Chapter XII

TRANSBOUNDARY POLLUTION

The problem of pollution

Pollution is a problem that cuts across national boundaries. It knows no bounds.

The effects as well as the impacts thereof are not localized in one place.
Sometimes, pollution may originate in one place and travel to the territorial
boundaries of another state so that it is highly possible that the people in the
source state may not feel its harmful effects as pollution could migrate several
hundred miles.

Thus it can be deduced that pollution is a grave concern for everybody. From an
international perspective, it has become a major issue among countries,
especially adjoining ones. Take for instance, haze in one country in Southeast Asia
could easily travel to neighboring countries. More often than not, this will require
a joint or concerted effort among affected countries in that region to contain the
pollution.

In addition to international response, the haze could also provide a private cause
of action for affected people and entities, necessitating the need for determining
the applicable law which could be the law from the state of the source of the
pollution or the state where the impacts are felt. It is also possible that an
international treaty or convention governs this problem, providing a remedy for
affected parties or a foundation from which the pollution may be abated for the
well-being of member countries and their people.

Climate Change

It seems however that the more pressing problem at the moment is climate
change. In the United Nations Framework Convention on Climate Change
(UNFCC), climate change was defined as “a change of climate that attributed
directly or indirectly to human activity that alters the composition of the global
atmosphere and that is in addition to natural climate variability observed over
comparable time periods.” On the other hand, the Intergovernmental Panel on
Climate Change (IPCC), refers to climate change as any change in climate over
time, whether due to natural variability or as a result of human activity.

The IPCC is an international body established by the United Nations Environment

Programme (UNEP) and the World Meteorological Organization (WMO) for the
primary purpose of studying climate change. It regularly publishes Assessment
Reports and these reports provide policymakers concrete options and
recommendations concerning climate change in the areas of science, adaptation
and mitigation.

Climate Change is a complex problem that has the entire world scampering for
solutions for it may well be too late if humanity did nothing to stop its
progression. Its effects are both universal and irreversible and could plunge
humanity to a severe crisis which the world has not seen for a long time. It may
well upset the ecological balance, resulting in the extinction of several species and
the eradication of smaller countries from the map. Thus, any step towards the
reduction of carbon emissions will ultimately help.

One of the causes of climate change is the use of fossil fuels. Over time,
industrialized nations have used fossil fuels to prop up their economy and to
energize industry. Fossil fuels have high carbon emissions that contribute to
global warming which causes weather disturbances, change in weather patters
and strong storms.

Stronger storms cause devastating floods that severely affect small and poor
nations, most of whom could ill afford the impacts climate change. This is unjust
as these nations never caused climate change. They however feel the impacts
more than its generators. There is therefore an element of injustice in this climate
dilemma when those suffering huge damages are the innocent countries and not
the guilty ones. This is not in accordance with the polluter pays principle that
penalizes the source or cause of the pollution.

Thus, from a conflict of laws perspective, climate change litigation is a very

difficult problem to resolve. Climate change has public and private international
law aspects. With regard to those involving the relationship of nations, public
international law governs. For those involving citizens of different countries,
private international law comes to play. For example, a citizen of a country
devastated by a violent storm could sue and oil company based in another
country for damages to life and property. In this regard, it is made difficult to
assess the applicable law since climate change may be caused in one country but
the effects thereof could be felt in another country.

In the case of Georgia v. Tennessee Copper Co. wherein the state of Georgia sued
Tennessee Copper co for injunction seeking to enjoin defendant company from
discharging noxious gases to its territory, Georgia alleged that the discharge
damaged the vegetation in its territory. The main issue in this case is whether or
not Georgia is entitled to injunction. The court in ruling in the affirmative, stated
“that such a suit is a suit by a state for injury to it in its capacity as quasi-
sovereign, in which capacity the state has an interest independent of and behind
the titles of its citizen. It has the last words as to whether its mountains shall be
stripped of their forest and its inhabitants breathe pure air. It is not denied that
the defendant generate in their works near the Georgia line large quantities of
sulphur dioxide, which becomes sulphurous acid by its mixture with the air. It
cannot be denied with success, that this gas often is carried by the wind great
distances and over great tracts of Georgia land. On the evidence, the pollution of
the air and the magnitude of that pollution are not open to dispute. Without need
to go into details immaterial to the suit, it is proper to add that we are satisfied,
by a preponderance of evidence, that sulphurous fumes cause and threaten
damage on so considerable a scale to the forests and vegetable life, if not to
health, within the plaintiff state…”

Approaches to transboundary Pollution

I. Governmental interest analysis – This approach indulges courts to

consider governmental interests when two or more states have
conflicting laws and interests. In governmental interest analysis, courts
compare the laws and interests of two states, determine if there is a real
conflict, and if a real conflict exists, apply the law of the state whose
interest is more impaired. It is imperative to consider the interest of
other states since commercial transactions involve people located in
several jurisdictions which have conflicting interests in transaction. This
interest may have been a motivating factor in the agreement of the
parties and so should be properly considered. In torts cases too, a state
 may have an interest in the dispute due to its closer connection to the
parties. Hence, the need to favor laws over those of another state.

The Governmental analysis approach involves the following steps:

a. The court determines whether the relevant law of the affected
jurisdictions with regard to the issue in question is the same or
different.
b. If there is a difference, the court examines each jurisdiction’s interest
in the application of its own law to determine whether a true conflict
exists.
c. If the court finds that there is a true conflict, it carefully evaluates
and compares the nature and strength of the interest of each
jurisdiction to determine which state’s interest would be more
impaired if its policy were subordinated to the policy of another
state.

II. Lex Loci Delicti - This calls for the application of the law of the place
where damages is suffered or inflicted. It looks to the domestic law of a
state which shall be applied to polluting activities whose sources are
foreign. Hence, so long as the effects are felt locally even if the source
comes from outside the country, domestic law may be applied to giver
the act complained of.

In the case of Pakootas v. Teck Cominco Metals, Ltd. wherein the defendant
operated a lead-zinc smelter in Trail, British Columbia which generated and
disposed of hazardous materials into the Columbia River located in the United
States, the Environmental Protection Agency issued an order directing Tech to
conduct a Remedial Investigation/feasibility study under the comprehensive
Environmental Response, Compensation, and Liability Act (CERLA) for site
contamination and of which Teck did not comply. The issue on whether or not the
application of CERCLA to Teck involves an extraterritorial application of a
domestic law to the untied states, the court in ruling in the negative stated that
“the location where a party arranged for disposal or disposed of hazardous
substances is not controlling for purposes of assessing whether CERCLA is being
applied extraterritorially, because CERCLA imposes liability for releases of
hazardous substances, and not merely for disposal or arranging for disposal of
such substances. Because the actual or threatened release of hazardous
substances triggers CERCLA liability, amd because the actual or threatened
release here, the leaching of hazardous substances from slag that settled at the
site, took place in the United States which calls for a domestic application of
CERCLA. The argument that this case presents an extraterritorial application of
CERCLA fails because CERCLA liability does not attach until there is an actual or
threatened releases of hazardous substances in the environment.

Pakootas stands for the proposition that so long as there is a domestic connection
with the act that was performed or being performed, the same is no longer an
extraterritorial application of domestic law. In deed, the fact that an act which is
sought to be regulated has a foreign source but whose effects are felt locally,
extraterritorial application cannot be claimed. There is now a link that allows
domestic law to regulate a polluting activity which is coming from outside the
border. The polluting entity can be held liable because if its operations extend
outside a country’s boundaries, it is reasonable to expect that it will be held liable
for its polluting activity. Pakootas is significant in that it reinforces a state’s
resolve to clean up its environment even if the source of the pollution is from
another country. This is a multi state event and not an extraterritorial application
of domestic law.

III. Most significant relationship approach – An examination is made as to

the state that has the most connection to a case. The law of the state
which has the most connection shall be applied in the resolution of the
conflict. The points of contact, as enumerated in the Restatement of
conflict of laws, are:
a. The place where the injury occurred;
b. The place where the conduct causing the injury occurred;
c. The domicile, residence, nationality, place of incorporation, place of
business of the parties; and
d. The place where the relationship, if any, between the parties is
centered.

Legal impediments which may have existed in the past with respect to the
recovery of damages are being removed gradually by many jurisdictions in what
may be characterized as a more focused attempt to prevent or curtail polluting
activities and to ensure that those responsible bear the costs associated
therewith.

In recent years, there has been a recognition by the global community at large
that any hope of success in the ongoing battle to preserve what is left of a once
pristine environment depends upon increased cooperation among nations and
states both developed and developing countries. This cooperation includes the
right of unrestricted access by non residents to the court system having
jurisdiction over the part responsible for the polluting activity, and an effort by all
jurisdictions to both enact and enforce more stringent environmental standards.