Special and Differential Treatment (SDT) and the “infant industry argument”

Special and Differential Treatment (SDT) had its origins in a view of trade and development that questioned the desirability of developing countries’ liberalising border measures at the same pace as industrialised countries. It emphasises graduation of trade liberalisation according to the development level of the country Involved.

There is a considerable gap between those countries already exporting biofuels and those that are just starting to produce them. Disparities exist both in terms of the development of their biofuel industries and the development level of the countries themselves. There are those countries that are at the forefront of the development of these industries, such as Brazil, the US and the EU and those that, despite having a significant amount of feedstock, still have some way to go in the development of the technology. Many developing and least developed countries can be found within the latter group. These countries may possess significant advantages for biofuel production and trade but need the right incentives for the industry to develop. Many of these countries are those in which the impacts of biofuels, especially in terms of social and economic development, are likely to be felt most strongly.

The countries that today have well developed biofuel industries owe their progress to a set of economic incentives and domestic policies that have fostered the development of their biofuel industries.

The trading system should recognise these differences and allow sufficient policy space for coherent domestic policy mechanisms to allow the development of the biofuel industry in the poorest countries above all. Policies also need to implement measures that support climate change issues.

From the mix of policy tools available to support industry development, it is necessary to identify those that are the most effective but also the least trade distorting, or to create new tools if those available are insufficient.

Agreement on Technical Barriers to Trade

The Agreement on Technical Barriers to Trade (TBT) aims to ensure that regulations, standards, testing and certification procedures do not create unnecessary trade obstacles. While technical regulations are governed by the main body of the TBT, the Annex contains a Code of Good Practice regarding international voluntary standards such as those elaborated by the International Organization for Standardization. Standards administered by the private sector and other non-governmental entities fall outside the scope of the WTO rules.

The TBT permits technical standards that fulfil legitimate environmental objectives, such as climate change goals. Only product-related barriers are permitted and they should not discriminate against other members’ products, or create unnecessary barriers to trade.

As suggested earlier, at present there are several initiatives underway aiming to address environmental and social practice in biofuel production. To the extent that these are non-governmental voluntary initiatives, they would fall outside the scope of the TBT. However, there is growing concern about the impact of the proliferation of private environmental and social standards on market access for developing countries. These standards are driven by Northern countries’ concerns and are considered a new form of protectionism or so-called ‘market entry’ barriers. Though it is important to have guidance to ensure compliance with minimum environmental and social standards on biofuels, as there is potential for environmental and social damage, these initiatives need to be created in such a way that they do not constitute unnecessary barriers to trade. The complex procedures and high costs usually associated with these assurance schemes also raise concerns about the regressive effect these may have on small producers in developing countries.

Agreement on Subsidies and Countervailing Measures

If biofuels are considered industrial goods, their trade is governed by the rules of GATT and domestic support from the Agreement on Subsidies and Countervailing Measures (SCM).

The SCM monitors the use of subsidies in order to reduce or eliminate their trade distorting effect. The Agreement provides a definition of the term “subsidy”, which contains three basic elements: (i) a financial contribution (ii) by a government or any public body within the territory of a Member (iii) which confers a benefit. All three of these elements must be satisfied in order for a subsidy to exist.

There are three subsidy categories: prohibited, actionable and non-actionable. Prohibited subsidies relate to two practices: (1)the use of export subsidies – which are currently used in the biofuel industry and; (2)having receipt of the subsidy contingent upon using domestic inputs over imports. This reduces expected market access benefits for foreign suppliers of competing inputs and, hence, is considered trade distorting. Several programmes of this nature are already in place and more could develop as the industry expands output. For example, the US Department of Agriculture has established a subsidy for refiners to use soya oil as a feedstock for biodiesel. As this subsidy is only available if soya oil is used as the input, firms negatively affected by this subsidy, either petroleum producers or competing input producers, could argue that the subsidy nullifies or impairs benefits accruing to them under the WTO. If the issue was brought to the WTO and argued successfully, the US would have to withdraw this subsidy.

Non-actionable subsidies and actionable subsidies are non-trade distorting and trade distorting subsidies, respectively. According to Loppacher (2005) almost every subsidy that exists in the biofuel industry today would fulfil the conditions necessary to be considered an actionable subsidy under the SCM Agreement. If a subsidy exceeds 5 per cent of a product’s value and is administered in such a way as to be trade distorting, it is an actionable subsidy. Subsidies in both the biodiesel and ethanol markets are significantly higher than the suggested 5 per cent of the value of the product – reaching over 100 per cent of the selling price in the case of US biodiesel.

The role of domestic policies in biofuel market development

Domestic policies to support biofuel production respond to different policy goals associated with biofuel production. Earlier experiences such as those of the US and Brazil were mainly motivated by pressure to reduce the import bill and increase energy security, though rural support appeared as an important driver in a later stage of these experiences. Today a new policy interest is added, driven by the potential of biofuels to contribute to ameliorating the problem of global warming. All this implies that these policies cover a range of sectors, typically including energy, agriculture, industry and trade.

Given that, on the one hand, costs of biofuels production are higher than those of conventional fuels and, on the other hand, there are positive externalities associated with biofuels, the use of some form of public policy is essential to make biofuel production competitive in the earliest stages of industry development. The use of policy tools such as the setting of national targets for the blending of biofuels with standards fuels, tax benefits, subsidies and loan guarantees to encourage greater production and consumption has been the rule rather than the exception behind the development of this market. Some of the main experiences are briefly described below.

In Brazil, for instance, the 1975 PROALCOOL programme (presented in detail in Box 1) was promoted as a reaction to the oil crisis and aimed to replace gasoline with blends of bioethanol produced from sugarcane. In order to do this several policy measures were introduced including: production quotas and a fixed purchasing price for bioethanol; control of domestic bioethanol sales and distribution by a monopolistic agent (Petrobras); subsidies to bioethanol blend gasoline producers; tax incentives to car owners using bioethanol blend gasoline; and soft loans to implement the necessary technical changes for vehicles.

Although the Government liberalised this market in the early 1990s (abolition of Petrobras’s monopolistic distributional arrangement; liberalisation of bioethanol prices and reduction of subsidies on bioethanol blend gasoline producers), the Government still fixes minimum rates of blending with oil (currently at 20 to 25 per cent). In 2001 some additional measures were introduced as a means to revive the PROALCOOL programme, including a tax reduction on flexi-fuel cars (FFA), subsidies for FFA car purchasers and subsidies for sugar storage in order to secure future bioethanol supply. Even though the current level of Government support for bioethanol in Brazil is minimal compared to other countries, historically it was a key factor behind the development of the market and it still has a role to play.

Brazil would like to replicate the bioethanol programme for biodiesel, and in 2004 the Government launched the National Programme for the Production of Biodiesel (PROBIODIESEL Programme). In early 2005 the Government passed a bill, making the production of a 2 per cent biodiesel fuel blend made from castor oil and soya oil compulsory by 2007. This obligation will be increased to 5 per cent and 20 per cent by 2013 and 2020, respectively. In addition to the setting of targets for biodiesel-diesel percentage blends, the regulation also involves a framework that includes differential rates depending on the oilseeds used, where they are grown, and whether they are produced by large agribusiness concerns or family farmers. Biodiesel feedstocks and the fuel itself are exempted from Industrial Products Tax (IPI). The programme has also instituted a ‘Social Fuel’ seal which aims to promote social inclusion throughout the new fuel’s production and value chain. It establishes the conditions for industrial producers of biodiesel to obtain benefits and credits. In order to receive the seal, an industrial producer must purchase feedstock from family farmers and enter into a legally binding agreement with them to establish specific income levels and guarantee technical assistance and training.

In the US, interest in biofuels also began in response to the 1970s oil crisis, and legislation to promote the production and use of bioethanol as a transport fuel was passed.56 However, it was only in the 1980s that the US began assisting production to address the crisis in the corn industry. Bioethanol then attracted further interest as an antiknocking agent57 when lead was phased out from petrol.58 The 1990 Clean Air Act Amendments set up the oxygenated fuel programme that required petrol sold in areas with high carbon monoxide levels to contain 2.7 per cent oxygen. Later, the Reformulated Gasoline Programme required petrol containing 2 per cent oxygen to be sold in areas with high levels of photochemical smog. However, it was only with the prohibition of MTBE as oxygenate in early 1990s, that bioethanol started to be widely Used.

Several other initiatives have also stimulated uptake of bioethanol in the US. There is a US$ 0.51/gallon tax credit for bioethanol; federal agencies are required to use alternative fuels in their fleets; the Clean Cities Programme created a market for alternative-fuelled vehicles, various states offer incentives and assistance, and several have bioethanol mandates. The 2005 Energy bill incorporates the tax credit within a larger mandate, requiring gasoline refiners to nearly double their use of renewable energy additives (read bioethanol) in the coming years. In particular, it introduced a Renewable Fuel Standard that requires US fuel production to include a minimum amount of renewable fuel each year. It starts at 4 billion gallons in 2006, increasing gradually before reaching the goal of 7.5 billion gallons in 2012.59 From 2013 onwards renewable fuel production must grow by at least the same rate as gasoline production.60 In addition, US domestic producers are insulated from imports as the US adds on a US$ 0.54/gallon secondary duty to the normal tariff of 2.5 per cent to shield domestic producers from competitive imports.

Regarding biodiesel, in 2004 the US approved a tax credit of US$ 1 per gallon of vegetable oil or animal fat-based biodiesel blended with petrodiesel, which is framed in the context of the 2004 American Job Creation Act.61 Moreover, the Renewable Fuel Standard introduced in the 2005 Energy Bill also applies to biodiesel production. In the EU, biodiesel began to be promoted in the 1980s as a means to prevent the decline of rural areas while responding to increasing levels of energy demand. However, it only began to be widely developed in the second half of the 1990s. Key policies affecting the European market for biofuels include energy, agriculture and climate change policies.

In 2003, the EU approved two draft directives concerning energy supply diversification and the reduction of GHG emissions. Directive 2003/30/EC sets indicative targets for biofuel consumption in the transport sector: biofuels must constitute 2 per cent of all gasoline and diesel motor fuels by 200562 and 5.75 per cent 2010. Although these targets are not mandatory, member states must keep the EC informed about the measures taken to reach them. Directive 2003/96/EC complements this policy providing a legal framework to differentiate taxation between biofuels and conventional fuels. The minimum excise rates for unleaded premium, diesel fuel and heating oil effective from January 2004 were: € 359/m3, € 302/m3 and € 21/m3, respectively. For diesel, the minimum rate will be raised to € 330/m3 by January 2010. In addition, a number of EU countries have implemented tax credit for biofuels, including Germany, Sweden and Spain, at 100 per cent.
On the agricultural side, the 2003 EU Common Agricultural Policy (CAP) Reform introduced the ‘Carbon Credit’, which pays € 45/ha to growers of energy crops, up to 1.5 million hectares. Carbon credit is available for all agricultural crops except sugar beets and hemp, as long as they are used for approved energy uses and have a contract for this purpose.66 EU farmers cannot get carbon credit for energy crops grown on set-aside land. The amount of oilseeds that can be grown within the EU is set by the Blair House Agreement (BHA), which restricts the maximum EU oilseeds area for food use to 4.9 million/has and also limits the annual output of side products (oil meals) from oilseeds (rapeseed, sunflower seed and soyabeans) planted on set-aside land for industrial purposes to 1 million MT annually of soyabean equivalent.

In 2005 the EU released the Biomass Action Plan, which suggests a possible revision of the 2003 Biofuels Directive. It encourages, among other things, a closer look at the second generation of biofuels, and the use of bioethanol to reduce demand for diesel, and public procurement of clean vehicles – including those using high biofuel blends. In February 2006 the EU launched the Biofuels Strategy, which is a coordinated action plan to promote sustainable large-scale production and use of biofuels in the EU and developing countries. The strategy is a cross-sectoral initiative that contains seven policy axes, some of them based on measures described above but also including some new areas: stimulating demand; capturing environmental benefits; developing the production and distribution of biofuels; expanding feedstock supplies; enhancing trade opportunities; supporting developing countries; and supporting research and development.

In addition to the examples above, many other countries – in the industrialised and developing world – have either implemented or are implementing policy tools to support biofuel market development. Table 3 summarises some of these.

These policies play a crucial role in the industry’s development. However, the existence of a learning curve – as the Brazilian experience shows – suggests that the level of support can be diminished over time. On the other hand, they can also constitute very costly barriers to trade, especially for those most efficient developing countries that have less financial capacity to support their industry. The next chapter on biofuels and the rules of international trade elaborates further on this point.

Trends in global biofuel trade

At present only limited amounts of biofuels enter the international market as the bulk of production is consumed domestically. In the case of bioethanol, less than 10 per cent of global production enters the international market. However, international trade is expected to grow very rapidly in the coming years as the global increase in consumption and the scaling up of production will not coincide geographically.

Brazil as the largest bioethanol exporter, providing about 25 per cent of global bioethanol exports in this year. More recent data, however, suggest that Brazil has increased its exports to 50 per cent of global bioethanol exports. The second largest exporter of bioethanol is the US (14 per cent), followed by France (11 per cent) and UK (8 per cent). Exports from these EU countries are destined to other European countries. Countries from the Caribbean Basin Initiative (CBI) such as Guatemala, Costa Rica, El Salvador and Jamaica are also important exporters. Bioethanol is reprocessed in these countries and re-exported to the US. Peru exports to Japan and to the US under the Andean Pact. Other important exporters are sugar producing countries like Pakistan–the second largest exporter to the EU after Brazil, South Africa, Swaziland and Zimbabwe, which enjoy preferential access to the EU market.

As suggested above, Brazil now supplies about 50 per cent of the international demand for bioethanol. The main destinations for Brazilian bioethanol exports in 2004 were India (20 per cent), the US (18 per cent), Korea (10 per cent) and Japan (9 per cent).

The US is the main importer of bioethanol, accounting for 31 per cent of global imports. US imports represent 5 per cent of domestic production and they mainly come from Brazil (54 per cent) and CBI countries. Other significant importers are Mexico, Korea and Germany with 11 per cent, 10 per cent and 10 per cent of global bioethanol imports, respectively. These are followed by Italy (5 per cent), France (5 per cent), Netherlands (4 per cent) and Nigeria (4 per cent). Venezuela also imports bioethanol from Brazil. The EU imports a large proportion of the bioethanol it uses, mainly from Brazil and Pakistan. Other important EU suppliers are Guatemala, Ukraine and Peru. The main EU importer is Sweden. As suggested before, there are also significant intra EU trade flows of bioethanol.

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