So far, environmental (in)justice is an American theory, which has never really gained strong foothold in Europe. Moreover, this topic is related more to polluting installations and access to natural resources rather than free trade.

Account must be taken of the fact that we are experiencing two parallel developments without precedent in the history of mankind: on the one hand, the emergence of ecological crises of global scope (climate change, loss of biodiversity, ozone depletion) and, on the other hand, a progressive liberalization of world trade, embodied at the international level by the conclusion of the Uruguay Round in 1994 and at the European level by the functioning of the internal market. Underlying these parallel developments is a clash of legal rules on several fronts that goes well beyond the disputes of the past. The doctrine of free trade, based on the postulate that products should be able to circulate freely without hindrance from technical obstacles erected by States, is traditionally opposed to national or regional regulations in the areas of public health or environmental protection. Indeed, the need to open up markets directly conflicts with the need to promote legitimate environmental objectives; until now, efforts to reconcile these two goals have been rather unsuccessful.

Although the academic literature on the relationship between trade and environment is rife with controversies, issues of environmental justice did not gathered momentum so far. Most genuine environmental considerations are usually taken into consideration in this debate (conservation of protected species, waste management, clean air,) irrespective of the groups at risk. That said, products such as waste or pesticides could have a significant effect on the environment of poor people or minorities. Depending on their composition, their production method and how they are used, they can become a source of pollution, or they can entail specific hazards. Moreover, cheap products can entail greater hazards for consumers unable to purchase better quality products.

In an attempt to attenuate these conflicts, international organizations have sought to harmonize national rules (positive harmonization) by setting common denominators able to facilitate commercial exchanges. Nevertheless, positive harmonization is difficult to achieve at the international level, and even at the EC level. When no common ground can be found between States that do not share the same goals, free trade is encouraged by a principle of mutual recognition that allows goods lawfully produced and marketed in one State to be commercialized in another State (negative harmonization), and by placing the burden of proof on States that impose stricter standards than those applied in the producer country in order to achieve a higher level of protection.

Ideally, free trade presupposes that States share a concept of product safety on the one hand and of human health and the environment on the other hand. In fact, however, goals for the protection of human health, the environment, consumers, as well as some specific social groups vary appreciably from one State to another.