CRT Library
Trail Smelter, the Columbia River, and the Extraterritorial Application of CERCLA
“This article discusses the application of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) as it relates to the Trail Smelter dispute. The dispute involves a Canadian smelter that polluted a river that flowed into the United States . The author outlines the elements involved in this transboundary environmental dispute, including the nature of the pollution, the various parties involved, and the choices of forums for dispute resolution. Hess then examines the kinds of claims allowed under CERCLA to investigate and decontaminate the affected area, as well as the potential to impose the cost of cleanup on the responsible party or parties. The author then analyzes and compares the extraterritorial application of U.S. statutes with those of CERCLA in the context of claims arising out of the Trail Smelter dispute. Hess notes that U.S. courts have not come to a consensus about the underlying purposes and policies in the extraterritorial application of U.S. statutes, and several statutes are apparently at odds with one another. The author discusses the authority that Congress has to give extraterritorial application to statutes such as CERCLA, and contrasts that authority with the presumption articulated by the U.S. Supreme Court against extraterritoriality. He then discusses four approaches used in domestic cases to overcome that presumption – “Congressional intent” approach, “effects” approach, “reasonableness” approach, and “avoiding the presumption” approach. Hess concludes that the extraterritorial application of CERCLA in the Trail Smelter case would further the substantive goals of the act, which are to create a mechanism to compel private parties to clean up hazardous waste sites and to impose costs of the cleanup on the responsible party. In conclusion, Hess explores unresolved issues in the analytical framework for the extraterritorial application of U.S. statutes in general, and CERCLA in particular.” (Taken from abstract, available at http://www.law.georgetown.edu/journals/gielr/toc_v18n1.html)
Note: the full text is not available in the CRTDL. For online availability, check: https://articleworks.cadmus.com/geolaw/zsk00106.html
Author: Hess, Gerald
Publisher: Georgetown University Law Center
Date: 2005
