The Acid Rain Convention

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Acid rain is caused primarily by coal burning, which occurs mostly in power stations.37 The problem varies in gravity around the world, depending on geography and climatic conditions, the incidence of coal-fired power stations and the sulphur content of the coal consumed. In the 1960s and 1970s the problem became of acute concern in the eastern part of North America, where Canadian forests have suffered as a consequence of airborne sulphur from power stations in the Mid-West of the United States, which burn high sulphur-content locally produced coal. In the Asia-Pacific region China is the most affected country.

The 1979 Convention on Long-Range Transboundary Air Pollution38 is the one major international agreement regulating the emissions of substances that cause acid rain. It is the first multilateral convention that seeks to regulate the environmental consequences of energy production. The treaty is a framework Convention that provides the basic obligation of protecting humankind and the environment from air pollution. The specific obligations are contained in five Protocols to the Convention. Article 2 of the Convention states that the Parties 'are determined to protect man and his environment against air pollution', and goes on to provide that the Parties 'shall endeavour to limit and, as far as possible, gradually reduce and prevent air pollution including long-range trans-boundary air pollution'. Pursuant to articles 3-9, the Convention obliges Parties to develop and review policies and strategies on combating the discharge of air pollutants; engage in research and monitoring; exchange information on policies, scientific activities and technical measures; enter into early consultations; and implement and further develop the Co-operative Programme for the Monitoring and Evaluation of Long-Range Transboundary Air Pollution in Europe (EMEP).

In order to combat air pollution, article 6 requires the Parties to develop best policies and strategies, including air quality management systems and control measures. However, this requirement is stated to apply only to 'new or rebuilt installations'. The measures adopted are to be 'compatible with balanced

37 For a general discussion of the problem of acid rain, see UNDP et al, World Energy Assessment, ch 3; C C Park, Acid Rain: Rhetoric and Reality, Methuen, London, 1987; H Dowlatabadi and W Harrington, 'Policies for the Mitigation of Acid Rain: A Critique of Evaluation Techniques' (1989) 17 Energy Policy 116; D P Adams and WP Page, Acid Deposition: Environmental, Economic and Policy Issues, Plenum Press, New York, 1985. For a discussion of the legal problems associated with acid rain, see e.g. N Fichthorn, 'Command-and-Control vs the Market: The Potential Effects of Other Clean Air Act Requirements on Acid Rain Compliance' (1991) 21 Env L 2069; J L Regens and R W Rycroft, 'Options for Financing Acid Rain Controls' (1986) 26 Natural Resources J 519;ABrunee, Acid Rain and Ozone Layer Depletion, Transnational Publishers, New York, 1988, at 225ff.

development' and only the 'best available technology which is economically feasible' is to be used. This means that environmental protection is dependent on economic factors.

An Executive Body, comprised of representatives of the Contracting Parties, has been created by article 10 of the Convention. The Body meets annually and, inter alia, reviews the implementation and development of the Convention.

Of the four Protocols which have been developed to support the Convention, three are particularly relevant to the regulation of emissions that cause acid rain. These are the 1985 Protocol on the Reduction of Sulphur Emissions or Their Transboundary Fluxes by at least 30 Per Cent (Helsinki);39 the 1988 Protocol concerning the Control of Emissions of Nitrogen Oxide or Their Trans-boundary Fluxes (Sofia);40 the 1994 Protocol on Further Reduction of Sulphur Emissions (Oslo),41 and the 1999 Protocol to Abate Acidification, Eutrophication and Ground-Level Ozone (Gothenburg).42

The 1985 Protocol on the Reduction of Sulphur Emissions is a relatively simple document. Article 2 imposes a flat rate reduction in sulphur emissions or their transboundary fluxes of 30% for each Party ratifying the Protocol. Three other duties aimed at reducing emissions are contained in the Protocol. First, by article 4 each Party must annually report its annual sulphur emissions and the basis of calculation to the executive body. Second, pursuant to article 6, each Party must develop without undue delay national programs, policies and strategies to serve as a means of reducing sulphur emissions or their transboundary fluxes by at least 30% by 1993 and report thereon to the executive body. Third, article 3 of the Protocol obliges the Parties to study at the national level the necessity for further reductions beyond the initial 30% reduction when environmental considerations warrant.

The 1985 Protocol on Sulphur Reductions did not apply to the control of nitrogen oxide, another pollutant that causes acid rain. This omission is addressed in the 1988 Protocol concerning the Control of Emissions of Nitrogen Oxide or Their Transboundary Fluxes. Article 2.1 of this Protocol requires Parties to reduce their national annual emissions of nitrogen oxides or their transboundary fluxes of such emissions to 1987 levels by the end of 1994. By article 2.2, the Parties must apply national emission standards to major new stationary sources and new mobile sources based on the best available technologies which are economically feasible, and are obliged to introduce pollution control measures for major existing stationary sources.

The 1988 Protocol is noteworthy for being the first of the Protocols established under the Convention to employ the 'critical loads' approach, rather than a percentage-based approach, to the reduction of emissions. 'Critical load' is defined in article 1.7 as meaning 'a quantitative estimate of the exposure to one or more pollutants below which significant harmful effects on specified sensitive

39 (1988) 27 ILM 707. In force 2 September 1987. 40 (1988) 27 ILM 698. In force 14 February 1991.

elements of the environment do not occur according to present knowledge'. The approach requires the setting of environmental goals and the linking of these goals to the required emission reductions. The current deposition levels and the natural characteristics of the affected areas are first determined, following which critical values and corresponding objectives are then recommended and are converted into the necessary emission reductions by the use of EMEP computer model calculations.43 The approach appears preferable to flat rate reductions for several reasons: it can take regional peculiarities into account; it avoids the arbitrary establishment of reduction rates and reference years by taking into account environmental goals and cost-benefit calculations; and it forms a good base for the coordination of national strategies.44 The 'critical loads' approach was subsequently adopted in the 1991 Protocol Concerning the Control of Emissions of Volatile Organic Compounds or Their Transboundary Fluxes45 and the 1994 Protocol on Further Reduction of Sulphur Emissions.

The 1988 Protocol obliges the Parties, no later than 6 months after the date of entry into force of the Protocol, to commence negotiations on further steps to reduce annual emissions, taking into account the best available scientific and technological development and internationally accepted critical loads (article 2.3). To that end, the Parties must cooperate to establish critical loads, reductions based on the loads and measures and a timetable for achieving the reductions.

The Protocol contains a number of other obligations. By article 3.1, the Parties must facilitate the exchange of technology to reduce emissions, particularly through the promotion of commercial exchanges, direct industrial contact and cooperation including joint ventures, exchange of information and experience, and the provision of technical experience. No later than 6 months after the date of entry into force of the Protocol the Parties must commence consideration of procedures to create more favourable conditions for the exchange of technology to reduce emissions of nitrogen oxides (article 3.3). Pursuant to article 4, as soon as possible and no later than 2 years after entry into force of the Protocol, the Parties must make unleaded fuel sufficiently available, in particular cases as a minimum along main international transit routes. In addition, articles 5-8 require the Parties to regularly review the Protocol taking into account the best scientific substantiation and technological development, give high priority to research and monitoring based on the critical loads approach, develop without undue delay national programs, policies and strategies to implement obligation, and report annually to the Executive Body.

The 1994 Protocol on Further Reduction of Sulphur Emissions imposes additional sulphur reduction requirements. Like the 1988 Protocol, the critical loads approach is used to determine reduction targets for each Party. There are a number of basic obligations contained in article 2 under which the Parties must reduce their emissions in accordance with requirements set out in various

43 Hohmann, Precautionary LegalDuties, at 287. 44 Ibid. 45 (1992) 31 ILM 568.

Annexes. For example, pursuant to article 2.2, as a minimum the Parties must reduce and maintain their annual sulphur emissions with the timing and levels specified in Annex II. Annex II provides goals for sulphur emissions reduction, which are specific to each country. Unlike the 1985 Protocol, emission limits are required by article 2.5 for new and existing major stationary combustion sources.46

The Protocol also provides in article 2.3 for the designation in Annex III of Sulphur Oxides Management Areas (SOMAs) in critical areas, the first such declared area being south-east Canada. Where transboundary flows can be traced to emissions from a particular area within a country's jurisdiction, that area may be designated a SOMA. If the only emissions contributing to acidification are from an area listed as a SOMA in the Protocol, then the Party must as a minimum reduce and maintain its annual sulphur emissions in the area so listed (that is, not for the nation as a whole) in accordance with the timing and levels specified in Annex II.

In order to implement the basic obligations listed in article 2 of the 1994 Protocol, each Party is required by article 4 to adopt national strategies, policies and programs no later than 6 months after the Protocol enters into force and must take and apply national measures to control and reduce its sulphur emissions. The Protocol also contains in articles 2-9 other obligations relating to the exchange of technology, reporting requirements, research, development and monitoring, compliance, the review of existing obligations, continued negotiations on reductions, and the settlement of disputes.

The 1994 Protocol incorporates in its Preamble references to recently developed international principles such as the precautionary principle and the concept of sustainable development. It is noteworthy that energy has assumed a far more prominent role in this Protocol than in the others. Energy conservation and renewable energy are explicitly mentioned in the Protocol. By article 2.4, the Parties must make use of the most effective measures for the reduction of sulphur emissions appropriate in their particular circumstances, for new and existing sources, including measures to increase energy efficiency and to increase the use of renewable energy. By article 3, the Parties must, consistent with their national laws, regulations and practices, facilitate the exchange of technologies and techniques, including those that increase energy efficiency and the use of renewable energy. There is also an obligation in article 6(e) to encourage research, development, monitoring and cooperation related to energy technologies, and to encourage techniques to enhance energy efficiency, energy conservation and the use of renewable energy.

The most recent agreement under the 1979 Convention is the 1999 Gothenburg Protocol to Abate Acidification, Eutrophication and Ground-Level Ozone,47

46 A stationary combustion source is defined in Article 1.14 to mean 'any technical apparatus or group of technical apparatus that is co-located on a common site and is or could be discharging waste gases through a common stack, in which fuels are oxidized in order to use the heat generated'.

47 EMuT 979:84/H.

which recently entered into force on 17 May 2005. Currently there are only 16 State Parties, consisting of the United States, the European Union and a number of European States.

The 1999 Protocol aims to cut emissions of four pollutants: sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs) and ammonia, by setting country-by-country emission ceilings to be achieved by the year 2010. It is based on the critical loads approach with different requirements for different countries. The requirements were adopted according to cost-effectiveness; that is, to achieve specified environmental targets at the lowest overall cost for Europe as a whole. The Protocol is of specific relevance to energy as the Protocol sets tight limits for specific emission sources, including electricity generation and road transport. Guidance documents adopted with the Protocol specify a large range of abatement techniques and economic instruments designed to reduce emissions in the relevant sectors.48 According to the United Nations Economic Commission for Europe, the effect of the Protocol will be to reduce the area in Europe with excessive levels of acidification from 93 million hectares in 1990 to 15 million hectares and to halve the number of days with excessive ozone levels.49

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