Anthem EnviroExperts

Review by Janet Martinez, Stanford University

This book reviews the development and influence of the WTO dispute resolution system (DSU), while also assessing the WTO’s environmental competency and the judicial issues that impede progress

The WTO and the Environment: Development of Competence Beyond Trade by James K. R. Watson, Routledge, 2013, 236 pp.

Since it was created in 1995 to manage international trade, the World Trade Organization (WTO) has wrestled with issues of environmental protection. Watson’s volume provides a thoughtful overview of the WTO’s legal and administrative efforts to deal with trade disputes in general, and trade-and-environmental matters in particular. The author finds a growing competence within the WTO, but still procedural and substantive barriers impede progress. The reforms he proposes address both concerns.

The WTO’s Dispute Settlement Understanding (DSU) spells out a way of handling disputes through a process that has become increasingly judicial, but is widely viewed as strong, reliable, and effective.  Its trade-expert panelists, along with an Appellate Body review, render decisions that function as “informal precedents.” Watson calls on the WTO to supplement its panelists with lawyer and scientific experts skilled in environmental matters; empower its Committee on Trade and Environment (CTE) to participate in DSU cases in an advisory role; and offer access to “third parties” (i.e., other interested stakeholders) in environmental cases, in the same way that the NAFTA Commission on Environmental Cooperation does.

Watson traces the ways in which environmental concerns have been incorporated into WTO agreements, and sees momentum in favor of making explicit what has been implicit regarding the relationship between the WTO and multilateral environmental agreements, like the Basel Convention on Transboundary Waste, CITES, and the Montréal Protocol. That is, trade agreements affect environmental quality and environmental treaties can have an impact on international trade.

Given his focus on dispute system design, Watson points out the need to intervene in the WTO’s policy making efforts—writing the rule book at the Doha negotiations—as well as in the way DSU’s legal enforcement is handled. I doubt that WTO members will be willing to address environmental concerns apart from parallel demands to accommodate labor and human rights concerns as well. Nevertheless, Watson notes that if the WTO were to enact some kind of trade and environment ground rules, the CTE could transition from a political body to a much stronger implementing committee.

Reviewed by Lawrence Susskind, Massachusetts Institute of Technology

Technology, Globalization And Sustainable Development: Transforming the Industrial State by Nicholas A. Ashford and Ralph P. Hall, Yale University Press, 752pp

Ashford and Hall have produced a mammoth volume explaining why technology change and globalization are the keys to addressing the three most important dimensions of sustainability – the economy, work, and the environment. At the heart of their analysis is a belief that national and international governments can produce industrial policies that will “encourage or require environmentally sustainable production, products and energy-related activities through the tools of environmental policy and regulation.” They describe ways that the industrial state might be transformed, covering everything from advancing worker health and safety to techniques for restructuring international trade and finance. In the final analysis, though, their prescriptions only make sense if they are right about co-optimization, that is, the notion that economic development, environmental protection, and more worker-oriented employment can be achieved simultaneously, and need not be traded off or balanced against each other.

More than others writing about sustainable development, Ashford and Hall focus on industrial and trade policies that can stimulate “revolutionary technology innovation.” Their list of ways of overcoming the obstacles to sustainability run the gamut from education and human resource development to more extensive stakeholder involvement, to new approaches to underwriting the costs of sustainable development. In the end, though, everything comes back to government’s willingness to intervene. They analyze the “opportunity and capacity” of the government to act, making a case that crises create opportunities and social innovation can enhance capacity. What they are less clear about, though, is why there might be a sudden willingness on the part of national governments, locked in as they are to laissez faire strategies, to move in the activist and social welfare-oriented direction needed to achieve sustainable development.

Reviewed by Mattijs van Maasakkers, Massachusetts Institute of Technology

What Money Can’t Buy: The Moral Limits of Markets, by Michael J. Sandel, Farrar, Straus and Giroux, 256pp

The role of markets and market-based approaches in environmental policy has been discussed for many decades, at least since John Robert Dales’ essay Pollution, Property and Prices was published in 1968. The emergence of markets as a policy tool since then has extended far beyond the environmental realm. In his most recent book, Harvard philosophy professor Michael Sandel describes a diverse set of markets and incentive programs, showing that this approach has expanded into a broad range of new social and political arenas. Based on brief descriptions of a variety of economic incentives and markets, like carbon offsets and the practice of selling naming rights to nature trails, Sandel’s core argument, and stern warning, is that market-oriented approaches can “crowd out morals,” to the detriment of society.

While this critique is not necessarily new, the scope and ambition of Sandel’s work reflect the fact that the creation of economic incentives and full-fledged markets has become widespread practice. By describing dozens of incentive programs and markets, in sometimes surprising fields, from education to immigration, and from family planning to blood drives, Sandel raises two profound and connected objections to the use of markets. The first is that the use of economic incentives might not be fair. Sandel mounts a case against markets by using (sometimes hypothetical) examples of markets that would be unacceptable to many, if not all, people. Organ donations are one such example, since Sandel believes strong moral objections exist against the idea of allowing people in dire economic circumstances to sell their kidneys. The second objection Sandel places at the heart of his case against markets is corruption. Here, the author is worried not so much about bribes, but about the notion that buying and selling certain things degrades their moral importance. Sandel uses the example of creating a market for the adoption of babies, which he poses might undermine the norms underlying the parent-child relationship.

While Sandel effectively argues that there are “moral limits of markets,” it is less clear where and how to recognize those limits in specific policy areas or social arenas. This book is clearly written for a broad audience, and as such, it provides a useful warning in an era where efficiency, the market and incentives are often described as unmitigated “goods” in public discourse. This book not only shows that there are certain things that cannot be bought, it also presents a set of compelling arguments that certain things should not be for sale. Whether or not environmental pollution, or ecosystem goods and services, to use a more popular term, belong to that category is not immediately clear from these arguments.

Reviewed by David Wirth, Boston College

The Law of Adaptation to Climate Change: U.S. and International Aspects, edited by Michael B. Gerrard and Katrina Fischer Kuh, American Bar Association Section of Environment, Energy, and Resources 2012, 928pp

This collection challenges traditional notions of the purpose of environmental law. From the early 1970s until recently, environmental law has been devoted to conservation, prevention, and restoration. Global warming changed all that, and policy responses now cleave into
one of two conceptual categories: mitigation (shorthand for emissions reductions) and adaptation. The latter has received almost no attention from a legal perspective until now.

The first substantive chapter, by Robert L. Fischman and Jillian R. Rountree, very usefully sets out the architecture for policy responses as “adaptive management.”  But despite the other authors’ valiant efforts, one is inevitably left with the impression that the law is poorly adapted to grappling with the need for adaptation described by Fischman and Rountree. In the U.S., addressed in the first half of the work, efforts worthy of a contortionist are required to press statutes containing regulatory tools designed to meet other policy goals into the service of adaptive management.

In the second half on international aspects, David Freestone sets out an international legal framework considerably more sophisticated than the overemphasized need for funding to developing countries. Kate Purcell addresses challenging questions related to the law of the sea under conditions of rising sea level without, unfortunately, speculating on the fate of a state whose territory is inundated altogether – does it continue even to exist?

Michelle Leighton accepts climate refugees as a practical reality, wisely avoiding the pitfall of attempting to craft a legal definition for those displaced by global warming. But as with domestic law, the overall impression is one of thin or non-existent remedies. Certainly this highly useful volume can serve as a template for the direction in which the law desperately needs to move.

Review by David Wirth, Boston College

An accessible collection of essays from around the world, offering insights into legal and political issues surrounding environmental law and sustainability.

Environmental Law and Sustainability After Rio, by Jamie Benidickson, Ben Boer, Antoni Herman Benjamin and Karen Morrow, Eds., Edward Elgar, 413pp

At first glance, the copyright date of 2011—immediately before the Rio+20 conference—seems strange for a collection of 21 essays ostensibly devoted to developments in domestic and international law since the original Earth Summit in 2002. Upon closer examination, however, it appears that the volume memorializes a conference held in 2007, timed to coincide with the 15th anniversary of Rio and midway between the two subsequent international follow-up meetings held at ten-year intervals.

The work segments the larger question of the law of sustainability into five categories: principles and concepts; environmental rights and access to justice; natural resources; nature conservation; and energy and climate change. Even within those themes, the individual contributions are largely free-standing and independent from one another. The tone is largely academic, with the individual pieces thoroughly documented with references. Although the work examines these and other issues through a legal lens, the treatment ought to be accessible to generalists, and appropriately synthesizes both law and policy.  The subject matter ranges from the theoretical to the practical, such as Karen Morrow’s analysis of public participation in British court proceedings.

While some readers might be interested in reading the entire collection cover to cover, the appeal of the book is more likely to be the unusual and innovative insights offered by particular papers in the collection. Joseph Dellapenna and Flavia Loures, for example, trenchantly critique the International Law Commission’s draft articles on transboundary aquifers. Other unusual subject matter is addressed by Robert Kibugi’s examination of access to environmental justice in Kenya, Arlindo Daibert’s treatment of damages in civil environmental cases in Brazil, Willemien du Plessis’s assessment of cross-border natural gas pipelines in southern Africa, Emmanuel Kasimbazi’s evaluation of climate policy in Uganda, and Marcelo Nogueira Camargos and Solange Teles da Silva’s scrutiny of sustainable management of mangrove swamps in Brazil.