Trail Smelter Dispute

The first international dispute over transborder air pollution that led to international cooperation to address the problem is significant because it marks the first recognition of transborder air pollution. The famous Trail Smelter dispute began in 1927 and lasted until 1941. It began when it was discovered by farmers in Northport, Washington that the emissions from Consolidated Smelter and Mining Company (C.S. & M.) in Trail, Canada were causing crop damage [12]. Unfortunately, at this time in history, the sensitive high-tech equipment that was required to detect acid deposition was yet to be developed and employed in studies relating air pollution to crop damage. With the Trail Smelter Dispute, the "visible damage" requirement made it difficult for U.S. scientists to prove damage was linked to the transborder air pollution. This was because the pollution is undetectable by the naked eye and requires measurements of the chemicals in the soil, on the leaves of trees, and in the water. As a result, the Arbitral Commission, a three judge panel that oversaw the proceedings, made the final decision that the C.S.& M. plant would have to pay a negligible amount in reparations to the farmers of Northport. The "visible damage" requirement would set back the abatement of transborder air pollution for decades. Not only would Canada continue to pollute the United States, but also the precedent would allow U.S. mid-western factories to pollute Ontario for decades to come. Additionally, Arizona and Texas Smelters would proceed to send damaging air pollution to Mexico for more than 50 years [12]. Fortunately, science and technology would make the establishment of "clear and convincing evidence" as required by the visible damage standard easier in the future when the problem of transborder air pollution was again brought to the forefront of international environmental concerns.

Although this agreement is considered to be unsuccessful by many theorists, it extended the "polluter pays" notion and laid down a very important principle in international law for future cases [12]. This principle, known as the Trail Smelter Principle, states: "No State has the right to use or permit the use of its territory in such a manner as to cause injury in or to the territory of another State or the properties or the persons therein, especially when the injury has serious consequences and is established by clear and convincing evidence" [28].

The Trail Smelter Dispute did not deal with the effects of acid deposition nor did it acknowledge that acid deposition was even occurring. This oversight would allow for fifty more years of unchecked emissions in the international environmental community. Not until the effects of acid deposition were too severe to ignore would the issue of transborder air pollution be addressed by the international community.

4.5.2 LRTAP

Prior to the Convention on Long Range Transboundary Air Pollution of1979, the Swedish scientist Svante Oden had initiated the Scandinavian response to transborder air pollution. This prompted the Organization for Economic Cooperation and Development (OECD) to commission a study of the phenomenon in 1969. This was the first international recognition of transborder acid deposition. The first international effort to cooperatively monitor the occurrence of acid deposition agreed upon at the 1972 Stockholm Convention by the OECD soon followed. The scientific efforts of the OECD were consolidated in 1978 under the Cooperative Program for the Monitoring and Evaluation of the Long Range Transmission of Air Pollutants in Europe (EMEP). Once it was confirmed that transborder air pollution was resulting in acid deposition with harmful impacts on the environment, the Convention on Long Range Transboundary Air Pollution (LRTAP) convened. In 1979, the LRTAP agreement was signed by most of the Eastern and Western European countries, the United States, Canada and the USSR in Geneva under the auspices of the United Nations Economic Commission for Europe (ECE). This would become the first multilateral agreement on air pollution.

The agreement created the LRTAP organization, which consisted of an institutional framework, including an executive body, a secretariat, and a bureau. These bodies were responsible for the administrative tasks and decisions necessary to contribute to the success of the agreement. Also, the organization coordinated scientific research efforts through the creation of Subsidiary Working Groups. These groups would use scientific data to make regulatory proposals for the Executive Body. The Subsidiary Working Group was further divided into research and monitoring groups that specialized in the measurement of pollutant levels, technology recommendations, effects of pollution and strategies incorporating economic concerns.

Initially, the agreement did not contain strong commitments for emissions reductions. This was due to resistance by the United Kingdom and Germany to sign a treaty with binding pollution abatement commitments. A strong enough scientific link between the emissions of one country and damage in another country had not yet been established. Meanwhile, research and monitoring continued under the LRTAP organization. In 1982, a meeting on acidification of the environment in Europe revealed that forests were also being severely damaged by acid deposition, especially German forests. The German scientists who discovered the occurrence have referred to this phenomenon as Waldsterben. The revelation of Waldsterben caused a dramatic shift by Germany to a position of being in favor of mandatory emissions reductions.

The first regulatory step of the LRTAP agreement was proposed in 1983 by the Nordic countries. The plan proposed a 30% reduction in Sulfur Emissions by 1993, using 1980 as a base year. Although Germany now supported such a measure, the United Kingdom, France and Italy failed to back the proposal. Despite this lack of consensus, the First Sulfur Protocol was adopted by the LRTAP organization and opened for signature. The three largest sulfur producers, the United Kingdom, Poland and Spain, did not adopt the protocol.

In 1988, the LRTAP member countries adopted the next regulatory measure, the Nitrogen Oxide (NOx) Protocol. Unlike the first Sulfur Protocol, the NOx Protocol called for a freeze of NOx emissions at the 1987 level from 1994 onward. The next major protocol was the Volatile Organic Compounds (VOCs) Protocol, signed in 1991 and called for a 30% reduction of VOC emissions between 1988 and 1999 based on 1988 levels. The 1988 levels could be national levels or within specific tropospheric ozone management areas (TOMA). And in 1994, the Second Sulfur Protocol was signed to further reduce sulfur emissions based on the "critical loads approach." The goal of this approach, as opposed to across the board reductions, was to promote cost efficient policies that would reduce sulfur emissions to levels that were not malignant to the environment or human health. The Regional Acidification Information and Simulation (RAINS) Model was used to help determine the most cost efficient pollution abatement strategies. Two other protocols were signed in 1998, including a protocol to reduce heavy metal pollutants and persistent organic pollutants (POPs). Additionally, a multi-effects and multi-pollutants protocol was adopted in 1999 to further reduce NOx, VOCs, sulfur dioxide (SO2), and ammonia (NH3) pollution. It was hoped that the effects of acidification, tropospheric ozone formation and eutrophication would be reduced. These agreements marked the continued commitment of LRTAP members to reduce emissions that contributed to transborder air pollution.

One of the most important aspects of the LRTAP agreement is its institutional framework. This framework, however, did not provide for any enforcement mechanism or consequences for non-compliance with its regulations. This was especially evident with the first sulfur protocol in which several nations never signed the agreement, much less complied with its requirements. The provision that called for countries to report their efforts to reduce pollution and the results created public transparency and accountability. This may have contributed to the attempts by the member states to reduce emissions.

The reduction of most emissions in the LRTAP states is not attributed to the agreement. Although the reduction in emissions by Britain and Russia would have been unlikely without the establishment of the LRTAP regime, much of the perceived success in other countries is believed by many scholars to be endogenous and could be attributed to a plethora of other variables [1].

Implementation studies indicate that factors such as energy switches motivated by lower costs and a reduction in industrial pollution due to economic decline have been more influential in the alleviation of acid deposition in Europe than the LRTAP agreement [2]. Because the Nordic states and Canada were importing air pollution as well as creating it, it was in their own best interests to reduce emissions to prevent severe environmental degradation. It is likely that these countries would have created national initiatives on their own to alleviate the problem [1]. Additionally, the LRTAP agreement has failed in that many of the member countries are having problems achieving their targeted reductions [1]. This has caused a controversy among LRTAP member states over the RAINS model.

The costs of emissions reductions suggested by RAINS are still too high for many of the Eastern European states. Additionally, the RAINS model is being criticized because it is the only model used. This makes its results more vulnerable to challenge by member states. Currently, lobbyists and other special interest groups are working to discredit the model [29]. Discrediting the model and its findings could lead to years of additional research and a freeze on emissions reductions. In the meantime, EANET, the regional monitoring group in South East Asia, has adopted its own version of the RAINS model [30]. The same controversy could arise among the EANET states where acid deposition has the potential to become a larger problem than in Europe. These factors make it difficult to assess the LRTAP agreement as anything more than a medium success [2].

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