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Precedents and Long Term Legacies (Section Five)

Transboundary International Law Precedents

The 1941 arbitration set a precedent in transboundary international law. Prior to the decision made by the Arbitral Tribunal on Trail, disputes over air pollution between two countries had never been settled through arbitration, and the polluter pays principle had never been applied in an international context. When the Tribunal dealt with the details of the Trail Smelter Arbitration, there was no existing international law that dealt with air pollution; therefore, the decision reached was modelled after U.S. state laws, with the Tribunal referring to a number of cases in the U.S. which involved air pollution between multiple states. During the Tribunal's decision-making, there was confusion between defining 'damage' versus 'damages' when it came time to decide on an outcome; the Tribunal took 'damage' to mean 'damages' as in the monetary value lost by smoke pollution instead of as direct damage to the land . Because of this, Canada's responsibility for the conduct of the smelter became making sure that the smelter did not cause any more smoke 'damage' to U.S. soil. The American inter-state pollution cases thus had an influence on the decision of how to resolve smoke pollution conflicts on an international level. The inter-state precedent caused a stir again in 2003 when the Colville Confederated Tribes launched a complaint against COMINCO for polluting Lake Roosevelt. Douglas Horswill, Senior Vice President for Teck Resources, stated that "in the U.S. legal process...Teck COMINCO would not be able to use the fact that it was operating with valid permits in its defence [because it is a Canadian company], whereas a U.S. company could"; Horswill's media statement reflects the tensions created by formulating an international law based on American inter-state practices.

When the International Law Commission (ILC) "adopted a series of Draft Articles on Prevention of Transboundary Harm from Hazardous Activities", a fundamental problem was in defining nations as states, which was the result of applying the existing U.S. model of inter-state environmental laws to an international conflict. The Draft Articles contained a collection of provisions that focused on six points:

• prevention of transboundary harm,
• cooperation to prevent significant harm and reduce risk,
• the exercise of regulatory control by states of activities on their territory through prior authorizations,
• environmental impact assessment,
• notification, and
• consultation

Since polluting nations were to be held responsible for harms caused to another nation's environment, this was not applicable in the arbitration because the players involved were sub-groups of each nation's population and the populus that was most affected were not the sovereign states but the sub-groups. Although Canada accepted responsibility for the actions of the smelting plant, conflict resolution put the onus on Canada to compensate for COMINCO's past pollution rather than forcing COMINCO to prevent future harm to U.S. soil. The legacy of this decision includes the eventual creation of regulatory regimes to prevent environmental degradation, which allow nations to put states in charge of taking positive steps to control pollution. The failure by states to meet these responsibilities means they are breaching international law.

Some scholars have expressed that due to the unique circumstances surrounding the Trail Smelter Arbitration, the case's role in transboundary international law does not set as huge of a precedent as is being suggested by other scholars. Scholars that do not see the case as setting a precedent argue that because the unique circumstances surrounding the Trail smelter have been articulated and discussed multiple times, the "abstract statements of principle" that arise are divorced from the context they are derived from; this distorts the decisions made in cases like the Trail Arbitration. For the arbitration, the decisions that appear to be the focus of literature on transboundary international law precedents are sub-articles 2 and 4 from Article 3 of the International Joint Commission's (IJC) recommendations.

Lake Roosevelt

COMINCO's smelter deposited byproducts (also known as slag) from its smelting plant into the Columbia River, which then flowed into Washington state's Lake Roosevelt. Environmental concerns were raised when these deposits were found to include mercury, lead and zinc. This discovery led the nearby indigenous group, the Colville Confederated Tribes, to take action against COMINCO and hold them responsible for degrading the water quality of the lake. The pollution raised health concerns for tribe members, who used the beaches and campsites along the river and ate fish from the river "for subsistence, cultural and spiritual reasons".The lawsuit, launched in 2004, was unique in that it demanded COMINCO comply with a U.S. Environmental Protection Agency (EPA) order to provide funding for pollution studies of the Trail operation. They claimed the smelter dumped large quantities of slag into the Columbia River which then flowed across the border and settled in Lake Roosevelt. In 2003, COMINCO had agreed to invest $13-billion for studies of the health and ecology of Lake Roosevelt, as well as fund the clean up required to rid the lake of metal contamination associated with the company's smelting practices; however, the Colville Confederated Tribes countered that COMINCO's offer was inadequate bceause it "did not meet the quality of studies and cleanup guarantees that would be required under EPA rules".

The lawsuit between COMINCO and the Colville Confederated Tribes sparked more tensions between Canada and the U.S. over transborder environmental laws. As a Canadian company, COMINCO felt that their operation was being unfairly targeted because the lawsuit was ordering them to follow an American governing body's orders to clean up Lake Roosevelt. COMINCO also objected to the implication in the lawsuit that it was the only company responsible for the pollution of Lake Roosevelt.

In 1994, COMINCO stopped depositing smelting byproducts into the Columbia River and in 2004 reportedly spent about $1-billion modernizing the Trail plant and reducing its emissions.

References

• Ellis, Jaye. "Has International Law Outgrown Trail Smelter?". Bratspies, Rebecca and Miller, Russell ed., Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (2010): 56 - 65.
• Geranios, Niklas. "Colvilles sue Teck Cominco over pollution". Associated Press Newswires (July 22, 2004).
• Kaijser, Arne. “The Trail from Trail: New Challenges for Historians of Technology”. Presidential Address for the Society for the History of Technology (2011): 131 – 142.
• Mickelson, Karin. "Notes and Comments: Rereading Trail Smelter". Canadian Yearbook of International Law 31 (1993): 219 - 234.
• Rubin, Alfred. "Pollution by Analogy: The Trail Smelter Arbitration [Abridged]". Bratspies, Rebecca and Miller, Russell ed., Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (2010): 46 - 55.
• Stueck, Wendy. “Teck Cominco asks U.S. court to dismiss lawsuit”. The Globe and Mail (August 27, 2004): B4.