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