Trail Smelter Arbitration (United States v.

Canada)

Brief Fact Summary. The United States (P) sought damages from

Canada by suing them to court and also prayed for an injunction for air
pollution in the state of Washington, by the Trail Smelter, a Canadian
corporation which is domiciled in Canada (D).

Synopsis of Rule of Law. The duty to protect other states against

harmful acts by individuals from within its jurisdiction at all times is the
responsibility of a state.

Facts. The Tail Smelter located in British Columbia since 1906, was

owned and operated by a Canadian corporation. The resultant effect of
from the sulfur dioxide from Trail Smelter resulted in the damage of the
state of Washington between 1925 and 1937. This led to the United
States (P) suit against the Canada (D) with an injunction against further
air pollution by Trail Smelter.

Issue. Is it the responsibility of the State to protect to protect other

states against harmful acts by individuals from within its jurisdiction at all
times?

Held. Yes. It is the responsibility of the State to protect other states

against harmful act by individuals from within its jurisdiction at all times.
No state has the right to use or permit the use of the territory in a
manner as to cause injury by fumes in or to the territory of another or
the properties or persons therein as stipulated under the United States
(P) laws and the principles of international law.

By looking at the facts contained in this case, the arbitration held that
Canada (D) is responsible in international law for the conduct of the Trail
Smelter Company. Hence, the onus lies on the Canadian government (D)
to see to it that Trail Smelter’s conduct should be in line with the
obligations of Canada (D) as it has been confirmed by International law.
The Trail Smelter Company will therefore be required from causing any
damage through fumes as long as the present conditions of air pollution
exist in Washington.  So, in pursuant of the Article III of the convention
existing between the two nations, the indemnity for damages should be
determined by both governments. Finally, a regime or measure of control
shall be applied to the operations of the smelter since it is probable in the
opinion of the tribunal that damage may occur in the future from the
operations of the smelter unless they are curtailed.

Discussion. Responsibility for pollution of the sea or the existence of a

duty to desist from polluting the sea has never been laid at the feet of
any country by any international tribunal. Although regulation of pollution
is just commencing, it must ensure that there is equilibrium against
freedom of the seas guaranteed under general and long established rules
of international law.

***

Summary

The United States took Canada to court for violating their sovereignty as
a nation and the resulting decision of the court established fundamental
principles for international environmental law. During the early
20th century a Canadian smelter company was operating in Trail, British
Columbia along the Columbia River which flows from Canada across the
border to Washington State in the United States of American. Here a
rural community of farmers existed who claimed damages from the waste
emitted by the smelter. The Canadian company that smelted zinc and
lead was emitting sulfur dioxide which caused injury to plant life, forest
trees, soil, and crop yields in Washington State. The United States
charged Canada for these injuries and the case was referred to the
International Joint Commission, a bilateral tribunal that oversees issues
regarding the two countries. The decision made by the Tribunal
established the concept of Trans Boundary Harm and the principle of the
“polluter pays” to ensure sovereignty. In this paper I attempt at
recognizing the process that led up to the landmark decision and how the
decision made by the court affected international environmental law.

Key words: Trail, Smelter, Sulfur Dioxide, Air Pollution, International

Environmental Law

Introduction
One of the most cited and fundamental cases for international
environmental law started as a local issue regarding two small towns and
one smelting plant. Northport is a town in Stevens County in Washington,
United States. Trail is a town in British Columbia, Canada approximately
twenty miles north of Northport across the border. Both towns sit along
the Columbia River which runs from British Columbia into Oregon. A
smelting plant in Trail was quintessential to the economy and lifestyle of
the citizens of Trail. It had power through its capital and political clout
that allowed it to get away with polluting the nearby areas, imposing
injury on the local farmers land. The waste emitted by the plant did not
observe borders and as a result a full scale international dispute took
place, the first and most famous in the mid-20th century regarding air
pollution, and the second in the late 20th century regarding slag released
into the Columbia River.
The Trail smelter dispute illustrates the ever present battle of big
business vs. the working man and corporate power vs. grassroots
organization. It pits environmental protection against economic profits.
Perhaps most importantly it challenged legislators to figure out how to
achieve sovereignty among two nations, one of which requested their
right to pollute for the purpose of economic development, the other
defending its right not to be harmed by a foreign nation. The two
principles arising from the first Trail smelter case are the cornerstones of
international environmental law, that the polluter pays and that and
states have a duty to prevent trans-boundary harm. The events that led
up to the decisions will be analyzed along with the decisions themselves.

Background
In the early 1900s and late 1800s in Trial, British Columbia, smoke did
not correlate with environmental pollution and harm to human health.
Smelter smoke indicated jobs and prosperity for the local region. This
was the case in 1896 when a smelter was built in Trail and owned by the
very powerful parent corporation, Canadian Pacific Railroad. In 1905 the
smelter was incorporated as the Consolidated Mining and Smelting
Company. The smelter was built about 11 miles north of the Canadian-
American border (Scheffer, 1955). The heavily mineralized region of the
northwestern corner of British Columbia was a prime spot for the
smelting of lead and zinc ores. Smelting is the process of heating an ore
(a grouping of minerals) and chemically extracting the metal in order to
reprocess it into products like rods, sheets, wires, etc. (Brennan, 2005).
This process emits pollutants in the form of smoke, particulate matter,
and slag. Sulfur dioxide and particulate matter from the metals were the
main constituents of the smelter smoke produced at Trail. This smoke
was thought to be an unfortunate byproduct of an economic engine that
kept the town of Trail a thriving area, and, as Julio Barboza put it, “the
damages caused, even if economically significant, were small in
proportion to the value of the smelters production” (Barboza, 2011). The
local champion hockey team was called the “Smoke Eaters,” an example
of the community pride the smelter provided for the town of Trail
(Bratspies, 2006). John D. Wirth referred to the smell of smoke as “the
smell of money and jobs” during the early 20th century in Trail (Wirth,
2000). The smelter was one of the largest metal processing plants in the
world (Scheffer, 1955). It was respected despite the smoke it produced
because of the development it entailed. People accepted the smoke as a
positive sign of industrialization. The desire for a healthy local
environment was Consolidated with the desire for economic progress. To
highlight the importance of this industry in the town of Northport and the
effects of the failure of its smelter must be analyzed.
Directly south of Trail along the Columbia River is the small town of
Northport, Washington, about nineteen miles away from Trail by the river
(Figure 1). In 1896 a smelter opened up in Northport run by LeRoi Mining
and Smelting (Wirth, 2000). The fate of this “Breen Copper Smelter”
sharply contrasted that of the Trail smelter.

While the Consolidated was becoming the largest smelting company in

the British Empire the Northport smelter closed in 1921. Its operations
had been small but emitted approximately seventy tons of sulfur dioxide
a day (Trail Smelter Arbitration, 1938). It was responsible for some
damage to land and purchased smoke easements from land owners in
the vicinity of the smelter. Stevens County had high hopes for the
economic development it would face in light of the smelter factory. The
most important industry had been the lumbering industry as the forests
were the most valuable asset to the area (Trail Smelter Arbitration,
1938). The lumbering industry was directly tied with the Spokane and
Northern Railway that would connect Northport industry to the rest of the
country.

Agriculture was another industry operating in Northport. Alfalfa, timothy,

clover, grain, barley, oats, wheat, and potatoes were the crops grown on
the farms of Northport (Trail Smelter Arbitration, 1938). According to Dr.
F.C Wyatt, the head of the Soils Department of the University of Alberta
in the late 1930s, “Under good cultural operations, yields are good” but,
as the Trail Smelter Arbitration point out, “a large portion of this area is
not primarily suited to agriculture” (Trail Smelter Arbitration, 1938). The
lumber industry, railroads, and agriculture gave Northport the hopes
during the early 20th century of transforming from a barren unchartered
wilderness into an economically thriving town. Instead the smelter
factory failed and closed down, the lumbering industry faced temporary
success before the trees were diminished, and the hopes of being a major
fruit producing industry failed as the area went into an agricultural
depression, followed by drought, followed by the Great Depression
(Wirth, 2000). The population of Northport plummeted as the area faced
a major economic decline resulting from the failures of industry. In 1920
the population was 906 and ten years later in 1930 the population was
391 (Trail Smelter Arbitration, 1938).
While Northport was struggling the smelter at Trail increased production
and benefited the Canadian government through annual tax revenues
amounting to approximately one million dollars (Dinwoodie, 1972). The
Trail smelter had managed to perfect the process for refining low-grade
zinc ores securing its position as the most successful smelter in British
Columbia (Bratspies, 2006). The Trail smelter was “one of the best and
largest equipped smelting plants on this continent” (Trail Smelter
Arbitration, 1938). The town of Trail was booming as populations rose. As
a result there was an animosity between Northport and Trail that
originated in the contrasting and uneven economic development
occurring on either side of the boundary line.

The first people to bring suit against the smelter at Trail were those living
in the vicinity of the factory. Local Canadian farmers sued Consolidated
Mining for damaging their crops. The Trail smelter had reacted to charges
of pollution in the same fashion as the Breen Cooper smelter in
Northport. Consolidated Mining bought lands within five miles of the
factory and purchased smoke easements with the local citizens in order
to prevent future litigation (Wirth, 2000). This, however, proved to be
inadequate protection as the farmers who refused the land easements
brought suit. As the smelter grew in production and revenues it became a
larger target for litigation. Consolidated Mining and Smelting saw the
complaints of the farmers as a consequence of the economic success of
the smelter. Throughout the twenty year course of the trial Consolidated
insisted that the land in the surrounding areas simply was not a prime
spot for agriculture. The company insisted that the failure of the farmer’s
crops was a result of either bad farming techniques or the natural
environment. To prove this Consolidated used the land they owned to
host a model farm in order to prove that successful farming could exist
with the smoke (Wirth, 2000). Consolidated also argued that there may
not even be a market for the farmer’s products if the smelter had not
brought economic activity to the area.

While Consolidated considered the complaining citizens to be “smoke

farmers” merely looking for a buck, the farmers insisted that they were
trying to protect their right to economically advance (Wirth, 2000). They
challenged the smelter to pay for its pollution rather than profiting off of
it. Hence the community based farmers and big business was pitted
against each other. The American farmers would later form a committee
to protest the “invasion of our rights and homes by this rich foreign
corporation” (Wirth, 2000). Consolidated had no obligation to pay for
damages if the farmers could not absolutely prove that the smoke from
the smelter was affecting their cropland. One case brought up by local
Canadian farmers made it all the way up to the Canadian Supreme Court.
Provincial law awarded sixty farmers $60,000 in damages. The decision,
however, did not put any restrictions or regulations on how much the
smelter could emit (Bratspies, 2006). This was merely a small loss for
Consolidated Mining and Smelting, and business went on as usual, with
an increase in production from 1924-1930.

In 1900 the smelter emitted 800 tons of sulfur monthly and in 1925
6,300 tons of sulfur was emitted each month. In 1926 9,000 tons were
emitted each month and in 1930 300-350 tons a day were emitted. One
ton of sulfur is the equivalent to two tons of sulfur dioxide (Trail Smelter
Arbitration, 1938). In response to this increase in production and
subsequent increase in smoke, the stacks on the plants were raised to
over 409 feet in an effort to diffuse emissions in 1925 and 1927
(Scheffer, 1955). This reduced the smoke affecting the local area by
passing it on to the neighbors, the United States. The smoke rose 400
feet following the Columbia River valley along the winds, diffusing as it
traveled. At approximately 16 miles downstream the sulfur dioxide
content greatly decreased (Scheffer, 1955). As smoke followed south
along the Columbia River into Washington State this waste became an
international issue. In 1931 in order to decrease the amount of sulfur
emitted Consolidated introduced “sulfur recovery measures” and the
amount of sulfur emitted decreased to 7,100 tons per month in 1931.
The decreasing amount of sulfur emitted continued and in 1948 1,400
tons per month was emitted (Scheffer, 1955).

While the citizens of Trail largely accepted the land easements and
payments for the damages inflicted by the smelter due to the economic
benefits the smelter provided, American citizens were enraged by the
damage to their cropland and took aggressive action. Increasing the
height of the smoke stacks increased the distance that the smoke was
able to travel. The smoke was able to reach 30 miles downstream from
the plant across the town of Northport (Dinwoodie, 1972). The Americans
were now dealing with smoke from what they thought of as a powerful,
rich, and greedy operation that was all the worse for being foreign
(Dinwoodie, 1972). These enraged farmers organized together in 1928,
forming the Citizens Protective Association (CPA) with the purpose of
fighting Consolidated Mining and Smelting together as a powerful, united
force.

Consolidated made attempts at breaking up this association by offering

money to individual farmers. However, under the provision of the CPA no
settlements were made between Consolidated and the individual farmers
(Trail Smelter Arbitration, 1938). The CPA grew in numbers and power
and by 1927 their complaints were no longer being ignored. Consolidated
could not buy land easements from the Americans. Due to the
Washington State Alien Land Law, an old English “local action rule,”
Consolidated was legally forbidden from having an interest in state lands
(Bratspies, 2006). The law stated that British Columbia courts were
prevents from seeing suits for damage to foreign lands. Under this
doctrine the CPA could not directly sue Consolidated.  This prevented
Consolidated from fulfilling its plan of buying local land and establishing
its eminent domain, creating an industrial zone dominated by the
company rather than the citizens (Bratspies, 2006). This law gave the
citizens a fighting chance. The CPA was forced to go to local
congressional government who petitioned the federal government for
assistance (Dinwoodie, 1972).

In 1927 a United States Department of Agriculture (USDA) plant

pathologist surveyed the land and found no evidence of damage due to
the smoke, instead equating crop failure with various possible factors
such as fire, drought, winter injury, and beetle damage (Wirth, 2000).
The CPA did not accept this ruling, viewing the decision as politically
fused and requested two more USDA scientists to investigate the area.
This marked the United States government entry into the conflict. Two
more representatives were sent and affidavits were collected along with
evidence of injury and statements from farmers. In 1927 the state
department proposed to Canada that the case be referred to the
International Joint Commission (IJC) (Wirth, 2000). The pollution from
the smelter at Trail was no longer a local issue. It had now been turned
over to the world of international institutions.

Scientific Analysis
Discussions on the damaging effects of gases emitted from smelting
plans on vegetation and forests were being discussed prior to the Trail
case (Scheffer, 1955). In the scientific world there was knowledge that
the constituents of the gases emitted from smelters could have a
damaging effect on the local geography. One of the earliest publications
was produced in 1871 a scientist named Stoeckhardt wrote about smoke
damage to trees in Germany (National Environmental Research Center
1973). The claims the farmers brought up against the Trail smelter were
not far-fetched; Injury from the gases on vegetation causes noticeable
changes in plants. However, whether or not this damage was directly
correlated with smelter smoke was not clear.

During the ore processing sulfide materials are combusted creating the
oxide of sulfur, sulfur dioxide gas. Sulfur trioxide, another constituent of
smelter gas, disassociates into sulfuric acid. Particulate matter containing
toxic metals, arsenic, lead, and acid sulfates, are other damaging
constituents of smelter smoke (Scheffer, 1955). Sulfur dioxide and
sulfuric acid are the constituents that will be discussed due to its harmful
effects on vegetation. One part per million, 0.0001 percent of sulfur
dioxide will cause significant damage to plants. Before regulation, smoke
emitted from smelters largely contained 1.5 percent sulfur dioxide
(Scheffer, 1955). Regulatory measures to reduce the amount of sulfur
dioxide emitted include scrubbers, flash smelter technologies, sulfur
sequestration, and so on. Sulfur dioxide emissions from smelting peaked
in the 1970s and have decreased since due to the widespread use of such
regulatory measures (Smith, 2011).
The smelter at Trail was built in a gorge off of the Columbia River. The
Columbia River is very narrow and deep, spanning 1,243 miles. The river
begins in British Columbia and travels east from Trail until heading
southwest ward, ending in Oregon. Due to the shape and depth of the
river it often times acted as a flume guiding the gases emitted by the
smelter (Scheffer, 1955). Generally the winds traveled northeast down
the river. Injury from sulfur dioxide decreases with distances from the
source. Although the amount of sulfur dioxide in the gas diffuses the
farther it travels, it diffuses very slowly, allowing for the sulfur dioxide to
cause damage to the surface after large time spans. Even if there were
low concentrations of sulfur dioxide effecting the farmers land due to
diffusion, as little as one part per million of sulfur dioxide can create
significant damage. The nature of the Columbia River, wind direction, and
rate of diffusion created the scenario for smelter smoke emitted in Trail
to travel down to the neighboring Stevens County.

Sulfur dioxide creates injury to plants through short term, long term,
subtle, and visible changes. These injuries include cell damage, chemical
composition changes, decreasing rates of photosynthesis, and a reduced
yield and growth. The effects sulfur dioxide have on vegetation depend
on the temperature, humidity, soil conditions, time of day, and other
influencing pollutants (National Environmental Research Center, 1973). 
The sulfur dioxide forces the cells within the plants to lose their ability to
retain water. As a result the leaves dry out and die. High exposure to
sulfur dioxide collapses cells within plants causing necrosis. The rate of
intake of carbon dioxide decreases with exposure to sulfur dioxide. High
concentrations of sulfur can be found within the leaves, along with other
chemical changes such as an increase in potassium and calcium,
depending on the circumstances. Sulfite ions effects membrane integrity
resulting in reduced growth and development (National Environmental
Research Center, 1973). The chlorophyll is destroyed due to the reducing
capacities of sulfur dioxide and sulfuric acid (Scheffer, 1955). As a result
the leaves turn brown, yellowish, and chlorotic before they fall and die.
For example, pine trees lose their needles when exposed to sulfur
dioxide. The trees that are not killed take on a scrawny, thin appearance
(Scheffer, 1955). White, bleached leaves are a result of necrosis.

Sulfur dioxide destroys the vitality of vegetation. The farmers observed

this and concluded that the tons of smoke attacking their land were the
cause. During the IJC hearings scientists from both countries
acknowledged the discoloration and lesions on leaves across the area of
smoke damage. Scientists, however, disagreed on the cause of this
damage. The discoloration could be attributed to drought, insect damage,
disease, or winter injury, and thus the Canadian scientists concluded that
although there was visible injury there was no not necessarily a
connected between this injury and the smelter (Bratspies, 2006).
Canadian experts claimed that the smoke from the previously operating
Breen Copper Smelter in Northport could be the cause of the damage.  In
order to prove that the smoke was reducing yield and growth a link had
to be made between the smoke and metabolism changes.

Upon analyzing research papers and evidence produced in the late

20th century the atmospheric sulfur dioxide emitted from the smelter
clearly was the cause of injury to vegetation. The farmers saw the
composition changes in their plants and concluded that the smoke was to
blame. During the Trail smelter arbitration publications on this did exist
but there were too few to create a substantial consensus in the scientific
world on the harmful effects of sulfur dioxide. The first scientists who
analyzed the Northport farms found no evidence of sulfur dioxide
poisoning. The IJC hearings provided conflicted theories of the origin of
damage on the plants. It wasn’t until the final proceedings in 1938-1941
that the court was confident in assuming injury from smelter smoke. This
case and the resulting research conducted in both American and Canada
provided extensive and valuable research on the topic. One such example
is the National Research Council of Canada’s 1939 compilation of the
scientific findings that came out of the Trail case, Effect of Sulphur
Dioxide on Vegetation. The lack of absolute scientific proof allowed for
skepticism regarding the farmer’s claims. The IJC and the Tribunal it
established would be responsible for analyzing the research scientists
conducted to establish whether or not the smelter at Trail was
responsible for the death and reduced yield of the farmer’s crops in
Stevens County.
The International Joint Commission Special Agreement
The IJC was founded in 1909 as a bilateral treaty between Canada and
the United States. The purpose of the commission is to prevent boundary
disputes, specifically concerning waters, in order to establish sovereignty
among the two nations. The smelter dispute was referred to the IJC
under Article V that states that disputes along the “common frontier…
shall be referred from time to time to the International Joint Commission”
(International Boundary Waters Treaty, 1909). 1926 marked the Balfour
Declaration that made Canada independent of Great Britain. As a result
this was the first case of its kind that Canada was facing alone without
the aid of England. The IJC was therefore hearing statements from
Canada who was embarking on an international case alone for the first
time, and America, whose argument was characterized by local farmers
with little credibility. The International Boundary Waters Treaty
specifically points out that one of its purposes is to prevent pollution “on
either side to the injury of health or property on the other” (International
Boundary Waters Treaty, 1909). The IJC therefore was given the
responsibility of seeing the case. The IJC, however, was not necessarily
qualified based on its experience and capabilities. For example, the IJC
was capable of investigating and making recommendations, but it was
not capable of executing an enforceable decision. Article IX states that
reports from the IJC should not be regarded as decisions or arbitral
awards (International Boundary Waters Treaty, 1909).  Nevertheless the
case was referred and the IJC. The IJC would focus on compensation
rather than future control methods, much to the farmers dismay
(Dinwoodie, 1972).

In 1935 the IJC held a convention and “rendered a report and

recommendation” regarding the conflict between Canada and the United
States based on the hearings the commission held (Special Agreement,
1935). The hearings showcased complaints from the farmers, testimonies
from four groups of scientists, arguments delivered by lawyers
representing Consolidated and the farmers, and counsel from both the
Canadian and United States government. The hearings provided experts
from both the United States and Canada who were highly politicized
based on what country they represented. The knowledge these experts
provided on the damage of smelter smoke was shaped by the interests of
their country (Bratspies, 2006). Scientists from both the United States
and Canada observed damaged crops but they disagreed on the extent
and the cause of the damage. Consolidated argued that whether or not
the damage was the result of smelting smoke the measures being
adopted by the company to reclaim sulfuric acid would eliminate any risk
of future damage. After reviewing the case the IJC made a report that
recommended Canada pay the United States $350,000 for damages, a
quarter of what the farmers requested. The IJC made no comment on
whether the smelter should continue to operate or what measures the
smelter must undertake to curb pollution. The United States rejected
these recommendations. The IJC therefore established a “Tribunal” in
which it referred the case to.

The Tribunal was to consist of three members, one Canadian, one

American, and one Belgium, including two scientists to make decisions on
the key questions of the case. The questions of the case were a) whether
the plant had caused damage and how this damage should be paid for, b)
whether or not the plant should refrain from causing damage and to what
extent, c) what measures should be adopted by the plant to reduce
emissions, and d) what compensation should be paid (Special Agreement
1935). The Tribunal would use international law practices, American law,
and American courts to analyze the facts and evidence. Representatives
would give statements, evidence and arguments would be presented, and
investigators would be appointed on behalf of each government. The fate
of the farmers and Consolidated Mining would be left to the Tribunal
whose partial decision would be delivered three years later in 1938 and
its final decision in 1941. The Tribunal would rule on sovereignty and
established the principles that will engrave this case in international
environmental law.

Tribunal Award: April 16, 1938

The promise made by Consolidated that the technological methods being
enacted would reduce the harmful sulfur dioxide emissions proved to be
false. In 1934 sulfur dioxide recording devices along the Columbia River
recorded sulfur dioxide levels up to one-half part per million, the same as
the previous year (Dinwoodie, 1972). In 1936 and 1937 Consolidated
installed two reduction units for the absorption of sulfur from the zinc
smelter and gases from the lead roaster and a new system of control of
the emission during growing seasons (Trail Smelter Arbitration, 1938).
The farmers who had rejected the IJC decision as an inadequate attempt
at justice were becoming more and more fed up as the noxious smoke
continued to damage their crops and the Great Depression of the 1930s
led to unemployment and poverty in the area. In order to reach a
decision in the decided upon year, 1938, the Tribunal studied the smelter
reclamation process and whatever damage the smelter caused in the
years 1932 and 1933.  Experts analyzed the mortality, deterioration,
retardation of ring growth, sulfur content in needles, and reproduction of
trees in the Northport area (Trail Smelter Arbitration, 1938).

The evidence presented by the experts and witnesses were not sufficient
for the Tribunal to confidentially establish the cause of damage. The
Tribunal concluded that there was damage due to fumigations.  However,
the extent and the manner of the causing factor were still unclear. The
experts and witnesses were said to be unconsciously bias and the result
was contrary views and conclusions. Those witnesses and experts
representing the United States associated the damage to the smelter
fumigations. Those representing Canada attributed the damage to other
causes, such as damaging logging techniques and fires. As a result of the
unclear results the Tribunal put off deciding what measures the smelter
should permanently take to reduce damage. In order to establish an
appropriate regime for Consolidated 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. The Tribunal established that the upper air currents and
mixing were responsible for the delivery of the smoke into the United
States rather than the trade winds. The meteorologist would use this
information to help the technical consultant implement the appropriate
technology. The Dominion of Canada would be responsible for necessary
payments to these specialists.
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. The language of the document is somewhat
hesitant. The Tribunal establishes that there was damage to reproduction
in trees and that some extent of this damage was due to fumigations, but
it does not identify that extent. The Tribunal was hesitant to definitively
blame the smelter. In this sense this decision is balanced, taking both
sides into consideration and analyzing all evidence before placing blame.
However, the decision sets up the precedent that continues in the final
phase of the arbitration awards; the Trail smelter will be responsible for
regulating its pollution. It will not be responsible for halting pollution all
together. This will be further discussed in the analysis of the decision
below.

The United States 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 (Bratspies, 2006). 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.

Tribunal Award: March 11, 1941

Due to unsatisfactory data the Tribunal extended its decision until there
was an adequate testing of the injury reducing regime over three growing
seasons. 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 (Trail Smelter Arbitration, 1941). This extensive study led
to the Tribunals confidence that the regulation regime it was proposing
would keep the smoke under control and eliminate the risk of possible
injury. The Tribunal claimed that the smelter had caused no damage
since 1937 and would not need to pay the farmers any more
compensation. The bulk of this final decision is a technical description of
the regime control that Consolidated was undertaking and would continue
to impose to eliminate the damage its smoke was inflicting on the
farmers. The total estimated cost Consolidated would have to pay to
comply with this regime amounted to $20 million. Consolidated mitigated
this huge sum of money by the success of selling the products of the
smoke abatement program (Bratspies, 2006). Finally, the United States
would be paid $7,500 for the costs of investigation.

Decisions Analysis
            This case was truly a landmark case in term of international law.
Never before had there been decision a by the World Court or any other
international justice system regarding an instance so remote and
localized (Bratspies, 2006). The Tribunal attempted at finding a balanced
solution. The smelter was able to continue operations and the farmers
were no longer harmed by the smoke and received appropriate
compensation. Sovereignty was the general goal which is illustrated in
the language of the decision. The final decision of the Tribunal held that
the Dominion of Canada is responsible in international law for the actions
of the smelter (Trail Smelter Arbitration, 1941).  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” (Trail Smelter Arbitration, 1941, emphasis
mine). These are the famed words of the Trail smelter arbitration and
sum up the relevance of this case. A state can pollute its own land as
much as it wants as long as it abides by law. Once that pollution crosses
an international boundary though, and is of serious consequence, the
state has violated the sovereignty principle of international law.
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. Whether
or not the smelter smoke was dangerous for the health of the individual
farmers was never discussed in this case. The Tribunal focused on the
extent of the economic loss due to the noxious smoke in order to identify
whether or not it was of “serious consequence.” 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.

It should be stated that the decision of the court was not meant to
impose legally binding obligations on both parties. The decisions reflect
an aspiration, or a principle of the international justice system. There are
two principles that are often discussed in light of this case. The first was
established in the provision above, that a state has an obligation to
prevent transboundary harm. The second is referred to as the polluter
pays principle. The Tribunal used previous United States Supreme Court
decisions to help decide what route to take in deciding this case. The
Tribunal used the principle set up in United States Supreme Court in
Story Parchment Company v. Paterson Parchment Paper Company (1931)
that relief must be provided for the injured person and accountability to
the wrongdoer. Furthermore in the absence of certainty it is just for
Juries to act on reasonable inference as well as direct proof (Trail Smelter
Arbitration, 1938). In terms of the Trail Smelter arbitration the relief that
must be provided came in the form of monetary compensation. In order
to establish justice for the farmers Consolidated was made to pay for the
serious damage it had done to the farmers land. Hence the principle was
established that the polluter pays. The Tribunal put an incredible
emphasis on researching and finding a regime to place Consolidated on
that would limit the damage it was causing to the farmers land. The
Tribunal never considered shutting Consolidated. Shutting down the Trail
smelter would supposedly have detrimental effects on Canada’s economy
due to the enormous revenue the smelter provided. Forcing the smelter
to shut down operations, even for the time period between decisions, was
not the intent of the Tribunal. Rather its notion of justice was finding a
way for the smelter to continue operations while remedying the wrong it
had done to the farmers.

This remedy came in two forms, each of which put the financial burden
on Consolidated and Canada, the polluters. The first remedy was direct
monetary compensation to the farmers. The second remedy was
changing the way operations took place at the smelter to reduce the
amount of harmful chemicals emitted during processing. This regime was
incredibly costly to the smelter, amounting to around $20 million. The
Tribunal was effectively placing blame and costs on the smelter without
shutting it down. For the purpose of what the Tribunal considered a fair
and balanced approach to resolving this conflict it did not seek to end the
pollution. Its goal was to diminish the injury the pollution was causing
through regulatory methods. It can be argued that this was a
shortcoming of the decision because it established a paradigm of allowing
a company to pollute as long as it paid the price. It could also be argued
as an appropriate and fair decision because it preserved economic
interests while ending the problem that had been presented.               
Conclusion
            The farmers of Northport probably had no idea that they were
making history. What started as a grassroots effort to rid the area of
noxious smoke ended in a case cited directly or indirectly in countless
environmental law cases. Those involved in the case were not trying to
make history. The farmers were merely seeking compensation for what
they saw as a violation of their rights. The wrongdoer, Consolidated
Mining and Smelting Limited, were definitely not trying to make history.
Consolidated was doing everything they could to squash the issue and
keep it as low key and local as possible. Due to the geographic nature of
the dispute these goals were not possible and history was effectively
made as the dispute went into the hands of international law institutions.
The results of this case are pivotal to international environmental law.
This case put into words the unspoken notion of transboundary harm and
a nation’s obligation to do everything they can to prevent it.
Furthermore, the results of this dispute put definitive blame on the
polluter and established that the punishment would be whatever payment
is necessary to remedy the harm.