Trail Smelter dispute
The Trail Smelter dispute was a significant environmental conflict between Canada and the United States that highlighted the issue of cross-border pollution. Originating in the early 20th century, the dispute arose due to sulfur dioxide emissions from the Trail Smelter in British Columbia, operated by the Consolidated Mining and Smelting Company. These emissions caused extensive damage to agricultural and forest land in the adjacent Stevens County, Washington, prompting the U.S. to formally complain to Canada in 1925. After years of diplomatic negotiations and arbitration, the 1935 Convention established a framework for addressing such environmental disputes and introduced the principle that a country is liable for damages caused by pollution originating from its territory. The arbitration resulted in Canada paying the United States $420,000, setting a precedent for the "polluter pays" principle in international law. While the smelter continued operations under new management, the case underscored the importance of accountability for environmental harm, influencing modern international relations and environmental policies. The Trail Smelter dispute remains a foundational example in discussions about environmental justice and state responsibility for pollution.
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Trail Smelter dispute
The Event U.S.-Canadian dispute over environmental damage caused by a smelter in British Columbia near the U.S. border
Dates Agreement signed on April 15, 1935; ratified on August 3, 1935
Place Trail, British Columbia
The Trail Smelter incident, a dispute between Canada and the United States, was resolved when an international jury declared that countries were responsible for their own pollution and required Canada to compensate the United States for environmental damage caused by exhaust from a smelter in Trail, British Columbia. The United States and Canada signed a treaty to resolve the issue.
Prior to 1935, sovereign nations often inflicted environmental damage on neighboring countries with impunity. The Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail of 1935 established a new international legal precedent for one country compensating another for environmental damages.
For many years, sulfur dioxide emissions from the smelting of lead and zinc by the Consolidated Mining and Smelting Company, Limited, of Canada, at Trail, British Columbia, caused environmental damage to approximately 140,000 acres of agricultural land and forestland from the deposition of heavy metals, including arsenic and mercury, through air and precipitation in the Columbia River Valley. These heavy metals adversely affected agricultural crops, cattle, tourism, and trees in Stevens County from the Canadian border to Kettle Falls in Washington State.
In 1925, the United States lodged a formal complaint with Canada after the construction of a new smokestack some 400 feet tall. The pollution emitted from this smokestack approximately doubled the emissions of sulfur dioxide. Canada at first refused to compensate the United States.
After continued diplomatic exchanges on the subject, both countries agreed in 1928 to refer the dispute for arbitration to the U.S.-Canadian International Joint Commission, which had been established in 1909 by the Boundary Waters Treaty. In 1931, applying English common-law principles, the commission awarded the United States $350,000.
Nevertheless, pollution continued, and the United States filed a new complaint in 1933. In 1935, Canada and the United States adopted the Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail, which established a tribunal for handling the continuing dispute. In January, 1938, the tribunal was convened to resolve the matter. Three months later, the tribunal ordered temporary restrictions on the smelter for the next two years as a test to determine how much pollution would be emitted. Instruments to provide definitive scientific measurements did not exist, so estimates were accepted.
In 1941, the arbitration panel ruled that additional compensation should be paid, and the company was ordered to shut down operations within eighteen months. In all, Canada paid the United States $420,000. After both awards, the American government compensated farmers whose crops had been adversely affected.
Impact
Under new management, the smelter company remained in operation. Waste was reprocessed into fertilizers, but the full extent of the pollution has not yet been mitigated, and the tribunal decision allowed Canada the right to pollute, provided that compensation would be paid. In the twenty-first century, no such right is assumed, and efforts to reduce and prevent pollution are predominant in international relations.
What is most important is that the treaty established the framework for the “polluter pays” principle when the arbitration panel stated that “no nation may undertake acts on its territory that will harm the territory of another state”—that is, that a country is liable for environmental damage from businesses in its territory. The payment by Canada established the precedent for financial liability.
The same principles were subsequently applied to pollution in the ocean. Some claim that the principles should apply to a government’s obligation to prevent terrorism, to the status and fate of refugees, and to regulation of the Internet.
Bibliography
Bourne, C. B. “International and Private Actions in Transboundary Pollution.” Canadian Yearbook of International Law (1973): 258-271.
Bratspies, Rebecca M., and Russell A. Miller, eds. Transboundary Harms in International Law: Lessons from the Trail Smelter Arbitration. New York: Cambridge University Press, 2006.
Kaye, Stuart. The Impact of the Trail Smelter Arbitration on the Law of the Sea. New York: Cambridge University Press, 2006.
Parrish, Austen L. “Trail Smelter Déjà Vu: Extraterritoriality, International Environmental Law, and the Search for Solutions to Canadian-U.S. Transboundary Pollution Disputes.” Boston University Law Review 85, no. 2 (2005): 363-427.
Turnbull, Elsie G. Trail Between Two Wars: The Story of a Smelter City. Victoria, B.C.: Turnbull, 1980.