CARBON TARIFFS AND THE WTO AN EVALUATION OF FEASIBLE POLICIESWord格式.docx

1、） Date/Time of Request: Monday, November 16, 2009 07:01 Central Client Identifier: EAST CHINA U OF POLITICS & LAW Database: WORLD-JLR Citation Text: 12 JINTECL 749 Lines: 2530 Documents: 1 Images: 0 The material accompanying this summary is subject to copyright. Usage is governed by contract with Th

2、omson Reuters, West and their affiliates.Journal of International Economic LawSeptember, 2009 General Article*749 CARBON TARIFFS AND THE WTO: AN EVALUATION OF FEASIBLE POLICIESPaul-Erik Veel FNa1Copyright 2009 by Oxford University Press; Paul-Erik VeelABSTRACTBoth the European Union, which currently

3、 has an emissions trading scheme for greenhouse gases, and the USA, which is considering implementing such a program, are exploring the possibility of including foreign producers in that program by requiring importers of foreign goods to pay charges relating to the amount of CO2 emitted in the produ

4、ction of those goods. This article examines the legality of such measures under WTO law. While academic literature has in recent years considered carbon tariffs in the abstract, this article contextualizes that discussion by analyzing European and American proposals to enact carbon tariffs, focusing

5、 primarily on the 2008 Lieberman-Warner Bill. This article concludes that carbon tariffs are, subject to a number of constraints, generally permissible under WTO law. However, it also argues that while carbon tariffs may generally be legally permissible, additional domestic political constraints may

6、 significantly limit the set of legal carbon tariffs which are practically feasible in any given state. This article posits that any meaningful discourse on carbon tariffs must incorporate both political and legal constraints, and it seeks to contribute to this discourse by identifying the relevant

7、constraints and exploring certain policy options which could satisfy those constraints.I. INTRODUCTIONAs a response to concerns about anthropogenic climate change through greenhouse gas emissions, and in an attempt to fulfill their obligations under the Kyoto Protocol, a number of jurisdictions have

8、 enacted or are considering enacting either cap-and-trade schemes for CO2 emissions or carbon taxes. However, such regimes impose additional costs on domestic producers relative to foreign producers, and this has given rise to concerns about the competitiveness of domestic firms and leakage of carbo

9、n emissions to other jurisdictions with less stringent policies. While there are *750 a number of potential policy responses to these concerns, FN1 the measure that has been the most hotly debated in recent years and is the most likely to be implemented by states is a carbon tariff. As legislative m

10、easures to implement such tariffs progress, such measures are attracting increased scrutiny in terms of their compliance with international trade law; for example, China, a major opponent of carbon tariffs, has stated that it believes that carbon tariffs would violate WTO rules. FN2 This article wil

11、l thoroughly examine the permissibility of such carbon tariffs under WTO law.The scope of this article is limited to discussing these so-called carbon tariffs, which are defined here as any measure which imposes a levy on an imported good on the basis of either the CO2 emitted in the production of t

12、hat good specifically or on the CO2 emissions or CO2 emission reduction efforts of the producing country generally. The term carbon tariff may be misleading, as such measures are not necessarily tariffs in the traditional sense. Such measures are, as discussed below, generally better characterized a

13、s charges levied on imports which are meant to equalize the charges paid by domestic producers for their CO2 emissions. Notwithstanding the potential confusion, given that the term carbon tariff is often used in popular parlance to refer to such measures, this article adopts that term, hoping that t

14、his clarification will prevent confusion throughout this article. This article does not discuss other similar border charges, such as energy tax adjustments at the border, which have been discussed elsewhere. FN3 It also does not discuss the trade-related aspects of other measures states might poten

15、tially take to limit greenhouse gas emissions, such as subsidies for green technology FN4 or other domestic regulatory regimes. FN5 Rather, it focuses specifically on carbon tariffs as defined above, as such tariffs have been *751 considered in some depth over the past year by both the USA and the E

16、uropean Union （EU）.While there has been much literature in recent years on the permissibility of carbon tariffs, that literature has generally considered carbon tariffs in the abstract. This article will contextualize that discussion by analyzing European and American proposals to enact carbon tarif

17、fs. More specifically, it will probe the validity of carbon tariffs under WTO law through a detailed analysis of the provisions of the Lieberman-Warner Bill, a bill proposed in the US Senate in 2007 which would have seen the introduction of an American carbon tariff. Using this bill as a foil, this

18、article concludes that carbon tariffs are, subject to a number of constraints on the exact structure of those tariffs, generally permissible under WTO law.However, it also argues that while carbon tariffs may generally be legally permissible, additional domestic political constraints may significant

19、ly limit the set of legal carbon tariffs which are practically feasible in any given state. This article posits that any meaningful discourse on carbon tariffs must take into account both political and legal constraints, and it seeks to contribute to this discourse by identifying the relevant constr

20、aints and exploring certain policy options which could satisfy those constraints. As the primary purpose of this article is to examine the feasibility of such tariffs, this article does not purport to reach any definitive conclusions on the ultimate desirability of enacting such tariffs. However, it

21、 does ultimately suggest that states should exercise caution in enacting such tariffs.This article will proceed as follows. Part two provides an overview of the economic and political justifications for carbon tariffs as well as some of their potential pitfalls. Part three provides a detailed overvi

22、ew of climate change policy in the EU and the USA, with a particular focus on recent proposals for carbon tariffs from those jurisdictions. Part four examines the legality of carbon tariffs under WTO law and explores the constraints that WTO law places on their structure. Part five then integrates l

23、egal and political constraints for the purpose of briefly outlining feasible policy options for dealing with competitiveness concerns. Part six then provides a brief conclusion.II. POLICY CONSIDERATIONS RELATING TO CARBON TARIFFSPrior to examining proposals for carbon tariffs or examining the WTO-le

24、gality of such tariffs, it is important to understand why countries are considering imposing such tariffs. This section first examines three reasons why states may decide to impose carbon tariffs to complement domestic cap-and-trade systems or carbon taxes: of CO2 emissions, competitiveness concerns

25、, and political economy considerations.One rationale advanced for carbon tariffs is that they prevent of CO2 emissions to foreign countries that do not have effective cap-and-trade systems or carbon tariffs. The notion here is that without carbon tariffs, *752 firms-especially in those industries wh

26、ich have relatively high CO2 emissions which cannot be abated at low cost-that are required to pay carbon taxes or purchase emission allowances when operating in that jurisdiction may relocate to a foreign jurisdiction which does not impose similar charges on firms CO2 emissions. FN6 Producing in th

27、at foreign jurisdiction, the firm can then export its products back to consumers in the jurisdiction with the CO2 emissions charges which it left. In these circumstances, the abatement of CO2 emissions which the home jurisdictions emissions charge was supposed to realize does not actually occur, as

28、the firm has avoided the charges by relocating its operations and merely emitting the CO2 in another jurisdiction. FN7 A carbon tariff is intended to lessen or negate this effect by ensuring that firms producing for markets in a particular jurisdiction cannot evade the charges by relocating their op

29、erations to a foreign jurisdiction.A second and related economic rationale for carbon tariffs is that they ensure that foreign producers in countries without carbon taxes or equivalent schemes do not benefit from an artificial comparative advantage stemming from more lax regulations on greenhouse ga

30、s emissions. The notion of a comparative advantage rests on the idea that those countries that are able to produce certain goods relatively more efficiently than others should do so. FN8 While normally we view it as economically optimal for countries to exploit whatever comparative advantage they mi

31、ght have, the comparative advantage flowing from a more permissive regime for greenhouse gas emissions is different from other forms of comparative advantage, as it results in the negative externality of increased global warming. FN9 Although it remains desirable for those countries that are relativ

32、ely most efficient at producing a particular good to produce it, the notion of efficiency necessarily needs to include those *753 externalities which arise as a result of that production. Carbon tariffs effectively force foreign producers to internalize the externality of CO2 emissions, at least to the same degree as do domestic producers.While both of these rationales provide economic justifications for carbon tariffs, much of