Environmentally related trade disputes between the United States and Canada

American Review of Canadian Studies

Volumn 27, Issue 2, 1997, Pages 271-292

  Vogel, David ^a   Rugman, Alan M ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0008262079     PISSN: 02722011     EISSN: None     Source Type: Journal    
DOI: 10.1080/02722019709481500     Document Type: Article

References (64)

1. David Vogel, Trading Up: Consumer and Environmental Regulations in a Global Economy (Cambridge: Harvard University Press, 1995).
2. Alan M. Rugman, Environmental Regulations and International Competitiveness: Strategies for Canada's West Coast Forest Products Industry, The International Executive 37 (1995): 451-465.
3. Both this and the following two cases are discussed in detail in Trade and Environment: Conflicts and Opportunities (Washington: Congress of the United States, Office of Technology Assessment, 1992), 82-85.
4. See also John Manard, Jr.,GATT and the Environment: The Friction Between International Trade and the World's EnvironmentThe Dolphin and Tuna Dispute, Tulane Environmental Law Journal 5 (1992): 400-404-
5. GATT, International Trade 1990-91, Volume 1 (1992), 26.
6. See U.S. Congress, Office of Technology Assessment, Trade and Environment: Conflicts and Opportunities (Washington: U.S. Government Printing Office, 1992), 87-88;
7. Marcia Valiante and Paul Muldoon, Annual Review of Canada-U.S. Environmental Relations-1989, International Environmental Affairs 2 (1990): 253-254.
8. C. Ford Runge, Trade Protectionism and Environmental Regulations: The New Nontariff Barriers, Northwestern Journal of International Law and Business 11 (1990): 56.
9. Northwestern Journal of International Law and Business. Ibid.
10. Northwestern Journal of International Law and Business. Ibid., 57.
11. Northwestern Journal of International Law and Business. Ibid., 57.
12. Jennifer Lewington, Trade Mechanism Little Help in U.S. Fish Dispute, Globe and Mail (10 November 1989): B4.
13. Globe and Mail. Ibid.
14. Globe and Mail. Ibid., Bl.
15. Madelaine Drohan, Canada Agrees to Allow Fish to be Sold Directly for Export, Globe and Mail (7 November 1989): B1.
16. Quoted in Steven Shrybman, Selling the Environment Short, Canadian Environmental Law Association (January 1991): 8.
17. Canadian Environmental Law Association. Ibid., 101.
18. Quoted in Manard, 409.
19. Konrad von Moltke, Dispute Resolution and Transparency, The Greening of World Trade, A Report to EPA from the Trade and Environment Committee of the National Advisory Council for Environmental Policy and Technology (1993), 122.
20. The Greening of World Trade, a Report to EPA from the Trade and Environment Committee of the National Advisory Council for Environmental Policy and Technology. Ibid., 410.
21. Naomi Rohi-Arriaza, Precaution, Participation and the Greening of International Trade Law, Journal of Environmental Law and Litigation 7 (1992): 70.
22. Journal of Environmental Law and Litigation. Ibid.
23. In the Matter of: Puerto Rico Regulations on the Import, Distribution and Sale of U.H.T. Milk from Quebec, USA-93-1807-01,3 June 1993. Ultra high temperature [hereinafter UHT] milk is produced by heating milk to 138 degrees Celsius for a minimum of two seconds. The milk is then cooled and packaged in hermetically sealed boxes. UHT milk has a shelf life of between six and twelve months at room temperature.
24. The FTA (and subsequently NAFTA) established a number of committees, subcommittees, and technical working groups to facilitate the implementation of trade commitments.
25. Interview with Agriculture Canada official, 22 May 1997.
26. Part of the reason this process was so time-consuming was that the issue of UHT milk from Quebec had been tied to the larger issue of trade in fluid milk between Canada and the United States. The resolution arrived at by Canada and the United States included, first, a declaration of equivalency for UHT milk from Quebec and, second, an equivalency process for all fluid milk shipped between the United States and Canada. From a trade-law perspective, it is highly questionable whether these two issues should have been tied for their resolution. Interview with Agriculture Canada official, 22 May 1997.
27. Interview with Agriculture Canada official, 19 April 1996.
28. Michael Hart, Bill Dymond, and Colin Robertson, Decision at Midnight: Inside the Canada-V.S. Free Trade Negotiations (Vancouver: University of British Columbia Press, 1995).
29. Andrew D.M. Anderson, Seeking Common Ground: Canada-U.S, Trade Dispute Settlement Policies in the Nineties (Boulder, CO: Westview Press, 1995).
30. Barrie McKenna, Drew Pagan, and Patricia Lush, Softwood Tax is Best Deal in a Bad Situation, Globe and Mail (3 April 1996): B1-B2.
31. Patricia Lush, Softwood Headaches Loom, Globe and Mail (20 February 1996): B1.
32. Quoted in Shrybman, 7.
33. J. Christopher Thomas, The Future: The Impact of Environmental Regulations on Trade, Canada-United States Law Journal 18 (1992): 390.
34. Canada-United States Law Journal. Ibid.
35. Romain Jacques, Research Note: U.S. Recycled-Content Newsprint Legislation: Environmental Regulation or Trade Barrier.', Canadian Forest Service (November 1993), 9.
36. Research Note: U.S. Recycled-Content Newsprint Legislation: Environmental Regulation or Trade Barrier.', Ibid.
37. James Rusk,Green Concerns Color Trade Disputes in the 90s, Globe and Mail (10 August 1992): B3.
38. Nancy Dunne and Bernard Simon,Canada-U.S. Beer War Gets Green Tinge, Financial Times (31 July 1992): 5.
39. Steve Chamovitz, GATT and the Environment: Examining the Issues, International Environmental Affairs 4 (1992): 219.
40. Jacques Bougie, Ontario's Misguided Game of Kick the Can, Globe and Mail (15 March 1993): A15.
41. Rusk, Bl.
42. Quoted in Beer Blast, Wall Street Journal (4 August 1992): A14-
43. Keith Bradsher, U.S. and Canada Make Deal on Beer Amid Trade Talks, New York Times (6 August 1993): Dl.
44. Bill C-29, The Manganese-Based Fuel Additives Act, 1996. MMT is an acronym for Methylcyclopentadienyl Manganese Tricarbonyl.
45. Speech delivered by the Honourable Sergio Marchi, P.C., M.P., Minster of the Environment, Statement to the Senate Standing Committee on Energy, Environment and Natural Resources on Bill C-29: the Manganese-Based Fuel Additives Act, 20 February 1997.
46. Many of the adverse health effects of MMT are believed to be similar to those of lead, such as symptoms similar to Parkinson's disease. Although MMT does reduce vehicle emissions of nitrous oxides, it increases the emission of volatile organic compounds, one of the leading precursors to smog. See Statement of Karen Florini, Senior Attorney, Environmental Defense Fund, 10 April 1996.
47. MMT had been banned in the United States for seventeen years by the Environmental Protection Agency (EPA). The EPA ban was recently overturned on a point of administrative law, so its use is no longer prohibited. However, fifteen of the major U.S. petroleum companies have voluntarily refrained from using MMT pending EPA health-testing results. The State of California, a leader in emission control legislation, presently bans the use of MMT in fuel.
48. See Barrie McKenna, Fuel Additive Debate Recharged, Globe and Mail (25 March 1996);
49. and Greg Keenan, Car Dealers Join Fight to Ban Gas Additive MMT, Globe and Mall (27 September 1996): B6.
50. Industry representatives, government officials, and environmentalists met recently to consider how to remove or reduce sulphur emissions from gasoline. See Terence Corcoran, Marchi Sets a Messy Precedent, Globe and Mail ( 11 April 1996): B2.
51. Canadian MMT Bill Heads to Senate, Closer to Chapter 11 Complaint, Inside NAFTA (8 January 1997).
52. U.S. May Challenge Canada via NAFTA in MMT Case, Ex-Negotiator Says, Inside NAFTA (29 November 1995),
53. and Company May Press U.S. for NAFTA Challenge on Canadian Fuel Bill, Inside NAFTA (15 November 1995).
54. Barrie McKenna, Alberta Vows to Challenge Federal Ban on Gas Additive, Globe and Mail (31 January 1997): B8.
55. PCB waste is found mostly in oils formerly used as coolants in electric equipment and industrial hydraulic fluids.
56. Barrie McKenna, Canada Warned About PCB Rules: U.S. Waste Management Firm Says Restricting Exports of Some PCBs Violates NAFTA, Globe and Mail (27 September 1996): B3.
57. Barrie McKenna and Scott Feschuk, Ottawa to Lift Ban on PCB Exports to U.S., Globe and Mail (12 September 1996): Bl.
58. Terence Corcoran, End the PCB Protection Game, Globe and Mail (23 August 1996): B2.
59. The cost of incineration at Swan Hills, Alberta, has been as high as $4500 per tonne, compared to $2400 per tonne in the United States. Much of the savings is due to lower transportation costs. See Corcoran, End the PCB Protection Game, B2.
60. EPA Decision to Ease Ban on PCB Imports Draws Fire from Staff, Inside EPA (3 November 1995): 10.
61. Alan Freeman, Companies Fight PCB Export Ban, Globe and Mail (21 December 1995): All.
62. Environment Canada justified the export ban by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention), which obliges its signatories to dispose of hazardous wastes within their own borders. However the United States has not ratified the Basel Convention, so it is unlikely that its restrictions would prevail over those of NAFTA. Moreover, under the Agreement between the Government of Canada and the Government of the United States of America Concerning the Transboundary Movement of Hazardous Waste (the Canada-U.S. Transboundary Agreement), Canada is under a positive obligation to permit the export of PCBs. In addition, according to Article 11 of the Basel Convention, (t)he provisions of this Convention shall not affect transboundary movements which take place pursuant to such agreements, provided that such agreements are compatible with the environmental management of hazardous wastes and other wastes as required by this Convention. Thus, the Basel Convention does contemplate the existence of bilateral arrangements for trade in waste between OECD countries where facilities are adequate. Under Article 104, where there is an inconsistency between NAFTA and certain inter' national agreements, including the Basel Convention, and the Canada-U.S. Transboundary Agreement, the latter prevails, provided that Canada chooses the alternative that is least inconsistent with NAFTA, if it has a choice among equally effective and reasonably available means of complying with its treaty obligations. Thus, according to the terms of the Basel Convention, Canada has an obligation to permit the exports of PCBs to the United States and the Interim Order may have been in contravention of Canada's obligations under NAFTA.
63. McKenna, Canada Warned About PCB Rules, B3.
64. Alan M. Rugman and Alain Verbeke, Global Corporate Strategy and Trade Policy (London and New York: Routledge, 1990).