Transboundary Pollution, Unilateralism and the Limits of Extraterritorial Jurisdiction: The Second Trail Smelter Dispute
TRANSBOUNDARY HARM IN INTERNATIONAL LAW: LESSONS FROM THE TRAIL SMELTER ARBITRATION, Rebecca M. Bratspies & Russell A. Miller, eds., Cambridge University Press, 2006
20 Pages Posted: 26 Aug 2015
Date Written: 2006
Abstract
On December 11, 2003, the United States Environmental Protection Agency (EPA) issued an administrative order under the U.S. Federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in respect of contamination of the Upper Columbia River in Washington State arising from the operation of the Trail Smelter, located in British Columbia. This order marks an unprecedented extension of the EPA’s jurisdiction to seek remediation orders against foreign companies operating outside of the U.S., prompting a diplomatic response from the Canadian government. Using the facts of the current Trail Smelter dispute as a backdrop and drawing on linkages between the current and historic Trail Smelter disputes, this paper examines both the domestic law and international law respecting the imposition of prescriptive jurisdiction over environmental hazards arising in one state, but having effects in another. Finally, consideration is given to the extent to which the EPA order complies with these jurisdictional requirements and, on a broader level, whether the EPA’s turn to unilateralism is a positive development in addressing transboundary environmental harm.
Keywords: extraterritorial jurisdiction, transboundary pollution, CERCLA, international environmental law
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