1937 Trail Smelter Case (TRAIL)

          CASE NUMBER:         128
          CASE MNEMONIC:      TRAIL
          CASE NAME:          Trail Smelter Case/1937

I.        IDENTIFICATION
1.   The Issue
     The Consolidated Mining and Smelting Company Limited of
Canada operated a zinc and lead smelter along the Columbia river at
Trail, British Columbia about 10 miles north of the international
boundary with the State of Washington.  In the period between 1925 and
1935, the U.S. Government objected to the Canadian Government that
sulfur dioxide emissions from the operation were causing damage to the
Columbia River valley in an 30 mile stretch from the international
boundary to Kettle Falls, Washington.  The two governments
resorted twice to legal arbitration, once from 1928 to 1931 and again from
1935 to 1941, in an attempt to resolve the dispute.  The outcome
of each decision involved some payment by the Canadian Government
for damages caused to the State of Washington.  The latter decision
also prescribed a set of operational guidelines under which the
smelter at Trail should conclude its operations for at least a
year-and-a-half.  The main concern of the United States was that
the smelter's sulfur dioxide emissions were harming the land and
the trees of the Columbia River Valley which were used for
logging, farming, and cattle grazing; the three industries crucial to the
area. The main species affected were yellow pines, Douglas firs,
larch, and cedar.  Affected harvests included alfalfa, wheat, and
oats.

2.        Description
     In 1896, a smelter located in Trail, British Columbia, began
operating under American ownership.  However, in 1906, the
Consolidated Mining and Smelting Company of Canada, Ltd. bought
the smelter plant in Trail.  This company expanded the plant in size
and in turn in its capacity to smelt zinc and lead ores. However,
in 1925 and in 1927, two large, 400-foot smoke stacks were built.
There was a resulting increase in the amount of sulfur emitted
into the air.  Within that same time period the amount of sulfur
released from the plant on a monthly basis almost doubled from
what it had been in 1924.  The amount of sulfur released in 1924 was
about 4,700 tons per month.  But in 1927, the amount had risen to
9,000 tons per month.  These increases continued because this
smelting operation of zinc and lead had become one of the largest
in North America.  Finally, the effect of these harmful amounts
of sulfur being released were noticed in the State of Washington. 
The effects were noticeable because for every ton of sulfur released
into the air there are two tons of sulfur dioxide created.  It
was this increase in sulfur dioxide that was detected through the
rains.
     In the period between 1928 and 1935, the Government of the
United States filed complaints with the Government of Canada that
sulfur dioxide emissions from the Trail smelter had damaged the
Columbia River Valley. On August 7, 1928, the issue was referred
to the International Joint Commission by the United States and
Canada (IJC-UC) for settlement.  The IJC-UC decided on February 28, 1931
that the Trail smelter should limit its sulfur dioxide emissions
and that Canada should pay the United States US$350,000 as
compensation for damages.
     Despite the IJC-UC decision, the conditions at the Trail
smelter did not improve.  Consequently, by February 1933 the U.S.
Government was refiled complaints to the Canadian Government
about the situation at the smelter.  These set of complaints led to an
emissions convention which was signed by the two parties on April
15, 1935.  The Convention called for the creation of a Tribunal
to determine the answers to four questions:

     1. Had damage been done to Washington State by the smelter
     since January 1, 1932?
     2. If the smelter was found to have done damage, should it 
     be made to refrain from doing so in the future?
     3. Should the smelter operate under any restrictions?
     4. Should any compensation be paid in light of the answers 
     to questions 2 and 3?{2} 

     After both the Canadian and U.S. Governments presented their
evidence to the Tribunal in January of 1938, the Tribunal informed 
the governments on April 16, 1938 that it had a final decision on
Question 1, but required more time to answer the other 3
questions. It also asked that the smelting operation at Trail have
restrictions placed on it to study the effects of its sulfur
dioxide emissions.  The two governments agreed to the trial
restrictions (1938-1940).  As for the Tribunal's decision on
question 1, it was determined that the Government of Canada should 
pay the United States US$78,000 for damage that the Trail Smelter
had done to the State of Washington from 1932 to October 1, 1937.
This compensation was primarily for damage done to land along the
Columbia River valley in the United States. The Tribunal decided
that the United States had not displayed enough evidence for damage
to livestock or businesses in Washington State from the operation
of the Trail smelter.
     Following the trial restrictions, the Tribunal gave its answer
to the final 3 questions on March 11, 1941.  It had decided that
the Trail Smelter should refrain from causing any future damage
to the State of Washington from its sulfur dioxide emissions.  To
ensure this, it mandated that the smelter maintain equipment to
measure the wind velocity and direction, turbulence, atmospheric
pressure, barometric pressure, and sulfur dioxide concentrations
at Trail.  Readings from these instruments were to be used by the
smelter to keep its sulfur dioxide emissions at or below levels
determined by the Tribunal.  Moreover, copies of the readings were
to be supplied to both governments monthly so that they could see
the smelter's compliance.  If the smelter could not keep to the
prescribed sulfur dioxide levels, then compensation could be
awarded to the United States as determined by the Tribunal and
the Canadian Government. 
     Despite the U.S. Government's contention that the emissions
from Trail damaged the land, livestock, and businesses in almost
140,000 acres along the Columbia River valley in northern
Washington State, the Tribunal only found that real damage had
been done to the uncleared forest land and cleared farm land along the
Columbia River.  In November of 1949, the U.S. Secretary of State
wrote a note to the Canadian Ambassador to the United States to
offer to refund to the Canadian Government US$8,828.19 of the money 
that the Canadian Government had paid to the United States as
compensation for damages caused by operation of the Trail
smelter.  This money was what was left over from the US$428,179.51 that the
Canadian Government had paid as damages after the U.S. Government
had paid off all of the claims of individual property owners in
Washington State against the Trail smelter.  The Canadian
Government accepted this refund in January of 1950.
     The Trail smelter is still in operation today. It is owned by
Cominco Limited of Vancouver, who uses the smelter to refine lead, 
zinc, silver, gold, bismuth, cadmium, and indium. Cominco employs
125 individuals at the site (see GEDDES case).

3.        Related Cases
     Keyword Clusters
     (1): Trade Product            = MINErals
     (2): Bio-geography            = TEMPerate
     (3): Environmental Problem    = Pollution Land [POLL]
4.        Draft Author: David B. Higgins
B.        LEGAL Clusters 
5.        Discourse and Status: DISagreement and COMPlete
6.        Forum and Scope: CANADA and BILATeral
7.        Decision Breadth: 2 (USA and CANADA)
8.        Legal Standing: LAW
C.        GEOGRAPHIC Clusters
9.        Geographic Locations
	a.   Geographic Domain:  North America [NAMER]
	b.   Geographic Site:    Western North America [WNAMER]     
	c.   Geographic Impact:  CANADA
10.       Sub-National Factors: NO
11.       Type of Habitat: COOL
D.        TRADE Clusters
12.       Type of Measure: Regulatory Standard [REGSTD]
     The Trail Smelter was to operate with instruments to measure
wind direction and velocity, turbulence, atmospheric temperature,
barometric pressure, and sulfur dioxide concentrations. It was also
given a table of the maximum permissible sulfur emissions allowable
during any time of the day. No matter what weather conditions
prevailed, the smelter was to keep its sulfur dioxide emissions
below the prescribed levels. Readings of all the instruments
maintained by the smelter had to be submitted monthly to both the
Canadian and U.S. Governments.

13.       Direct vs. Indirect Impacts: INDirect
14.       Relation of Trade Measure to Resource Impact
     a. Directly Related:     YES  ZINC
     b. Indirectly Related:   NO
     c. Not Related:          NO
     d. Process Related:      YES  Pollution Land [POLL]
15.       Trade Product Identification: ZINC (and Lead)
16.       Economic Data
17.       Impact of Measure on Trade Competitiveness: MEDium
     Canada paid the United States US$428,000 for damages plus
probably around US$50,000 to pay for scientists and equipment to
monitor sulfur emissions at Trail from 1937 to 1942.
18.       Industry Sector: MINE
19.       Exporters and Importers: CANADA and USA
E.        ENVIRONMENT Clusters 
20.       Environmental Problem Type: HABITat Loss
     As far as related cases, there have been several similar cases
to Trail Smelter.  Some of those affected by the concern over the
environmental impact of sulfur dioxide released by smelters
include: the Douglas plant in Arizona, a Tacoma plant in Washington
and the Nacozari plant in Mexico.  The last of these actually
brought about a heated debate between the U.S. and Mexico over
building a plant without pollution controls.  There was eventually
an agreement, which was due to cases similar to the Trail Smelter
case where environmental damage just will not be tolerated.  The
Trail Smelter case was the first of its type.  In addition to
affecting other similar cases via its legal precedent, Trail
Smelter also had a great deal to do with the formulation of later
air pollution treaties between the U.S. and Canada.
21.  Name, Type, and Diversity of Species
     Name:          MANY
     Type:          MANY
     Diversity:     19,473 higher plants per 10,000 km/sq (USA)
     Specifically affected entities include Milch cattle alfalfa,
oats, wheat, barley, potatoes, yellow pine, Douglas fir, larch,
and cedar.
22.       Resource Impact and Effect: LOW and REGULatory
     The flora, trees, and various forms of wildlife were affected
by such high doses of sulfur dioxide, a cost easily surpassing the
monetary value of $78,000.
23.       Urgency of Problem: LOW
24.       Substitutes: Biodegradable [BIODG]
F.        OTHER Factors
25.       Culture: NO
26.       Trans-Boundary Issues: YES
     The operation of the Trail smelter in British Columbia was
contaminating the environment of those individuals in Washington
State who lived to its south along the Columbia River valley. 
27.       Rights: YES
     The operation of the Trail smelter was contaminating the
environment of those individuals who lived to its south along the
Columbia River valley.
28.       Relevant Literature
"A Mexican Smelter has the Southwest All Fired Up", Business
     Week, July 22, 1985, 70.
"Anti-pollution Costs Cited in Closing of Tacoma Smelter",
     International Wildlife 14.  September/October, 1984.  29.
Canada Treaty Series, 1951 No.35, "Damage from Smelter
     Fumes," Trail, B.C. Ottawa: Queen's Printer and
     Controller of Stationary, 1957.
Carter, Barry E. and Trimble, Philip R.  International Law.
     (Little, Brown & Company: Boston) 1991.
Decision of the Tribunal Reported March 11, 1941, "Trail Smelter
     Arbitration Between the United States and Canada Under
     Convention of April 15, 1935."  Washington, D.C.:
     Government Printing Office, 1941.
"Smoking Smelter Shuts in Arizona."   Audubon 89.
     March, 1987.  147.

                           References


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