Northport Washington Blog The Northport Project

However, Wirth argues, the resolution of a scientific question was not, ultimately, the main focus of the scientific activity that occurred relative to the Trail case. Instead, scientists on both sides worked to defend the legal interests of their particular constituencies (the farmers for the USDA, Consolidated for the Canadians) and their scientific data was, as a result, limited to proving legally defined damage to crops.

USDA scientists were able to make a convincing case that exposure to sulfur dioxide emissions did cause measurable damage, even when it was not visible to the casual observer. In the pro-industry climate of the times, the Commission did not seek to punish Consolidated; instead they were impressed by the company’s innovative efforts to reduce air pollution through a variety of control systems. Weighing these efforts with the findings of the USDA scientists, the Commission tried to strike a balance in their decision, and awarded the farmers $350,000 in damages in 1931 (half of what they’d been demanding) while requiring Consolidated to maintain its new regula- tory regime. The Commission’s ruling was rejected by the U.S. plaintiffs (who felt the penalty was inad- equate), and a second set of hearings was held before the three-judge panel of the newly created Trail Arbitral Tribunal from 1937-1938.

This time, the U.S. side was trounced by Consolidated and its supporters. Funding deficits during the Depression hampered USDA research, while Canadian research was revitalized by an infusion of funds from Consolidated. Canadian efforts were further supported by pro-industry scientists on both sides of the border – including some within the U.S. Bureau of Mines. The result was that the USDA’s claims about invisible injury were discounted. Moreover, Consolidated’s promotion of innovative recovery techniques (which reduced pollution) and the pro-industry attitude of the Tribunal’s scientific experts swayed the decision in favor of the smelter industry. A new, smaller penalty ($78,000) was assessed in 1938, and Consolidated continued operating under the new regulatory regime it had helped establish.

THE TRUE SIGNIFICANCE OF TRAIL: AR- GUMENT

I provide this lengthy narrative because it is dif- ficult to properly appreciate Wirth’s argument with- out it. There are three important assertions made here. First, Wirth argues that the Trail case is significant primarily because it demonstrates that crossborder alliances–at least for industry are nothing new. This challenges the dominant narrative of international policy regulation, which holds that regulating transnational corporations is a recent problem.

Second, according to Wirth, the Trail case was not about establishing an international precedent for addressing transborder pollution as has been generally assumed. Although the Trail case did establish the principle of “the polluter pays,” both the United States and Canada were actually trying to avoid setting a comprehensive precedent. The United States was concerned that any such precedent could be brought to bear against U.S. companies that polluted across both Canadian and Mexican borders. Similarly, Canada was concerned about Canadian smelters in the Great Lakes region. The result was that both sides worked assiduously to keep the Trail ruling localized, and the final ruling favored a standard based on the “best available control technology” rather than adherence to a stricter absolute standard.

Third, Wirth argues that the hearings’ emphasis on legally defined damage distorted the science of the case. Instead of promoting “good” science, the legal demands of the hearings reduced what could have been a vigorous but productive scientific debate to a series of legal counterclaims. Even as industry cooperated across borders, Wirth argues, scientists were divided into opposing camps unable to share information for fear of compromising their legal positions. (Wirth places a bit too much faith in the ability of scientists to do “objective” work under other condi- tions, in my opinion, but his argument still stands.)

THE MEANING OF THE GRAY TRIANGLE

The story of the efforts to regulate, then shut down, the Douglas Reduction Works is more straight forward. Douglas, a smelter run by the Phelps Dodge Corporation in Arizona, was “brought on line” in the early 1900s and became an important fixture in the corporate, community, and industrial landscapes along the border. Even more so than Trail’s Consolidated, the Douglas smelter operated in a crossborder environment. Employing both American immigrants and Mexican labor, smelting ores from both sides of the border, paying damages to Mexican farmers and supported by the Arizona state legislature, Phelps Dodge transcended national boundaries. That this was recognized early on can be seen in the fact that the Douglas works were among those that U.S. officials involved in the Trail dispute had in mind when they advocated keeping Trail local.

Initially Phelps Dodge, like Consolidated, enjoyed a position of power and comfort; neighboring communities perceived smelter pollution as “the smell of money” and the state economy was invested in keeping the mining and smelter industry running at full throttle. Local protests, few in number, achieved about as much success as the Citizens’ Protective Association in Northport would have had without fed- eral support which is to say, little or none beyond some small monetary compensation for visible damage.

However, in the 1970s, the context in which Dou- glas and other smelters operated shifted. A num- ber of factors accounted for this change. First, the 1970 Clean Air Act and subsequent establishment of the Environmental Protection Agency provided a new regulatory framework, at least in the United States. Armed with this new tool, citizen activists came to play a crucial role in challenging smelter pollution. Second, national and public opinion had shifted away from industry. The position of privilege that had en- abled companies like Consolidated to call the shots relative to their own regulation had eroded by the 1980s. Issues of health and quality of life became much more salient. Third, research into the causes and effects of acid rain demonstrated decisively that border pollution was not a local issue, but rather one with continental significance. Finally, the presence of two Mexican smelters across the border (the other two legs of the so-called “Gray Triangle”) brought provided additional reasons to regulate Douglas. Failure to bring Douglas into compliance with federal and state standards, it was argued, would weaken the position of those in the United States who ad- vocated regulation of the Mexican smelters, whether to control acid rain caused by smelter smoke or to prevent less-regulated Mexican companies from out- competing their regulated U.S. counterparts. The “Gray Triangle” also provided an important incentive for the creation of binational regulatory frameworks, such as the precedent-setting La Paz agreement of 1983.

The result, argues Wirth, was that citizen activists were able to marshall an attack against the Douglas Reduction Works on a number of fronts, armed with the new authority the Clean Air Act and recent scientific research gave them. In the earlier Trail case, the smelter industry as represented by Consolidated was able to fend off its critics by installing innovative control technology. In the “Gray Triangle” case the industry could only play for time. Although cheap to run uncontrolled, the Douglas plant was too old to upgrade without incurring expenses the company was willing to pay. Ultimately, the combination of new regulatory mechanisms, citizen activism, and the “Mexican linkage” resulted in the closure of the Douglas Reduction Works in 1987. The conclusion that Wirth draws from this is that policy, like industry, must operate across borders, and that it must offer a role for citizens to play.

ASSESSMENT

Smelter Smoke in North America thus offers a number of useful insights about transnational pol- lution and environmental regulation, and interesting observations about the role of science and grassroots activism. Moreover, Wirth deliberately includes the industry perspective in his examination, arguing – with some justification – that it has been excluded from many histories of environmental policy. All of these things make Smelter Smoke in North America worthy of examination by the reader interested in the history of air pollution and its regulation in North America.

However, three things make Wirth’s argument less effective than it could be. First, although the book ar- gues in favor of a continental perspective on air pollu- tion, it tends to emphasize the U.S. side. The account of Trail is fairly balanced indeed, Wirth makes use of Canadian sources that had been used only in a limited way prior to his account – but the research on the Gray Triangle is noticeably titled in favor of U.S. sources. Wirth relies heavily on interviews with peo- ple involved in the litigation such as Arizona governor Bruce Babbitt and activists Richard Kamp, Robert Yuhnke, and Priscilla Robinson. Given that the Douglas case was resolved less than twenty years ago, this use of oral sources is both appropriate and useful. However, interviews with corresponding Mexican fig- ures are lacking, and even the Mexican archival data is relatively sparse in comparison to the wealth of ma- terial gleaned both from the U.S. activists and from Phelps Dodge.

Second, the effectiveness of Wirth’s argument is undercut by problems of presentation. For one thing, the prose is studded with acronyms, perhaps unavoidable when writing a history that focuses on the actions of bureaucracies, activist organizations, and complex technological processes. A list at the beginning of the book provides some assistance, but I found it awkward to keep flipping back to see to what the author was referring. Moreover, not all acronyms or abbreviations were listed. For example, the Consolidated Mining and Smelting Company, listed as COMINCO in the list of abbreviations, was referred to far more often in the text as “C. M. & S.” On several occasions, heavy use of acronyms produced sentences like the following: “The EPA might be prepared to grant an NSO variance to the SIPs, but not without changes in the way the SCS at Douglas was being operated and a plan to capture fugitive (nonstack) emissions” (p. 194). If the acronyms were leavened more regularly with the names of the organizations and processes involved, it would make the argument easier to follow.