NIS, WTO, SPS, WIR*: Does the WTO Substanstially Limit the Ability of Countries to Regulate Harmful Non-Indigenous Species?

Abstract

Do global trade regimes restrict countries from passing and enforcing their own strong domestic environmental standards? This Essay attempts to reign in the issue of the relationship between trade and domestic environmental policy by focusing on one test case - the new area of regulating harmful invasive species - and then asking whether current global trade regimes, and in particular the World Trade Organization (WTO) Agreement, would prevent the United States (or any other country) from implementing protective new laws and policies to address this new environmental concern. Part I sketches the new recognition in the United States (mirrored by increased awareness elsewhere) of the substantial environmental and economic threats posed by the introduction and spread of harmful non-indigenous species, and summarizes current proposals to develop new policies in this area. The proposals include recommendations that would impose additional barriers to trade. Part II focuses on the part of the WTO Agreement most likely to be the basis for challenging such a policy. The third part considers whether the WTO regime encourages a sound balance between encouraging rational policymaking and respecting national policies and preferences with regard to the environment (and to the health, safety, and welfare of its citizens more generally). The final Part asks whether challenges to an aggressive U.S. invasive species policy would be likely to succeed, and notes important structural limitations on the WTO process that make the answer hard to predict.