The International Joint Commission's Role in the United States-Canada Transboundary Air Pollution Control Regime: A Century of Experience to Guide the Future

Abstract

The International Joint Commission (IJC), a bilateral institution established to manage the shared water resources of the United States and Canada, is celebrating its centennial. Despite its original mandate, the IJC also earned a prominent role in the governance of transboundary air pollution between the two nations. This article reviews the evolution of that particular function, evaluating the IJC’s role in the international transboundary air pollution regime with an eye to the challenges apparent at the dawn of its second century. The birth of the IJC and its original mandate under the 1909 Boundary Waters Treaty are introduced first. Next, every reference made to the IJC directly confronting air pollution are presented and analyzed. A pattern of increasing responsibility is traced from Trail Smelter through the series of three Detroit-St. Clair River Region references, then beyond the Great Lakes Water Quality Agreements to the 1991 U.S.-Canada Air Quality Agreement. After evaluating those experiences, four proposals are distilled which would help to restore the IJC to the forefront of the U.S.-Canada transboundary air pollution control regime. Namely, the "precautionary principle" of international environmental law should be directly applied when drafting future references for submission to the IJC; the evidentiary value of IJC reports should be recognized in domestic courts on both sides of the border (especially in the context of the transboundary litigation provisions recorded in section 115 of the U.S. Clean Air Act and section 21.1 of the Canadian Clean Air Act); the Boundary Waters Treaty should be revised to transform IJC arbitration into an attractive alternative to litigation; and the IJC should be granted all of its familiar roles vis-a-vis the upcoming transboundary air pollution cap and trade program.