A Kantian Approach To Trade And TheEnvironment

At the outset let me note that I am delighted to see someone of Professor Richard Stewart's caliber taking aim at the trade and the environment debate.(1) Professor Stewart's article entitled International Trade and Environment: Lessons from the Federal Experience presents an interesting and informative discussion of how legal principles developed in the federal-type systems of the United States and the European Community can be examined as a template for solving many of the most troubling questions now being raised concerning the interplay between trade and the environment at the international level.(2) While Professor Stewart's analytical structure is informative, and in certain instances can provide answers to some of the problems raised by conflicts between trade and the environment, I caution against borrowing too much from the federal framework. This cautionary note is necessary because substantially different assumptions are at work when a federal system deals with commerce and environmental regulations, and when the international system deals with the interplay between trade and the environment.(3) This comment deals with these different assumptions on a theoretical level and addresses how these theoretical differences can effect substantial, real world differences in trade and environmental policies.The comment closes with an alternative vision of trade and the environment premised on mutually reinforcing trade and environmental policies--"competitive sustainability."I. MILLS v. KANTProfessor Stewart begins his analysis by observing that both trade and environmental measures are aimed at promoting human welfare.(4) He adds that " t!his conception rejects the position that environmental protection is an autonomous moral duty--an independent absolute."(5) Having assumed that both trade and environmental measures serve the common good, it is easy to apply a Millsian analysis, involving the greatest good for the greatest number, in solving trade and environment conflicts as Professor Stewart attempts to do.(6) Under a Millsian analysis, there are no conflicting trade and environmental agendas, only misguided regulatory efforts. Environmental measures that diminish some undefinable common good are inappropriate, as are trade measures that harm the same common good by undercutting the environmental bases of our society.Although these simple equations are appealing, they have been highly criticized and generally rejected. Mill's approach generally fails to take into account the widely held belief that certain values are so central to humanity that they must be protected even at a cost to the larger society.(7) Further, these normative values are offended when one suggests that they may be "priced." Many critics have described these values in terms of ethical or categorical imperatives.(8)The concept of a categorical imperative, defined by the philosopher Immanuel Kant as "an action...objectively necessary in itself," without need for reference to another end,(9) is particularly germane to the goal of environmental protection. Assuredly much of environmental protection can be justified, as Professor Stewart argues, as part of the improvement of human welfare." Thus, providing potable water is a necessary component of both improving environmental quality and standards of living for humankind. Other environmental objectives, however, are not so easily or directly linked with meeting the immediate needs of humanity and are, perhaps, most easily justified under ethical concepts as opposed to utilitarian concepts.An excellent example of such an environmental and ethical objective is species preservation. While the preservation of some species can be linked to human consumptive needs or the economics of biodiversity protection, many, if not most species have little value to humans outside of our spiritual or ethical need to know that these animals and plants exist somewhere.(11) Consider, for example, the efforts to preserve the California condor. …