An International Environmental Law case study: The Trail Smelter Arbitration

By: Catherine Prunella | December 2014

Abstract

            The United States took Canada to court for violating their sovereignty as a nation and the resulting decision of the court established fundamental principles for international environmental law. During the early 20th century a Canadian smelter company was operating in Trail, British Columbia along the Columbia River which flows from Canada across the border to Washington State in the United States of American. Here a rural community of farmers existed who claimed damages from the waste emitted by the smelter. The Canadian company that smelted zinc and lead was emitting sulfur dioxide which caused injury to plant life, forest trees, soil, and crop yields in Washington State. The United States charged Canada for these injuries and the case was referred to the International Joint Commission, a bilateral tribunal that oversees issues regarding the two countries. The decision made by the Tribunal established the concept of Trans Boundary Harm and the principle of the “polluter pays” to ensure sovereignty. In this paper I attempt at recognizing the process that led up to the landmark decision and how the decision made by the court affected international environmental law.

Key words: Trail, Smelter, Sulfur Dioxide, Air Pollution, International Environmental Law

Introduction

One of the most cited and fundamental cases for international environmental law started as a local issue regarding two small towns and one smelting plant. Northport is a town in Stevens County in Washington, United States. Trail is a town in British Columbia, Canada approximately twenty miles north of Northport across the border. Both towns sit along the Columbia River which runs from British Columbia into Oregon. A smelting plant in Trail was quintessential to the economy and lifestyle of the citizens of Trail. It had power through its capital and political clout that allowed it to get away with polluting the nearby areas, imposing injury on the local farmers land. The waste emitted by the plant did not observe borders and as a result a full scale international dispute took place, the first and most famous in the mid-20th century regarding air pollution, and the second in the late 20th century regarding slag released into the Columbia River.

The Trail smelter dispute illustrates the ever present battle of big business vs. the working man and corporate power vs. grassroots organization. It pits environmental protection against economic profits. Perhaps most importantly it challenged legislators to figure out how to achieve sovereignty among two nations, one of which requested their right to pollute for the purpose of economic development, the other defending its right not to be harmed by a foreign nation. The two principles arising from the first Trail smelter case are the cornerstones of international environmental law, that the polluter pays and that and states have a duty to prevent trans-boundary harm. The events that led up to the decisions will be analyzed along with the decisions themselves.

Background

In the early 1900s and late 1800s in Trial, British Columbia, smoke did not correlate with environmental pollution and harm to human health. Smelter smoke indicated jobs and prosperity for the local region. This was the case in 1896 when a smelter was built in Trail and owned by the very powerful parent corporation, Canadian Pacific Railroad. In 1905 the smelter was incorporated as the Consolidated Mining and Smelting Company. The smelter was built about 11 miles north of the Canadian-American border (Scheffer, 1955). The heavily mineralized region of the northwestern corner of British Columbia was a prime spot for the smelting of lead and zinc ores. Smelting is the process of heating an ore (a grouping of minerals) and chemically extracting the metal in order to reprocess it into products like rods, sheets, wires, etc. (Brennan, 2005). This process emits pollutants in the form of smoke, particulate matter, and slag. Sulfur dioxide and particulate matter from the metals were the main constituents of the smelter smoke produced at Trail. This smoke was thought to be an unfortunate byproduct of an economic engine that kept the town of Trail a thriving area, and, as Julio Barboza put it, “the damages caused, even if economically significant, were small in proportion to the value of the smelters production” (Barboza, 2011). The local champion hockey team was called the “Smoke Eaters,” an example of the community pride the smelter provided for the town of Trail (Bratspies, 2006). John D. Wirth referred to the smell of smoke as “the smell of money and jobs” during the early 20th century in Trail (Wirth, 2000). The smelter was one of the largest metal processing plants in the world (Scheffer, 1955). It was respected despite the smoke it produced because of the development it entailed. People accepted the smoke as a positive sign of industrialization. The desire for a healthy local environment was Consolidated with the desire for economic progress. To highlight the importance of this industry in the town of Northport and the effects of the failure of its smelter must be analyzed.

Directly south of Trail along the Columbia River is the small town of Northport, Washington, about nineteen miles away from Trail by the river (Figure 1). In 1896 a smelter opened up in Northport run by LeRoi Mining and Smelting (Wirth, 2000). The fate of this “Breen Copper Smelter” sharply contrasted that of the Trail smelter.

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Figure 1. (Source: https://www.google.com/maps)

While the Consolidated was becoming the largest smelting company in the British Empire the Northport smelter closed in 1921. Its operations had been small but emitted approximately seventy tons of sulfur dioxide a day (Trail Smelter Arbitration, 1938). It was responsible for some damage to land and purchased smoke easements from land owners in the vicinity of the smelter. Stevens County had high hopes for the economic development it would face in light of the smelter factory. The most important industry had been the lumbering industry as the forests were the most valuable asset to the area (Trail Smelter Arbitration, 1938). The lumbering industry was directly tied with the Spokane and Northern Railway that would connect Northport industry to the rest of the country.

Agriculture was another industry operating in Northport. Alfalfa, timothy, clover, grain, barley, oats, wheat, and potatoes were the crops grown on the farms of Northport (Trail Smelter Arbitration, 1938). According to Dr. F.C Wyatt, the head of the Soils Department of the University of Alberta in the late 1930s, “Under good cultural operations, yields are good” but, as the Trail Smelter Arbitration point out, “a large portion of this area is not primarily suited to agriculture” (Trail Smelter Arbitration, 1938). The lumber industry, railroads, and agriculture gave Northport the hopes during the early 20th century of transforming from a barren unchartered wilderness into an economically thriving town. Instead the smelter factory failed and closed down, the lumbering industry faced temporary success before the trees were diminished, and the hopes of being a major fruit producing industry failed as the area went into an agricultural depression, followed by drought, followed by the Great Depression (Wirth, 2000). The population of Northport plummeted as the area faced a major economic decline resulting from the failures of industry. In 1920 the population was 906 and ten years later in 1930 the population was 391 (Trail Smelter Arbitration, 1938).

While Northport was struggling the smelter at Trail increased production and benefited the Canadian government through annual tax revenues amounting to approximately one million dollars (Dinwoodie, 1972). The Trail smelter had managed to perfect the process for refining low-grade zinc ores securing its position as the most successful smelter in British Columbia (Bratspies, 2006). The Trail smelter was “one of the best and largest equipped smelting plants on this continent” (Trail Smelter Arbitration, 1938). The town of Trail was booming as populations rose. As a result there was an animosity between Northport and Trail that originated in the contrasting and uneven economic development occurring on either side of the boundary line.

The first people to bring suit against the smelter at Trail were those living in the vicinity of the factory. Local Canadian farmers sued Consolidated Mining for damaging their crops. The Trail smelter had reacted to charges of pollution in the same fashion as the Breen Cooper smelter in Northport. Consolidated Mining bought lands within five miles of the factory and purchased smoke easements with the local citizens in order to prevent future litigation (Wirth, 2000). This, however, proved to be inadequate protection as the farmers who refused the land easements brought suit. As the smelter grew in production and revenues it became a larger target for litigation. Consolidated Mining and Smelting saw the complaints of the farmers as a consequence of the economic success of the smelter. Throughout the twenty year course of the trial Consolidated insisted that the land in the surrounding areas simply was not a prime spot for agriculture. The company insisted that the failure of the farmer’s crops was a result of either bad farming techniques or the natural environment. To prove this Consolidated used the land they owned to host a model farm in order to prove that successful farming could exist with the smoke (Wirth, 2000). Consolidated also argued that there may not even be a market for the farmer’s products if the smelter had not brought economic activity to the area.

While Consolidated considered the complaining citizens to be “smoke farmers” merely looking for a buck, the farmers insisted that they were trying to protect their right to economically advance (Wirth, 2000). They challenged the smelter to pay for its pollution rather than profiting off of it. Hence the community based farmers and big business was pitted against each other. The American farmers would later form a committee to protest the “invasion of our rights and homes by this rich foreign corporation” (Wirth, 2000). Consolidated had no obligation to pay for damages if the farmers could not absolutely prove that the smoke from the smelter was affecting their cropland. One case brought up by local Canadian farmers made it all the way up to the Canadian Supreme Court. Provincial law awarded sixty farmers $60,000 in damages. The decision, however, did not put any restrictions or regulations on how much the smelter could emit (Bratspies, 2006). This was merely a small loss for Consolidated Mining and Smelting, and business went on as usual, with an increase in production from 1924-1930.

In 1900 the smelter emitted 800 tons of sulfur monthly and in 1925 6,300 tons of sulfur was emitted each month. In 1926 9,000 tons were emitted each month and in 1930 300-350 tons a day were emitted. One ton of sulfur is the equivalent to two tons of sulfur dioxide (Trail Smelter Arbitration, 1938). In response to this increase in production and subsequent increase in smoke, the stacks on the plants were raised to over 409 feet in an effort to diffuse emissions in 1925 and 1927 (Scheffer, 1955). This reduced the smoke affecting the local area by passing it on to the neighbors, the United States. The smoke rose 400 feet following the Columbia River valley along the winds, diffusing as it traveled. At approximately 16 miles downstream the sulfur dioxide content greatly decreased (Scheffer, 1955). As smoke followed south along the Columbia River into Washington State this waste became an international issue. In 1931 in order to decrease the amount of sulfur emitted Consolidated introduced “sulfur recovery measures” and the amount of sulfur emitted decreased to 7,100 tons per month in 1931. The decreasing amount of sulfur emitted continued and in 1948 1,400 tons per month was emitted (Scheffer, 1955).

While the citizens of Trail largely accepted the land easements and payments for the damages inflicted by the smelter due to the economic benefits the smelter provided, American citizens were enraged by the damage to their cropland and took aggressive action. Increasing the height of the smoke stacks increased the distance that the smoke was able to travel. The smoke was able to reach 30 miles downstream from the plant across the town of Northport (Dinwoodie, 1972). The Americans were now dealing with smoke from what they thought of as a powerful, rich, and greedy operation that was all the worse for being foreign (Dinwoodie, 1972). These enraged farmers organized together in 1928, forming the Citizens Protective Association (CPA) with the purpose of fighting Consolidated Mining and Smelting together as a powerful, united force.

Consolidated made attempts at breaking up this association by offering money to individual farmers. However, under the provision of the CPA no settlements were made between Consolidated and the individual farmers (Trail Smelter Arbitration, 1938). The CPA grew in numbers and power and by 1927 their complaints were no longer being ignored. Consolidated could not buy land easements from the Americans. Due to the Washington State Alien Land Law, an old English “local action rule,” Consolidated was legally forbidden from having an interest in state lands (Bratspies, 2006). The law stated that British Columbia courts were prevents from seeing suits for damage to foreign lands. Under this doctrine the CPA could not directly sue Consolidated.  This prevented Consolidated from fulfilling its plan of buying local land and establishing its eminent domain, creating an industrial zone dominated by the company rather than the citizens (Bratspies, 2006). This law gave the citizens a fighting chance. The CPA was forced to go to local congressional government who petitioned the federal government for assistance (Dinwoodie, 1972).

In 1927 a United States Department of Agriculture (USDA) plant pathologist surveyed the land and found no evidence of damage due to the smoke, instead equating crop failure with various possible factors such as fire, drought, winter injury, and beetle damage (Wirth, 2000). The CPA did not accept this ruling, viewing the decision as politically fused and requested two more USDA scientists to investigate the area. This marked the United States government entry into the conflict. Two more representatives were sent and affidavits were collected along with evidence of injury and statements from farmers. In 1927 the state department proposed to Canada that the case be referred to the International Joint Commission (IJC) (Wirth, 2000). The pollution from the smelter at Trail was no longer a local issue. It had now been turned over to the world of international institutions.

Scientific Analysis

Discussions on the damaging effects of gases emitted from smelting plans on vegetation and forests were being discussed prior to the Trail case (Scheffer, 1955). In the scientific world there was knowledge that the constituents of the gases emitted from smelters could have a damaging effect on the local geography. One of the earliest publications was produced in 1871 a scientist named Stoeckhardt wrote about smoke damage to trees in Germany (National Environmental Research Center 1973). The claims the farmers brought up against the Trail smelter were not far-fetched; Injury from the gases on vegetation causes noticeable changes in plants. However, whether or not this damage was directly correlated with smelter smoke was not clear.

During the ore processing sulfide materials are combusted creating the oxide of sulfur, sulfur dioxide gas. Sulfur trioxide, another constituent of smelter gas, disassociates into sulfuric acid. Particulate matter containing toxic metals, arsenic, lead, and acid sulfates, are other damaging constituents of smelter smoke (Scheffer, 1955). Sulfur dioxide and sulfuric acid are the constituents that will be discussed due to its harmful effects on vegetation. One part per million, 0.0001 percent of sulfur dioxide will cause significant damage to plants. Before regulation, smoke emitted from smelters largely contained 1.5 percent sulfur dioxide (Scheffer, 1955). Regulatory measures to reduce the amount of sulfur dioxide emitted include scrubbers, flash smelter technologies, sulfur sequestration, and so on. Sulfur dioxide emissions from smelting peaked in the 1970s and have decreased since due to the widespread use of such regulatory measures (Smith, 2011).

The smelter at Trail was built in a gorge off of the Columbia River. The Columbia River is very narrow and deep, spanning 1,243 miles. The river begins in British Columbia and travels east from Trail until heading southwest ward, ending in Oregon. Due to the shape and depth of the river it often times acted as a flume guiding the gases emitted by the smelter (Scheffer, 1955). Generally the winds traveled northeast down the river. Injury from sulfur dioxide decreases with distances from the source. Although the amount of sulfur dioxide in the gas diffuses the farther it travels, it diffuses very slowly, allowing for the sulfur dioxide to cause damage to the surface after large time spans. Even if there were low concentrations of sulfur dioxide effecting the farmers land due to diffusion, as little as one part per million of sulfur dioxide can create significant damage. The nature of the Columbia River, wind direction, and rate of diffusion created the scenario for smelter smoke emitted in Trail to travel down to the neighboring Stevens County.

Sulfur dioxide creates injury to plants through short term, long term, subtle, and visible changes. These injuries include cell damage, chemical composition changes, decreasing rates of photosynthesis, and a reduced yield and growth. The effects sulfur dioxide have on vegetation depend on the temperature, humidity, soil conditions, time of day, and other influencing pollutants (National Environmental Research Center, 1973).  The sulfur dioxide forces the cells within the plants to lose their ability to retain water. As a result the leaves dry out and die. High exposure to sulfur dioxide collapses cells within plants causing necrosis. The rate of intake of carbon dioxide decreases with exposure to sulfur dioxide. High concentrations of sulfur can be found within the leaves, along with other chemical changes such as an increase in potassium and calcium, depending on the circumstances. Sulfite ions effects membrane integrity resulting in reduced growth and development (National Environmental Research Center, 1973). The chlorophyll is destroyed due to the reducing capacities of sulfur dioxide and sulfuric acid (Scheffer, 1955). As a result the leaves turn brown, yellowish, and chlorotic before they fall and die. For example, pine trees lose their needles when exposed to sulfur dioxide. The trees that are not killed take on a scrawny, thin appearance (Scheffer, 1955). White, bleached leaves are a result of necrosis.

Sulfur dioxide destroys the vitality of vegetation. The farmers observed this and concluded that the tons of smoke attacking their land were the cause. During the IJC hearings scientists from both countries acknowledged the discoloration and lesions on leaves across the area of smoke damage. Scientists, however, disagreed on the cause of this damage. The discoloration could be attributed to drought, insect damage, disease, or winter injury, and thus the Canadian scientists concluded that although there was visible injury there was no not necessarily a connected between this injury and the smelter (Bratspies, 2006). Canadian experts claimed that the smoke from the previously operating Breen Copper Smelter in Northport could be the cause of the damage.  In order to prove that the smoke was reducing yield and growth a link had to be made between the smoke and metabolism changes.

Upon analyzing research papers and evidence produced in the late 20th century the atmospheric sulfur dioxide emitted from the smelter clearly was the cause of injury to vegetation. The farmers saw the composition changes in their plants and concluded that the smoke was to blame. During the Trail smelter arbitration publications on this did exist but there were too few to create a substantial consensus in the scientific world on the harmful effects of sulfur dioxide. The first scientists who analyzed the Northport farms found no evidence of sulfur dioxide poisoning. The IJC hearings provided conflicted theories of the origin of damage on the plants. It wasn’t until the final proceedings in 1938-1941 that the court was confident in assuming injury from smelter smoke. This case and the resulting research conducted in both American and Canada provided extensive and valuable research on the topic. One such example is the National Research Council of Canada’s 1939 compilation of the scientific findings that came out of the Trail case, Effect of Sulphur Dioxide on Vegetation. The lack of absolute scientific proof allowed for skepticism regarding the farmer’s claims. The IJC and the Tribunal it established would be responsible for analyzing the research scientists conducted to establish whether or not the smelter at Trail was responsible for the death and reduced yield of the farmer’s crops in Stevens County.

The International Joint Commission Special Agreement

The IJC was founded in 1909 as a bilateral treaty between Canada and the United States. The purpose of the commission is to prevent boundary disputes, specifically concerning waters, in order to establish sovereignty among the two nations. The smelter dispute was referred to the IJC under Article V that states that disputes along the “common frontier…shall be referred from time to time to the International Joint Commission” (International Boundary Waters Treaty, 1909). 1926 marked the Balfour Declaration that made Canada independent of Great Britain. As a result this was the first case of its kind that Canada was facing alone without the aid of England. The IJC was therefore hearing statements from Canada who was embarking on an international case alone for the first time, and America, whose argument was characterized by local farmers with little credibility. The International Boundary Waters Treaty specifically points out that one of its purposes is to prevent pollution “on either side to the injury of health or property on the other” (International Boundary Waters Treaty, 1909). The IJC therefore was given the responsibility of seeing the case. The IJC, however, was not necessarily qualified based on its experience and capabilities. For example, the IJC was capable of investigating and making recommendations, but it was not capable of executing an enforceable decision. Article IX states that reports from the IJC should not be regarded as decisions or arbitral awards (International Boundary Waters Treaty, 1909).  Nevertheless the case was referred and the IJC. The IJC would focus on compensation rather than future control methods, much to the farmers dismay (Dinwoodie, 1972).

In 1935 the IJC held a convention and “rendered a report and recommendation” regarding the conflict between Canada and the United States based on the hearings the commission held (Special Agreement, 1935). The hearings showcased complaints from the farmers, testimonies from four groups of scientists, arguments delivered by lawyers representing Consolidated and the farmers, and counsel from both the Canadian and United States government. The hearings provided experts from both the United States and Canada who were highly politicized based on what country they represented. The knowledge these experts provided on the damage of smelter smoke was shaped by the interests of their country (Bratspies, 2006). Scientists from both the United States and Canada observed damaged crops but they disagreed on the extent and the cause of the damage. Consolidated argued that whether or not the damage was the result of smelting smoke the measures being adopted by the company to reclaim sulfuric acid would eliminate any risk of future damage. After reviewing the case the IJC made a report that recommended Canada pay the United States $350,000 for damages, a quarter of what the farmers requested. The IJC made no comment on whether the smelter should continue to operate or what measures the smelter must undertake to curb pollution. The United States rejected these recommendations. The IJC therefore established a “Tribunal” in which it referred the case to.

The Tribunal was to consist of three members, one Canadian, one American, and one Belgium, including two scientists to make decisions on the key questions of the case. The questions of the case were a) whether the plant had caused damage and how this damage should be paid for, b) whether or not the plant should refrain from causing damage and to what extent, c) what measures should be adopted by the plant to reduce emissions, and d) what compensation should be paid (Special Agreement 1935). The Tribunal would use international law practices, American law, and American courts to analyze the facts and evidence. Representatives would give statements, evidence and arguments would be presented, and investigators would be appointed on behalf of each government. The fate of the farmers and Consolidated Mining would be left to the Tribunal whose partial decision would be delivered three years later in 1938 and its final decision in 1941. The Tribunal would rule on sovereignty and established the principles that will engrave this case in international environmental law.

Tribunal Award: April 16, 1938

The promise made by Consolidated that the technological methods being enacted would reduce the harmful sulfur dioxide emissions proved to be false. In 1934 sulfur dioxide recording devices along the Columbia River recorded sulfur dioxide levels up to one-half part per million, the same as the previous year (Dinwoodie, 1972). In 1936 and 1937 Consolidated installed two reduction units for the absorption of sulfur from the zinc smelter and gases from the lead roaster and a new system of control of the emission during growing seasons (Trail Smelter Arbitration, 1938). The farmers who had rejected the IJC decision as an inadequate attempt at justice were becoming more and more fed up as the noxious smoke continued to damage their crops and the Great Depression of the 1930s led to unemployment and poverty in the area. In order to reach a decision in the decided upon year, 1938, the Tribunal studied the smelter reclamation process and whatever damage the smelter caused in the years 1932 and 1933.  Experts analyzed the mortality, deterioration, retardation of ring growth, sulfur content in needles, and reproduction of trees in the Northport area (Trail Smelter Arbitration, 1938).

The evidence presented by the experts and witnesses were not sufficient for the Tribunal to confidentially establish the cause of damage. The Tribunal concluded that there was damage due to fumigations.  However, the extent and the manner of the causing factor were still unclear. The experts and witnesses were said to be unconsciously bias and the result was contrary views and conclusions. Those witnesses and experts representing the United States associated the damage to the smelter fumigations. Those representing Canada attributed the damage to other causes, such as damaging logging techniques and fires. As a result of the unclear results the Tribunal put off deciding what measures the smelter should permanently take to reduce damage. In order to establish an appropriate regime for Consolidated to reduce injury the Tribunal appointed two technical consultants and a meteorologist to focus on how to improve the operation of the plant based on weather and seasonal conditions. The Tribunal established that the upper air currents and mixing were responsible for the delivery of the smoke into the United States rather than the trade winds. The meteorologist would use this information to help the technical consultant implement the appropriate technology. The Dominion of Canada would be responsible for necessary payments to these specialists.

Furthermore, for the time period before the second and final decision was to be made, in order to mitigate further damage from fumigations the Tribunal ordered that no more than 100 tons of sulfur could be emitted daily by the smelter. The language of the document is somewhat hesitant. The Tribunal establishes that there was damage to reproduction in trees and that some extent of this damage was due to fumigations, but it does not identify that extent. The Tribunal was hesitant to definitively blame the smelter. In this sense this decision is balanced, taking both sides into consideration and analyzing all evidence before placing blame. However, the decision sets up the precedent that continues in the final phase of the arbitration awards; the Trail smelter will be responsible for regulating its pollution. It will not be responsible for halting pollution all together. This will be further discussed in the analysis of the decision below.

The United States had requested $1,849,156.16 with interest of $205,855.01 for the damages inflicted on cleared land and improvements, uncleared land and improvements, livestock, property in the town of Northport, the cost of investigations, interest on the $350,000 recommended by the IJC that had not yet been paid, and business enterprises (Bratspies, 2006). In this decision the Tribunal allowed for the payment of the first two items, damages inflicted on cleared land and uncleared land and improvements but dismissed the other requests. The farmers would receive $78,000 for damage caused by the smelter from 1932-1937 in addition to the previously decided $350,000.

Tribunal Award: March 11, 1941

Due to unsatisfactory data the Tribunal extended its decision until there was an adequate testing of the injury reducing regime over three growing seasons. The investigations conducted during this time interval studied smoke control in terms of wind directions and velocity, atmospheric temperatures, lapse rates, turbulence, geostrophic winds, barometric pressures, sunlight and humidity, and atmospheric sulfur dioxide concentrations (Trail Smelter Arbitration, 1941). This extensive study led to the Tribunals confidence that the regulation regime it was proposing would keep the smoke under control and eliminate the risk of possible injury. The Tribunal claimed that the smelter had caused no damage since 1937 and would not need to pay the farmers any more compensation. The bulk of this final decision is a technical description of the regime control that Consolidated was undertaking and would continue to impose to eliminate the damage its smoke was inflicting on the farmers. The total estimated cost Consolidated would have to pay to comply with this regime amounted to $20 million. Consolidated mitigated this huge sum of money by the success of selling the products of the smoke abatement program (Bratspies, 2006). Finally, the United States would be paid $7,500 for the costs of investigation.

Decisions Analysis

            This case was truly a landmark case in term of international law. Never before had there been decision a by the World Court or any other international justice system regarding an instance so remote and localized (Bratspies, 2006). The Tribunal attempted at finding a balanced solution. The smelter was able to continue operations and the farmers were no longer harmed by the smoke and received appropriate compensation. Sovereignty was the general goal which is illustrated in the language of the decision. The final decision of the Tribunal held that the Dominion of Canada is responsible in international law for the actions of the smelter (Trail Smelter Arbitration, 1941).  The Tribunal declared that “no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence” (Trail Smelter Arbitration, 1941, emphasis mine). These are the famed words of the Trail smelter arbitration and sum up the relevance of this case. A state can pollute its own land as much as it wants as long as it abides by law. Once that pollution crosses an international boundary though, and is of serious consequence, the state has violated the sovereignty principle of international law.

The pollution must be of serious consequence, indicating that the court must identify whether or not the pollution in question is inhibiting an individual or group to live in a healthy and prosperous manner. Whether or not the smelter smoke was dangerous for the health of the individual farmers was never discussed in this case. The Tribunal focused on the extent of the economic loss due to the noxious smoke in order to identify whether or not it was of “serious consequence.” The Tribunal established that the injury to cleared and uncleared lands was serious enough to warrant compensation. It did not find that the damage on livestock and the property in the town of Northport was serious enough to be compensated for. What can be taken away from this is that proving damage was caused by the pollutant is not enough. It must be proved that the damage is serious. The definition a court gives to “serious” is arbitrary and depends on the circumstances and the court.

It should be stated that the decision of the court was not meant to impose legally binding obligations on both parties. The decisions reflect an aspiration, or a principle of the international justice system. There are two principles that are often discussed in light of this case. The first was established in the provision above, that a state has an obligation to prevent transboundary harm. The second is referred to as the polluter pays principle. The Tribunal used previous United States Supreme Court decisions to help decide what route to take in deciding this case. The Tribunal used the principle set up in United States Supreme Court in Story Parchment Company v. Paterson Parchment Paper Company (1931) that relief must be provided for the injured person and accountability to the wrongdoer. Furthermore in the absence of certainty it is just for Juries to act on reasonable inference as well as direct proof (Trail Smelter Arbitration, 1938). In terms of the Trail Smelter arbitration the relief that must be provided came in the form of monetary compensation. In order to establish justice for the farmers Consolidated was made to pay for the serious damage it had done to the farmers land. Hence the principle was established that the polluter pays. The Tribunal put an incredible emphasis on researching and finding a regime to place Consolidated on that would limit the damage it was causing to the farmers land. The Tribunal never considered shutting Consolidated. Shutting down the Trail smelter would supposedly have detrimental effects on Canada’s economy due to the enormous revenue the smelter provided. Forcing the smelter to shut down operations, even for the time period between decisions, was not the intent of the Tribunal. Rather its notion of justice was finding a way for the smelter to continue operations while remedying the wrong it had done to the farmers.

This remedy came in two forms, each of which put the financial burden on Consolidated and Canada, the polluters. The first remedy was direct monetary compensation to the farmers. The second remedy was changing the way operations took place at the smelter to reduce the amount of harmful chemicals emitted during processing. This regime was incredibly costly to the smelter, amounting to around $20 million. The Tribunal was effectively placing blame and costs on the smelter without shutting it down. For the purpose of what the Tribunal considered a fair and balanced approach to resolving this conflict it did not seek to end the pollution. Its goal was to diminish the injury the pollution was causing through regulatory methods. It can be argued that this was a shortcoming of the decision because it established a paradigm of allowing a company to pollute as long as it paid the price. It could also be argued as an appropriate and fair decision because it preserved economic interests while ending the problem that had been presented.               

Conclusion

            The farmers of Northport probably had no idea that they were making history. What started as a grassroots effort to rid the area of noxious smoke ended in a case cited directly or indirectly in countless environmental law cases. Those involved in the case were not trying to make history. The farmers were merely seeking compensation for what they saw as a violation of their rights. The wrongdoer, Consolidated Mining and Smelting Limited, were definitely not trying to make history. Consolidated was doing everything they could to squash the issue and keep it as low key and local as possible. Due to the geographic nature of the dispute these goals were not possible and history was effectively made as the dispute went into the hands of international law institutions. The results of this case are pivotal to international environmental law. This case put into words the unspoken notion of transboundary harm and a nation’s obligation to do everything they can to prevent it. Furthermore, the results of this dispute put definitive blame on the polluter and established that the punishment would be whatever payment is necessary to remedy the harm.

Work Cited

Barboza, Julio. The Environment, Risk and Liability in International Law. Leiden: Martinus  Nijhoff, 2011. Print.

Bratspies, Rebecca M. and Miller, Russell A., eds., Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration. Cambridge: Cambridge University Press, 2010.

Brennan, Scott R., and Jay Withgott. Environment: The Science behind the Stories. Fourth ed. San Francisco: Pearson/Benjamin Cummings, 2005. Print.

Dinwoodie, D. H. “The Politics of International Pollution Control: The Trail Smelter Case.” International Journal 27(2) (Spring 1972): 219-35. JSTOR. Web. 10 Oct. 2014.  International Boundary Waters Treaty, U.S.-Can. March 3, 1909, I.J.C

Scheffer, Theodore C. and Hedgcoc, George G. Injury to Northwestern Forest Trees by Sulfur Dioxide by Smelters. Bulletin No. 1117, U.S. Dept. of Agriculture Forest Service. (June 1955).

Smith, S. J., J. Van Aardenne, Z. Klimont, R. Andres, A. Volke, and S. Delgado Arias. “Anthropogenic Sulfur Dioxide Emissions: 1850–2005.” Atmospheric Chemistry and Physics Discussions 11.3 (2011): 1101-116.

Trail Smelter Arbitration, U.S.-Canada, Decision, March 11th, 1941, Reports of International Arbitral Awards, Vol. 3 1938-1982.

Trail Smelter Arbitration, U.S.-Canada, Special Agreement: Convention of Ottawa, Aug. 15, 1938, Ottawa, Reports of International Arbitral Awards, Vol. 3 1907-1910.

Trail Smelter Arbitration, U.S.-Canada, Trail Smelter Arbitral Tribunal, Aug. 16, 1938, Reports of International Arbitral Awards, Vol. 3 1911-1937.

U.S Environment Protection Agency, National Environmental Research Center. “Effects of Sulfur Oxides in the Atmosphere on Vegetation; Revised Chapter 5 for Air Quality Criteria for Sulfur Oxides.” Ecological Research Series Program Element 1A1001 Task 16.ROAP No. 26AAA (1973).

Wirth, John D. Smelter Smoke in North America: The Politics of Transborder Pollution. Lawrence: University of Kansas, 2000. Print.

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