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

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 environmental harm. In 2003, the EPA began investigating the Washington border area for designation as a 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.