[mobglob-discuss] "GATT-Zilla vs. Flipper" (U.S.) - Trade Agreements UndermineDomestic Environmental, Public Interest Policies

[Gordon Flett]

From: Judyth Mermelstein     "cogito ergo lego ergo cogito..." 
Montreal, QC           <espresso at e-scape.net> 

The crux of this is that a "trade barrier" isn't, as one might think,
necessarily something which prevents a product from entering one's
country. To the WTO, it seems, it's also unacceptable to prevent
"dolphin safe" labels from being used on imported tuna caught with
methods that aren't dolphin safe since dolphin-killing tuna doesn't sell
as well. 

Under trade agreements, remember, a foreign company can take a country
to a secret tribunal which looks only at the profits the company might
lose through the country's domestic laws, not at whether the company's
behaviour is environmentally safe or socially responsible. And the
appointed three-person tribunal has the power to *order* a nation to let
the company in effect lie to its citizens, or face serious financial
consequences. This is why the Government of Canada had to reverse itself
and declare MMT (the gasoline additive) isn't really toxic after all,
and why it looks as if "dolphin safe" tuna from our trading partners
will kill off the dolphins if the tribunal gets its way. 

If this sort of thing is allowed to continue, I wonder how long it will
be before one company or another demands the WTO rule that food
inspections be halted on the grounds that it's an "unfair restraint of
trade" to require that what they sell is fit for human consumption. 

Thanks to Lorraine Lapp. 

<< start of forwarded material >> 

FOR IMMEDIATE RELEASE APRIL 4, 2003 
12:18 PM 

CONTACT:  Public Citizen Chris Slevin (202) 454-5140 Shannon Little
(202) 588-7742 

"GATT-Zilla vs. Flipper" Dolphin Case Demonstrates How Trade Agreements
Undermine Domestic Environmental, Public Interest Policies Federal Court
Hearing Scheduled for Monday, April 7, in San Francisco 

WASHINGTON - April 4 - Proponents of sweeping trade agreements such as
the North American Free Trade Agreement (NAFTA) and the World Trade
Organization (WTO) always have maintained that U.S. trade commitments do
not affect or undermine domestic law. But the Bush administration's
attack on a domestic environmental law is the latest proof - the
"smoking dolphin," if you will - that trade commitments do lead to the
erosion of domestic public interest policies. 

On Monday, April 7, U.S. District Judge Thelton Henderson of San
Francisco will hold a hearing in a lawsuit filed by environmental groups
to halt the Bush administration's proposed change to the popular
"dolphin-safe" labeling law for tuna. This case provides an excellent
opportunity to examine the way that today's trade agreements intrude on
domestic policymaking in the United States. 

The Bush administration announced on Dec. 31, 2002, that it planned to
weaken the rules protecting dolphins from encirclement nets used to
catch tuna. 

Since 1992, the United States has been under orders to weaken the
dolphin law in question after it was ruled to be an illegal trade
barrier by an international tribunal operating under the General
Agreement on Tariffs and Trade, or GATT. Recently, Mexico has stepped up
threats of WTO action if the law is not changed. The Bush administration
action underscores the concerns raised by public interest activists
about domestic policies being attacked by foreign nations as illegal
trade barriers in secret WTO tribunals. 

The following provides a timeline of the challenge to the dolphin law
and an explanation of the actions by the Clinton and Bush administration
to comply with the resulting trade rulings and threats. 

History of Dolphin Trade Case 

For reasons that are poorly understood, yellowfin tuna in the Eastern
Tropical Pacific often travel with dolphins. In the 1950s, tuna
fishermen developed a deadly new method for catching the tuna. They
would locate pods of dolphins swimming near the ocean surface and then
herd the dolphins, along with the tuna swimming beneath, to the surface.
Fishing vessels would then encircle the disoriented animals with giant
purse seines, which could be drawn together at the bottom to trap the
fish. The dolphins often drowned before they could be brought aboard the
boat and released. 

Outrage over the practice, which is estimated to have killed seven
million dolphins in the region, helped spur Congress in 1972 to pass the
Marine Mammal Protection Act. While this act drastically reduced the
number of dolphin deaths, fishermen still were permitted under the act's
provisions to kill tens of thousands of dolphins per year. 

Public concern rose again in 1988, when an environmental activist
secretly videotaped large numbers of dolphins being slaughtered on a
Panamanian vessel. Congress that year banned tuna imports from countries
that failed to meet U.S. dolphin conservation standards. Then in 1990,
Congress reacted to a growing grassroots movement by creating the highly
popular "dolphin safe" labeling program, which outlawed the use of the
label for tuna caught using encirclement nets. In 1992, Congress banned
the U.S. sale of all tuna that was not "dolphin safe." 

Mexico and several other countries challenged the ban as a violation of
the GATT. In 1991, a GATT tribunal ruled that U.S. law violated GATT
rules because it treated physically identical "goods" - tuna -
differently according to the manner in which they were caught, harvested
or processed. Even though such "process and production" distinctions are
vital to many environmental and other laws, the GATT tribunal ruled that
the United States was allowed to protect dolphins only through "less
trade restrictive measures." The panel also ruled that under trade
rules, a country may not set regulations on its own markets that have
implications reaching beyond its borders. 

Initially, the United States did not change its dolphin law to conform
with the GATT ruling. The fight over congressional approval of the NAFTA
becoming heated and the Clinton administration thought that gutting a
popular dolphin protection because of a trade ruling in a case brought
by Mexico would threaten congressional approval of NAFTA. The 1991 GATT
case had achieved a high profile because it was the first obvious attack
on an environmental policy brought under the authority of a trade pact.
But GATT rules required a consensus, which the United States could
block, before sanctions could be levied. 

But in 1995, the dispute resolution rules changed drastically with the
formation of the WTO, which had been created by the Uruguay Round of the
GATT and approved by Congress the previous year. The WTO featured an
automatically binding dispute resolution system, meaning the United
States lost its ability to keep the dolphin policy without suffering
sanctions. 

In 1995, with NAFTA already implemented and the WTO in effect, Mexico
threatened to bring a challenge to the WTO over the United States'
continuing failure to implement the 1991 GATT dolphin ruling. To avoid
the embarrassing spectacle of being ordered by the WTO to "kill
Flipper," the Clinton administration sought to weaken the Marine Mammal
Protection Act. Shortly after the 1996 election, President Clinton wrote
a personal letter to then-Mexican President Ernesto Zedillo declaring
that within 30 days of his new term, he would bring the U.S. marine
mammal law into compliance with the 1991 GATT ruling. 

Through 1996, a coalition of consumer, environmental and wildlife groups
fought to uphold the law in Congress. In 1997, after an even bigger push
by the Clinton administration, this time directly led by Vice President
Al Gore and then-Undersecretary of State Timothy Wirth, Congress amended
the Marine Mammal Protection Act. After skirmishes in court, the embargo
against tuna caught with purse seines was lifted. However, tuna caught
in ways that killed dolphins could not use the coveted "dolphin safe"
label - making it considerably less marketable. The law stipulated that
tuna caught with encirclement nets could be labeled "dolphin safe" only
if a special dolphin safety observer (on boats as long as a football
field) witnessed no dolphins deaths. The change to the definition
"dolphin safe" was to go into effect only if a National Marine Fisheries
Service (NMFS) study mandated by the new legislation concluded that
there were no detrimental impacts on dolphin populations by encirclement
tuna fishing if certain techniques, such as divers, were used to free
trapped animals. 

In April 1999, then-Commerce Secretary William Daley announced that
based on the results of NMFS' preliminary report, it would implement the 
1997 amendment effective February 2, 2000. This would mean that the
labeling standard for "dolphin safe" tuna would be weakened from a
standard of "no encirclement fishing" to "no observed dolphin deaths."
The Mexican government welcomed the tardy implementation of the GATT
order. 

However, in August 1999, environmentalists led by Earth Island Institute
filed suit against the Commerce Department, arguing that Daley had acted
arbitrarily and ignored scientific evidence when he promulgated the new
regulation. The change in dolphin labeling was temporarily stayed. In
April 2000, a U.S. district court ruled against the Commerce Department.
In July 2001, the 9th U.S. Circuit Court of Appeals upheld the ruling.
The Mexican government revived its threats of a new WTO case. 

Mexican tuna could still be imported under the law the Clinton
administration had persuaded Congress to pass. It just could not be
labeled "dolphin safe." Mexico argued that this situation did not
satisfy the GATT ruling of 1991 and continued to hold the threat of a
WTO case over the United States' head. 

Watching two different administrations scramble to kill a popular
domestic law at the mere threat of WTO action puts into perspective why
so many countries no longer wait for a formal WTO challenge before
weakening laws under attack. 

In 2002, Commerce Secretary Donald Evans attempted to introduce
identical regulations as the Daley rules to change the definition of
"dolphin safe" to comply with Mexico's GATT-WTO demands. Last September,
NMFS released the final report on dolphin populations required by the 
1997 statute. The report found that dolphin stocks are depleted, that
purse seine nets exert stress on dolphins and that dolphins are not
recovering. However, another study required by the 1997 statute found
that "purse-seine fishery is not having a significant adverse impact on
any depleted dolphin stock." 

On the basis of this latter report, on Dec. 31, 2002, Secretary Evans
announced the Commerce Department would allow "dolphin safe" labels on
tuna caught using the dolphin encirclement technique. Environmental
groups filed suit and a temporary stay was granted in early January 
2003. A hearing in the case is now scheduled on April 7 in San
Francisco. 

It is easy to lose track of why three presidents, four U.S. trade
representatives, five U.S. Congresses, and three Mexican presidents have
been working diligently to undermine a remarkably successful U.S.
environmental law. But in the end, these most recent and perhaps
dolphin-deadly developments illustrate how indeed so-called trade
agreements do undermine vital domestic environmental and other public
interest policies. 

Public Citizen is a national, nonprofit public interest group. For more
information, please visit http://www.citizen.org 

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