INTRODUCTION

On December 11, 2003, the U.S.Environmental Protection Agency (EPA) issued a unilateral administrative order pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), regarding contamination of the Upper Columbia River in Washington State. What is remarkable about this order is that it is directed against a Canadian company, Teck Cominco Metals, Ltd. (TCML), and concerns historical contamination arising from TCML's smelting and refinery operation located in Trail, British Columbia. The facility in question is, of course, the famed Trail smelter. By seeking to impose liability against a company operating outside of U.S. territory, this order marks an unprecedented extension of the EPA's jurisdiction under CERCLA, prompting a formal diplomatic response from the Canadian government.

A second transboundary pollution dispute concerning the Trail smelter presents an intriguing opportunity to consider the continuing relevance of the Trail Smelter arbitration. The intrigue arises not only because of the legally historic significance of the facility itself, but because the approach taken by the EPA in the second dispute appears to be a radical departure from the traditional approach respecting transboundary environmental harm that had its genesis in the original Trail Smelter arbitration.

At the heart of the Trail Smelter arbitration and the subsequent development of the harm principle in international environmental law is a recognition that the duty to prevent harm is mediated by an opposing right of a state to exploit its own natural resources in accordance with its own environmental policies.