Air Pollution: What The Law Says

Air pollution is a pressing global issue, with 92% of the world's population living in areas where air pollution levels are unsafe. Despite this, international law on air pollution is fragmented, and one-third of countries lack legally mandated outdoor air quality standards. While the Trail Smelter Arbitration between the US and Canada in 1937/1941 established the principle that states must ensure their activities do not cause transboundary damage, there is no global agreement on long-distance air pollution. The World Health Organization (WHO) has issued guidelines for air quality, but these are not legally binding, and countries vary widely in their adoption and enforcement of air quality standards. The United Nations Environment Programme (UNEP) is working to address this crisis by providing technical support and assistance to countries in developing and implementing legal frameworks for air pollution.

The Air (Prevention and Control of Pollution) Act, 1981, India

Air pollution is regulated by various laws worldwide. One such law is the Air (Prevention and Control of Pollution) Act of 1981, also known as the Air Act, enacted by the Parliament of India. This Act was India's first concrete step towards tackling air pollution and its harmful effects on the population.

The Air Act was established to address the issues of air pollution in India, which were caused by a range of factors, including stubble burning, improper industrial practices, and environmental factors. The law was enacted under the Constitution of India, demonstrating the government's commitment to preserving natural resources and protecting its citizens from the detrimental impacts of air pollution.

One of the key provisions of the Air Act was the establishment of the Central Pollution Control Board (CPCB), as outlined in Section 2 (g) of the Act. The CPCB's authority extended throughout India, and it was responsible for directing state-level pollution control efforts. To support the CPCB in its functions, the Act also mandated the creation of the State Pollution Control Board (SPCB) for each individual state in India. Failure to comply with the CPCB's directives could result in imprisonment of up to one year, with the possibility of an extension to six years and a fine of Rs. 5000 per day if the directives continued to be unmet.

The Air Act was a significant step in recognizing the importance of mitigating the harmful effects of air pollution, which had become increasingly apparent in the early 1970s due to the effects of climate change. The United Nations General Assembly on the Human Environment, held in Stockholm in June 1972, further emphasized the need for nations to take action by passing a resolution urging the preservation of natural resources, including air.

Bans on burning wood and asbestos

The Clean Air Act (CAA) is a comprehensive federal law that regulates air emissions from stationary and mobile sources. It gives the Environmental Protection Agency (EPA) the authority to establish National Ambient Air Quality Standards (NAAQS) to protect public health and welfare and to regulate emissions of hazardous air pollutants. The CAA also mandates controls on air pollution from mobile sources by regulating the composition of fuels and emission-control components on motor vehicles and non-road engines.

While the CAA sets national standards, individual states or tribes may have stronger air pollution laws, provided they do not have weaker pollution limits than those set by the EPA. For example, California's Air Resources Board has published a Woodburning Handbook, which asks residents to help clear the air of wood smoke. The handbook provides information on the health effects of smoke, how wood burns, and ways to reduce wood smoke pollution. It also recommends that residents do not burn wood and instead opt for gas-fueled fireplaces and logs, gas inserts, or electrical fireplaces.

In 2008, the Air District in California passed a rule that makes it illegal to burn wood on days when a Spare the Air Alert is in effect for particulate pollution. This regulation was originally only applied during the winter months between November and February. However, in 2019, the rule was amended to extend the wood-burning ban to include any days throughout the year when a Spare the Air Alert is in effect due to high levels of fine particulate pollution, such as during a wildfire. The Wood Burning Rule also prohibits wood-burning devices in new buildings constructed in the Bay Area and requires residents whose sole source of heat is a wood-burning device to use an EPA-certified device registered with the Air District.

In addition to wood burning, the Southwest Clean Air Agency (SWCAA) also regulates the removal of asbestos, which can be a concern during demolition and renovation projects. Asbestos exposure can occur during the moving and separating of materials at transfer stations, and processed lumber may be coated with toxic antifungal or pesticide agents when burned. While there are no specific mentions of asbestos burning bans, the general regulation of asbestos removal and awareness of its toxic nature suggest that burning asbestos is likely prohibited.

Regulatory mechanisms in Canada

Canada has various regulatory mechanisms in place to combat air pollution. The country's Constitution divides legislative authority for regulating environmental protection between the federal Parliament and the provincial legislatures. The Canadian Environmental Protection Act of 1999 is the country's main federal legislation on preventing pollution and protecting the environment.

The Canadian federal government has issued regulations to control emissions of criteria air contaminants, such as nitrogen oxides, sulfur dioxide, carbon monoxide, and particulate matter, as well as greenhouse gases. The National Pollutant Release Inventory (NPRI) is a key tool in this regard, providing a publicly accessible inventory of pollutant releases into the air, water, and land, as well as disposals and transfers for recycling. The NPRI contains information reported annually by industrial facilities and is published by Environment Canada under the authority of CEPA 1999.

Canada has also implemented a clean fuel standard, which incentivizes the use of a broad range of low-carbon fuels, energy sources, and technologies, such as electricity, hydrogen, and renewable fuels, including renewable natural gas. This approach establishes lifecycle carbon intensity requirements separately for liquid, gaseous, and solid fuels, and goes beyond transportation fuels to include those used in industry and buildings.

In addition to the above, Canada has specific regulations for vehicles and engines to control air pollution from transportation sources. These regulations are administered by Environment and Climate Change Canada and aim to reduce emissions from cars, trucks, and other vehicles.

China's Airborne Pollution Prevention and Control Action Plan

China's Air Pollution Prevention and Control Action Plan, also known as the APPCAP, was issued by the State Council of China in 2013. It is a milestone in air quality control in China, aiming to improve air quality and mitigate the negative health impacts of air pollution. The plan sets specific targets for reducing emissions of sulphur dioxide, nitrogen oxides, and fine particulate matter (PM2.5) by 2020, with a focus on controlling ozone levels as well.

The APPCAP outlines general requirements that take "Deng Xiaoping's Theory", "Three Represents", and "Scientific Development" as guiding principles, emphasising the protection of people's health. It promotes ecological civilisation, combining government regulation, market rules, and public participation to achieve overall improvements. Regional cooperation and local administration are coordinated, with a total emission reduction control strategy in place to improve air quality. The plan also calls for a reduction in emissions of pollutants in coordination with a reduction in greenhouse gases, indicating an integrated approach to managing air pollution and climate change.

To achieve these targets, the plan includes several key strategies. Firstly, it requires carrying out environmental impact assessments for all new, modified, and expansion projects, prohibiting those that do not pass the assessment. Industrial policies will guide and restrain development, with "high energy consumption and heavy pollution" industrial projects banned in ecologically fragile and environmentally sensitive regions. Differential industrial policies will be implemented in western, central, and eastern China, with stricter environmental protection and energy-saving requirements in specific regions.

The plan also emphasises improving industrial pollution prevention and control technology policies and establishing a national air quality monitoring network. It calls for strengthening the supervision of local governments' implementation of environmental laws, regulations, and policies, as well as increasing capacity-building for environment monitoring, information, emergency planning, and supervision.

The effectiveness of the APPCAP has been analysed through national air quality monitoring and mortality data in 74 key Chinese cities between 2013 and 2017. During this period, substantial improvements in air quality were observed, resulting in a significant reduction in mortality and years of life lost (YLL) related to ambient air pollution control. However, emissions control efforts for ozone and nitrogen dioxide require further strengthening.

International regulatory areas

International law on transboundary air pollution is fragmented. However, there are some international regulatory areas that have been working to combat air pollution. For instance, the Trail Smelter Arbitration between Canada and the United States in 1937/1941 set a precedent for the no-harm principle, which states that countries must ensure that activities within their control do not cause transboundary damage. This principle has been widely accepted for transboundary air pollution between neighbouring countries, and it also extends beyond national jurisdiction. However, it is unclear if it applies to long-distance air pollution, where causal relationships are more challenging to establish.

The International Law Commission (ILC) has addressed other international environmental law principles that apply to air pollution as part of its ongoing work to codify the law on environmental protection. While these principles influence courts and dispute resolution mechanisms, their direct impact on the behaviour of states is limited. They gain significance when specified in treaty norms and subsequent treaty body decisions.

The United Nations Environment Programme (UNEP) conducted the first global assessment of air pollution legislation, examining national air quality laws in 194 countries and the European Union. The assessment revealed that one-third of countries lack legally mandated outdoor air quality standards, and there is no global alignment or common legal framework for implementing the World Health Organization's (WHO) guideline values for ambient air quality. Additionally, institutional responsibility for meeting standards is weak, and only 31% of countries have legal mechanisms to address cross-border air pollution.

To address these gaps, UNEP is developing practical guidance and providing direct technical support to countries under the Montevideo Environmental Law Programme. This includes assisting countries in establishing legal frameworks for air pollution and building the capacity of stakeholders such as judges, prosecutors, and enforcement officials.

Other international regulatory efforts include the UN's International Maritime Organization (IMO), which is working to decarbonize international shipping through regulatory measures (MARPOL 73/78). The Framework Convention on Climate Change (UNFCCC), including the Kyoto Protocol and the Paris Agreement, is another example of international collaboration to address climate change and air pollution.

While there is no global legal instrument that provides a common interpretation of principles and detailed rules for air pollution, international regulatory areas are actively working to address this issue through various initiatives and agreements.

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