Private International Law: Transboundary Pollution
Assignment 15: Transboundary Pollution
The Problem of Pollution
Pollution cuts across national boundaries.
The effects and impacts are not localized in one place or within the borders of the source state. Sometimes, pollution may originate in one place and travel to the territorial boundaries of another state. It is possible that the people in the source state may not feel its harmful effects as pollution could migrate several hundred miles; oftentimes, the harmful effects are felt elsewhere, and this is unfortunate for those suffering the impacts, who never had any hand in the generation of the pollution.
Thus, pollution is a grave concern for everybody.
From an international perspective, it has become a major issue among countries, especially among adjoining countries.
For example, haze in one country in Southeast Asia could easily travel to a neighboring country or countries. Oftentimes, this will require a joint or concerted effort among affected countries in that region to contain the pollution. The easy part is that haze is a type of pollution whose origin is easy to locate as it could be caused by forest fires or from polluting factories in a particular area.
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. The applicable law could be the law from the state of the source of pollution, the law of a state where the pollution passes through, or the law of 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
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 is 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."
The Intergovernmental Panel on Climate Change ("IPCC"), on the other hand, 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 is composed of scientists from all over the world.
The IPCC regularly publishes Assessment Reports, and it is now on its Fifth Assessment Report, which was released in November 2014.
These reports provide policymakers with solid options and recommendations concerning climate change in the areas of science, adaptation, and mitigation. The reports are not a gospel of destruction, but a foundation for sound policymaking that gives governments several alternatives in approaching climate change.
For example, governments are given the option of continuing with their use of dirty fuel with the consequent effect of a warmer environment and more destructive storms.
Hence, if a government wants to avoid the effects of climate change, it must shift to cleaner technologies, although this comes at a cost.
In its latest Special Report, the IPCC warns policymakers that climate change impacts are larger if global warming exceeds 1.5°C.
The Report notes that "on land, impacts on biodiversity and ecosystems, including species loss and extinction, are projected to be lower at 1.5°C of global warming compared to 2°C," and that "limiting global warming to 1.5°C is projected to reduce risks to marine biodiversity, fisheries, and ecosystems, and their functions and services to humans." It is thus essential that governments agree to limit global warming to 1.5°C or risk facing catastrophic risks in the future. It must be noted that the Special Report was issued after the entry into force of the Paris Climate Agreement, which targets a temperature increase and limit of 1.5°C.
Climate change is already judicially recognized.
Massachusetts v. EPA declared that "The harms associated with climate change are serious and well recognized." Massachusetts cited and upheld a National Research Council ("NRC") Report on the effects of climate change consisting of "the global retreat of mountain glaciers, reduction in snow-cover extent, the earlier spring melting of rivers and lakes, [and] the accelerated rate of rise of sea levels during the 20th century relative to the past few thousand years..."
Climate change is a complex problem that has the entire world scrambling for a solution, for it may well be too late if humanity does nothing to stop its progression. Its effects are universal and irreversible and could plunge humanity into 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 disappearance of several small countries from the map. Thus, any step toward reduction of carbon emissions will ultimately help, regardless of how little this reduction could be.
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 economies and to energize industry. Fossil fuels have high carbon emissions that contribute to global warming. This warming brings with it weather disturbances, changes in weather patterns, and fiercer storms. Stronger storms cause devastating floods that severely affect small and poor nations, most of whom could ill afford the impacts of climate change. This is unjust as these nations never caused climate change; however, they feel the impacts more than the generators of climate change. 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, in the spirit of climate justice, proposed accords on climate change aim to make the large industrialized countries somehow responsible by putting up a green fund for the benefit of victim countries.
Paris Climate Agreement
On December 12, 2015, countries across the globe entered into a treaty aimed at combating climate change and limiting temperature increase. Foremost among its objectives is "[h]olding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels." These targets were based on the findings of the IPCC, which regularly releases reports on climate change. Key aspects of the Agreement include provisions on long-term temperature goals, global peaking and climate neutrality, mitigation, sinks and reservoirs, market and non-market-based approaches, adaptation, loss and damage, technology and capacity-building support, education, transparency, compliance, and global stocktake.
Under Article 3 of the Agreement, each member country submits a nationally determined contribution to the objective of limiting temperature increase. While this is purely voluntary under Article 9(1), and even if non-compliance entails no penalties (the Agreement has no enforcement provision), this is a symbolic act of nations reflecting their concern for the safety of humanity and the natural environment. It is only honor at stake, as it will not look good for a country to renege on its commitment or appear to be uncaring to humanity. At least, countries come together and agree on some project or undertaking designed to make life better for present and future generations. It is better than not having any agreement at all.
Climate Change Litigation
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.
For those involving the relationship of nations, public international law governs. It really makes it easier if the plaintiff is the state, for it has a "well-founded desire to preserve its sovereign territory" with a sufficiently concrete interest for judicial determination.
For conflicts involving the citizens of different countries, private international law comes into play. For example, a citizen of a country devastated by a violent storm could sue an oil company based in another country for damages to life and property.
In instances like this, it will be very 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. What justification could there be for the laws of one country located in one continent to be applied in another country in another continent for the determination of damages that could be assessed against the guilty party? Another confounding issue is the suability of corporations which, as held in Jesner v. Arab Bank, could not be held liable for violations of international law.
There must also be a realization that environmental laws are entitled to a more liberal interpretation for them to work. Applying the traditional approach utilized in torts, like the concepts of causation and redressability, would ultimately weaken the system of compensation provided in environmental laws.
Georgia vs. Tennessee Copper Co., 206 U.S. 230 (1970)
Georgia filed a lawsuit against Tennessee Copper Co. and Ducktown Sulphur, Copper, and Iron Company, seeking an injunction to prevent them from discharging noxious gases into its territory.
Georgia claimed the discharge damaged vegetation within its borders.
Whether Georgia is entitled to an injunction to stop the defendants from polluting its territory. Yes, Georgia is entitled to an injunction.
State’s Quasi-Sovereign Interest:
Georgia, as a quasi-sovereign state, has an independent interest in the air and land within its domain.
It holds the ultimate authority over its natural resources and environment.
It is reasonable for a sovereign state to demand that its air and forests are not harmed by large-scale pollution from neighboring states or companies.
Evidence of Pollution
The defendants discharged large quantities of sulphur dioxide, which turned into sulphurous acid, polluting the air and damaging Georgia's vegetation.
The evidence shows significant pollution, and the harmful effects on forests and vegetation in Georgia were undeniable.
Approaches to Transboundary Pollution
Governmental Interest Analysis
This approach encourages 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 conflict exists, apply the law of the state whose interest is more impaired.
It is important to consider the interests of other states, as commercial transactions often involve people located in several jurisdictions with conflicting interests.
This interest may have influenced the agreement of the parties and should be properly considered.
In tort cases, a state may have an interest in the dispute due to its closer connection to the parties, justifying the need to favor its laws over those of another state.
The governmental analysis approach involves the following steps:
The court determines whether the relevant law of the affected jurisdictions with regard to the issue in question is the same or different;
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;
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 the other state.
Lex Loci Delicti
This approach calls for the application of the law of the place where the damage is suffered or inflicted.
It looks to the domestic law of a state to be applied to polluting activities whose sources are foreign. Hence, if the effects are felt locally, even if the source is from outside the country, domestic law may apply.
Most Significant Relationship Approach
This approach examines the state that has the most connection to the case.
The law of the state with the most significant relationship to the matter will be applied to resolve the conflict.
The points of contact, as enumerated in the Restatement (Second) of Conflict of Laws, include:
the place where the injury occurred;
the place where the conduct causing the injury occurred;
the domicile, residence, nationality, place of incorporation, and place of business of the parties;
the place where the relationship, if any, between the parties is centered.
Pakkootas vs. Teck Cominco Metals, Ltd, 453 F.3d 1066 (2006)
Teck Cominco Metals operates a lead-zinc smelter in Trail, British Columbia, which discharged hazardous materials into the Columbia River in the United States.
The Environmental Protection Agency (EPA) issued an order requiring Teck to conduct a Remedial Investigation/Feasibility Study under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) due to site contamination.
Teck did not comply with the order, leading Pakootas to file a citizen suit to compel Teck to comply.
Teck moved to dismiss the case, arguing that CERCLA has no extraterritorial application and that the U.S. has no jurisdiction over Teck, a Canadian corporation.
Whether the application of CERCLA to Teck constitutes an extraterritorial application of U.S. domestic law. No.
The location where hazardous substances were disposed of is not the deciding factor in determining whether CERCLA is applied extraterritorially. CERCLA imposes liability for the release or threatened release of hazardous substances, not just disposal.
In this case, the actual or threatened release of hazardous substances (leaching from slag) took place in the United States, making this a domestic application of CERCLA.
The court ruled that applying CERCLA to Teck was not an extraterritorial application, as the case concerned the release of hazardous substances into the Upper Columbia River, located within U.S. territory.
Pakootas stands for the proposition that if there is a domestic connection to the act performed or being performed, it is no longer an extraterritorial application of domestic law.
If an act is regulated and has a foreign source but its effects are felt locally, extraterritorial application cannot be claimed. There is now a link that allows domestic law to regulate a polluting activity from outside the border.
The polluting entity can be held liable because if its operations extend outside a country's boundaries, it is reasonable for it to expect liability for its polluting activity.
Pakootas is significant as it reinforces a state's resolve to clean up its environment even if the pollution originates in another country. This is considered a multi-state event, not an extraterritorial application of domestic law.
Nnadili vs. Chevron U.S.A, Inc, 435 F.Supp.2d 93 (2006)
Plaintiffs, current and former owners/residents of the Riggs Park neighborhood in Washington, D.C., sued Chevron.
Plaintiffs claimed Chevron’s gasoline station in Chillum, Maryland, near the D.C. border, caused contamination of the air, soil, and groundwater, damaging their properties.
Chevron sought summary judgment.
Whether Maryland law or District of Columbia law governs the plaintiffs' claims. District of Columbia law applies.
Federal courts apply the choice-of-law rules of the jurisdiction in which they sit (District of Columbia in this case).
The District of Columbia uses the "substantial interest" approach, balancing the competing interests of the jurisdictions involved.
Factors considered include:
Place of injury
Place where conduct causing injury occurred
Domicile/residence/place of business of the parties
Where the relationship between parties is centered
The court found that:
Most contamination and injuries occurred in the District of Columbia.
Majority of plaintiffs reside in D.C.
Thus, D.C. has the greater interest in the case.
It must be noted that one point of contact in the most significant relationship is the "place where the injury occurred."
Most states adhering to the most significant relationship approach place or allocate so much importance to this point of contact since "the state with the most significant relation to a claim is usually the state in which the tort (and therefore the injury) occurred."
This is the state that "has the greatest interest in striking a reasonable balance among safety, cost, and other factors pertinent to the design and administration of a system of tort law."
Hence, if ABC Company operates a polluting factory in State X and the residents of adjoining State Y are adversely affected by the pollution by getting sick or by suffering a diminution in the value of their properties, the laws of State X or State Y may be applied, depending on other points of contact with State X or State Y. It may happen that ABC Company may also be operating another polluting factory in State Y or that it may have a representative office in State Y. This will make State Y the state with the most significant relationship to the case and its laws may be applied in determining the damages to be awarded or in resolving the cause of action of the complainants from State Y.
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