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CIAO DATE: 11/00

Domestic Sources of International Trade and Environment Conflicts

Elizabeth R. DeSombre * and J. Samuel Barkin **

International Studies Association

41st Annual Convention
Los Angeles, CA
March 14-18, 2000

The Third Ministerial Conference of the World Trade Organization (WTO) in Seattle in late 1999 was supposed to mark the launching of the Millennium Round of international trade talks. Instead, it ended in very public failure, as the delegates left the conference without reaching agreement on an agenda for the new round, and tens of thousands of demonstrators on the streets of Seattle claimed credit for helping to undermine the negotiations. 1 Among the most vocal of these demonstrators were environmental activists, who have long argued that the rules of the international trade regime in general, and of the WTO in particular, increasingly undermine the ability of governments to make and enforce laws to protect the environment. 2 Some of these demonstrators dressed as sea turtles to make their point.

The turtle attire was a clear reference to a recent decision by the WTO's dispute settlement mechanism that the United States was violating international trade law by refusing to import shrimp from states that did not adequately protect sea turtles in the process of shrimp fishing. 3 There is, of course, more to the environmentalists' participation in the protests than this one WTO ruling. Similarly, the activists' claim to have contributed significantly to the failure of the Seattle meeting may well be overstated. 4 But the sea-turtle ruling serves as a lens through which to examine the tensions between environmental activism and the international trade regime. Both the evolution of the law in question within the United States and the response to it by the international community can go a long way towards illuminating the perceived tension between the environment and trade.

At its starkest, the sea turtle story told by activists shows a World Trade Organization that cares only for the principles of free trade, whatever the environmental cost. 5 We argue for a rather different, and more nuanced, interpretation. The turtle case is, in fact, representative of the sort of regulations that get brought to the WTO's dispute settlement mechanism. These are regulations decided on and enforced unilaterally that set standards for imported products in ways that do not comply with WTO rules. The stated logic for these regulations is one of environmental protection. But most attempts by governments to create regulations for environmental protection are never challenged under WTO rules. Those that are challenged show two characteristics. The first is that the way they are implemented internationally is not clearly designed from the outset for the purpose of international environmental protection. They are the result of various pressures from both environmental and industry interests, of much legislative and bureaucratic compromising, and often of litigation rather than of legislation. The second, and related, characteristic is that they are needlessly discriminatory – they break international trade rules in ways that are not necessary, often not even helpful, to protecting the environment.

The WTO's dispute settlement mechanism, and before it the GATT's arbitration system, generally ruled against this sort of regulation. But it has always done so in language that made clear that it was ruling against the specific regulation as applied, not against interfering with trade for purposes of environmental protection per se. In language that has been getting gradually more deferential to the demands of environmental protection, the findings have suggested that interfering with trade for purposes of environmental protection is acceptable, as long as it conforms with three conditions. These are that it not be a disguised attempt at industrial protection, that it be applied fairly, and that it be preceded by a good-faith effort to deal with the issue multilaterally rather than unilaterally. In short, then, we argue that the WTO will accept regulations that interfere with its rules under fairly clear and uncontentious conditions, and that the best way to meet these conditions is to design regulations specifically for the purposes of international environmental protection, not incidental to efforts at other legislative goals.

The shrimp/turtle decision is only the second ruling of the WTO's dispute settlement mechanism in which a country defended the regulations in question on specifically environmental grounds. The first involved American regulations on gasoline quality. Prior to the creation of the WTO, the most highly publicized environmental case to come before arbitration panels convened under the GATT ruled on American regulations on the import of tuna caught in dolphin-unfriendly ways. 6 In all three cases the panels found against the regulation in question. The tuna/dolphin panels published their findings in 1991 and 1994, the gasoline panels in 1996, and the shrimp/turtle panels in 1998. 7 In all three cases the regulations defended by the United States as measures to protect the environment were ruled to be unreasonable restrictions on trade.

While one could conclude from this experience that international trade rules are not particularly sensitive to environmental concerns, a position adopted by many environmental organizations after both the tuna/dolphin and shrimp/turtle rulings, this response is misleading. To the contrary, interpretations of international trade rules by arbitration panels of the GATT and WTO have never been anti-environmental, and have became increasingly environment-friendly over the course of the 1990s. The difficulty is not with the international trading regime, it is with American foreign policy-making institutions, which have been working at cross-purposes with the trend towards increasing acceptance of environmental restrictions on trade.

A preliminary question is useful for exploring this topic, concerning the dog that did not bark: why are so few explicitly environmental rules brought to the WTO for arbitration? All countries have at least some laws on the books that interfere with economic practice in order to protect the environment. Developed countries have tens of thousands or more environmental regulations. Yet only two of these have been brought to the WTO for dispute resolution in its first five years. 8 At the same time, a number of multilateral environmental agreements explicitly allow for trade restrictions that contravene basic GATT rules, some of which have actually been used. For example, both the international regime for regulating ozone-depleting substances and the Convention on International Trade in Endangered Species (CITES) call for restrictions in trade with states that are not parties to the agreement. 9 Yet the legitimacy of these multilateral agreements to authorize trade sanctions has never been questioned by the WTO. 10 What sets the three cases in question here apart from all of the other national and international regulations is that, as we will see below, they discriminate among countries in ways that do not, and are not intended to, protect the environment. This suggests that the WTO/GATT''s three-for-three record in overturning environmental regulations results from selection bias in the cases brought before panels, rather than from any anti-environmental bias on the part of the panels themselves. Only those cases that are clearly illegitimate make it to the dispute settlement process in the first place.

The international trade regime provides clear guidelines for acceptable environmental restrictions on trade. The next step in making our argument is thus to look at the relevant rules of the GATT, and the way they have been interpreted in the three cases in question. The rules of the international trading system clearly restrict the policy autonomy of governments in trade issues; that, after all, is the point of the system in the first place. Specifically, the rules are designed to ensure the equal treatment of all parties to the agreement by all other parties, and to prevent the use of the mechanisms of trade policy for purposes of economic protectionism and national discrimination. There are exceptions to these rules, allowing, for example, greater levels of protectionism by developing countries, and retaliation in response to specific trade practices by other countries. There are also exceptions allowed for a variety of other purposes, including the protection of the environment and natural resources. 11 With regard to discriminatory rules, though, decisions are to be made ultimately by the WTO rather than by specific countries, to ensure that the discrimination is really for the intended purpose, rather than for hidden protectionism. The question in this context is to what extent discriminatory trade practices are to be allowed to enforce measures for environmental protection.

The first GATT panel finding on the tuna/dolphin case in 1991 explicitly allowed that the protection of dolphins was reasonable grounds for regulations that impeded the free flow of international trade. It was unclear, however, on the acceptability of the use of trade restrictions to affect environmental policy in other countries. 12 The second panel finding, in 1994, reiterated the acceptance of the protection of dolphins as legitimate grounds for trade-interfering regulations, even though the species of dolphin in question was not endangered. 13 It also more clearly accepted the principle that interfering with trade in an attempt to change environmental regulation in other countries can be grounds for exception to the rules. The most recent ruling, the appellate decision in the shrimp/turtle case in 1998, went considerably farther. It stressed that the international trade regime was bound by the principle of sustainable development. It encouraged the solicitation of scientific opinion in resolving trade disputes relating to environmental regulation. And it established the principle that the existence of a multilateral environmental agreement protecting an environmental good prima facie establishes that it is a legitimate cause for exceptions to GATT rules. 14 So the dispute resolution system of the international trade regime has accepted the idea that environmental protection was appropriate grounds for exceptions to GATT rules, and has been growing consistently more liberal in interpreting this principle.

But the panel findings have been consistent about providing guidelines for environmental regulations that interfere with trade, thereby setting the constraints within which these regulations must operate. These guidelines require of environmental regulations three conditions. The first is that they be clearly directed towards an environmental goal. This means that countries cannot use the environment as a cover for interfering with trade for reasons of traditional industrial protection. It also means that there must be a clear link between the requirements of the legislation and the specified environmental goal. Even if the intentions are good, there is no point interfering with international trade if it fails to achieve the desired environmental ends. The second condition is that the regulation not be needlessly discriminatory. It is one thing if discriminating among WTO members is necessary to achieve an environmental goal. If not, regulations must treat domestic and foreign producers equivalently, and must not discriminate among foreign producers in different countries. Finally, if the goal of regulation is the management of an international environmental issue, the country must have made a good faith effort to explore multilateral approaches to managing it before undertaking to regulate it unilaterally.

All three of the cases in question here were found to not comply with some or all of these conditions. The regulation in the gasoline case was found to favor U.S. over foreign refiners for reasons that had nothing to do with improving air quality. 15 In the tuna/dolphin case, U.S. regulations were found both to discriminate between U.S. and foreign tuna fishers in a way that was not necessary to protect dolphins, and to conflict with multilateral efforts to deal with the issue. 16 And in the shrimp/turtle case, the offending regulations were found to contravene all three conditions. Not only were the regulations needlessly discriminatory by allowing some foreign producers more time than others in which to meet the requirement, but they substituted for any good-faith effort on the part of the United States to negotiate a solution with the complaining countries, and it was not clear that they were succeeding in protecting the sea turtles anyway. 17

This discussion suggests a second question: why are the major environmental trade restrictions brought up for arbitration American regulations? The findings of the panels begin to suggest an answer. They set out fairly clear and unobjectionable guidelines for environmental restrictions on trade. The reason that it is American regulations that most frequently breach these guidelines is that the American political structure is more prone than most to processes that result awkward compromises that do not reflect any clear design; protection the environment coincides with protection of domestic industries, and the use of litigation or other interference in the process results in policy implementation unintended by those empowered to make policy.


Domestic Sources I: Environmental Protection and Trade Protectionism

The three sets of restrictions examined here had the political advantage of protecting both the environment and domestic industries. As with almost all U.S. economic sanctions for environmental protection, they were created by Congressional legislation. More importantly, they have their origins in domestic regulations by which U.S. actors are bound. The process thus begins with pressure from U.S. actors in the domestic arena. Industry actors that are bound by U.S. regulations work to ensure that they do not suffer competitively, relative to their foreign counterparts not bound by the same environmental regulations. Environmental organizations push for regulations to be applied to all actors in an issue area whose behavior can impact the resource in question, regardless of where they are geographically located. The intersection of the interests of these two diverse groups comes in imposing threats of economic harm against foreign actors that do not uphold the same environmental regulations U.S. actors are required to. 18 The first stage in this process is thus the decision to create economic restrictions, and indicates that there are both environmentalist and protectionist pressures behind the creation of the legislation ultimately examined by the dispute resolution processes.

In the case of dolphin protection, the United States' Marine Mammal Protection Act (MMPA) begin limiting dolphin mortality by U.S. tuna fishers in 1974. Tuna fishers were outraged at the new restrictions and argued that the industry "could not survive economically" under MMPA restrictions. 19 Many observed that dolphin deaths by foreign tuna fishing fleets, with which U.S. fishers competed economically, were increasing. As a story in Forbes explained, "The crowning irony of the tuna drama is the same one the U.S. faces in many other cases in which its environmental concerns are not shared by other countries: Foreign fishermen are not subject to U.S. law; they're operating as always." 20 At the same time, environmental organizations thought the new regulations were insufficient. They pushed to strengthen the domestic regulations and lower the number of dolphins permitted to be killed each year, and took the National Marine Fisheries Service (NMFS) to court for failing to protect dolphins to the extent required under the MMPA. They too were concerned with foreign fishers killing dolphins, a process that was likely only to get worse as foreign tuna fleets increased their tuna catches or as U.S. tuna fishers reflagged their vessels in other states to avoid domestic regulations. The Congressional response was to pass economic restrictions on imports of tuna from states that did not protect dolphins in the course of tuna fishing. 21

Air pollution regulations requiring the use of reformulated gasoline followed a similar pattern, in which an initial policy was created that allowed trade restrictions, supported both by environmental and industry interests. The 1990 Clean Air Act Amendments required that U.S. cities with the worst air pollution problems use reformulated gasoline for motor vehicles. The regulations were initially opposed by most of the fuel industry, not already able to manufacture such fuel. 22 The Environmental Protection Agency (EPA) was charged with implementing a program so as to accomplish "the greatest reduction in emissions of ozone-forming and toxic air pollutants achievable through the reformulation of conventional gasoline," while considering economic and other impacts of the programs. 23 The application of cleanliness standards to foreign as well as domestic producers was unproblematic; all fuel sold in the U.S. would have to meet the same type of cleanliness standards. 24 How those standards would be figured, however, was the subject of political jockeying, based both on environmental and industry concerns. Congress directed the EPA to establish a baseline for each gasoline refiner for 1990, to which later gasoline cleanliness could be compared. Under the EPA rules, domestic refiners that had been in business for at least six months of 1990 could either figure their compliance based on the actual composition of their gasoline in 1990, or could use the overall average from all American gasoline during that time. Foreign refiners were required to use a baseline the average American baseline from 1990. This method of calculation meant that foreign refiners that had particularly high pollutant levels in 1990 would be required to clean their fuel more than their American counterparts (or than other foreign refiners) in order for it to be allowed into the American market. Because it would exclude gasoline that was cleaner than it had been in 1990 but less clean by comparison to the American baseline, this policy could also lead to cleaner emissions overall from foreign fuel. Foreign refiners, particularly from Venezuela, complained that this rule was discriminatory, and that they should be able to reduce emissions from their own, rather than an average, baseline, as American refiners could. The EPA proposed rules in 1994 to allow foreign refiners to use their own baseline. 25 The domestic oil industry rallied against this proposed rule change, with some support from environmental interests. If the change did not take effect, most foreign-produced oil would not be able to meet this stricter standard, and imports of oil would likely be cut by 100,000 barrels a day. 26 Venezuelan oil at the time contained about twice the level of certain smog-producing substances as U.S.-produced oil. 27 The head of a U.S. consumer group argued, however, that the effort to require foreign refiners to use the average baseline "has more to do with an internal industry battle over gasoline market share than with environmental quality." 28 When the EPA was not otherwise convinced not to change the rules, Congress stepped in to explicitly forbid the agency to "sign, promulgate, implement or enforce" the proposal to create individual foreign refinery baseline requirements; it cut the EPA's funding in the appropriations process and indicated that none of the funding agency received could be used to create such a rule. 29 Foreign fuel was thereby kept out of the American market.

In the case of sea turtles, domestic regulations required that U.S. shrimp trawlers in waters off the Southeastern United States use "turtle excluder devices" (TEDs) on their nets, 30 to prevent turtles from becoming trapped. Shrimpers argued that these turtle-protection requirements cut into their profits, particularly in comparison with foreign shrimp fishers who did not have to use TEDs. The President of the Texas Shrimp Association testified before Congress that foreign shrimpers were "affecting the price the American producer receives" because these shrimpers did not have to buy and use turtle-excluder devices. 31 Congressional representatives from shrimping states argued that "it would be an outrage if this country imported shrimp from countries like Mexico who do not utilize these turtle-excluder devices while our shrimpers are being penalized." Others argued that "if we must use TEDs then everybody else ought to have to use TEDs as well . . . if they are not required to do that which we are required, then we should not be required to import their shrimp." 32 Environmentalists were concerned as well about the lack of international protection for sea turtles. The Earth Island Institute initiated a publicity campaign that claimed that "Mexico's shrimp fleet is killing an estimated 11,000 [endangered] sea turtles." 33 The chair of the wildlife program of the Environmental Defense Fund explained to Congress that "we are very sensitive to the concerns of the shrimpers with respect to foreign competition," and argued in favor of holding all shrimping states to the same standards required of U.S. shrimpers. 34 In response to the uproar about domestic turtle-protection regulations, Congress passed Section 609 of Public Law 101-162, which took effect November 1991. This regulation required that import restrictions to be applied to states that did not have regulations in place to protect sea turtles that could be considered equivalent to that required of U.S. shrimpers.

Already we can see from the initial creation of trade restrictions that there are two domestic motives at work in the U.S.: protection from foreign competition on the part of industry actors, and protection of an environmental resource on the part of environmental activists. What is important to note is that the sanctions against which the GATT/WTO dispute settlement process ruled were not these initial forms of sanctions, but those that had been influenced further by the domestic political process within the U.S.


Domestic Sources II: Expanding Implementation

Although Congress passes sanctioning legislation, agencies within the Executive Branch are generally charged with implementing the regulations. It is these agencies that have the responsibility for creating the specific policies that define the parameters of the regulations. They also decide which states may be potential targets of sanctions; disagreements over interpretation or over intent can lead to applications of the policy in ways different than some of its original supporters preferred. Frequently this disagreement over implementation results in legal action, as those who want the sanctions process to be implemented, or be interpreted more liberally than those who are in charge of applying determine it should, take their claims to court. Disagreements over implementation can also result in efforts by Congress to micromanage processes of implementation.

This process happened in several ways in the effort to protect dolphins through trade restrictions. The National Marine Fisheries Service was initially cautious in interpreting its mandate to restrict tuna imports from states that did not adequately protect dolphins, and received pressure both from Congress and from domestic environmental organizations to apply greater pressure to foreign states. Congress addressed its dissatisfaction with Executive Branch hesitance by strengthening the legislation through amendments, and decreasing the amount of discretion the agencies had in implementing the regulations. Amendments to the MMPA in 1984 required that states document that they had adopted dolphin conservation programs equivalent to those in the United States and with a comparable average dolphin mortality rate in order to be able to export tuna to the United States. When the lack of clarity over what would constitute equivalent programs prevented the U.S. from restricting tuna in some cases, Congress amended the Act in 1988 to set the "comparable" rate at 1.25 times that of U.S. dolphin mortality. Environmental organizations also expressed concern that the NMFS was not adequately implementing the sanctions policy. After unsuccessful attempts to convince the NMFS to require actual change in behavior from target states, they decided to pursue their agenda through the court system. The domestic environmental organization Earth Island Institute along with others sued the Secretary of Commerce, arguing that the legislation required an embargo on Mexican tuna. The U.S. District Court agreed and forced the renewal of the embargo. 35 These two aspects formed the basis of the complaint in the first tuna/dolphin panel.

Congress strengthened the sanctioning process in other ways. By the 1980s it had become clear that some foreign states were simply able to find alternate markets for their tuna and thereby avoid having to implement U.S.-style dolphin protection regulations. Under the 1988 MMPA Amendments all states that exported yellowfin tuna to the U.S. had to prove that they prohibited imports of tuna from states that did not adequately protect dolphins; in other words, from those state from which the U.S. had already embargoed tuna. 36 This would prevent what became known as "tuna laundering," or getting around the U.S. embargo by shipping tuna to an intermediary state that would then sell it (or some other amount of tuna) to the United States. In essence, this policy required other states to adopt the same sanctions process that the U.S. adopted. Earth Island Institute also led a group of environmental organizations that sued the Department of Commerce to implement and then expand the restrictions on tuna imports from "intermediary states" in 1992. 37 This order expanded the number of states by 20 that were required to provide documentation that they did not sell tuna caught by embargoed states, in order to be able to sell their tuna to the U.S The expanded legislation, as applied under court order, formed the basis of the complaint in the second panel.

The reformulate gasoline process has similar characteristics except that the jockeying over how the regulation would be applied internationally was a part of the initial decision to require foreign producers to meet domestic standards. As described above, Congress mandated that foreign producers be required to reduce pollutants in their gasoline compared to an average American baseline of fuel cleanliness in 1990, rather than through using their own averages as American producers were allowed to do. The initial rule was promulgated out of concern that there would not be enough information to create baselines for foreign producers, but when the EPA determined that doing so would be possible and be consistent with the provisions of the Clean Air Act as written, Congress intervened. Using its appropriations process it refused to allow the EPA to permit greater lenience for foreign oil producers in a move that would have, although not by intention, weakened the environmental provisions of the policy. Congress likely acted, however, to protect the domestic oil industries from the competition that would have resulted from the policy change. Although other aspects of the implementation of the Clean Air Act fuel regulations were subject to litigation, 38 the intervention of Congress to change the rules on behalf of the domestic oil industry served a similar function. It resulted in the application of stricter rules on foreign producers than were originally foreseen in the initial regulation.

Sea turtle protection through trade restrictions developed through a process similar to that of dolphin protection. The main struggles over implementation of the sanctions to protect sea turtles came over the issue of which states would be subject to the requirements in the regulations. The NMFS decided that the initial legislation applied only to a group of 14 states that catch shrimp in the Caribbean and Western Atlantic. These were the states that fished in the major migratory region of the turtles most endangered by U.S. shrimp fishing. The NMFS also allowed for a three-year period during which sea turtle protection could be phased in by target countries; they had to begin by supplying information and indicating a willingness to used TEDs, then indicate that they had them on a proportion of their nets, and eventually require them to be in constant use on all shrimp fishing vessels. This process did not result in any official complaints to the WTO.

A group of environmental non-governmental organizations, led again by the Earth Island Institute, argued that sea turtles were threatened from shrimp fishing practices anywhere in the world, and that the restrictions on shrimp exports to the U.S. should therefore be applied to all states. These groups sued the Department of Commerce in the U.S. Court of International Trade, which ruled in December 1995 that the regulations must be applied to all states that catch shrimp. 39 That expanded the number of states that must either prove that they protect sea turtles or be subject to sanctions on their shrimp to 70. 40 Importantly, while the initial 14 states were given a three-year period during which to phase in TED use, the Court required that as of 1 May 1996 all shrimp fishing states be required to have TEDs on all their nets and a comparable incidental catch rate for turtles to that of the U.S. This expansion without the same time period to phase in the requirements, formed the basis for the shrimp/turtle panel ruling, for two reasons. The first is that it treated the states affected by the ruling differently than the states to which the regulations first applied. The second is that it precluded any attempt by the U.S. government to negotiate sea turtle protection multilaterally.



The straightforward conclusion to draw from these cases is that environmental regulation can indeed be made GATT-compatible without diluting its ability to achieve its environmental goal. All that is required is a rational policy-making process in which the constraints of the rules of the international trade regime are taken into account. This is certainly true of the gasoline case. Had the EPA been allowed to do its job of implementing Clean Air Act standards without further interference from Congress that had little if anything to do with the goals of the Act, it is likely that exporting countries would not have brought the case to the dispute settlement process in the first place. The same could be said for both the tuna/dolphin and shrimp/turtle cases. It was the attempt (through recourse to the courts rather than to political process) to stretch legislation beyond the purposes for which it was designed that led to GATT-illegal regulations. Had regulations been designed specifically for the purpose of promoting foreign legislation to protect dolphins and sea turtles, rather than extrapolated haphazardly from legislation designed for domestic regulation, it is very likely that the dolphins and turtles could have been protected while avoiding the need for dispute settlement panels. Similarly, had the United States engaged in good-faith efforts to negotiate regulation multilaterally prior to unilateral action, rather than as an afterthought, trade restrictions would either have been obviated or legitimated.

This conclusion assumes that the goal of the actors involved in pushing for unilateral environmental action is the creation of regulations that are both viable under international law and effective at solving the proximate environmental problem. This was certainly true for the gasoline case; the EPA was trying in good faith to implement the Clean Air Act. It may be, but is not necessarily, true of the environmental organizations behind the lawsuits against the U.S. government that resulted in the GATT-illegal regulations in the tuna/dolphin and shrimp/turtle cases. Both cases served goals other than the proximate management of the environmental good in question. They created public awareness of the environmental problem, they created incentives for foreign governments to take multilateral negotiations more seriously, and they put the environment higher up on the WTO's agenda. All of these are, from the perspective of better environmental management, useful goals. In the tuna/dolphin case, for example, publicity led to a consumer boycott of non-dolphin-safe tuna that reinforced governmental attempts to change the behavior of foreign tuna fishers. The pressure put on foreign tuna fisheries both by the court-mandated application of the MMPA and by the consumer boycott helped to convince other governments to negotiate seriously towards a multilateral effort to promote dolphin-safe tuna fishing. And the two arbitration panels forced the environment farther up the agendas of the GATT and then the WTO.

These benefits are much less clear in the shrimp/turtle case. It has indeed served to raise popular awareness of the issue, but this awareness does not appear channeled in a way that is directly benefiting sea turtles. The results of the ruling of the U.S. Court of International Trade served to hamper rather than promote multilateral efforts at sea turtle protection beyond the Caribbean Basin. The two DSM panel findings did indeed create a more environmentally friendly precedent for this sort of arbitration than had existed previously. However, the public fallout from the findings may create a backlash within the WTO, hindering efforts to clarify the relationship between environmental regulation and the international trade regime. Further use of the sea turtle as metaphor for the incompatibility of trade and the environment will only obscure the former effect and magnify the latter.

In short, then, the strategy of using litigation to force the externalization of environmental regulation can be useful, but should be approached very carefully. It can get an issue on the political agenda, and can help to force progress in the discourse within the WTO on trade and the environment. But it can also backfire, and set back both the proximate environmental goal and the broader political goal. In general, however, specific environmental goals are probably best achieved by ensuring that regulations are within the broad guidelines of WTO rules. This is true both because it will prevent a need for dispute settlement, and perhaps more importantly because these rules make sense from an environmental as well as a trade perspective. This is best ensured by creating legislation expressly for the purpose of promoting specific international environmental regulations, and by allowing those regulations to be applied in a rational manner, without extraneous interference either through the political or the legislative system.



**: Elizabeth R. DeSombre
Department of Government
Colby College
5300 Mayflower Hill
Waterville, ME 04901 Back

***: J. Samuel Barkin
Department of Political Science
University of Florida
P.O. Box 117352
Gainesville, FL 32611-7325 Back

Note 1: "The New Trade War," in The Economist, December 4, 1999, pp. 25-26. Back

Note 2: See for example Konrad von Moltke, "The World Trade Organization: Implications for Sustainable Development," in Journal of Environment and Development, vol. 3 (1994), pp. 43-58. Back

Note 3: World Trade Organization, "United States - Standards for Reformulated and Conventional Gasoline: Appellate Body Report and Panel Report. Action by the Dispute Settlement Body," WT/DS2/AB/R. 29 April, 1996. Back

Note 4: Many analysts predicted before the conference began, and before the magnitude of the protests became apparent, that the participants would fail to set an agenda for a new round of trade talks. See, for example, "The Battle in Seattle," in The Economist, November 27, 1999, pp. 21-23. Back

Note 5: See, for example, Advertisement, "Mr. Clinton and Mr. Gore: This Sea Turtle Has Her Eye on You. And So Do We," in New York Times, Op. Ed. page, May 5, 1998. Back

Note 6: For an example of an environmentalist response to this ruling, see Steve Charnovitz, "Environment vs. Trade Rules: Defogging the debate," in Environmental Law, Northwestern School of Law of Lewis and Clark College, vol. 23 (1993), pp. 475-518. Back

Note 7: Panels rather than panel in each case because the results of all three original panels were appealed. Back

Note 8: Based on a review of the WTO's "Dispute Settlement Overview," accessed at, January 19, 2000. Back

Note 9: Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973), Article X; Montreal Protocol on Substances that Deplete the Ozone Layer (1987), Article 4. Back

Note 10: The relationship of Multilateral Environmental Agreements (MEAs) in general has been discussed in the WTO's Committee on Trade and Environment, but without questioning the legitimacy of existing MEAs. World Trade Organization, Report of the WTO Committee on Trade and Environment (Geneva: World Trade Organization, 1996), paragraph 52. Back

Note 11: General Agreement on Tariffs and Trade, Text of the General Agreement on Tariffs and Trade (Geneva: GATT, 1986), Article XX, esp. (b) and (g). Back

Note 12: GATT 1991, pp. 1620-1. Back

Note 13: GATT 1994, pp. 891-3. Back

Note 14: World Trade Organization, "United States: Import Prohibition of Certain Shrimp and Shrimp Products," received from the Office of the United States Trade Representative, April 20, 1998, paragraphs 7.11-7.22. Back

Note 15: World Trade Organization, "United States - Standards for Reformulated and Conventional Gasoline: Appellate Body Report and Panel Report. Action by the Dispute Settlement Body," WT/DS2/AB/R. 29 April, 1996. Back

Note 16: General Agreement on Tariffs and Trade, "Dispute Settlement Report on United States Restrictions on Imports of Tuna [Submitted to the Parties, August 16, 1991]," in International Legal Materials vol. 30 (1991), pp. 1594-1623; "Dispute Settlement Panel Report on United States Restrictions on Imports of Tuna [June 1994]," in International Legal Materials vol. 33 (1994), pp. 839-899. Back

Note 17: World Trade Organization, "United States - Import Prohibition of Certain Shrimp and Shrimp Products: Report of the Appellate Body," WT/DS58/AB/R, 12 October 1998, section VII. Back

Note 18: See Elizabeth R. DeSombre, "Baptists and Bootleggers for the Environment: The Origins of United States Unilateral Sanctions," Journal of Environment and Development 4(1) (Winter 1995), pp. 53-75. Back

Note 19: "Porpoise-kill Limit Set By House," Facts on File World News Digest 11 June 1977, p. 442D3. Back

Note 20: Bruce Coleman, "Troubled Waters," Forbes 1 April 1977, p. 56. Back

Note 21: 39 FR 32124. Back

Note 22: Gary C. Bryner, Blue Skies, Green Politics: The Clean Air Act of 1990 and Its Implementation 2nd ed., (Washington, D.C.: CQ Press, 1995), pp. 160-161. Back

Note 23: Clean Air Act, as amended (1990), Section 211(k)(3); Bryner, pp. 199-200. Back

Note 24: Environmental Protection Agency, " Regulation of Fuels and Fuel Additives: Standards for Reformulated and Conventional Gasoline," 59 Federal Register 7716 ff. Back

Note 25: Environmental Protection Agency, "Regulation of Fuels and Fuel Additives: Individual Foreign Refinery Baseline Requirements for Reformulated Gasoline, 59 Federal Register 22800. Back

Note 26: Arthur Gottschalk, "EPA Funding Vote Expected to Squeeze Fuel Supplies," Journal of Commerce 14 September 1994, p. 1A (Lexis/Nexis). Back

Note 27: Bill Mintz, "House Votes Down Rules allowing Venezuela Fuel," Houston Chronicle 13 September 1994, p. 1 (Lexis/Nexis). Back

Note 28: Arthur Gottschalk, "US Oil Refiners Fight to Restrict Gasoline Imports," Journal of Commerce 23 August 1994, p. 1A (Lexis/Nexis). Back

Note 29: Department of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, Public Law No, 103-327, 108 Stat 2298ff at 2322 (1994). Back

Note 30: P.L. 100-478, title II, §2303, Oct. 7, 1988, 102 Stat. 2322. 16 U.S.C. §4242; 52 FR 24244-24262; 57 FR 18446 ff. Back

Note 31: Statement of Harrus Lasseigne, Jr., U.S. Congress, House, Subcommittee on Fisheries and Wildlife Conservation and the Environment of the Committee on Merchant Marine and Fisheries, "Sea Turtle Conservation and the Shrimp Industry," 101st Congress, 2nd Session, Serial No. 101-83, 1 May 1990. p. 13. Back

Note 32: Congressional Record, Senate, 101st Congress, 1st Sess., 29 September 1989, p. s12266, Statements of Mr. Johnson and Mr. Breux. Back

Note 33: Earth Island Institute, "Can We Stop Mexico's Shocking Slaughter of Endangered Sea Turtles?" Mailing, no date, also put as ads in newspapers. Back

Note 34: Statement of Michael Bean, U.S. Congress, , "Sea Turtle Conservation and the Shrimp Industry," p. 18. Back

Note 35: Earth Island Institute et. al. v Mosbacher. United States District Court for the Northern District of California, No. c-88-1380-TEH, 746 F. Supp. 964, 28 August 1990; 55 FR 42236. Back

Note 36: P.L. 100-711. Back

Note 37: Earth Island Institute et. al. v Mosbacher et. al. United States District Court for the Northern District of California, No. C 88 1380 TEH, 785 F. Supp. 826, 3 February 1992. Back

Note 38: The oil industry sued the EPA to prevent the agency from giving preference to ethanol over other oil additives in its renewable fuels program. See Frank Swoboda and Daniel Southerland, "Court Bars EPA from Mandating Ethanol Use," Washington Post 14 September 1994, p. A8 (Lexis/Nexis). Back

Note 39: The Court of International Trade's ruling was overturned on appeal, but by this time the dispute had already made it's way through the WTO dispute settlement process. Earth Island Institute et al, v. Madeline K. Albright, et al, United States Court of Appeal for the Federal Circuit, Court No. 97-1085, 97-1086. Back

Note 40: Earth Island Institute et. al. vs. Warren Christopher et. al, United States Court of International Trade, Court No. 94-06-00321, 913 F. Supp. 599; Humberto Marquez, "Shrimp, Next on the List for U.S. Decertification," Inter Press Service 25 April 1996 (Lexis/Nexis). Back