The Trail Smelter, is What's Past Prologue? Epa Blazes a New Trail for Cercla

Abstract:     
Locate one of the world's largest metal smelters 10 miles north of the U.S.-Canada border and allow it to dump millions of tons of hazardous by-products, including heavy metals and mercury, into the Columbia River, where they are flushed downstream into the United States. Posit that downstream is a popular National Recreation Area where over a million visitors a year come to recreate on the shores and in the waters of the Columbia River, most of whom have no idea that the beckoning black sand beaches are really contaminated slag discharged from the upstream smelter, and that these shores and the river bottom comprise one of the nation's most contaminated hazardous waste sites. The impacted areas are also the historical homelands of several Indian Tribes who today use the areas for hunting, fishing, recreation and spiritual renewal. For good measure, throw in the fact that the very smelter in question was, in the 1930's, at the center of one of the most celebrated international environmental cases, the Trail Smelter Arbitration - a case that is heralded as having established the principle that no nation may use its land to cause harm to another nation. Add to the mix the curious fact that in the face of stiff opposition from the smelter's owner, the mining and energy industries and the Government of Canada, the Bush Administration acts forcefully to hold the smelter responsible for cleaning up the mess that its foreign discharges created in the United States. When the smelter refuses to comply, two citizens, both enrolled members of a local Indian Tribe, file a citizens suit to enforce EPA's order, and the State intervenes in support of the plaintiffs. These are the facts underlying a case currently pending in the Ninth Circuit Court of Appeals, Pakootas v. Teck Cominco Metals Ltd.

Pakootas represents the United States' first use of CERCLA to address the cleanup of a hazardous waste site created by discharges that originated outside the United States. In addition to discussing this matter of first impression, this Article uses the Pakootas case as a lens through which to view the larger issues of transboundary pollution, and just as importantly the extraterritorial application of U.S. law.

The Article begins with a detailed historical narrative to provide context for the current dispute and respond to Canada's repeated calls for a return to historical precedents and procedures. The Article then analyzes the arguments for and against the application of U.S. law to hold the polluter, rather than the taxpayers, responsible for the costs of cleanup. Finally, in response to the critics of the United States' position who argue that retaliation is inevitable, the Article argues that a race to the top should be welcomed and would be consistent with long established international environmental law norms as well as the policies and laws of both Canada and the United States.

Keywords: Trail Smelter, Extraterritoriality, Extraterritorial, CERCLA, Superfund, Columbia River, Lake Roosevelt, Transboundary, International, International Environmental Law, Teck Cominco, Pakootas, Ninth Circuit, Boundary Waters, Boundary Waters Treaty, NAFTA, US-Canada Relations, IJC, Colville

JEL Classifications: K32, K33, K41, N40, N42, N52

Accepted Paper Series