The Trail Smelter Dispute
US v. Canada Trail Smelter in the State of
4/16/38 and 3/11/41
FACTS:
The smelter in Trail, British
Columbia is operated by the
COMINCO Mining and Smelting
Company (COMINCO) and has
processed lead and zinc since
1896. Smoke from the smelter
caused damage to forests and
crops in the surrounding area
and also across the CanadaUS
border in Washington. The smoke
from the smelter distressed
residents, resulting in
complaints to COMINCO and
demands for compensation.
Complaints included sulphur
dioxide gases in the form of
smoke generated from the smelter
was directed into the Columbia
River Valley by prevailing
winds, scorching crops and
accelerating forest loss.
This led to the official
petition by the farmers and
landowners of Washington in 1927
for state and federal support
against the smelter, claiming
the smoke was damaging United
States lands. In 1931, the IJC
awarded the farmers $350,000 in
damages. The compensation was
far less than the plaintiffs had
expected and the IJC settlement
was eventually rejected under
the pressure of Washington's
State Congressional Delegation.
The unsatisfactory result of the
IJC decision led to the
establishment of a three-person
Arbitral Tribunal to resolve the
dispute in 1935.
The Ottawa Convention, which
was signed in Ottawa,
Canada,legitimized the Tribunal.
The Convention outlined 11
Articles under which the
Tribunal would operate. Of the
11 articles, Article 3 outlines
the
four questions the Tribunal was
to answer.
ISSUES:
Whether damage caused by the
Washington has occurred since
the first day of January,
1932, and, if so, what
indemnity should be paid?
In the event of the answer to
the first part of the
preceding question being is
positive, to what extent
should there be compensation?
In light of the answer to the
preceding question, what
measures or regime, if any,
should be adopted or
maintained by the Trail
Smelter?
What indemnity or
compensation, if any, should
be paid because of any
decision or decisions
rendered by the Tribunal
pursuant to the next two
preceding questions?
RULING:
1938
Such decision was deemed
temporary, because the evidences
and witnesses were too
inadequate to bear a decision,
which was planned to be made in
1941.
The Tribunal concluded that
there was damage due to
fumigations. However, the
extent and the manner of the
causing factor were still
unclear.
As a result of the unclear
resultsthe Tribunal put off
deciding what measures the
smelter should permanently take
to reduce damage.
In order to establish an
appropriate regime for COMINCO
to reduce injury the Tribunal
appointed two technical
consultants and a meteorologist
to focus on how to improve the
operation of the plant based on
weather and seasonal conditions.
Furthermore, for the time period
before the second and final
decision was to be made, in
order to mitigate further damage
from fumigations the Tribunal
ordered that no more than 100
tons of sulfur could be emitted
daily by the smelter
US had requested $1,849,156.16
with interest of $205,855.01 for
the damages inflicted on cleared
land and improvements, uncleared
land and improvements,
livestock, property in the town
of Northport, the cost of
investigations, interest on the
$350,000 recommended by the IJC
that had not yet been paid, and
business enterprises. In this
decision the Tribunal allowed
for the payment of the first two
items, damages inflicted on
cleared land and uncleared land
and improvements but dismissed
the other requests. The farmers
would receive $78,000 for damage
caused by the smelter from 1932-
1937 in addition to the
previously decided $350,000.
1941
The investigations conducted
during this time interval
studied smoke control in terms
of wind directions and velocity,
atmospheric temperatures, lapse
rates, turbulence, geostrophic
winds, barometric pressures,
sunlight and humidity, and
atmospheric sulfur dioxide
concentrations.
The Tribunal claimed that the
smelter had caused no damage
since 1937 and would not need to
pay the farmers any more
compensation, as only uncleared
forest and cleared farms were
harmed. The bulk of this final
decision is a technical
description of the regime
control that COMINCO was
undertaking and would continue
to impose to eliminate the
damage its smoke was inflicting
on the farmers. The total
estimated cost COMINCO would
have to pay to comply with this
regime amounted to $20 million.
Finally, the United States would
be paid $7,500 for the costs of
investigation.
Trail Smelter was obliged to
refrain from causing future
damage, and sulfur dioxide level
must be under a determined
level. t was COMINCO's
responsibility to regulate and
control the pollution their
smelting industries created. As
long as the present conditions
in the Columbia River Valley
prevail, the Trail Smelter shall
be required to refrain from
causing any damage through fumes
in the State of Washington.
Why is this case signifcant?
The final decision of the
Tribunal held that the Dominion
of Canada is responsible in
international law for the
actions of the smelter. The
Tribunal declared that no state
has the right to use or permit
the use of its territory in such
a manner as to cause injury by
fumes in or to the territory of
another or the properties or
persons therein, when the case
is of serious consequence.
The pollution must be of serious
consequence, indicating that the
court must identify whether or
not the pollution in question is
inhibiting an individual or
group to live in a healthy and
prosperous manner.
The Tribunal established that
the injury to cleared and
uncleared lands was serious
enough to warrant compensation.
It did not find that the damage
on livestock and the property in
the town of Northport was
serious enough to be compensated
for. What can be taken away from
this is that proving damage was
caused by the pollutant is not
enough. It must be proved that
the damage is serious. The
definition a court gives to
serious is arbitrary and
depends on the circumstances and
the court.
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.