No iceberg in sight: on the absence of WTO disputes challenging fossil fuel subsidies

The empirical record of dispute settlement cases under World Trade Organization (WTO) rules on energy subsidies consists only of cases against renewable energy (RE) subsidies, whereas WTO members have not challenged others’ much larger and environmentally harmful fossil fuel subsidies. Yet, the WTO agreement on subsidies and countervailing measures would at first sight seem to create possibilities to forestall environmentally harmful subsidization. In this article, we assess possible explanations for the skewed distribution of energy subsidies dispute settlement complaints at the WTO. We argue that differences in legally relevant characteristics of fossil fuel subsidies, on the one hand, and RE subsidies, on the other hand, largely explain this observation. In the case of RE subsidies, in particular, the disputes filed to date have targeted a much narrower set of measures than the whole range of RE subsidies currently in place, namely those incorporating a local content requirement component. Although this finding is not new, we have probed into this question more systematically, both by widening the scope of the empirical analysis from actual to potential WTO disputes on energy-related policies the European Union and the USA might have initiated, and by systematically assessing the plausibility of alternative explanations.