Seattle's Legal Legacy and Environmental Reviews of Trade Agreements

Article excerpt

[Executive Order 13,141 will] revolutionize the way the environment is dealt with in all future trade talks.(1)

Former Vice President Al Gore

From day one, we will be considering environmental issues, and integrating them throughout.(2)

Ambassador Susan Esserman
Former Deputy U.S. Trade Representative

[A] bad [trade] agreement is likely to be defined in Congress and the media as any agreement that doesn't have labor and environment in it. The developing world will see that as a threat to its ability to progress and won't go along. And Republicans in Congress know the provisions will be used for protectionism.(3)

Ambassador Robert Zoellick
U.S. Trade Representative

I. INTRODUCTION

Expectations ran high last December at the World Trade Organization's (WTO) ministerial meeting in Seattle. Intent on launching the new Millennial Round, the Clinton administration hoped to set the capstone on its trade legacy. But demonstrators had high hopes, as well, and instead of a bold trade initiative marking the twenty-first century, the event is now remembered as the "Battle in Seattle," with ministerial statements overshadowed by riots on the streets outside. While reverberations of the protests continue to echo, the most important legal consequence of these events has been overlooked. One month earlier, on November 16, 1999, President Clinton issued Executive Order 13,141 ("E.O. 13,141" or the "Order"), committing the U.S. government for the first time to conduct environmental reviews of trade agreements.(4)

E.O. 13,141 was intended to woo the environmental community in the run-up to Seattle. Indeed the Order was issued the same day as the administration's "Declaration on Environmental Trade Policy" (Declaration).(5) The Declaration, music to many environmentalists' ears, pledged to:

   pursue trade liberalization in the new round of trade negotiations in a
   manner that is supportive of our commitment to high levels of protection
   for the environment ... by [t]aking fully into account environmental
   implications throughout the course of the negotiations, including by
   performing a written environmental review.(6)

The Seattle ministerial is now well behind us, yet E.O. 13,141 and the Declaration remain. Perhaps they will be forgotten in a few years--transient political gestures to entice environmentalists' support. Or, as this Article suggests, they may trigger an important shift in the trade and environment debate.

Environmental reviews hold the potential to drive two significant developments. The first is integration of environmental considerations into a trade policy process traditionally dominated by commercial concerns. Reviews can characterize, and possibly quantify, the likely environmental impacts of a trade agreement as well as uncover potential environmental opportunities and vulnerabilities. Thus, reviews heighten the environmental awareness of negotiators. Done well, this analysis can also provide practical, constructive options that mitigate or eliminate negative impacts and, better yet, enhance positive ones (so-called "win-win" solutions). These reviews may persuade governments to modify specific provisions of the draft agreement, propose additional domestic policies or institutions, or create entirely separate agreements. In fact, all three occurred in the North American Free Trade Agreement (NAFTA) negotiations.(7)

The second goal is more daunting--meaningful public involvement in the negotiation process. The environmental community's traditional distrust and opposition to trade and investment liberalization are no secret. However, the formation of negotiating positions largely is. The creation of U.S. trade policy to date has effectively been a closed process, with little opportunity for direct public participation.(8) Formal reviews could possibly temper environmentalists' opposition by opening up the process. …