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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.
[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;
Peter Montague is the editor of Rachel's
Environmental and Health Weekly, in which this article originally appeared.
For back issues of this weekly visit their website http://www.rachel.org
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