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The Proposed Canada-United States Transboundary Air Pollution Agreement: The Legal Background

Published online by Cambridge University Press:  09 March 2016

Gerald F. FitzGerald
Gerald F. FitzGerald*
Affiliation:
Department of Justice, Ottawa
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 20 , 1983 , pp. 219 - 243
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1983

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References

1 There is an abundant technical literature on acid rain. For a popular description of acid rain and its effect on the environment, see Fact Sheet on Acid Rain, a io-page document prepared for the Canadian Embassy, Washington, by Wellford, Wegman, Krulwich, Gold, and Hoss. Page 8 of that document contains a useful short bibliography. While the document is undated, it appears to have been released in late 1981 or early 1982. See also Wetstone, Gregory, Air Pollution Control Laws in North America and the Problem of Acid Rain and Snow (1980), 10 Google Scholar Environmental Law Review 50001-20, at 50001-3; Still Waters, Report of the Sub-Committee on Acid Rain of the Standing Committee on Fisheries and Forestry, Minutes of Proceedings and Evidence of the Standing Committee on Fisheries and Forestry, House of Commons, Issue No. 37, Wednesday, October 14, 1981, ist Session, 32nd Parliament (hereinafter cited as “Parliamentary Sub-Committee Report”) 1980-81, 37:14–37:15; Canada-United States Law Institute Proceedings: The Transnational Implications of Acid Rain (1982), 5 Can.-U.S.L.J. 13–40.

2 Fact Sheet on Acid Rain, 2 and Parliamentary Sub-Committee Report, supra note 1, 37:19–37:27.

3 Fact Sheet on Acid Rain 2.

4 IJG Dockets No. 85R (1966) Air Pollution in Detroit-St. Clair River Areas and 99R Air Quality in the Detroit-Windsor and Port Huron-Sarnia Areas (1975). for an indication of follow-up action on these references, see IJC Annual Reports under the heading “Air Quality.”

5 Canada Treaty Series 1978, No. 2.

6 Ibid., Article 6(i)(l).

7 The Joint Statement recited a list of principles and practices which both parties agreed should be addressed in the development of a bilateral agreement on transboundary air quality. These included: prevention and reduction of transboundary air pollution; control strategies; expanded notification and consultation; expanded exchanges of scientific information and increased co-operation in research and development; expanded monitoring and evaluation efforts; co-operative assessment of long-term environmental trends and the implications of those trends for transboundary air pollution problems; consideration of such matters as institutional arrangements, equal access, non-discrimination, and liability and compensation; and consideration of measures to implement an agreement.

8 By November 25, 1982, this Convention was not in force. See infra note 27.

9 (1981), 20 I.L.M. 690.

10 A 6-page annex to the MOI states the purpose of the work group structure, contains the terms of reference of the work groups, and lists their specific tasks.

11 In early 1982, a Canadian Department of External Affairs spokesman stated that: “the United States has not implemented any legislation or regulations to control long-range transport of air pollutants. An analysis of recent administrative decisions under the U.S. Clean Air Act, and the ongoing review of these provisions, shows that the U.S. is in fact relaxing its priorities under the Act.”

Notes for Speech by K. J. Merklinger, Director, U.S. Transboundary Relations, at Dalhousie University, Halifax, March 9, 1982. On April 28, 1982, Allan E. Gotlieb, Canadian Ambassador to the United States, told the California state legislature, after pointing out steps already taken in Canada to reduce air pollution from Ontario and Quebec sources: “As things stand, we are doing our share. Now it’s your turn.” Press release, April 28, at 8.

12 Anne Gorsuch, U.S. Environmental Protection Administrator, is reported to have said at an acid rain symposium in Pittsburg in October 1982 that: “Our experience of recent years should teach us not to rush in with quick fixes where we know we have an inadequate understanding of existing conditions.” Canadian Environment Minister John Roberts has publicly accused the U.S. of “foot dragging” on the acid rain issue. (Time, November 8, 1972, at 99.) Indicative of the divergence of views is the controversy over the procedure for peer review of documents produced by the joint Canada-United States work groups studying acid rain. This review will be carried out, not by the existing Joint National Academy of Sciences/Royal Society of Canada Committee on Acid Precipitation, but rather by separate committees in each country. See (1982) 24 Environment, No. 6, July/August, at 29.

13 British Treaty Series 1910, No. 23; International Boundary Waters Treaty Act, R.S.C. 1970, c. I-20, Schedule; L. M. Bloomfield and Gerald F. FitzGerald, Boundary Waters Problems: Canada and the United States 206–17 (Toronto, 1958) and Jordan, F. J. E., “The International Joint Commission and Canada-United States Boundary Relations,” in Macdonald, , Morris, , and Johnston, , Canadian Perspectives on International Law and Organization 522–43, at 538–39 (1974).Google Scholar For a summary of the IJC’s role in the settlement of disputes, see Wang, Erik B., Adjudication of Canada-United States Disputes (1981), 19 Canadian Yearbook of International Law 158–228, at 165–68.Google Scholar For comments on the Trail Smelter case and state liability for environmental damage, see Handl, Günther, Balancing of Interests and International Liability for the Pollution of International Watercourses: Customary Principles of Law Revisited (1975), 13 Canadian Yearbook of International Law 156–94, at 167–68,Google Scholar and Handl, Günther, State Liability for Environmental Damage (1980), 74 Am. J. Int’l L. 524–65, at 537.Google Scholar For recent comments on the Trail Smelter case and air pollution, see FitzGerald, Gerald F., La pollution atmosphérique transfrontière: l’affaire de la fonderie de Trail (1980), il Etudes internationales 393–419; John Roberts, The Transnational Implications of Acid Rain: Introductory Remarks (1983), 5 Can.-U.S.L.J. 2–9, at 2–9.Google Scholar

14 3 UNRIAA 1905–82.

15 Ibid., 1965.

16 For the text of the compromis d’arbitrage, see 3 UNRIAA 1907–10; Canada Treaty Series 1935, No. ao; (1935) 30 Am. J. Int’l L. Supplement 163.

17 [1949] I.C.J. Rep. 4,22.

18 C. B; Bourne, in a review of Irene van Lier, Acid Rain and International Law in (1981), 19 Canadian Yearbook of International Law 441, at 444.

19 480 UNTS 43; Canada Treaty Series 1972, No. 20.

20 International Law Association, Helsinki Conference Report, 1966, 484–533. Also of interest is the Athens Resolution of the Institute of International Law on the Pollution of Rivers and Lakes in International Law, (1979), 58–II Yearbook 196–203. At its 60th Conference, held in Montreal in 1982, the ILA approved the Articles on Water Pollution in an International Drainage Basin included in the Report of the Committee on International Water Resources Law. The new articles modify significantly and enlarge upon the provisions of the Helsinki Rules. See International Law Association, Montreal Conference Report, 1982.

21 For the text, see (1972), 11 I.L.M. 1416.

22 Nuclear Tests (Australia v. France), [1974] I.C.J. Rep. 853, 389.

23 (1975), I4I-L.M. 236.

24 (1976), 15 I.L.M. 1218.

25 (1977), 16 I.L.M. 977.

26 Canada Treaty Series 1978, No. 20.

27 This Convention will enter into force on the nineteenth day after the date of deposit of the twenty-fourth instrument of ratification, acceptance, approval, or accession. As at November 25, 1982, twenty-three states, including Canada and the United States, had taken the necessary action to become parties to the Convention.

28 (1975)14 I.L.M. 1292, at 1308. On the question of air pollution the Final Act says: “the participating States will make use of every suitable opportunity to co-operate in the field of environment and, in particular, within the areas discussed below as examples. … Systems and methods of observation and control of air pollution and its effects, including long-range transport of air pollutants.”

29 On the question of state liability, see Handl, Günter, State Liability for Accidental Transnational Environmental Damage by Private Persons (1980), 74 Am. J. Int’l L. 525–65.Google Scholar

30 For a discussion of the constitutional background of environmental pollution in Canada, see Franson, Robert T. and Lucas, Alistair R., Canadian Environmental Law (Butterworths, looseleaf), Volume 1 — Environmental Law Commentaries and Cases, 251–77.Google Scholar

31 S.C. 1970–71–72, c. 47.

32 S.C. 1980–81, c. 45.

33 S.C. 1974–75–76, c. 72.

34 R.S.C. 1970, c. F-I4.

35 R.S.C. 1970, c. C–34.

36 S.O. 1971, c. 86.

37 S.O. 1975, c. 69.

38 R.S.Q., c. Q-a.

39 For a fuller description of pertinent Canadian legislation see Canada/United States Memorandum of Intent, Report of Legal, Institutional, and Drafting Work Group (Work Group 4), July 31, 1981, hereinafter called “Report of Work Group 4,” 18–22, Appendix D. See also Franson and Lucas, op. cit. supra note 30, Volume 1, chapter [4], which describes federal and provincial laws; Volumes 2, 2A, 3, 4, and 5, which contain the texts of provincial statutes and regulations; and Volume 6, which contains the texts of federal statutes and regulations. See further ECO/LOG Canadian Pollution Legislation (Corpus Publications Services Ltd., Toronto, looseleaf), 4 volumes.

40 42 U.S.C.S. 7401 et seq.

41 42 U.S.C. 4321.

42 15 U.S.C. 791.

43 42 U.S.C. 4321. For a fuller description of pertinent United States legislation, see Report of Work Group 4, 28–36.

44 There is an abundant literature on the question of liability and compensation for transboundary pollution damage between Canada and the United States. See, for example, Fairley, H. Scott, Private Remedies for Transboundary Injury in Canada and the United States: Constraints upon Having to Sue Where You Can Collect (1978), 10 Ottawa L. Rev. 253–72Google Scholar; Franson and Lucas, op. cit. supra note 30, Volume 1, chapter [3], and McCaffrey, Stephen, Private Remedies for Transfrontier Pollution Damage in Canada and the United States: A Comparative Survey (1981), 19 U. of Western Ontario L. Rev. 39–54.Google Scholar Depending upon circumstances, leaving aside the question of injunctive relief, a claimant seeking compensation could sue on the basis of nuisance, the rule in Rylands v. Fletcher, negligence, statutory tort, action on the case, trespass, or public trust. In the United States, there is also the federal common law of interstate nuisance, although McCaffrey states that: “It is unclear whether this theory would be useful to a private litigant in a transfrontier pollution case” (at 43–44).

45 Report of Work Group 4, 24.

46 Ibid.,26.

47 S.C. 1980–81, c. 45, s. 3(s. 21.1).

48 48 U.S.C. 7415.

49 See supra note 44.

50 See Report of Work Group 4, 22–24 (Standing from the Canadian Perspective) and 25–28 (Standing from the U.S. Perspective).

51 Ibid., 23.

52 Ibid., 25.

53 28 U.S.C. 1350.

54 Ibid., 28.

55 Ibid., 25.

56 See Brown, Susan, International-United States Air Pollution Control and the Acid Rain Phenomenon (1981), 21 Natural Resources Journal 631–45, at 640–41:Google Scholar “Because of technical limitations, it is nearly impossible to establish a cause and effect relationship when long range transport of pollutants is a factor.” See also on this point Gregory Wetstone, op. cit. supra note 1, at 50017 and the Parliamentary Sub-Committee Report, supra note 1, at 37:15.

57 For a discussion of this rule, see Arbitblit, Donald Carl, The Plight of American Citizens Injured by Transboundary River Pollution (1979) , 8 Ecology Law Quarterly 339–70, at 342–43Google Scholar; Fairley, op. cit. supra note 44, at 264; Gerald F. FitzGerald, op. cit. supra note 13, at 402–3 and 418; McCaffrey, Stephen C., Jurisdictional Considerations in Private Litigation between Canada and the United States (1973) , 3 Calif. West. Int’l L.J. 191–259, at 218–19 and 224–29Google Scholar; Fischer, J. M., The Availability of Private Remedies for Acid Rain Damage (1981) , g Ecology Law Quarterly 429–87, at 446–47Google Scholar: “Where plaintiffs [in United States courts] seek to recover for losses resulting from acid rain damage to soil fertility or to ecological stability of lakes, courts will probably see such lawsuits as involving injury to real property and apply the local action rule“ (447); Smith, T. B., The Canadian Legislative Position (1982) , 5 Can.-U.S.L.J. 66–71, at 69Google Scholar and Chester, Simon, Remedies in Canadian Courts (1983), 5 Can.-U.S.L.J. 85–90, at 87.Google Scholar On private law remedies, see (1982), 5 Can.-U.S.L.J. 85-90 (Simon Chester-Canada) and 91–96 (Peter Herzberg-United States).

Chester says: “And if reforms like these fre access] don’t materialize, what then? Well, I think you can write off private court action as anything more than a speculative footnote to government administrative agreement“ (89). Herzberg says: “litigation under the common law of nuisance and the [United States] Clean Air Act can, at best, be a holding action against further pollution, and, at worst, much ado about nothing” (96).

58 As enunciated by the House of Lords in British South Africa v. Companhia de Moçambique, [1893] A.C. 602, 63 L.J.Q.B. 70 (H.L.), followed by the New Brunswick Court of Appeal in Albert v. Fraser Companies Ltd., 11 M.P.R. aog, (r937) ι D.L.R. 39 and followed by the House of Lords in Hesperides v. Muftizade, [1978] 2 All ER 1168.

59 Albert v. Fraser Companies Ltd., supra note 58.

60 L.R. 3 H.L. 330 (1868).

61 McCaffrey, op. cit supra note 57, at 258.

62 American Bar Association and Canadian Bar Association, Settlement of International Disputes between Canada and the USA. Resolutions Adopted by the American Bar Association on August 15, 1979 and by the Canadian Bar Association on August 30, 1979 with Accompanying Reports and Recommendations September 20, 1979 (hereinafter cited as the “ABA/CBA Report“), at xiii-xix.

63 Report of Work Group 4, at 23.

64 See Report of the Joint Drafting Committee on Transboundary Pollution Reciprocal Access Act (198a). The report contains a preparatory note and detailed comments on the local action rule.

65 For a discussion of the settlement of disputes between Canada and the United States, see Canada-U.S. Relations: Cooperation and Dispute Settlement in the North-American Context (1978), 1 Can.-U.S.L.J. 1-169, ABA/CBA Report, and Wang, op. cit. supra note 13.

66 (1981), ao I.L.M. 1373–90, at 1377–82.

67 ABA/CBA Report, 59.

68 Ibid., 60.

69 Ibid., xxi–xxxii.

70 Some political subdivisions of the two countries have not been slow to accept obligations respecting the control of transboundary pollution from acid rain, as witness the New York-Quebec Agreement on Acid Precipitation, at Montreal, July 26, 1982, (1982), 21 I.L.M. 721–25. There is, of course, a precedent for province-state agreements in the air pollution field. Earlier, as a result of the IJC study in 1972, which contained recommendations for abatement and control of air pollution crossing the Canada/United States border, Michigan and Ontario signed an agreement to implement a program of co-operation in southeastern Michigan and southwestern Ontario. See Memorandum of Understanding on Transboundary Air Pollution Control in Southwestern Ontario, Southeastern Michigan Area, signed by Michigan on December 5, 1924 and by Ontario on November 21, 1974.

71 For example, at a conference in Pittsburg, on October 6, 1982, Anne M. Gorsuch, Environmental Protection Agency Administrator, said that recent studies raised doubts that coal-burning industries were the major cause of acid rain. (The Citizen, Ottawa, October 7, 1982, at 7.) On October 17, 1982, former Canadian Environment Minister, John Fraser, said that Canada had “enemies“ in the United States seeking to sabotage joint action against acid rain. (The Citizen, Ottawa, October 18, 1982, at 5). On November 2, 1982, John Roberts, Environment Canada Minister, said that an American report, prepared over a two-year period for the U.S. EPA, blaming mid-western U.S. power plants as the major source of acid rain, seemed soundly based despite protests to the contrary by the Reagan administration. (Globe and Mail, Toronto, November 3, 198a, at 5). Speaking to a conference on atmospheric deposition on November 9, 198a, Alan Hill, U.S. presidential adviser, accused Canadians of name-calling and finger-pointing in the fight over acid rain. At the same conference, Walter Giles, Ontario’s associate deputy minister for the environment, said that immediate action must be taken to halt acid rain and stop the ravaging of Canadian and U.S. lakes. He said that enough was known about acid rain to accelerate a program to eradicate the problem. (The Citizen, Ottawa, November 10, 1982, at 3).

72 The Citizen, Ottawa, October 26, 1982, at 3.

73 The Parliamentary Sub-Committee Report, supra note I, says at 37:17: “A successful control program requires a determined political will; the lack of that political will may be the single most important impediment to combatting acid rain.”