Never For-GATT: What Recent TBT Decisions Reveal About the Appellate Body’s Analysis of Environmental Regulation Under the WTO Agreements

Authors

Ravi Soopramanien

Abstract

Few environmentalists have positive things to say on the impact of the World Trade Organization (WTO) on the environment. WTO legal obligations are frequently cited as the most significant impediment to a range of environmental initiatives, including notably meaningful international coordination to combat climate change, particularly through carbon tax initiatives, and imposition of electronic waste disposal export bans. In this vein, adverse findings of WTO dispute panels on environmental conservation measures tend to attract the ire of international civil society. The tensions between liberal trade and environmental protection can be traced back to the days of the General Agreement on Tariffs and Trade (GATT) of 1947, which pre-dated the WTO. Under the GATT 1947, trade and environment disputes tended to be resolved through diplomatic channels. The WTO Agreements were intended to provide a more predictable and legalistic means by which to resolve such disputes, in exchange for deeper commitments on domestic regulation, a domain historically deemed off limits to international disciplines. Two of these agreements in particular, the Agreement on Technical Barriers to Trade (TBT Agreement) and the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement), introduced binding disciplines with serious implications for domestic environmental decision-making, a subset of domestic regulation. The expectation was that the depolitization of WTO disputes would afford more certainty to regulators. This has decidedly not turned out to be the case. This paper explores why this is so, focusing notably on the role of the WTO and Appellate Body Secretariats in shaping domestic regulation jurisprudence under the GATT, SPS and TBT Agreements. It argues that the Appellate Body has misapplied important features of the SPS and TBT Agreements to sometimes wrongly condemn environmental regulations, owing to a cognitive bias against trade distortions. It argues for an alternative approach that stays more faithful to the text of the WTO Agreements.