The Polluter Pays Principle and its Ascendancy in Climate Change Law

Abstract

Under the international agreements on climate change, states have a responsibility to mitigate their greenhouse gas emissions. We may refer to this as an “obligation to regulate”. This article argues that the general, treaty-derived obligation to regulate is supplemented by a separate legal principle on how to regulate: the principle that the polluter must pay. The obligation to arrest greenhouse gas emissions through regulation necessarily comes at a cost to states and individuals, as any regulation does. But the general obligation to regulate does not contain any guidance on who should bear the costs of regulation and under what circumstances. This is where the polluter pays principle comes in. In its legal instantiation, it is a principle of justice. It requires polluters, both states and individuals, to pay, because it is not fair that they assume unlimited access to the atmospheric commons. Yet, as a principle of justice, the polluter pays principle must itself be implemented fairly. Not every polluter should be made to pay, or pay the same amount, indiscriminately, or without support, if that would cause another, even greater, unfairness. Thus the polluter pays principle serves as a guide to how the general obligation of states to regulate is to be implemented.

Keywords: Polluter-pays principle; 1992 United Nations Framework Convention on Climate Change (UNFCCC); 2015 Paris Agreement on Climate Change (Paris Agreement); 1997 Kyoto Protocol; two-degree Celsius (2°C) limit on global warming; Nationally Determined Contributions (NDCs); carbon trading; climate finance