Legal issues related to the use of atmospheric air

General Provisions

Legal issues related to the use of atmospheric air are associated with the lack of formal recognition of air as an object of ownership and the necessity of regulating its use as a vital natural resource. At present, the state performs the role of guarantor and defender of citizens' rights to clean air, establishing rules for its protection, monitoring emissions of pollutants, imposing fines for their exceedance, and ensuring compliance with international obligations in the field of environmental protection.

However, atmospheric air in its natural state does not possess characteristics that would allow the application of traditional property institutions, which complicates property-related legal protection.

Exceptions are cases where air is placed into special containers for scientific or technological purposes, but in this case it ceases to be a natural resource and becomes an object of civil law.

The use of atmospheric air for industrial and transportation purposes is intensive, creating a significant load on the natural resource.

At the same time, there is a need to establish clear rules for the use of the atmosphere, monitoring emissions and accounting for pollution in order to ensure environmental protection and public health.

One of the solutions to legal problems may be the recognition of emissions of pollutants into the atmosphere as a form of natural resource usage rights.

This approach would allow formalizing relationships regarding the use of the atmosphere, maintaining state accounts, setting fees for atmospheric usage, and applying economic regulation mechanisms similar to those in place for other natural environment objects.

Thus, legal issues related to the use of atmospheric air involve the necessity of combining ecological, civil, and economic regulation to protect the environment, rationally use the natural resource, and ensure citizens' rights to clean air.

As S.A. Bogolyubov notes, ownership rights have not yet been declared over atmospheric air. However, given that the state sets quotas for its pollution, signs international agreements on its obligations regarding control and air pollution (Kyoto Protocol), imposes fines on individuals and legal entities for exceeding emissions into the atmosphere, and establishes rules of conduct in the area of atmospheric air protection, the state becomes a "seller of air," a guarantor and defender of citizens' rights to clean air¹.

According to Yu.I. Shuplecova, ownership rights, like other real rights, remain an institution primarily of civil law, and according to its norms, the establishment of ownership is possible only on objects having individual or generic characteristics that allow these objects (things, property) to be distinguished from a mass of similar objects.

The question of endowing atmospheric air with such characteristics is perhaps a rather distant scientific prospect, just as the possibility of protecting the property right to atmospheric air through tangible legal means. I would like to imagine a replevin action (claim for recovery of property from another's possession) caused by a change in wind direction.

At the same time, we should note that atmospheric air placed into special containers for scientific or other purposes can certainly be an object of property rights. However, of course, in this case, the air loses its status as a natural resource².

According to M.M. Brinchuk, although in practice there are no special restrictions on the extraction of air for technological purposes, atmospheric air, as a natural resource, is being used very intensively. For example, a modern jet liner flying from Europe to America in 8 hours consumes as much oxygen as 35,000 hectares of forest can produce during the same period³.

While R.G. Minniakhmetov notes that the theoretical debate in environmental law literature regarding the mechanism for protecting atmospheric air should be resolved legislatively in favor of recognizing emissions of pollutants into the atmosphere as a form of natural resource usage. Then, it would be possible to establish relations regarding the use of the atmosphere similarly to other objects of the natural environment, keep track of atmospheric usage, implement an accessible and understandable form of payment for atmospheric usage, etc. In other words, recognizing emissions of pollutants (including those from motor vehicles) into the atmosphere as a type of natural resource usage would allow the integration today (in the context of introducing market relations into this area) of the entire economic mechanism provided by the law on environmental protection into the sphere of protecting atmospheric air from transportation pollution⁴.