Madison Gaffney (Madison’s full Note was published in the Vermont Journal of Environmental Law, Volume 24 and can be found here!)

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Air pollutants know no borders. They can traverse any geopolitical or internationally recognized boundary without consequence. The physical environment, atmosphere, human health, and relationships between nations face detrimental ramifications. International customary law is the vessel for assigning the responsibility of damage one country causes to the other regarding transboundary pollution. For example, black carbon (in the form of smoke from wildfires) is crossing between the U.S. and Canada’s border, causing environmental damage in the other’s jurisdiction. Wildfires may not be a new emission source, but recently they are a rising concern because they are starting at an “unprecedented” rate.[1] Hundreds of thousands of acres of land have burned in both the United States and Canada, costing both countries billions of dollars annually in damages.[2]  Wildfires are damaging the physical land, air quality, and human health. Additionally, latent environmental damage occurs when wildfires release black carbon into the atmosphere, which can travel at high speeds for long distances into another country.

The United States and Canada have historically been able to amicably create solutions to dividing the responsibility of air and water resources and the responsibility of damage caused to those resources.[3] For example, U.S. and Canadian citizens advocated for their governments to address acid rain.[4] Both nations entered into the U.S. and Canada Air Quality Agreement (AQA) to address the issue of transboundary acid rain pollution. Pollutants are released at one location and travel long distances, affecting air quality many miles away from the original source.[5] The President of the Canadian Association of Fire Chiefs (CAFC) stated that back in July, Canada surpassed “what we would have the whole wildfire season, so it’s quite daunting right now.”[6] On the other side of the border, the United States is dealing with the same problem. The Canadian Government investigated the impacts of climate change-driven wildfires, which revealed that people across the country are “breathing in more harmful smoke than before” and significantly increasing the number of days people are exposed to wildfire smoke.[7] The dangerous black carbon from these fires can travel and affect people more than 3,000 miles away.[8] Yet, the real issue is more profound than just wildfires. The AQA must be a vessel to extinguish the cause of wildfires—poor land use planning and forest management.

This note explains why poor land use planning and forest management cause significant transboundary wildfire pollution. In part II, I will establish background on transboundary pollution’s definition, history, and impact on geopolitics and the environment. Then, I will distinguish between different forest types concerning their deposition and climate. Next, this note will explain the extensive issues with current land-use practices and forest mismanagement in the United States and Canada. Lastly, I will detail the natural and anthropogenic causes of wildfires and their significant contribution to air pollution. In part III, I will analyze the United States and Canada Air Quality Agreement as a mechanism for addressing transboundary pollution. Then, I will go into the Agreements procedures, using acid rain as an example. Next, I will mirror acid rain’s journey through the Agreement with a theoretical investigation into wildfires as a transboundary pollutant. Finally, within this examination, I will suggest policies, practices, regulated and unregulated activities that the IJC could implement to solve transboundary wildfire pollution.

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[1] See generally Jonathon Lash & Fred Wellington, Competitive advantage on a warming planet, M.I.T. Course Res. 94-102. (2020) (describing wildfire’s growing threat to the physical environment).

[2] See Jonathon Lash & Fred Wellington, Competitive advantage on a warming planet, M.I.T. Course Res. 94-102. (2020).

[3] See Jonathon Lash & Fred Wellington, Competitive advantage on a warming planet, M.I.T. Course Res. 94-102. (2020).

[4] See Michael I. Jeffrey, Transboundary Pollution and Cross-Border Remedies, 18 CAN.-U.S. L. J. 170 (1992).

[5] U.S. EPA, U.S.-Canada Air Quality Agreement, https://www.epa.gov/airmarkets/us-canada-air-quality-agreement (last visited Mar. 17, 2022).

[6] Saba Aziz, A look at Canada’s Wildfires in Numbers and Graphics Over the Decades, Glob. News (July 21, 2021), https://globalnews.ca/news/8045796/canada-wildfires-yearly-trends/.

[7] Alison Saldanha et al., Dangerous Air: As California Burns, America Breathes Toxic Smoke, Inside Climate News, Sept. 28, 2021, at 16.

[8] Alison Saldanha et. al., Dangerous Air: As California Burns, America Breathes Toxic Smoke, Inside Climate News, Sept. 28, 2021, at 18.