International Trade and the Environment: Building a Framework for Conflict Resolution

Kyle E. McSlarrow

Editors' Summary: To practice environmental law in the 1990s, it is necessary to be familiar with international trade. Trade concerns affect every aspect of environmental law from agricultural subsidies to the disparate impact of pollution abatement regulation on pricing. The following two Dialogues present an overview of the issues and insight on the relationship between international trade and the environment. The first, by a member of the Trade and Environmental Committees of the U.S. Council for International Business, explains how the historic tension between environment and trade can be alleviated by incorporating environmental concerns into the international trade framework. The second, by counsel to the International Trade Commission, delineates specific measures to ensure that environmental concerns are incorporated into international trade decisions. Together these Dialogues familiarize environmental lawyers with international trade and argue for unifying environmental improvement with liberal trade.

Mr. McSlarrow is an environmental attorney with the Washington, D.C., office of Hunton & Williams. He is also a member of the Trade and Environmental Committees of the U.S. Council for International Business. The views expressed in this Dialogue are not intended to represent the views of the U.S. Council or of any of its members. The author wishes to thank Turner T. Smith, Jr., of the Brussels office, and Eric J. Murdock of the Washington office, of Hunton & Williams for their helpful criticisms on earlier drafts.

[21 ELR 10589]

The President's request for fast-track authority to negotiate a North American Free Trade Area (NAFTA) agreement¹ brought an important issue into the public eye — the intersection of environment and trade issues.² This Dialogue argues that promotion of trade and protection of the environment³ can and should be complementary objectives. After exploring the various points of intersection between trade and environmental policy, this Dialogue concludes that many conflicts are the product of too little attention to the complementary objectives, rather than an intrinsic and irreconcilable clash of goals.

Choices between trade objectives and environmental objectives are certainly necessary. The few mechanisms that purport to address both trade and environmental policies are woefully inadequate to that task. There is simply no comprehensive mechanism for analyzing tradeoffs between those objectives. Under the current approach, myopia masquerades as policy.

Although trade issues are typically addressed through the process established by the General Agreement on Tariffs and Trade (GATT),⁴ environmental issues are usually not considered. Conversely, resolution of domestic environmental issues is typically reached without consideration of the international trade implications. Environmental issues, to the extent they are regarded as international at all, are usually resolved on an entirely separate track from trade negotiations.⁵ However, trade and environmental issues [21 ELR 10590] overlap and will increasingly do so in the future. This Dialogue concludes that an international framework is needed that resolves potential conflicts through a reformed international trade regime that directly confronts the interrelationship between trade and environment.⁶

The Mismatch Between Environmental and Trade Perspectives

There are basically two perspectives on any issue involving international trade and environmental protection. These can be simplistically categorized as those of the trade lawyer and those of the environmentalist.⁷ The trade lawyer focuses on how government action with underlying environmental concerns affects trade flows.⁸ Conversely, the environmentalist focuses on the effect of government action that purports to address trade policy on the protection of the environment. The environmentalist may also wish to use trade policy to achieve environmental objectives.

While both perspectives focus on government action, their emphasis on domestic versus international issues is inverted. The trade perspective, while international in context, focuses principally on the effect of domestic legislation. The environmental perspective, by contrast, has primarily a domestic agenda, but focuses on the effects of international agreements among nations.⁹ The domestic versus international mismatch is responsible for many of the conflicts between the two perspectives. Since it is not feasible to institute a framework for trade on a nation-by-nation basis, a resolution of these conflicts is only likely to be reached by "internationalizing" environmental concerns and including them within a reformed trade framework.¹⁰

The Environmental Perspective

Although there are differing views on how growth, trade, and environmental protection do and should interact, the most widely known concept is the goal of "sustainable development."¹¹ The Brundtland Commission, a high-level group established by the United Nations Environment Programme to explore these issues, defined "sustainable development" generally as meeting the needs of today without compromising the needs of tomorrow.¹² At a minimum, sustainable development discourages the use of nonrenewable resources and activities that adversely affect the quality of life for future generations.¹³

Sustainable development, however, means different things to different people. It does not, by itself, resolve difficult trade and environmental conflicts. To analyze the underlying relationship of trade and the environment, one must look beyond this phrase.

There are many ways that trade may affect the environment — for good or for ill. For example, the European Commission Task Force examined the environmental impacts of "1992," the date by which the Single European Act of 1986 provided that all trade barriers among European Community members would be removed to the greatest extent possible.¹⁴ The task force report concluded that there would be both gains and losses with respect to the environment. Open borders would mean a leap in traffic of goods, with increased transport by road, water, and air, and ensuing environmental degradation.¹⁵ By contrast, increased market competition in public procurement would potentially lead to lower prices for pollution abatement equipment, and thus save money that could then be spent on environmental goods.¹⁶

Such examples of concrete analysis are rare. Usually discussion of trade and environmental issues is theoretical, partly because there is no accepted wisdom on their relationship. From a long-term perspective, there are two diametrically opposite views regarding trade's effect on the environment. One is that free trade and the growth it inspires have led and will lead to degradation of the environment.¹⁷ A classic example put forward is the export of timber from countries such as Thailand or Burma, which now cope with the consequences of vanishing forests. The opposite view is that growth through trade offers the best opportunity for ensuring that the environment is protected.¹⁸ This view would point to environmental conditions in the Soviet Union and its former Eastern Bloc satellites to suggest that it is how growth is pursued that is most relevant.

Although a common axiom is that trade is merely a means to an end, rather than an end itself,¹⁹ like most truisms, this is a bit misleading. Where free trade must yield to protection [21 ELR 10591] of the environment, the underlying assumption often is that "free" means individual nations will not affect trade flows in any manner. However, to maintain a "free" trade system means, for all practical purposes, the establishment of a non-distorting system. This can only be done at the international level. Tensions arise, not because free trade is inimical to protection of the environment, but because free trade relies on an international regime while environmental considerations are the province of individual nations. The solution is to match "free" trade with international environmental rules.

The Environmental Benefits of Free Trade. The one unassailable point about the relatively free trade system in effect since the end of World War II is that it resulted in the largest increase in standard of living in history. Much must still be done, but free trade proved its worth.

The last one hundred and fifty years of unparalleled economic growth have also arguably seen the greatest degradation of the environment inflicted by humankind in history. Halting development, or returning to the days when human life was "nasty, brutish and short," however, is not a legitimate policy option. Those who think that halting or slowing development is a workable goal²⁰ are not the hundreds of millions of human beings mired in poverty, for whom the attainment of a higher standard of living is a very real, and necessary, goal. To suggest that any strategy other than continued development will be the relevant guide for policymakers would be very unrealistic.

Although the leap to advanced industrialization has been accompanied by the infliction of serious harm on the environment, that same period of wealth creation saw the elevation of environmental protection to the first rank of government policy in the very richest countries. Much of the environmental degradation was also the result of government policies unrelated to industrialization, such as the almost universal farm subsidy that ensures that land is overvalued in the market sense but undervalued in the environmental sense.

What this should suggest is that growth is not "bad." Rather, development has stages. An initial period of industrialization, which is perhaps the most ruinous for the environment, has led to a more advanced period, in which there is more concern.²¹ Policies that result in the halting of growth will merely ensure that development will not advance out of the initial period, with potentially severe consequences for the environment. Since development will not be reversed, the most effective policies for protecting the environment will be those that guarantee that developing countries advance as quickly as possible to the later stages of industrialization.²² Moreover, we now have the benefit of having learned much from past mistakes, so that we can minimize environmental harm even as nations develop.

Protection of the environment is a luxury that can be afforded only by nations with enough wealth to ensure that environmental costs do not dissipate their capital. Repeated calls for wealth transfers or preferential treatment for developing countries side by side with calls for the type and scope of environmental restrictions present in the advanced industrialized nations show that environmental protection is, for the moment and in certain nations, not worth its costs.²³ Instead of focusing narrowly on the exchange of wealth transfers in return for agreement to abide by rules for the protection of the environment, policymakers ought also to be promoting the quickest possible growth — and that means providing the greatest possible opportunities for trade.²⁴

The Trade Perspective

The overarching concern from the trade perspective is whether rules for the protection of the environment pose "barriers to trade." There is also a subsidiary issue as to whether those rules were intended to play such a role.²⁵

"Barriers to trade" subsumes two different concerns. The first is the effect on the total volume of trade as a result of distortions.²⁶ The second is the effect on a nation's "competitiveness."²⁷ "Harm" in this instance may include added costs to production, or may mean businesses, particularly multinational corporations, moving overseas causing loss of revenue and jobs.

These two concerns often involve different types of businesses. Exporters, for example, gain from policies favoring total volume of trade. Although exporters also benefit from policies favoring competitiveness, domestic producers, who compete with imported goods with lower costs of production, are most concerned with this aspect of trade. The exporters disfavorany added costs to production due to distortions. Exporters therefore seek a balance between any benefit flowing from protecting the environment against the costs of a lower trade volume. Domestic producers, by contrast, will focus on the establishment of a level playing field through "harmonization" of standards.

If a country unilaterally burdens its industries with costs of strict environmental regulations, realistically, it still will [21 ELR 10592] burden trade. If harmonization is unattainable,²⁸ domestic producers will seek import tariffs to compensate for the more lax environmental requirements found in the originating country.²⁹ A bill introduced by Senator David Boren (D-Ok.) on April 25, 1991, entitled the "International Pollution Deterrence Act of 1991"³⁰ proposes just such a tariff. The Boren bill makes three points: 1) American industry pays an enormous cost in compliance with strict environmental laws; 2) to the extent that foreign competitors operate in countries with more lax standards, they are the beneficiaries of a "significant and unfair subsidy";³¹ and 3) American competitiveness suffers as a result. The Boren bill's solution is to impose countervailing duties that reflect the costs that the foreign producer would incur under United States standards. If enacted, this bill would have a significant impact on international trade. Other nations could be expected to retaliate, a situation that international trade rules under GATT were designed to control and prevent.

Non-Tariff Barriers to Imports. Although the classic trade barrier is the tariff, nations rarely seek to achieve environmental goals through this mechanism. Rather, the most likely tool to be used is the "non-tariff barrier," which may take a variety of forms. Technical specifications and testing procedures that govern product standards are the most common form of non-tariff barrier.³² Under the Standards Code,³³ negotiated under the auspices of GATT, standards for imported products that reflect concern for consumer safety and efficiency are accommodated to the extent they do not create "unnecessary obstacles to international trade." In all other respects, signatory nations have undertaken to treat imported products no less favorably than similar domestic products.³⁴ Although the Standards Code is primarily concerned with standards that relate to products, not with environmental standards, the principles underlying the code provide a useful guide to the resolution of analogous issues in the environmental context.³⁵

"Standard," as a term of art, means different things to an environmental lawyer than it does to a trade lawyer. While trade standards focus on products, environmental standards, such as emissions limits, cover a much broader universe of regulated activities. In some instances, environmental "standards" include bans on products such as pesticides.³⁶

Perhaps the best-known example of the conflict between free trade and environmental regulation as a non-tariff barrier to trade is Commission of the European Communities v. Kingdom of Denmark.³⁷ Denmark mandated that certain beverages be sold only in "returnable containers." Returnable containers are those for which there existed an approved system for collection and refilling. Beverage importers complained that this rule acted as an import barrier because the costs of instituting such a collection system had a disparate impact on them.³⁸ There was no allegation that the regulation discriminated against importers on its face, but the European Commission argued that restrictive effects on trade could be justified only if they were "not disproportionate to the intended objective of protecting the environment."³⁹ The European Court accepted the principle of proportionality, holding that parts of the Danish law violated that principle and parts did not. The court explained that measures to protect the environment "should choose the means which least restricts the free movement of goods."⁴⁰

A pending case brought recently by a Canadian company is also illustrative of the type of conflicts which will be increasingly resolved by recourse to courts.⁴¹ Corrosion Proof Fittings v. EPA involves a petition for review of the Environmental Protection Agency's (EPA's) promulgation of an asbestos ban,⁴² under which the manufacture, importation, processing and distribution of asbestos products is to be phased out. The asbestos ban was promulgated under the authorities provided in § 6(a) of the Toxic Substances Control Act (TSCA).⁴³ Canada, one of the largest asbestos exporters in the world, intervened on the grounds that the asbestos ban would "unnecessarily impede international commerce."⁴⁴ Canada argues that since other industrial [21 ELR 10593] nations, the World Health Organization, and the International Labor Organization have all rejected a ban on asbestos in favor of a "controlled-use" policy, the complete ban violates the United States' obligations under GATT.⁴⁵

Export Restrictions. Export restrictions pose another potential trade distortion.⁴⁶ Although some controls are unilateral, recently negotiated international agreements impose them as well. Restrictions on the export of chlorofluorocarbons and hazardous waste are among the most recent and far-reaching examples.⁴⁷ Yet, export controls can run afoul of the principles underlying GATT. One purpose of free trade is to increase the total volume of trade. Rules designed to prevent the export of nonrenewable resources, for example, may deprive others of the raw or intermediate materials necessary to their production processes.⁴⁸

Competitiveness. Environmental regulations often distort trade and affect competitiveness. For example, the 1990 Clean Air Act Amendments' impact on the economy is likely to be in the tends of billions of dollars, with uncertain, though significant, costs to American business.⁴⁹ The debate over the impact of environmental regulation on competitiveness relies, unfortunately, far more on rhetoric than rigorous economic analysis.⁵⁰

Differences between liability regimes significantly affect competitiveness. Even if nations share environmental goals, how environmental compliance is achieved affects competitiveness. Although the Organization for Economic Cooperation and Development (OECD) adopted the "polluter pays principle"⁵¹ to foreclose government subsidies for environmental protection, implementation is uneven at best because it is left to individual countries.⁵² Liability regimes may impose greater costs to production than emissions controls.⁵³ The differential impact of various liability regimes, therefore, ought to be regarded as just as important as the underlying substantive goals.⁵⁴

The "polluter pays principle" is merely an initial, but incomplete, attempt to provide a neutral basis for imposing costs that are thought to be less than the benefits. The principle requires subsidiary rules. For example, such rules should provide direction on whether liability should be retroactive for acts that were legal when done. If one regime is prospective, while another is both retroactive and prospective, the potential effects on competitiveness may be enormous.⁵⁵ Any effort to grapple with "harmonization of standards," in order to be effective, must similarly extend beyond consideration of merely end-of-pipe emissions standards to include matters such as liability.

GATT

An international regime that provides principles that squarely address both environmental protection and growth is necessary in order to ensure that both goals are maximized. That regime also requires self-executing enforcement measures through dispute resolution. Such a regime does not exist. Instead, the only truly international framework, GATT, focuses solely on trade in a world that no longer accepts trade as a trump on other policies.⁵⁶ Without proper moorings, the debate and resolution of trade and environmental conflicts are left to drift, with nations promoting their individual interests alone.

Nonetheless, GATT does not altogether ignore trade and environment conflicts, and therefore offers the best available vehicle for a resolution of their tensions. A review of GATT's provisions provides a useful guide to what the international trade rules offer as guiding principles and what they presently lack with regard to the resolution of trade and environmental conflicts.

Perhaps the most glaring omission in GATT is institutional. There has been no commitment to a coordinated and comprehensive approach to environment and trade issues.⁵⁷ [21 ELR 10594] However, this may change. GATT's Working Group on Environmental Measures and International Trade, which has not met since its creation in 1971, may begin work on environment and trade issues.⁵⁸ Nonetheless, an effective approach will require more than convening the working group, though that would be a start. There also needs to be a commitment to reforming the substantive principles that underlie the GATT process, so that these issues are directly confronted and not left to vague and uncertain generalizations.

The broad trade principles incorporated in GATT are well known.⁵⁹ Article I seeks to guarantee similar treatment by any member of GATT to all other GATT members.⁶⁰ Article III further seeks to guarantee that GATT members will not discriminate against imported goods once they have been imported.⁶¹ Article II establishes the maximum tariff levels that may be imposed on various products, and Article XI seeks to prohibit quantitative restrictions on imports and exports.⁶² Article XVI seeks to reduce the effects of subsidies on trade.⁶³

Of most relevance to environment and trade issues are the exceptions GATT provides to these general principles. Article XX is the most frequently cited of these exceptions in relation to environmental issues.⁶⁴ Article XX provides two relevant exceptions to GATT: measures 1) "necessary to protect human, animal or plant life or health"; or 2) "relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption."⁶⁵ This text offers scant support for a reasoned resolution of conflicts between trade issues and protection of the environment.⁶⁶

An example of how limited the existing GATT structure is in resolving these types of disputes is provided in a report of a panel convened under GATT to look at the taxes imposed on imported petroleum products and certain hazardous substances by the Superfund Amendments and Reauthorization Act of 1986.⁶⁷ The panel concluded that the tax on petroleum products violated the national treatment rule in Article III, but that the tax on hazardous substances was a permissible border tax adjustment.⁶⁸ Interestingly, the European Community alleged that "[w]hat the United States was in fact doing under the label of border tax adjustments was to ask foreign producers to help defray the costs of cleaning up the environment for the United States industries."⁶⁹ The United States responded that the measures were primarily fiscal, not environmental, in motivation.⁷⁰ The United States went on to state that "[e]nvironmental policy principles related to trade could conceivably be incorporated into the GATT legal system, but such a far-reaching step require[s] the cooperation of all contracting parties…."⁷¹ This reasoning was eventually accepted by the panel.⁷²

There are two qualifications to the Article XX exceptions. First, the Article XX exceptions are "subject to" the requirement that such measures not "discriminat[e] between countries where the same conditions prevail."⁷³ It is unclear what "conditions" are relevant to the inquiry, although the qualification has not been challenged. Second, the two exceptions are "subject to" the requirement that they not be "a disguised restriction on international trade."⁷⁴ This provision offers little guidance since the qualification raises the very issue that is likely to be confronted by measures thought to burden trade. Nonetheless, implicit in its text is the idea that if there is no "disguise" and the measure is otherwise justifiable under one of the exceptions, trade concerns yield to environmental concerns.

Article XX's first exception for regulations, "necessary to protect human, animal, or plant life or health," does not define what is "necessary."⁷⁵ It is not clear whether "necessary" is to be determined unilaterally, or by reference to international standards. If the former, the GATT rules may easily be undermined; if the latter, there is no institutionalized procedure for making such determinations. This aspect of the Article XX exceptions may have to be resolved in court on a case-by-case basis. In its challenge to EPA's asbestos ban, Canada argued that a ban cannot be "necessary" under GATT where there is an international consensus that particular asbestos products may be regulated safely.⁷⁶

Two documents that have some relevance to trade and environment issues emerged from the Tokyo Round of negotiations under the GATT that ended in 1979: the Standards Code⁷⁷ and the Subsidies Code.⁷⁸ The Subsidies Code seeks to avert the "harmful effects [of subsidies] on trade and production"; seeks to ensure that "countervailing measures do not unjustifiably impede international trade"; and seeks to regulate both subsidies and countervailing measures under the code.⁷⁹ Again, there are recognized exceptions. [21 ELR 10595] Among these are subsidies whose objectives include "the elimination of industrial, economic and social disadvantages of specific regions."⁸⁰ Given the broadest — and probably unreasonable — reading, some environmental protection measures could be said to fall within this exception. However, the Subsidies Code states nothing explicitly about subsidies to promote protection of the environment.

The structure and scope of the Article XX exceptions point to what is obvious already: they were negotiated at the end of World War II, long before present environmental concerns and policies were even contemplated. Article XX does not, therefore, offer a comprehensive approach to resolution of conflicts between environment and trade. Similarly, only by the broadest possible reading could the Subsidies Code be said to permit subsidies instituted for environmental reasons.

Both Article XX and the Subsidies Code, however, suggest that there is sufficient room within the "trade" context to attempt such a comprehensive resolution. For example, the Standards Code,⁸¹ though it aims at the technical specifications relating to products,⁸² attempts to create a framework for harmonizing standards on an international basis. However, signatories may deviate from such international standards for, inter alia, such reasons as "protection for human health or safety" or "protection of the environment."⁸³ The only normative guidance is that standards should not create "unnecessary obstacles to international trade."⁸⁴ As with the GATT Article XX exceptions, it is unclear who is to determine "necessary" or "unnecessary" standards.⁸⁵ Although the Standards Code does not squarely address environmental regulation, its underlying principles are relevant to the environmental arena.⁸⁶ For example, it provides the procedural principle of "transparency." In brief, this principle would impose on nations the responsibility to ensure that potential exporters are notified by the importing country of relevant regulatory requirements.⁸⁷

GATT has proven that it is capable of addressing both environment and trade concerns; what is lacking are normative principles to guide conflicts between competing substantive values as they arise.

Free Trade Agreements: Working Toward NAFTA

On May 24, 1991, Congress approved "fast track" authority⁸⁸ to pursue the negotiation of a North American Free Trade Area Agreement (NAFTA).⁸⁹ NAFTA has produced the most public airing of the trade and environmental relationship to date.

Even before the Bush administration formally notified Congress on February 5, 1991,⁹⁰ of its intent to negotiate a free trade agreement with Mexico and Canada, environmentalists warned that the likely outcome of such an agreement would be either that U.S. companies would flee to Mexico to escape onerous environmental restrictions or that the United States would be pressured to relax environmental standards at home.⁹¹ Environmentalists pointed to the maquiladora region, a miniature free trade area along the United States and Mexico border, which they alleged suffered from many environmental problems due to American firms building plants that conformed to lax environmental standards.⁹² The underlying assumption — that Mexico would not follow the United States' history and apply stricter controls as it developed — was, however, frequently challenged.⁹³

Concerns about NAFTA's effect on the environment were presented in three ways. First, some feared that environmental and safety standards would be considered as potential "non-tariff barriers."⁹⁴ Second, others argued that environmental [21 ELR 10596] issues should be placed squarely on the trade negotiation agenda.⁹⁵ Third, others argued that though environmental issues should be addressed, it would be best to do so in a parallel set of negotiations.⁹⁶

The United States-Canada Free Trade Agreement (the FTA)⁹⁷ served as a baseline for discussions of NAFTA. It is therefore useful to briefly describe how that agreement addresses environment and trade issues.

The United States-Canada Free Trade Agreement

Although the FTA does not offer a comprehensive approach to resolution of trade and environmental issues, it goes farther than existing GATT provisions, particularly in its attempt to harmonize each nation's standards and regulations.

The FTA preserves the exceptions found in Article XX of GATT.⁹⁸ It also addresses technical standards in two ways. First, chapter 6 of the FTA mirrors the focus of the Standards Code under GATT, although it affirmatively renounces any intention to govern measures at the state or province level.⁹⁹ Chapter 6 focuses on a slightly broader array of governmental action than found in the Standards Code, including "standards-related measures or procedures," so defined to extend not only to "goods," but also to "processes and production methods."¹⁰⁰ The FTA also carves out of "unnecessary obstacles to trade," measures designed to achieve a "legitimate domestic objective" — defined to include protection of health or the environment.¹⁰¹ Importantly, the FTA adds a new commitment to harmonize all standards-related measures.¹⁰²

Despite the exception provided for environmental measures, the fit between the focus of chapter 6 of the FTA and environmental standards is not very close.¹⁰³ However, chapter 7 contains provisions that address issues of environmental concern. Chapter 7 embodies an agreement to seek an "open border policy" with regard to "trade in agricultural, food, beverage and certain related goods."¹⁰⁴ It also provides for the establishment of "equivalent" technical regulatory requirements.¹⁰⁵ Chapter 7 defines "technical specification" broader still, including a specification "that lays down characteristics of a good such as levels of quality, performance, safety or dimensions."¹⁰⁶ Schedules for implementing chapter 7 make the difference from chapter 6 more clear. The schedule for fertilizers, for example, states the parties' agreement to "work toward harmonizing tolerances and action levels."¹⁰⁷ The schedule for pesticides states that the parties will "work toward equivalence in: i) the process for risk-benefit assessment, [and] ii) tolerance setting."¹⁰⁸

It is clear, therefore, that the FTA's principal focus is on the "trade perspective." There is no mention of the relationship between increased trade and potential environmental impacts. Many in Congress and environmental organizations mean to ensure that this omission is not repeated in the NAFTA negotiations.

The North American Free Trade Area Negotiations

To assuage the fears of those who feared a repeat of the FTA, President Bush presented an Action Plan on May 1, 1991, that addresses environmental issues as they relate to the granting of "fast track" authority to engage Mexico and Canada in the negotiation of NAFTA.¹⁰⁹ The Action Plan addresses the trade and environment relationship in two ways. First, the Action Plan claims that NAFTA will lead to salutary environmental results.¹¹⁰ Conversely, it argues that rejection of the free trade negotiations would hurt the environmental agenda.¹¹¹ Second, the plan addresses how specific trade and environmental issues will be confronted by the United States and Mexico. However, the Action Plan promises to address most of these issues in a parallel agreement, not in the negotiation of NAFTA itself.¹¹² Nonetheless, the Action Plan was probably instrumental in convincing Congress to approve fast-track authority for NAFTA.One congressional enthusiast termed the [21 ELR 10597] Action Plan "the environmental equivalent of the New World Order."¹¹³

The administration set forth principles that will guide the course of negotiations. Most importantly, the "United States will not agree to weaken U.S. environmental and health laws or regulations as part of the FTA…."¹¹⁴ Nor will the United States waive its "rights to prohibit the entry of goods that do not meet our health, safety, pesticide, food and drug, and environmental regulations, so long as such regulations are based on sound science, do not arbitrarily discriminate against imports or constitute a 'disguised' trade barrier."¹¹⁵ Although these statements of principle may offer comfort to those who previously opposed the negotiations, they may not actually represent concessions. Pledging not to "weaken" — whatever that may mean — environmental laws or regulations during the FTA negotiations says nothing about doing so in other parallel, or perhaps GATT, negotiations.¹¹⁶ And, the second principle noted above — not to waive the United States' right to prohibit certain imports — begs the question: what is an "arbitrary discrimination against imports" or a "disguised" trade barrier?

The parallel set of negotiations will, by contrast, affirmatively address environmental issues of concern to both countries.¹¹⁷ The substantive portions of the Action Plan focus on the parallel set of negotiations. For example, the administration pledges to "design and implement an integrated border environmental plan to address air and water pollution, hazardous wastes, chemcial spills, pesticides, and enforcement"; to "consult on national and environmental standards and regulations"; and to "establish a program of technical cooperation and training, which will include facilitating sharing of technology for pollution abatement."¹¹⁸ The impetus toward confronting environmental issues, particularly as between the United States and Mexico, was the free trade negotiations. Congress and other interested parties will work to keep these concerns linked.¹¹⁹

Toward Complementary Trade and Environment Policies

The intersection of trade and the environment is marked by the approaching conflict between two important values — the protection of the environment and promotion of growth through free trade. This conflict is unnecessary. Addressing the two comprehensively, in a framework that recognizes that both are important, would ensure that the two values complement each other. There is one prerequisite to success: the recognition that free trade, like free markets, is a process through which protection of the environment can be achieved. Since free trade serves many substantive goals, an international trade regime with agreed principles offers the best opportunity for ensuring that resolution of conflicts provides all actors with information on the tradeoffs and achieves the fullest protection of the environment with the least possible harm to trade.¹²⁰

At a minimum, the Uruguay Round and future rounds of GATT should confront environment and trade issues.¹²¹ One suspects that negotiators during the various GATT rounds hesitated to move from broad principles to substantive goals because rationalizing competing objectives is a morass. However, the present benign neglect ill-serves the trade process. Nations and legislators are prepared to move forward, with or without the GATT negotiators. Like it or not, more detailed international principles that address trade and environmental issues are mandatory.¹²²

One possible approach would build on GATT's achievements.¹²³ The GATT principles have more than proven themselves over the last 50 years. However, a more specific framework that explicitly incorporates environmental values is long overdue.¹²⁴ Such principles could be considered as part of a reformed Article XX on exceptions to the general trade rules.

What would some of those principles look like? A few may be briefly highlighted. The most basic principle is that nominally environmental restrictions should not be adopted for the purpose of protecting domestic industries. However, since most legislators are usually smart enough to refrain

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from arguing that their bill violates GATT, all restrictions, even environmental restrictions, must justify their objective if their effect is to operate as a trade barrier. If the justification can be met, the restriction should be reviewed as to how the objective is achieved. For example, the ideas of "proportionality" or "least restrictive means" propounded in the Danish Bottles case¹²⁵ would compare means to ends. The GATT trade principles should be treated as imposing an obligation on member nations to ensure that every avenue has been explored to minimize trade distortions.

Whether within the GATT process or in separate international negotiations on environmental issues, several additional principles should govern trade and environmental policy. First, harmonization of environmental standards, regulations, and liability regimes should be actively sought. Second, the role of governments should be to enforce, not to micro-manage. Environmental policies should be market-oriented to the greatest extent possible. Standards should be "performance" standards as opposed to technology-forcing standards. Third, the "polluter pays principle" needs to be recast as a true cost-internalization measure. Though pleasing as rhetoric, it presently masks difficult issues as to who really benefits or loses from polluting practices. The principle is rendered nonsensical when applied retroactively. Finally, a process must be established that provides credible multilateral enforcement mechanisms at the international level. The unilateral use of trade policy, either for protectionist aims or for "punishing" environmental recalcitrants, should be avoided. However, to the extent that nations agree to harmonize standards and otherwise abide by the principles embodied in GATT, it will be necessary to treat trade distortions as deserving of a multilateral response.

1. For a discussion of NAFTA, see infra notes 80-111 and accompanying text.

2. Policymakers have also recently begun to focus on these issues. See, e.g., Ministerial Communique of the OECD Environmental Committee (Jan. 31, 1991) ["International trade was singled out by Ministers for special attention. In an increasingly interdependent world, environmental policies are likely to impact on levels and patterns of trade: and there is growing use of trade policy instruments for achieving environmental policy objectives. On the other hand, trade policy can have important environmental implications." (emphasis in original).]

3. Throughout this Dialogue, "environment" is used as a convenient shorthand for what the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) refers to as "human health and the environment." See 42 U.S.C. § 9621(b)(1), ELR STAT. CERCLA 051.

4. General Agreement on Tariffs and Trade (GATT) with annexes and schedules, and protocol of provisional application. Oct. 30, 1947, 61 Stat. (5), (6), T.I.A.S. No. 1700, 55 U.N.T.S. 194 (entered into force Jan. 1, 1948). The terms of the original GATT will be cited as reprinted in GATT Law, pt. I.A. See SIMMONDS AND HILL, LAW AND PRACTICE UNDER THE GATT (Oceana Pub. Nov. 1990) [hereinafter GATT LAW].

5. See, e.g., Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 26 I.L.M. 1541 (entered into force Jan. 1, 1989) [hereinafter Montreal Protocol]; Basel Convention on the Control of the Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 28 I.L.M. 649 [hereinafter Basel Convention].

6. Eliza Patterson's companion Dialogue in this issue of The Environmental Law Reporter proposes specific measures to incorporate environmental considerations into the international trade framework.

7. Much of the following discussion in this section of the Dialogue draws on the identification of issues found in AMERICAN SOCIETY OF INTERNATIONAL LAW, ENVIRONMENT AND TRADE (Rubin and Graham, eds. 1982) [hereinafter ENVIRONMENT AND TRADE]. This work remains a useful exposition of the intersection of environmental and trade issues.

8. One example of the intersection between trade and environmental issues is trade in environmental goods and services. One observer has estimated that the international market for these types of goods and services may reach $ 600 billion annually within a decade. 13 Intl. Envt. Rep. (BNA) 536 (Dec. 19, 1990).

9. That the environmental agenda is increasingly international in scope is evident by agreements such as the Montreal Protocol, see supra note 5. Nonetheless, the tensions described in this Dialogue primarily arise when domestic environmental concerns are at issue.

10. See Patterson, supra note 6 for specific suggestions on how to achieve this.

11. See BRUNDTLAND COMMISSION, THE WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FUTURE (1987) at 8 [hereinafter BRUNDTLAND COMMISSION].

12. Id.

13. Id. at 43-46.

14. EUROPEAN COMMISSION TASK FORCE REPORT ON THE ENVIRONMENT AND THE INTERNAL MARKET, THE ENVIRONMENTAL DIMENSION (1990).

15. Id. at § 2.20.

16. Id. at § 2.4.2.

17. See, e.g., Hair, Environmentalism and Free Trade, 9 CONSERVATION EXCHANGE 2 (Spring 1991) ["]I[n some critical areas sound environmental policy is incompatible with pure free trade principles."].

18. See, e.g., Statement of the United States Council For International Business on An Integrated Approach to Environment and Trade Issues (Mar. 27, 1991) ["Open trade is indispensable to economic growth and therefore, a necessary element for enhanced environmental protection"); cf. Brundtland Commission, supra note 11, at 89 ]"The Commission's overall assessment is that the international economy must speed up world growth while respecting the environmental constraints."[.

19. See, e.g., Hair, supra note 17, at 3 ["Trade is not an absolute good."].

20. See THE FRASER INSTITUTE, ECONOMICS AND THE ENVIRONMENT: A RECONCILIATION (W. Block, ed. 1990).

21. See ANDERSON AND NEAL, FREE MARKET ENVIRONMENTALISM 61 (1991); ENVIRONMENT AND TRADE, supra note 7, at 25 [the demand for environmental protection is "a positive and elastic function of income."].

22. Proponents of a free trade agreement with Mexico have also made this point. See, e.g., 137 CONG. REC. S6555 (daily ed. May 24, 1991) (statement of Sen. Packwood) ["The more a country's economy grows … the more concerned it becomes with the environment."].

23. There are exceptions. See, e.g., art. IV of the Montreal Protocol, supra note 5, on differential treatment for developing nations.

24. Cf. BRUNDTLAND COMMISSION, supra note 11, at 3 ["Poverty is a major cause and effect of global environmental problems."].

25. Environmental rules designed to inhibit trade are infrequent. More typically, the environmental rule has an arguably trade-distorting effect.

26. See ENVIRONMENT AND TRADE, supra note 7, at 7-21.

27. Some who opposed granting President Bush fast-track authority to negotiate a free-trade agreement with Mexico did so on the grounds that disparate environmental laws imposed a burden on the American companies who could not compete without some protection. See, e.g., 137 CONG. REC. H3507 (daily ed. May 23, 1991) (statement of Rep. Huner) ["The environmental burden that is carried by American workers and business is manifest in every single product that we produce. That is not shared by Mexico…."]; Dohlman, The Trade Effects of Environmental Regulation, OECD OBSERVER Feb.-Mar. 1990, at 28-29 [hereinafter Dohlman]. Lack of environmental protection can itself be viewed as trade-distorting because it operates as a "subsidy." See ENVIRONMENT AND TRADE, supra note 7, at 48-49.

28. Efforts to see that harmonization is attainable, and that it is reached at high, rather than low, standards, may include providing environmental technology or loans to developing nations that abide by more restrictive standards. See, e.g., The Dilemma of Competitive Disadvantage, 9 THE CONSERVATION EXCHANGE 6 (Spring 1991).

29. See Dohlman, supra note 27, at 29.

30. S. 984, 102d Cong., 2d Sess. (1991). A similar effort was made during the movement of the Clean Air Act Amendments toward enactment. As enacted, § 811(a) of the Clean Air Act Amendments, 42 U.S.C. § 7612, Pub. L. No. 101-549 (1990) provides that compliance with the Act may impair "competitiveness," and that mechanisms should be sought to eliminate or reduce such competitive disadvantages. § 811(b) requires the President to conduct a study of these effects and to develop a strategy that analyzes different options, including "harmonization of standards and trade adjustment measures."

31. See discussion of the Subsidies Code, infra notes 71-73 and accompanying text. See also Hearing on Oversight of U.S. Position in GATT Negotiations Affecting American Manufacturing Jobs Before the Subcomm. on Oversight of Government Management of the Senate Comm. on Governmental Affairs, No. 1129, 101st Cong., 2d Sess., at 13-14, 36 (Sept. 26, 1990).

32. See ENVIRONMENT AND TRADE, supra note 7, at 8.

33. See infra notes 81-87 and accompanying text.

34. This understanding between nations is to some extent undermined where subnational units, such as states, are capable of accomplishing as much in the way of trade distortions as the national government. ENVIRONMENT AND TRADE, supra note 7, at 8.

35. See Patterson supra note 6 for a discussion of the environmental implications of the Standards Code.

36. See, e.g., EUROPEAN COMMISSION, REPORT ON UNITED STATES TRADE BARRIERS AND UNFAIR PRACTICES (1991). A recent example is the one year ban on importation of certain wines into the United States because they were treated with procymidone, a fungicide widely used outside the United States. Although the Environmental Protection Agency (EPA) eventually approved an interim tolerance level, the European Community claimed that the ban cost its wine exporters $ 200 million out of an annual trade worth $ 1 billion. See EUROPEAN COMMUNITY OFFICE OF PRESS AND PUBLIC AFFAIRS, EUROPEAN COMMUNITY NEWS (Feb. 1, 1991).

37. Case 302/86 EUR. COURT REP. 4607 (Judgment of Sept. 20, 1988).

38. Id. at 4608-09.

39. Id. at 4610.

40. Id. at 4629.

41. Corrosion Proof Fittings v. EPA, No. 89-4596 (5th Cir. complaint filed 1989).

42. See 54 Fed. Reg. 29460 (1989) (to be codified at 40 C.F.R. pt. 763, Subpart I).

43. 15 U.S.C. § 2605(a) (1988).

44. Brief of Amicus Curiae Government of Canada at 1, filed May 22, 1990 (No. 89-4596) [hereinafter "Canada Brief"].

45. Id. at 8-16. EPA has responded to Canada's allegations primarily on procedural grounds, arguing, inter alia, that Canada does not have standing to raise these issues and that the only proper mechanism for resolution is through dispute resolution as required under the international agreements. See Brief for Respondents, No. 89-4596, (filed Dec. 20, 1990) at 107-11, 229-32. In brief footnotes, EPA dismisses the substantive allegations by stating that the asbestos ban fits within those agreements, and that "GATT has no independent legal force under United States law." Id. at 112 notes 154, 113, and 156. See also Patterson, supra note 6, at 21 ELR 00000, for discussion of import bans under GATT.

46. See Dohlman, supra note 27, at 29.

47. See Art. IV of the Montreal Protocol; Basel Convention, supra note 5. The Bush administration recently proposed legislation to implement the Basel Convention. See Waste Export and Import Act of 1991, Env. Fact Sheet, EPA/530-SW-91-050 (May 6, 1991).

48. See Dohlman, supra note 27, at 29-30 [discussing exportbans on timber in Southeast Asia]; ENVIRONMENT AND TRADE, supra note 7, at 38.

49. See § 811(a) of the Clean Air Act Amendments of 1990, 42 U.S.C. § 7612, Pub. L. 101-549 (1990) [finding that "as a result of complying with this Act … such compliance may impair the competitiveness of certain United States jobs, production, processes, and products if foreign goods are produced under less costly environmental standards and requirements…."].

50. For a review of some attempts at quantifying the effect of environmental rules on output, see ENVIRONMENT AND TRADE, supra note 7, at 50-52.

51. See Dohlman, supra note 27, at 32; ENVIRONMENT AND TRADE, supra note 7, at 53.

52. See Patterson, supra n. 6, at 21 ELR 10599, for suggestions of how to incorporate the polluter pays principle into GATT.

53. For an analysis of products liability regimes, see Cortese and Blaner, The Anti-Competitive Impact of U.S. Product Liability Laws: Are Foreign Businesses Beating Us At Our Own Game?, 9 J.L. & COM. 167 (1989). See also Freeman and McSlarrow, The Proposed European Community Directive on Civil Liability For Waste — The Implications for U.S. Superfund Reauthorization in 1991, 46 BUS. LAW. 1 (1990).

54. For example, a version of a recent bill would have imposed CERCLA liability on U.S. corporations for costs relating to a release in a foreign country. Liability was likely to remain unshared with other potentially responsible parties since the provision focused only on those who exported from the United States. See Mounteer, Codifying Basel Convention Obligations Into U.S. Law: The Waste Export Control Act, 21 ELR 10085, 10097 (1991). Another suggestion was to allow suits against U.S. companies in U.S. courts for violations of U.S. law in Mexico. See Rich, Bordering on Trouble, ENVTL. F, May-June 1991, at 26, 31 [hereinafter Rich, Bordering on Trouble].

55. See Freeman and McSlarrow, supra note 53, at 26.

56. See Patterson, supra note 6, at 21 ELR 10599, for discussion of how GATT can be clarified and amended to incorporate environmental concerns.

57. A limited array of issues may be addressed in the Working Group on the Export of Domestically Prohibited Goods. The purpose of this group is to examine the need for and scope of regulations relating to the export of goods that are prohibited domestically for reasons of public health or protection of the environment. See The General Agreement on Tariffs and Trade and the Tokyo Round Agreements, ch. 2, 41st Report (U.S. International Trade Commission), reprinted in GATT Law, pt. III.C.5. at 20.

58. Mealey, EUROPEAN ENVIRONMENTAL LAW REPORT 10-11 (Mar. 27, 1991).

59. See Patterson, supra note 6, at 21 ELR 10599, for a discussion of the provisions of GATT relating to the environment.

60. This status is known as "most-favored nation treatment." GATT, art. I, § 1.

61. This is known as "national treatment." GATT, art. III, §§ 1 and 2.

62. See GATT, art. II and art. XI, § 1.

63. See GATT, art. XVI, §§ A and B.

64. See GATT, art. XX.

65. GATT, art. XX (b), (g).

66. See Patterson, supra, note 6, at 21 ELR 10599. It is for this reason that the proposal to reconvene the working group is reportedly aimed at amending Article XX. See Europe Information Service, EUROPE ENVIRONMENT, No. 352, at 3 (Nov. 1, 1990).

67. See Report of GATT Panel, No. L/6175 (June 5, 1987).

68. Id. at 24, 28.

69. Id. at 12.

70. Id.

71. Id.

72. Id. at 26.

73. GATT, art. XX.

74. Id.

75. See Patterson, supra note 6, at 21 ELR 10599.

76. See Canada Brief, supra note 44, at 17.

77. See infra notes 81-87 and accompanying text.

78. The formal title of the Subsidies Code is the Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the GATT (Apr. 12, 1979), reprinted in GATT Law, II.C.1. Not all members of the GATT have agreed to either the Subsidies or Standards Code. The United States' implementing legislation of the Subsidies Code is found at 19 U.S.C. §§ 1671-1671f.

79. Subsidies Code, preamble; see also id., arts. 1 through 8. "Countervailing duty" is defined as "a special duty levied for the purpose of off-setting any bounty or subsidy bestowed directly or indirectly upon the manufacture, production or export of any merchandise…." Id. n. 4.

80. Subsidies Code, art. 11(1)(a).

81. The formal name for the Standards Code is the Agreement on Technical Barriers to Trade (Apr. 12, 1979), reprinted in GATT Law, II.C.4.

82. See Standards Code, annex 1, pt. 1 [defining a "technical specification" as a specification which "lays down characteristics of a product such as levels of quality, performance, safety or dimensions."] Where, of course, the environmental standard involves a product ban, an argument may be made that the Standards Code applies. See, e.g., Canada Brief, supra note 44, at 17 [arguing that EPA's asbestos ban falls within, and violates, the Standards Code.].

83. Standards Code, art. 2.2.

84. Standards Code, art. 2.1.

85. See, e.g., Canada Brief, supra at note 44, at 18 [arguing that EPA's asbestos ban is inconsistent with consensus international scientific opinion, and is therefore an "unnecessary" obstacle to international trade.].

86. See Patterson, supra note 6, at 21 ELR 10599, for discussion of the environmental implications of the Standards Code.

87. See, e.g., Standards Code, art. 2.7.

88. "Fast-track" authority is a shorthand description of procedures mandated by U.S. trade laws that boil down to two requirements that are relevant here: 1) Congress had to vote by June 1, 1991, on whether to deny the President authority to negotiate agreements that (2) could only be approved or disapproved by Congress on an up or down vote with no amendments.

89. See 137 CONG. REC. H3589 (daily ed. May 23, 1991) [disapproving H. RES. 101 that would have denied the President fast-track authority]; 137 CONG. REC. S6829 (daily ed. May 24, 1991) [rejecting S. RES. 78 that would have denied the President fast-track authority.].

90. See Hearing Before the Senate Comm. on Finance, 102d Cong., 1st Sess. 10 (Feb. 6, 1991) (statement of Ambassador Carla A. Hills, U.S. Trade Representative).

91. See, e.g. Environmentalists Warn U.S.-Mexico Trade Deal May Gut Environmental Laws, INSIDE EPA, Nov. 30, 1990, at 14. But see Dornbusch, If Mexico Prospers, So Will We, Wall St. J., Apr. 11, 1991. ["If Americans are honestly concerned about the environment, the standard of living in Mexico and about democratization, they cannot escape the recognition that a thriving, open market economy will raise living standards, foster individual freedom, decentralize political power and allow people to organize around local issues."].

92. See, e.g., Rich, Bordering on Trouble, supra note 54, at 26; Speck, Free Trade: The Maquiladora Example, 9 THE CONSERVATION EXCHANGE 4 (Spring 1991); Lewis, Kaltofen, and Ormsby, Border Trouble: Rivers in Peril, A Report on Water Pollution Due to Industrial Development in Northern Mexico (National Toxics Campaign Fund) (May 1991). For a slightly shriller view, see Statement of John O'Connor, Executive Director, National Toxics Campaign Fund (Feb. 12, 1991) ["U.S. companies are renouncing two decades of environmental progress by running for the Mexican border where their maquiladora plants can operate just like the 'good old days' in the United States."].

93. See, e.g., 137 CONG. REC. S6620 (daily ed. May 24, 1991) (statement of Sen. Domenici). [Mexicans "want a clean and healthy environment — they don't want open sewers and pollution any more than we. Why do some think an agreement with Mexico is dangerous, threatening, or undesirable? Bluntly, I believe such an attitude is patronizing."].

94. See, e.g., Hearing Before the Subcomm. on Labor of the Senate Comm. on Labor and Human Resources and the Senate Comm. on Environment and Public Works, 102d Cong., 1st Sess. 3 (Apr. 23, 1991) (statement of Ellen Haas, Executive Director, Public Voice for Food and Health Policy).

95. See, e.g., Letter from House Majority Leader Richard Gephardt to President Bush at 7 (Mar. 27, 1991) [arguing that "lax environmental enforcement schemes … can, in fact, operate as a subsidy"]; Hearing Before the Subcomms. on International Economic Policy and Trade and Western Hemisphere Affairs of the House Comm. on Foreign Affairs, 102d Cong., 1st Sess. 7 (Mar. 6, 1991) (statement of Stewart J. Hudson, National Wildlife Federation testimony) [hereinafter National Wildlife testimony].

96. See Hearing Before the Subcomms. on International Economic Policy and Trade and Western Hemisphere Affairs of the House Comm. on Foreign Affairs, 102d Cong., 1st Sess. 7 (Mar. 6, 1991) (statement of Rep. Jim Kolbe).

97. United States-Canada Free-Trade Agreement, H.R. Doc. No. 216, 100th Cong., 2d Sess. (1988). See, e.g., National Wildlife Federation Testimony, supra note 95, at 3, 6 [arguing that the U.S.-Canada FTA has led to the "weakening" of environmental standards in Canada and safety standards in the United States].

98. See Art. 1201, FTA at 134.

99. Art. 601, pt. 1, FTA at 49.

100. Arts. 603, 609, FTA at 49 and 52.

101. Art. 609, FTA at 51.

102. See art. 604, pt. 1, FTA at 49.

103. Like the Standards Code, however, where the standard in question involves a product ban, the fit is closer. Thus, Canada has argued in the asbestos ban petition for review, that "to the extent that the EPA Rule bans the importation of products that do not cause unreasonable risks to life or health, the Rule is not necessary to achieve a legitimate domestic objective." Canada Brief, supra note 44, at 19.

104. Art. 708, pt. 1, FTA at 59.

105. Art. 708, pt. 1(a), FTA at 59.

106. Art. 711 (emphasis added).

107. Schedule 2, pt. d.

108. Schedule 7, pt. f.

109. Letter from President Bush to Senator Lloyd Bentsen, Chairman, Senate Committee on Finance (May 1, 1991) [hereinafter the Action Plan]. The President's letter responded to a joint letter from Senator Bentsen and Chairman Rostenkowski, House Ways and Means Committee (Mar. 7, 1991), requesting the administration's plan to address environmental concerns, among others.

110. See id. at tab 4 ["the Mexicans also need economic growth to generate resources to transform this ]environmental[ commitment into an effective program of regulation, enforcement, and public support."].

111. Id. at tab 4 ["The Government of Mexico will be less likely to get support from most Mexicans for environmental protection…. Rejecting the FTA will confirm the suspicions of those who argue that the U.S. and other developed countries are using environmental issues to perpetuate dependency."].

112. See id. at page 5 ["In parallel to the FTA negotiations, we intend to pursue an ambitious program of cooperation on a wide range of environmental matters."].

113. 137 CONG. REC. H3499 (daily ed. May 23, 1991) (statement by Rep. Drier).

114. Action Plan, supra note 109, at tab 4, page 9. The administration also pledged to include a representative of the environmental groups on an Advisory Committee on Trade Policy and Negotiations to the U.S. Trade Representative's office. Action Plan, tab 4, at 7.

115. Action Plan, supra note 109, at tab 4, page 10.

116. Mexico joined the GATT in 1986. See Introduction, GATT Law 19.

117. See Hearing Before the Subcomm. on Labor of the Senate Comm. on Labor and Human Resources and the Senate Comm. on Environment and Public Works, 102d Cong., 1st Sess 7 (May 8, 1991) (statement of Carla A. Hills, U.S. Trade Representative).

118. Action Plan,supra note 109, at 5.

119. See, e.g., 137 CONG. REC. H3611 (daily ed. May 23, 1991) (passage of H. RES. 146, expressing sense of the House with respect to objectives that should be achieved in the NAFTA). This nonbinding resolution calls for a NAFTA that will permit the U.S. "to maintain strict health and safety standards," and calls on the President when carrying out the Action Plan to "develop a joint program to address border environmental problems…." Id. at 3589-90.

120. For these reasons, the United Nations Environment Program is probably not as well suited for a comprehensive approach as some suggest. See, e.g., Hearing Before the Senate Comm. on Foreign Relations, 102d Cong., 1st Sess. 16 (May 15, 1991) (statement of James G. Speth, President, World Resources Institute).

121. Cf. BRUNDTLAND COMMISSION, supra note 11, at 84 ("The mandate[] of [the GATT] should include sustainable development"); Partnership for Sustainable Development: A New U.S. Agenda for International Development and Environmental Security, Environmental and Energy Study Institute (May 1991) at 23 [calling for GATT to address environmental issues, but also recommending that Article XX be clarified to allow "trade restrictions for genuine environmental reasons."].

122. A similar view was expressed by the Environmental Ministers at a recent meeting of the OECD: "International consultation and coordination is essential to ensure that national environmental policies, whether regulatory or market-based, do not give rise to unwarranted or inappropriate constraints to national competitiveness and international trade." Ministerial Communique of the OECD Environment Committee (Jan. 31, 1991).

123. See Patterson, supra note 6, at 21 ELR 10599. Some members of Congress dislike the GATT processes. See, e.g., 137 CONG. REC. H3527 (daily ed. May 23, 1991) (statement of Rep. Bentley). ["]I[magine what we will be going through as a Congress and as a nation when to the micromanagement of Canada, we add the Parliament of Mexico's requests and then, with GATT, 107 additional nations begin to meddle and interfere with our safety standards…."]; id. at 3581 (statement of Rep. Scheuer). [Environmental "decision]s[ will be made by a small bureaucracy in Rome, the codex alimentarius. And you can be sure that their standards will be based on the lowest common denominator."].

124. For a view that GATT is already moribund or that adding new areas of responsibility is probably futile, see Prestowitz, Tonelson, and Jerome, The Last Gasp of GATTism, HARV. BUS. REV., March-April, 1991, at 130.

125. See supra notes 37-40 and accompanying text.