Transboundary Pollution

• Author: Michael G. Faure
• Pages: 235-267

CHAPTER 14

Transboundary Pollution

MICHAEL G. FAURE

I. Introduction

The central theme of this volume is undoubtedly the globalization of envi-

ronmental law. This globalization of legal instruments and institutions is

driven by the increasingly transboundary nature of pollution. As a result,

domestic practitioners are increasingly confronted with problems whose

solutions require navigating laws across multiple jurisdictions. This chapter

wishes to contribute to the understanding of international environmental

regimes by identifying some of the key issues that will arise if a practitioner

is confronted with a transboundary pollution case. The objective of this

chapter is hence not to indicate the details on how to resolve a particular

case, because this will very often be domain specific (depending on whether

it, for example, constitutes water pollution, air pollution, or transboundary

waste). The goal is rather to guide the practitioner through the complexity of

international and national environmental laws and to explain their relation-

ship and overall structure. To be most useful, this chapter should be read in

connection with the other chapters in this volume.

We will explain how the transboundary character of a particular pollu-

tion problem may affect the way in which the problem has to be approached.

Specific attention will be paid to the relationship between international envi-

ronmental conventions and national law. To an important extent, as we will

argue, transboundary pollution cases will rely on national (tort) law, but

there are particular ways in which international law can (increasingly) influ-

ence adjudication by national courts. There is indeed a trend, at least in par-

ticular jurisdictions, to take into account obligations under international law

even in adjudicating domestic pollution cases.

Multilateral treaties dealing with transboundary pollution are, of course,

relevant to resolving such cases. U.S.-based practitioners should be aware,

however, that the United States has not joined a number of key international

regimes, and has instead drafted its own legislation (which, incidentally,

often provides better protection to pollution victims than the international

235

regime). Some international treaties may hence be less relevant in a U.S.

environmental practice than in Europe or elsewhere.

This chapter discusses in detail a number of cases—both at the interna-

tional level as well as in Europe and in the United States—that dealt with

transboundary pollution. While not directly applicable beyond a particular

jurisdiction, the cases illustrate general issues that come up when dealing

with transboundary pollution cases.

Though most transboundary cases involve private clients in a national

court (in the United States or abroad), transboundary pollution cases can

also play out between states. Under the traditional paradigm, international

law was limited to providing obligations and rights to states and hence does

not affect rights and obligations of actors in national jurisdictions. Yet review

of case law suggests the blurring of such previously strict boundaries

between international law and national law. Indeed, some national courts

increasingly are willing to infer obligations from international law, which

could equally be applicable within the national legal context. Some of these,

admittedly rather revolutionary, trends come from the Netherlands, a rather

small European country in which there are nonetheless a remarkably high

number of adjudicated cases dealing with transboundary pollution. The

Dutch cases indicate the kind of legal issues that come up when dealing with

a transboundary pollution case and hence add to the checklist to be followed

when dealing with transboundary pollution cases in practice. The experience

of the Netherlands may also suggest potential directions in which practice in

other jurisdictions may develop as transboundary pollution issues become

more prevalent.

The remainder of this chapter is set up as follows: We briefly sketch why

transboundary pollution occurs and how transboundary pollution should be

viewed from an economic perspective (section II). Next, we assess various

possible approaches to transboundary pollution, distinguishing between the

role of national courts in resolving transboundary pollution conflicts and the

resolution of transboundary environmental dispute between states (section

III). The remainder of the contribution will focus on the role of national

courts in resolving transboundary pollution conflicts. A first issue that arises

in that respect is to what extent international law will also affect the adjudi-

cation of a case in a national court (section IV); next, unavoidably, questions

of the competent forum and applicable law will arise (section V), as well as

the actors, legal bases and potential remedies (section VI). The chapter con-

cludes by providing a tentative checklist that a practitioner confronted with

a transboundary pollution case could follow when he/she is presumably

consulted by a victim of transboundary pollution (section VII).

II. Why Transboundary Pollution?

It seems like pushing at an open door to argue that one way in which envi-

ronmental problems have “gone global” is that pollution problems have

increasingly become transboundary.1 To a large extent, this may be the result

236 INTERNATIONAL ENVIRONMENTAL LAW

of an increased awareness of the transboundary character of environmental

pollution.2 Environmental pollution probably always had a transboundary

character, but increased technological abilities better allow pollution’s effects

to be traced across borders to its source.3 Environmental awareness origi-

nally focused on so-called point source pollution coming from particular

identifiable sources (such as emissions by factories), the immediate harms

such pollution caused to workers and then, later, the impacts of such pollu-

tion to local soil and surface or ground waters.4 But even during the early

stages of industrialization, emissions by particular factories may have caused

transboundary air and water pollution. At that time, however, there was not

the necessary technical ability to trace the sources of that pollution. In the

second half of the last century, as a result of an increasing awareness that

many environmental problems have a transboundary character, attention

shifted to the impacts of long-range air pollution and acid rain.5

From an economic perspective, the basic problem is that local industry

exports environmental pollution, leading to a de facto “externalization” of

pollution problems. Economists have often argued that the reasons for the

transboundary character of environmental pollution problems are well

known: local politicians will not have many incentives to act strongly against

polluters who may be able to export large quantities of pollution outside the

borders of the national territory. Thus the polluting activity could result in

socioeconomic benefits for the nation (increased tax revenues and job secu-

rity), whereas the negative effects (referred to as externalities by economists)

are exported to the neighboring countries.6 Because politicians need to be

reelected by the citizens within their particular state, their primary concern

may not be with the transboundary effects of pollution caused by factories

within their nation. Seen in this context, it is unsurprising that such an exter-

nalization of pollution to other countries takes place.

Just as within the national context externalities are considered a market

failure to which the law should react, the same is true for transboundary

environmental harm. In the absence of legal rules that force countries to take

into account the transboundary pollution they cause, states will have no

incentives to do so. The primary goal of international environmental law

should, therefore, from this simple economic perspective, be no other than

the internalization of the transboundary externality caused by pollution.

Of course, some economists may argue that it is not necessary to use

legal rules to internalize externalities: Ronald Coase taught that as long as

transaction costs are zero, an efficient internalization, of both domestic and

transboundary externalities, could take place via bargaining between the

parties.7 Some economists have indeed suggested that, for example, as far as

small-scale pollution is concerned, this type of bargaining may result in an

efficient internalization of the harm.8 However, experience shows that so far

very few transboundary pollution cases have been solved through efficient

bargaining. Even in cases where there are only two parties involved (for

example, an upstream polluting state and a downstream victim state) bar-

gaining leading to the victim state paying the polluter state to install efficient

Chapter 14: Transboundary Pollution 237