Isolated examples of laws to abate local air pollution can be traced to ancient Rome or ancient China. Governments have taken legal action to abate air pollution where it was a nuisance or frustrated other social goals. The first "modern" laws to cope with industrial air pollution were the Alkali Acts in England, adopted in the nineteenth century. Since then, and particularly in the second half of the twentieth century, the now familiar pattern of air pollution control laws has been implemented.
Contemporary "clean air laws" typically have several common characteristics. They usually define the required level of air quality desired,6 specify the geographic region in which air quality has been measured as suffering from pollution, identify the sources of the air pollutants of concern to the legislators (principally only industrial, electrical generating, or motor vehicle sources), and then set forth selected legal controls deemed appropriate to monitor and abate the emission of such pollutants (frequently permits or design and operation standards). Framework laws governing air pollution control exist in most developed states, and many developing states.
However, as overall population growth and the migration into cities stimulate growth in larger urban conurbations, and as emissions of air pollutants increase with economic development, the air pollution in major cities has increased dramatically, as is recognized, for example, by authorities in China, in Mexico, and in Thailand. The rapid development of urban centers such as the growing cities in The Gulf shows the first trends in increasing air emissions and the resultant pollution levels.7 Increasing air pollution causes marked deterioration of local public health conditions, especially during acute pollution episodes where local climate conditions (such as temperature inversions) often aggravate breathing problems for persons with asthma, emphysema, or other lung ailments, or for the very young and old. Many such sensitive persons die because of the unhealthy air during these episodes.
5 Agenda 21, adopted in 1992, calls on states to do so, as the Johannesburg Plan of Implementation reiterated in 2002.
6 These can be fairly rudimentary, such as use of the Ringleman chart to define and then set limits on emissions of smoke, or quite advanced and based on medical knowledge, such as the primary air quality control standards adopted under Section 109 of the Clean Air Act of 1970 in the United States, or the European Unions Council Directive (87/203/EEC of 7 March 1985) on air quality standards for nitrogen dioxide.
7 See, e.g., Annual Report 2002 on U.A.E. Abu Dhabi Municipality & Town Planning (September 2003), Ambient Air Quality Monitoring Network, Environment Protection Section, Public Health and Environment Administration.
When air pollutants leave one nation and cause acid precipitation elsewhere, international law provides only a rather weak regime. The UN Economic Commission for Europe has sponsored the 1979 Convention on Long-Range Transboundary Air Pollution, and its 1985 and 1994 Protocol on Further Reductions of Sulfur Emissions, together with Decisions on the Structure and Function of the Implementing Com-mittee,8 and the 1988 Nitrogen Oxides Protocol,9 have contributed to a reduction in emissions that are precursors to acid rain in West and East Europe. This regime does not address acid rain in all other parts of the world, and the atmospheric brown cloud, or ABC, constitutes a vast redistribution of acid rain from East and Southeast Asia to South Asia. Despite regional efforts to abate acid rain in North America,10 increasingly severe effects of acid rain are reported.11 The UN ECE, through the 1979 Geneva Convention, also addresses emissions of volatile organic compounds that contribute to tropospheric ozone (smog), through adopting a 1991 Protocol on Volatile Organic Compounds (VOX),12 which has had only limited success to date. Canada and the United States also have agreements on emissions of nitric oxides (NOX) and volatile organic compounds (VOX),13 to combat transboundary ozone smog. The boundary agreement between Mexico and the United States also addresses cooperation to abate all air pollution.14 The Commission on Environmental Cooperation, a Canadian-Mexican-U.S. agency established under the environmental side accord to the North American Free Trade Agreement (NAFTA) also is addressing ways to abate air pollution.15 In Asia, it is said that China's greatest volume of exports to Japan is acid rain. The Association of Southeast Asian Nations (ASEAN) has a cooperative program to abate transboundary air pollution from biomass burning, the "Haze," which is still in the earliest stages of its potential effectiveness.16
Airborne transport of other chemicals hostile to human health and nature has become a subject of public international law. The Stockholm Convention on Persistent Organic Pollutants (POPs), bans the manufacture and use of chemicals that are transported far from their place of manufacture or use, enter the food chain, and endanger life.17 The POPs agreement recognized the global and interrelated aspects of the biosphere as a basis for regulating national conduct. While still at an early phase of implementation, it provides a sound jurisprudential basis for addressing common but differentiated responsibilities for the atmosphere.
8 27 I.L.M. 707; 33 I.L.M. 1540 (June 14, 1994). 9 22 I.L.M. 212.
10 1991 U.S.-Canada Air Quality Agreement, 30 I.L.M. 676 (1991).
11 Dr. Gene Likens, and others, continue to document the effects of acid rain at Hubbard Brook. The baseline for determining levels of acid rain in North America effectively is the report, Acid Deposition: State of Science and Technology: Summary Report of the U.S. National Acid Deposition Assessment Program (NAPAP), 1991.
13 2001 amendment to 1991 Protocol, supra note 8; see http://www.epa.gov/airmarkets/usca/.
14 1983 Agreement to Cooperate in the Solution of Environmental Problems in the Border Area ("La Paz Agreement"), 22 I.L.M. 1025. In September 2002, a plan to meet primary ambient air quality standards in the border area by 2012 was announced. See U.S. EPA, Border 2012: U.S.-Mexico Environmental Program (U.S. EPA Doc. 160-3-02-001).
15 CEC, Montreal, Report (October 2003). SeeEcoAmericas, at 6-9 (January 2004).
16 See N. A. Robinson, "Forest Fires as a Common International Concern: Precedents for the Progressive Development of International Environmental Law," 18 Pace Environmental Law Review 459 (2001).
17 For a detailed analysis of the Stockholm Convention, see Marco Olson, POPs Convention (Oceana Publications, Dobbs Ferry, NY, 2003).
Despite recommendations of the WHO regarding abatement of air pollution, most states have yet to embrace clean air goals as a fundamental duty. The result is that the atmosphere continues to be used as a shared, mobile dump for gaseous wastes. Since effects of air pollution in the biosphere are not seen in the capitals of nations, they are a low priority. A higher priority arises from the distress over urban smog, and the attendant costs of health care, and the human losses due to morbitity and mortality.
The need to restore and sustain the public health in most urban settings stimulates a growing recognition of the increasingly urgent need to deploy these traditional legal systems for air pollution control with greater efficacy.
At the same time, the renewed interest in adopting stronger national air pollution laws and in securing their more effective observance and compliance, is being matched with a new concern that is not a part of these laws today. This is the rapidly emerging concern of many states to curb or eliminate the emissions of greenhouse gases that contribute to global climate change. Many air pollutants are also greenhouse gases. Air pollution also may mitigate some global warming by reflecting solar energy back away from the atmosphere. As protection of the stratospheric ozone became a priority in the 1970s, the Vienna Convention to Protect the Stratospheric Ozone Layer was negotiated, followed by the Montreal Protocol and London and related agreements, dramatically reducing emissions of the chlorofluorocarbons (CFCs). Each CFC molecule is on the magnitude of twenty times more effective as a gas retraining solar heat, as is a molecule of CO2, and thus the stewardship regime for the stratospheric ozone is often also cited as a means to cut back on climate change emissions. The rapid adoption and ratification of the Montreal Protocol led to its rapid implementation; for instance, the U.S. Congress adopted the CFC cutbacks in its 1990 amendments to the Clean Air Act, even before ratification.
The negotiation of the Kyoto Protocol to the 1992 UN Framework Convention on Climate Change (UNFCCC) led many to envision a strict cutback of CO2 emissions to the 1990 levels as a way to stabilize anthropogenic climate change. However, the refusal of the Bush Administration in the United States, and then the Putin Administration in Russia, to ratify the Kyoto Protocol, has prevented these cutbacks from becoming legally binding in international law. Whatever the timing of an eventual international agreement on how to abate CO2 emissions, it is clear that individual nations are adopting and implementing measures to curb CO2 emissions within their own territories, in explicit recognition of their common but differentiated responsibilities to do so. This has reenforced the interest in looking at air pollution laws, since the reduction in pollutants or CO2 tends to be assigned to the same ministries and employ similar legal means.
Public policy concerns for global warming and climate change, therefore, have complicated the traditional air pollution legal regimes. National air pollution law is increasingly in transition. This gives rise to a challenge: How might review of air pollution laws be employed to both secure public health in the short term, and to mitigate climate change in the long term by reducing greenhouse gas emissions?
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