Going it alone on climate change A new challenge to WTO subsidies disciplines: are subsidies in support of emissions reductions schemes permissible under the WTO

This paper examines the specific ways in which the provision of emissions permits by governments in carbon trading schemes, interacts with, and challenges, the disciplines on subsidies in the WTO Agreement on Subsidies and Countervailing Measures. It will argue that the case of emissions permits gives rise to two key challenges. First, it highlights the need for a resolution on the issue of the characterization of intangible goods under the SCM Agreement, and the importance this has for the calculation of benefit and hence the correct application of SCM disciplines. Secondly, when applied to emissions permits, the SCM Agreement produces a result that heavily favours the complaining Member at the expense of ‘distributive justice’. This is compounded by the current lack of directly applicable exceptions for subsidies directed at legitimate public policy goals. Fundamentally, this will affect the potential cost and continuing viability of national emissions trading schemes and further challenge the environmental credentials of the WTO.