CHAPTER 21 Environmental Law

Copyright © 2009 South-Western Legal Studies in Business, a part of South-Western Cengage Learning.

CHAPTER 21 Environmental Law


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Tension Between North and South Environmental Agendas

• “North”• Developed countries• Pushing environmental

concerns, legislation and treaties

• “South”• Developing countries

view environmental concerns with some skepticism

• 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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• 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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• 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?

CHAPTER 21 Environmental Law

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