Green industrial policy, an aspirational headline with the 2019 Green New Deal
Resolution, has continued to gain steam and take shape. Green industry was a core
focus of presidential platforms during the 2020 election. Federal agencies have
demonstrated an increased willingness to revamp their purchasing power—that is,
their procurement policy—to buy green products and stimulate emerging green
industrial sectors. In general, these policy shifts toward green industry typically tout
three primary goals: to develop the domestic manufacturing base and to strengthen
both environmental and labor protections. For instance, in November 2021, as part
of the larger Infrastructure Investment and Jobs Act, Congress took aim at the
failure of supply chains to meet adequate environmental and labor standards by
enacting a domestic content preference-scheme for infrastructure programs
receiving federal financial assistance. The nationalist orientation of this kind of
policy, however, often runs afoul of the nondiscrimination spirit of World Trade
Organization disciplines.
This Note evaluates how trade disciplines can enable a green-industrial strategy in
government procurement while abiding by WTO disciplines, offering a few options.
While countries continue to aggressively deploy green industrial policies to attain
environmental benefits, these strategies must be carefully structured to avoid cooptation
by populist, protectionist goals. As such, this Note considers the implications
that arise when this form of green industrial procurement supports the advancement
of global welfare—and when it does not. In particular, this Note explores how
refining the traditional relationship between international trade rules and green industrial initiatives can produce mutually beneficial results. On the one hand,
trade rules can be interpreted to permit environmental and labor-conscious decisionmaking while protecting against protectionist discrimination. On the other, this
Note proposes that procurement decisionmaking should incorporate supply-chain
disclosure or cost-accounting of environmental and labor impact, which, when justified
under the existing public morals discipline in WTO trade agreements, forms a
method of government engagement that can enable a more robust international
trade regime.
