Environmental law is becoming ever more centralized. In the United States, state and local pollution laws have been eclipsed by federal regulation. In the European Community, and to a lesser degree under the North American Free Trade Agreement (NAFTA), national controls have been supplemented by regional regulation. And the growing importance of treaties regulating particular aspects of the global environment has reinforced calls for more general regimes of international environmental regulation.
One inevitably given justification for this centralizing trend is that pollution is a transboundary phenomenon. Air and water pollution, and to a lesser extent groundwater contamination, can cross political boundaries. Moreover, pollution that originates in one state and spills over into another is very difficult for either jurisdiction to regulate effectively. The source state may be reluctant to impose expensive controls on local industry when the benefits will inure to political outsiders. The affected state may not be able to obtain jurisdiction over actors in the source state, or, if it can obtain jurisdiction, the affected state may have trouble enforcing any decree it enters. Given the inherent difficulties in regulation by any single state, transboundary pollution would seem to present a clear case for shifting regulatory authority from local to more centralized levels of governance.
When one examines existing environmental regimes more closely, however, a paradox emerges. Notwithstanding the broad general trend toward centralized regulatory authority in environmental law, and the widespread invocation of transboundary pollution as a justification for that trend, little meaningful regulation of transboundary pollution actually exists.
Thomas W. Merrill,
Golden Rules for Transboundary Pollution,
Duke L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/361