JURI 5750:
International Environmental Law

Class 4:
Introduction to the Acid Rain Problem

Assignment

Consider the following questions:

1. What are the main features of the acid rain problem? Which ones give the acid rain problem an international dimension?
   
   
2. What regulatory approaches could be used to address the acid rain problem? What are their strengths and weaknesses?
   
   
3. Are these regulatory approaches best implemented at the national or the international level?
   
   
4. If acid rain were purely a national problem, and had no transboundary implications, would it be easier or more difficult to solve? What additional problems (or benefits) are introduced by the transboundary character of the acid rain problem?
   
   

Transboundary Pollution

Transboundary pollution is pollution that originates in one country (the "source state"), with impacts in another (the "victim state"). Many transboundary pollution problems are varieties of what the common law terms "nuisance": activities on one piece of property that cause ongoing damages to another property owner. Other transboundary pollution problems result from a discrete event, such as an accident. In either situation, the transboundary pollution is essentially the same as local pollution; the only difference is that the pollution happens to cross an international border, whether by means of the wind, a river or an ocean current, to name a few of the many transport mechanisms. Examples of transboundary pollution include:

• Pollution of the United States from industrial plants located in Mexico along the US-Mexican border.
  
  
• The spill into the Rhine River of hundreds of tons of toxic chemicals (including an estimated two tons of mercury), as a result of a fire at the Sandoz Warehouse near Basel, Switzerland. The accident is considered one of Western Europe's worst environmental disasters. (Former West German chancellor Willy Brandt described it as, "Bhopal am Rhine".) It virtually decimated the fish population of the Rhine; killed waterfowl as far away as the Netherlands; and necessitated the temporary closing of drinking plants in France, the Netherlands and West Germany.
  
  
• Radioactivity from the Chernobyl nuclear accident in the Soviet Union, which was widely dispersed throughout Europe, particularly into Scandinavia.

1. Standard of care – Should the goal of international law be to prevent all transboundary pollution, or only that pollution which is "unreasonable"? An absolute rule against transboundary pollution could be justified on the grounds that transboundary pollution violates the territorial integrity of the victim state; in essence, it constitutes a trespass. But, since virtually all human activity may affect the environment, preventing pollution altogether may not be desirable or even realistic. Instead, we may wish either to (a) prevent only those harms that cross some threshold of substantiality, or (b) apply a balancing test, weighing the costs of preventing pollution (e.g., the opportunity costs of foregoing the polluting activity altogether or the costs of pollution control technologies) against the benefits of doing so. This is the approach of nuisance law.
   
   
2. Individual or state responsibility – Who should be held responsible, the state where the pollution occurs or the specific company or entity causing the pollution? Ordinarily, international law holds a state responsible for private actions only when the private action can be attributed to the state – e.g., when the private entity is acting on behalf of or under the direction of the state. But states could also be held responsible for private conduct if international law were to impose a general duty on states to control private activities that harm or threaten harm to other states. For example, some scholars argue that international law requires states to use due diligence to prevent activities within their territory from causing substantial environmental injury in another state. On this theory, Switzerland could have been held responsible in the Sandoz case if it failed to take all reasonable measures to prevent the accident – for example, by not inspecting the plant on a regular basis.
   
   
3. Causation – Often it may be difficult to establish a causal link between pollution in one state and harm in another – particularly, in cases of widespread, chronic, and relatively low-level pollution such as acid rain. (Generally, causation is less of a problem in cases of acute pollution arising from a dramatic accident, such as the Sandoz fire or the Chernobyl accident.)
   
   
4. Remedies/dispute resolution mechanisms – Should transboundary pollution disputes be resolved politically, through negotiations, or legally, by referring the dispute to a third-party decisionmaker (a judge or arbitrator)? And, if the latter, should international or national legal mechanisms be used? Generally states prefer to keep control over disputes, and attempt to resolve them through negotiation rather than adjudication or arbitration. This raises the question: Why do states sometimes choose to resolve environmental disputes through legal mechanisms? And to what extent should individuals be able to bring complaints against transboundary polluters in either national courts or international fora?
   
   

The Acid Rain Problem

(a)      Background

Acid rain is caused by emissions of sulfur dioxide (SO2) and nitrogen oxides (NOx), known as acid rain "precursors." These gases chemically react in the atmosphere to form sulfuric and nitric acids, which precipitate out of the atmosphere in rain, fog, snow and dust. (Because acids can precipitate out of the atmosphere in forms other than rain, "acid deposition" is often used as a more precise term for "acid rain.")

SO2 and NOx are both trace gases in the atmosphere. As of the early 1990s, total global emissions of SO2 were approximately 150-200 million tons per year, about 2/3 to 3/4 from human sources such as fossil fuel power plants and smelters. In areas of high acid rain, as much as 95% of SO2 emissions are from human sources. Emissions of NOx were approximately 30-50 million tons per year in the early 1990s, mostly from mobile sources such as cars.

SO2 and NOx from power plants, cars, and smelters stay in the atmosphere for only a few days before they chemically react and precipitate out as acid rain. During this time, they are transported by air currents comparatively limited distances – up to about 1000 kilometers (approximately 600 miles). For this reason, acid rain is a regional rather than a global problem. Emissions of acid rain precursors in the US can cause acid rain in Canada but not in Africa or Australia; similarly, emissions in Poland and Czechoslovakia can cause acid rain in Scandinavia but not in the United States. Determining exactly which acid deposition is caused by which emissions, however, is extremely difficult, because of the complexity of the air currents that transport SO2 and NOx from one place to another. Current atmospheric circulation models still rely on many assumptions and approximations, in order to make up for incomplete data and to simplify calculations to manageable levels.

The effects of acid deposition are also somewhat uncertain. The clearest effect of acid deposition is on lakes. Although it is unclear exactly how many lakes have been acidified, a major study in the United States in the 1980s and early 1990s (the National Acid Precipitation Assessment Program, or NAPAP) found that 1200 lakes were fully acidified (4% of the lakes in the area affected by acid rain), and a study in Canada indicated that 5% of lakes were acidified, and 25% had a pH of less than 6.

The effects of acid deposition on forests are the subject of greater dispute. In recent years, observations indicate that forests have declined: large areas of forest are badly damaged, and forests are growing more slowly. 50% of forests in Germany were found to be affected in 1989, and 75% of all trees in Poland show signs of damage. But the causes of this forest decline are not clear. The decline could in part result from natural causes such as cold, insects, or disease; or it could be caused by human activities which produce increased levels of ozone and heavy metals as well as acid rain.

Other possible effects of acid rain include damage to historic buildings and monuments (although much of this damage appears to be due to local rather than long- range pollution), and harm to human health (for example, increased respiratory problems).

(b)     The United States-Canada Acid Rain Dispute

Thus far, acid rain has been a problem primarily in Europe and North America. But because China has now become the third largest emitter of SO2 in the world, acid rain is also emerging as a problem in Northeast Asia. We will concentrate primarily on the acid rain problem in North America, although, towards the end of this unit, we will briefly examine efforts to control acid rain in Europe, through the development of the Long- Range Transboundary Air Pollution Convention (LRTAP).

Precursors of acid rain flow in both directions across the US-Canadian border, but the flows have been substantially greater from the United States into Canada than vice versa. In the 1980s, an estimated 50% of acid deposition in Canada resulted from emissions in the United States of SO2 and NOx, while only 20% of acid deposition in the United States resulted from Canadian emissions. In essence, the United States has historically been a net exporter of acid rain and Canada a net importer.

The acid rain issue first emerged as a political issue between the United States and Canada in the 1970s. Apart from the fact that Canada is the "downstream" state in the net flows of pollutants across the border, Canada has been particularly sensitive about the acid rain problem for two reasons: first, Canada is particularly dependent on forests, which are adversely affected by acid deposition; and second, Canadian lakes have little buffering capacity and are therefore particularly susceptible to acidification. According to Canadian studies, 14,000 of its lakes have a pH of less than 5 and are completely dead, and an additional 150,000 lakes are in the process of acidification. In response, the United States argued throughout most of the 1980s that it had already made substantial efforts to reduce its emissions of SO2 and NOx and that, as a result, per capita emissions in the United States were substantially lower than in Canada; in its view, the problem was on its way to being solved.

In the late 1970s, the United States and Canada began to undertake cooperative actions to address the acid rain problem, establishing a bilateral research group in 1978, issuing a joint statement on air quality in 1979, and signing a memorandum of intent in 1980, under which the two countries agreed to work towards negotiating a cooperative bilateral agreement on transboundary air pollution. The election of President Reagan, however, led to substantial changes in US policy and to delays in the negotiation of the bilateral agreement. It was not until after the election of President Bush, and the enactment of the 1990 Clean Air Act Amendments in the United States, that an agreement was reached between the US and Canada (the 1991 Air Quality Agreement), which requires specific emissions reductions by each country and establishes a cooperate framework for addressing air quality issues in the future.

In the following sections, we will use the acid rain dispute as a vehicle for examining a number of general transboundary pollution issues:

1. Use of national courts – We will begin on fairly familiar grounds, by examining the role of national legal systems in addressing transboundary pollution problems. Although international lawyers tend to focus on international remedies (such as suit in the International Court of Justice), using national courts to address transboundary pollution may be a more practical approach, since national legal systems are far more developed than the international system. The use of national courts, however, raises a host of practical questions about where suit may be brought (in the courts of the polluting or of the polluted state?) and what remedies are available (money damages for past pollution or an injunction to prevent future pollution?). Furthermore, it is questionable whether national litigation is an appropriate means of addressing a policy problem such as acid rain, where complex decisions must be made about how much to reduce emissions and by what means.
   
   
2. International standards – Next, we will examine whether there are general international standards dealing with transboundary pollution problems such as acid rain. These standards could be of two types: (a) substantive standards – for example, a duty to prevent unreasonable transboundary pollution, or (b) procedural standards – for example, duties to undertake prior environmental assessments of planned activities and to notify and consult with the affected state.
   
   
3. Treaty solutions – Finally, we will examine negotiated solutions to the acid rain problem: in North America, the 1991 US-Canada Air Quality Agreement, and, in Europe, the 1979 Long-Range Transboundary Air Pollution Convention and its related protocols.