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U.S. President issues executive order to prevent entry into U.S. of “Invasive Species” of flora and fauna
On February 3, 1999, President Clinton issued Executive Order 13112 to control the introduction of “Invasive Species” and to limit their economic, ecological and human health impact. The Executive Order mandates federal agencies to bar the introduction of such species.
The Order also establishes an “Invasive Species Council,” including the Secretary of State and the EPA Administrator, to make sure that government officials carry out this Order. The Council is to prepare an Invasive Species Management Plan within 18 months.
Environmentalists consider exotic species a significant threat to domestic species and ecosystems. They can spread diseases or simply crowd out the native species. For example, in the Chesapeake Bay region, 160 species are probably or definitely non-native. In the Great Lakes, the non-native Zebra mussel filters water so effectively that it might create a food shortage for fish.
Citation: Executive Order 13112 of February 3, 1999, 64 Federal Register 6183 (February 8, 1999). [The Chesapeake Bay Newspaper, Bay Journal, June 1998 (see www.bayjournal.com), reported on the plans to address the issue of "invasive alien species."]
Filed in: 1999 International Law Update, Issue 2
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D.C. Circuit rejects challenges to new EPA gasoline rule that was issued after WTO decision
In the following case, several Petitioners challenged the Environmental Protection Agency’s “gasoline rule.”� Based on the Clean Air Act Amendments of 1990, it regulated emissions from conventional gasoline for motor vehicles. The rule and the underlying law aimed to reduce air pollution in certain urban areas with high ozone levels by requiring the use of “reformulated”� gasoline. To prevent the transfer of pollutants from reformulated gasoline to conventional gasoline, 42 U.S.C. Section 7545(k)(8) required that the gasoline of both domestic and foreign suppliers remain as clean as it was in 1990.
To this end, EPA would compare today’s pollutants in the suppliers’ gasoline with its 1990 levels. If a particular supplier could not come up with enough data on the 1990 pollutant level of its gasoline (and most foreign suppliers could not), the EPA would use a statutory baseline representing the average pollutant level for gasoline in 1990. In practice, the statutory baseline applied to virtually all foreign refiners. Domestic refiners, however, had sufficient data to establish an individual baseline.
In 1995, the WTO found that the EPA rule violated the GATT trading rules [see 1997 International Law Update 116, 1996 International Law Update 46 & 56]. Two years later, the EPA issued a revised Rule. It allows foreign refiners to either accept the statutory baseline or to petition the EPA to set an individual baseline based upon certain conditions [see 62 Federal Register 45533 (1997), 40 C.F.R. Part 80].
The Petitioners made two main arguments. They first contended that the EPA has exceeded its authority by letting foreign refiners ask for an individual baseline that may result in worse air quality. They also urged that the EPA should not let foreign refiners choose either the individual or the statutory baseline. In their view, EPA should instead assign a baseline unless a particular refiner produces satisfactory data to the contrary.
The U.S. Court of Appeals for the District of Columbia Circuit denies the petition for review. In the Court’s view, the Petitioners have mistakenly assumed that the sole purpose of the reformulated gasoline program is to reduce air pollution. In fact, the EPA may take other important factors into account in proclaiming a rule.
“The petitioners do not direct our attention to anything in the text or structure of the statute to indicate that Congress intended to preclude the EPA from considering the effects a proposed rule might have upon the price and supply of gasoline and the treaty obligations of the United States. … [T]herefore, we must defer to the agency’s construction if it is reasonable. … [W]e think the agency’s interpretation is permissible. Section 7545(k)(8) specifically allows foreign refiners that produced dirtier than average gasoline in 1990 to continue importing gasoline of that quality, presumably in order to prevent the disruption that might ensue were those refiners forced to choose between producing cleaner gasoline than they did in 1990 or quitting the U.S. market. The agency, following the lead of the Congress, similarly sought to prevent its rule from disrupting the market.”
“In the particular circumstances of this case our usual reluctance to infer from congressional silence an intention to preclude the agency from considering factors other than those listed in a statute is bolstered by the decision of the WTO lurking in the background. “�Since the days of Chief Justice Marshall, the Supreme Court has consistently held that congressional statutes must be construed wherever possible in a manner that will not require the United States “�to violate the law of nations.’”� [Slip op. 21-23]
Citation: George E. Warren Corp. v. U.S. Envi¬ronmental Protection Agency, No. 97-1651 (D.C. Cir. November 3, 1998).
Filed in: 1998 International Law Update, Issue 12
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In aftermath of WTO Tuna-Dolphin dispute, U.S. amends Marine Mammal Protection Act of 1972 to permit imports of tuna harvested in compliance with international Dolphin Conservation Program
The Tuna-Dolphin dispute provides two recent examples of the conflict between environmental and trade laws [see, e.g., Dispute Settlement Panel Report on United States Restrictions on Imports of Tuna, 30 I.L.M. 1594 (1991); United States - Restrictions on Imports of Tuna: Report of the Panel, 33 I.L.M. 842 (1994)]. There, the U.S. imposed unilateral trade sanctions to enforce compliance with the Marine Mammal Protection Act of 1972 (MMPA) [Pub.L. No. 92-522, 86 Stat. 1027]. In the Tuna-Dolphin cases, two GATT panels determined that GATT does not justify the U.S.’ restrictions of canned tuna from nations that do not enforce dolphin-safe fishing methods on environmental grounds.
In the so-called Declaration of Panama (October 4, 1995), 12 nations, including the U.S., France, and Mexico, agreed to reduce the total annual dolphin kill to below 5,000. This applied to the purse seine fishery for yellowfin tuna in the eastern tropical Pacific Ocean.
In the “International Dolphin Conservation Program Act,”� the U.S. Congress has amended the MMPA to allow companies to import tuna as long as the harvest obeyed the international Dolphin Conservation Program (DCP). The Act further provides that an American purse-seine fishing vessel may obtain “permits” for the taking of dolphins during tuna harvesting. Finally, it defines the phrase “dolphin safe” on a product label. It means that, when the fisherman had caught the tuna, they had obeyed the DCP or like constraints on incidental dolphin mortality.
Upon funding of the necessary studies and adoption of the DCP by the Inter-American Tropical Tuna Commission, the Act will take effect. The Secretary of Commerce, however, can now issue regulations based on the Act.
Citation: Pub.L. No. 105-42 [H.R. 408], 111 Stat. 1122 (August 15, 1997).
Filed in: 1997 International Law Update, Issue 10
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Major environmental EU directive to control “biocidal products” currently pending; the directive will affect thousands of products sold in the EU
In most industrialized nations, hazardous materials are considered either:
- hazardous substances or preparations (industrial substances such as formaldehyde, or preparations such as cleaning agents); or
- pesticides, which serve to control organisms and plants that adversely affect agriculture.
In the United States, the main law controlling hazardous substances and preparations is the Toxic Substances Control Act (TSCA) [15 U.S.C. 2601-2692]. For pesticides, it is the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) [7 U.S.C. §§ 136 to 136y]. The equivalents in the European Union (EU) for hazardous substances and preparations are Directives 67/548/EEC [dangerous substances] [1967 O.J. 196] and 88/379/EEC [dangerous preparations] [1988 O.J. (L 187)]. Agricultural pesticides (called “plant protection products” in EU terminology) are regulated by Directive 91/414/EEC [1991 O.J. (L 230)].
Generally speaking, hazardous substances have been classified based on the physical hazards (such as flammability) and their health hazards (such as toxicity or sensitization). The European Union, however, has recognized in recent years that there is a class of hazardous chemicals that, based on their properties, are not technically “hazardous chemicals” or “pesticides.” These are chemicals that “control” organisms in some way — called “biocidal products” or “biocides.”
Therefore, in the EU, new regulatory requirements are developing to control such “biocidal products.” A directive on biocidal products is currently pending. The directive would apply to all products that contain biocidal substances or are themselves biocidal. It will include products such as swimming pool disinfectants, insect repellents, pest control products, anti foulants, and preservatives. The impact of the biocides directive is tremendous; it will affect thousands of products sold in the EU.
Essentially, it applies to all substances that “control” organisms. Dangerous substances under Directive 67/548/EEC [dangerous substances], however, are not excluded. Therefore, it is possible that dangerous substances that have biocidal properties and that are already on the market must eventually be also reviewed as biocides. Agricultural pesticides are expressly excluded from coverage.
The directive will create a register of authorized biocidal active ingredients to be listed in Annex I. A substance would receive authorization for a maximum of ten years. Approval of biocidal products containing substances listed in Annex I would be left to the Member States. Approval of a product in one Member State would permit marketing in any other EU country without further permits.
Manufacturers and distributors can take advantage of the ten-year transitional period: The proposal allows for a ten-year transitional period during which Member States would be able to authorize products containing active substances that were already on the market prior to the Directive’s entry into force but which had not yet been assessed for inclusion in Annex I.
Currently, the biocides directive will become effective 24 months after entry into force. The pending directive is currently going through another reading by the European Parliament. Therefore, it will certainly not be adopted before the end of the year.
Citation: Common position No 10/97 … with a view to adopting a European Parliament and Council Directive concerning the placing of biocidal products on the market, 1997 O.J. (C 69) 13.
Filed in: 1997 International Law Update, Issue 10
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Based on outcome of WTO dispute about imported gasoline, U.S. Environmental Protection Agency issues baseline requirements for foreign gasoline
The WTO Gasoline case [World Trade Organization: Report of the Panel in United States - Standards for Reformulated and Conventional Gasoline (January 17, 1996), 35 I.L.M. 274 (1996)] was the first WTO “case” decided under the new WTO dispute settlement rules. [See 1996 Int'l Law Update 46 & 56]
Early in 1995, Venezuela and Brazil separately asked for consultations. They were concerned with whether EPA’s 1993 “Gasoline Rule” violated GATT regulations [Regulation of Fuels and Fuel Additives -- Standards for Reformulated and Conventional Gasoline, 40 C.F.R. 80, 59 Fed. Reg. 7716 (February 16, 1996)]. The Clean Air Act [42 U.S.C. 1857] and the Gasoline Rule had set standards for reducing pollution from vehicle emissions, especially as to ozone. On January 17, 1996, the Panel ruled that the EPA’s “Gasoline Rule” discriminated against foreign producers and importers of gasoline.
Beginning in January 1995, the Gasoline Rule required the sale of “reformulated” gasoline in certain U.S. regions with high levels of air pollution. The Rule measures compliance by refiners and importers against a refinery’s or importer’s 1990 gasoline quality.
Domestic refiners have to establish individual refinery “baselines” of the quality and quantity of the gasoline produced at each refinery in 1990. Almost all foreign refiners and importers, however, lack the actual 1990 test data necessary to establish an individual baseline. Therefore, foreign refiners and importers had to use the 1993 statutory baseline. EPA set this baseline to approximate average gasoline quality in the United States in 1990.
The Environmental Protection Agency (EPA) has issued a final rule to revise the requirements for imported conventional gasoline. It applies to foreign refiners and importers of gasoline and allows foreign refiners to use an individual “baseline.” The rule also includes requirements for tracking the movement of foreign gasoline and monitoring compliance. The effective date of the rule is August 27, 1997.
Citation: 62 Federal Register 45533 (August 28, 1997).
Filed in: 1997 International Law Update, Issue 10
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