Transboundary Pollution Reciprocal Access Act Summary

It is rare for a person to be able to inflict personal injury upon another person at such a distance that state or international borders intrude between them. Pollution of the air, water and soil, however, creates just such a pos­sibility. Pollutants may be carried by wind or water cur­rents far beyond their sources. And this crossing of boundaries creates difficulty for the injured parties in obtaining a proper remedy.

The dominant choice of forum rules have, generally, precluded bringing an action in the place of origin for pollution. The action must be filed in the jurisdiction in which the injury occurs. If no personal jurisdiction of the polluter can be obtained in that jurisdiction, the injured person has no action to bring. Modern principles of jurisdiction have modified the old rules on personal jur­isdiction, to a great extent, between states of the United States. It is more possible to bind the out-of-state pol­luter to an action in the state where the injury occurs. But this requires adequate long-arm provisions in the law, and many states have not enacted appropriate legislation. Even if a state has enacted such legislation, and its judg­ments are entitled to full faith and credit in the state where the pollution originates, the injured party may still have to litigate the enforcement of the judgment in that other state. 

Also, between the United States and Canada, there is no binding provision like the Full Faith and Credit Clause in the U.S. Constitution to· require judgments in one country to be enforced in another. Canadian polluters cannot, gen­erally, be sued in Canada for pollution crossing into the U.S., and vice versa. And suits brought in either country for pollution from the other cannot be enforced in the other country where the polluter is to be found. One solu­tion to the international problem may be a treaty. But it is very difficult to activate the treaty-making and ratifi­cation process for that solution. 

Is there a way, are there principles, which might solve both the international and interstate problems? The answer lies in the principle of comity coupled with the principle of reciprocity. The states may permit citizens of other states to sue in their own courts, and are most likely to admit out-of-state litigants into their courts if the other states provide reciprocal rights to out-of-state citizens. The same principle applies in the international sphere -between states of the U.S. and provinces of Canada. "If you will permit me, I will permit you" -that is the operating principle.

The Transboundary Pollution Reciprocal Access Act applies these principles to lawsuits based on damages re­sulting from pollution. Each enacting state or province will allow persons injured in another reciprocating state or province the access to sue polluters found within its borders. And the reciprocal character of this permission assures injured parties in an enacting state that they can pursue polluters at the place of the pollution's origin in other enacting jurisdictions.

Having established the "reciprocal access" to each other's courts, the Act sets some corresponding rules for litigation. Any injured person given access to the courts in an enacting state has the same rights to relief as if the injury or threatened injury occurred in this jurisdiction. In addition, the person given access will be subject to the law of the state or province giving ac­cess to its courts, excluding choice of law rules.

Choice of law rules govern the substantive law to be applied in an interstate lawsuit. It is possible for the action to be brought in jurisdiction A, but to apply the substantive law of jurisdiction B, if jurisdiction B meets certain criteria of connection with the lawsuit. Under ordinary circumstances, such rules permit the court to choose the law most justly suited to the case.

However, this Act provides access to the courts of a state not otherwise available to the litigant. The ordi­nary choice of forum rules are put aside to make that ac­cess possible. That privilege of access, otherwise not available, should not, further, impinge upon the privilege by forcing the chosen forum to consider unfamiliar, foreign legal principles. Excluding choice of law rules avoids, also, excessive complication through application of the choice of law "principle of Renvoi." Under the "Principle of Renvoi," a jurisdiction chooses its law based upon the choice-of-law rules of the other state. This is a reci­procal principle, in itself, which would generally reflect the choice of law back to the forum in which the pollution originates. This is because factors used in choice of law generally favor the law of that state. So why subject the choice-of-law issue to litigation? The flat rule in this Act avoids litigation of an unnecessary issue.

The access permitted in this Act accords no litigant greater substantive rights than accorded to any other liti­gant, however access to the courts of a jurisdiction are obtained. Further, this Act does not limit any existing rights. Section 6 states, "The right herein provided in this Act is in addition to and not in derogation of any other rights."

This Act merely aids those who are damaged by pollution in obtaining appropriate legal relief by permitting access to courts. Every litigant, also, must be able to establish a right to relief and to prove every element of a claim for relief. This Act only assures that those with a real claim for relief are not cut off from a remedy by arbitrary appli­cation of choice-of-forum rules.