Document Type

Article

Publication Title

Yale Law Journal

Abstract

The world is simultaneously facing increasing economic interdependency and intensified demands for protecting the environment. The June 1992 United Nations Conference on Environment and Development (UNCED) in Rio has stimulated awareness of the global character of many environmental problems and the impact of environmental regulation on economic growth. At the same time, businesses and nations increasingly are concerned about their ability to compete in the international marketplace. Nations such as the U.S. that adopt stringent environmental protection measures fear that they will be disadvantaged in that competition. This Article examines the potential conflicts between environmental protection and international trade and competition and considers how they might be accommodated. The methodological premise of the Article is that nations are the primary actors in environmental policy. It is still premature to speak of a global political or social community. Nations are driven by economic self-interest and the search for strategic advantage in an international economy in which trade and capital mobility play an increasingly important role. It would, however, be wrong to focus solely on international competitiveness. National policies are also driven, in varying degrees, by environmental concerns. These concerns may include protection of the global ecosystem3 and the well-being of future generations' as well as promotion of the local health and environmental concerns of present generations. Protecting the environment while meeting the worldwide demand for economic growth will in many instances require joint efforts among nations. The process of building these joint efforts will itself affect and perhaps strengthen national concerns with the global, long-run elements of environmental protection. Nevertheless, efforts to build cooperation must also deal with, and therefore require an understanding of, global economic rivalry and its impact on domestic and international politics. This Article argues that a nation's imposition of stringent environmental regulation and liability rules may harm its international competitiveness, even though most empirical studies have not established a strong causal association between the two. This threat is especially significant in the U.S., due to the exceptionally complex, burdensome and costly character of its regulatory and legal system. Focusing solely on competitiveness, however, is myopic. The contributions that a cleaner environment and resource conservation make to well-being must also be taken into account. What ultimately matters is the broad overall performance of the economy, including the environmental and health benefits generated by governmental programs for environmental protection. Issues of competitiveness and trade nonetheless have high political visibility, particularly when they are manifest in plant closings and relocations. The appropriate response to competitive concerns is not autarchy. The U.S. should not attempt to insulate itself by barring or imposing discriminatory duties on products from nations with less stringent standards. Rather, the solution is a combination of domestic policy changes to eliminate unnecessary regulatory and liability burdens, and international efforts to move toward partial harmonization of national environmental measures. These changes would also advance environmental objectives.

First Page

2039

DOI

https://doi.org/10.2307/796859

Volume

102

Publication Date

1993

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