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Home    |   Currents   |   Lessons Already Learned: An Analysis of Waxman-Markey under Current WTO Case Law

Lessons Already Learned: An Analysis of Waxman-Markey under Current WTO Case Law

May 19, 2010

Climate ChangeEnergyInternationalPolicy & Politics

Gregory E. Wannier*


In 2009, the House of Representatives, responding to rising concerns
over anthropogenic contributions to climate change, passed the first major
piece of climate legislation in U.S. history.[1]
This bill, the “
American Clean Energy and Security Act of 2009” (ACESA), would
cap U.S. carbon emissions and establish a national carbon market where
regulated parties
trade carbon dioxide emissions rights.[2] However, because many in the
developed world fear that carbon markets will hurt domestic industries and lead
to job losses and “
leakage” of carbon emissions to less-regulated markets in
the developing world,[3]
ACESA imposes severe quality controls on the importation of energy-intensive
manufactured goods that face the highest prospective carbon reduction costs.[4] This provision
could dramatically affect trade, and thus could be challenged under the
Trade Organization
(WTO), an intriguing possibility given the WTO’s
controversial status in the trade community.[5]

International shipping containers at the Port of Oakland, Oakland, California.  Photo courtesy of Nell Green Nylen.

This Article takes ACESA through a theoretical WTO review, ultimately
finding that ACESA would probably pass WTO review with some modifications. WTO
consideration of ACESA could serve as an indication of how future unilateral
action can be effectively and legally taken. However, the lesson from this
analysis goes further; WTO retains the ability to overturn environmental
protections, and its decisions are respected (if not always appreciated or adhered
to) by the international community. As countries negotiate a balance between
economic fears in the developed world and economic growth in the developing
world, they may find that norms established and enforced by the WTO provide
useful insights.

I. ACESA Relevant International Provisions

The ACESA measure most likely to face WTO review is the International
Reserve Allowance Program
IRAP would require countries exporting goods to the U.S. to purchase
for these goods from a specially created reserve of international allowances to
match the emission cost that would be faced by similar domestic manufacturers.[7] The Administrator
would price and sell IRAP credits to “minimize[] the likelihood of carbon
leakage” to countries with lower carbon costs.[8]
IRAP would apply only if the United States does not reach “binding
agreements… committing all major greenhouse gas-emitting nations to
contribute equitably to”
greenhouse gas (GHG) reductions or otherwise fails to
avoid leakage issues.[9]
It cannot be activated before 2020[10]
and activates only if the President finds IRAP necessary to prevent leakage.[11] IRAP covers
sectors with high GHG and trade intensity and
sectors with particularly high
energy intensity

II. GATT/WTO Dispute Settlement Framework

This analysis will necessarily center on a few relevant General
Agreement on Tariffs and Trade
(GATT) provisions. To pass any WTO review ACESA
must demonstrate “
most favored nation” treatment among all trade partners
(Article I)[13]
and then must demonstrate fair treatment of foreign goods. To provide such fair
treatment, “
national treatment” of imported goods (regulating them equivalently
to their domestic counterparts) is allowed if the measure being challenged is
deemed to be a product-based tax or charge (Article III), but any other
non-tax restrictions directly regulating imports are banned under the WTO
(Article XI).[14]
If it fails these requirements, ACESA still survives WTO review if it is
justifiable (Article XX) either to protect human and natural health (paragraph
b) or to protect natural resources (paragraph g), and its actions are not
arbitrary or unjustifiably discriminatory (introductory paragraph, also called
the “

Looking at ACESA, there is little question that the United States treats all foreign countries equally, except for its exemption of least-developed
from IRAP requirements (almost certainly justifiable as good
international development policy). Consequently, Article I will not be a major
concern. Conversely, if Article III is found not to apply to IRAP (see below),
then ACESA almost certainly violates Article XI. Thus, the following analysis
necessarily hinges on whether ACESA is justifiable under Article III (as an
indirect product-based tax), and, if not, whether Article XX nevertheless
protects it. As this Article demonstrates, it is more likely than not that
ACESA can be justified under both Articles III and XX.

A. Article III

Article III requires that all nations give “national treatment” to imported
goods: no measures should be taken “so as to afford protection to domestic
Importantly, Article III allows some taxation and regulation,[17] but only applies to regulations on
products “as such.”[18]
The charge must be at least indirectly on the product itself and not just on
foreign activities, which means there must be a “
nexus” between tax and
product.[19] As stated above,
other regulations are subject to far more stringent Article XI prohibitions.

There is conflicting precedent on what constitutes regulation of products
“as such,” but there is some precedent to regulate substances indirectly
through taxes on products for which they are inputs.[20] Thus, to achieve Article III
jurisdiction, ACESA must portray IRAP as merely an application of internal
charges to imported products “as such.” The intuition for justifying IRAP would
probably rely on the US-Superfund application of Article III to taxes on
chemical inputs and hinge on the view of carbon taxes as
internalizing the
social cost of carbon into the cost of the product itself.[21] This justification is made more
difficult by the presidential IRAP trigger, which makes IRAP seem less like an
indirect tax on carbon, and more like a disguised form of WTO-discouraged trade

If Article III applies, it requires that imported products must not be
subject to taxes or regulations “in excess of” those applied to “like” domestic
products.[22] The definition
of “like” is a case-by-case determination focused on “the nature and extent of
a competitive relationship between and amongst products.”[23] This definition is construed
narrowly,[24] but here
imported goods will likely be considered “like” products to their domestic

There are two ways to show a difference in treatment that would violate
the ban on excess regulation of foreign goods—
de jure (legislated) or de facto
(in practice). De facto treatment is generally more complicated, because
“distinctions between products” do not necessarily constitute “less favorable
The relevant test is whether imported products as a group are affected more
than domestic products; a law cannot systematically favor domestic products.[26] However, some
cases allowed a “detrimental effect on a given imported product” if it could be
“explained by factors or circumstances unrelated to the foreign origin of the

IRAP only applies to imports, but this alone probably does not constitute
differential treatment—the WTO has arguably “accepted that
carbon taxes or
regulations can be adjusted at the border” and still fall within Article III.[28] Because IRAP is
an outgrowth of the (domestic) carbon market, as long as all manufacturers pay
the same price for allowances, the de jure effect on all products is probably
identical. Turning to ACESA’s de facto effects, countries with carbon-intensive
manufacturing might argue that they face institutional discrimination, with
consistently higher carbon fees. However, IRAP’s carbon-related charges should
be sustained under recent case law, as long as there is no charge on carbon
used to transport products into the United States (which would unfairly
disadvantage foreign manufacturers).[29]

ACESA does not fit the mold of regulations that would normally fall
under Article III regulation and so would be viewed suspiciously by any WTO
panel. However, recent precedent has probably expanded the notion of what
constitutes a regulation on a product, and expanded the range of allowable
discriminatory effect on foreign products, sufficiently to regulate and justify

B. Article XX

Article XX provides a general-purpose exception to other WTO provisions
for environmental measures that are either “necessary to protect human, animal
or plant life or health,” or “relat[e] to the conservation of exhaustible
natural resources.”[30]
Also, such measures must satisfy the Chapeau paragraph, which bans “arbitrary
or unjustifiable discrimination.”[31]

C. Article XX, Paragraph (b)

Article XX(b) excepts measures “necessary to protect human, animal or
plant life or health.”[32]
Such measures must not just promote health (generally straightforward) but also
must be necessary to this goal.[33]
This necessity “is not limited to that which is ‘indispensable’ or ‘of absolute
necessity’” but is not far off.[34]
WTO, as established in a
dispute between Korea and the United States and Australia over beef standards, considers three factors to establish necessity
(“Korean Beef test”): (1) the importance of the interests/values protected by
the measure; (2) the measure’s contribution to the end pursued; and (3) the
measure’s effects on international commerce.[35]
The more “vital or important” its protected interests are, the more likely a
measure is to be certified as “necessary.”[36]

The basic justification for IRAP is simple: mitigating climate change
prevents harm to human, animal, and plant health.[37] Running the Korean Beef test above,
the first factor would probably be straightforward: the interests protected are
quite strong, because climate change is a globally recognized problem, and
preventing climate-related human deaths is “important in the highest degree.”[38] The second
factor, IRAP’s contribution to these interests, is less clear—it must emphasize
that it prevents “leakage” of domestic emission gains by increased emissions
abroad and avoid being classified as a competitive safeguard against competition.
Turning to the third factor, ACESA certainly restricts international commerce
as an effective
tariff, which makes it less likely to be justified as necessary
under the Korean Beef test.[39]
The United States’ best, although weak, argument is that it equalizes domestic
and foreign costs and thus only preserves current global trade patterns.

Importantly, no measure is considered necessary if there is a reasonably
available alternative consistent with GATT provisions.[40] This query considers the domestic
costs of alternatives, how difficult they would be to implement, and how
effectively they would achieve the desired result.[41] Here, until there is a defined
administrative plan, it is hard to imagine obvious alternatives that could
prevent leakage without similarly implicating WTO review.

D. Article XX, Paragraph (g)

Article XX(g) excepts measures “relating to the conservation of exhaustible
natural resources” in conjunction with domestic restrictions.[42] It asks whether rules are
“primarily aimed at” the conservation of natural resources, but is less
stringent than the “necessary” standard in XX(b): one must only establish a
“substantial relationship” to conservation goals.[43]

The most restrictive definition of exhaustible would only include
non-living natural products.[44]
However, tying paragraph (g) to sustainability and environmental norms in the
Preamble to the WTO[45]
has allowed the concept of “natural resources” to expand with expanding notions
of resource protection.[46]
Living species have been classified as exhaustible natural resources, because
they can be depleted and/or driven to extinction and thus “are just as ‘finite’
as… non-living resources.”[47]
Recently, even clean air has been found to be an exhaustible natural resource,
because it is “natural” and can be “depleted.”[48]

Looking at ACESA, climate change is primarily an environmental
protection issue, implicating resource usage only indirectly. However, relying
on paragraph (g)’s conceptual evolution, two arguments could connect climate
change to natural resource concerns. One focuses on climate change’s
effect on
established exhaustible natural resources
, particularly water, oil and gas, and economically important species.[49] The other relies
on the holding that clean air is an exhaustible natural resource because it is
“natural” and can be “depleted.” The United States could argue that the
concentration of carbon dioxide was “natural” before we started emitting carbon
150 years ago, “depleting” natural air concentration supply. Reducing carbon
emissions could then be seen as “preserving” the natural air column
composition. If the above arguments do hold, IRAP could probably justify its
policies as having a “substantial relationship” to climate change prevention.

Finally, Article XX(g) also requires that any trade measures be taken
“in conjunction with” domestic measures. This essentially requires
“even-handedness in the imposition of restrictions”—equal treatment.[50] Here, IRAP is
certainly established in conjunction with domestic measures, because it ties
compliance costs explicitly to domestic compliance costs.[51]

E. Article XX Chapeau

Article XX’s Chapeau bans measures that enact “arbitrary or unjustifiable
discrimination… or a disguised restriction on international trade” between
countries with the same conditions.[52]
This requirement has “both substantive and procedural” components. [53]

Substantively, Article XX should not be “applied as to frustrate or
defeat” other nations’ general WTO rights.[54]
As laid out below, the main factors it considers are serious and equitable
efforts to negotiate international solutions, procedural fairness, and
infringement on other countries’ laws.

Countries are expected to try to resolve trade conflicts through multinational
and to extend these efforts equally to all members of the WTO. For example, a
U.S. law banning imports from countries that did not require
Turtle Excluder
(TEDs) in shrimp nets was overturned because of U.S. (“plainly
discriminatory”) failure to engage Asian countries as it had Latin American countries.[56] However, good
faith negotiations satisfy this requirement and no successful resolution is
required.[57] Similarly,
equivalent agreements are not required. Rather, negotiations for which
“comparable efforts are made, comparable resources are invested, and comparable
energies are devoted” are adequate.[58]

For ACESA, the WTO’s emphasis on international agreements could cut
either way. Climate negotiations
have not yielded emissions reduction
, and unilateral action has become a diplomatic reality. Also, ACESA
explicitly cooperates with
international carbon markets. However, the United States bears much of the blame for failure and, specifically, has not addressed the
leakage concerns that motivate IRAP in any agreement. Currently, the best solution,
developing world emission limitations, is
politically infeasible. A WTO
decision would depend on the extent to which it views U.S. negotiating efforts as sincere.

The procedural requirements in Article X(3)(a) of GATT require that each
country administer its laws “in a uniform, impartial and reasonable manner.”[59] In Shrimp-Turtle,
the United States was scolded for failing to give countries notice of decisions
or a formal opportunity to be heard, respond to allegations, and appeal

Two major IRAP provisions raise procedural questions, with the first
being the presidential “finding” that triggers IRAP. Here, Congress gives clear
standards for the President to follow, so if countries are involved and
informed throughout, procedural safeguards will probably be sufficient.[61] By contrast, the
Administrator’s authority to establish, price, and sell IRAP allowances is not
subject to congressional guidelines other than to match domestic carbon costs.[62] The
Administrator’s determinations here may well be highly contentious, and a lack
of guidelines could prove troublesome. Again, extensive foreign involvement, as
well as clear agency regulations, will be critical to survive the Chapeau.

Finally, Article XX exceptions should not be used to force other countries
to adopt the regulating country’s policy of choice. Again in Shrimp-Turtle,
the problematic U.S. law required “essentially the same” turtle protection
policies (specific fishing practices)—it did not just require similar-strength
policies.[63] Further, it
banned all shrimp imports until the entire country qualified,
strengthening the intuition that it sought to force its regulatory regime on
other countries and not just to promote turtle protection. The follow-up to
this case in 2001 upheld a rule that required only “comparable effectiveness,”[64] which allowed
countries to develop programs that met U.S. substantive goals but also suited
those countries’ specific conditions.

Given IRAP’s potential to exert a strong coercive effect on other
countries’ economies, the balance between U.S. Article XX rights and other
countries’ right to sovereignty is delicate. However, IRAP would likely fare
well here because it makes no attempt to regulate other countries’ climate
programs by only seeking to match
compliance costs. It also rewards individual
actors for carbon reductions regardless of their country’s laws. Thus, IRAP’s
methods seem necessary for its stated policy objective, and it is probably
sufficiently flexible and non-coercive in its application to satisfy the
standards of Article XX.

F. Summary of WTO Analysis

ACESA’s IRAP program avoids serious Article I issues, with only minor
exceptions. It will have trouble justifying its reserve allowance requirements
as charges “on products” to achieve Article III review. If it succeeds, ACESA
has a fair chance of WTO support under Article III given its “green” swing in
recent case law, but if it fails to reach Article III, ACESA certainly violates
Article XI. Article XX constitutes a second way to justify ACESA, with paragraph
(b) the more likely justification as long as the United States wins the framing
battle describing IRAP as an anti-leakage measure. However, paragraph (g) is a
real option given the evolution of the term “natural resources” and/or the
climate’s effect on resource availability. Finally, if the WTO believes the United States has approached climate negotiations in good faith, and the
Protection Agency’s
implementation remains open-access, the Chapeau should not
be an issue. IRAP is probably flexible enough to avoid sanction.


ACESA may not pass in its current form, let alone be challenged under
WTO law. Nevertheless, the issues inherent in a WTO legal review encompass
major sources of disagreement at the international scale. ACESA’s IRAP program
reflects widespread fear that, in responding to climate change, developed
countries will be undermined by transfer of heavy manufacturing activities
abroad, and will lose jobs in the process.[65]
The WTO remains a widely respected institution for resolving these concerns
over access to world markets and, in many ways, represents where the line
between these competing interests is acceptably drawn.

As countries consider unilateral climate activity, they should consider
not just the economic but also the legal implications of their actions and
proactively resolve issues looming on the horizon. One solution to the WTO’s
deterrent effect on climate legislation may be a global pact not to challenge
climate provisions under the WTO (though this may leave too many loopholes for
disguised protectionism). Another may be an explicit legal standard, unique to
climate legislation, for the WTO to follow (the WTO actively relies on drafting
notes in international negotiations to help guide its decisions, when such
notes are available, and also considers negotiation history when available).[66] The negotiating
parties should not ignore the looming prospect of WTO challenges. Aside
from potentially undermining emission reduction efforts across the world, such
challenges are often contentious and could undermine the good faith necessary
to negotiate the deeper cuts in carbon emissions that will be required into the


* Greg Wannier is a student at Stanford Law School (J.D., 2010) and the Stanford Emmett Interdisciplinary Program in
Environment and Resources (M.S., 2010).

[1] American
Clean Energy and Security Act of 2009, H.R. 2454, 111th Cong. (2009)
[hereinafter ACESA] (co-sponsored by Reps. Henry Waxman (D-CA) and Edward
Markey (D-MA)).

[2] Id. § 341.

[3] Jody
Freeman & Andrew Guzman, Climate Change and U.S. Interests, 109 Col. L. Rev. 1531, 1542–43; Joost Pauwelyn, U.S. Federal Climate Policy and Competitiveness Concerns: The Limits and Options of International Trade Law 41 (Nicholas Inst. for Envtl.
Policy Solutions, Working Paper 07-02, 2007).

[4] ACESA,
supra note 1, ¶¶ 701, 761.

[5] For
more on the debate over the WTO dispute settlement system, see generally
Susan Esserman & Robert Howse, The WTO on Trial, 82 Foreign Aff. 130 (2003); Daniel J.
Ikenson & Robert E. Lighthizer, Council on Foreign Relations, Debate: Is
the WTO Dispute Settlement System Fair?
, Council
on Foreign Relations
, Feb. 26, 2007.

[6] See ACESA, supra note 1, ¶ 768.

[7] Id. 768.

[8] Id. ¶ 768(a)(2).

[9] Id. ¶¶ 765, 768(a)(1)(E)(i).

[10] Id. ¶¶ 768(c).

[11] Id. ¶¶ 767(b).

[12] Id. ¶ 763(b)(2)(A).

[13] General
Agreement on Tariffs and Trade, art. I(1), Oct. 30, 1947, 61 Stat. A-11, 55
U.N.T.S. 194 [hereinafter GATT].

[14] Id. art. III(1)–(2), XI(1).

[15] Id. art. XX, ¶ 1, XX(b), (g); Pauwelyn,
supra note 3, at 33–37.

[16] GATT,
supra note 13, art. III(1).

[17] See Appellate Body Report, Japan –
Taxes on Alcoholic Beverages
, WT/DS8/AB/R (adopted Oct. 4, 1996), at
16 [hereinafter Japan-Alcohol].

[18] GATT
Panel report on United States – Restrictions on Imports of Tuna, DS21/R,
(Sept. 3, 1991), BISD 39S/155, ¶¶ 5.135.14 [hereinafter Tuna-Dolphin].

[19] Pauwelyn, supra note 3, at 21.

[20] Compare Tuna-Dolphin, supra
note 18, ¶ 5.15 (“Regulations governing the taking of dolphins incidental to
the taking of tuna could not possibly affect tuna as a product.”), with
GATT Panel Report on United States – Taxes on Petroleum and Certain Imported
, adopted 17 June 1987, BISD 34S/136, ¶¶ 2.1, 3.1.1–.9
[hereinafter US-Superfund] (applying Article III to regulation placing
higher taxes on imports produced with certain chemicals).

[21] See US-Superfund, supra note 20, ¶¶ 2.1,
3.1.1–.9; see Pauwelyn, supra note 3, at 2021.

[22] GATT,
supra note 13, art. III(2).

[23] Appellate
Body Report, European Communities – Measures Affecting Asbestos and
Asbestos-Containing Products
, ¶ 99, WT/DS135/AB/R (adopted Mar. 12,
2001) [hereinafter EC-Asbestos]; see Working Party Report, Border
Tax Adjustments
, ¶ 18, L3464 (Dec. 2, 1970) (examining “the product’s
end-uses in a given market; consumers’ tastes and habits . . . [and] the
product’s properties, nature and quality”).

[24] Japan-Alcohol, supra note 17, at 21.

[25] EC-Asbestos, supra note 23, ¶ 100.

[26] Pauwelyn, supra note 3, at 30.

[27] Appellate
Body Report, Dominican Republic – Measures Affecting the Importation and Internal
Sale of Cigarettes
, ¶ 96, WT/DS302/AB/R (April 25, 2005) (adopted
May 19, 2005) [hereinafter Dominican Republic-Cigarettes]; see
generally EC-Asbestos
, supra note 23.

[28] Pauwelyn, supra note 3, at 21, 28
(noting that the GATT allows internal charges to be applied equally to imports,
but is unclear on whether this application can come via separate legislation);
GATT, supra note 13, art. III(2); see, e.g., US-Superfund,
supra note 20 (allowing higher taxes on imports produced with certain
chemicals under Article III, and thus implicitly accepting border tax
adjustments as Article III regulations).

[29] See EC-Asbestos, supra note 23; Dominican
, supra note 27.

[30] Appellate
Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp
, ¶¶ 113, 118, WT/DS58/AB/R (adopted Oct. 12, 1998)
[hereinafter Shrimp-Turtle-1998]; GATT, supra note 13, art.
XX(b), (g).

[31] GATT,
supra note 13, art. XX, ¶ 1.

[32] GATT,
supra note 13, art. XX(b).

[33] See, e.g., Appellate Body Report, United
States – Standards for Reformulated and Conventional Gasoline
, WT/D52/AB/R
(adopted Apr. 29, 1996) [hereinafter US-Gasoline]; EC-Asbestos,
supra note 23; but see Appellate Body Report, EC Measures
Concerning Meat and Meat Products (Hormones)
50, WT/DS26/AB/R (adopted
Jan. 16, 1998) (requiring a “rational relationship” between the policy and the
risk that goes beyond perceptions).

[34] Appellate
Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and
Frozen Beef
, ¶ 161, WT/DS161/AB/R (adopted Dec. 11, 2000)
[hereinafter Korea-Beef].

[35] Korea-Beef, supra note 34, ¶ 164.

[36] EC-Asbestos, supra note 23, ¶ 172
(holding that, in the case of asbestos poisoning, human life and health is
“important in the highest degree”).

[37] See generally Ulisses Confalonieri et al., Human
, Climate Change 2007: Impacts,
Adaptation and Vulnerability, Contribution of Working Group II to the Fourth
Assessment Report of the Intergovernmental Panel on Climate Change,

391–431 (M.L. Parry et al. eds., 2007) [hereinafter Climate Change 2007: Impacts]. Threats to coastal
populations of humans and tropical alpine species are particularly well
documented. See Robert J. Nicholls et al., Coastal Systems and
Low-Lying Areas
, Climate Change 2007:
, supra note 37, at 315–356.

[38] EC-Asbestos, supra note 23, ¶ 172.

[39] Korea-Beef, supra note 34, ¶ 163.

[40] GATT
Panel report on Thailand – Restrictions on Importation of and Internal Taxes
on Cigarettes
, adopted 7 Nov. 1990, DS10/R – 37S/200, ¶ 74, quoting Report
of the panel on "United States – Section 337 of the Tariff Act of
1930" (L/6439, ¶ 5.26, adopted 7 Nov. 1989).

[41] Korea-Beef, supra note 34, ¶ 173; EC-Asbestos,
supra note 23, ¶¶ 170, 174; However, administrative difficulties and
slight quality control losses cannot prevent an alternative from being
“reasonably available.” US-Gasoline, supra note 33, at 16–17.

[42] GATT,
supra note 13, art. XX(g). For a discussion of how this requirement
applies, see US-Gasoline, supra note 33, at 12–13.

[43] US-Gasoline, supra note 33, at 12; Korea-Beef,
supra note 34, ¶ 104.

[44] Shrimp-Turtle-1998, supra note 30, ¶¶ 127–28
(mentioning oil and minerals as basic examples of exhaustible natural
resources, and outlining recent arguments that the conception of “exhaustible
natural resources” should be limited to these examples).

[45] General
Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement
Establishing the World Trade Organization, Annex 1A, Legal Instrument – Results
of the Uruguay Round, 1867 U.N.T.S. 187, 33 I.L.M. 1125 (1994) (explicitly
acknowledging “the objective of sustainable development, seeking both to
protect and preserve the environment”).

[46] Shrimp-Turtle-1998, supra note 30, ¶ 130, quoting
Namibia (Legal Consequences) Advisory Opinion (1971) I.C.J. Rep., ¶
31(noting that the term “natural resources” is “by definition, evolutionary”).

[47] Shrimp-Turtle-1998, supra note 30, ¶ 128; see,
, GATT Panel Report on United States – Prohibition of Imports of
Tuna and Tuna Products from Canada
, adopted 22 February 1982, BISD 29S/91,
¶ 4.9; GATT Panel Report on Canada – Measures Affecting Exports of Unprocessed
Herring and Salmon
, adopted 22 March 1988, BISD 35S/98, ¶ 4.4 (recognizing
fish stocks as exhaustible natural resources); Shrimp-Turtle-1998, supra
note 30, ¶ 135 (recognizing sea turtles as an exhaustible natural resource
even though they are themselves of no significant economic value).

[48] Appellate
Body Report, United States – Standards for Reformulated and Conventional
, ¶¶ 6.36.37, WT/D52/R (adopted Jan. 29, 1996)
(noting also that “the fact that the depleted resource [is] defined with
respect to its qualities [is] not . . . decisive”), affirmed by US-Gasoline,
supra note 33.

[49] See, e.g., Zbigniew W. Kundzewicz et al., Freshwater
Resources and Their Management
, Climate
Change 2007: Impacts
, supra note 37, at 173–210 (discussing
climate effects on water scarcity); Brian Helmuth et al., All Climate Change
is Local: Understanding and Predicting the Effects of Climate Change from an
Organism’s Point of View
, 2 Stan.
J.L. Sci. & Pol’y
18, 26–28, 30 (2010) (showing threats to, and
migrations among, marine ecosystems and fish stocks from warming waters and
ocean acidification); A.L. Carroll, S.W. Taylor, J. Regniere & L. Safranyik, Effects of Climate Change on Range
Expansion by the Mountain Pine Beetle in British Columbia
, Natural Resources Canada, Canadian Forest
Service, Pacific Forestry Centre Information Report BC-X-399,
223–32 (2004)
(T.L. Shore, J.E. Brooks & J.E. Stone, Eds.) (discussing the threat
to lumber stocks in North America from expanding beetle ranges).

[50] US-Gasoline, supra note 33, at 13.

[51] ACESA,
supra note 1, ¶ 768(a)(1)(B) (requiring that “the price for purchasing
the international reserve allowances . . . [be] equivalent to the auction
clearing price for [domestic] emission allowances”).

[52] GATT,
supra note 13, art. XX, ¶1.

[53] Shrimp-Turtle-1998, supra note 30, ¶¶ 150, 160.

[54] US-Gasoline, supra note 33, at 14. This
language comes from the doctrine of abus de droit, which prohibits the abusive
exercise of a state’s rights. Shrimp-Turtle-1998, supra note 30,
¶¶ 15859.

[55] Rio
Declaration on Environment and Development, U.N. Conference on Environment and
Development, Rio de Janeiro, June 314, 1992, principle 12, U.N. Doc.
A/CONF.151/26 (Aug. 12, 1992) (“Environmental measures addressing transboundary
or global environmental problems should, as far as possible, be based on international
consensus.”); see also Shrimp-Turtle-1998, supra note 30, ¶ 169
(referencing the Convention on Biological Diversity and the WTO’s Report of the
CTE out of Singapore).

[56] Shrimp-Turtle-1998, supra note 30,
169–70, 172.

[57] The
United States satisfied its obligations three years later after trying, but
failing, to negotiate an agreement with Malaysia. Appellate Body Report, United
States – Import Prohibition of Certain Shrimp and Shrimp Products
, ¶ 124,
WT/DS58/AB/RW (adopted Oct. 22, 2001) [hereinafter Shrimp-Turtle-2001]
(“It is one thing to prefer a multilateral approach . . . it is another to
require the conclusion of a multilateral agreement.”).

[58] Shrimp-Turtle-2001, supra note 57, ¶ 122.

[59] GATT,
supra note 13, art. X(1), (3); Shrimp-Turtle-1998, supra note
30, ¶ 183.

[60] Shrimp-Turtle-1998, supra note 30, ¶ 180; see
Departments of
Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act of 1990
, Pub. L. No. 101–162, § 609, 103 Stat.
988, 1037–38 (1989) (codified at 16 U.S.C. § 1537 (2006)) [hereinafter MMPA §
609]; However, when the United States changed its country certification process
to fix its procedural errors, its law was upheld in 2001. Shrimp-Turtle-2001,
supra note 57, ¶¶ 147–48, 152.

[61] See ACESA, supra note 1, §

[62] See id. § 768(a).

[63] In
this case, the United States required TEDs in all shrimp nets. Shrimp-Turtle-1998,
supra note 30, ¶¶ 16465; MMPA, supra note 60, § 609.

[64] Shrimp-Turtle-2001, supra note 57, ¶¶ 135, 141
(“if, in practice, the implementing measure provides for ‘comparable
effectiveness’ . . . lack of flexibility will have been addressed.”) (emphasis
removed) (internal citations omitted).

[65] David
B. Hunter & Nuno Lacasta, Lessons Learned from the European Union’s Climate
, 27 Wisc. Int’l L.J.
575, 598–600 (2009); see also Freeman & Guzman, supra note 3,
at 1542–43.

[66] Esserman
& Howse, supra note 5, at 139.

Copyright 2010 Gregory E. Wannier. All rights reserved.

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