Despite important contextual and institutional differences, one problem shared by the European Community and the United States systems relates to the tension that may arise between free trade and environmental protection. In both systems, free trade is a value of central importance that has been promoted through constitutional principles designed to bring about the creation of a common market based on the free movement of goods and services and the absence of distortions of competition between their component entities (the European Community member states and the states of the United States federation, both hereafter referred to as ‘the states’). Yet, the environmental policies developed by the states may conflict with the free-trade principles on which these systems are based. The objective of the present study is to evaluate in a comparative manner how the competing Community or federal interest in free trade and the state interest in preserving their domestic environmental policies can be reconciled in Community and United States law.

It is important to note at the outset that the tension between trade and environmental protection may take different forms depending on the area of environmental regulation involved. In this regard, it is useful to distinguish between three areas of environmental regulation: waste, product standards and process standards. As will be seen throughout this study, these areas of regulation generally raise different trade issues and require separate treatment.

First, a tension between trade and environmental protection may arise in the area of waste.