Institutional and Cultural Constraints on the International Harmonization of the Polluter Pays Principle as a Global Sustainable Development Strategy in the Indian, Chinese, and U.S. Environmental Law and Policy Regimes

Abstract

The Polluter Pays Principle made its international debut in 1972 in a recommendation by the Council of the Organisation for Economic Co-operation and Development ("OECD") to OECD Member States on the international aspects of environmental policies. Fifteen years later, the World Commission on Environment and Development recognized it as an economic strategy for achieving sustainable development. The Polluter Pays Principle requires polluters to bear the costs of the pollution prevention and control measures imposed by public authorities to achieve or to maintain an acceptable level of environmental quality, including the costs of environmental restoration measures, with certain narrowly defined exceptions. Its goals are to encourage the rational use and better allocation of scarce environmental resources and to avoid distortions in international trade and investment by ensuring that the costs of goods and services that cause pollution when produced or consumed reflect the costs of the pollution prevention and control measures required by public authorities. If the Polluter Pays Principle is to achieve its goals globally, then it must be adopted and implemented effectively by a critical mass of States, especially the States with the world's biggest economies or that stand out for the size of their current or likely future contributions to global environmental challenges such as anthropogenic climate change. India, China, and the United States all fall within this special group. The international harmonization of the adoption and implementation of the Polluter Pays Principle in the environmental law and policy regimes of these three States remains elusive, however, which substantially undermines its goals globally.

In India, the Union Government identified the Polluter Pays Principle as an essential vehicle for integrating environmental considerations into government decision-making more than twenty years ago. It took the Indian Supreme Court, however, in a characteristically activist move, to recognize the principle as a part of Indian law a few years later, albeit in expanded form. Unfortunately, the polluters in the seminal case succeeded in delaying the execution of the Court's final judgment for fifteen years, which highlights how India's unique legal culture and institutions can be as much a hindrance as a help in ensuring that even the Indian variant of the Polluter Pays Principle is implemented effectively.

In China, the Central Government has derived from the Polluter Pays Principle the principle of "who pollutes, who treats," which purportedly serves as one of the pillars of China's environmental law and policy regime. As implemented, the pollution discharge fee system that China has developed to operationalize this derivative expands the Polluter Pays Principle in some respects, but contracts it in others, the net effect being to neutralize its effectiveness as a sustainable development strategy. Essential elements of the Chinese legal tradition, as well as an institutionalized devolution of power from the Central Government to local governments in recent decades, which has mobilized cultural norms of behavior at the local level, have played crucial roles in producing this result. In the United States, neither the Federal Government's principal pollution control statutes nor the federal statute that declares a national environmental policy claim to embrace the Polluter Pays Principle per se. Moreover, to the extent that the U.S. environmental law and policy regime embraces the principle implicitly, it also does so inconsistently. The institutional fragmentation of the federal law- and policy-making process, in which special interest groups in civil society play an especially influential role, has produced an environmental law and policy regime that exempts certain types of pollution from some of its most important requirements for reasons that undermine the spirit, if not the letter, of the Polluter Pays Principle. The rise of traditional conservatism as a potent political force nationally in recent decades has helped to perpetuate, if not to exacerbate, this result. As the examples of India, China, and the United States suggest, harmonizing the adoption and implementation of the Polluter Pays Principle as a global sustainable development strategy in a critical mass of States is at least as much a political and legal challenge as an economic one, even taking into account the special economic circumstances of less developed countries. The political and legal constraints that have blocked this harmonization to date are State-specific, and have both institutional and cultural dimensions. The most likely prescription for overcoming these constraints is sustainability leadership, not in the form of mere calls for economic rationality or the mustering of political will, but in the form of the acquisition and deployment of the institutional and cultural knowledge and skills needed to work each of the relevant municipal law- and policy-making and Implementation systems strategically in order to achieve the desired result.

Keywords: China, environmental law and policy, India, polluter pays principle, United States