Using Antitrust Law as a Model for Private Rights of Action in International Environmental Agreements
By Richard Flannery, Staff Contributor
International environmental agreements should contain private rights of action similar to those of US antitrust law. As science focuses its efforts in the areas of climate change and reducing air and water pollution, “atmospheric, terrestrial, marine, and societal data become more visible, and more exact standards for reduction can be implemented.” Many of the international environmental agreements focus on government-to-government accountability, but they don’t allow relief for private parties. The United States has enacted the Resource Conservation and Recovery Act (RCRA), which allows for private rights of action. This could serve as a model for international environmental agreements.
Opening private rights of action could improve enforcement of environmental agreements. This system is in place in the US for antitrust cases, and the private damages often provide more deterrence than government action. The model of private enforcement combined with treble damages in antitrust law has the benefit of deterring anticompetitive conduct. Private enforcement could offer a novel way to deter unsafe and unhealthy environmental practices.
- II. United States Resource Conservation and Recovery Act as a Blueprint for Other Nations’ Private Enforcement Action
The private right of action under the RCRA could serve as a blueprint for other nations’ private enforcement, or could be expanded to allow international suits into US courts. As it currently stands, the RCRA allows for any person to bring a civil case in federal court for a violation of an environmental permit, standard, regulation, condition, requirement, prohibition, or order. The RCRA allows for suits by a private citizen against the US “and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution.” The suits can be brought in the district court where the harm has occurred, or is likely to occur, or the suits can be brought in the District of Columbia District Court. The RCRA also states that cases can be brought in district court without meeting the citizenship or amount in controversy requirements which suggests that it is a federal question case.
The RCRA can serve as a model for other nations to implement private rights of action in each nation’s own environmental law and could possibly be attached to international agreements. To be in accordance with RCRA, there would need to be provisions in the international agreements that could be capable of being violated. To illustrate, consider an agreement that states a nation needs to reduce its output of sulphur dioxide (SO2) levels in city X by 2% per year for five years from the base level measured in 2015. The nation fails to do this and increases the level of SO2 measured in year 2021. These levels are proven to reduce crop yield for a farmer in city X. The farmer could sue for the damage caused by the increased level of SO2 minus the level of damages that would have occurred if the nation did not break the law. The farmer could sue in the nation’s local court, or perhaps the International Court of Justice (ICJ) if it was so added to the international agreement. Not only would monetary damages be a remedy, but an injunction to prevent further pollution, or make the pollution level compliant with the law, could also be handed down by the court.
III. Possible Legislation Amendments to Current Environmental Agreements
In order to bring these changes into existing agreements there needs to be amendments. The possible legislation concerns two main issues, lack of justiciable standard and private rights of action including remedies. Proposed legislation dealing with exact standards is highly dependent on the individual agreement and what its goals are. Possible legislation reads:
For the preservation of the ozone layer, parties shall agree to reduce their output of sulphur dioxide by two percent per year for a period of ten years. The base level of emissions shall be measured by the year after this proposed legislation (2017) and requires a yearly reporting to a council of the United Nations Environmental Programme (UNEP) with members selected by parties to the agreement. Every three years, each party will allow investigators from the UNEP council to investigate their sulphur dioxide levels to ensure accurate reporting and compliance with the treaty. If found to be in violation of the treaty, members will have to pay a fine to the council in addition to paying for the costs to comply with the treaty. The initial base level of pollution of sulphur dioxide for all parties will be established by the council and the council will provide the yearly amounts of allowed emissions to each party to the agreement.
In addition to changes to make more specific justiciable standards, language of the private rights of action need implementation. This possible language is as follows:
If a nation or private actor is found to be in violation of the terms of this treaty, such actor is open to suit by an injured party, or on behalf of an injured party for damages caused by the violation. Suit may be brought in the courts of any nation which is a party to this treaty, or any nation damaged by a violation of the treaty. Private parties may bring suit only if the party has been directly affected by the conduct in violation of the treaty. Direct conduct is defined as a quantifiable damage that has resulted solely of the violation of the treaty. Damage can be determined by loss of: land value, crops, livestock, timber, water usage, or the like, and costs for medical care that is a direct result of the violation of the treaty. The plaintiff may sue for three times the amount of damages described above. Attorney’s fees will also be granted if the private plaintiff is successful. Judicial relief may be granted in the form of damages and injunction to refrain from the conduct in violation of this treaty.
The United States is a party to many multilateral agreements that involve protection of the environment. The language of many of these agreements is vague and calls only for awareness of an issue, without calling for a specific solution to the environmental damage. One solution is to open up the enforcement of these treaties to private plaintiffs who were directly affected by the pollution in violation of the treaty. This type of private enforcement is already allowed in the United States under the RCRA statute, which could serve as a model for other nations to help enforce international environmental agreements. This enforcement scheme is well accepted in US antitrust law and could be used to improve enforcement in environmental law as well.
 Karen Kline & Kal Raustaila, International Environmental Agreements and Remote Sensing Technologies, Socioeconomic Data and Applications Center, Center for International Earth Science Information Network (Sept. 2009), http://sedac.ciesin.columbia.edu/rs-treaties/rs-treaties_bckgnd.pdf (explaining one technology available and it can be used in environmental agreements.)
 See Resource Conservation and Recovery Act, 42 U.S.C. § 6972 (2015).
 Robert H. Lande & Joshua P. Davis, Benefits From Private Antitrust Enforcement: An Analysis Of Forty Cases, 40 San. Fran. L. Rev., 879, 895 (2008) (stating that the though it is hard to quantify the benefits from private enforcement, that private enforcement provides more deterrence than government enforcement).
 See 42 U.S.C. § 6972(a)(1) (2015).
 42 U.S.C. § 6972(a)(1)(B) (2015).
 See id.
 42 U.S.C. § 6972(a)(2) (2015).
 See generally Maine People’s Alliance v. Holtrachem Mfg. Co., LLC, 211 F.Supp. 2d 237 (illustrating the use of the RCRA is U.S. Courts). Holtrachem owned a chemical plant, the operation of which resulted in mercury runoff into the Penobscot River. Id. at 241-43. The court found that Holtrachem was liable for environmental damage down river of the plant and was forced to pay for an impact study and subsequent cleanup of the river. Id. at 251-52. The court also determined that Maine People’s Alliance had standing to sue on behalf of their members because their injuries resulted directly from the mercury run-off from the plant. Id. at 252-54.