WTO Regulations and Bioenergy Sustainability Certification – Synergies and Possible Conflicts

Biofuels are increasingly being produced and consumed as a partial substitute to fossil-fuel based transport fuels in the fight against climate change. One policy introduced recently by some countries to help ensure biofuels perform better than fossil fuels environmentally is sustainability criteria. These, typically, require lower greenhouse gas emissions than fossil fuels, considering not only their use but also production. Concerns have been expressed from various quarters that such criteria could represent WTO-incompatible barriers to trade. The present paper addresses two specific issues. First, it argues that biofuels should be treated like any other traded product under WTO law, in particular the GATT agreement. Thus an importing country could not impose different trade measures dependent on whether the biofuel was produced according to its sustainability criteria. Second, the TBT Agreement provides guidance on how to draw up international standards that can help ensure WTO compatibility. This cannot guarantee such compatibility, but it can help reduce significantly the chances of WTO Members bringing actions against a fellow Member’s biofuels sustainability criteria. There is little direct case law to draw upon, but it is argued that, if the TBT guidance is followed, in the long term the absence of case law can be taken as an indication that sustainability criteria are WTO-compatible.