1997 Articles

Golden Rules for Transboundary Pollution

Merrill, Thomas W.

This Article asks why regulation of transboundary pollution remains so underdeveloped in a world where environmental policy in general is becoming increasingly centralized. In Part I, I canvass in greater detail the disparity between official norms and legal reality in the regulation of transboundary pollution. In Part II, I ask whether certain structural features common to transboundary pollution disputes account for this failure. In Part III, I consider the additional possibility that the failure of transboundary pollution regulation is partly a function of the official legal norm of strict liability that supposedly governs these disputes. In Part IV, I return to the original jurisdiction decisions rendered by the United States Supreme Court in the first three decades of this century. In Part V, I will advance some reasons why such a golden rule, operating in tandem with another golden rule that would require source states to treat affected states as well as the source state treats its own citizens, provides a more satisfactory starting point for overcoming the structural barriers to the effective regulation of transboundary pollution. I do not claim that the golden rules offer a panacea for transboundary pollution. The very real structural obstacles to effective regulation discussed in Part II will continue to frustrate most proposals for collective action. Furthermore, there are circumstances in which the golden rules would not improve upon strict liability-for example, where the polluting activity is novel and has not given rise to any tradition of regulation in either state. My contention is more modest and comparative: the golden rules, with their appeal to a general standard of reciprocity, provide a better foundation for building a consensus for meaningful regulation of transboundary pollution than does the current assumption in favor of a universal norm of strict liability.