China is the world’s worst polluter. It suffers more from air pollution than any other nation, hosting most of the world’s polluted cities.1 Nearly two-thirds of the country’s 360 million urban residents suffer from unhealthy levels of air pollution.2 Anecdotal reports by visitors to China frequently refer to the alarming nature of the air pollution there.3 China’s water is polluted, too. About 100 billion cubic meters of China’s water supply is contaminated.4 China is also the leading emitter of greenhouse gases that contribute to climate change.5 China’s carbon dioxide emissions nearly tripled between 1990 and 2008.6 And China’s pollution is only expected to get worse.7 It is building unbelievable amounts of coal-fired electric power plants,8 and the number of cars in China is increasing exponentially. China “is expected to release five times more carbon dioxide over the next 25 years than the Kyoto Protocol is projected to save.”9
That pollution creates three problems. First, it is a problem for China itself. The health of the Chinese people suffers from the polluted air that they breathe and the polluted water that they drink. “Air pollution causes the premature deaths of 750,000 Chinese people every year.”10 Just one percent of China’s urban residents “breathes air considered healthy by the World Health Organization.”11 China’s pollution also has a profound detrimental impact on the nation’s economy. Economists suggest that China’s staggering economic growth statistics would be much more modest if the economic effects of polluter are included.12 The health and economic aspects of pollution, in turn, cause domestic unrest that threatens the stability of the Chinese government. There have been numerous protests against pollution from existing or proposed facilities throughout China.13
China’s pollution also produces an American problem.14 Pollution emitted in China reaches the United States, sometimes at levels prohibited by the Clean Air Act.15 China is also the most common antagonist in American debates about climate change. Members of Congress routinely make two arguments about China as a basis for opposing federal climate change legislation or international climate change treaties. The first argument claims that the United States will lose jobs to China if we internalize the costs of emitting greenhouse gases but China does not. The second argument insists that it is unfair for China to be allowed to continue to emit greenhouse gases if the United States is obliged to cap its emissions. Moreover, many American politicians note that the environment itself will suffer if the United States reduces its emissions but China does not. Such concerns persuaded the Senate to vote 97-0 in 1997 to ratify a resolution proclaiming that “the United States should not be a signatory to any protocol” to reduce greenhouse gas emissions “unless the protocol or other agreement also mandates new specific scheduled commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period.”16 Numerous Senators pointed to the forthcoming Kyoto Protocol’s treatment of China as justifying the American refusal to endorse that agreement.17 The United States never did ratify the Kyoto Protocol, and similar concerns about China continue to animate congressional opposition to a new international climate change agreement.18
The rest of the world suffers from the third problem because of the inability of China and the United States to agree on a method for reducing their greenhouse gas emissions. Even if the rest of the world were to reach such an agreement, the failure to include China and the United States would doom the project from the start. Together, China and the United States account for 41% the world’s greenhouse gas emissions.19 Left unchecked, China’s emissions along could result in many of the harms associated with climate change.20 That is why many observers believe that “[t]he decisions taken in Beijing, more than anywhere else, would determine whether humanity thrived or perished.”21
These three problems confirm the importance of how much China pollutes. Climate change and greenhouse gases are exceptional in many ways, but they are like traditional pollution problems in other ways.22 This article analyzes the disagreement between the United States and China from the perspective of two polluters. Part I examines China’s right to pollute. According to China, the world’s leading polluter and leading emitter of greenhouse gases claims a right to emit as much as it wants in the future. China emphasizes the principle of “common but differentiated responsibilities.” The Chinese argue that they do have a responsibility to help avoid the harmful consequences associated with climate change, but that their responsibility is different from that imposed on the United States and the rest of the developed world. Again, there are two parts to that argument. One part emphasizes the need for China to achieve economic development that lifts its people out of poverty. The second part says that it is unfair for China to have to bear the costs of reducing pollution when the United States and other developing countries became wealthy by polluting ourselves.
Moreover, there is no basis in environmental law for the right to pollute as much as someone else has already polluted. The law does not conceive of the air or the water as a resource that may be polluted until it is saturated. To the contrary, American law specifically rejects that the idea that clean air or water can be polluted until the pollution actually causes harm. New polluters are usually called upon to reduce their pollution more than old polluters. China’s case thus finds little precedent in American environmental law, which further explains why it has gained such little traction in the United States.
Part II considers what China actually does to reduce its pollution. To its credit, China has done much more to reduce its greenhouse gas emissions than it is legally obligated to do. It has acted from a variety of motivations, including a desire for global leadership, genuine environmental concern, fear of domestic instability, and the opportunity for economic growth. These gains are checked, though, by China’s unwillingness to constrain its unprecedented economic growth and its inability to employ the law to actually control emissions.
Part III seeks to reconcile China’s rhetoric and China’s actions in an effort to solve the problems that China’s pollution poses for China, the United States, and the rest of the world. China should ensure that its pollution does not harm its own people or the rest of the world. China should also commit to abiding by the rule of law to actually enforce the environmental regulations that it has enacted, and the United States can help China in that regard. The United States and China should also collaborate, compete, and commit in an effort to address the problems caused by China’s pollution.
I. China’s Right to Pollute
China insists that it has an unlimited right to pollute so long as the country is transitioning from a developing to a developed country. This section critiques that argument. First I examine China’s reliance on the evolving international law idea of “common but differentiated responsibilities. China repeatedly asserts that this idea supports its claimed right to pollute, but the meaning and the status of the idea are questioned by the United States and other nations. I also question China’s continuing status as a developing country rather than a developed country. China possesses many characteristics of both developing and developed countries, which renders the previous dualistic paradigm unhelpful in identifying the responsibilities of newly emerging economic powers such as China.
Next I show that China’s claim contradicts the premises of much domestic environmental law in the United States. American environmental law prohibits pollution that is harmful to human health. Additionally, new polluters must pollute less, not more, than existing polluters, which is the opposite of China’s position as a developing country. The picture is less clear if one views climate change as a problem of cleaning up existing pollution, where a variety of equitable factors point in opposite directions. Even then, responsibility for cleaning up existing pollution is not a license for new polluters to add to the problem. Nor does China’s suggestion that American consumers should be responsible for China’s pollution find any support in American environmental law. In sum, this section shows that China’s purported right to pollute lacks support from international environmental law and contradicts American environmental law, which is why that claim has been so unsuccessful in the United States.
A. Common But Differentiated Responsibilities
China’s position relies on the provision of the United Nations Framework Convention on Climate Change (UNFCCC) which states that its “[p]arties should protect the climate system . . . on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities.”23 The UNFCCC was the first major international environmental treaty to refer to “common but differentiated responsibilities,” but the idea has been traced to earlier agreements such as the 1987 Montreal ozone protocol, the 1972 Stockholm Declaration, and even the 1919 Treaty of Versailles.24 Whatever its sources, there is now “near unanimous acceptance of the principle of common but differentiated responsibility for global environmental change, even if differences remain on its implications”25 The idea continues to evolve as nations dispute both its meaning and its status under international law.
Responsibilities are “common” insofar as all nations are affected by the problem of pollution in general and climate change in particular.26 China and the United States disagree about what it means for responsibilities to be “differentiated.” According to China, developing countries should not be required to control their emissions while they are in the process of emerging from economic poverty. China’s reliance on “a scientific approach to development” recognizes that the tradeoffs and “balances” that must be made during the development process.27 China also insists that developed nations have a responsibility to help China and other developing countries develop their own economies.28 But China’s consistent position during international negotiations has been that the international community should not impose any binding emissions limits on it or any other developing country. China repeatedly cites the idea of “common but differentiated responsibilities” as supporting that position.29
China thus emphasizes other international agreements that distinguish between the responsibilities of developed countries and developing countries. The 1992 Rio declaration – signed by China, the United States, and lots of other countries – states that “[t]he developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.”30 Developed countries, says China, must accept greater responsibility for two reasons: its historic role in causing environmental degradation, and its current wealth.
A related part of China’s argument observes that greenhouse gases result in harmful climate change only once the atmosphere consists of a certain quantity of such gases. While traditional air pollutants dissipate from the diluting effect of the atmosphere, greenhouse gases accumulate there. On this understanding, climate change is only threatened because the United States and other developing countries have emitted an amount of greenhouse gases that has substantially narrowed the capacity of the atmosphere to accommodate more gases before harm occurs.
To some extent, the United States and other developing nations accept that responsibility. During the negotiations leading to the Kyoto Protocol, the United States recognized that some kind of differentiation is justified.31 It asserted that “the common but differentiated principle required that every nation make a commitment, and the ‘level and timing of each country’s commitments must be commensurate with its national abilities and level of development.’”32Even Senator Byrd, who coauthored the Senate resolution unanimously condemning what became the Kyoto Protocol, agreed that “each country must make unique and binding contributions of a pace and kind consistent with their industrialization.”33 As one writer recalled, “[t]he U.S. diplomats only wanted something – virtually anything – in the Protocol’s wording that would allow the Administration to tell Congress that developing countries were ‘limiting’ their emissions in ‘meaningful’ ways.” 34 Nothing was forthcoming, and the U.S. failed to approve the Kyoto Protocol because it disagreed with that instrument’s implicit understanding of “differentiated” responsibilities.
The American view insists that all nations have a responsibility to control their emissions, but different nations have different responsibilities. Thus, for example, developing countries could be allowed to emit more than developed countries, or they could be given more time to control their emissions, or they could be entitled to international financial or technical assistance in controlling their emissions.35 But the United States insists that developing countries do not have an unlimited right to pollute. This is especially true of countries, such as China and India, whose economies are growing rapidly with the attendant development of industries that have traditionally been responsible for substantial amounts of pollution. Under this view, the fact that responsibilities are “differentiated” does not exonerate developing nations from any responsibility at all.36
The United States questions whether the focus on past actions or the focus on current wealth justifies China’s claim that it should not be subjected to binding pollution limits. China’s understanding would hold twenty-first century Americans responsible for the actions of nineteenth and twentieth-century Americans who had little reason to worry that their activities were endangering future generations.37 Nor do the historical actions of the United States easily translate into a contemporary pollution license for China. Cass Sunstein, who now heads the Office of Regulatory Affairs in the Obama Administration, has asked why should the victims of pollution be asked to pay polluters to get them to stop, and why should the world pay China to persuade it to cease imposing risks on the rest of the world?38 China should not have the right to hold the rest of the world hostage by threatening to continue to emit unlimited amounts of pollution.
Likewise, the UNFCCC contains a separate provision regarding the “respective capabilities” that is distinct from the provision related to “common but differentiated responsibilities,” which suggests that the two ideas are distinct. No other principle of customary international law differentiates on the basis of wealth. “Surely,” observes Christopher Stone, “the customary rules against piracy and abusing diplomats carve out no exception for the needy.”39 Many citizens of China are wealthy, and many citizens of (say) Africa, India, Germany, and France are poor. If distributional considerations are what matter, it is not at all clear that the citizens of the world should pay the citizens of China to reduce their emissions.153 Even if the paying nations were mostly wealthy, it remains true that millions of citizens of wealthy nations are poor, and a payment from (say) the United States, the United Kingdom, Australia, and Canada to China might well hurt millions of poor people.40
The argument about “common but differentiated responsibilities” includes another practical concern. China emphasizes, and the Kyoto Protocol adopted, a bifurcated view of the world. Each country is either “developed” or “developing.” China belies that simple paradigm. Like developing countries, China is poor. Its per capita income remains in the bottom half of the world. Of the 1.9 billion people in the world who live on less than $1.25 per day, 835 million live in China.41 Much of China’s population lives as if it is a third-world country. This is true both in the countryside, where the rural peasants often live in the same way that their ancestors did generations ago; and in the cities, where the unprecedented migration of people from the countryside to the cities in search of better economic opportunities has overwhelmed the ability of the cities to provide for them. China relies upon such evidence when it describes itself as “a low-income developing country.”42
But like developed countries, China has one of the leading economies in the world. It is the world’s leading producer of steel, producing four times as much as the United States.43 It produces nearly three times as much coal as the United States.44 It produces half of the world’s cement and manufactures 28% of the world’s aluminum.45 It has the fourth largest gross domestic product in the world in 2007, just behind Japan. It imports more oil than every country except the United States and Japan.46 These and other statistics are frequently cited in the many popular books reporting on China’s ascension to an economic powerhouse.47
So which is it? Is China a developing country or a developed country? The answer, of course, is both – or neither. There are in fact two Chinas: wealthy, urban, and industrialized Eastern China, and poorer, rural, and comparatively agrarian Western China.48 Yet the Kyoto Protocol insists that every country must be categorized as one or the other. The Protocol assigned China to the developing country list of Annex II, thus exempting it from the greenhouse gas emission reductions imposed upon developed countries and pushing the United States toward its refusal to approve the Protocol and its eventual renunciation of it.
China’s history further complicates the neat division between developing and developed countries. Historically, China was as developed as the west until the beginning of the nineteenth century. “After 1800, and especially from the middle of the century, China suffered from growing economic weakness, near implosion, debilitating division, defeat, humiliation and occupation at the hands of foreign powers, and a progressive loss of sovereignty.”49 Then, “[f]rom around 1860 there were significant examples of Chinese industrial development that were comparable to those in Japan, notably in Shanghai. But, given China’s vast size, they were too limited and too scattered.”50 Industrialization, along with restoring the country’s unity, was “the central task facing the PRC” when it took power in 1949.51 China’s industrial base grew during Mao’s rule, but it really took off when Deng Xiao Ping unleashed the forces of capitalism in 1980.
The unprecedented speed of China’s development since 1980 invokes another principle of international environmental law. China relies on numerous international agreements that promote “sustainable development.” But China’s development is not sustainable. It is not sustainable economically, and it is even less sustainable environmentally. China admits as much.52 But China insists that its right to development cannot be constrained by environmental concerns. International law principles of “sustainable” development teach otherwise. The environmental consequences of China’s development would be much less severe if that development was not as rapid. So why does China need to develop so rapidly? Nothing in any international law agreement speaks to the permissible speed of development in the fact of the harmful consequences of that development. China answers that its development must continue at the same rapid pace because otherwise the country will be destabilized and its government will be threatened.53 But the survival of a particular government is not the concern of international norms of sustainable development. China’s position seeks to conscript international environmental law to serve the parochial interests of its governing regime.
The debate between China and the United States confirms that the correct meaning of the idea of “common but differentiated responsibilities” remains contested. The status of the idea in international law remains contested, too.54 Nonetheless, the United States accepts the general idea that it has greater responsibility than developing nations in combating today’s environmental challenges. What the United States denies is that developing countries have an unlimited right to pollute. Such a right would defeat even the most ambitious efforts by developing countries to reduce emissions that are associated with climate change.55 Regardless of who is actually right, the idea of “common but differentiated responsibilities” has failed to solve any of the three problems associated with China’s pollution. China still suffers from the harms of its pollution, the United States refuses to enter an international agreement that does not impose emissions restrictions on China, and the global community cannot effectively address the problems of climate change without the participating of China and the United States.
B. American law’s pollution rights
China’s claim that it is a developing country that has a right to pollute also contradicts the lesson of American environmental law. That law is not binding on China, but it does illustrate how an advanced legal system has resolved the questions that China seeks to raise again.56 And the American experience with environmental law also explains why the United States is unwilling to accept China’s contrary claims of an unlimited right to pollute. According to American environmental law, pollution is not permissible it if harms public health, new polluters must comply with more stringent pollution regulations, the equitable factors that govern the cleanup of existing pollution do not authorize additional pollution, and pollution is attributed to producers rather than consumers.
1. Pollution may not endanger human health
Numerous American environmental statutes emphasize the primacy of public health. The Clean Air Act (CAA) prohibits air pollution that would harm public health or welfare. It does so through EPA’s establishment of National Ambient Air Quality Standards (NAAQS) that prescribe the maximum level of certain pollutants that may be present in the ambient air. According to the CAA, EPA must set the NAAQS for each pollutant at a level “to protect the public health” with “an adequate margin of safety.”57 Primary NAAQS determine the quality of air needed to ensure public health, including the health of "sensitive" populations such as children and the elderly. Secondary NAAQSset the pollution limits needed to protect public welfare, including protection against decreased visibility, ecological harms, and property damage. EPA may not consider the cost of the pollution control measures that are needed to achieve the NAAQS.58
The Clean Water Act (CWA) takes a slightly different approach. The CWA begins by prescribing the specific technology that each category of polluters must employ to reduce their discharges into the water. Additional measures are required if that technology fails to reduce the amount of pollution to the amount that each body of water can tolerate. States decide how much pollution is tolerable based on the desired use of the water. The resulting Water Quality Standards are then translated into the Total Maximum Daily Load (TMDL) of pollutant that may be discharged into the water, and those TMDLs yield specific regulations of each source of pollution.59
The Safe Drinking Water Act (SDWA), in turn, protects the quality waters that are or may be used for drinking water supplies. EPA must establish minimum standards to protect drinking water consider based on an assessment of risks and costs. States may then add to those rules by establishing secondary standards that consider other uses of the water.60
In each instance, pollution that harms public health is prohibited. There are different ways of understanding that goal and different ways of achieving it. Pollution that does not harm public health may also be prohibited because it interferes with other aspects of the public’s welfare, or such pollution may be tolerated. But public health is always judged to be more important than economic growth.
2. New polluters are held to higher standards
China’s position presumes that it has a right to pollute because it has not polluted as much as other countries did during previous years. The U.S. Clean Air Act takes the opposite position. New polluters are required to pollute less than existing polluters. The NAAQS adopted by the CAA provide that air quality in each part of the United States must sufficiently clean to ensure public health. The CAA further provides that new polluters may not simply move to places where air quality is already clean. Pursuant to the CAA’s prevention of significant deterioration (PSD) program, new sources located in areas that have already attained the NAAQS are held to heightened pollution control standards. Additionally, the CAA’s new source performance standards (NSPS) were intended “to reduce pollution by having more stringent control technology incorporated into new facilities that were replacing old facilities.”61 Conversely, the CAA grandfathered some existing polluters from having to comply with the law’s emissions standards.62 The rationale for the distinction between new and old polluters emphasized that “new plants could be designed from the start to take pollution reduction into account,” while old plants “had often been designed with little or no thought to pollution control” and thus “would frequently require expensive retrofitting” to reduce their pollution.63That rationale, in turn, would require China to adopt more stringent pollution controls in its newly built plants than those already employed in existing facilities in other countries.
3. Equitable factors to cleanup past pollution
Pollution may present a remedial problem as well as a preventative one. China often argues that climate change is such a remedial problem because the harms of climate change result from two centuries of greenhouse gas emissions by developed countries. Those gases remained in the atmosphere and count toward the maximum parts per million beyond which the harms of climate change materialize. China and other developing countries thus object that they are not allowed to emit enough pollutants during their phase of economic development because of the historical actions of the United States and other developed countries. China thus insists on its fair share of pollution.
CERCLA provides the best American environmental law model for allocating cleanup responsibility among polluter. Like the emitters of greenhouse gases, CERCLA “defendants can vary widely in terms of their degree of causal responsibility and the culpability of their actions.”64 CERCLA is also equipped to consider the effects of pollution from a variety of actors in different places over extended periods of time. Generally, CERCLA’s liability scheme deems anyone who was associated with the property during the disposal of hazardous wastes to be a “responsible party” who must help pay for the cleanup of those wastes. Liability is often joint and several.65
CERCLA’s lesson for climate change comes when the statute seeks to allocate liability among multiple parties who have already been judged to be jointly and severally liable. The statute itself does not specify the proper method of allocating costs, so the courts have looked at the factors that Representative Al Gore listed during the congressional debate over CERCLA. The “Gore factors” include the amount of waste, its degree of toxicity, the degree of the party's involvement in handling the waste, the party's degree of care, and the degree of cooperation with government authorities to prevent environmental harm.66
Consider how these factors could be applied to allocate the costs of climate change. China emphasizes that the United States has emitted far more greenhouse gases during the past two centuries. The degree of toxicity of greenhouse gases varies widely, with the most common carbon dioxide having a lesser effect than methane and hexafluoroethane. China releases more methane than the United States because of its abundant rice paddies. The degree of the party's involvement in the emissions can be judged in different ways. From one perspective, both the United States and China have actively participated in their respective emissions. The United States could argue that its government is less involved in current emissions than China’s more centralized government, but international law holds each country’s government responsible for what happens within its jurisdiction. The degree of care was historically modest for both the United States and China, and while the United States has a more established pollution control system now, China is actually making notable strides in its own emissions reductions efforts.67 The degree of cooperation with government authorities to prevent environmental harm is also difficult to apply in this context since we are considering both the Chinese and the American governments themselves. Perhaps the appropriate is the extent the countries have worked within the international climate change framework, which favors China because only the United States failed to ratify the Kyoto Protocol. Overall, the Gore factors suggest that the United States bears a greater responsibility than China for the presence of greenhouse gases in the atmosphere.
The CERCLA allocation experience also illustrates the threshold choice between using precise formulas or imprecise lists of relevant factors when deciding who has to pay to cleanup pollution. As Dan Farber explains:
One key lesson of CERCLA is that cost apportionment involves complex determinations involving multiple social norms. In the CERCLA context, courts have never articulated a formula for how to make apportionments between responsible parties, settling instead for open-ended lists of relevant factors combined with trial court discretion. Given the much greater scale of the climate change problem, we may not be content with such ad hoc treatment. Rather, we may want to settle on some relatively mechanical formula for apportionment. The CERCLA experience suggests that no single formula is likely to appear uniquely desirable. Instead, given the complexities involved, we will have to choose among competing formulas that each have some appeal. The choice will probably involve some degree of imprecision. But, as demonstrated by CERCLA, a fairly imprecise approach to apportionment can be tolerable, so long as the relevant factors are at least taken into account.68
Yet the CERCLA example is not as helpful to China as it may hope. The purpose of CERCLA is to cleanup existing pollution, and CERCLA’s allocation scheme governs who has to pay to cleanup that pollution. That model would be appropriate if there were a way to remove greenhouse gases from the atmosphere once they had been emitted. What China argues, though, is that it has a right to emit new pollution. It wants other nations to stop polluting so it can pollute instead. That is not the problem that CERCLA addresses, and there are not any examples of CERCLA being used to force one party to cleanup a site so that another party can pollute it afterward.
4. Pollution is attributed to producers, not consumers
China often says that the pollution emitted within its borders should be counted toward the United States and other developing countries whose consumers purchase the products that are made in China. This is not a persuasive argument for many Americans.69 Nor does it fit with American environmental law, which in most instances holds producers responsible for the pollution that they release, rather than the consumers of the products made by those polluters.
The CAA, for example, regulates industrial factories, energy producers, car manufacturers, and other producers whose activities result in pollution. By contrast, the CAA does not regulate consumers, energy users, and drivers. Such individuals may bear the cost of pollution regulation through increased prices, but they are not the subject of the CAA’s regulations. Likewise, CERCLA’s broad categories of responsible parties who must pay to cleanup hazardous wastes includes the owners of contaminated land, those who owned the land or operated the facility when wastes were disposed there, those generated the wastes, and those who shipped the wastes to the site. CERCLA does not hold the consumers of any of those products responsible for the costs of the cleanup. In fact, one provision of CERCLA specifically exempts “consumer products in consumer use.”70
Michael Vandenbergh has questioned the emphasis on regulating large sources of pollution when individuals are producing a growing proportion of pollution.71 The premise of Vandenbergh’s work, though, is that the CAA, the CWA, and other environmental statutes have already achieved great reductions in pollution. Individual actions thus constitute a relatively larger share of pollution than was the case before the federal government began regulating larger polluters. China is not at that stage of its legal development yet. Moreover, the concern about pollution from individuals focuses on the polluting activities of those individuals, not on their consumption habits. There may be an equitable argument for holding consumers responsible for the pollution that resulted from the products that they purchase, but so far that argument lacks significant precedent in domestic or international environmental law.
China is exporting its effects on climate change, too. It is building dams throughout the world, prompting complaints about the indiscriminate descriptions of local ecosystems and the displacement of local populations.72 It is “the largest importer of illegally logged timber in the world.”73 Indeed, China’s “demand for natural resources” is “depleting the world’s stock of them.”74 China does not mention those activities when it suggests that resource consumers should be held responsible for pollution as well as resource polluters.