Posted on December 12, 2018 by JB Ruhl
Co-Author: Mary Ellen Ternes
For those Fellows who were not able to attend the Annual Meeting in Grand Teton National Park, this is to fill you in on the winner of the Herrmann Award this year, Emily Hush. Emily is a recent graduate of Columbia University Law School and a student of our own Michael Gerrard (although we did not learn of the Gerard connection until after completion of the award selection process). The title of Emily’s winning article is Where No Man Has Gone Before: The Future of Sustainable Development in the Comprehensive Economic and Trade Agreement and New Generation Free Trade Agreements, Columbia Journal of Environmental Law, Vol. 43:1 (link).
In the time Emily spent with us, she met many College Fellows and ably presented her winning article, which is an analysis of the recent trade agreement between Canada and the EU, the Comprehensive Economic and Trade Agreement (or CETA), as it pertains to sustainable development. As noted in the summary of the paper, in free trade agreements, a country’s power to protect the environment depends on the scope of its right to regulate, as interpreted by investment dispute resolution bodies. This right determines to what extent the State may regulate in the public interest without incurring the obligation of compensating investors for an indirect expropriation of their property. Some scholars have argued that arbitration panels and trade agreements define the sovereign right to regulate too narrowly, unduly favoring investor interests. In response, the EU has spearheaded the development of the so-called New Generation Free Trade Agreements. New Generation Agreements combine traditional free trade agreements with international investment agreements and add sustainable development as a guiding principle to create a new, all-inclusive type of bilateral agreement. These Agreements seek to recalibrate the power balance between investors and States by strengthening the right to regulate. CETA represents the culmination of the EU’s aspirations for New Generation Agreements thus far. Emily’s paper asks whether the right to regulate as granted by this progressive agreement will enable Canada and the EU to successfully defend regulation undertaken to further sustainable development against investor claims of indirect expropriation. She concludes that CETA provides a useful framework for expanding the reach of the principle of sustainable development and effectively shields the Parties’ right to regulate, without contradicting existing case law.
Emily earned her law degree from Columbia Law School in May 2018, where she was the winner of both the Harlan Fiske Stone Moot Court and the European Law Moot Court in Luxembourg. Prior to law school, Emily earned a Bachelor’s degree in French horn performance from McGill University. Emily is now an associate of Debevoise & Plimpton. She will be clerking for Judge Wendy Beetlestone in the Eastern District of Pennsylvania in 2021-2022, and for Judge Robert E. Bacharach in the 10th Circuit from 2022-2023.
The Stephen E. Herrmann Environmental Writing Award is a prize presented to the author of a student article, note, case comment or essay published in a law journal during the current academic year, or scheduled for publication in the next academic year, that best presents a current topic in the field of environmental law. Submissions are judged on the basis of originality, quality of research, presentation and writing, and significance of contribution to the field of environmental law. The Herrmann Award includes a stipend of $3,500 to the author of the winning article, note, case comment or essay, and $500 to the submitting law journal. The winner of the Herrmann Award is invited to present his or her submission to the Fellows at the College at their Annual Meeting. Emily is the third winner in a row to attend.