Transboundary pollution

The most common interpretation of transboundary pollution is that it is pollution not contained by a single nation-state, but rather travels across national borders at varying rates. The concept of the global commons is important to an understanding of transboundary pollution. As both population and production increase around the globe, the potential for pollution to spill from one country to another increases. Transboundary pollution can take the form of contaminated water or the deposition of airborne pollutants across national borders. Transboundary pollution can be caused by catastrophic events such as the Chernobyl nuclear explosion. It can also be caused by the creeping of industrial discharge that eventually has a measurable impact on adjacent countries. It is possible that pollution can cross state lines within a country and would indeed be referred to as transboundary pollution. This type of case is seldom held up as a serious policy problem since national controls can be brought to bear on the responsible parties and problems can be solved within national borders. It is good to understand how interstate environmental problems might develop and to have knowledge as to those regulatory units of national government that have jurisdiction.

Federalism is important in issues of national environmental pollution largely because pollution can spread across several states before it is contained. Within the United States, it is the Environmental Protection Agency (EPA) that writes the regulations that are enforced by the states. The general rule is that states may enact environmental regulations that are more strict than what the EPA has enacted, but not less strict. In some cases interstate compacts are designated by the EPA to deal with issues of pollution control . An example of this is the regional compacts for the management of low level radioactive waste materials. These interstate compacts meet and make policy for the siting and management of facilities, the transport of materials and the long term planning for adequate and safe storage of low-level radioactive waste until its radioactivity has been exhausted. Other jurisdictions such as this in the U.S. deal with transboundary issues of air quality , wildlife management , fisheries, endangered species , water quality , and solid waste management . Federalism has been manifested in specific legislation. The National Environmental Policy Act (NEPA) is an attempt to clarify and monitor environmental quality regardless of state boundaries. NEPA provides for a council to monitor trends. The Council on Environmental Quality is a three-member council appointed by the President of the United States to collect data at the national level on environmental quality and management, regardless of jurisdiction. This picture at a national level is vastly complicated when moved to a global level.

There is increasing demand for dialogue and support for institutions that can address impacts on the global commons. The issue of "remedies" for transboundary pollution is usually near the top of the agenda. Remedies frequently take the form of payments to rectify a wrong, but more often take the form of fines or other measures to assure compliance with best practices. The problem with this approach is that charges have to be high enough to offset the cost of controlling "creeping" pollution that might cross national borders or the cost of monitoring production processes to prevent predictable disasters. Marine pollution is an excellent example of a transboundary pollution problem that involves many nation-states and unlimited point sources of pollution. Marine pollution can be the result of on-shore industrial processes that use the ocean as a waste disposal site. Ships at sea find the ocean just too convenient as a sewer system, and surface ocean activities such as oil drilling are a constant source of pollution due to unintentional discharges. Accidents at sea are well-documented, the most famous in recent years being the Exxon Valdez oil spill off of Alaska in Prince William Sound in 1989. Earlier, in 1969 an international conference on marine pollution was held. As a result of this conference two treaties were developed and signed that would respond to oil pollution on the high seas. These treaties were not fully ratified until 1975. The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter and The Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft cite specific pollutants that are considered extremely detrimental to marine environments. These pollutants are organohalogenic compounds and mercury, as well as slightly less harmful compounds such as lead, arsenic, copper, and pesticides. The specificity of those treaties that deal with ocean environments indicate a rising commitment to the control of transboundary pollution carried by the ocean's currents and helped to resolve the question of remedies in the Valdez catastrophe.

Acid rain is a clear example of how air currents can carry destructive pollution from one nation-state to another, and indeed, around the globe. Air as a vector of pollution is particularly insidious because air patterns, although known, can change abruptly, confounding a country's attempt to monitor where pollutants come from. Acid deposition has been an international issue for many years. The residuals from the burning of fossil fuels and the byproducts from radiation combine in the upper atmosphere with water vapor and precipitate down as acid rain. This precipitation is damaging to lakes and streams as well as to forests and buildings in countries that may have little sulfur and nitrogen generation of their own. The negative justice of this issue is that it is the most industrialized nations that are producing these pollutants due to increased production and too often the pollution rains down on developing countries that have neither the resources nor the technical expertise to clean up the mess. Only recently, due to international agreements between nation-states, has there been significant reduction in the deposition of acid rain. The Clean Air Act Amendments of 1990 in the United States helped to reduce emissions from coal-burning plants. In Europe, sulfur emissions are being reduced due to an agreement among eight countries. The European Community in 1992 agreed to implement automobile emission standards similar to what the United States agreed to in the early 1980s. In 1994 all large automobiles in Europe were required to reduce emissions with the installation of catalytic converters. These measures are all aimed at reducing transboundary pollution due to air emissions.

Probably the most famous case of transboundary river pollution is that of the Rhine River with its point of incidence in Basel, Switzerland. This was a catastrophe of great proportions. The source of pollution was an explosion at a chemical plant. In the process of putting out the fire, great volumes of water were used. The water mixed with the chemicals at the plant (mercury, insecticides, fungicides, herbicides and other agricultural chemicals ), creating a highly toxic discharge. This lethal mixture washed into the Rhine River and coursed its way to the Baltic Sea, affecting every country along the way. Citizens of six sovereign nations were affected and damage was extensive. There was further consternation when compensation for damage was found to be difficult to obtain. Although the chemical company volunteered to pay some compensation it was not enough. It was possible that each affected nation-state could try the case in their own national court system, but how would collection for damages take place? "In transboundary cases, if there is no treaty or convention in force, by what combination of other international law principles can the rules of liability and remedy be determined?" It becomes problematic to institute legal action against another country if there is no precedent. Since there is no history of litigation between nation-states in cases of environmental damage there is no precedent to determine outcome. Historically, legal disputes have been resolved (albeit, extremely slowly) through negotiations and treaties. There is no "polluter pays" statute in international law doctrine.

The authority that can be brought to bear on issues of transboundary pollution is weak and confusing. The only mechanism that is currently available to compensate injury is private litigation between parties and that is difficult due to a lack of agreements to enforce civil judgments. If, in fact, the polluter is the national government, as in the case of the Chernobyl disaster, it may be nearly impossible to gain compensation for damages.

Transboundary pollution takes many forms and can be perpetrated by both private industry and government activities. It is difficult if not impossible to litigate on an international scale. It is in fact sometimes difficult to determine who the polluter is when the pollution is "creeping" and not a catastrophic incidence. Airborne transboundary pollution is extremely difficult to track due to the pervasive nature of the practices that produce it. Global solutions to transboundary pollution can only be successful if all nations agree to implement controls to reduce known pollutants and to take responsibility for accidents that damage the environmental quality of other nations.

[Cynthia Fridgen ]

RESOURCES

BOOKS

Buck, S. J. Understanding Environmental Administration and Law. Washington, DC: Island Press, 1996.

Plater, Z. J. B., R. H. Abrams, and W. Goldfarb. Environmental Law and Policy: Nature, Law, and Society. St. Paul: West Publishing Co., 1992.

World Wildlife Fund. "Choosing a Sustainable Future: The Report of the National Commission on the Environment." Washington, DC: Island Press, 1993.

PERIODICALS

Bernauer, T., and P. Moser. "Reducing Pollution of the River Rhine: The Influence of International Cooperation in The Journal of Environment & Development." Sage Periodicals Press 5, no. 4 (December 1996).