Free Trade What are the WTO and GATT? What does this treaty have to do with environmental law? Who brings complaints und

1. Free Trade What are the WTO and GATT? What does this treaty have to do with environmental law? Who brings complaints under WTO/GATT? Stare decisis and WTO Daly:Free trade promotes a race to the bottom (environmentally) by shifting production to locations that impose the least rigorous regulations (thereby keeping production costs low). WTO decisions should protect national rules that internalize environmental costs. Do you agree?

2. Tuna/Dolphin Case • MMPA ban importation of fish taken using methods whose “incidental kill rate” exceeds 1.25 times U.S. rate for same period • Pelly Amendment: adds caveat “to the extent that such prohibition is sanctioned by the GATT.” • Is this a “trade barrier”? Does it discriminate against foreign producers? • GATT Art. XX exceptions: • (b) laws “necessary to protect human, animal or plant life or health” • (g) laws “relating to the conservation of exhaustible natural resources” taken in conjunction with domestic restrictions • That are not otherwise “arbitrary” or “discriminatory” or a “disguised restriction” on trade • Isn’t the Pelly Amendment clearly within these exceptions?

3. Tuna/Dolphin Case • “necessary” to protect animals  (b) • Extraterritorial reach of rules • “in conjunction with” domestic restrictions  (g) • Vagueness of rule • Tuna/Dolphin II  Treaty

4. Auto Taxes Case • EU challenge to US fuel economy (CAFE) standards and accounting rules that tend to hurt German mfrs • How is this different from the Tuna case  German mfrs will have to change how they produce their product, won’t they? • CAFE standards make a distinction based upon the characteristics of the product entering the buying nation • Accounting rules discriminate

5. Venezuela v. U.S. – gasoline refining stds • What disparate treatment is alleged? Is this discrimination in your view? • Is this exempted by Article XX(b) or (g)? Why or why not? Gasoline rule – individual refinery baselines vs. “statutory” baseline Did the rule treat foreign gasoline differently? Panel: No. Appellate Body: Yes, but is covered by the “chapeau”

6. Shrimp/Turtle Case • Facts: • US law prohibited import of shrimp from countries who have not been certified as using TEDs • Protecting “highly migratory” species • Issues: • “necessary” to protect animals  (b) • extraterritorial reach of rules  “chapeau” • “in conjunction with” domestic restrictions  (g) • What if national limits impose extraterritorial limits on a production process whose impacts are felt in the “global commons”?

8. International Trade and the Environment • NAFTA Preamble: • pledges free trade “consistent with environmental protection ... [and] sustainable development” • pledges to “strengthen the development and enforcement of environmental laws and regulations.”

9. International Trade and the Environment What does NAFTA have to say about domestic environmental rules? Does it take the same approach as GATT/WTO? • The “environmental side agreement” (a/k/a the North American Agreement on Environmental Cooperation, or “NAAEC”): • created the Commission on Environmental Cooperation, or “CEC” • Does CEC resolve disputes like the WTO?

10. International Trade and the Environment NAAEC Articles 14 &15 • complaint that a Party to the NAAEC is failing to enforce an environmental law effectively may be submitted by any person to the CEC • a response will be requested from the Party named in the submission • CEC proceed with the development of a factual record on the matter, which it may publish • Factual record may include “information regarding enforcement practices that may prove useful to governments, and to the submitters and other members of the interested public.” • “bringing the facts to light”

11. International Trade and the Environment Who initiated the BC Hydro case and why? Sierra Club and other NGOs sued to get the CEC to order Canada to enforce its Fisheries Act against BC Hydro. Section 35(1) of the Fisheries Actprovides that: “No person shall carry on any work or undertaking that results in the harmful alteration, disruption or destruction of fish habitat.” BC Hydro’s operations allegedly damage habitat.

12. BC Hydro Case: How does BC Hydro damage fish habitat? • Operation of dams (not run-of-river) damages and disrupts habitats through flow fluctuations and entrainment. • Existence of dams damages anadromous fish populations. • Is habitat destruction a violation of NAFTA or the side agreement?

13. BC Hydro Case: • Canada: • “a range of compliance activities, from voluntary compliance and compliance agreements to legal and judicial sanctions, are the most productive in terms of providing for the long-term protection of the environment with respect to fish and fish habitat.” • In other words, “we should have discretion to decide what combination of carrot and sticks will most effectively enforce the Act.” Do you agree?

14. BC Hydro Case: • Canada: • Furthermore, the Act contemplates that the government will sometimes permit certain kinds of habitat destruction. • Therefore, permitting this harm is not a failure of enforcement. • Do you agree?

15. BC Hydro Case: Is this the proper forum for this sort of claim in your view? Should the CEC be determining what the Fisheries Act means or how it ought to be enforced? Why is the CEC considering this claim? Free Trade Is free trade good or bad for the environment? Are regional agreements like NAFTA better or worse than GATT/WTO for the environment? Does it matter “whose environment” we are talking about?

17. Siting • NIMBY • LULU • federal preemption – forcing locals • economic view: Pareto optimality vs. Kaldor-Hicks efficiency. • compensation options?

18. Cities Proposed LNG terminal Oil field Ocean Proposed LNG terminal