Resolving The Trade And EnvironmentDebate: In Search Of A Neutral Forum AndNeutral Principles

The clash between international trade regulation and environmental protection has come to the forefront of international public interest in recent years, fueled in large part by the Uruguay Round of negotiations under the General Agreement on Tariffs and Trade (GATT), the North American Free Trade Agreement (NAFTA), and some recent trade challenges, most notably the Tuna/Dolphin GATT dispute settlement proceeding. In each of these trade matters, trade rules or interpretations of them are being expanded in ways that threaten the viability of environmental regulations. Moreover, these trade developments are part of a trend in which the international trade regime is reaching out to subject environmental regulations to its rules and processes. Not surprisingly, the environmental community has expressed outrage at seeing its hard-fought gains threatened by expanding trade rules.The environmental community's outrage stems from the fact that existing trade rules and processes are not well suited to the nature of environmental problems and regulations. Professor John Jackson acknowledges that there is an imperfect fit, at best, between the trade regime and environmental protections. Thus, he recognizes that if the trade regime is to determine the vitality of environmental measures, extensive changes must be made both to the governing trade rules and to the processes by which such rules are developed and implemented.Professor Jackson's solution, however, is to accept the preeminence of the trade regime and to make relatively minor adaptations to it over time to make it more hospitable to environmental regulations. In the meantime, existing and anticipated environmental regulations will be subjected to the trade regime, and accordingly may be undermined or derailed by the trade rules. Ultimately, the adaptations that are made to the trade system, assuming there are any, will likely not go far enough toward ensuring the viability of much-needed environmental regulation. For these reasons, allowing the trade system to subsume environmental matters within its purview, in the hope that the trade system will adapt itself to be more hospitable to such matters in the future, is an unacceptable course of action.The trade and environment debate should begin with the fundamental question--which Professor Jackson and many others associated with the trade world assume away--of whether the trade regime should be the preeminent system to which environmental protections are subordinated.(1) In addressing this question, the issue of process is key. For that reason, this article begins by describing the normal context in which environmental measures are adopted and implemented, and how the trade system offends the notions of fair play that are the norm in that arena. Next, this article discusses how existing trade rules and processes are stacked against effective solutions to environmental problems. As a result of the biases inherent in trade processes and rules against environmental measures, the preeminence of the trade system over environmental regulations cannot be accepted, even with the promise of the types of modifications suggested by Professor Jackson. Instead, conflicts between trade and the environment must be resolved in a neutral forum that is composed of both trade and environmental government officials, and that has meaningful input from environmental organizations.I. THE UNDERPINNINGS OF SUCCESSFUL ENVIRONMENTAL REGULATION: INFORMATION, OPENNESS, AND PUBLIC INPUTAn open regulatory system is essential to the development of effective environmental regulations because such regulations are generally adopted in response to scientific evidence of a problem and a public demand for action. Moreover, historically few powerful economic interests with access to governmental decisionmakers have had a stake in promoting effective environmental solutions. To the contrary, such vested interests have often had a very strong interest in thwarting such solutions, and have had the economic and political power to have that effect. …