Justice for the Sea Turtle: Marine Conservation and the Court of International Trade

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I.

INTRODUCTION: THE PLAINTIFF SURFACES

On April 10, 1996, the United States Court of International Trade (CIT) issued a landmark decision in Earth Island Institute v. Christopher.(1) In this case, the CIT ordered the U.S. State, Commerce, and Treasury Departments to block the importation of shrimp from all nations that had not adopted adequate policies to protect sea turtles.(2) Worldwide, over one hundred thousand sea turtles are killed each year as a result of shrimp-harvesting operations: the turtles drown trying to escape the shrimp nets.(3)

The CIT based its ruling on an interpretation of a 1989 amendment to the federal Endangered Species Act (ESA), [sections] 609.(4) Section 609 created a shrimp "certification" program, wherein nations desiring to export shrimp to the U.S. must be certified by the U.S. government.(5) The U.S. government can only provide this certification if the exporting nation can demonstrate that it harvests shrimp using methods that provide a level of protection to sea turtles comparable to protection provided for under U.S. conservation laws.(6) Absent proof of comparable turtle protection laws, the U.S. government is required to ban shrimp imports.(7)

Although [sections] 609 requires that the shrimp certification be in place by May 1991, U.S. agencies did not meet this deadline.(8) Instead, they adopted regulations to limit the nations to which [sections] 609 applied, and to delay the application of the certification/ embargo provisions to these nations.(9) The plaintiffs in Earth Island challenged the legality of the government's limiting and delaying regulations, alleging that such, regulations were inconsistent with the plain language and requirements of [sections] 609.(10) The CIT agreed with the plaintiffs, and ordered the State, Commerce, and Treasury Departments to implement the certification and import ban programs by May 1, 1996.(11)

The Earth Island litigation is significant for at least three reasons. First, it establishes the CIT as the leading judicial forum, and most likely the exclusive trial court, for resolving legal issues surrounding trade-based environmental restrictions. Given the emerging nexus, both legally and economically, between international trade and the environment, this jurisdictional point is likely to take on ever-increasing importance. Second, on the issue of standing for environmental advocates, the Earth Island decision provided an important clarification of the U.S. Supreme Court's 1992 decision in Lujan v. Defenders of Wildlife.(12) More specifically, it found that the Lujan decision was not a significant obstacle for environmental plaintiffs seeking review of U.S. government actions, so long as the remedy sought was likely to further or protect the plaintiffs' specific interests. Third, the CIT decision is significant for the arguments and legal principles that the court chose to reject. Most noteworthy was the CIT's rejection of the agencies' inadequate time and resources defense, and its conclusion that the shrimp certification program did not compromise U.S. international trade obligations.

This article will explore the origins and likely implications of the CIT's ruling in Earth Island. First, it will examine the threat posed to sea turtles by international shrimp fishing practices, and the U.S. Congressional response to this threat. Next, it win summarize the history and outcome of the Earth Island decision. Finally, the article will discuss the emerging conflict between [sections] 609 and the rules of international trade, in particular the rules established under the General Agreement on Tariffs and Trade.(13)

II.

SEA TURTLES UNDER THREAT: THE CONGRESSIONAL RESPONSE

The population of sea turtles worldwide is threatened by destructive fishing practices.(14) The scientific community now recognizes that several species of sea turtles are now facing possible extinction. …