Justice for the sea turtle: marine conservation and the Court of International Trade.

• Author: Kibel, Paul Stanton

I.

INTRODUCTION: THE PLAINTIFF SURFACES

On April 10, 1996, the United States Court of International Trade (CIT) issued a landmark decision in Earth Island Institute v. Christopher.(1) In this case, the CIT ordered the U.S. State, Commerce, and Treasury Departments to block the importation of shrimp from all nations that had not adopted adequate policies to protect sea turtles.(2) Worldwide, over one hundred thousand sea turtles are killed each year as a result of shrimp-harvesting operations: the turtles drown trying to escape the shrimp nets.(3)

The CIT based its ruling on an interpretation of a 1989 amendment to the federal Endangered Species Act (ESA), [sections] 609.(4) Section 609 created a shrimp "certification" program, wherein nations desiring to export shrimp to the U.S. must be certified by the U.S. government.(5) The U.S. government can only provide this certification if the exporting nation can demonstrate that it harvests shrimp using methods that provide a level of protection to sea turtles comparable to protection provided for under U.S. conservation laws.(6) Absent proof of comparable turtle protection laws, the U.S. government is required to ban shrimp imports.(7)

Although [sections] 609 requires that the shrimp certification be in place by May 1991, U.S. agencies did not meet this deadline.(8) Instead, they adopted regulations to limit the nations to which [sections] 609 applied, and to delay the application of the certification/ embargo provisions to these nations.(9) The plaintiffs in Earth Island challenged the legality of the government's limiting and delaying regulations, alleging that such, regulations were inconsistent with the plain language and requirements of [sections] 609.(10) The CIT agreed with the plaintiffs, and ordered the State, Commerce, and Treasury Departments to implement the certification and import ban programs by May 1, 1996.(11)

The Earth Island litigation is significant for at least three reasons. First, it establishes the CIT as the leading judicial forum, and most likely the exclusive trial court, for resolving legal issues surrounding trade-based environmental restrictions. Given the emerging nexus, both legally and economically, between international trade and the environment, this jurisdictional point is likely to take on ever-increasing importance. Second, on the issue of standing for environmental advocates, the Earth Island decision provided an important clarification of the U.S. Supreme Court's 1992 decision in Lujan v. Defenders of Wildlife.(12) More specifically, it found that the Lujan decision was not a significant obstacle for environmental plaintiffs seeking review of U.S. government actions, so long as the remedy sought was likely to further or protect the plaintiffs' specific interests. Third, the CIT decision is significant for the arguments and legal principles that the court chose to reject. Most noteworthy was the CIT's rejection of the agencies' inadequate time and resources defense, and its conclusion that the shrimp certification program did not compromise U.S. international trade obligations.

This article will explore the origins and likely implications of the CIT's ruling in Earth Island. First, it will examine the threat posed to sea turtles by international shrimp fishing practices, and the U.S. Congressional response to this threat. Next, it win summarize the history and outcome of the Earth Island decision. Finally, the article will discuss the emerging conflict between [sections] 609 and the rules of international trade, in particular the rules established under the General Agreement on Tariffs and Trade.(13)

II.

SEA TURTLES UNDER THREAT: THE CONGRESSIONAL RESPONSE

The population of sea turtles worldwide is threatened by destructive fishing practices.(14) The scientific community now recognizes that several species of sea turtles are now facing possible extinction.(15) It is estimated that over 125,000 turtles die every year, not to serve as food for people, but because they are hauled in (and drowned) as unwanted bycatch for target catch such as shrimp and tuna.(16) As such, the sea turtles are a casualty of industrial fishing practices, of technology designed to increase the efficiency and decrease the expense of harvesting marketable target fish products and seafood.

According to the National Marine Fisheries Service (NMFS), a U.S. Commerce Department subagency responsible for implementing the federal Endangered Species Act, there are currently at least four species of sea turtles that now face possible extinction: the loggerhead, the green leatherback, the hawksbill and the Kemp's ridley.(17) Of these species, the Kemp's ridley turtle is the most threatened, with fewer than 1500 nesting turtles remaining in the wild.(18)

In terms of industrial fishing, there are two fish harvesting practices that have had particularly harsh impacts on sea turtles. The first is the use of large-scale pelagic nets. The second is the use of mechanized shrimp trawlers. The United States has played a leadership role in enacting domestic laws to reduce the destructive impact of these industrial fishing practices on sea turtles.(19)

Large-scale pelagic driftnets are giant nets, sometimes extending for thirty miles and reaching forty feet in depth, that entrap everything that swims or drifts into their path.(20) "[O]ne of the most deadly fishing methods ever developed,"(21) driftnets, sometimes called "curtains of death," are now the subject of several pieces of U.S. legislation.(22) First, the U.S. has banned all U.S. fishing vessels (ships officially registered with the U.S.) from using driftnets, whether the vessels operate in U.S., international, or foreign waters.(23) The U.S. has also adopted two laws that provide for import bans, as well as other sanctions, against the fish products of countries that permit the use of driftnets.(24) These laws, the Marine Mammal Protection Act(25) and the High Seas Driftnet Fisheries Enforcement Act,(26) have proven effective in encouraging other nations and the international community to better respond to the environmental threats of driftnet fishing. More specifically, U.S. leadership helped induce the United Nations General Assembly to adopt resolutions in 1989 and 1991 calling for a global moratorium on large-scale use of driftnets on the high seas.(27)

The lesson of the purse-seine net issue is that, in the field of international environmental diplomacy, the progressive policies of individual countries can serve as a catalyst to global awareness and consensus. As Hilary French, Senior Researcher at the WorldWatch Institute, has observed, "it is most often a unilateral action by one country, sometimes backed by trade measures against others, that eventually spurs the international community to act collectively."(28) These points were echoed by the Canadian Environmental Law Association's Steven Shrybman: "[e]nvironmental progress in one jurisdiction has often created a 'follow-the-leader' dynamic in which other jurisdictions are pressured to conform to the higher standard."(29)

On the issue of shrimp trawlers, U.S. regulation has focused primarily on mandating or encouraging the use of turtle-exclusion devices (TEDs). TEDs are metal trap-doors attached to shrimp nets that enable turtles to escape and thereby avoid drowning.(30) It is estimated that TEDs can reduce sea turtle mortality from shrimp fishing operations by ninety-seven percent.(31) In 1987, the NMFS promulgated regulations under the federal Endangered Species Act (ESA) that required the entire U.S. shrimp fishing fleet to use TEDs.(32) In 1989, Congress adopted legislation that took the NMFS' TED regulations one step further.(33)

In 1989, Congress created a "certification" program to encourage foreign countries to upgrade their sea turtle protection practices and technology. The heart of the 1989 turtle protection program is found in [sections] 609, which sets forth two basic requirements. First, [sections] 609(a) requires the Secretary of State to initiate negotiations with all foreign countries to develop treaties to protect sea turtles and to report to Congress on such negotiations. Second, [sections] 609(b) requires the Secretaries of State, Commerce, and Treasury to prohibit the importation of shrimp products from all countries that have failed to mandate shrimp fishing practices that provide sea turtle protection comparable to that provided under U.S. law. Although TEDs are the primary means to ensure comparable levels of sea turtle protection, foreign countries can also comply with [sections] 609(b)'s requirements by demonstrating that they use other turtle-safe shrimping practices. One example of an alternative, non-TED, turtle-safe shrimping practice is requiring fishermen to manually haul in their shrimp nets, instead of using mechanical hauling devices.(34)

The certification program is the specific method by which the goals of [sections] 609(b) are achieved. The President of the United States, acting through the Secretary of State, must officially certify that foreign countries have adopted fishing policies that adequately protect sea turtles. This certification must be supported by credible evidence, not merely by the unsubstantiated declarations of foreign governments.(35) Without this certification, and the evidence to support it, the United States is required to block the importation of shrimp and shrimp products from the foreign country in question.(36)

Although the legislation creating the turtle protection program was enacted in 1989, Congress postponed formal implementation of [sections] 609's certification program until May 1, 1991.(37) Most likely, Congress was aware that the administrative and economic consequences of the new law might be considerable. Administratively, federal agencies would need time to develop more specific guidelines for certifying foreign countries, and for ensuring that uncertified shrimp...