Ciencias forestales

INTRODUCTION
Environmental law is becoming ever more centralized. In the United States, state and local pollution laws have been eclipsed by federal regulation.1 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.2 And the growing importance of treaties regulating particularaspects of the global environment has reinforced calls for more general regimes of international environmental regulation.3 [*pg 932]

One inevitably given justification for this centralizing trend is that pollution is a transboundary phenomenon.4 Air and water pollution, and to a lesser extent groundwater contamination, can cross political boundaries. Moreover, pollution that originates in onestate 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 troubleenforcing 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.5

When one examines existing environmental regimes more closely, however, a paradox emerges. Notwithstanding the broad general trend toward centralizedregulatory 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.

The customary international law of transboundary pollution, for example, is based on a very small number of inconclusive adjudications and a mountain of official declarations and unofficial[*pg 933] commentary seeking to make something out of them.6 When one turns to international treaties, the situation is only slightly better. Although there are over 200 international agreements dealing with environmental matters,7 only a few deal specifically with transboundary pollution. And with isolated exceptions, the transboundary treaties that do exist are largely devoted to encouraginginformation-sharing and consultation, rather than establishing liability regimes or prescribing substantive limitations on polluting activity.

One would think that the situation must be different within a mature federal system like the United States, where transboundary pollution from one state to another has long been recognized as a problem.8 In fact, the law that governs pollution crossingstate lines in the United States is nearly as undeveloped as the international law governing transboundary pollution. During the first three decades of the twentieth century, the United States Supreme Court began the process of articulating a federal common law of interstate pollution in a string of cases in which the Court exercised original jurisdiction.9 More recently, however, the Court hasengaged in a series of gyrations about the source of law that applies to transboundary nuisances,10 and in so doing has hindered the development of a coherent body of decisional law.

Perhaps more surprisingly, the federal regulatory statutes that one would expect to address transboundary pollution--principally the Clean Air Act11 and the Clean Water Act12--have themselves largely failed toregulate transboundary pollution. The Clean Air Act prohibits emission activity in one state that contributes significantly to other states' noncompliance with air quality standards,13 but no state has ever secured relief under this provision.14 The Clean Water Act has been interpreted by the Envi- [*pg 934] ronmental Protection Agency (EPA) as prohibiting discharges in one state that cause detectable...