Trail Smelter Deja Vu: Extraterritoriality, International Environmental Law, and the Search for Solutions to Canadian-U.S. Transboundary Water Pollution Disputes

1 Pages Posted: 13 Sep 2004

See all articles by Austen Parrish

Austen Parrish

University of California, Irvine School of Law

Date Written: September 3, 2004

Abstract

In the 1930s, a privately owned smelting plant in Trail, Canada was the focus of the most famous case in international environmental law: the Trail Smelter Arbitration. But the subject of that landmark case has not gone away. Over the last seventy years, the Trail smelter dumped millions of tons of mercury, arsenic, and toxic waste into the Columbia River. The dumping's effects have been felt in neighboring Washington State, where the toxic discharges have caused significant environmental harm. In 2003, the EPA began investigating the Washington border area as a possible Superfund (CERCLA) site, and controversially demanded that the Trail smelter, which operates solely in Canada, submit to EPA jurisdiction and pay for cleanup costs. In July 2004, a Native American tribe filed a citizen's suit: the first time ever Americans have sued a Canadian company under the U.S. Superfund laws.

This article explores the United States's unprecedented attempt to apply its Superfund laws extraterritorially and to use domestic courts to resolve U.S.-Canadian transboundary water pollution disputes. In recent years, traditional barriers to relief in domestic courts have vanished. But using U.S. courts to solve international disputes is problematic for a variety of reasons. If transboundary disputes can not be solved diplomatically, the U.S. and Canada would be wise to resolve their transboundary pollution problems through international arbitration. This article analyzes the limitation of domestic law, and argues that the 1909 Boundary Waters Treaty and the landmark Trail Smelter Arbitration provides an appropriate framework to do so successfully.

Keywords: Trail Smelter, Transboundary, Water Pollution, Cross-border, Canada, Boundary Waters Treaty, Columbia River, Columbia, Colville, Lake Roosevelt, Arc Ecology, CERCLA, Superfund, International Environmental, International Arbitration, Extraterritorial, Extraterritoriality

JEL Classification: K29, K32, K33, Q28, Q38

Suggested Citation

Parrish, Austen L., Trail Smelter Deja Vu: Extraterritoriality, International Environmental Law, and the Search for Solutions to Canadian-U.S. Transboundary Water Pollution Disputes (September 3, 2004). Available at SSRN: https://ssrn.com/abstract=588448 or http://dx.doi.org/10.2139/ssrn.588448

Austen L. Parrish (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

HOME PAGE: http://www.law.uci.edu

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
537
Abstract Views
3,285
Rank
95,275
PlumX Metrics