• wallacejnichols
• Nov. 6, 1999
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Cover Photo AP: Wallace J. Nichols, A University of Arizona Wildlife Ecology Doctoral Candidate, Holds Up A Black Sea Turtle At A Beach In Baja California. The Turtle Is One Of Several Species Of Sea Turtle Threatened By Nets From Shrimp Boats

Science
Caught In A Tangled Net
Business: Tuesday, November 16, 1999

David Postman
Seattle Times Olympia Bureau

THE WTO AND ENDANGERED SPECIES. The fate of the giant sea turtle is tugged in a complex dispute between environmentalists and champions of free trade.

Amidst the turmoil around this month's meeting here of the World Trade Organization, the protests, the debate over free or fair trade - consider the giant sea turtle.

The hulking, antediluvians are a symbol of conflict between environmental laws and the free-trade agenda pursued by the Clinton administration and enforced by the WTO.

Turtles became players in the free-trade wars when U.S. efforts to protect them were caught up in history's most far-reaching free trade agreement: the 1995 creation of the WTO, a group of 135 countries that act as the supreme court on international trade policies.

The U.S. had been trying since 1991 to use the Endangered Species Act (ESA) to protect turtles internationally by banning imports of shrimp caught in nets not certified as turtle-safe. But a group of Asian countries in 1997 complained to the WTO that the environmental protection was really an illegal trade barrier.

Last year, the WTO said countries have the right to control imports to protect the environment, but also said the United States would face trade penalties if it persisted.

Still, the U.S. government called the WTO ruling a victory for the environment. And the most ardent free traders in a sense agreed, saying it gave environmentalists too much power and could lead to domestic environmental laws polluting international trade agreements.

But environmentalists saw no victory and point to a simple fact: The ruling led the United States to ease enforcement of the ESA.

Opponents of the WTO worry that other environmental safeguards will be weakened as free trade grows around the globe.
For green groups organizing mass street demonstrations during the WTO meeting Nov. 30 through Dec. 3, the turtle has become the new spotted owl - the poster species that helps explain the fight against globalization and puts a face, although an odd one, on the arcane world of trade policy.

LEATHERBACKS AND RIDLEYS

Turtles swim primarily in warm, coastal waters around the world.

Some species can grow to be 6 feet long and weigh 1,000 pounds. They've been swimming for 150 million years, including trans-oceanic migrations: leatherbacks from Australia to California and ridleys from South America to New Jersey.

"In a way they are the original international traders," said Josh Knox of the California-based Sea Turtle Restoration Project.

There was a time when tens of thousands of giant sea turtles could be spotted during a few hours of beach surveillance.

Today, they are in danger of becoming extinct. There are only 2,000 Kemp's ridley turtles - the world's most endangered sea turtle.

The turtles are in danger partly because they share the ocean with shrimp. The turtles drown when they get caught in shimp-boat nets.

One of the best ways to protect turtles is installing "turtle-excluder devices," known as TEDs, on shrimp nets. The devices look like barbecue grills that guide turtles to an escape hatch in the nets.

They cost up to $400 apiece.

Boats in the U.S. shrimp fleet have been required to use TEDs since 1987.

Congress amended the ESA in 1989 to require any country that exports shrimp to the United States to develop a program that protects turtles at least as well as the turtle-excluder devices.

The law required a country be certified as turtle-safe before its shrimp could be sold in the United States. To do that, foreign fishing fleets had to show that every boat had installed TEDs or similar technology, not just those sending shrimp to the United States.

The government worked with Caribbean and Latin American countries, giving them technical assistance and three years to phase in a program to put TEDs on all their fleets' shrimp nets.

The State Department, though, did not enforce the law internationally. To make that happen, environmentalists went to court in 1992. They won.

The United States Court of International Trade, a federal court formerly known as the Customs Courts, ordered the State Department to extend the shrimp ban worldwide.

The department did that in May 1996, setting up the major test of how domestic environmental laws mesh with international trade treaties.

When the United States said it would allow only imports of shrimp caught in turtle-safe nets, the World Trade Organization said that violated the trade treaty.

Secretive and ill-informed.

WTO critics say free trade too often trumps environmental laws and that the WTO's dispute-resolution system is secretive and ill-informed.

"This isn't about trade rules, this is about protecting the environment and responsibility across borders to protect common species," said Peter Fugazzotto, associate director of the Sea Turtle Restoration Project. The group has gone to court over the turtle-protection law.

"Do we need an international body changing U.S. laws? I don't think so," Fugazzotto said. "The WTO needs to be based on the values people hold dear - environment, human rights, democracy. Trade agreements shouldn't be shaping us; we need to be shaping the trade agreements."

WTO officials say the anger is misdirected. It's up to the United States to decide how to respond to WTO rulings. The government could have chosen to maintain its turtle-protection program and face WTO-approved trade sanctions.

"It often suits governments to just blame the WTO rather than take the heat themselves," said Keith Rockwell, the WTO's chief Geneva-based spokesman.

But WTO officials caution that environmental laws can be protectionism in disguise.

"Remember also that developing countries are quite sensitive to heavy-handed tactics by the United States," Rockwell said.

WTO Director General Mike Moore defended the organization's environmental record when he faced opponents during a visit last month at the University of Washington.

"We are aware, and of course every country is aware, of environmental issues," Moore said. "It weighs heavily on our member governments and their ministers."

In the turtle case, as with other environmental cases, Moore said the problem was that the law was not being enforced uniformly.

"At the core of the World Trade Organization rules . . . is the issue of non-discrimination," Moore said. "You shouldn't try to impose on one country or one importer or exporter a set of rules you weren't prepared to apply to yourself or to all countries."

A stern Moore lectured American critics: "Don't you go singling out one country. That is a use of force."

COSTA RICAN UNDERWEAR

WTO officials say they can't make any country follow its rules. But under the treaty, if a country is found to be in violation it can either repeal the offending law or face WTO-approved trade sanctions.

The environment is a small piece of what the WTO oversees. The 182 cases it has heard in four years include disputes involving Brazilian airplanes, Costa Rican underwear, European satellites, Caribbean bananas, Pakistani cow hides, Korean beef and Pisco, a Chilean whiskey.

In 1997 it was Thailand, India, Malaysia and Pakistan that filed a WTO complaint against the United States' efforts to protect sea turtles.

The Endangered Species Act, they said, was being "applied in an abusive manner so as to frustrate the substantive rights of the (countries) under the WTO agreement."

The four countries said it was unfair that Caribbean and Latin American countries had been given three years to comply with the U.S. law while the rest of the world's shrimp fleet was given four months.

They also relied on a key provision in the WTO agreement.

Countries are not allowed to make import or export distinctions based on how a product is manufactured or harvested. A shrimp is a shrimp, they argued, whether it is grown in a tank or caught in the wild where giant sea-turtles swim.

An initial decision by a three-member panel said the U.S. law was "clearly a threat to the multilateral trading system."

The United States appealed. An appeal panel technically overturned the original decision, saying the ESA did not specifically violate the WTO agreement.

But a problem remained: The appeal panel said the way the United States applies the law "constitutes arbitrary and unjustifiable discrimination between members of the WTO."

There was a concern, though, how critics would read the decision. The panel wrote it wanted "to underscore what we have not decided in this appeal. We have not decided that the protection and preservation of the environment is of no significance to the members of the WTO. Clearly, it is."

But the attempt at spin control didn't stop wildly different interpretations of the decision.

The decision gave too much leeway for countries to use environmental laws as trade barriers, according to former Republican congressman Jack Kemp.

"Entangling the rules of free trade with each nation's individual vision of what constitutes green regulatory and tax policy is asking for trouble," Kemp wrote earlier this year in The Financial Times of London. "We cannot burden the trading system with so much regulatory freight that it will collapse in on itself."

But environmentalists weren't happy with the decision.

"There is a general trend of where the WTO says you can do whatever you want but only in the way they say you can do it," said Lori Wallach, director of Public Citizen's Global Trade Watch.

"The instance with the turtle case is one of the scariest of all, even with the pleasant language meshed."

The State Department called the appeal a victory. Unlike the original decision, it said the ESA wasn't necessarily a violation of the WTO agreement, just in the specifics of the turtle case.

The complaining countries "were hoping to get the law overturned and the WTO did not do that," said David Balton, director of the State Department's Office of Marine Conservation. "In fact it went so far as to say the U.S. has the right to prohibit imports of shrimp harvested in ways harmful to sea turtles, provided we do so flexibly, openly and even-handedly, and that we try to negotiate multi-lateral solutions and make available technical assistance."

Instead of requiring countries to show that all boats had turtle excluder devices, the State Department has proposed "shipment-by-shipment" regulations that TEDs need be only on nets of boats exporting shrimp to the United States.
That was opposed by the National Marine Fisheries Service. In April, the Court of International Trade said in a preliminary ruling that the new approach violated U.S. law.

"The intention of the law wasn't really to make consumers feel morally good that `no turtle died to get me this shrimp,' " said Mark Vallianatos, international policy analyst with Friends of the Earth. "You want to change the behavior of fishing fleets around the world."

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