A climate crisis is upon us—the scientific evidence is overwhelming. The question is how to respond quickly and decisively on all fronts—at both a domestic and an international level. Carbon pricing is a key mechanism that economists believe is essential to reduce carbon emissions and mitigate climate change. With this in mind, we believe the time has come to harness the power of global trade by using international trade laws to create incentives for a global economy in which the price of carbon is considered in regulating international trade flows. A new administration in Washington provides an opportunity for a more creative approach in which trade policy also serves climate policy. Indeed, President Biden explicitly stated in his climate change platform that “[w]e can no longer separate trade policy from our climate objectives.”

The Biden administration can use existing international trade laws—without delay and without legislation—to take action in response to the global climate crisis. By doing so, the US can lead the way and help shape an international regime that will provide an incentive for companies around the world to price carbon in connection with their operations or face economic consequences at the US border.

Two existing trade remedy laws facilitate such an approach: (1) Section 301 of the Trade Act of 1974 and (2) the countervailing duty law. Together or individually, these laws provide a basis for immediate action creating commercial incentives for responsible behavior by US trading partners. Thoughtful use of Section 301 and the countervailing duty law would be consistent with sound climate policy and ensure that US workers are not disadvantaged by competition with foreign industries that ignore the carbon cost of products they export to the United States.

Section 301 authorizes trade retaliation against “an act, policy, or practice of a foreign country” that “is unjustifiable and burdens or restricts United States commerce.” This broad language should be interpreted as including industrial practices that fail to recognize the cost of carbon in the production of products imported into the United States. For example, the production of steel in China benefits from low-cost, carbon-intensive manufacturing. These unpriced carbon costs disadvantage US steel companies, which compete with Chinese steel imports, no less than other Chinese government policies that directly subsidize the Chinese steel industry. The United States could utilize Section 301 to increase pressure on trading partners such as China and, absent a change in behavior, impose duties to offset the negative impact of carbon-intensive production practices on US industries.

Likewise, the US countervailing duty law is sufficiently flexible to facilitate recognition of the cost of carbon, consistent with other efforts to expand the concept of what constitutes an unfair subsidy. For example, just last year the Department of Commerce revised its countervailing duty regulations to permit currency undervaluation to be treated as a subsidy.  Under this new approach, Commerce recently determined that Vietnam’s currency practices provide an unfair advantage to Vietnamese exporters and justify the imposition of countervailing duties on Vietnamese imports. The simple point is that US trade officials have now recognized that a broader set of foreign government policies are just as pernicious as the traditional subsidization practices that have long been the basis for imposing countervailing duties to protect US workers from unfair foreign competition.

We anticipate that our suggestions could be met with skepticism on the grounds that we are advocating an expansion of traditional notions of unfair trade practices. So be it. We are in a global crisis and business as usual will not do. Our point is to cut through the red tape and bureaucratic delays that have traditionally characterized the federal government’s response to the climate crisis. If nothing else, these trade tools could serve as forcing mechanisms to incentivize more effective international cooperation to fight climate change. Better to act immediately using the international trade tools we already have at our disposal than engage in a lengthy debate over procedure while the jobs and prosperity of US citizens are threatened by imports from countries unwilling to do their part in combatting climate change. There is no time to wait.

______________________________________________________________________

Mark Herlach, a partner at Eversheds Sutherland, is an international lawyer with a practice focused on energy, international trade and defense matters. Mark represents a broad range of clients, including corporations, advanced-technology companies and governments. Emily Rosenblum, an associate at Eversheds Sutherland, is a member of the Energy Group and international trade practice. Emily advises clients on a wide range of regulatory and commercial issues involving international trade.