CHAPTER 21
Environmental Law
Copyright © 2009 South-Western Legal Studies in Business,
a part of South-Western Cengage Learning.
Tension Between North and South
Environmental Agendas
• “South”
• “North”
• Developing countries
• Developed countries
view environmental
• Pushing environmental
concerns
with
some
concerns, legislation
skepticism
and treaties
• As a luxury
• As anti-development and
protectionism in disguise
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Consideration of Varying
Environmental Requirements
• What are some of the Differences in Regulatory
Schemes among nations?
– First vs. Third world standards.
• Environmental Law as an Anticompetitive Tool.
– Both EU and USA accused of using environmental
impact as a trade barrier. (Bermuda shorts pollute
pools in Grenoble, France?)
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Environmental Law: A No- Growth
Anti-Development Tool?
• Developing countries are willing to pollute as a
price of development.
• Want to produce at lower cost to compete.
• Examples: China and coal burning.
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Traditional International Remedies
• International regulation is the only real solution
for a problem that is not contained by national
boundaries.
• The Polluter Pays: Responsibility for Pollution.
See the Trail Smelter Arbitration case.
• Regulation of products: Lobster from Canada
• Litigation against polluters near site or in home
country: Aguindo v. Texaco
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Regulation of Products that Violate
Environmental Objectives
• More frequent method of ‘counterattack’ is for
conservation-minded nation to ban/limit importation of
offending products. Reasons:
– Either the product itself is environmentally unsafe, and/or
– The process used to make the product is environmentally
unsafe.
• This type of attack is limited by GATT. See the
Lobsters from Canada case. Panel determined
measures were only “internal” and not a counterattack.
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U.S.- Import Prohibition of Certain
Shrimp by Malaysia (WTO)
• U.S. had requirements that shrimp trawlers adopt
TEDs or turtle excluder devices. Malaysia was not
certified as having adopted a program. They
challenged the U.S. procedure. The WTO panel
ruled that the revised guidelines were not
“unjustified discrimination” and Malaysia appealed
to the WTO Appellate Body.
• WTO upheld the ruling. Why?
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U.S. Standards for Reformulated and
Conventional Gasoline
• The EPA enacted the “Gasoline Rule” which
provided a different more stringent standard
for foreign refiners than domestic refiners.
• Venezuela challenged the Gasoline Rule as
an “arbitrary or unjustifiable discrimination”
under Article XX of GATT. A WTO panel ruled
in favor of Venezuela and the U.S. appealed.
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U.S. Standards for Reformulated and
Conventional Gasoline
• The Appellate Body found that the “Gasoline
Rule” was discriminatory and a “disguised
restriction of international trade.”
• What result?
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Litigation Against Polluters
• Polluters in an Affected Country.
– See the Judgment of February 23, 1988 case, which
allowed Austrian landowners to sue Czechoslovakia for
nuclear plant emissions.
• Polluters in Polluter’s Home.
– See the Aguinda v. Texaco case, in which victims of
environmental ‘misdeeds’ could sue in the U.S. – IF the
activities had occurred in the US.
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Emerging Problems and Solutions
• Regional Approaches:
– National laws.
– NAFTA side agreement: CEC. See the Hudson
River Audubon Society of Westchester case.
– EU and ASEAN.
– Developments in Middle East and Africa.
– Initiatives by Multilateral Agencies.
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Emerging Problems and Solutions
• Global Solutions.
– World Trade Organization.
– International Court of Justice. See the Pulp
Mills on the River Uruguay (Argentina v.
Uruguay).
– Global Ban on Toxic Substances.
– The BASEL Convention.
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Emerging Problems and Solutions
• Global Solutions (continued):
– The Convention on International Trade in
Endangered Species (CITES).
– The Montreal Protocol.
– Climate Control Convention.
– The Alternative Energy movement.
– What are the general prospects for global
environmental solutions?
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a part of South-Western Cengage Learning.
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