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125 56 Fed. Reg. 19,518,19,519(1991) (final rule establishing tolerance for procymidoneon wine grapes). At an earlier stage
of the proceeding, EPA warned that it would

have to take into consideration whether international reaction to import detentions potentially could result in other
trade disruptions which have wider impacts on the adequacy and affordability of the food supply. EPA will also have
to consider whether the United States foreign policy efforts to obtain compliance by other countries with (United States
statutory) requirements applicable to foods imported to the United States will be undermined if EPA fails to take
extraordinary action in this instance.
55 Fed. Reg. at 39,177 (1990) (advance notice of proposed rulemaking). Moreover, notwithstanding an acknowledgment
that the standards of the Codex Alimentarius are less protective of public health than EPA's, the Agency proposed to rely
"in appropriate ciscumstances” on maximum residue limitations established in the Codex Alimentarius on an interim
basis until a final tolerance was established. Id. at 39,178. See supra note 102 (discussing Codex).
126 TSCA S 6, 25 U.S.C. & 2605.
127 54 Fed. Reg. 29,460 (1989). According to that notice,

It is well-recognized that asbestos is a human carcinogen and is one of the most hazardous substances to which
humans are exposed in both occupational and non-occupational settings. As OSHA (the Occupational Safety and Health
Administration) stated ..., "OSHA is aware of no instance in which exposure to a toxic substance has more clearly
demonstrated detrimental health effects on humans than has asbestos exposure." There is wide agreement that all types
of asbestos fibers are associated with pulmonary fibrosis (asbestosis), lung cancer, and mesothelioma. Gastrointestinal
cancer and other cancers at extrathoracic sites, as well as other lung disorders and diseases, have also been associated with
asbestos exposure, although the consistency and magnitude of the excess risks of these diseases are not as great as for lung
cancer and mesothelioma. All of these asbestos-related diseases are life-threatening or disabling and cause substantial
pain and suffering.
Id. at 29,468-69.
128 Corrosion Proof Fittings v. Envtl. Protection Agency, 947 F.2d 1201 (5th Cir. 1991). See TSCA $ 19, 15 U.S.C. & 2618
(judicial review).
129 947 F.2d at 1208 n.3.
130 Brief for Amicus Curiae Government of Canada at 16-19, Corrosion Proof Fittings v. Envtl. Protection Agency, 947
F.2d 1201 (5th Cir. 1991). The Province of Quebec also submitted an amicus brief. See 947 F.2d at 1208. Canada did not
initiate a dispute settlement proceeding under GATT or the Free Trade Agreement. See supra notes 97 & 103 (describing
GATT dispute settlement mechanism).
131 GATT, supra note 98, art. XI(1).
132 Free Trade Agreement, United States-Canada, Jan. 2, 1988, art. 603, reprinted in 27 I.L.M. 281 (1988).
133 Agreement on Technical Barriers to Trade, Apr. 12, 1979, art. 2(1), 31 U.S.T. 405, T.I.A.S. No. 9616, reprinted in BISD,
supra note 21, at 8 (26th Supp. 1980).
134 947 F.2d at 1209-1211.
135 ld. at 1208.
136 ld. at 1211 n. 8.
137
See
supra

note 96.
138 See supra note 118, SS 136-136y.
139 See supra note 118, & 136d(b).

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141

140 FFDCA SS 408 & 409, 21 U.S.C. SS 346а & 348 (establishment of pesticide tolerances for agricultural raw commodities and processed foods). See

supra notes 97 &103. 142 FFDCA SS 408(i) & 40968), 21 U.S.C. SS 346a(i) & 348(g) (petitions for review). The statute also provides for agencylevel proceedings in the form of formal objections to a final tolerance and a subsequent administrative hearing. FFDCA SS 408(d)(5) & 409(1), 21 U.S.C. SS 346a(d)(5) & 348(A); National Research Council, supra note 119, at 27-29. Cf. APA $ 10, 5 U.S.C. SS 701-706 (judicial review). 143 See supra note 55. 144 See supra note 42 & 56 and accompanying text. 145 Cf. Restatement, supra note 10,5115 reporters' note 5(sole executive agreement inconsistent with stateor federal law). See also Trade Agreements Act of 1979 83(a), 19 U.S.C. § 2504(a) (specifying that "[n]o provision of any trade agreement approved by Congress ..., nor the application of any such provision to any person or circumstance, which is in conflict with any statute of the United States shall be given effect underthe laws of the United States”); United States-Canada FreeTrade Agreement Implementation Act of 1988 & 102(a), 19 U.S.C. S 2112 note (same); United States-Israel Free Trade Area Implementation Act of 1985, 85, 19 U.S.C. & 2112 note (same). 146 See supra note 51.

147 ld.

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148 See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 663, 669 (1981) (describing "only one more episode in the neverending tension between the President exercising the executive authority in a world that presents each day some new challenge with which he must deal and the Constitution, under which we all live and which no one disputes embodies some sort of system of checks and balances" and noting that "when the President acts in the absence of congressional authorization he may enter 'a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain'") (quoting Jackson, J. concurring in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.579,637 (1952)). 149 See, e.g., Senate Foreign Relations Committee: Memorandum of Law on Choice of Instruments for Sinai Accords, reprinted in 1 Glennon & Franck, supra note 34, at 273 (arguing that portions of executive agreements concluded by President with Israel should be treated as article II, section 2 treaties). See generally Arthur W. Rovine, Separation of Powers and International Executive Agreements, 52 Ind. L.J. 397 (1977); Treaties and Executive Agreements, 71 Proc. Am. Soc'y Int'l L. 235 (1978). 150 Cf. Omnibus Trade and Competitiveness Act of 198891102(c),19 U.S.C. S 2902 (d)(consultations with Congress before conclusion of trade agreements); Trade Act of 1974 & 102(c), 19 U.S.C. § 2112(c) (same). 151 By enacting subsequent legislation that supersedes as a matter of domestic law an earlier executive agreement on subject matter within its enumerated powers, Congress can go considerably farther than this proposal. See Restatement, supra note 10,8115(1)(a). Of course, this situation is distinct from a “sole” executive agreement concluded entirely within the President's plenary powers connected with foreign relations, such as the recognition of foreign governments. See supra note 50. Despite some superficial similarities, this suggestion is entirely distinct from the so-called "Bricker Amendment” dispute in the early 1950s. See generally Duane Tannabaum, The Bricker Amendment Controversy: A Test of Eisenhower's Political Leadership(1988). Senator Bricker proposed a constitutional amendment, and the various forms of the Bricker Amendment generally applied to all international agreements, including article II, section 2 treaties. This suggestion, by contrast, calls for a statute that would regulate the domestic legal effect of only those executive agreements falling within the realm of the Congress's constitutionally enumerated powers. Those executive agreements purely

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within the President's exclusive plenary powers concerning foreign relations, and in particular "sole" executive agreements on matters like the recognition of foreign governments, would not be covered. See, e.g., United States v. Pink, 315 U.S. 203 (1942) (domestic legal effect of executive agreement recognizing government of Soviet Union); United States v. Belmont, 301 U.S. 324 (1937) (same). 152 See Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221 (1986) (declining to apply political question doctrine to questions of statutory interpretation involving foreign relations concerns). 153 FOIA, by prescribing standards for Executive Branch action arguably within the President's own plenary powers, goes considerably farther than this proposal. The statute authorizes withholding documents that are specifically authorized to be classified pursuant to executive order and are "in fact properly classified pursuant to such Executive order.” 5 U.S.C. S 552b(e)(1)(B). Executive orders establishing the classification system, the asserted legal authority for which are the President's own constitutional powers, predate FOIA. The legislation is nevertheless a constitutional exercise of legislative power, and the courts will order the release of information improperly classified. See, e.g., Donovan v. Fed. Bureau of Investigation, 806 F.2d 55 (2d Cir. 1986); Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978). 154 See supra notes 115 & 116 and accompanying text. 155 See supra notes 106 & 107. 156 See supra note 42 and accompanying text. 157 See, e.g., Sands, supra note 18 (arguing for creation and regularization of mechanisms for public participation international law-making and enforcement); David A. Wirth, Legitimacy, Accountability, and Partnership: A Model for Advocacy on Third World Environmental Issues, 100 Yale L.J. 2645 (1991) (same). 158 See supra note 55. The Administrative Conference of the United States has recommended eliminating the foreign affairs execption and replacing it with narrower exemptions. 1 C.F.R. § 305.73-5. See also Arthur Earl Bonfield, Military and Foreign Affairs Function Rule-Making Under the APA, 71 Mich. L. Rev. 221 (1972) (advocating repeal of exception); Franck, Public Participation in the Foreign Policy Process, in The Constitution and the Conduct of Foreign Policy 66,75 (F. Wilcox & R. Frank ed. 1976) (“Total exemption of foreign affairs functions from administrative process is not justified. Many aspects of these functions are analogous to domestic issues now subject to process; the fact that they take on an international dimension does not necessarily or even probably mean that all forms of administrative process should be excluded."); Araiza, supra note 54 (advocating statutorily mandated notice-and-comment rulemaking in international trade context). 159 But cf. Jessica Tuchman Mathews, Redefining Security, Foreign Aff., Spring 1989, at 162 (identifying environment as security concern). 160 APA S 4,5 U.S.C. § 553. 161 APA S 10,5 U.S.C. SS 701-706.

About the Author

David A. Wirth is Assistant Professor of Law at Washington and Lee University, Lexington, Virginia, where he teaches environmental, administrative, public international and foreign relations law. Previously he was Senior Attorney and Co-Director of the International Program at the Washington, D.C., office of the Natural Resources Defense Council. Mr. Wirth has also been Attorney -Adviser for Oceans and International Environmental and Scientific Affairs in the Office of the Legal Adviser of the U.S. Department of State, where he had principal responsibility for all international environmental issues, including exports of hazardous substances and technologies, acid rain, and stratospheric ozone depletion.

* U.S. G.P.0.:1993-347-830: 80172

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