Canadian Provinces Suing Americans for Transboundary Harm
The Canadian province of Ontario suing Americans over transboundary air pollution?! Are we serious?
We are. A convergence of a political, legal, and scientific developments have made this hypothesized lawsuit possible – a lawsuit that would have seemed quite unlikely just a few years ago. Tobacco litigation in Canada signals the lowering of some jurisprudential hurdles, causation problems have been partially overcome by the advance of epidemiological research and air quality modeling, and the politics of U.S.-Canada relations are sour enough to test the patience of the usually unlitigious Canadians. Richard Lazarus helpfully commented to us during the inaugural Harvard-Boalt-UCLA Junior Environmental Scholar workshop that he has seen variations of this before – that this lawsuit would be an attempt to change the “default position” in an unresolved environmental conflict. I think that is true, although we did not articulate that as directly or elegantly as Professor Lazarus did.
Our paper presents a melding of two different conflicting perspectives. Austen Parrish, the international scholar, generally laments the extraterritorial application of domestic law, while I, the environmentalist, look for ways to remedy environmental externalities. Austen’s previous work on the Trail Smelter is representative of his commitment to the rule of law in international contexts. My recent work on climate change litigation is representative of my search for remedies and subnational solutions to the seemingly intractable problem of climate change. Of course, there are reconciliations of these perspectives, and this paper is one of them.
A step back then suggests that this lawsuit is not just the freak result of a perfect storm. In fact, this lawsuit, if brought, may be a harbinger of things to come. The increasing knowledge base of environmental harms and causes are transforming the way that we think the boundaries of legal wrongs. And the fractious nature of international environmental politics may well give rise to the kind of unilateralism that Professor Parrish has lamented in his previous work. Looking forward, with acid rain from China settling in on the West Coast of North America, is it so implausible that a recalcitrant Chinese government, combined with a growing American nativism towards China, will give rise to a similar lawsuit for trans-Pacific air pollution?