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Journal of International Economic Law Advance Access originally published online on May 16, 2007
Journal of International Economic Law 2007 10(2):285-316; doi:10.1093/jiel/jgm007
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© Oxford University Press 2007, all rights reserved

The WTO, Science, and the Environment: Moving Towards Consistency

Andrew Green* and Tracey Epps**

* Assistant Professor, Faculty of Law, University of Toronto. Email: a.green{at}utoronto.ca
** Lecturer, Faculty of Law, University of Otago. Email: tracey.epps{at}otago.ac.nz


  Abstract

Governments are increasingly using taxes to address a variety of environmental concerns. World Trade Organization (WTO) rules recognize that, like regulatory instruments, governments may use taxes for protectionist purposes. The rules are designed to prevent protectionist behaviour while allowing use of such instruments for genuine purposes such as environmental protection. Interestingly, however, there are some notable anomalies in the rules arising from differential evidentiary requirements in different situations. First, the rules are different depending upon whether a country's measure aims to protect on one hand human, animal, or plant health; or on the other, the environment. Second, the rules are stricter where a country's measure takes the form of a regulation than where it takes the form of a tax. The article argues that there is no principled rationale for the differential evidentiary requirements by instrument (regulation versus taxes) or area (health versus environment) but finds that there may be both a historical and political economy explanation. It also discusses the desirability for consistency in WTO law across instruments and risk-related policy areas.

The authors wish to thank Michael Trebilcock and two anonymous reviewers for their helpful comments on earlier versions of this article.


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