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

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Trail Smelter Déjà Vu: Extraterritoriality, International Environmental Law and the Search for Solutions to Canadian-U.S. Transboundary Water Pollution Disputes Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 2005 Trail Smelter Déjà Vu: Extraterritoriality, International Environmental Law and the Search for Solutions to Canadian-U.S. Transboundary Water Pollution Disputes Austen L. Parrish Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Environmental Law Commons, and the Transnational Law Commons Recommended Citation Parrish, Austen L., "Trail Smelter Déjà Vu: Extraterritoriality, International Environmental Law and the Search for Solutions to Canadian-U.S. Transboundary Water Pollution Disputes" (2005). Articles by Maurer Faculty. 891. https://www.repository.law.indiana.edu/facpub/891 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. ARTICLES TRAIL SMELTER DtJA VU: EXTRATERRITORIALITY, INTERNATIONAL ENVIRONMENTAL LAW, AND THE SEARCH FOR SOLUTIONS TO CANADIAN-U.S. TRANSBOUNDARY WATER POLLUTION DISPUTES AUSTEN L. PARRISH IN TRODUCTION ............................................................................................... 364 I. THE PROBLEM OF TRANSBOUNDARY WATER POLLUTION .................. 369 A. The Trail Smelter: A Current Crisis in U.S.-Canada R elations...................................................................................... 369 1. The Trail Smelter's Pollution of Lake Roosevelt and the Upper Columbia River Basin ................................................ 370 2. Teck Cominco's Response and the EPA's and Colville Tribes' Search for Solutions .................................................. 376 B. The Continuing and IncreasingSignificance of U.S.-Canada TransboundaryPollution ............................................................. 380 II. THE LIMITATIONS OF DOMESTIC LAW ................................................ 385 A. The Demise of Territorialismand JudicialSelf-Restraint: The Application of U.S. Laws to Canadian Companies ..................... 387 1. Obtaining Personal Jurisdiction Over Canadian Companies Under the Effects Test ........................................ 387 2. The Extraterritorial Application of U.S. Environmental L aw s ......................................................................................39 3 3. Canadian Judicial Enforcement of U.S. Judgments ............... 399 B. The Practicaland ConceptualDrawbacks to Solving TransboundaryPollution Disputes with National A djudication ................................................................................ 402 1. The Violation of Canadian Sovereignty and the Problems of Regulation Without Representation .................................. 403 Associate Professor of Law, Southwestern University School of Law. J.D., Columbia University, 1997; B.A., University of Washington, 1994. Professor Parrish is the current Director of Southwestern's Summer Law Program in Vancouver, B.C., Canada, where he teaches International Environmental Law at the University of British Columbia. The author is grateful to Anahid Gharakhanian, Ondraus Jenkins, Tara I. Walters, and Dennis T. Yokoyama for their thoughtful comments on earlier drafts. The author is also grateful to Joost Blom, Paul S. Horwitz, and Robert E. Lutz for their advice and suggestions. Lastly, the author thanks Paul Chancellor for his research assistance. 363 BOSTON UNIVERSITY LA WREVIEW [Vol. 85:363 2. The Problem of Reciprocal Risk ........................................... 409 3. Canada's Likely Response .................................................... 411 III. MISSED OPPORTUNITIES: THE UNDERUSE OF INTERNATIONAL LEGAL M ECHANISM S ........................................................................... 414 A. The 1909 Boundary Waters Treaty .............................................. 415 B. The Trail Smelter Arbitration Revisited: A Model for A djudication ................................................................................ 420 C. Responding to Critics and the Advantages to International Arbitrationfor TransboundaryDispute Resolution .................... 423 C ON CLU SION ................................................................................................... 428 INTRODUCTION History repeats itself. Over seventy years ago, a privately owned smelting plant located in Trail, British Columbia - approximately seven miles from the international border - became the focus of a famous transboundary pollution dispute between the United States and Canada.' The resolution of the dispute, known as the Trail Smelter Arbitration, became a landmark decision in international environmental law.2 In that case, a specially appointed arbitral I Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (1938) [hereinafter Trail Smelter I] (requiring the Canadian company operating the Trail smelter to cease causing further damage to the State of Washington), further proceedings 3 R.I.A.A. 1938 (1941) [hereinafter Trail Smelter II] (holding Canada responsible for the Trail smelter pollution and requiring Canada to conform to its treaty obligations). See generally John E. Read, The Trail Smelter Dispute, 1 CAN. Y.B. INT'L L. 213 (1963) (describing the Trail Smelter arbitration). 2 DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 511 (2d ed. 2002); see also TUOMAS KUOKKANEN, INTERNATIONAL LAW AND THE ENVIRONMENT: VARIATIONS ON A THEME 89 (2002) (stating that "[t]he Trail Smelter case is one of the landmarks of the traditional period to which scholars constantly refer"); JAN SCHNEIDER, WORLD PUBLIC ORDER OF THE ENVIRONMENT: TOWARDS AN INTERNATIONAL ECOLOGICAL LAW AND ORGANIZATION 50 (1979) (describing the Trail Smelter arbitration as a "milestone" in the development of international environmental law); Linda A. Malone, The Chernobyl Accident: A Case Study in InternationalLaw Regulating State Responsibilityfor TransboundaryNuclear Pollution, 12 COLUM. J. ENVrL. L. 203, 208 (1987) (observing that "[a]ny analysis of [foreign] liability necessarily begins with the landmark Trail Smelter case"); Thomas W. Merrill, Golden Rules for Transboundary Pollution, 46 DUKE L.J. 931, 947 (1997) (remarking that "[by] far the most influential decision on transboundary pollution in international law is the Trail Smelter arbitration"); Karin Mickelson, Rereading Trail Smelter, 31 CAN. Y.B. INT'L L. 219, 219-20 (1993) (observing that the Trail Smelter Arbitration, although often "more an object of reverence than a subject of analysis" is "one of the best known and most frequently cited international decisions" that "is regarded by many scholars as the fountainhead of modem international environmental law"). But cf Shashank Upadhye, The International Watercourse: An Exploitable Resource for the Developing Nation Under InternationalLaw?, 8 CARDOZO J. INT'L & COMP. L. 61, 86 (2000) (describing the Trail Smelter arbitration as the "allegedly landmark international environmental decision" but finding that the decision "creates no unequivocal customary international law"). 2005] TRAIL SMELTER DEJA VU panel held Canada liable for property damage in the United States caused by the Trail smelter's release of sulfur dioxide from its tall smoke-stacks. 3 The Trail Smelter Arbitration remains the "only decision of an international court or tribunal that deals specifically, and on the merits, with transfrontier pollution."'4 But the subject of "the most famous international environmental law dispute" has not gone away.5 Recently, the Trail smelter - one of the largest lead and zinc smelters in the world6 - has once again become the center of a heated cross-border showdown between Canada and the United States. As one commentator colorfully describes it: "Not since the Pig War of 1859 between the United States and Great Britain has there been such an '7 international brouhaha in the Pacific Northwest." The latest Trail smelter dispute has been long in the making. The current row concerns tens of millions of tons of industrial waste and heavy metals that the Trail smelter dumped into the Columbia River from the 1900s through the mid-1990s. 8 The Columbia River flows from British Columbia through Washington State. Deposits along the river's banks are Trail's legacy of I Trail Smelter II, supra note 1, 3 R.I.A.A. at 1946-47 (finding that from the years 1939- 1940, between 360 and 416 tons of sulfur per day were oxidized to sulfur dioxide at the plant). 4 EDITH BROWN WEISS ET AL., INTERNATIONAL LAW AND POLICY 257 (1998); see also Merrill, supra note 2, at 947 ("[T]he Trail Smelter Arbitration has assumed immense importance in the development of the customary international law on transboundary pollution, primarily because it is the only adjudicative decision of an international tribunal that speaks directly to the substantive law of transboundary pollution."). HUNTER ET AL., supra note 2, at 511. 6 AMY CROOK, ENVTL. MINING COUNCIL OF B.C., BRIEFING PAPERS: TRAIL SMELTER (2003), http://www.miningwatch.org/emcbc/Publications/briefing-papers/trail.htm (last accessed Feb. 9, 2005) (explaining that Teck Cominco's Trail operation is "the world's largest fully-integrated zinc and lead smelting and refining complex with production capacities of approximately 300,000 tonnes/year of zinc and 120,000 tonnes/year
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