Abstract
Signatory states of the World Trade Organisation (WTO) have agreed to make good faith efforts to reduce trade tariffs and other trade barriers. A member may depart from these obligations under specified conditions, two of which may exempt member countries' national environmental protection legislation. In four high-profile cases, the WTO dispute resolution panels and appellate bodies have held the exemptions not to apply to US environmental legislation on dolphins, clean gasoline and sea turtles. The article describes the decisions; discusses the quandary of the dispute resolution panels in separating legitimate environmental legislation from legislation that fronts for domestic industry protectionism; and notes that the panels are attempting, without success, to develop a case law on the relevant abstract language in the General Agreement on Tariffs and Trade (GATT). The article urges the panels to refrain from using national courts as a model for their decisions, forcing a yes or no decision on the validity of the national legislation. Rather the panels should, on appropriate occasions, simply refuse to decide at all, forcing further Member State negotiation.
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