WTO law issues of emissions trading

NCCR Working Paper 2016/1 by Kateryna Holzer:

Based on existing research in the interface of emissions trading schemes (ETSs) and WTO law, the paper looks more closely at the design elements of an ETS that are most vulnerable to a WTO challenge, including border adjustment on importation and exportation, recycling of revenues and cross-border linking. The analysis of WTO consistency of various ETS regulatory components reveals significant legal uncertainty. One explanation is that an ETS is not yet fully established as a regulatory tool. It does not have a fixed design and its design elements vary significantly with a scheme. Moreover, ETS-related issues have never been raised in WTO disputes. This makes it hard to predict with confidence the outcome of scrutiny of an ETS by a WTO adjudicative body. In this respect, the availability of environmental and/or health exceptions for justification of ETS-related measures is of great importance.