International Trade Law and Climate Change

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    Introduction

    When President Biden took office, he recommitted the United States as a party to the Paris Agreement and, with that recommitment, launched a whole-of-government process, to establish a new 2030 emissions target.[1]In pursuit of this whole of government approach, the federal governments trade policy became a significant priority.[2] In that regard, a major focus was placed on infrastructure investments intended to bolster the American manufacturing sector. These investments include plans to establish America as a leader that produces and deploys the clean technologies that are crucial to the transition to net-zero.[3] This approach is being spearheaded by the National Climate Task Force (NCTF), but implementation and administration of these new climate policies are undertaken in significant part by various agencies that administer U.S. trade laws.

    Trade law and policy has historically been central to both the growth of global emissions, and has and will continue to play an important role in effectuating a global green transition. As the world’s largest economy, the United States plays a central role in global trade policy and is seen as a key partner in agreements that will help shape the relationship between trade and transition to net zero. During this transition, climate change is poised to significantly alter the international trade landscape. Climate change will also impact the rollout of new trade policies as the United States and other countries balance commitments to a green transition with a desire to achieve economic growth. Between existing trade remedy mechanisms through the World Trade Organization (WTO), new measures aimed at quantifying the costs of carbon, and necessary efforts to meet the demands of a just transition, the future of trade law in the United States will be inextricably tied to climate change policy for the coming decades.

    • Many of the top U.S. imports and exports are produced by carbon intensive industries. This means that climate policies both inside and outside of the United States are likely to have a significant impact on the overall success of the industries and communities involved, as well as the broader U.S. economy.
    • As the impacts of climate change (and any climate-related policies) are felt globally, industries and supply chains which have not prepared for climate change will be at a disadvantage. At the same time, industries helping to mitigate and adapt to climate change may benefit from increased demand and comparative advantage.
    • Traditional trade remedies solutions like countervailing duties and novel measures (such as a carbon border adjustment mechanism) have been proposed to address the risks of carbon leakage and as tools to spur a clean energy and manufacturing transition.
    • Trade-related international negotiations are increasingly focused on decarbonization and other climate policies.
    • Subsidies in the United States for renewable energy and programs that include domestic content requirements favoring U.S. industry over foreign producers may lead to conflict at the WTO.
    • New trade demands also carry significant implications for a just transition, particularly in the communities and countries sourcing input materials and products for renewable energy and for developing countries dealing with the most significant effects of climate change.  
    Key legislation

    General Agreement on Tariffs and Trade  

    United States-Mexico-Canada Trade Agreement  (USMCA)  

    U.S. Trade Overview

    Global efforts to address climate change will have an enormous impact on U.S. exporters, importers, consumers, and the economy as a whole. In 2021, the United States’ top export was refined petroleum, followed by petroleum gas, crude petroleum, cars, and integrated circuits.[4] In the same year, the United States’ primary import was cars, followed by crude petroleum, computers, broadcasting equipment and packaged medicaments.[5] Its primary trading partners for import and export of goods are China, Canada, and Mexico.[6] Historically, trade in services has been dominated by personal travel for both imports and exports, with air transport also occupying a significant position in both import and export balances.[7] As a significant driver of the U.S. economy, major shifts in international trade have the potential to dramatically impact businesses, consumers, and the broader economy. Goods and services in carbon intensive and trade-exposed industries like petroleum products, cars, and air travel are especially susceptible to the impacts of climate change and accompanying regulation.

    General Impacts of Climate Change

    Climate change poses significant risks to international trade as it exists today. Supply chains are susceptible to the risks posed by increases in extreme weather and sea level rise as transport infrastructure, ports, and shipping routes are threatened.[8] Further, climate change also threatens agricultural production when extreme weather threatens crop yields.[9] Lower agricultural yields can also lead to domestic shortages which are likely to result in export restraints further impacting international trade.[10] High temperatures harm workers and decrease their safety and productivity as a result.[11] This, along with the impact of heat on some heavy machinery, can directly impact the manufacturing sectors.[12]

    As we have seen from COVID-19, supply chains and trade can also suffer severe impacts as a result of pandemic and disease. Unfortunately, research shows that climate change also increases the risks posed by disease, particularly diseases carried by mosquitos, ticks, rodents, and those diseases which thrive in warm, wet environments.[13] Pandemics and extreme weather also create significant disruptions to trade in services like tourism and air transport both through disruptions caused by major environmental disasters like hurricanes and floods, but also through the destruction of natural wonders like the Great Barrier Reef.[14]

    Furthermore, new regulations and legal requirements imposed by governments in order to address climate change are also likely to impact trade. Efforts to reduce reliance on fossil fuels will have an obvious impact the petroleum industry but are also likely to impact industries which rely heavily on carbon-intensive fuel sources like the transportation and industrial sectors, both of which are essential to the current U.S. trade system.[15] High-emitting companies and industry sectors contribute to the problem of climate change and therefore are typically most threatened by laws and regulations aimed at addressing climate change.

    Despite the risks that climate change poses to the international trade system, there are also significant opportunities for international trade to be a part of the solution to the climate crisis. In that respect:

    • With the widespread adoption of carbon pricing or regulations restricting emissions, countries with comparative advantages in producing low-carbon or carbon-free products stand to benefit from increased demand for those products.
    • Similarly, businesses and industries with the most resilient supply chains and infrastructure also stand to benefit from increased demand if competitors are negatively impacted. Trade in clean energy infrastructure and knowledge is also likely to accelerate the green transition.[16]
    • Access to renewable energy sources may also expand economic opportunity to areas and regions which previously lacked access to fossil fuels, thus accelerating their development.[17]
    • New policies in both developing and developed nations will also significantly impact international trade.

    Many of these are discussed below. It is also worth noting the importance of “transition critical minerals,” the mining of which may produce significant trade advantages for some nations while also threatening the environment in regions where these minerals are abundant.[18] While the Inflation Reduction Act (IRA) does include requirements that certain percentages of minerals in batteries come from the U.S., this does not alleviate the impact of increased demand globally on inhumane mining conditions.[19]

    Carbon Leakage and Competitiveness

    Since the Biden Administration announced ambitious goals to create a carbon-free power sector by 2035 and reach net-zero emissions for the economy as a whole by 2050, there have been concerns about the impacts that policies aimed at achieving that goal might have on the global competitiveness of U.S. businesses, such as through carbon leakage, discussed below. While the IRA provided resources to spur the growth of a competitive renewables industry and to transition other industries, trade policy must also be a part of this plan.[20]

    Carbon leakage has been used to describe the phenomenon of companies and jobs in energy-intensive, trade-exposed industry sectors shifting production from jurisdictions with heavy climate regulation and into less regulated countries. Addressing carbon leakage and broad competitiveness fears is an important part of any trade policy plan to reduce domestic carbon emissions. Some proposals have included using tools such as a carbon border adjustment mechanism or existing trade remedies like countervailing duties to address these concerns.[21] These proposals are discussed in more detail below.

    Trade Remedies and Countervailing Duty Law

    One proposal for using trade remedies to combat climate change and protect the U.S. economy from the effects of carbon leakage involves using countervailing duties, which are one of the trade remedies available under the Tariff Act of 1930. Trade Remedy investigations are conducted by the U.S. Department of Commerce pursuant to Title VII of the Tariff Act of 1930 and its accompanying regulations. These investigations serve as a mechanism by which the U.S. government can counteract unfair or illegal trade practices in a WTO compliant manner consistent with agreed-upon global rules.

    The use of countervailing duties to address climate issues by the U.S. government could involve the imposition of tariffs on products coming to the U.S. from markets with governments which do not adequately regulate carbon emissions.[22] However, this would be a very novel use of that trade mechanism and such an approach may lend credibility to the use of trade remedies in a climate context in ways which could have negative effects as well.

    Traditionally countervailing duties are used to counter the effect of unfair government subsidies from foreign trade partners. Specifically, under U.S. law, subsidies provided in the country of production may be addressed through the imposition of countervailing duties when they involve (1) a financial contribution by or on behalf of the government; (2) that confers a benefit; and (3) that is either (a) contingent on export or (b) “specific” to an enterprise, industry or group of industries. The idea behind this trade remedy is that foreign companies that benefit from specific subsidies provided to them by the government in the country in which that company is located are able to sell their products at a discount in the United States.[23] This is threatening to U.S. industry. Therefore, through countervailing duties, the U.S. puts tariffs in place to account for the benefit received by foreign companies as a result of those unfair subsidies. However, the Commerce Department has proposed a rule to change the agency’s existing policy.[24] This proposed rule would allow the agency to (i) rely on evidence of weak, ineffective, or nonexistent enforcement of environmental protections to reject certain prices as part of its benchmarking analysis in CVD proceedings; and (ii) treat certain unpaid or deferred fees, fines, and penalties as countervailable subsidies.[25]

    While such a mechanism could theoretically be applied to protect U.S. industries from competition with companies facing less climate regulation abroad, they could also be used by foreign governments to punish U.S. companies receiving climate subsidies from the U.S. government. Similarly, implementing an aggressive countervailing duty strategy without a comparably aggressive climate strategy, such as carbon pricing, within the U.S. may well generate a mirror response from U.S. trade partners.[26] It is also important to note that if such measures were to be taken, they would likely violate U.S. commitments under the WTO rules. Other authors have suggested that the U.S. could address imports from polluting economies through the use of antidumping remedies, which are another form of trade remedy intended to counteract benefits to companies that to sell products in the U.S. at prices below those of their home markets; or by invoking section 232 of the Trade Expansion Act, which gives the President powers over certain tariffs in a national security context.[27] However, these approaches are also novel and would likely face legal challenges.

    Recently, the use of trade remedies in the U.S. has also come into conflict with broader climate goals. In 2022, President Biden declared a national emergency and issued a two-year suspension on the collection of duties related to a trade remedy anti-circumvention inquiry into imports of solar panels from several southeast Asian nations.[28] The move was intended to ensure that new solar developments in the U.S. could continue, but it also highlights the obstacles trade remedies can impose on efforts to import the clean energy infrastructure which is needed to achieve emissions reduction targets. The decision to suspend solar tariffs also generated pushback from Congress, which attempted to override the President’s duty suspension based on claims that the duties were necessary to ensure U.S. solar cell manufacturers could compete with foreign imports. President Biden vetoed the congressional action.[29]

    It is also important to note that trade remedies have been used against numerous environmentally significant products, including solar cell imports from several countries, wind towers, and even petroleum products.[30] These cases highlight how different climate priorities can come into conflict. For example, efforts to build new domestic clean energy industries while simultaneously meeting current climate goals can come into conflict when existing renewables are sourced from abroad. Going forward, the field of trade remedies is likely to be significantly impacted by efforts to address climate change. This may involve pressure to achieve climate policy aims through trade remedies directly, or as a consequence of the products, countries, and companies already caught up in trade remedy disputes.

    Carbon Border Adjustment Mechanism (CBAM)

    As a general matter, a carbon border adjustment mechanism (CBAM) acts as a border tax adjustment to the price for certain carbon-intensive products in a way that accounts for the carbon emissions associated with their production.[31] In April 2023, the European Union (EU) adopted widespread reforms to its Emissions Trading System (ETS). This included the introduction of a CBAM between 2026 to 2034 which intends to align with the transitional phase-out of the allocation of free allowances. Prior to this reform, the EU ETS included a system of “free allowances” that exempted producers in certain energy-intensive, trade-exposed industry sectors from needing to purchase allowances for each metric ton of carbon dioxide they emit. Under the reformed ETS, the number of free allowances will be phased out over time for all sectors.[32] Unless some other arrangement is worked out, any companies which export products to the EU that do not meet the CBAM’s emissions requirements would be forced to pay a tariff on those products as a result of the policy.

    Canada and the United Kingdom have indicated interest in pursuing a similar policy. Recently, the United States has also considered implementing some kind of border pricing for products with carbon intensive production.[33] That being said, without a domestic system for pricing carbon it is very difficult to implement a CBAM and the United States has repeatedly failed to implement domestic carbon pricing in the past. At the same time, lacking carbon pricing could put countries at a competitive disadvantage when it comes to international trade. If some kind of carbon border adjustment becomes the global norm, carbon intensive industries in countries without border adjustments will struggle to export their products while the domestic markets of unprotected countries will become dumping grounds for excess supply of carbon intensive products which cannot penetrate protected markets.

    There is an argument to be made that because policies like the EU’s CBAM promotes differential treatment for imports of goods from countries with a carbon pricing system or similar price-based emission reduction incentives, that CBAM violates the EU’s most favored nation obligations under the GATT.[34][35] If challenged at the WTO, the EU’s CBAM and others like it may depend on having domestic carbon pricing. This domestic system allows them to make the case that they are not discriminatory against imports. These WTO challenges are another reason why implementing a CBAM without a broader domestic price on carbon can be a challenge.

    Global Arrangement on Sustainable Steel and Aluminum (GSA)

    Other actions which have combined trade and climate policy include efforts to negotiate special agreements which at least in part recognize climate goals. The bilateral trade negotiations on steel and aluminum conducted between the United States and European Union are one such agreement.[36] These negotiations are unfolding in the context of numerous conflicts within the context of the U.S-EU trading and investment relationship[37], with, the starting point of those tensions arising in 2018, when the U.S. imposed tariffs on EU-origin aluminum and steel under s 232 of the Trade Expansion Act of 1962, claiming that these imports threatened U.S. national security.[38] The EU responded by implementing retaliatory tariffs on certain U.S. imports.[39]

    In 2021, the United States and European Union commenced negotiations with a view to reach an agreement focused on facilitating trade in steel and aluminum in a way that addresses both carbon intensity and global overcapacity in those sectors.[40] As a gesture of good faith from both negotiating parties, both the U.S. and the EU suspended the application of their respective tariffs on steel. As at December 2023, a final agreement is still yet to be reached.

    Thus far, a major sticking point has been an effort to prioritize domestic producers in the United States (particularly under the IRA), which the European Union has claimed would run afoul of WTO rules.[41] The United States has also proposed a system under which members would have to commit to limiting the role of state-owned enterprises, to end overproduction of steel, and to set standards for emissions.[42] Those members who do not meet the emissions standards would be subject to retaliatory tariffs. The European Union, on the other hand, would like to make carbon pricing the central structure for any deal, while relying on more traditional trade tools to continue to address overcapacity.[43] The stakes are high, not only because of the climate implications, but also because without a settled agreement deal, high tariffs on steel and through the CBAM will continue to be an issue. If successfully negotiated, the deal could serve as a framework for other products beyond steel and aluminum. It could also become a model for other trade deals with governments beyond the European Union.

    Other Trade Agreements

    The U.S. Trade Representative (USTR) has affirmed U.S. commitments to “[i]dentifying new and innovative approaches to tackle climate change through bilateral, regional, and multilateral engagement.”[44] In pursuit of this priority, USTR has joined discussions at the WTO focusing on how trade can help combat the climate crisis. The State Department lists 13 current free trade agreements which include environmental chapters, including the USMCA (The U.S.-Mexico-Canada Trade Agreement), and many bilateral trade agreements. The USMCA, for example, has clauses promoting energy efficiency, the development of low emission technology, and developing green growth.[45] While the agreement, which was negotiated during the Trump Administration, does not specifically address climate change, and was criticized by current U.S. Trade Representative Katherine Tai for that omission, these provisions are a step forward and an indication of the global appetite for environmental protections in trade agreements.[46] Under the current administration we can expect climate provisions to be a state priority in any future negotiations.

    The WTO

    New policies implemented in the United States and elsewhere have been met with opposition in the WTO. The threat of challenges to the IRA, the U.S. government’s most significant investment in addressing climate change to date, is a good example. In particular, provisions that favor domestic production may present violations of WTO trade agreements. The United States would only face formal repercussions for these policies if another member brought an action against IRA priorities and it is arguable that the IRA could be defended pursuant to the general exception rule under Art XX of the GATT.

    The WTO has previously indicated that it would like to avoid declaring green subsidies to be a violation of its provisions, but this may only be a short-term solution.[47] While there have been many calls to reform the WTO Appellate Body, one such necessary reform could include a separate process for handling green subsidies and clean energy policies. It is almost certain that these kinds of disputes will continue as more climate-oriented policies are adopted and implemented. However, any WTO reform must be agreed to by its members, making for a challenging and unlikely proposition given the failure of past efforts to make the organization function more effectively.

    Fossil Fuel Subsidies vs. Green Energy Subsidies

    U.S. spending on fossil fuel subsidies is estimated to range from $10-50 billion a year, comprising a range of benefits across the U.S. Tax Code.[48] As climate change increasingly becomes a priority for the Biden Administration, these subsidies have come under pressure as domestic interest groups call for a reduction in the provision of benefits to fossil fuel producers as part of a shift towards renewable energy. Subsidies for energy sources like oil and natural gas have become more common in the current inflationary environment as governments try to shield consumers from rising prices.[49] While this is a potentially effective short-term political strategy, these subsidies may be treated as violations of WTO obligations in some circumstances and can be the target of trade remedy investigations. As countries become less dependent on oil or oil-based products, it may become more common for trade remedy actions to be brought as a result of subsidies to fossil fuel companies or to products which are produced using subsidized fuel sources.

    Meeting the Paris Climate Goals and Trade’s Role in Achieving Net-Zero

    As discussed above, the United States’ meeting a goal of producing 100% carbon-free electricity by 2035 will likely depend upon its sourcing materials from other countries through international trade. Imports of solar products have historically been especially contentious, but wind turbines and battery inputs are also often imported and have been subject to trade remedies.[50] International trade will be very important in sourcing the products needed for this transition as energy systems, buildings, and the transportation sector are overhauled to develop green energy infrastructure.

    Just as trade is necessary for implementing the infrastructure and technology necessary to reduce dependence on fossil fuels, it can also act as a stick pushing other countries to do the same. As we have seen, the EU’s introduction of a CBAM has pushed countries to the negotiating table.

    Current U.S. investments through the IRA are a step towards meeting some of these climate goals, but it will be important to defend those investments against challenges claiming they are WTO inconsistent. Going forward, the United States must find a way to either obtain exemptions for its climate programs, make them WTO compatible, or deal with possible trade repercussions. Successfully applying trade practices to the climate crisis will help the world adapt, but policy and legal failures in this field will likely lead to trade wars which will hinder climate progress and may have broader political repercussions as well.[51]

    The Just Transition

    As trade law and climate policy interact, it is also important to recognize the impact of trade and climate policies on poverty and natural resource extraction in frontline communities around the world. Demand for new sources of energy will require new technologies and new natural resources. This will come with labor and environmental repercussions. For example, the construction of solar panels has come under fire because of the use of forced labor in China and Malaysia.[52] Critical minerals for the energy transition like cobalt, lithium, and copper have also been linked to child labor, exploitation of land owned by indigenous people, and increased pollution.[53] As incentives by the U.S. and other countries grow, international trade can obscure the human rights abuses that accompany the supply of the resources used by developed, economic powerhouses to transition towards clean sources of energy without economic consequences. Companies and governments must become aware of these abuses, address them openly, and should avoid relying upon supply chains that trade one evil for another.[54]

    The transition to a renewable economy could also have negative economic consequences for countries, particularly for countries which are currently dependent on or building economies around fossil fuels as a method of pulling their populations out of poverty and growing their economies. When developing nations are asked to “leapfrog” past using fossil fuels and move straight to renewables, they can face challenges including energy security.[55] This may require different approaches to net zero for countries with different levels of development given important environmental and social justice considerations. It will also require international investment and support through trade and other financing to build up renewable energy in countries which are currently in the process of scaling up energy infrastructure and capacity.

    Conclusion

    In the past, trade law has been used to facilitate a transition towards a more responsible approach to environmental issues. Trade policy can be used to advance environmental objectives when a thoughtful approach is taken to the implications of new government programs and international collaboration is at the heart of new laws and policies. Going forward, climate change will be the most significant test of this theory and lawyers practicing trade law in the United States should be prepared to grapple with the implications of this new reality.


    [1] In accordance with Art. 4 of the Paris Agreement. Also see: ‘FACT SHEET: President Biden Sets 2030 Greenhouse Gas Pollution Reduction Target Aimed at Creating Good-Paying Union Jobs and Securing U.S. Leadership on Clean Energy Technologies‘ (The White House, 22 April 2021) <https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-leadership-on-clean-energy-technologies/> accessed 24 April 2024.

    [2] Ibid. 

    [3] Ibid.

    [4] The Observatory of Economic Complexity, <https://oec.world/en/profile/country/usa> accessed 24 April 2024.

    [5] Ibid. 

    [6] Ibid. 

    [7] Ibid. 

    [8] Danae Kyriakopoulou et al, ‘How does climate change impact on international trade?‘ (Grantham Research Institute on Climate Change and the Environment, 12 June 2023) <https://www.lse.ac.uk/granthaminstitute/explainers/how-does-climate-change-impact-on-international-trade/> accessed 24 April 2024.

    [9]Trade and Climate Change‘ (The World Bank) <https://www.worldbank.org/en/topic/trade/brief/trade-and-climate-change> accessed 24 April 2024.

    [10] Kyriakopoulou et al (2023).

    [11] Margaret C Morrissey et al, ‘Impact of occupational heat stress on worker productivity and economic cost‘ (American Journal of Industrial Medicine, vol. 64:12, December 2021)

    [12] Kyriakopoulou et al (2023).

    [13] Claire Klobucista & Lindsay Maizland, ‘Perilous Pathogens: How Climate Change Is Increasing the Threat of Diseases’ (Council on Foreign Relations, 04 November 2022) <https://www.cfr.org/article/perilous-pathogens-how-climate-change-increasing-threat-diseases> accessed 24 April 2024.

    [14] Kyriakopoulou et al (2023).

    [15]Consumption of primary fossil fuel energy in the United States from 1990 to 2022, by sector‘ (Statista, May 2023) <https://www.statista.com/statistics/244429/us-fossil-fuel-energy-consumption-by-sector/> accessed 24 April 2024.

    [16] Kyriakopoulou et al (2023).

    [17] Ibid.

    [18] Simon Dikau et al, ‘What are ‘critical minerals’ and what is their significance for climate change action?‘ (Grantham Research Institute on Climate Change and the Environment, 30 May 2023)

    <https://www.lse.ac.uk/granthaminstitute/explainers/what-are-critical-minerals-and-what-is-their-significance-for-climate-change-action/> accessed 24 April 2024.

    [19] Meredith Wolf Schizer, ‘Clean Energy’s Dirty Secret – Human Rights Abuses in Cobalt Mining’ (Newsweek Magazine, 25 January 2023) <https://www.newsweek.com/2023/02/10/clean-energys-dirty-secrethuman-rights-abuses-cobalt-mining-1775174.html> accessed 24 April 2024.

    [20] Allison Good & Molly Christian, ‘IRA at 1: US heralds clean energy manufacturing ‘renaissance’‘ (S&P Global Market Intelligence, 07 August 2023) <https://www.spglobal.com/marketintelligence/en/news-insights/latest-news-headlines/ira-at-1-us-heralds-clean-energy-manufacturing-renaissance-76610817> accessed 24 April 2024.

    [21] Joseph E. Aldy, ‘Addressing the Leakage and Competitiveness Risks of Climate Policy‘ (Resources for the Future, Issue Brief 21-14, 05 October 2021).

    [22] Ibid.

    [23] It is important to note that transnational subsidies are not actionable under U.S. law. See 19 C.F.R. § 351.527. However, the Commerce Department has proposed a rule to change the agency’s existing policy, stating that “[a] limitation on Commerce’s ability to countervail subsidies only if those subsidies were provided to entities of a country solely by the government of that country, when subsidies from other foreign governments would otherwise be determined countervailable under the CVD law and could prove injurious to producers of the domestic like product, is inconsistent with the very purpose of the CVD law….”

    [24] This rule states that “[a] limitation on Commerce’s ability to countervail subsidies only if those subsidies were provided to entities of a country solely by the government of that country, when subsidies from other foreign governments would otherwise be determined countervailable under the CVD law and could prove injurious to producers of the domestic like product, is inconsistent with the very purpose of the CVD law….”

    [25] See 88 Fed. Reg. 29,850, 29,859 (Department of Commerce, 09 May 2023) (“…if a government does not require companies to mitigate the environmental impact of production, either through investing resources to avoid or minimize the environmental impacts, or by paying compensation for such impacts, [a company’s] costs of production will be lower.”).

    [26] Ibid.

    [27] Stephen C. Tosini, ‘Trade Remedies and Climate Change: How the United States Can Use its Buying Power and Trade Laws to Encourage Clean Energy‘ (United States Court of International Trade, 31 January 2011).

    [28] Jeff Mason, ‘Exclusive: Biden to waive tariffs for 24 months on solar panels hit by probe‘ (Reuters, 06 June 2022) <https://www.reuters.com/world/us/exclusive-biden-use-executive-action-spark-stalled-solar-projects-amid-tariff-2022-06-06/> accessed 24 April 2024.

    [29] Donald Judd, ‘Biden officially vetoes resolution blocking temporary suspension of tariffs on solar panel imports‘ (CNN Politics, 16 May 2023) <https://edition.cnn.com/2023/05/16/politics/biden-vetoes-solar-panel-tariff-resolution/index.html> accessed 24 April 2024.

    [30] Aproop Bhave & Joanne Gill, ‘Trade remedies and climate change policy – allies or enemies?‘ (Trade Remedies Authority, 02 August 2022) <https://traderemedies.blog.gov.uk/2022/08/02/trade-remedies-and-climate-change-policy-allies-or-enemies/> accessed 24 April 2024.

    [31] Martin Dietrich Brauch et al, ‘Event Highlights: Carbon Border Adjustments in the EU, the U.S., and Beyond‘ (Columbia Center on Sustainable Investment, December 2021) <https://ccsi.columbia.edu/content/event-highlights-carbon-border-adjustments-eu-us-and-beyond> accessed 24 April 2024.

    [32] Ibid.

    [33] Ibid.

    [34] See The General Agreement on Tariffs and Trade 1947 (GATT), Art. 1.

    [35] It could also be argued that the CBAM contravenes the EU’s obligations under Arts 2, 3, and 11 of GATT. Further it may also contravene the Agreement on Subsidies and Countervailing Measures.

    [36]Fact Sheet: U.S. – EU Arrangements on Global Steel and Aluminum Excess Capacity and Carbon Intensity‘ (Office of the United States Trade Representative, October 2021) <https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2021/october/fact-sheet-us-eu-arrangements-global-steel-and-aluminum-excess-capacity-and-carbon-intensity> accessed 24 April 2024.

    [37] Bernd G. Janzen et al, ‘What’s causing EU-US Impasse on Steel and Aluminium‘ (Law360, 28 July 2023).

    [38]A Proclamation on Adjusting Imports of Steel Into the United States‘ (The White House, 28 December 2023) <https://www.whitehouse.gov/briefing-room/presidential-actions/2023/12/28/a-proclamation-on-adjusting-imports-of-steel-into-the-united-states-5/> accessed 24 April 2024.

    [39] Ibid.

    [40]Joint EU-US Statement on a Global Arrangement on Sustainable Steel and Aluminium‘ (European Commission, 31 October 2021) <https://ec.europa.eu/commission/presscorner/detail/en/ip_21_5724> accessed 24 April 2024.

    [41] Andy Bounds, ‘EU rejects US offer to end steel tariff dispute‘ (Financial Times, 28 June 2023) <https://www.ft.com/content/42d968e5-cb13-4ccb-9f93-b1a321303a14> accessed 24 April 2024.

    [42] Ibid.

    [43] Ibid.

    [44]Environment & Natural Resources‘ (Office of the United States Trade Representative) <https://ustr.gov/issue-areas/environment> accessed 24 April 2024.

    [45]Agreement on Environmental Cooperation among the Governments of the United States of America, the United Mexican States, and Canada‘ (U.S. Department of State, 2019) <https://2017-2021.state.gov/wp-content/uploads/2019/02/Environmental-Cooperation-Agreement-U.S.-Mexico-Canada-.pdf> accessed 24 April 2024.

    [46] James Bacchus, ‘USMCA Forward: Building a more competitive, inclusive, and sustainable North American economy‘ (Brookings Insitution, February 2022) <https://www.brookings.edu/articles/usmca-forward-building-a-more-competitive-inclusive-and-sustainable-north-american-economy-climate/> accessed 24 April 2024.

    [47] Steve Charnovitz & Carolyn Fischer, ‘Canada–Renewable Energy: Implications for WTO Law on Green and Not-So-Green Subsidies‘ (World Trade Review, vol. 14:2, April 2015).

    [48] Reuters, ‘Biden budget to target U.S. fossil fuel subsidies‘ (Reuters, 09 March 2023) <https://www.reuters.com/business/energy/biden-budget-target-us-fossil-fuel-subsidies-2023-03-09/> accessed 24 April 2024.

    [49] Ibid.

    [50] Anya Breitenbach, ‘Stronger Supply Chain Links to a Clean Energy Future‘ (National Renewable Energy Laboratory, 03 November 2022) <https://www.nrel.gov/news/features/2022/stronger-supply-chain-links-to-a-clean-energy-future.html> accessed 24 April 2024.

    [51] Ana Swanson, ‘Climate Change May Usher in a New Era of Trade Wars‘ (New York Times, 25 January 2023) <https://www.nytimes.com/2023/01/25/business/economy/climate-change-global-trade.html> accessed 24 April 2024.

    [52] Ivan Penn & Ana Swanson, ‘Solar Company Says Audit Finds Forced Labor in Malaysian Factory‘ (New York Times, 15 August 2023) <https://www.nytimes.com/2023/08/15/business/energy-environment/first-solar-forced-labor-malaysia.html> accessed 24 April 2024.

    [53] Juliane Kippenberg, ‘Germany’s Rush for ‘Critical’ Minerals is a Human Rights Challenge‘ (Human Rights Watch, 09 June 2023) <https://www.hrw.org/news/2023/06/09/germanys-rush-critical-minerals-human-rights-challenge> accessed 24 April 2024.

    [54] For instance, see the Uyghur Forced Labor Prevention Act (UFLPA) and related enforcement of imports of solar products by U.S. Customs and Border Protection (CBP).

    [55] Rahul Tongia, ‘It is unfair to push poor countries to reach zero carbon emissions too early‘ (Brookings Institution, 26 October 2022) <https://www.brookings.edu/articles/it-is-unfair-to-push-poor-countries-to-reach-zero-carbon-emissions-too-early/> accessed 24 April 2024.