Legal Remedies for Transboundary Pollution
New Horizons in Environmental and Energy Law series
Edited by Michael Faure and Song Ying
Chapter 6: Applying National Liability Law to Transboundary Pollution: Some Lessons from Europe and the United States
Michael Faure and Gerrit Betlem 1 INTRODUCTION Examples of transboundary pollution cases can unfortunately be found on almost all continents and have probably since industrialization only increased. Moreover, economists would argue that externalization of harm is a natural phenomenon, not only for individuals and enterprises, but also for political entities like States. Indeed, if politicians were able to make their own voters enjoy the beneﬁts of economic activities while they could succeed in passing on the costs to others, they would in principle not refrain from doing so. Moreover, politicians will generally not be rewarded for ﬁghts against transboundary pollution since the foreign citizen who would beneﬁt from such action cannot support them with votes. In other words, the fact that national politicians would support legislation allowing ﬁrms to externalize harm to their neighbours should, from this economic perspective, not come as a surprise. To some extent, it is easy to ﬁnd examples of this externalizing behaviour, for example if one simply looks at the siting of noxious and dangerous facilities: in many countries, dangerous activities like e.g. nuclear power plants will not be located next to the capital of a particular country, but preferably close to the borders where risks are primarily felt by their neighbours. Just as within the national context (also in regard to transboundary environmental harm), externalities are considered a market failure to which the law should react. In the absence of legal rules which force countries to take into account the transboundary pollution...