The same environmental concerns that have found public and political voice in the United States over the past five years have emerged in other countries and governments and in international organizations as well. For the most part, however, international action has not yet taken an effective form. The organizations and individuals who have attempted to identify aspects of pollution that have international effects have done so with varying success. Their efforts are characteristic of our own examination of pollution problems: two conflicting definitions of pollution and correspondingly conflicting approaches to pollution control repeatedly emerge. A dispute continues between the absolute duty to release nothing harmful and the relative duty to do no more harm than is reasonable under the circumstances.

To eliminate all forms of pollution would be expensive, and would require curtailing pleasures or profits to which we have become accustomed. But advocacy of this approach does not raise a new issue; it continues a traditional struggle within Anglo-American law. The adversaries typically are, on one side, a manufacturer who operates a factory that produces a useful product and furnishes employment but gives off dust, smells, noise or filth, and, on the other, a complaining neighbor, or downstream landowner. The manufacturer argues that he has as much right to use the air or the stream as a repository for waste as the neighbor has to breathe the air or drink water from the stream.

Judicial citations of Latin maxims have the historical charm of telling us that men have been arguing a particular point since Lancastrian or even Roman antiquity. In the kinds of disputes we have described, the recurrent maxim has been: Sic utere tuo ut alienum non laedas. "Use your own property in such a manner as not to injure that of another."

In the mid-eighteenth century, Sir William Blackstone quoted the maxim as the foundation of the law of nuisance. He gave a series of illustrations: "To build a house so close to another's that rainwater from your roof spills onto his, is to commit a nuisance." So is keeping hogs so near another's house "that the stench of them incommodes him and makes the air unwholesome." A tanner's or tallow chandler's trade must be operated in a remote place. A smelting house for lead cannot be so close to another's land that its vapors and smoke kill his corn and grass, or damage his cattle. One may not "corrupt or poison a water-course by erecting a dye- house or a lime pit for the use of trade in the upper part of the stream."

Blackstone said that the courts would prevent or provide compensation for any act, in itself lawful, that necessarily tended to damage the property of another. As for the person responsible, "it is incumbent upon him to find some other place to do that act where it will be less offensive." He found authority for the remedies not only in the maxim and the many cases citing it, but in Christianity itself: "So closely does the law of England enforce that excellent rule of gospel morality of 'doing to others as we would they should do unto ourselves'."

The law, however, was never so simple. Could I not cook my food lest smoke from my stove blow in my neighbor's face? Judges before and after Blackstone tended to disregard the maxim where the landowner was using his land in a common and socially useful way, and to invoke it when the use was careless, unproductive, intended to injure another or otherwise sufficiently unlike the use to which neighboring land was being put to make trouble among neighbors. As population density increased, such troubles were likely to multiply.

In 1607, an English court had written:

One John Ronkett was indicted in pais for that he had made candles within the vill of Bury, whereby he had caused such a noisome smell that it was to the nuisance of the inhabitants of said vill, and dangerous by reason of infection.

The indictment was held insufficient by all the Court. For candles are a necessary commodity, without which people cannot well live, and though it be noisome in smell, still since it is needful for the commonwealth, it shall be suffered. . . .

The report concluded with an assurance that a town government could prohibit candle factories from certain parts of the town, but that until the government imposed such a prohibition, the factory owner was only required to be careful.

By 1751, however, judges were saying that a bad-smelling factory had no right to operate where it chose; no matter how useful its product, it only had the right to operate where it did not offend neighbors. A court said, "the very existence of the nuisance depends upon the number of houses and concourse of people."

Although the origins and rationale of the law of nuisance remain somewhat tangled, nuisance may be defined as any unreasonable interference with an owner's or tenant's enjoyment of land. The interference may be intentional or negligent or it may be conduct that is abnormal or only out of place in its surroundings. What is "normal" for an area depends upon the use to which the surrounding land is being put. A site that is appropriate for a factory at a time when it is remote from any dwellings ceases to be so when a town grows around it. Some courts have been troubled that the landowner could be deprived of the right to use his land for its accustomed purpose by newly arrived persons who could have avoided the annoyance they complain of by choosing some other place to live. One judge, for instance, ruled that a factory that had dumped waste into a stream for a long time without being challenged had thereby acquired a permanent right to do so. His decision rested on much the same principle that gives a trespasser who is permitted to cut across another's land to reach his own for several decades an easement to do so forever. The most judicially popular view, however, has been that noise or smells or harmful effluents only can be released so long as they do not interfere with another's use of land.

This common law doctrine has implications for international pollution abatement. So long as the "concourse of people" worldwide was doubling every thousand years and numbered less than half a billion (which is where it was 70 years before Blackstone was born), the entrepreneur with a factory that produced an unwholesome effluent could reasonably be asked to locate where he would not offend his neighbors. But within 70 years after Blackstone's death the world population had doubled again. The thousand- year doubling period had shortened to 200 years. It has continued to shrink. The last doubling took about 35 years. We number between three and four billion now and can expect to become twice as numerous within the next 30 years.

The increase in human consumption of energy in all forms is an indication of the rate of change in the level of man's activity. In a primitive society man consumes annually the energy equivalent of approximately 220 pounds of coal per person. The worldwide average per capita energy consumption during 1970 was the equivalent of two metric tons of coal. In the United States it was 11 tons. The United States consumed the equivalent of 2.2 billion tons that year; the world as a whole, 7.5 billion. Within 30 years, U.S. consumption is expected to be 6 billion and the world's, 32 billion tons.

While man's numbers double, his material demands and output more than triple. The waste by-products of this productivity increase at the same rate. The global consequences mount even where, for want of a neighbor, an emission does not provoke a local complaint. Within 30 years man will be contributing twice as much fixed nitrogen to the biosphere each year as the biosphere produces and consumes in its natural processes. He is already adding sulphur to the soil and oceans in a greater amount than is used in the world's natural cycle of plant growth and decay.

Such a rate of discharge has the effect of making neighbors of us all. There is no longer any location from which a discharge can go unnoticed. Applying Blackstone's law of nuisance, there is no longer any "other place to do that act where it will be less offensive."


Another series of Anglo-Saxon courtroom struggles growing out of the law of trespass has contributed support to the arguments for a strategy of prohibiting damaging releases. The cases have involved escaping animals and, like the nuisance cases, suggest that the judicial view of the comparative social utility of escaping substances, and of the damage they do, originally emphasizes the need to safeguard the economic base of the society and later is altered by the increasing importance of preserving social order in a more crowded community. The early law tended to impose liability where real economic harm was likely to result, and none where there was a theoretically wrongful act but no real injury. Judicial treatment of trespass to land was an example. Some animals were likely to damage the crop or land of another if they wandered onto it. The courts protected landowners from the incursions of these animals, cattle, horses, sheep, hogs and flocks of barnyard fowl, by making the keeper of the herd or flock responsible for the animals' trespass, whether or not he was negligent in allowing them to wander. Dogs and cats, on the other hand, were unlikely to do harm to land or crops, and, in fact, were useful defenses against predator species. The consequence was that a special doctrine exempted the owners of dogs and cats from liability for their animals' trespasses to land.

Even when the case involved injury to persons or livestock instead of to land, the basic policy remained the same. If a ferocious animal, either a captive wild animal or a domestic animal known for its propensity to attack, bit or gored an animal or person, the owner of the attacking animal was liable even though its escape or attack took place through no fault of his. However, if a generally harmless domestic animal (including a dog that had not previously displayed a savage temperament) injured a person or animal, his owner was not liable unless he had been careless. The distinctions made economic sense in an agricultural community, and they furnish a vocabulary with which to describe the gradations in perceptions of social utility that has come to make the refining of petroleum feeding a tabby to one judge but rearing a tiger to another.

The wild animal cases and the nuisance cases converged in Rylands v. Fletcher, an English case decided in 1866. The trial court found that the defendant had carefully built and filled a reservoir without learning that there was an abandoned mine shaft under it. The water burst from the reservoir into the mine below, flowed through horizontal tunnels, and flooded the plaintiff's coal mine under adjacent property. The appellate court had to decide whether building the reservoir had made its owner liable for the damage done by the flooding. They declared that:

it seems but reasonable and just that the neighbor, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbor's, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. But for his act in bringing it there, no mischief could have accrued, and it seems but just that he should at his peril keep it there, so that no mischief may accrue, or answer for the natural and anticipated consequences. And upon authority, this we think is established to be the law, whether the things so brought be beasts, or water, or filth, or stenches.

The House of Lords affirmed the case in somewhat more guarded terms.

Fletcher's success did not lay the question to rest, although English courts follow the case in current air pollution cases. Some courts in the United States have been unwilling to reach the same result when the action about which the neighbor complains has a greater apparent social utility than the activities with which it interferes. In one case, oil from a refinery and storage facility soaked into the ground, percolated onto neighboring property and poisoned a well. The court conceded that if the percolating matter had been "filth or other deleterious matter," the owner would have been under an absolute obligation to confine it successfully, but because the matter in question was "a product which has become one of the prime necessities of modern life," public policy justified absolution of the owner unless he had been careless in letting the oil spill. A court deciding a similar case, in another state, reached the opposite result after describing the material escaping from a petroleum refinery as "oil, refuse, and poisonous substances." The result, in each case, hinged on the court's view of the social utility of the substance.


These judicial expressions of public policy (another way of saying popular custom) may be as easily applied to the matter or energy that we may consider to be global environmental hazards as to local phenomena, once we recognize that a particular release is potentially harmful.

A bad smell and a savage animal have in common the quality that we recoil from either as soon as we are aware of its presence. There is a large category of adverse circumstance, however, by which we are not inspired to immediate corrective action, that we may deplore but to which we reconcile ourselves. We accept a level of irritation against which our annoyance is not high enough to support effective remedial effort. The class is made up of activities that we believe have some social utility and that produce only slight irritation. With respect to some of these activities, such as the crying of our neighbors' baby that awakens us, our perception that the injury is minor and should be endured is not likely to change. About many more of them, however, our perceptions may change, either because we change our aesthetic standards or because what we have believed to be a harmless irritant turns out to be a serious poison by reason of an increase in its volume or our knowledge. We have been exposed to automobile exhausts, and for 70 years have known that they contain poisons. We have assumed, however, that the amounts of poisons involved were too small to matter. It is only within the last few years that we have begun to worry about the effects of these amounts of carbon monoxide and lead on our health.

The dynamics of change in the levels of production of the major known poisons has made the argument for containing them easy. They are lethal in certain quantities; if they are accumulating, it is only a question of time before a level is reached at which injury will occur. Once I am convinced that I am being poisoned, it seems more sensible to stop the poisoning altogether than only to reduce the dose. That same feeling, however, does not arise with respect to substances or circumstances that we still think either completely harmless or harmful to only an insignificant degree. Carbon monoxide is now an easy target for the reformer, but commercial fertilizer is not.

The argument that we should not permit any even supposedly benign substances to move from our land, to percolate under, or mix with the air or water over, or surrounding, our neighbor's, must rest on an assessment of the damage they will do. Biologically, there is no doubt that the biosphere can absorb and digest very large quantities of many human effluents. The doubt, on a global scale, is how large these quantities can be and of what effluents. It is not clear how long it will take to resolve the doubt There is at least a good chance that the doubt may not be resolved until after the quantity that can be absorbed has been exceeded, with perhaps disastrous results. Unfortunately technology cannot yet tell us what or where the damage will be. That range of uncertainty leaves those of us who are advocates of a policy prohibiting the bringing of any unwanted matter or energy upon our neighbors' land, with a barrier to pass. We must know them "to be mischievous" before we can rely upon the principle "established to be the law whether the things so brought be beasts or water or filth or stenches."

We propose to cross this barrier upon two assertions. The first is that substances that do not occur in nature have not been part of the environmental background to which natural selection has adapted living species. We should suspect of such substances, if they are not inert, that they will cause changes that will alter the selection process with respect to some species. The second assertion is that although substances that do occur in nature and are biologically active have taken part in evolutionary change, evolution has adapted living species to them only up to the levels that appear in nature. These levels vary depending on such natural fluctuations as amounts of rainfall or of volcanic activity. If the contributions to the environment from human sources are greater than the natural variations of these substances, then these contributions can be expected to cause biological change. With respect to both kinds of substances, unforeseeable and uncontrollable biological changes resulting from human activity should be considered harmful. Not potentially harmful, or prima facie harmful, but presently harmful, on some scale or for some reason not yet known to us. We have precedent enough, from irrigation to insect eradication, to say that every large-scale human activity that involves physical change to the earth's surface or to matter has produced side effects that have markedly upset the natural balance, but that we typically do not recognize the harm for a very long time. We assert that all those human activities that release waste matter by reason of man's extraordinary proliferation and productivity are likely to be taking place on a scale that is causing harm to portions of the biosphere that we require to continue their natural functions. We are now prepared to build a remedial strategy based on this assertion. Once the harmfulness is imputed, we are back with Blackstone and the maxim. The duty of containment becomes not a new exercise in social engineering but familiar, customary, one of the oldest legal duties we owe our neighbors.

A no-release strategy not only has firm historic roots in our law, it holds more promise for international effectiveness than any partial release strategy. The reasons are not only biological but also economic and diplomatic.

The international alternatives to a no-release strategy suffer from three faults. They contemplate regional rather than uniform standards; they require agreement on what is an acceptable level of pollution; and they contemplate repeatedly changing regulations.

Consider the first of these faults: imposing standards by region rather than worldwide by activity. If a regional agreement imposes a requirement that the release of more than a certain concentration of material into the air is prohibited, one of several results must follow: the plant that would otherwise release a greater amount must close down, move away or raise its capital and operating costs to meet the standard. A competitor in a less scrupulous region may, thereafter, charge a lower price and make a greater profit. The resulting effects on costs and prices will encourage plant construction in many unregulated portions of the world and an operation without proper emission controls, increasing, rather than reducing, the global effluent release.

With respect to the second fault, adoption of a partial release strategy would require negotiation on issues upon which no political representatives could agree. To begin with, it would require multinational agreement on the concentration of a pollutant in a regional air or watershed that would be acceptable for a given multinational region. Once the concentration had been determined, the total amount of effluent that could be released per day per source without exceeding the concentration could be calculated, but participants would then have to negotiate an agreement upon what portion of a given amount of effluent each nation should be allowed to contribute to its region. Such agreements are implausible because to fix the emission quota of each of a group of countries, at any given state of control technology, would be to fix their productive output relative to one another.

If national quotas are not assigned, and instead a regionwide inventory is agreed upon, the regulatory effort that must follow would impose an even more cumbersome diplomatic task, negotiating plant-by-plant emission quotas in an international forum.

In either case the contemplated quotas would be subject to the third fault: repeated changes in standards. As pressure mounts for additional productivity in a region, the emission controls on existing plants must be made increasingly effective to permit construction of more plants if an agreed-upon total emission inventory is not to be exceeded. Of all the circumstances attending anti-pollution regulation, the most offensive to regulated industries has been imposition of partial control standards at a time when the industries know that future standards will be of a greater but indeterminate severity.

A manufacturer is told that the smoke from his chimney must consist of no more than one percent sulphur dioxide two years hence, but he is also made aware that after he has learned how to achieve that standard, the regulatory authority will consider what further reductions may be desirable. That approach can be applied easily to successive models of automobiles, but as applied to permanent industrial installations, it is like amputating a little at a time.

A control device available this year that will reduce sulphur dioxide emissions to one percent of a plant's stack gases will add roughly one- fifth to the cost of a new plant. A manager installs one at his peril. If the sulphur dioxide emission standard becomes more stringent at the end of two years, because a more effective control device has become available, he must junk his first device and buy the new one. The competitor who evades the requirement until the new standard becomes applicable pays a lower total cost.

A non-release goal, on the other hand (even if it is approached gradually), is internationally uniform and does not require knowledge of, or international agreement on, the maximum permissible amounts of effluents. The long-range goal is known from the start. Interim standards for successive reductions in future emission rates may be fixed prospectively, on the basis of current forecasts.

For individually recoverable, dangerous substances like mercury, interim standards may be direct regulations, making scheduled but increasingly rigorous demands on the industry. With respect to most substances, however, the purpose of regulatory standards might better be served by a schedule of effluent taxes imposing progressively higher annual levies on the release of specified quantities of waste material into air or water. In some industries a combination of regulation and tax may be desirable. What must be present in all cases, however, are an international industry-wide standard, a fixed period for complete termination of waste release, and a schedule of graduated, progressively more demanding standards settled in advance to cover the period until the no-release goal is achieved.

Progressive interim requirements enforced through taxation lose the quality of amputation by degrees. In an industry in which the existing state of control technology is sufficiently advanced to allow immediate construction of complete controls, the sooner they are constructed the lower the total of the effluent taxes the operator will have to pay. If the operator chooses to install controls that are less than complete, but that remove more pollutant than current standards demand, he can foresee what duration of tax-free operation the investment will permit.

In industries in which complete control is beyond the reach of existing technology, the time period before complete containment will be required may be somewhat longer, say 15 to 20 years. The effect of the graduated tax will be to encourage early investment in research and development. In every industry construction of a nonpolluting or low-polluting new plant is less expensive than installing control equipment upon an existing plant. Every new facility built before complete control technology is developed will be more expensive to convert than one designed around an effective control technology.

In the early years of the tax, while it is still low, and before complete control is possible, it may be more economical for a manufacturer to invest in research and development and pay the tax. As the tax grows heavier, there will be increasing incentive to invest in the partially effective interim controls that have been developed as a result of earlier research efforts.


If this analysis of the advantages of a no-release goal as a guide for international remedial efforts is correct, it remains to be seen what action should be taken, and by whom, to begin to put the principle into effect. The United Nations 1972 Stockholm Conference on the Human Environment offers a possible opportunity for action, so does the Organization for Economic Coöperation and Development (OECD). But the steps described below could be begun through one or more of the existing international organizations or through ad hoc multilateral deliberations. They are more likely to bear fruit in the near future if they are urged simultaneously through a number of channels.

One or more national governments (our own, for example) must undertake to show the major industrial countries that pollution abatement will have an important effect on costs for every industry whose products are sold in international commerce. If the United States is going to take the lead, it should begin by estimating the costs of pollution abatement, per unit of output, industry-by-industry, for each of the dozen or so industries that are both responsible for the bulk of the world's nonagricultural and nonmunicipal waste effluents and sell their products in an international market. These estimates must include both control costs to domestic producers in the United States and to producers in other countries responsible for most of the production of each industry.

The U.S. air and water pollution control agencies have prepared preliminary estimates of those costs for producers in the United States. These estimates, with refinement and augmentation, together with forecasts of the emission controls that the United States expects to have in effect by late 1972, could be the basis for initiating negotiations. With these estimates, the United States could begin to interest governments in determining for themselves whether representatives of the designated industries within their countries would be more willing to accept demanding emission standards by late 1972 if they could be assured that their foreign competitors would have to pay the costs of meeting the same standards.

The immediate goal of the action should not be for the OECD or the 1972 U.N. Conference to issue emission standards. Members of the OECD Environment Committee or delegates to Stockholm would have neither the authority, the information nor the time to arrive at standards. They could, however, agree upon a timetable for a series of multilateral negotiations to arrive at immediate, medium-range and long-range emission standards and tax schedules for each of a series of industries. The standards, once agreed to, must be incorporated into multilateral treaties or conventions obliging signatory governments to place the standards and tax schedules before their respective legislatures for enactment into domestic legislation.

The first generation of signatories almost certainly would be made up of only the most industrialized nations, the governments that are now under domestic pressure to reduce pollution. But their actions would, in global terms, regulate that portion of world production which accounts for very nearly all significant amounts of the effluents of man's commercial activity. Initially developing countries would not be likely to join because their economies do not yet produce sufficient quantites of pollutants to cause public discomfort or health problems, and because their difficulty in obtaining capital financing for industrial development makes them, for now, unable to afford the additional costs of pollution control. However, because the political forces for effective pollution abatement may be expected to grow in such countries at roughly the same rate as investment in industrial plants, the developing countries may be expected to join the conventions covering their industries as those industries mature. In the long run, pollution control in any country or group of countries is going to find political support in proportion to the degree of discomfort or danger that the public perceives. The greater the intensity of industrial development in any country, the greater the public's perception of danger and discomfort is likely to be.

It should be emphasized that international action is required as urgently for economic reasons as for biological ones. Discussions of the international aspects of environmental pollution tend to emphasize the global distribution of some pollutants or the local consequences of concentrations of pollutants that originate in one country and do harm in another. The economic consequences of pollution abatement, however, are likely to be the aspect of environmental change that will have the most immediate and serious international repercussions.

The most important economic consequences of pollution control are likely to be the differences in cost of production between goods produced under demanding pollution controls and those produced free of such controls. These differences have been estimated to range between five and 20 percent depending on the industry and the process. They will affect the sales and profits of competitors and are likely to result in offsetting taxes and subsidies that may, in turn, provoke retaliatory counter taxes and subsidies.

The creation of machinery to permit the establishment of international emission standards would remove an important roadblock now obstructing the development of effective national controls. Suppose, for example, that the cost of reducing effluents from a paper mill by 95 percent adds 15 percent to the cost of the paper produced in that mill. So long as the United States and the Canadian and Swedish governments try unilaterally to impose these standards, paper manufacturers in each country will say, quite rightly, that the cost of effluent controls will place them at a competitive disadvantage internationally and will lobby against the imposition of such controls by their national legislatures. At the same time, these manufacturers are increasingly sensitive to rising public concern over the discharges from their plants, and upon the effect that adverse publicity may eventually have upon the markets for their products.

If a mechanism could be developed for adopting effluent standards multilaterally, so that competitors in different jurisdictions would bear similar control costs, the manufacturers' resistance to increased effluent controls in their own countries would diminish. It would be likely, instead, to change to support for imposing similar controls on other industries, both on those with which their products compete and for those with which the controlled industry competes for capital.

An economic strategy has another strength. It allows use of stick as well as carrot. If pollution control costs in one country put its products at a price disadvantage in the domestic markets of other countries, retaliatory sanctions are available.

The possibility of retaliatory duties and subsidies and the difficulty of accurately assessing the per unit cost of an abatement process should incline the industrial countries to prefer the joint adoption of equal emission requirements over border tax and counter-tax. Regarding retaliatory border taxes against non-participating countries, preferential treatment for developing countries should be contemplated from the beginning.

The countries that cannot afford no-release are the countries that are doing only a very small fraction of the damage. However, where a specialized commercial opportunity is made available to emigrant industrial capital by a country not accepting international emission standards, discriminatory taxes might be invoked against the product benefiting from the permissive government's inaction, by all adherents to the convention governing the industry producing it.

A more intractable problem will arise where pollution abatement by developed countries has health and welfare repercussions for developing countries. Although domestic use of DDT has been declining rapidly for several years, the United States was, in 1970, still the world's largest producer of DDT. The largest customers for this DDT were the Agency for International Development and the World Health Organization. A unilateral termination of DDT production in the United States would cause an abrupt rise in malaria and decline in agricultural productivity in developing countries being supplied by these agencies. Here the interests of the affected countries appear to be opposite and there seems less chance for joint action.

Pollution control based on mutually shared international concern for the global environment, in other words, is likely to come very late. For this reason, the enormous flows of nitrates and pesticides from agricultural activity and the doubling and redoubling volumes of inadequately treated sewage from human dwellings will probably not find meaningful solution until local trauma have provoked effective independent national action. For the multitude of poisons generated by industrial activity, however, the international interdependence arising out of trading relationships may soon compel an effective international control program oriented toward complete, not partial, containment.

You are reading a free article.

Subscribe to Foreign Affairs to get unlimited access.

  • Paywall-free reading of new articles and a century of archives
  • Unlock access to iOS/Android apps to save editions for offline reading
  • Six issues a year in print, online, and audio editions
Subscribe Now