The WTO Turns Back the Clock
Rachel's Environment and Health Weekly
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
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 mountain tops 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.)
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
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." 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
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
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
It also appears that the only way to protect the environment
in future will be to dismantle the WTO.
RACHEL'S ENVIRONMENT & HEALTH WEEKLY #675
November 4, 1999
P.O. Box 5036, Annapolis, MD 21403
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