The formidable Todd Tucker says that “The Green New Deal Has an International Law Problem.” I don’t think that the “green” aspects of a GND--meaning carbon taxes or permits and border tax adjustments--would have much of a problem. I’ll focus on the trade issues, and leave the investment law issues (which Tucker does not describe in detail and which I also think don’t raise great problems for the green aspects of the GND) for others.
The core of Tucker’s argument is that in order to make carbon reduction politically feasible, discrimination in favor of local producers is politically necessary. We might reverse his argument, and say that the problem is not with the international law, but with the politics of climate, which cannot imagine a way to compensate domestic losers from the carbon transition without discrimination.
Tucker also argues that origin-neutral policies can violate WTO law. As I pointed out here, this is true in theory, and I agree with Tucker that there is a defect in the WTO Appellate Body’s discrimination jurisprudence, but it has not caused significant environmental problems, and, as I argue here, there are good reasons to think that non-discriminatory carbon taxes and border tax adjustments would survive WTO scrutiny.
I also think that Tucker is excessively pessimistic about the availability of GATT Art. XX or GATS Art. XIV defenses, arguing that these provisions are applied in a way that is biased against the non-trade values they protect. This may be a difference in judgment, but I think the WTO’s Article XX jurisprudence is reasonably well-designed to discern between domestic regulation that is designed with environmental protection in mind, and domestic regulation that is a false front for crony capitalism.
From all this, I expected Tucker to recommend some tweaking of the discrimination and environmental exception provisions of WTO law. I was surprised instead to find a leap from this somewhat technical jurisprudential critique to an argument that during the first 10 years of “the mobilization” of GND, there should be a waiver of international trade treaty obligations. Tucker seems to ignore all the provisions, like the anti-discrimination provisions, that are designed to limit defection from liberalization commitments. He would replace the existing tariff obligations with what looks like a “climate club” a la William Nordhaus. Tariff reduction to zero would be confined to carbon-compliant states. Tucker concedes that his bold plan “seems utopian,” and it does carry a whiff of unicorns and cotton candy. While Tucker highlights domestic realpolitik in his critique, he seems to ignore the realities of international politics. But perhaps his proposal will provoke a useful discussion of linkages between trade and carbon that will allow for more leverage over climate free riders.
I do worry that trade law is made a scapegoat for the lack of political will to agree a GND. The trade law system is by no means perfect, but there is no doubt in my mind that if states can achieve a GND, they can iron out any kinks in the trade law system. Trade law is not the problem.
