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1) This document discusses transboundary pollution and conflict of laws issues that arise from pollution originating in one country and affecting another.
2) It provides examples of transboundary pollution like haze originating from forest fires or factories in one Southeast Asian country affecting neighboring countries.
3) Determining the applicable law is challenging when pollution causes harm in a different location than its source. International law, the law of affected states, and private lawsuits are discussed as approaches.
1) This document discusses transboundary pollution and conflict of laws issues that arise from pollution originating in one country and affecting another.
2) It provides examples of transboundary pollution like haze originating from forest fires or factories in one Southeast Asian country affecting neighboring countries.
3) Determining the applicable law is challenging when pollution causes harm in a different location than its source. International law, the law of affected states, and private lawsuits are discussed as approaches.
1) This document discusses transboundary pollution and conflict of laws issues that arise from pollution originating in one country and affecting another.
2) It provides examples of transboundary pollution like haze originating from forest fires or factories in one Southeast Asian country affecting neighboring countries.
3) Determining the applicable law is challenging when pollution causes harm in a different location than its source. International law, the law of affected states, and private lawsuits are discussed as approaches.
Chapter XII: Source-state: law from the state of the
TRANSBOUNDARY POLLUTION source of pollution;
Adjoining and neighboring countries: I. Problem of Pollution law of a state where the pollution Cuts across national boundaries. passes through; Effects and impacts are not localized in one Affected state: law of the state where place or within the borders of the source- the impacts are felt; or state. International treatises or conventions May originate in one place and travel to the specifically governing haze problem, territorial boundaries of another state/s. providing remedies for affected parties Source-state may not feel its harmful effects or a foundation from which the because pollution could migrate, hence, a pollution may be abated for the well- grave concern for those suffering the being of Member-states and their impacts of pollution. people. [International Perspective] major issue among countries, especially among adjoining II. Climate Change countries. Poses as a more pressing problem of today. o Haze could easily travel to neighboring What is Climate Change? country/ies in Southeast Asia. o Change of climate that is attributed o Joint concerted effort among affected directly or indirectly to human activity countries to contain the pollution. that alters the composition of the global o What is haze? atmosphere and that is in addition to Type of pollution whose origin is easy natural climate variability observed over to locate as it could be caused by comparable time periods (United Nations forest fires or from polluting factories Framework Convention on Climate in a particular area. Change [UNFCC]). May serve as a private cause of action o As any change in climate over time, for affected people and entities. whether due to natural variability or as a Hence, the need to ascertain and result of human activity determine the applicable law. This (Intergovernmental Panel on Climate is where conflict of laws arises. Change [IPCC]). o Ascertaining applicable law:
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What is IPCC? 2. Reduction in snow-cover extent, An international body established by the UN 3. Earlier spring melting of rivers and Environment Programme (UNEP) and the lakes, World Meteorological Organization (WMO). 4. Accelerated rate of rise of sea Composed of scientists from around the levels during the 20th century world. relative to past centuries. Purpose: To study climate change. Complex progressive problem in need of a Regularly publishes Assessment Reports, solution since its effects are universal and which provide policymakers solid options irreversible leading to severe crisis for and recommendations concerning climate humanity and the world, ecological balance, change in the areas of science, adaptation, resulting in the extinction of several species, and mitigation. and the disappearance of several small countries from the map. These reports are not a gospel of Priority to solutions which may reduce destruction, but a foundation for sound policymaking that gives governments carbon emissions, such as fossil fuels. several alternatives in approaching climate change. Fossil fuels have high carbon emissions that o Example: the option to use dirty fuel contribute to global warming leading to weather disturbances, change in weather patterns, and with the consequent effect of a fierce storms. warmer environment and more destructive storms, or to shift to Stronger storms cause devastating floods cleaner technologies that may be severely affecting small and poor nations; costly. most of whom never caused climate change, and yet suffer more than the generators (source-states) as they could ill Judicially recognized. afford the impacts of climate change. o Massachesetts v. EPA the harms CLIMATE JUSTICE: Element of injustice in the associated with climate change are serious and well recognized. Upholding a effects of climate change for affected states. National Research Council (NRC) Report o Principle penalizing the source or cause of the effects of climate change, which of the pollution: not the principle of the consisted of: polluter pays; but instead, proposed 1. Global retreat of mountain glaciers, accords on climate change aim to make
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the large industrialized countries Georgia v. Tennessee Copper Co. somehow responsible by putting up a 206 U.S. 230 (1907) green fund for the benefit of victim- countries/affected states. State of Georgia sued Tennessee Copper Co. and CONFLICT OF LAWS: Ducktown Sulphur, Copper and Iron Company, o Climate change has public and private Limited for injunction seeking to enjoin defendant- international law aspects. companies from discharging noxious gases to its Public International Law those territory. involving relationship of nations, such as the well-founded desire to Is Georgia entitled to injunction? Yes. preserve its sovereign territory with 1) Suit by the state in its capacity of quasi- a sufficiently concrete interest for sovereign in this particular capacity, the state judicial determination. has an interest independent of and behind the Private International Law those titles of its citizens, in all the earth and air within involving the citizens of different its domain, notwithstanding just compensation. countries, such as a citizen of a 2) Fair and reasonable demand on the part of a Victim-country devastated by a sovereign that the air over its territory should not violent storm caused by an oil be polluted on a great scale by sulphurous acid company from the Source-state for gas, including whatever domestic destruction they damages to life and property. have and would have suffered by the act of o In Private International Law, it will be persons beyond its control. difficult to assess the applicable law 3) Proof requires mere preponderance of because climate change may be caused evidence. in one country, and the effects thereof are felt in another country. III. Approaches to Transboundary Pollution Liberal Interpretation of environmental laws. a. Governmental interest analysis This approach indulges the courts to Applying the traditional approach utilized in consider governmental interests when torts (concepts of causation and two or more states have conflicting laws redressability) would weaken the system of and interests. compensation provided in environmental laws. Courts compare the laws and interests of two states to determine if there is a real conflict.
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If a real conflict exists, apply the law of subordinated to the policy of the the state whose interest is more other state. impaired. b. Lex loci delicti Purpose: Important to consider the Application of the law of the place where interest of other states since commercial the damage is suffered or inflicted. transactions involve people located in Looks to the domestic law of a state several jurisdictions, which may have applied to polluting activities whose conflicting interests in a transaction, sources are foreign. where such interest may have been a So long as the effects are felt locally, motivating factor in the agreement of the domestic law may be applied to govern parties. the act complained of, notwithstanding In torts, a state may have an interest in that the source came from outside the the dispute due to its closer connection country. to the parties. Its laws shall be favored over those of another state. Pakootas v. Teck Cominco Metals, Ltd. Steps: 452 F.3d 1066 (2006) 1) Court determination whether the relevant law of the affected Teck operates lead-zinc smelter in Trail, British jurisdictions with regard to the Columbia, generating and disposing hazardous issue in question is the same or materials into the Columbian River located in the different; US. The Environmental Protection Agency issued 2) If there is a difference, the court an Order directing Teck to conduct a Remedial examines each jurisdictions Investigation/Feasibility Study under the interest in the application of its own Comprehensive Environmental Response, law to determine whether a true Compensation, and Liability Act (CERCLA) for site conflict exists; contamination. Teck did not comply. Pakootas filed 3) If there is a true conflict, court shall a citizen suit to force Teck to comply with the evaluate and compare the nature Order. and strengths of the interest of each jurisdiction to determine Teck moved for the dismissal on the ground that which interest would be more CERCLA has no extraterritorial application, and impaired if its policy were that US has no jurisdiction over Teck, it being a
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Canadian corporation not operating in US. Motion polluting entity can be held liable. The principle to dismiss was denied. provides that it can be held liable because if its operations extend outside a countrys boundaries, Does the application of CERCLA involve an it is reasonable for it to expect that it will be held extraterritorial application of a domestic law of the liable for its polluting activity. This is a multi-state US? NO. event and not an extraterritorial application of 1) Location where a party arranged for disposal or domestic law. disposed of hazardous substances is not controlling for purposes of assessing whether c. Most significant relationship approach CERCLA is applied extraterritorially. CERCLA An examination is made as to the state imposes liability for releases or threatened that has the most connection to a case, releases of hazardous substances, and not merely and the law of such state shall be applied for disposal or arranging of such. The actual or in the resolution of the conflict. threatened release triggers CERCLA liability. In the Points of contact, as enumerated in the case at bar, the leaching of hazardous substances Restatement (Second) of Conflict of Laws: from slag that settled at the Site took place in US, 1) Place where the injury occurred hence this case involves a domestic application of 2) Place where the conduct causing the CERCLA. injury occurred 2) Applying CERCLA to the Site as defined by the 3) Domicile, residence, nationality, place Order issued is a domestic application of CERCLA. of incorporation, and place of Extraterritorial application cannot be upheld business of parties, and because CERCLA liability does not attach until 4) Place where the relationship, if any, there is an actual or threatened release of between the parties is centered. hazardous substances in the environment (in this Point of contact in most significant case, the Site, which is the Upper Columbian River relationship is the place where the injury within US). occurred. The state with the most 3) The argument that extraterritorial application significant relation to a claim is usually the shall be upheld because of the fact that an act state in which the tort (and therefore the which is sought to be regulated has a foreign injury) occurred. This state has the source but whose effects are felt locally, is greatest interest in striking a reasonable untenable. There is now a link that allows balance among safety, cost, and other domestic law to regulate a polluting activity which factors pertinent to the design and is coming from outside the border, such that the administration of a system of tort law.
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ABC Co. operates a polluting factory in Whether Maryland law or District of Columbia law State X, adversely affecting residents of governs plaintiffs claims? District of Columbia State Y. applies. o The laws of State X and State Y may be 1) State-law claims under diversity or applied, depending on other points of supplemental jurisdiction federal courts shall contact with State X or State Y. decide and apply the choice-of-law rules of the The laws of the state with the most jurisdiction in which they sit. The District of significant relationship to the case Columbia adopted the substantial interest may be applied in determining the approach to choice-of-law questions, where it shall damages to be awarded or in balance the competing interests of two conflicting resolving the cause of action. jurisdictions, and apply the law of the jurisdiction with the more substantial interest in the Nnadili v. Chevron U.S.A., Inc. resolution of the issue. District of Columbia 435 F.Supp.2d 93 (2006) consider the factors listed in Section 145 of the Restatement (Second) Conflict of Laws to Plaintiffs are current and former owners/residents determine substantial interest. of Riggs Park neighborhood in Washington, DC. 2) District of Columbia has the greater interest in They sued Chevron for having operated a gasoline the outcome of this litigation. While Chevrons station in Chillum, Maryland, which is near the conduct occurred mainly in Maryland, where its border between Maryland and Washington. The former service station and underground storage gas station was alleged to have contaminated the tanks are situated, and a handful of plaintiffs are air, soil, and groundwater of the properties currently residing therein, it was proved that all of currently or formerly owned, or occupied by the alleged contamination occurred in the District plaintiffs, which resulted in the diminished values of Columbia, and the overwhelming majority of of the subject properties. plaintiffs reside therein.
Chevron filed a motion for summary judgment.
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