THE TRAIL SMELTER: IS WHAT'S PAST PROLOGUE? EPA BLAZES A NEW TRAIL FOR CERCLA

I. INTRODUCTION It is by now axiomatic to note that pollution respects no borders. Pollution doesn't recognize nation states, and it cares not about territorial sovereignty. Pollution is ubiquitous. Discharges to a river may be transported hundreds, even thousands, of miles before being deposit...

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Published in:New York University Environmental Law Journal 2006-01, Vol.14 (2), p.233-736
Main Author: Michael J. Robinson-Dorn
Format: Article
Language:English
Subjects:
arbitration
civil procedure
concomitant
environmental law
foundations
identifiable
increasingly
international
international law
introduction
responsibility
surprisingly
transboundary
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Summary:I. INTRODUCTION It is by now axiomatic to note that pollution respects no borders. Pollution doesn't recognize nation states, and it cares not about territorial sovereignty. Pollution is ubiquitous. Discharges to a river may be transported hundreds, even thousands, of miles before being deposited downstream. 2 Emissions from smokestacks may follow prevailing winds, or even enter the atmospheric cycle, before being deposited far from their source. 3 Sometimes the sources of the pollution and the pathways taken are readily identifiable; other times they are surprisingly difficult to discern. Scientific advances continue to improve our ability to fingerprint sources and better understand complex pathways, while global commerce expands at an ever faster rate and economies like those of the United States and Canada continue to become more integrated. Combined with the public's concern over shared resources and the environment, these changes make the issue of transboundary pollution - and the concomitant tensions relating to assigning responsibility for it - increasingly acute and apparent. In the 1920s, smoke and emissions from a smelter in Trail, British Columbia, traveling on the prevailing winds into the Columbia Valley, caused damage 4 in Washington State. The resulting international arbitration between the United States and Canada became one of the foundations of international law: the Trail Smelter Arbitration. 5 More than a half century later, that same smelter in Trail 6 has again ascended to center stage in a second major transboundary pollution dispute. Remarkably, for decades 7 after the Arbitration, the ...
ISSN:1061-8651