Academic journal article Environmental Law

Equivalence: Not Quite Close Enough for the International Harmonization of Environmental Standards

Academic journal article Environmental Law

Equivalence: Not Quite Close Enough for the International Harmonization of Environmental Standards

Article excerpt

I. INTRODUCTION

As noted by economist Herman Daly, the world used to be "relatively empty of human beings and their belongings ... and relatively full of other species and their habitats."(1) But many people, particularly urban residents, might say that quite the opposite is now true.(2) At a minimum, the impacts of current human activity are significant enough that the environment must be actively managed to a degree unimaginable just a century ago.(3) Over the last forty years, many nations have responded by developing complex environmental protection regimes in national law.(4)

Nevertheless, a competing effort that often overshadows environmental protection is the generation of a higher standard of living through economic growth.(5) According to traditional economic theory, the key to growth is expanded international trade.(6) Until the latter half of this century trade was neither very expansive nor very international. During the decades preceding the Second World War, national policies of protectionism and high tariff structures constrained global trade and, in the minds of many, contributed to the political tensions that gave rise to that devastating war.(7) These obstacles to trade are now mostly gone, vanquished by trade liberalization tools such as the General Agreement on Tariffs and Trade (GATT),(8) the European Union (EU),(9) and the North American Free Trade Agreement (NAFTA).(10) Since 1960 annual world trade has increased from $60 billion to $6.5 trillion in constant dollars, and world economic production has quadrupled.(11)

Having won the major battles against tariff barriers, business leaders and trade officials are now focusing their trade liberalization efforts on nontariff barriers (NTBs)--environmental, health, and safety standards and technical regulations that act as artificial barriers to trade.(12) The problem, they argue, is not that these standards and regulations exist; after all, each nation has the sovereign right to regulate commerce with its citizens, protect their health, and safeguard their environment.(13) Rather, the problem lies in the differences in coverage and stringency between the standards of different nations.(14) When one country's standard is higher than that of another, it acts as an NTB by making the importation of products from the other country impossible or, at best, possible only after costly modifications.(15) Standards disparities obstruct imports and exports, create inefficiencies, and increase costs for international business, which in turn impedes international trade and slows the global train of prosperity.(16) Worse yet, countries can purposely employ environmental standards as NTBs for protectionist reasons.(17) For trade liberalizers, the solution to the costs and barriers resulting from standards disparities is to eliminate the disparities by making the standards the same or as similar as possible.(18) This process is called harmonization.(19)

There are two possible methods or models of harmonization: full harmonization and equivalence.(20) These two methods are not interchangeable because they produce significantly different results, particularly in the case of substantive standards for the protection of health, safety, or the environment. Under full harmonization, two or more parties adjust their differing standards until they are the same. If this harmonization is in an upward direction, it strengthens the level of protection. Under equivalence, in contrast, the parties do not adjust their standards--they only agree to treat their differing standards as if they were the same. This produces the opposite result, because it allows the weaker standard to serve as a bypass route around the stronger one, thereby invalidating the stronger and reducing the level of protection.(21)

This Comment asserts that equivalence may be acceptable for the harmonization of regulatory procedures in some instances; however, it is unsuitable for the harmonization of substantive standards between nations, and of health, safety, and environmental standards in particular. …

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