The Danish Bottles Case: Commission of the European Communities v. Kingdom of Denmark John Clark and Matthew B. Arnold 161 Trade and the Environment: Press Clips J. Michael McCloskey 182 A Matchmaker's Challenge: Marrying International Law and American Environmental Law David A. Wirth 204 Foreword In the relatively obscure world of international policy, one of the most hotly disputed issues discussed in the course of 1991 and 1992 was how environmental policy objectives and trade policy objectives could possibly co-exist. No one could have anticipated the importance of this subject to the environmental community, nor the significant news coverage of an issue considered to be the domain of 'Gattologists,' as trade negotiators affectionately call one another. The Environmental Protection Agency, however, was prescient on this subject. In the fall of 1990, the Administrator asked the National Advisory Council for Environmental Policy and Technology (NACEPT), a Federal Advisory Council mandated under the Federal Advisory Committee Act (FACA), to take on and consider the broad issue of trade and environment, and to provide recommendations on the subject to the Agency. The Trade and Environment Committee was formed and proceeded to assemble a committee of experts comprised of NACEPT members, representatives from trade, environment, business, industry and academia. The individuals invited to participate included some of the most significant policy thinkers in both the trade and environment sectors. As FACA requires and encourages a diversity of views and sectorial representation on advisory committees, the membership on the Committee was necessarily limited by a number of factors in order to ensure balance and focus to the discussion. Beyond the committee membership, however, active participation included "expert witnesses," leaders and specialists in both policy arenas, as well as specialists from both the EPA, the U.S. Trade Representative's Office (USTR), and the Department of Commerce. In our view, the most significant accomplishment of the NACEPT Trade and Environment Committee was to provide a comprehensive discussion of the longer-term policy ramifications of the trade/environment intersect, involving both government and the private sector. The discussion, given the level of expertise and the variety of disciplines represented, was as significant as the recommendations that resulted. No other forum existed within the U.S. Government that allowed for such an open debate around these issues, forcing the participants with often competing viewpoints to find areas of consensus. The Committee's work occurred during a critical point in a number of international events. While they resisted looking closely at on-going trade discussions, loaded as they were with political tension, the urgency and relevance of the issues provided the opportunity for a broader, more long-term view of the issues. The work of the Committee also attracted attention from OECD countries, the GATT Secretariat and the Organization of American States. While in some respects the recommendations may not be viewed, at first glance, as earth shaking or new, both environment and trade policy experts have told us that the unique context and timing of this discussion and the significance of the participants represented a major step towards arriving at a new perspective and establishing the need for a different paradigm. It was extremely significant, and necessary, we have been repeatedly told, that EPA have an advisory committee on trade policy as it affects environment. EPA, with its environmental expertise, brings an entirely different perspective to the issue as compared to other government agencies. Finally, it was considered extraordinary that a consensus was reached by the Committee, which included senior trade policy experts, that environmental protection should be an objective of trade policy. Throughout the course of 1991-1992 the Committee's work was cited in "Inside EPA," "Inside Trade," and the "Journal of Commerce" and quoted in OECD and GATT working papers. It also played a major role in focusing the Office of Technology Assessment's (OTA) work on the subject. The Committee's existence came to the attention of a number of U.S. Government officials, as well as staff at the OECD, the GATT and the World Bank. Typically, initial interest lay in why EPA would concern itself with trade policy questions. However, the Committee clearly endorsed the agency's work in this area, pointing to the long-term ramifications for U.S. environmental policy and competitiveness as a compelling need for continued EPA involvement. The work of putting together an effective advisory committee for the Federal government, ensuring it is balanced and fair, and accomplishes something new is not achieved without major contributions from many individuals. As the support staff for this initiative, we would like to especially thank a number of key individuals for their leadership, advice and support throughout a very hectic year and a half. First and foremost, the Chairman of the Trade and Environment Committee, Sam Schulhof. Mr. Schulhof has the gift of being a balanced arbitrator and facilitator, and a belief that his commitment to serve includes donating a significant amount of dedicated time to the Committee. While contributing substantively to the issue, he also allowed the many significant leaders and experts in this initiative to do their work without unnecessary intervention from the Chair. We are most grateful to him and to his able Vice Chair, Jon Plaut, for their contributions. Second in importance to the success of the project was our EPA client and leader, Dan Esty, then Deputy Assistant Administrator for the Office of Policy, Planning and Evaluation and EPA's lead on trade issues. Dan was a mentor, supporter, and leader in this initiative. Without his encouragement and unflinching support the Committee would not have survived to complete its task. Our Staff Director and the Executive Director of NACEPT, Ms. Abby Pirnie, and her assistant Gordon Schisler were both extremely supportive and helpful in targeting the Committee's work to the needs of the Agency. Significant among those with whom we consulted and who contributed their thoughts, experience and time to both the staff and Committee, and without whom this work would not be pertinent or significant are Ambassador Michael B. Smith and Ambassador Sally Shelton-Colby. We are most grateful for the unassuming manner with which they contributed their time and expertise to this initiative. They are both experts and influential leaders in the international policy arenas of trade, investment and finance. Members of the Trade and Environment Committee's Executive Committee who performed key roles in managing the process and providing guidance to the staff were Michael Gadbaw, Ambassador Ambler Moss and Sandy Trowbridge. We are most grateful for the time and substantive commitment made by these outstanding leaders and members. We also thank the following individuals for their major support as well as their guidance: Professor John Jackson, Durwood Zaelke, NACEPT member Robert Repetto, Norman Bailey, Wendell Fletcher, Richard Johnson, Jacques de Miramon, Charles Pearson, Michel Potier, Gary Stanley, and Candice Stevens. Key among the U.S.government participants was Carmen Suro-Bredie, Assistant U.S. Trade Representative for Intellectual Property and the Environment, who contributed her valuable time during an extremely busy year to meet on more than one occasion with the Committee. Other U.S. Government staff who made significant contributions to the Committee include: Dan Magraw, Linda Fisher, Anya Schoolman, Paul Cough, David van Hoogstraten, Pep Fuller, Peter Lallas, Barbara Bassuener, Doug Turner, Jim Murphy, Prudence Fox, Skip Jones and David Strother. Finally, we wish to thank Hal Kane, Carl Gardiner, Jim Upton, Charles Gnaedinger, Tom Kearney and Jannell Young who contributed on staff to this initiative over a two-year period. Respectfully submitted, Jan C. McAlpine Designated Federal Official Pat LeDonne Staff |