be noted that not all decisions about which environmental issues to pursue are made in the text of the PTA itself. Many US PTAs are also negotiated in parallel with environmental cooperation agreements (ECAs). These ECAs outline specific areas where the United States and its trading partners can cooperate on environmental issues. Importantly, there is no expectation that these issues be trade-related. Countries develop work plans to cooperate on everything from increased transparency and public participation in environmental decision making (USTR 2014a) to support for environmental education activities (USTR 2014b). These negotiations are led by the State Department, rather than USTR, and decisions are made on a case-by-case basis in consultation with trading partners. These cooperative arrangements are often overlooked in the trade-environment literature. They shouldn’t be, however. ECAs are an important mechanism of environmental capacity building in developing countries. From 2005 to 2015, the United States spent more than $177 million on activities like helping developing countries implement legislation for MEAs, training national scientific authorities, conducting public awareness campaigns, and developing cooperative projects to, for example, promote sustainable fisheries, protect migratory species, improve air quality, promote sustainable tourism, and more (USTR 2015a). As one interviewee put it, “developing countries view environmental cooperation agreements as a benefit. They are a huge priority for them. They see the cooperation as the carrot and the environment chapters as the stick.” Further, US government officials interviewed for this study highlighted the flexible nature of cooperation agreements precisely because they are outside the official PTA. One noted that they are used to identify common priorities, such as fisheries or water management. Another noted, “you can be liberal on your cooperation without a precedent that anything and everything is trade-related.” This perspective widens the scope of possibilities for environmental issues that can be pursued through PTAs. In evaluating how and why environmental provisions are incorporated into PTAs, ECAs hold much potential for on-the-ground progress and are a place for further research, inquiry, and practice.