Green Energy Programs and the WTO Agreement on Subsidies and Countervailing Measures : A Good FIT?

How will green energy measures fare when examined under the microscope of the WTO Agreement on Subsidies and Countervailing Measures? Will they be found to be inconsistent with its obligations? After 20 years of the WTO, it is still early days in the interpretation of this important and complicated WTO agreement. To date, there has been one important WTO dispute involving a green energy measure: Canada – Feed In Tariff Program. However, there have been several requests for consultations relating to other Members' green energy programs that are currently under consideration. Many governments have implemented a wide array of programs that could potentially result in future WTO disputes. One case alone is not a sufficient basis on which to conclude whether the SCM Agreement will pose a significant barrier to governments that wish to implement green energy measures in the future. In order to analyze this question properly, a comprehensive analysis of specific types of measures must be carried out under the provisions of the SCM Agreement in order to determine whether, indeed, it will be a major obstacle to government initiatives to combat climate change. As the Canada – Feed In Tariff Program case demonstrates, the Appellate Body has some scope in interpreting the Agreement when green energy measures are challenged. Are the SCM Agreement rules themselves a problem? Can the Appellate Body adopt liberal interpretations in order to provide scope for regulatory autonomy for governments to design green energy programs that meet the needs of their citizens? Is reliance on the Appellate Body enough, or do the rules in the SCM Agreement need to be reformed?