The case for Common Law reform against air pollution
Updated: 2013-04-24 05:22
By Andrew Mak(HK Edition)
Come April we had drizzling rain and grey sky. It is now the season of cloudy sky and low visibility on the sea. The roads are no different as air pollution in Hong Kong is considered a serious problem. Air quality monitoring data has continued to deteriorate. We have now come to a stage where there is a case for civil law remedies reform for Hong Kong on air pollution.
Hong Kong air pollution has been attributed to coal-fire power stations and heavy traffic, and purportedly tens of thousands of factories in the Pearl River Delta. But the concern is not to argue who is to be blamed the most. The concern ought to be whether there are effective remedies to deal with the sources and the effects of pollution. One such concern is the effectiveness of dealing with air pollution from cars. For those who have to travel on the roads daily I believe they will feel the beneficial impact of the use of LPG (liquefied petroleum gas) in taxis and public light buses. But progress on reduction of pollution in goods vehicles and private cars seems to be moving too slowly.
When one wishes to register a vehicle purchased from a local distributor or imported into Hong Kong, one must apply to the Hong Kong Licensing Office of the Transport Department. The process is relatively simple because there are established distributors licensed under the Motor Vehicles (First Registration Tax) Ordinance. The tax varies from 35 percent to over 100 percent depending on the size and value of the car. However, as the objective was not to control air pollution generated, the existing tax has the effect of creating an extraordinarily high price for owning a car and perhaps giving car owners a greater sense of superiority. The tax has no bearing on the control of air pollution. The obvious example would appear to be a 7-seater SUV which normally only carries one or two passengers. The passenger-carrying efficiency is low but the pollution generated is worse.
Common Law legal actions can easily handle simple cases in which one property owner causes obvious harm to a neighbor. But what about the more complex case of air pollution generated by low-efficiency vehicles? The problem seems to be due to the lack of proper fuel oil for vehicles.
There are theorists who advocate that natural resources tend to be managed more efficiently and sustainably under property institutions than political or regulatory alternatives. For example, privately-owned forests give higher rates of forest growth than those managed by the government or left in the public domain. However, environmental problems extend well beyond questions of natural resource management and Hong Kong's problems are definitely more pollution related.
Air pollution problems in Hong Kong may arise out of conflicts between competing property uses. One may imagine that the Common Law cause of action of nuisance would apply. Air pollution activities undertaken by private cars on public roads cause the generation of waste streams of polluted air or other by-products that, when uncontrolled, infringe upon the use and enjoyment of the public on their respective lands.
But no one would imagine a member of the public take a private vehicle driver or owner to court for air pollution. The quantification of air pollution by a single vehicle on the road can be tremendously complex. The quantification of the extent of loss and damage is mathematically virtually impossible without a proper survey. Despite receiving a large amount of revenue from first registration tax, the government has undertaken no published research on the extent of air pollution by a particular kind of vehicle using a particular kind of fuel.
It is not suggested that our government has no tax policy to limit air pollution. It is, however, difficult to imagine why the government through its environmental control authorities has for years been focusing upon a wide range of pollution sources without considering what resources from the taxation system may be better and directly used to perform research to tackle massive air-pollution problems. The government is to be praised for encouraging the use of fuel-saving vehicles and electric motor cars through tax subsidies. But little seems to be done by way of research and development to improve on the expensive and heavy batteries used by electric cars.
It has to be borne in mind that car manufacturers will have little if any interest to promote better research on this front because research and development expenses are high, a redesign of the manufacturing process will be prohibitively expensive, and no incentive system can be expected to be effective as long as car producers are effectively limited in number, and oligopolies are difficult to detect and control.
It may be that, if properly done, a tribunal type of institution would have been effective to quantify the loss to the public, and the consumer council may have been put to better tools for enforcement of Common Law causes of action such as nuisance against air pollution by car owners, distributors or even manufacturers. However, resources for setting up such institutions will never be easy. It may be that both those responsible for collecting revenue from car registration and those responsible for dispensing the public revenue should be held accountable to work together with the air pollution authorities and the industrial development organizations such as the Hong Kong Productivity Council. They could then work out ways and means to reduce the otherwise numerous administrative problems in dealing with the worsening air-pollution problems due to private and other vehicles.
The author is a barrister and chairman of the Hong Kong Bar's Special Committee on Planning and Policy.
(HK Edition 04/24/2013 page1)