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#675 - The WTO Turns Back the Clock, 03-Nov-1999

The World Trade Organization (WTO) has effectively canceled the
three mainstays of modern environmental protection: (1) pollution
prevention using bans, (2) the precautionary principle, and (3)
the right-to-know through labeling. In effect the WTO has erased
30 years of work by environmental activists and thinkers, forcing
us back to an earlier era of "end of pipe" pollution regulations
based on risk assessment.

Starting in the mid-1960s, the U.S. Congress created a pollution
control system based on risk assessments and "end of pipe"
regulations. As evidence of harm accumulated (a process sometimes
called "lining up the dead bodies"), the government conducted
risk assessments to decide how much toxic pollution was
acceptable. Corporations then added filters and scrubbers to
reduce their harmful discharges to "acceptable" levels.

Large corporations learned to live with this system; they even
turned it into a competitive advantage. As the number of
regulations multiplied, large polluters hired staffs of lawyers
and engineers who did nothing but worry about the regulations.
Small corporations could not afford to hire specialists to
formally participate in rule-making procedures, compliance
disputes and lawsuits. For small firms, compliance became a
paperwork nightmare and a burdensome expense. Big firms learned
to thrive under the rules.

Under the end-of-pipe, risk-based regulatory system, regulations
were always a compromise between what the scientific data
indicated and what the corporate polluters were willing to
accept. Regulatory officials would propose a numerical standard
based on risk assessments, the corporate experts would challenge
the proposal, and ultimately a regulation would emerge that was a
compromise between the two positions. On the face of it, such a
system could never fully protect public health or the
environment.

Large corporations had one additional advantage in these
regulatory negotiations: they were sitting across the table from
a government bureaucrat who was underpaid and often overworked.
After the regulatory negotiations were finished, the corporation
might offer the government official a well-paid position as
"Vice-President for Environmental Compliance." Knowing that the
future might bring such a job offer, regulatory officials were
inclined to play ball with the polluters. In fact, government
officials went to work for the polluters so frequently that the
practice earned a special name: the revolving door.

In sum, large corporations learned how to make the regulatory
system work for them. But the system never worked well to protect
the environment. In fact, during three decades of environmental
protection based on risk assessments and end-of-pipe regulations,
the entire planet became contaminated with low levels of
industrial poisons. Persistent organic pollutants like DDT, PCBs,
and synthetic compounds of lead and mercury found their way to
the deepest parts of the oceans, to the highest mountaintops and
to the most inaccessible reaches of the poles. No place on Earth
remained pristine. As these exotic poisons entered food chains,
they collected in the bodies of the largest predators, chief
among them humans. As a result, even today if human breast milk
were bottled and offered for sale it would be subject to ban by
the U.S. Food and Drug Administration as unfit for human
consumption. (Breast milk is still by far the best nourishment
for an infant; despite the presence of low levels of industrial
poisons, breast milk is still far healthier for a baby than any
alternative.) (See REHW #193.)

During this period, the incidence of childhood cancers increased
at the rate of about 1% per year. Immune system disorders in
children, such as asthma, increased even more rapidly. Many
observers of the regulatory dance began to believe that bathing
our children in industrial poisons was not such a good idea, so
new principles of environmental protection were invented:

1) In the early 1960s, true pollution prevention was born. The
U.S. banned above-ground nuclear weapons tests to eliminate
radioactive fallout. By the mid-1970s, the atomic fallout
precedent was being applied to banning DDT, PCBs, leaded gasoline
and several other dangerous toxicants. Bans are the essence of
pollution prevention. But bans leave no wiggle room for the
polluters.

2) The precautionary principle. In 1976, the U.S.
Congress voted against a proposal to create a supersonic
transport airplane (the SST). Based on evidence suggesting that
the SST might harm the upper atmosphere and might lay down a
swath of "sonic booms" everywhere it flew, Congress took
precautionary action and voted down the SST proposal.

The precautionary principle moves the burden of proof of safety
onto the proponents of a new project, a new technology or a new
chemical. The public does not have to "line up the dead bodies."
Instead the polluters have to convince the public and the
government that the number of dead bodies in future will be
acceptably small. In simplest terms, the precautionary principle
says, "Better safe than sorry," the complete opposite of risk-based
regulations.

Corporate polluters resent this innovative approach because now
they must bear the burden of proof of safety. Their hands are
tied unless they can convince the public and the government that
their next innovation will be acceptably safe.

3) Eco-labeling. Labels on cans of tuna fish now say
"dolphin-safe." Many products in the grocery store now say
"organically grown." Paper says "recycled." Labels that say "Made
in Burma" signal that this product may have been made with slave
labor. Such labels represent a market-based approach --empowering
people with information so they can vote with their
dollars to protect the things they value. In essence,
eco-labeling says people have a right to know the effects of
their purchases on the natural environment, on their health, and
on society. However, an informed citizenry can threaten corporate
dominance.

Thus all 3 of these modern principles are unsatisfactory from the
viewpoint of large corporations because they shift the advantage
to the public in protecting health and environment. They impose
societal values on the economy.

To get rid of these troublesome new principles of environmental
protection and to force the world back to end-of-pipe regulatory
controls based on risk assessments, corporations have now created
the WTO. In only five years of operation the WTO has gone a long
way toward declaring each of these three principles illegal. Now,
according to current WTO rules, the only legal system for
pollution control is the old end-of-pipe system based on risk
assessment.

WTO principles that undermine modern environmental protection
include these:

1) WTO rules say that the method of production cannot be used as
a basis for discriminating against a product. The WTO has
formally established this principle in several decisions. When
the U.S. refused to allow the importation of tuna fish caught in
nets that needlessly killed millions of dolphins, Mexico took it
to the GATT (the predecessor of the WTO) and won. The ruling said
it was not legal to discriminate against canned tuna based on the
methods by which the tuna was produced. Since then, the WTO has
reaffirmed this principle several times.

As Ralph Nader's Public Citizen has written, "The ability to
distinguish among production methods is essential to
environmental protection and environmentally sensitive economic
policies... Trade rules that forbid the differentiation between
products based on production methods make it impossible for
governments to design effective environmental policies."[1,pg.23]
The WTO has effectively tied governments' hands -- a corporate
polluter's dream.

2) Restrictions on goods must be the least-trade-restrictive
possible and the restrictions must be "necessary." To prove that
a regulation is "necessary," a country must prove that there is a
world-wide scientific consensus on the danger, and a WTO tribunal
of corporate lawyers must agree that the proposed regulation is a
reasonable response to the danger. Furthermore, any regulation
must be the "least trade restrictive" regulation possible.
Obviously, this puts an almost-insurmountable burden of proof on
any government that wants to protect its citizens and its
environment from harm. Thus the WTO has shifted the burden of
proof back onto the public. The dead bodies must be lined up once
again.

The effect of these rules is that a product cannot be banned. It
can be regulated using risk assessment but it cannot be banned.
This was first established when the European Union (EU) tried to
ban the import of U.S. meat which has been treated with hormones,
some of which are carcinogenic. The Europeans said there was
evidence that certain hormones can cause cancer (which is true)
and they said they wanted to set a "zero risk" standard for their
citizens for this hazard.

The Clinton/Gore administration challenged the European ban
before a WTO tribunal. The WTO ruled that the Europeans did not
have a scientific risk assessment that showed convincingly that a
zero risk standard was warranted. That opened the door to ending
all bans.

Now France wants to ban asbestos, but is being challenged by
Canada on several grounds; one is that there is no worldwide
scientific consensus that a ban is warranted. Denmark has
announced its intention to ban 200 lead compounds, but the
Clinton/Gore administration is challenging this as illegal because
there are less trade-restrictive ways to achieve the same public
health objective, Mr. Gore says. The European Union has said it
wants to ban lead, mercury and cadmium in electronic devices, but
the Clinton/Gore administration is challenging this before the
WTO. Mr. Gore's position is that bans are illegal restraints on
trade and that regulations based on risk assessment are the only
legal way to control environmental hazards. There is ample
precedent for this position in WTO decisions.

3) Labeling -- even voluntary labeling -- is on the way out. The
European Union has now passed a law requiring food containing
genetically modified organisms to be labeled as such. The
Clinton/Gore administration has said formally that this is an
illegal restraint of trade because there is no difference between
normal food and genetically modified food. (But if there were no
significant differences, the U.S. Patent Office could not legally
issue patents for genetically modified foods -- and such patents
are now routinely issued.)

When the EU refused to allow hormone-treated meat from the U.S.
to be sold in Europe, their fallback position was that they might
allow the sale of hormone-treated meat if it were clearly
labeled. The Clinton/Gore administration says this would
illegally discriminate against U.S. meat by labeling it according
to its method of production.

The Clinton/Gore administration officially argues that even
"country of origin" labels are WTO-illegal because they allow
consumers to discriminate against certain countries (like Burma
with its propensity for slave labor). The WTO has not yet ruled
that "eco-labels" are illegal, but the hand-writing on the wall
is very clear. It appears to be only a matter of time before the
modern era of environmental protection is fully rolled back.

It also appears that the only way to protect the environment in
future will be to dismantle the WTO.

--Peter Montague (National Writers Union, UAW Local 1981/AFL-CIO)

=====

[1] Lori Wallach and Michelle Sforza, WHOSE TRADE ORGANIZATION?:
CORPORATE GLOBALIZATION AND THE EROSION OF DEMOCRACY (Washington,
D.C.: Public Citizen, Inc., 1999). ISBN 1582310017; telephone
(202) 588-1000.

[2] Jim Puckett, WHEN TRADE IS TOXIC: THE WTO THREAT TO PUBLIC
AND PLANETARY HEALTH (Seattle, WA: Asia Pacific Environmental
Exchange and Basel Action Network, 1999). Available after Nov. 4
from www.ban.org. For a printed version contact jpuckett@ban.org;
it will be mailed to you if you send a donation to Basel Action
Network (online donation) or by mailing a check donation to:
Basel Action Network, c/o Asia Pacific Environmental Exchange,
1827 39th Ave. E., Seattle, WA. 98112.

Descriptor terms: wto; free trade; pollution prevention;
precautionary principle; regulation; labeling;