Polluter Pays Principle Meets Public Opinion

by Jeanette M. Rishell
(Manassas Park, VA)

The intensity with which Attorney General Ken Cuccinelli and others like him are working to discredit anything related to the science of climate change point directly to their understanding of a not-too-distant eventuality.

The far right wing has been accused of never looking past the next quarter/cycle/season, but in this case I believe they are looking somewhat farther down the road, to an expansion in the area of transboundary environmental litigation (litigation across national boundaries). To them the future for corporations must appear expensively laden with accountability and obligation. However, we are now on that trajectory.

The fruits of what is known as the Trail Smelter arbitration are being realized. When the emissions from a smelter in British Columbia caused property damage in the United States, both countries agreed to arbitration in 1935. It was an early effort by an international tribunal to address pollution across a national boundary, and the result became important for environmental law, as part of the tribunal’s 1941 statement demonstrates:

“under principles of international law, as well as the law of the United States, no state has the right to use or permit the use of territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.”

Trail Smelter lead to the establishment of the polluter pays principle (PPP), and PPP is very straightforward. The entity responsible for producing pollution pays for the damage to the natural environment. PPP is important because it shifts the responsibility of dealing with pollution onto the producer of that pollution so the costs of goods or services reflect a pricing reality. Companies need to pay to dispose of their own waste. This in turn shifts the burden away from the public sector because that burden should not be the responsibility of government, which in the end is the taxpayer.

With this in mind, as early as 2002 the State of Tuvalu (an island nation in the southwestern Pacific) reached out to other ocean nations with whom they could combine in order to pursue possible legal action against those contributing to global warming. And recently the Federated States of Micronesia are exercising their right to challenge the modernization of the Prunerov coal burning power plant located in the Czech Republic. Czech Law allows for input from other nations.

Plans were made to refurbish the plant for energy efficiency and carbon emissions reduction. Although the Federated States of Micronesia (FSM) are in general agreement with modernization, they fear that Best Available Technology will not be used; that profits will be maximized by cost cutting on equipment and result in millions more tons of emissions in coming years that could have been prevented. These emissions will contribute to global warming, rising seas and the swamping of Micronesian land. For a present and future climate victim who lives thousands of miles away to have this much influence on a foreign industry seems inherently groundbreaking.

Although Prunerov is high on the list of single source polluters, it alone will not cause the seas to rise. There are another 5,000 or so plants around the world contributing to carbon dioxide emissions. The very thought of tackling this challenge is daunting, and at a time like this it’s helpful to remember what the Chinese philosopher Lao Tzu said: “The journey of a thousand miles begins with a single step”. This is what the FSM has done, and undoubtedly there will be many more steps in this long journey.

As we go forward into this new era of attempting to hold nations accountable for pollution-induced transboundary harm, we must acknowledge some limitations. In the end it will be extremely difficult for any judge to hold some companies responsible for the environmental damages caused by many more companies over expanses of time and space. But what we can hope for is increased visibility and a much needed paradigm shift; a movement of public opinion bubbling up for action.

This public opinion shift is crucial. We all can imagine how difficult it would be for an elected official to begin deliberations to address a problem when their own constituencies do not believe there is even a threat. This, in a nutshell, is what the “deniers” are counting on to maintain their own status quo.

Without these serious and broadly based discussions regarding the threat of global warming, then the conversations of potential national security risks from global warming become truncated; as do the discussions about environmentally produced population migration, societal unrest and any disturbance in the flow of goods and services related to environmental shocks on the world economy.

But the human factor is a powerful persuader. In an age of instant social networking, everyone will know when residents must leave their ancestral beach front property, when farm lands are soured by seawater and when increasingly powerful meteorological events happen around the world. So pollution-induced transboundary litigation will undoubtedly continue to place all of this before the public, until eventually the necessary constituencies are motivated to demand serious and large scale development of sustainable alternatives.

The stage is already set, the curtain is up and the players are engaged. The only question now is; in which “Act” of this tragic drama will audience participation commence?