Air and Climate Change

AuthorArnold W. Reitze, Jr.
Pages61-80
CHAPTER 5
Air and Climate Change
ARNOLD W. REITZE, JR.
I. Introduction
The international law of air pollution has had little effect on domestic prac-
titioners and their clients. Some of the legal principles that have developed
in international law, however, have become part of domestic law. Moreover,
when international attention is directed at an environmental problem, it soon
becomes the focus of domestic legislative efforts. Developments on the inter-
national front, therefore, are important because they may foreshadow the
emergence of additional domestic regulatory controls over air pollutants.
The international climate change regime exemplifies this kind of rela-
tionship between emerging international law and domestic air pollution
laws. International efforts to address climate change during the past two
decades have had limited success in reducing greenhouse gas (GHG) emis-
sions into the atmosphere. But the failure of international law and the efforts
of environmental organizations have helped create the conditions that are
leading to domestic laws and regulations to address this issue.
A. Local and Regional Air Pollutants
Air pollutants that have lasting effects can be divided into three categories.
First, we have pollutants that have adverse health effects and are released in
large quantities. The primary pollutants of concern are particulates, sulfur
oxides, and nitrogen oxides. Second, we have hazardous air pollutants that
are harmful to persons in low concentrations. These pollutants are usually
controlled through chemical-specific requirements. Finally, we have pollut-
ants that may or may not adversely affect human health but are subject to
controls because of their serious impact on ecosystems. Two of the classes of
chemicals that have no direct effects on human health but are subject to
international treaties because of ecosystem impacts are chlorofluorocarbons
and carbon dioxide, which are discussed infra.
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B. Common Air Pollution Regulatory Controls.
There are a finite number of ways to abate pollution, and international agree-
ments must of necessity adopt one or more of them. The common measures
to control air pollution at the national level include (1) caps on emissions
from sources in order to meet ambient air quality standards;1 (2) emission
limits for source categories;2 (3) economic incentives or disincentives, often
called market-based mechanisms, such as pollution taxes or cap-and-trade
programs;3 (4) work or operational practice requirements;4 and (5) bans on
products or activities that pollute. International agreements use caps on
emissions, but caps have not been used to meet ambient air quality stan-
dards in the international context. Emission limits are commonly used, but
they are usually based on achieving national reductions from the emissions
of a base year. Emission limits for specific sources are based on domestic law.
Operational requirements to minimize pollution are found in some of the
regional international agreements. Finally, bans are a major part of the Mon-
treal Protocol’s program to limit the release of ozone-depleting substances.
II. Transboundary Air Pollution Litigation
International case law concerning air pollution is limited to a single 1941
case, the Trail Smelter arbitration, but the principles embodied in that deci-
sion are reflected throughout customary international law.5 The case began
in 1928 after sulfur dioxide emissions from a zinc and lead smelter in Trail,
British Columbia, Canada, owned by Teck Cominco Metals, damaged pri-
vate agricultural and forest properties in the State of Washington. The United
States and Canada governments responded by referring the issue to the
International Joint Commission (IJC).6 In 1931, the IJC found the smelter had
caused damage and awarded $350,000.7
In 1933, damages were continuing. Canada implicitly accepted liability,
and an ad hoc arbitral tribunal awarded damages of $78,000 to the U.S. gov-
ernment attributable to the smelter’s operation from 1932 to October 1937.8
The tribunal based its holding on “the principles of international law, as well
as the law of the United States.9 The precedential value of this case is mini-
mal because it involved a tribunal, not the International Court of Justice.
Moreover, the case appears to be based primarily on U.S. law. In the years
following this decision, international case law has not materialized concern-
ing air pollution or climate change. But because of the paucity of case law,
this case continues to be cited for the proposition that a nation has a duty to
protect other nations and their citizens from injurious acts by individuals
from within its jurisdiction when the case is of serious consequences and the
injury is established by clear and convincing evidence.10
Two later international law cases, not involving air pollution, are frequently
cited for the proposition that a state should not allow its transboundary pollu-
tion to cause significant damage in another country.11 But case law is not a
significant factor in the control of transboundary air pollution.
62 INTERNATIONAL ENVIRONMENTAL LAW

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