Environmental Engineering Reference
In-Depth Information
until a decision is
nal. It is constitutional to change licensing criteria up to the point that
a license is granted (Woolhandler, 2006; Prebble et al., 2006). After a license is granted,
domestic law permits government to change technical standards for ongoing operations.
Under this discipline, applicants for a license could argue that licensing requirements are
not pre-established:
fi
when regulators change requirements while a license is pending (before it is
granted);
●
when regulators impose conditions on a license at the end of the process; and
●
when license requirements change before renewal of an existing license.
●
Relevance test
By linking relevance to services, this discipline could be interpreted to
limit regulation based on environmental impacts that are external to the service. For
example, states issue coastal development permits based on criteria including environ-
mental protection, recreational access, historic values and scenic vistas - all of which are
external to the development (e.g. a desalination facility, a utility plant or an LNG termi-
nal). Arguably, scenic vistas are not relevant to the service of supplying natural gas.
Objectivity test
nition of 'objective' is 'not subjective'. In the USA, legisla-
tures delegate to public utility commissions broad plenary power to apply subjective stan-
dards such as serving the 'public interest' or achieving 'just and reasonable' rates. A
working group of state and local o
A likely de
fi
cials explained that:
On the surface, objectivity is a desirable goal. To raise objectivity to the level of an international
obligation, however, undermines the ability of domestic regulators to deal with the inherent
complexity of service industries. An international objectivity test moves in the direction of stan-
dardized and technocratic regulation and away from regulation in the public interest by legisla-
tures and utility commissions that are accountable for balancing diverse public interests. (State
and Local Working Group, 2006).
Balancing diverse public interests may well be the kind of subjective judgment that the
WTO negotiators seek to prohibit.
Simplicity test
International suppliers other than BHT Billiton complain that the LNG
regulatory process is complex and burdensome (Hanson, 2007). In addition, some states
enable the public to vote on the desirability of a project that could a
ect safety, property
values, or the environment (NARUC, 2005). In short, environmental regulations could
fl
ff
unk a test that regulations must be as simple as possible.
These proposals could be described as 'best practices' for government. But there is a
reason that the US Congress has not imposed such disciplines on federal agencies or the
states. Each proposed GATS discipline creates a spectrum of potential meanings - a
degree of relevance, timeliness, objectivity or simplicity - that on one extreme would
curtail the scope of government authority in ways that the Constitution does not. To illus-
trate, consider how a relevance test might apply to requirements for a coastal development
permit for an LNG port.
On the left end (most relevant) of a relevance spectrum (see Figure 20.3) are license
requirements that are intrinsic to the supply of a service (e.g. storage capacity). On the
