National Recourses for International Pollution: Towards a United States, Canada Solution

Abstract

The most prominent transboundary concern is, of course, acid rain, caused by the long-range transport of industrial and automotive pollution. But long-range air pollution transport also results in several other serious but less publicized transboundary problems such as the movement across national boundaries of oxidant pollution, which is impairing agricultural productivity in southern Ontario and elsewhere, and the transboundary flow of toxic air pollutants, a phenomenon which may already be affecting the Great Lakes.

Over the past several years the Environmental Law Institute has conducted a series of studies of the institutional framework governing control of international pollution problems. A major conclusion of this research effort is that current national and international legal structures are poorly suited to the effective control of transboundary pollution. Domestic suits are too limited in their scope. Diplomatic channels are, in general, not adequate to promote the changes in national energy and environmental policies which may be necessary to avoid widespread environmental damage. The international legal structure offers useful principles of environmental responsibility, but they are neither sufficiently defined nor sufficiently enforceable to support effective application to specific controversies. Despite the recent increase in the number and severity of international environmental problems, governments continue to make energy policy, pollution control, and land use decisions without explicit consideration of transboundary impact.

There are forward-looking provisions in the Clean Air Acts of both the U.S. and Canada requiring control of emissions causing transboundary problems (U.S. Clean Air Act Section 115 and Canadian Clean Air Act Section 21.1). But these efforts to control international pollution through national laws have been frustrated by the absence of an effective mechanism to impartially translate vague notions of environmental responsibility into concrete control actions. A recently completed ELI study focused on a new approach which would make the largely ignored U.S. and Canadian Clean Air Act provisions for control of international air pollution work more effectively, and in concert. Under this approach the U.S., Canada International Joint Commission, which has a history of successful efforts in the implementation of boundary water quality accords, would be tapped to play a major role in defining international pollution problems and identifying responses under both U.S. Clean Air Act Section 115 and Canadian Clean Air Act Section 21.1.