1. Current Developments in Domestic Climate Mitigation Measures
Price-based Instruments and relevant WTO rules
Ludivine Tamiotti, Counsellor
Trade and Environment Division, WTO

2. Outline of presentation
Price and market mechanisms to internalize environmental cost
Border carbon adjustments
Relevant WTO rules

3. Price & market mechanisms to internalize environmental cost

4. Emissions Trading Scheme
Two Key Instruments
Tax on the carbon content of fossil fuels, often combined with a tax on energy use
Emissions Trading Scheme

5. Effectiveness: Carbon tax vs. ETS
Price is determined directly by the regulators through the tax rate (exogenously)
Price is determined by the market (endogenously)
Environmental uncertainty?
Price uncertainty?
Quantity of emissions to be reduced is a result of measures adopted by industry to reduce emissions (endogenously)
Quantity of emissions to be reduced is determined by regulators (exogenously)

6. Environmental effectiveness
2 key intended environmental effects of a carbon tax and an ETS
Direct effect, i.e. reduction of GHG emissions, by setting a price on emissions
Indirect effect, through “recycling” of fiscal or auctioning revenues to fund e.g. investment in more climate-friendly technologies

7. Border carbon adjustments

8. Emissions reduction policies are not applied universally
Rationale
Competitiveness loss
Emissions reduction policies are not applied universally
This may give rise to
Carbon leakage

9. Rationale
Concern: enhanced competitiveness (economic) of non carbon constrained producers could lead to ‘carbon leakage’ (environmental)
In particular for energy intensive industries
 However, effects are still uncertain

10. Rationale To offset asymmetries in competitiveness
Border adjustment measures
To avoid carbon leakage

11. Relevant WTO Rules

12. Key legal challenges for a case-by-case analysis
Relevant WTO rules
Coverage?
Key legal challenges for a case-by-case analysis
Consistency?
Justifiability?

13. Coverage?
Importance to define the instrument at hand to determine relevant WTO/GATT provisions
A border adjustment to a tax?
A border adjustment to another carbon cost, e.g. an ETS?

14. Coverage? Two Situations BTA on imports (equivalent to a domestic tax)
 The GATT Working Group on Border Tax Adjustments (1970)
BTA on exports (i.e. a refund of domestic tax before exportation)
Implementation of the destination principle to ensure trade neutrality

15. Coverage?
GATT Article II.2(a) provides for the possibility of imposing at any time on the importation of any product:
A charge equivalent to an internal tax in respect of the like domestic product or in respect of an article from which the imported product has been manufactured or produced in whole or in part.
GATT Article III.2 covers “internal taxes or other internal charges of any kind”

16. Coverage? A border adjustment to a regulation, e.g. an ETS?
Submit emissions credits acquired abroad to cover the emissions during the production process of the imported good
Potential requirements on importers
Hold emission allowances, up to the amount of CO2 emitted during the production of imported products and applied on a per unit basis to each good

17. Coverage?
Can the price paid by an industry to participate in an ETS be qualified as an “internal tax or other internal charge of any kind”, covered under Article III.2?
GATT Article III.2
Can an ETS be seen as a measure covered by Article III:4, i.e. as a law, regulation and requirement affecting the internal sale, offering for sale, purchase, transportation, distribution or use?
GATT Article III.4

18. With basic principles, e.g. non discrimination
Consistency?
National treatment
With basic principles, e.g. non discrimination
Most Favoured Clause
Prohibition to discriminate between “like” products

19. Prohibition to discriminate between “like” products
Consistency?
Prohibition to discriminate between “like” products
Except if...

20. Justifiability? WTO rules, as confirmed by jurisprudence
Under certain conditions, Members can adopt trade-related measures aimed at protecting the environment
the right of Members to take regulatory measures to achieve legitimate policy objectives
Essential to maintain a balance between
the rights of other WTO Members under basic trade rules

21. Justifiability? Conservation of clean air from air pollution
Several disputes on measures that sought to achieve a variety of policy objectives
Conservation of sea turtles from incidental capture in commercial fishing
Protection of human health from risks posed by asbestos
Protection of human health from risks posed by the accumulation of waste tyres
WTO jurisprudence has confirmed that WTO rules do not trump environment, as long as…

22. …as long as several carefully crafted conditions are respected…
Justifiability?
…as long as several carefully crafted conditions are respected…
Environmental measures must not be applied in a manner which constitutes
a means of arbitrary/unjustifiable discrimination or
 a disguised restriction on international trade

23. Major practical challenges in implementation
Justifiability?
Major practical challenges in implementation
in assessing product-specific emissions
fluctuations of the carbon price
existence of carbon leakage …
Implementation is key!

24. Current Developments in Domestic Climate Mitigation Measures
Price-based Instruments and relevant WTO rules
Ludivine Tamiotti, Counsellor
Trade and Environment Division, WTO