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Monday, November 29, 1999
By ROBERT McCLURE
Activists' opposition to the WTO has focused on decisions handed down by the organization's dispute-resolution panels, which swing into action when one country complains about another's trade policies.
These three-member panels conduct investigations much like an American court case, with one important distinction: They lack democratic safeguards that Americans consider routine.
Also see our WTO photo galleries.
"Let me make sure this is clear: Three appointed corporate lawyers, meeting in secret, can invalidate laws passed by Congress and signed by the president of the United States," wrote Denis Hayes, a founder of Earth Day and of the modern environmental movement in America.
Clinton administration officials say environmental activists are confusing the potential for harm with actual harm.
"The WTO decisions, at least the ones that the United States has been involved in, have not weakened environmental protections," said Carol Browner, administrator of the U.S. Environmental Protection Agency.
The three most high-profile environmental cases:
The solution involved sending inspectors overseas to check on how the gas was being produced -- at taxpayers' expense, with money taken from EPA's enforcement budget, Goldman said. The EPA admitted that changing the rule brought the "potential for the quality of imported gasoline to degrade from an emissions perspective."
Environmentalists successfully challenged the State Department in court, saying the law dictated that all countries exporting shrimp here, not just those in the Caribbean, must use the so-called Turtle Excluder Devices. The State Department gave Asian countries four months to start using TEDs, and offered no technical assistance. The Asians challenged this at the WTO and won. Now the State Department is trying to work out a shipment-by-shipment process for certifying that shrimp are turtle-safe -- a process environmentalists decry as unenforceable.
That change will go into effect early next year. But as in the shrimp case, environmentalists reject this as an enforcement nightmare. According to such a rule, environmentalists say, a single observer on a tuna boat the size of a football field is expected to know whether any dolphins are killed or "seriously injured" in a net with a circumference of over a mile.
The three largest tuna sellers -- Starkist, Chicken of the Sea and Bumblebee -- have pledged not to sell tuna caught that way, said Rina Rodriguez of Defenders of Wildlife. Those companies use tuna caught with methods that steer clear of any damage to dolphins, she said. But still, the change in U.S. law appears to have affected the industry, as the number of dolphin deaths related to tuna fishing is on the rise, Rodriguez said.
Are the Clinton administration and WTO really open to eco-friendly changes in trade rules?
Earlier this year the WTO convened a panel on environmental issues that concluded, "Environmental conditions are worsening daily and the dialogues within these walls have failed to proceed quickly enough to stave off damage," minutes of the meeting state.
Then last month, the WTO issued a report that made some surprisingly candid admissions.
For example, it rejected the free-traders' mantra that increasing incomes in developing countries necessarily leads to more environmental protection.
"Not all kinds of economic growth are equally benign for the environment," the WTO report concluded.
The Clinton administration also turned up the rhetorical volume in an effort to appease environmentalists.
"The president has been very clear that it is important to integrate environment and public-health protection into the WTO," the EPA's Browner said in Seattle last month.
But her message was mangled. Form triumphed over substance at the "town hall" in Seattle. What had been billed as dialogue turned out to be a stilted session of long-winded answers to written questions. By virtually every account, it was a flop.
Clinton administration officials say environmentalists are not giving them enough credit for fighting an uphill battle for environmental protections in the WTO.
Activists, though, point out that the United States is the proverbial 800-pound gorilla in the WTO.
"The United States has not been a passive victim of these trade rules," said Goldman, of Earthjustice. "It has been an active proponent when it has served our economic interests."
In a final shot at reassuring environmentalists, the administration this month made what it considered "a major announcement." Vice President Al Gore, just before hopping on a plane to leave Seattle, announced that thorough environmental reviews would be conducted on all proposed trade pacts in the future.
Just more window dressing, environmentalists sniffed.
"It's happened because of public pressure for making the process more democratic, but it's far too little, too late," said Carol Dansereau of the Washington Toxics Coalition.
The crux of the administration's position is still that it favors trade over other considerations, at least when it comes to the WTO.
Environmentalists asked the Clinton administration to push for WTO rule changes to explicitly protect the environment. But the administration rejected activists' calls for stronger WTO rules, saying those already in place are "fully consistent" with strong environmental protections.
Senior administration officials said they feared that trying to change WTO rules to give environmental regulators more power would allow bureaucrats in poorer countries to use environmental excuses for protectionist trade policies.
In short, they feared that U.S.-based corporations might lose some business.
How much sovereignty should a nation give up in the name of trade?
Activists point out that the WTO is set up to require countries to yield a bit of their sovereignty -- that is, their ability to say no to another nation's goods.
"We're for rules -- we just don't have the right rules," said Dan Seligman of the Sierra Club's international trade office.
What the WTO views as discrimination, environmentalists see as protection, he said.
"Environmental regulations intend to, and by design, discriminate," Seligman said. "That is their purpose. They are meant to discriminate against polluters and in favor of clean industry."
Who should have to prove what?
Free-traders point out that the WTO allows countries to discriminate against products when this is "necessary to protect human, animal or plant life or health," or if it is "relating to the conservation of exhaustible natural resources." The condition: Such restrictions must not be "arbitrary or unjustifiable."
These rules did not prevent the United States from obtaining a WTO ruling against the European Union over a prohibition on the sale of beef produced with the aid of growth hormones. Studies have shown a higher incidence of cancer in mice treated with these hormones.
But the WTO ruled there was no credible evidence that eating beef treated with the hormones was harmful to humans.
Environmentalists cite this case as proof that the WTO is abandoning the "precautionary principle," which holds that regulators should be able to build in a margin of safety when they are unsure about the facts.
But free-traders say the WTO ruled correctly in the beef-hormone case, adding that restrictions on trade based on speculation about safety would allow protectionists to run wild.
Brink Lindsey of the Cato Institute, a libertarian-leaning think tank, proposes a compromise: Allow goods in, but label them. Let consumers choose.
"If consumers are worried about these things -- even if most scientists say there is nothing substantive to worry about -- it seems me that labeling is a way to make everybody happy," he said.
It remains to be seen, though, whether such an approach would withstand WTO scrutiny.
Is the power of the purse a legitimate way to influence policy?
Ever since a group of Irish peasants seeking lower rents quit doing business with their landlord, a retired English military man named Lord Charles Boycott, it has grown increasingly common for consumers to use the same tactics.
More than a century later, American consumers still favor the boycott tactic. Three-quarters of Americans responding to the recent University of Maryland poll supported a nation's ability to restrict imports based on environmental effects of their production.
Free-traders doubt the effectiveness of a boycott in international trade.
Now, though, questions are being raised about whether such unilateral actions, even if they are based on international treaties, are even legal under WTO rules.
"If you're imposing your environmental values on another country and making their observations of your norms a condition for access to your market, the WTO is generally hostile to that," said Lindsey, of the Cato Institute.
For example, Canada threatened action against the state of Minnesota when the state required a threshold of recycled content in paper it was buying. Minnesota backed down.
But there is a contradictory example in WTO case law. An important but often-overlooked part of the WTO ruling in the shrimp-turtle case held that it was OK for the United States to discriminate between shrimp caught in ways that kill sea turtles, and shrimp caught in ways not likely to hurt the turtles. But the United States was arbitrary in applying the rules, the WTO found.
So it remains an open question whether WTO rules will permit such boycotts.
Similarly, environmental activists point to developments that might negate the eco-labeling solution:
The face-off over trade and the environment will come to a head in Seattle when the Clinton administration pushes a small part of the environmentalists' agenda: for the WTO to open up its processes.
"We agree that the WTO is more closed than it ought to be," said Jennifer Havercamp, assistant U.S. trade representative. "We feel that the viability of the institution is threatened if it doesn't become more open."
How far this goes will depend on other members of the WTO. This "transparency agenda," as it is called, already is meeting resistance from the European Union and poor countries, U.S. officials say.
Said Hayes, the Earth Day founder: "A safe, healthy environment -- that's not a right that is enshrined in the Constitution, but politicians who have ignored it have done so at their peril. And so, too, may international trade negotiators ignore it at their peril."
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SEATTLE POST-INTELLIGENCER
The cases are not heard in public. Environmental groups and other outsiders are not allowed to clarify their positions. Usually the panel members are well-versed in trade; there is no requirement for environmental expertise. Overall, activists say, it reeks of a Star Chamber.
For more coverage, see our WTO index.

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