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Trade and Climate Change: How the U.S. Can Use Buying Power and Laws to Encourage Clean Energy


By: Stephen C. Tosini


The United States currently aims to be among the world’s leaders in limiting global heating caused by greenhouse gas emissions from fossil fuels. To reduce future damage caused by unhindered extraction and burning of fossil fuels, the United States is attempting to evolve from its reliance on fossil fuels by investing in clean energy. Some of this evolution stems from market forces, making renewable energy less expensive than fossil fuels in some circumstances. But other aspects of the transformation require regulation and could be costly for stakeholders in energy-intensive domestic industries. The question thus becomes, how does the United States encourage clean manufacturing by overseas industries that continue to pollute and externalize those costs on the planet’s remaining inhabitants while, at the same time, protecting (and discouraging offshoring by) domestic industries that are

incurring climate mitigation costs that their foreign competition avoid?

In this Article, I will explore the Executive Branch’s ability to use the national security import law to help level the playing field between clean domestic industries and polluting competitors from nations that fail to live up to their climate commitments. Similarly, I will discuss how the antidumping duty law in its current form might be used in some circumstances, albeit with significant litigation risk, to mitigate injury sustained by clean domestic industries from polluting imports by pricing costs and adjustments based on the cost of renewable energy as opposed to fossil fuels.

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