Groups Continue to Debate Electronic Export Ban

Groups Continue to Debate Electronic Export Ban

ISRI, BAN differ over Congressional Research Service report’s findings.

March 6, 2012
Recycling Today Staff
Electronics Legislation & Regulations

The Congressional Research Service (CRS) has released a new report confirming that The Responsible Recycling Act (RERA, S. 1270, HR 2284) violates international trade law, according to a news release from the Institute of Scrap Recycling Industries Inc. (ISRI), Washington, D.C.

However, the Seattle-based Basel Action Network (BAN) has released a statement on ISRI’s interpretation of the report, claiming “ISRI has dramatically overreached.” Ban says that “nowhere in the CRS report is it stated that the RERA violates international trade law. And nowhere does the CRS even mention the Responsible Electronics Recycling Act or review that legislation.” 

The report’s researchers have found that the total export ban contemplated in RERA would be “difficult to reconcile with the General Agreement on Tariffs and Trade (GATT), one of the World Trade Organization (WTO) agreements and could be susceptible to challenge before a WTO panel,” according to ISRI. 

“This report objectively confirms what ISRI, Republican and Democratic trade experts and the USTR (Office of the United States Trade Representative) have been saying for quite some time now,” says ISRI President Robin Wiener. “An export ban bill is nothing but a disguised measure that will fail to put an end to irresponsible recycling around the world and will in fact take us backward by violating our trade obligations.” 

Barbara Kyle, director of the Electronics TakeBack Coalition, claims, “Spin is one thing, but what ISRI claims about this objective congressional research is simply not true. In fact, the CRS report provides us with additional information that bolsters our certainty that this bill is in conformity with WTO rules.” 

According to ISRI, the report finds that the U.S. cannot unilaterally impose restrictions on electronic exports without risking repercussions in the WTO system. “U.S. GATT obligations prohibit any government actions that impose or result in bans or other quantitative restriction of exports and imports destined to WTO members,” according to a portion of the CRS report referred to by ISRI. 

ISRI also says the report claims that invoking one of GATT’s general exceptions to protect human, animal or plant life or health would be “difficult,” as the U.S. would have the burden to demonstrate that RERA’s export ban produced a “material contribution” toward realizing its public health objective—ending illegal pollution in developing countries. 

However, BAN points out that the report states, “...a WTO panel will uphold export restrictions that are inconsistent with Articles XI:1, XIII:1 and/or I:1 of the GATT if they fit under one of the expectations listed in paragraphs (a) to (j) of Article XX and satisfy the requirements imposed by the Article XX chapeau.” 

According to BAN, “This statement clearly asserts that despite the general GATT rules against discriminatory trade, exemptions exist to protect the environment. The report also notes that other international law further bolsters the use of such exemptions.” 

Jim Puckett, executive director of BAN, says, “The banning of hazardous e-waste exports has been the law of the land in Europe for 14 years now. If there was a problem with the WTO, don’t you think that in all that time one country might have challenged it?” He adds, “The notion that any country would challenge the international rules on waste trade is not serious.” 

However, ISRI says if the U.S.-imposed export ban restrictions were deemed inconsistent with the GATT, the U.S. would be expected to lift or modify these restrictions. If the U.S. failed to do so, it could face WTO-authorized trade sanctions. 

The Congressional Research Service works exclusively for the United States Congress, providing policy and legal analysis to committees and members of the House and Senate, regardless of party affiliation. CRS has been providing research services for nearly a century.

The CRS report, "Issues in International Trade Law: Restricting Exports of Electronic Waste," can be viewed here.