711.4215 Air Pollution/492
The Secretary of State to the Minister in Canada (Robbins)
Sir: I acknowledge the receipt of the Legation’s despatch No. 517 of April 11, 1934, transmitting a note dated April 10, 1934, which the Department of External Affairs of Canada addressed to the Legation, relating to the Trail Smelter matter.
It is stated in the second paragraph of the Canadian note that a new aspect of the problem had arisen which suggests the necessity of further consideration before a draft of a convention dealing with the Trail Smelter matter can be submitted to the two Governments. It is understood that the Canadian Government refers to the conditions which that Government found to exist at Detroit, Buffalo and other places along the international boundary as a new aspect of the Trail Smelter problem.
I do not feel that conditions at Detroit, Buffalo and other places can be regarded as an aspect of the Trail Smelter case. Correspondence between the two Governments in regard to the Trail Smelter matter began in 1927, and it has throughout been considered as a problem in itself, separate and distinct from questions arising elsewhere on the international boundary. No mention has at any time been made, prior to April 10, 1934, in the correspondence between the two Governments relating to the Trail Smelter matter of conditions at Detroit, Buffalo or elsewhere on the international boundary.
The Trail Smelter matter was investigated by the International Joint Commission, and the Commission rendered its Report in February, 1931. The questions now raised by the Canadian Government [Page 932] have not been so investigated. Correspondence with the Canadian Government following the Report of the Commission on the Trail Smelter Reference was opened by the note of the Legation to the Department of External Affairs dated February 17, 1933. Since that time there have been a number of exchanges of communications without mention therein of conditions at Detroit, Buffalo and elsewhere.
I do not feel that conditions at Detroit, Buffalo and other places along the international boundary can be regarded as an aspect of the Trail Smelter problem or that those conditions can properly be injected at this time into the discussion pertaining to the Trail Smelter matter.
In the third paragraph of the note of April 10, 1934, reference is made to a statement contained in the Canadian Government’s note of February 17, 1934, to the effect that a principle should not be established in the Trail Smelter case which would potentially involve a shutting down of existing industries of various types in industrial communities in the Dominion of Canada and the United States along the international boundary.
It is not deemed necessary or desirable to establish any principles in the solution of the Trail Smelter matter. Proposals made by the Government of the United States looking to a solution of the Trail Smelter problems have not contemplated the establishment of any principles. It is the view of the Government of the United States that the Trail Smelter case should be determined according to established and recognized principles. The formula proposed in Article 4 of the draft convention referred to in the Canadian note would admit of the application of established principles. I agree that it is not desirable, and feel that it is not necessary, to establish any principles in adjusting the Trail Smelter case. I feel that the questions presented by the operation of the Smelter at Trail, in so far as interests in the United States are affected, can and should be determined by the application of existing recognized principles.
It is stated in the last sentence of the third paragraph of the Canadian note that it was assumed that the maximum frequency, duration and concentration of sulphur dioxide visitations which it was proposed should be determined by a tribunal for the State of Washington would be applicable to other cases in which sulphur dioxide was crossing the international boundary.
There was no suggestion in any of the correspondence exchanged between the two Governments prior to the Canadian note of April 10, that decisions to be made with respect to the Trail Smelter case should have application to any other case or cases which might arise along the international boundary. The Trail Smelter case should be adjudicated according to established principles applicable to that particular case. [Page 933] Any other case which might arise should be determined according to established principles applicable to that particular case. The Trail Smelter case has been the subject of extensive investigation by both Governments. No showing has been made which would necessitate a conclusion that the questions raised by conditions at Detroit, Buffalo or at Canadian industrial centers along the international boundary would be susceptible of determination by the application of the same principles as would control in determining the questions raised by the Trail Smelter case. There is no occasion at this time to conclude that decisions which might be made with respect to the Trail Smelter case would have application to questions which might arise at other places.
It is not understood that the Canadian Government suggests any definite procedure to be followed with respect to conditions at Detroit, Buffalo and other places along the international boundary. The Canadian note of April 10, seems to contemplate that consideration of the Trail case should be deferred until investigations are completed at Detroit, Buffalo and other places along the boundary and that the provisions in the proposed convention relating to the Trail case be extended to apply to other cases.
I cannot acquiesce in any suggestion that contemplates delay in settling the Trail case. As emphasized above, the Trail case is entirely separate and distinct from questions which are now raised with respect to Detroit, Buffalo and other places on the international boundary. The questions which are now raised by the Canadian Government have not attained the same status that the Trail case has attained. I do not consider that there is any justification for mingling the Trail case with any new questions. The adoption of any suggestion which would have the effect of delaying considerations of the Trail case could not fail to operate to the advantage of the trespassers and to the disadvantage and further injury of the victims of the wrongs. If the Canadian Government will submit concrete proposals as to the procedure which it considers should be followed with respect to the industrial centers to which reference is made in the Canadian note of April 10, 1934, separate from the Trail Smelter case, I shall be glad to consider those proposals. I exceedingly regret that the Canadian Government considers that new cases should be associated with the Trail case. I earnestly hope that the Canadian Government can see its way to proceed expeditiously to the conclusion of an agreement calculated to settle the Trail case.
It is suggested, in conclusion, that conditions at Detroit, Buffalo and other places along the international boundary about which the Canadian Government now expresses concern would more appropriately be referred to the International Joint Commission for investigation and report, as was done with respect to the pollution of boundary waters [Page 934] under date of August 1, 1912, than to a tribunal such as it has been proposed to establish to adjudicate the Trail Smelter case. To conduct such investigations is one of the purposes for which the International Joint Commission was established and is maintained.
Very truly yours,