How Local Discrimination Can Promote Global Public Goods
Vanderbilt University Law School
October 14, 2015
95 Boston University Law Review 1939 (2015)
Vanderbilt Public Law Research Paper No. 15-27
Vanderbilt Law and Economics Research Paper No. 15-25
International negotiations struggle to keep pace with global problems like climate change. To fill this gap, local governments increasingly take matters into their own hands. For example, to promote the benefits of clean energy, a local government might give subsidies to renewable energy companies. Since 2001, California has given $2 billion in such subsidies, while states ranging from Minnesota to Kansas and Mississippi have doled out hundreds of millions of dollars each. Cities, such as Austin and Los Angeles, have also gotten into the act, contributing millions to renewable energy firms. To build support for these measures, the local government might condition the subsidy on the recipient’s use of components manufactured in the locality.
In 2013, the World Trade Organization (WTO) said these kinds of subsidies are unlawful because they discriminate against foreign products. This Article argues that the decision fails to account for the public goods generated by such programs, and suggests a new way for the WTO to review local subsidy programs that would balance the WTO’s impulse to protect international trade with the valuable global public goods such programs promise.
To make the case, I report on the results of an original 50-state survey. I identify 44 state renewable energy programs in 23 states within the United States that violate the WTO’s 2013 decision. I argue that these programs can increase global welfare in the aggregate, notwithstanding their discriminatory nature. They can do so by creating political support at the local level for renewable energy programs that might not otherwise pass. Local governments internalize few of the benefits from providing global public goods, such as reducing greenhouse gas emissions through costly investments in renewable energy technology. Local efforts to address global public goods problems thus have to be linked to a concentrated benefit within the enacting jurisdiction. Protectionist measures that discriminate against foreign products provide this link, mobilizing local economic interests to pass global public goods programs that create benefits in other jurisdictions. Reforming international trade law to allow these linkages is imperative if local governments are to continue to play a role in solving global problems.
Number of Pages in PDF File: 89
Keywords: World Trade Organization, WTO, trade agreements, energy, renewable energy, subsidies, climate change
JEL Classification: K32, K33, Q4, Q28, Q48
Date posted: October 16, 2015 ; Last revised: February 8, 2016