Legal issues related to the use of atmospheric air

General Provisions

Legal problems related to the use of atmospheric air arise from the absence of formal recognition of air as a property object and the necessity of regulating its usage as a vital natural resource. At present time state performs the role of a guarantor and protector of citizens' rights to clean air, establishing rules for its protection, controlling [emissions](/enc/1917

"Definition of the term 'Emissions' in the legal encyclopedia) 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 rights protection.

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

Use of atmospheric air for industrial and transportation purposes is carried out intensively, creating significant load on the natural resource.

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

One of the solutions to legal problems may be recognition of emissions of polluting substances into the atmosphere as a type of environmental usage right.

Such an approach will allow formalizing relations in accordance with the use of the atmosphere, maintain state accounting, establish a fee for the use of the atmosphere and apply economic regulation mechanisms similar to those applied for other natural environment objects.

Thus, legal issues regarding the use of atmospheric air involve the necessity of combining ecological, civil, and economic regulation to protect the environment, ensure rational use of natural resources, and guarantee citizens' rights to clean air.

As noted by S.A. Bogolyubov, ownership of atmospheric air has not yet been declared, but based on the fact that the state sets quotas for its pollution, signs international agreements regarding its obligations on control and air pollution (Kyoto protocol), recovers

fines imposed on physical and legal entities for exceeding atmospheric emissions, establishes rules of conduct in the field of atmospheric air protection, the state becomes a «seller of air», guarantor and defender of citizens' rights to clean air¹.

Then, according to Y.I. Shuplecova, property rights, like other real rights, remain an institution primarily of civil law, and in accordance with its norms, the establishment of property rights 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 is the possibility of protecting the property rights on atmospheric air through property law methods. I would like to imagine a vindicatory claim (a claim for restitution of property from another's possession) caused by a change in wind direction.

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

According to M.M. Brinchuk, although in practice specific restrictions on air withdrawal for technological purposes are not established, atmospheric air, as a natural resource, is utilized very intensively. For example, a modern jet liner during an 8-hour flight from Europe to America consumes as much oxygen as 35 thousand hectares of forest can produce in the same time ³.

Then R.G. Minniakhmetov notes that the theoretical debate present 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 rights. In this case, it would be possible to establish relationships concerning the use of the atmosphere similarly to other objects of the natural environment, maintain accounting for atmospheric usage, and implement an accessible and understandable form of payment for atmospheric usage, etc. In other words, recognition of emissions into the atmosphere of pollutants

substances (including automotive transport) as a form of resource utilization will allow today (in the context of implementing market relations in this area) to engage the entire economic mechanism, provided for by the law on environmental protection and in the sphere of protecting atmospheric air from vehicle emissions⁴.

1. Bogolyubov S.A. The Relationship Between Public-Law and Private-Law Means in Ensuring Citizens' Environmental Rights // Journal of Russian Law. 2005. No. 7. ↩
2. Environmental Law: Textbook / Ed. by S.A. Bogolyubov. Moscow, 2010. Pp. 86. ↩
3. Brinchuk M.M. Environmental Law: Textbook. Moscow, 2010. Pp. 434–435. ↩
4. Minniakhmetov R.G. Legal Protection of Atmospheric Air from

Author's abstract of dissertation ... candidate of legal sciences. Ufa. 1999. p. 7. ↩